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Blood Tests from Hospital Obtained Under R.C. 2317.02(B) By Police Without a Warrant Excluded From Evidence

blood test no warrant inadmissable

If you are in an accident and taken to the hospital, doctors might take a blood or urine sample for medical diagnostic purposes.  This medical record would likely include information about the concentration of alcohol or other drugs in the patient’s system.

Under Ohio law, police are permitted to obtain a copy of this blood, urine or other drug test result from a medical professional.  In many (most!) cases, law enforcement obtains these records without a warrant.

Rather, they just fill out a form under R.C. 2317.02(B).  They don’t even have to notify the patient that they are getting the test results.

In State v. Little, 2014-Ohio-4871, this Ohio statute was used to obtain blood test results – without a warrant – for a person charged with OVI.  The defendant challenged the warrantless search as a violation of his Fourth Amendment rights – and won.

Driver Taken to Hospital; Blood Test Taken at Hospital Showed Alcohol Above Legal Limit

The defendant was in a single car crash.  When the trooper arrived, the defendant was lying in the center of the roadway, bleeding heavily from the back of his head.

EMS was already at the scene when the trooper arrived.  EMS told the trooper that there was a “strong” odor of an alcoholic beverage emitting from his person.

He was taken to the hospital.  There, admitted to consuming four Budweiser beers prior to driving.  The hospital took a sample of his blood for diagnostic purposes.

Subsequently, the driver was charged with OVI in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor, and “Failure to Control” in violation of R.C. 4511.202, a minor misdemeanor.

Defendant Challenges Warrantless Search and Seizure of His Hospital Blood Test Under R.C. 2317.02(B)(2)(a)

The trooper issued a request for hospital records of the blood test results done by hospital staff for medical reasons.  He did not obtain a warrant prior to requesting the medical records.

Instead, he used R.C. 2317.02(B)(2)(a).   Under this statute, any law enforcement officer can demand from a hospital or doctor – and must be given – copies of blood, breath or urine test results so long as an “official criminal investigation” has begun against the patient.  

It doesn’t have to be an OVI – ANY criminal investigation can open the door to law enforcement getting private medical records without a warrant.

Specifically, the statute says:

“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 or that a criminal action or proceeding has been commenced against 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, a drug of abuse, a combination of them, a controlled substance, or a metabolite of a controlled substance 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.

If the health care provider does not possess any of the requested records, the provider shall give the officer a written statement that indicates that the provider does not possess any of the requested records. R.C. 2317.02(B)(2)(a).”

Using R.C. 2317.02(B) to Obtain Blood Test Results Without a Warrant is a Fourth Amendment Violation

The defendant argues that this statute, which allows the police officer to request and review a defendant’s blood test results without a warrant, violates his Fourth Amendment interest in privacy, i.e., the protection against unreasonable searches and seizures.

Evidence seized in violation of the Fourth Amendment must be suppressed pursuant to the exclusionary rule.   In other words, if an officer obtains blood test results without a warrant where one is required, those results cannot be used at trial.

The statute here doesn’t provide any way for the defendant to prevent the disclosure of his medical records to the law enforcement officials.   In fact, it does not even include any notification to the defendant that his or her medical records are being searched.

The US Supreme Court somewhat recently decided Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).  This case supports a holding that an OVI suspect’s expectation of privacy should not be diminished easily.

In McNeely, the Supreme Court limited situations in which a police officer can request a blood test of an OVI suspect without a warrant to only those individual instances in which obtaining a warrant would be “impractical.”

In DUI / OVI investigations where police can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

While the court recognized the threat that drunk drivers pose on Ohio roads and the important interest of preventing drunk driving, it noted that “the requirements of the Fourth Amendment cannot be lowered based upon the heinousness of the particular crime police are investigating.” Hannoy, 789 N.E.2d at 988.

What’s more, even OVI defendants share the same expectation of privacy as everyone else in his medical records.

Police Must Get a Warrant Before Obtaining Blood Test Results from a Hospital Under R.C. 2317.02(B)

Therefore, the Ohio appeals court held that an OVI suspect in Ohio enjoys a reasonable expectation of privacy in his or her medical records, including blood, breath or urine tests that show the patient’s alcohol or drug concentration.

Thus, prior to obtaining these medical records a law enforcement officer must comply with the warrant requirement of the Fourth Amendment.

Here, the law enforcement officer did not obtain a warrant prior to searching and seizing the defendant’s medical records.

Warrantless searches are per se unreasonable unless one of the enumerated exceptions to the warrant requirement applies. McNeely, 133 S.Ct. at 1558.  None of those exceptions applied here.

The court didn’t go so far as to find R.C. 2317.02(B)(2)(a) unconstitutional.  

But, it did say that “R.C. 2317.02(B)(2)(a) and R.C. 2317.022 do not authorize a warrantless search and seizure of the patient’s medical records where no recognized warrant exception exists.”

Accordingly, the use of those statutes here without a warrant to obtain the driver’s medical records violated his constitutional protection against unreasonable search and seizure.

Because the Police Here Obtained the Hospital Blood Test Without a Warrant, the Results Were Excluded from Evidence

Therefore, his motion to suppress should have been granted and the blood test results should be excluded from evidence. 

The test results were ultimately excluded and the charge was in the end reduced from an OVI to reckless driving.