Can You Fight a DEA Subpoena

Can You Fight a DEA Subpoena

Can you fight a DEA administrative subpoena? The short answer is yes. But heres the thing most lawyers wont tell you – motions to quash almost never succeed. Two federal courts in 2025 specifically called successful challenges “outliers.” Steep. Thats the word courts use to describe the burden your facing when you try to fight a DEA subpoena.

However, their is a leverage point that most people completely miss. Look. DEA administrative subpoenas arent self-enforcing. If you refuse to comply, the DEA has to petition a federal court to make you. That step – the petition to enforce – creates negotiation opportunities that disappear the moment you comply out of fear.

I should mention – alot of healthcare providers recieve DEA subpoenas and immediately panic. They produce everything the DEA asks for without questioning scope, without consulting counsel, without understanding there rights. Thats a mistake. Not because fighting is always the right answer. Sometimes quick compliance IS the best strategy. But you should make that decision strategically, not out of fear.

In this article, Im going to give you the honest truth about fighting DEA subpoenas. What works. What doesnt. When to fight. When to comply. And most importantly – how to use teh two-step enforcement reality to your advantage even when your not filing a formal motion to quash.

Understanding DEA Administrative Subpoena Authority

Under 21 U.S.C. § 876, the DEA has authority to issue administrative subpoenas to compel production of records that are “relevant or material” to an investigation. The requirements is way lower then you probly think. The DEA dont need probable cause. They dont need judicial approval. They dont need to convince anyone that theres evidence of a crime.

“Relevant or material” – thats teh standard. And courts interpret it extremley broadly. If the DEA can articulate any connection between your records and a legitimate drug investigation, the subpoena is probly valid.

I should mention – actualy, this is important – administrative subpoenas are different from grand jury subpoenas. Grand jury subpoenas come from a grand jury investigating criminal charges. Administrative subpoenas come directly from DEA officials and are suppose to be for regulatory purposes. In practice, the line between regulatory and criminal investigations is blurry, and documents produced in response to administrative subpoenas can absolutely be used in criminal prosecutions.

So who can issue these subpoenas? Alot of people:

• DEA Administrator
• Special Agents-in-Charge (SACs)
• Diversion Program Managers
• DEA Inspectors
• Resident Agents-in-Charge
• Associate/Assistant SACs

Basically. Any DEA official with supervisory authority can jsut issue a subpoena for your records without any judicial oversight whatsoever.

The Powell Factors – Four-Part Test for Enforcement

If you challenge a DEA subpoena, the court applies the four-part test from United States v. Powell (1964). Most courts say this test is easy for the government to satisfy. Heres what they have to show:

1. Legitimate purpose: Investigation conducted pursuant to authorized purpose
2. Relevance: Information requested is relevant to that purpose
3. Not already possessed: Agency doesnt already have the information
4. Administrative steps followed: Proper procedures were used

Your probly thinking – those seem reasonable. Whats the problem?

The problem is how courts apply them. Their applied very broadly. The burden is on the government, but its a minimal burden. The Supreme Court said the government “need not meet any standard of probable cause” – they jsut need to show the four factors. And courts routinely find all four satisfied with minimal evidence.

For the “legitimate purpose” factor, DEA jsut needs to say theyre investigating controlled substance violations. Thats it. They dont have to prove your actually violating anything.

For “relevance,” courts give enormous deference. If your a healthcare provider who prescribes controlled substances, your records are presumptively relevant to any drug investigation.

Why Motions to Quash Usually Fail

Real talk: if your thinking about filing a motion to quash a DEA subpoena, you need to understand the odds your facing. Their not good. Most lawyers… well, many lawyers anyway… wont tell you this upfront because they want your business.

Heres what the law actually says about the burden your facing:

• “The burden of proof imposed on a challenger to an administrative subpoena is steep.”
• Challenge only succeeds “upon a showing of institutionalized bad faith, not mere bad faith on the part of a particular individual”
• Must prove subpoena is “plainly incompetent or irrelevant to any lawful purpose”

Steep. Thats not my word – thats the courts word. And “institutionalized bad faith” means you basically have to prove the entire DEA is acting improperly, not jsut that one agent overreached.

In 2024-2025, courts have been even more explicit. Two cases where subpoenas were quashed were specifically labeled “outliers” because recipients so rarely succeed. The decision to enforce is reviewed on appeal for “abuse of discretion” – one of the most deferential standards in law.

So why do motions to quash fail? Several reasons:

• Courts give broad deference to DEA’s drug enforcement mission
• The “relevant or material” standard is almost infinitely flexible
• Fourth Amendment requires only “reasonableness,” not probable cause
• Required records doctrine defeats most Fifth Amendment arguments

The Two-Step Enforcement Leverage Most People Miss

Heres where it gets interesting. I know what your thinking – if motions to quash almost never succeed, whats the point of this article?

The point is this: DEA administrative subpoenas are NOT self-enforcing. This creates leverage that most people completely surrender by complying immediately.

Heres how the enforcement process actually works:

1. DEA issues administrative subpoena
2. If you refuse or challenge, DEA must petition federal court for enforcement
3. Court reviews Powell factors and issues show cause order
4. You get opportunity to present objections
5. Only after court orders compliance can contempt apply

Third… actualy, Ill come back to that. The critical point is: you have time. You can consult counsel before producing anything. You can challenge scope. You can negotiate limitations. You can seek protective orders. And refusing to comply immediately is NOT obstruction – your exercising legal rights.

This two-step process creates a negotiation window that doesnt exist with grand jury subpoenas (which are backed by court authority from the start). In my experiance, DEA is often willing to:

• Narrow the scope of requests
• Extend deadlines
• Accept rolling production
• Agree to protective orders

But they wont offer these modifications if you jsut comply immediately. You have to require the enforcement step – or at least credibly threaten to require it – to get negotiating leverage.

Grounds for Motion to Quash – Mandatory Grounds

Under Federal Rule of Civil Procedure 45, their are four grounds where a court MUST quash or modify a subpoena. These are mandatory – if you prove them, the court has no discretion.

1. Unreasonable time for compliance

Courts typically find less then 7 days unreasonable. 14 days or more is presumptively reasonable. But context matters – if production requires collecting records from multiple locations, reviewing for privilege, and organizing thousands of documents, even 14 days might be unreasonable.

2. Travel beyond 100-mile limit

For testimony subpoenas, the person cannot be required to travel more then 100 miles from where they reside, work, or regularly transact business. This applies to testimonial subpoenas, not document production.

3. Privileged or protected material

If the subpoena seeks attorney-client privileged communications, work product, or other protected materials and no exception applies, court must quash that portion. More on priviliges below.

4. Undue burden

If compliance would impose unreasonable cost, disruption, or difficulty, court must protect the recipient. But you need specific evidence – dollar amounts, hours required, business disruption – not jsut vague complaints about burden.

Grounds for Motion to Quash – Discretionary Grounds

Beyond the mandatory grounds, courts MAY quash or modify subpoenas on discretionary grounds. Wait, I should clarify – “may” means the court has discretion, so these arguments is harder to win.

Overbreadth

Subpoena requests more then necessary for the investigation. Example: Requesting “all patient records since 2015” when investigation concerns only 2023-2024 conduct. Courts dont like fishing expeditions.

Lack of relevance

Information requested has no reasonable connection to legitimate investigative purpose. Difficult to prove given broad interpretation of “relevant or material.”

Vagueness

Subpoena’s requests are so unclear that compliance is impossible. Example: “All documents relating to controlled substances” – relating how? What time period? This vagueness may convince court to modify.

Trade secrets or confidential commercial information

If compliance would disclose proprietary business information, court may require protective measures. Several grounds… wait, I mentioned four earlier but their actually more. The point is courts have discretion to protect legitimate interests even when mandatory grounds dont apply.

Constitutional Challenges – Fourth Amendment

Alot of people think the Fourth Amendment requires a warrant for DEA to access their records. Its not that simple. Seperately from statutory requirements, the Constitution provides some protection – but its limited.

The Fourth Amendment requires that searches and seizures be “reasonable.” But for administrative subpoenas, courts apply a reasonableness standard, NOT probable cause. This is huge. The bar is much lower.

Under Oklahoma Press v. Walling (1946), administrative subpoenas satisfy the Fourth Amendment if they:

1. Are authorized by statute
2. Are relevant to authorized investigation
3. Are adequate but not excessive for inquiry purposes

Everyone agrees… well, most experts agree… that this standard gives agencies enormous latitude. The subpoena jsut has to be “reasonable” – not supported by probable cause or even reasonable suspicion.

The “Closely Regulated Industry” Exception

Healthcare and pharmaceuticals are considered “closely regulated industries” where participants have reduced privacy expectations. Courts have used this to reject Fourth Amendment challenges to DEA subpoenas for prescription records.

Third-Party Doctrine

Information voluntarily shared wiht third parties (like prescription data submitted to state PDMPs) loses Fourth Amendment protection under United States v. Miller and Smith v. Maryland. Courts have rejected arguments that Carpenter v. United States (2018) changes this for prescription records.

Constitutional Challenges – Fifth Amendment

The Fifth Amendment protects against compelled self-incrimination. Can you refuse to produce documents because they might incriminate you? For all intensive purposes, no – not for business records.

The Required Records Doctrine

Under Shapiro v. United States (1948), the Fifth Amendment doesnt protect records that:

1. Are required by law to be kept
2. Serve an essentially regulatory (not criminal) purpose
3. Contain information the regulated party customarily maintains

In United States v. Wilson (10th Cir. 2024), the court specifically held that controlled substance prescription records fall within this exception. A psychologist argued Fifth Amendment protection adn lost – the court said his prescription records were “required records” with no Fifth Amendment protection.

Collective Entity Doctrine

Corporations, partnerships, and LLCs have NO Fifth Amendment privilege. Corporate custodians must produce corporate records even if personally incriminating. Only individual sole proprietors operating in their personal capacity might have Fifth Amendment protection – and even then, the required records doctrine usually defeats it.

Act of Production Doctrine

The act of producing documents can sometimes be protected if production itself is testimonial and incriminating (admitting existence, possession, authenticity). But this provides limited protection for business records where the government can independently establish these facts.

Privilege Assertions – Attorney-Client and Work Product

Attorney-Client Privilege

Confidential communications between you and your attorney for purpose of obtaining legal advice are privileged. This is actualy one of the strongest protections available. But it has limits:

• Crime-fraud exception: Privilege doesnt protect communications in furtherance of crime or fraud
• Waiver: Disclosure to third parties waives privilige
• Communications only: Protects communications, not underlying facts

Under Upjohn v. United States, corporate attorney-client privilige extends to employees with relevant information, not jsut senior management. If your a healthcare organization under investigation, you should immediately engage counsel to conduct privileged internal investigation.

Work Product Doctrine

Materials prepared in anticipation of litigation are protected as work product. Two categories:

• Ordinary work product: Factual materials – can be discovered if substantial need shown
• Opinion work product: Mental impressions, conclusions, legal theories – nearly absolute protection

Wait, I should clarify – work product only applies to materials created AFTER litigation is reasonably anticipated. Routine compliance documents created in ordinary course of business arent protected. You need to engage counsel and create privileged investigation materials as soon as you receive the subpoena.

The 42 CFR Part 2 Nuclear Option

This is something… wait, this is actualy one of the most important things in this entire article. If your practice involves substance use disorder treatment, you may have absolute protection that even DEA administrative subpoenas cannot overcome.

42 CFR Part 2 protects records of identity, diagnosis, prognosis, or treatment of patients in federally assisted substance use disorder treatment programs. Trust me, this protection is real.

Absolute. Thats the word. Part 2 explicitly states that “a general court order, subpoena, warrant, or official request does not permit disclosure” of Part 2 records. A DEA administrative subpoena is not sufficient.

To obtain Part 2 records, DEA must get a special court order under § 2.65. That court order requires showing:

• Investigation involves an “extremely serious crime”
• Examples: homicide, rape, kidnapping, armed robbery, assault with deadly weapon, child abuse
• Routine drug investigation does NOT qualify

If your practice has DEA registration for medication-assisted treatment (MAT) or operates as an opioid treatment program (OTP), many of your records may be Part 2-protected. You can refuse DEA administrative subpoenas for those records and demand proper court order.

The 2024 Final Rule strengthened these protections and requires DEA to check SAMHSA’s treatment facility locator before requesting records. Make sure your Patient Notice clearly identifies Part 2 coverage.

The PDMP Trilogy – Oregon, Utah, New Hampshire

Three major cases define the current legal landscape for DEA access to prescription drug monitoring program (PDMP) data. No competitor article I’ve seen covers all three together – they jsut mention one or another without explaining the full picture.

Oregon PDMP Case (2014-2017)

Oregon law required warrant for law enforcement access to PDMP. DEA issued administrative subpoenas instead. State sued wiht ACLU joining for patients and a doctor.

• District Court (2014): Ruled FOR privacy – patients have Fourth Amendment interest, warrant required
• 9th Circuit (2017): REVERSED on procedural grounds (standing), didnt reach Fourth Amendment merits
• Outcome: Privacy advocates lost despite strong district court win

Utah PDMP Case (2017)

Utah also required warrant. DEA issued administrative subpoena. Utah refused. DEA sued.

• District Court: Ruled FOR government – no reasonable expectation of privacy in PDMP records
• Applied “closely regulated industry” exception
• Third-party doctrine eliminated privacy protection
• Outcome: Government victory (Utah didnt appeal)

New Hampshire/Jonas (1st Cir. 2022)

NH law required warrant. DEA issued administrative subpoena for 2.5 years of patient records. State refused. Courts has reached similar conclusions to Utah.

• 1st Circuit (2022): DEA can access PDMP without warrant
• Rejected Carpenter application to prescription records
• Third-party doctrine and closely regulated industry exceptions applied
• Outcome: Major loss for privacy advocates

The Pattern: Privacy advocates have lost every circuit-level PDMP challenge. State warrant requirements cannot block federal DEA subpoenas. Fourth Amendment challenges to prescription record subpoenas are currently losing arguments.

What Actually Works – Negotiation Strategies

If motions to quash usually fail, what actualy works? Scope negotiation. And the success rate is much higher – probly 60-70% when properly argued. I should say – I dont want to guarentee anything – but negotiating modifications is far more realistic then outright quashing.

Temporal Narrowing

“All records since 2015” → “Records from 2023-2024”

Most investigations have specific time focus. If DEA is investigating conduct from recent years, they dont need ten years of records. Argue relevance – records from 2016 arent relevant to 2024 prescribing patterns.

Patient/Substance Narrowing

“All controlled substances” → “Schedule II opioids”

“All patients” → “Patients prescribed controlled substances”

In Wilson, the court extremley narrowed the subpoena to only patients prescribed controlled substances, excluding patients never prescribed scheduled medications.

Timeline Extensions

First extension request: 14-30 days typically granted with good cause. Show specific burden:

• Volume of documents (X custodians, Y documents)
• Hours required for collection and review
• Third-party vendor dependencies
• Technical challenges (legacy systems, backup restoration)

And dont jsut ask for “more time” – propose specific dates wiht justification.

Rolling Production

Instead of producing everything at once, negotiate phased production:

• Day 14: DEA 222 forms and inventory logs
• Day 30: Specific patient files identified by DEA
• Day 45: Additional prescription records
• Day 60: All remaining responsive documents

Protective Orders

Request HIPAA-compliant protective order limiting use and disclosure of produced information. Include:

• Use limited to specific investigation
• No disclosure to third parties
• Return or destruction when investigation concludes
• Clawback provision for inadvertent privilege disclosure

Consequences of Non-Compliance

What happens if you jsut refuse to comply? Serious. Very serious. Permanent.

Civil Contempt

Court can impose daily fines ($1,000+ per day) until compliance. These fines accrue indefinitely. Court can also order incarceration – you stay in jail until you comply. The idea is you “hold the keys to your own cell” by complying.

Criminal Contempt (18 U.S.C. § 401-402)

Willful disobedience of court order can result in:

• Up to 6 months imprisonment (standard)
• Up to 1 year for certain violations
• Fines up to $100,000 for individuals

Your facing criminal charges just for refusing to produce documents.

Obstruction of Justice (18 U.S.C. § 1505)

Withholding, concealing, covering up, destroying, or falsifying documents that are subject of investigative demand:

• Up to 5 years imprisonment
• Up to 8 years if threats or force involved

False Statements (18 U.S.C. § 1001)

Lying to federal agents about your records or compliance:

• Up to 5 years imprisonment
• Fines up to $250,000
• No oath required – applies to casual conversations

Permanent. Career-ending. Not worth it.

DEA Registration Impact

Beyond contempt and obstruction, non-compliance can directly threaten your DEA registration. Thier is a connection most people dont realize.

Under 21 U.S.C. § 824, DEA can suspend or revoke registrations for failure to comply with CSA obligations. Non-cooperation with DEA investigations can be characterized as such failure.

Immediate Suspension Order (ISO)

If DEA determines your non-compliance creates “imminent danger to public health or safety,” they can issue an Immediate Suspension Order. This happens without prior hearing. Your controlled substance authority stops immediately.

Bottom line: registrants under ISO cannot submit Corrective Action Plans. Your options narrow dramatically.

Revocation Proceedings

Even without ISO, non-compliance can trigger Order to Show Cause and revocation proceedings. DEA views non-cooperation as evidence you lack fitness to maintain registration.

Loss of DEA registration means:

• Cannot prescribe or dispense controlled substances
• Career-ending for most healthcare providers
• State medical board will likely follow with license action
• Medicare/Medicaid exclusion possible

The Criminal Referral Decision Window

Actualy, this is the most important strategic concept in this entire article. Their is a critical decision point in every DEA investigation that most people completely miss.

Heres the timeline:

1. Administrative subpoena issued
2. Documents produced
3. DEA conducts chart review and analysis
4. DECISION POINT: Administrative resolution OR criminal referral
5. If criminal referral: Grand jury, target letters, indictment

Your probly wondering – when does that decision point happen? Generally within 6-18 months of initial subpoena, depending on case complexity.

Before Criminal Referral – Options include:

• Corrective Action Plan (CAP)
• Memorandum of Agreement (MOA)
• Voluntary settlement
• Informal resolution

After Criminal Referral – These options largely disappear. Once DOJ receives referral with substantial evidence, settlement becomes much harder. Indictment becomes likely. Defense costs explode ($250K-$1M+).

More on this later… the response to your initial administrative subpoena can determine whether case stays administrative or goes criminal. Ive seen it happen both ways. That first 30-60 days is your best strategic window.

Strategic Decision Framework – When to Fight vs. Comply

Consider FIGHTING When:

• Subpoena is clearly overbroad (requests everything forever)
• Strong privilege claims exist (especially Part 2)
• Your a third-party with limited exposure
• Resources available for litigation
• Strategic importance justifies cost
• Scope negotiation has failed

Consider COMPLYING/NEGOTIATING When:

• Clean compliance record (documentation solid)
• Limited scope request
• Early investigation stage
• Cooperative relationship valuable
• Litigation cost exceeds compliance cost
• Ruan defense available (good faith efforts documented)

Red Flags Indicating Criminal Exposure:

• High error rate in prescribing (>50% unjustified)
• “Holy Trinity” prescriptions (opioid + benzo + muscle relaxant)
• Cash-only practice with high controlled substance volume
• Continued violations after DEA warning
• Pattern prescribing (same drugs/doses to everyone)
• Evidence of genuinley intentional diversion

If you have strong Ruan defense (good faith, documented compliance efforts, subjective belief prescriptions were legitimate), producing documents may kinda support your ultimate defense. If your conduct lacks Ruan defense, fighting the subpoena delays but doesnt prevent eventual exposure.

Why You Need Specialized Counsel

Fighting a DEA subpoena – or strategically complying with one – requires specialized knowledge that most lawyers dont have. I mean it. General criminal defense attorneys, even good ones, often dont understand:

• Two-step enforcement leverage and how to use it
• Powell factors and realistic odds of success
• Required records doctrine and Fifth Amendment limitations
• 42 CFR Part 2 nuclear option
• HIPAA intersection with law enforcement exception
• DEA administrative procedures
• Criminal referral decision window
• Ruan defense integration

At Spodek Law Group, we’ve handled DEA investigations at every stage – from initial subpoena through criminal prosecution. We understand when to fight, when to negotiate, and how to preserve your options through the critical decision window.

If youve recieved a DEA administrative subpoena, call us at 212-300-5196. Consultations are confidential. We can analyze your specific situation and help you understand your realistic options.

Dont comply out of fear. Dont fight without understanding the odds. Make strategic decisions with specialized counsel who understands the leverage points most lawyers miss.

Strategic.