The issue of a warrant requirement before obtaining medical records under R.C. 2317.022 has come up in several cases lately in Ohio’s courts of appeals. We recently wrote about another OVI medical records case here.
Below is another new Ohio court of appeals case in which this warrant issue arose in the context of an OVI suspect having blood tests done at a hospital following an accident. As the other cases have held, police must obtain a warrant before getting any blood or urine test results for an OVI suspect from a hospital.
One Car Accident; OVI Suspect Taken to Hospital
At 4:20 a.m., an officer was dispatched to a single vehicle accident. Upon arrival, the officer saw the defendant standing next to his damaged vehicle. His head was bleeding.
When questioned, he admitted he had been drinking. Although the defendant said he didn’t want medical attention, the officer allowed paramedics to treat the defendant in the back of their unit. Shortly thereafter, he was transported by EMS to the hospital. No field sobriety tests were conducted.
Officer Requests Blood & Urine Test Results Without a Warrant
When his investigation at the scene was complete, the officer went back to his office and called the hospital. He sent the hospital a fax including a form entitled “STATEMENT REQUESTING THE RELEASE OF RECORDS” requesting any tests administered by medical professionals to determine the presence or concentration of alcohol, or drugs under R.C. 2317.02(B).
Two days later, the hospital faxed a copy of a “Lab Order Detail” report. The report included the results of a urine test, which showed a positive screen for marijuana and a blood test, which showed a .16 blood alcohol level. The report did not say why the blood alcohol test was performed (for medical purposes or at law enforcement’s request).
The deputy faxed the R.C. 2317.022 request to the hospital at 6:01 a.m. A specimen for the blood-alcohol test was collected 24 minutes after the request was made, leading the court to believe that the test was done only in response to the request by law enforcement.
He was charged with R.C. 3511.202 (failure to control), R.C. 4511.19(A)(1)(a) (OVI), R.C. 4511.19(A)(1)(b) (OVI over .08 blood alcohol level), R.C. 2925.11 (possession of marijuana), and R.C. 2925.14 (possession of paraphernalia).
Fourth Amendment Protects Patients from Unreasonable Searches
Defendant argued that law enforcement must obtain a search warrant before requesting a suspect’s medical records. Patients have a reasonable expectation of privacy in medical records and when under investigation for a crime, “should not be placed in the position where they must decide whether to receive appropriate medical care, which would require diagnostic testing, or refuse medical care due to a fear that the government will obtain the results of the diagnostic testing.”
“The Fourth Amendment protects the individual’s actual and justifiable expectation of privacy from the ear and eye of the government.” State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 13.
“If the state wishes to intrude on the individual’s right to be secure in his person, house, paper, and effects by searching or seizing him or his things, the state must first secure a warrant.” Id. at ¶ 14.
Police Routinely Use Statute to Obtain Medical Records Without a Warrant
R.C. 2317.02(B)(2)(a) states, in relevant part, as follows:
If any law enforcement officer submits a written statement to a health care provider that states that an official criminal investigation has begun regarding a specified person, that requests the provider to supply to the officer copies of any records the provider possesses that pertain to any test or the results of any test administered to the specified person to determine the presence or concentration of alcohol * * * in the person’s whole blood, blood serum or plasma, breath, or urine at any time relevant to the criminal offense in question, and that conforms to section 2317.022 of the Revised Code, the provider, except to the extent specifically prohibited by any law of this state or of the United States, shall supply to the officer a copy of any of the requested records the provider possesses.
In turn, R.C. 2317.022 entitled “Written requests from law enforcement officers to obtain test results” provides that if a criminal investigation has begun, officers can submit a written form requesting test results from a hospital. That form was submitted in this case in compliance with R.C. 2317.022.
Warrant is Required to Obtain Medical Records for OVI Suspect
Here, the court found no evidence that the blood-alcohol test was performed for medical purposes. In fact, the evidence suggested that the blood-alcohol test was done in response to law enforcement’s written request (without a warrant).
“In no circumstance is an R.C. 2317.022 request a substitute for a warrant for a blood draw for a blood-alcohol test nor is it a recognized exception to the warrant requirement.”
The full text of the case can be found here: State v. Hepler, 2016-Ohio-2662
If you have been charged with an OVI and have questions about any blood, urine, breath or other chemical test performed at a hospital or at a police station, talk to one of our Columbus OVI attorney about your options at (614) 361-2804.
