State v. Borek: Rule 503 Requires Proof of Treatment-Directed “Confidential Communications”; PMP and Pharmacy Dispensing Records Not Privileged

Introduction

In State v. Borek (Idaho Feb. 4, 2026), the Idaho Supreme Court reviewed a pretrial order granting a motion in limine that barred the State from introducing certain prescription-related and jail medical records in a DUI prosecution. The defendant, Lewis Vanalen Borek, sought exclusion under Idaho Rule of Evidence 503(b)(2), Idaho’s psychotherapist-patient privilege for “confidential communications” made for diagnosis or treatment of a mental or emotional condition.

The principal issues were whether (1) Idaho Prescription Monitoring Program (“PMP”) records, (2) Star Pharmacy dispensing records, and (3) an Ada County Jail medical intake questionnaire qualify as “confidential communications” within Rule 503, and whether Borek met his burden to establish the privilege’s elements.

Summary of the Opinion

The Supreme Court reversed the district court’s exclusion of (1) the PMP record and (2) Star Pharmacy records, holding they were not shown to be privileged “confidential communications” under I.R.E. 503(b)(2). The Court also reversed exclusion of the Ada County Jail medical questionnaire because Borek failed to introduce evidence establishing the questionnaire satisfied the elements of Rule 503(b)(2). The Court emphasized that HIPAA-style “confidentiality” does not itself establish an evidentiary privilege.

Procedurally, the Court noted the State challenged only the jail medical questionnaire on appeal; therefore, under its waiver doctrine, the Court affirmed the remainder of the district court’s privilege ruling as to other Ada County Jail records not specifically argued by the State.

Analysis

Precedents Cited

  • State v. Buehler, 173 Idaho 717, 547 P.3d 1203 (2024): Used for the abuse-of-discretion framework governing review of motions in limine. The Court applied Buehler to determine whether the district court acted consistently with applicable legal standards—central to reversing rulings that rested on incorrect interpretations of Idaho law and unsupported factual assumptions.
  • Kirk v. Ford Motor Co., 141 Idaho 697, 116 P.3d 27 (2005): Cited for the allocation of proof—“the individual claiming the privilege has the burden of proving the privilege applies.” This burden principle drove the result on the jail medical questionnaire (and supported reversal generally), because Borek’s HIPAA-focused evidence did not prove Rule 503’s specific elements.
  • State v. Borek, No. 49021, 2022 WL 4295418 (Idaho Ct. App. Sept. 19, 2022) (unpublished): Provided procedural background, particularly earlier suppression of blood-test results and certain medical statements due to lack of probable cause for a felony DUI arrest. The Supreme Court treated this as context, not as controlling on the Rule 503 privilege question.
  • Abdullah v. State, 169 Idaho 711, 503 P.3d 182 (2021): Cited for appellate waiver: a party waives an issue by failing to support it with argument or authority. This doctrine limited review of the jail records to the medical questionnaire because the State stated it intended to use only that document.
  • State v. Kiss (In re Contempt of Wright), 108 Idaho 418, 700 P.2d 40 (1985): Cited to reinforce the distinction between “confidential” information and “privileged” information. The Court used this to emphasize that the mere confidential nature of data does not automatically create an evidentiary privilege barring disclosure at trial.

Legal Reasoning

1) PMP record: a legal-error reversal anchored in how Idaho’s reporting scheme works

The district court’s privilege analysis treated the PMP as if it were a necessary “transmission” link: the prescriber purportedly had to report to the PMP first, and the PMP then “communicate[d]” to the pharmacist so the prescription could be filled. From this premise, the district court concluded the Board/PMP was “reasonably necessary for the transmission of the communication” and could be viewed as “participating” in diagnosis/treatment under I.R.E. 503(a)(4).

The Supreme Court reversed because that premise was wrong as a matter of Idaho law. Reading I.C. § 37-2726(1) (2016) (controlled substances “dispensed” must be filed with the Board) together with then-effective IDAPA reporting rules (e.g., reporting “by the end of the next business day” for controlled substances “dispense[d]”), the Court held the reporting obligation was triggered after dispensing—not as a precondition to dispensing. Because the district court’s “PMP-as-transmission-gatekeeper” theory “formed the entire basis” for treating PMP data as privileged, the court’s ruling failed the “acted consistently with the legal standards” requirement under the abuse-of-discretion test.

Notably, the Court did not rest its holding on the State’s broader characterization of the PMP as law-enforcement-oriented; it reversed on the narrower and decisive ground that the PMP was not legally required to transmit the prescription to permit filling it.

2) Ada County Jail medical questionnaire: potential privilege, but no evidentiary foundation

The Court distinguished “possible” privilege from “proven” privilege. The questionnaire’s content (medications, pharmacy verification, suicidal ideation, substance use, etc.) suggested it could have been used for diagnosis or treatment. But the Court refused to infer the privilege’s elements solely from the document’s face, recognizing alternative purposes such as risk management, housing decisions, or staff safety.

Under Kirk v. Ford Motor Co., Borek had the burden to prove all three Rule 503(b)(2) elements: (1) a confidential communication, (2) for diagnosis or treatment of a mental/emotional condition, and (3) among the patient, psychotherapist, and persons participating under the psychotherapist’s direction. Borek’s hearing evidence addressed primarily HIPAA-style confidentiality (release practices and subpoena requirements), not who administered the questionnaire, why it was administered, who received it, or how it was used in treatment. The absence of that evidence meant there was not “substantial and competent” support for the district court’s key findings.

Importantly, the Court avoided a categorical rule. It held only that Borek failed to meet his burden on this record and expressly allowed Borek to renew the privilege claim on remand with appropriate proof.

3) Star Pharmacy records: dispensing is not “treatment under the direction” of a psychotherapist

The district court offered two rationales for excluding Star Pharmacy records: (a) because the jail records were privileged, the pharmacy records obtained using jail information were also privileged; and (b) pharmacists/pharmacy staff were “participating in [Borek’s] treatment under the direction” of his psychotherapist.

The Supreme Court rejected both:

  • No “fruit of the poisonous tree” for privilege (as argued and supported here): The Court found no authority that privileged status of one communication automatically extends to downstream records obtained by subpoena from a third party, and emphasized the district court cited no supporting caselaw. The Court also noted there was no indication of an unconstitutional search/seizure in obtaining pharmacy records by subpoena.
  • Pharmacists exercise independent professional judgment: Examining Idaho’s pharmacy statutes and rules as they existed when Borek filled prescriptions, the Court held Idaho law does not place pharmacists “under the direction” of a prescriber in the sense contemplated by Rule 503(a)(4). Pharmacists interpret and evaluate prescriptions, and Idaho rules allow deviations (e.g., substitutions, partial fills, quantity/dose changes in specified circumstances, and assessing validity). This regulatory structure undercut the claim that the pharmacist was merely an agent carrying out a psychotherapist’s direction for privilege purposes.

Because Borek presented no evidence that Star Pharmacy acted under the direction of a psychotherapist in the Rule 503 sense, the privilege was not established.

4) The Court’s explicit doctrinal clarification: confidentiality ≠ privilege

A key contribution of the opinion is its warning against conflating HIPAA-based confidentiality practices with evidentiary privilege. The Court cited academic authority for the proposition that confidentiality is an ethical/statutory duty limiting general disclosure, while privilege is a litigation rule allowing a party to block evidence in a judicial proceeding. The Court anchored this distinction in Idaho precedent (State v. Kiss (In re Contempt of Wright)), emphasizing that “confidential” information does not thereby become “privileged.”

Impact

  • Narrowing and disciplining Rule 503 litigation in criminal cases: The decision signals that Rule 503(b)(2) will be applied element-by-element, with an evidentiary record demonstrating purpose (diagnosis/treatment), relationship (psychotherapist-directed participation), and confidentiality as defined by Rule 503(a)(4)—not merely “medical” subject matter or HIPAA handling.
  • PMP records are less likely to be shielded by psychotherapist privilege: While the Court’s formal holding turned on the district court’s misreading of reporting requirements, the practical takeaway is that PMP entries—compiled by mandatory post-dispensing reporting—are not naturally framed as privileged “communications” within the psychotherapist-patient relationship.
  • Pharmacy dispensing records are unlikely to qualify as psychotherapist-directed treatment communications: The Court’s statutory analysis supplies a roadmap for prosecutors to oppose Rule 503 claims directed at pharmacy labels and dispensing logs, and for trial courts to reject “pharmacist-as-psychotherapist-agent” theories absent unusual evidence.
  • Jail medical intake forms may be privileged—but only with proof: Defense counsel seeking to exclude jail medical screening materials must develop foundational testimony about medical purpose and the flow of information for diagnosis/treatment, rather than rely on the document’s medical appearance.
  • Appellate waiver can freeze partial privilege rulings: By applying Abdullah v. State, the Court illustrates that selective appellate challenges can leave portions of a privilege order intact even when related reasoning is questioned elsewhere.

Complex Concepts Simplified

  • What is a “confidential communication” under I.R.E. 503? It is not simply “private medical information.” Under Rule 503(a)(4), the communication must be intended to be private, with only limited permitted sharing (e.g., those necessary for transmission or those participating in diagnosis/treatment under the psychotherapist’s direction).
  • Why doesn’t HIPAA automatically create a trial privilege? HIPAA generally regulates when healthcare entities may disclose information. A trial privilege is different: it is a courtroom rule that lets a party stop evidence from being introduced. Something can be HIPAA-confidential yet still discoverable/admissible if no evidentiary privilege applies.
  • What does “under the direction of the psychotherapist” mean here? It is not enough that a prescription originates from a psychotherapist. The person receiving the information must be participating in diagnosis/treatment in a subordinate or directed way contemplated by Rule 503. The Court reasoned pharmacists act as independent licensed professionals, not as directed extensions of the prescriber.
  • Why wasn’t the jail questionnaire automatically privileged? Because the privilege depends on purpose and relationship. A form can be used for treatment—or for safety, housing, or administration. The party asserting privilege must prove the treatment purpose and the privileged communication pathway.

Conclusion

State v. Borek tightens Idaho Rule of Evidence 503(b)(2) practice by insisting on a precise, evidence-based showing that challenged materials are (1) “confidential communications” as Rule 503 defines that term, (2) made for diagnosis or treatment of a mental or emotional condition, and (3) exchanged within the psychotherapist-directed treatment circle. The Court held that PMP records and pharmacy dispensing records, on this record and under Idaho’s statutory framework, were not established as privileged communications. It further held that jail medical intake materials may implicate treatment concerns but are not privileged by assumption—foundational proof is required. Above all, the decision underscores a critical doctrinal boundary: confidentiality obligations (including HIPAA) do not themselves create an evidentiary privilege in criminal litigation.