[Cite as State v. Miller,
2019-Ohio-3294.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 28284
:
v. : Trial Court Case No. 2018-CR-3126
:
JOSEPH LEE MILLER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 16th day of August, 2019.
...........
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
SUSAN F. SOUTHER, Atty. Reg. No. 0058529, Assistant Montgomery County Public
Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellee
.............
TUCKER, J.
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{¶ 1} This case is before us on the appeal of the State of Ohio from an order
dismissing the indictment against Defendant-Appellee, Joseph Miller. According to the
State, the trial court erred in granting Miller’s motion to dismiss the indictment because
the immunity provision in R.C. 2925.11(B)(2)(b) for persons receiving medical assistance
as a result of a drug overdose does not apply to this case.
{¶ 2} We conclude that the trial court erred in part in dismissing the indictment.
The immunity that R.C. 2925.11(B)(2)(b) provides does not apply to prosecution of
offenses that occur prior to the individual’s overdose, nor does it apply to charges that are
not listed in R.C. 2925.11(B)(2)(b). However, the trial court did not err in dismissing a
drug possession charge based on drugs that were found after Miller was taken to the
hospital, even if the drugs could have been discovered in a routine search at the jail or
pursuant to a search done incident to Miller’s arrest on other charges. R.C.
2925.11(B)(2)(b)(i) is unambiguous and provides immunity for possession of drugs that
are discovered as a result of obtaining medical assistance for an overdose, which is what
occurred in this case. Accordingly, the trial court’s order will be reversed in part and
affirmed in part, and this cause will be remanded for further proceedings.
I. Facts and Course of Proceedings
{¶ 3} In October 2018, the State filed an indictment charging Miller with five counts,
including two counts of possession of fentanyl, one count of possession of
methamphetamine, one count of falsification (public official), and one count of possession
of drug abuse instruments. These charges involved, respectively, three fifth-degree
felonies, a first-degree misdemeanor, and a second-degree misdemeanor. After
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pleading not guilty, Miller filed a motion to dismiss the indictment based on the fact that
he was a “qualified individual” under R.C. 2925.11(B)(2) and was immune from
prosecution.
{¶ 4} The State responded to the motion, and the trial court then issued an order
dismissing the indictment. The court did not hold an evidentiary hearing, but relied on
the content in Exhibit A, to which the parties had stipulated.
{¶ 5} According to Exhibit A, Miamisburg Police Officer Benjamin Carter was on
routine road patrol on May 26, 2018, at around 7:56 p.m., when he stopped a 2002 Ford
truck for a muffler violation. After contacting the driver and informing her of the violation,
Carter obtained her driver’s license. He also asked the front-seat passenger, Miller, for
identification. Miller said that he did not have his ID; he gave Carter the name of Charles
Coatney, a social security number, and a birthdate. A check of the social security
number yielded negative results, and a name search turned up a social security number
that was one digit off from the one Miller provided and a birthdate for a much older man.
When Carter checked with Miller again, Miller gave him the same social security number
and said he was from Tennessee. However, Tennessee records for the Coatney name
also yielded negative results.
{¶ 6} Carter had prior contact with Miller and thought he looked familiar. Because
he believed Miller was providing false information, Carter removed him from the car and
placed him in custody for obstructing official business. Carter then asked Miller if he had
anything illegal, and Miller said he had a syringe in his right front pocket. After retrieving
the syringe, Carter inspected it and found that it contained an unknown liquid. As a
result, Carter placed Miller in the back seat of his cruiser. He then discovered that Miller
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was the subject of an outstanding felony warrant. After Carter gave Miller Miranda rights,
Miller stated that he had lied because he had an outstanding warrant. Miller also said
the syringe contained heroin.
{¶ 7} Carter then began to transport Miller to the Montgomery County Jail.
However, Miller stated that he was going to vomit. When Carter pulled over and exited
the patrol car, Miller said he had swallowed a half gram of heroin. Carter called for a
medic, and when other officers came to assist, Miller was breathing but was not
responsive. Another officer administered a dose of Narcan, and shortly thereafter,
medics arrived on the scene and transported Miller to Sycamore Medical Center for
further evaluation.
{¶ 8} Carter also went to the hospital and informed the hospital that Miller had an
outstanding warrant. Subsequently, the police faxed a copy of the detainer to hospital
security, which said the police would be notified when Miller was discharged. Carter then
left, after giving Miller a summons and court dates for obstructing official business and
possession of drug abuse instruments.
{¶ 9} Shortly after Carter left, hospital security contacted the police and said that
drugs had been located on Miller’s person. At that point, Carter returned to the hospital,
where he learned that the doctor had noticed that Miller remained in a fetal position during
the examination. When Miller’s clothes were removed, a security officer, Officer
Daymon, located two plastic baggies containing an unknown white powdery substance.
Daymon placed the two baggies in a larger plastic bag, and then gave the bag to Carter.
Carter booked the baggies as well as the syringe into evidence and sent them to the
Miami Valley Regional Crime Lab for analysis.
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{¶ 10} After testing, the lab found that the syringe contained fentanyl and
methamphetamine, with a total weight of .12 grams. Each plastic bag contained
fentanyl, with the total weight of the two bags being .16 grams. As noted, Miller was
subsequently indicted on five charges relating to these events, and the trial court
dismissed the indictment. The State then appealed from the dismissal of the indictment.
II. Does R.C. 2929.11(B)(2)(b) Apply to this Case?
{¶ 11} The State’s sole assignment of error states that:
The Trial Court Erred in Granting Miller’s Motion to Dismiss. R.C.
2925.11(B)’s Immunity Provision Had No Application to Miller’s Case
{¶ 12} Under this assignment of error, the State addresses two types of charges:
those occurring before Miller’s overdose, and one resulting from the discovery of drugs
at the hospital. According to the State, charges based on events occurring before
Miller’s overdose did not result from his overdose within the meaning of R.C.
2925.11(B)(2)(b). In addition, the State contends that charges based on discovery of
drugs after Miller’s overdose did not result from an overdose for purposes of the immunity
statute, because the drugs would inevitably have been discovered during a search
incident to arrest or a routine search at the jail.
{¶ 13} A de novo standard of review has been applied to decisions interpreting
R.C. 2925.11(B), because “the correct interpretation of a statute is a question of law
subject to de-novo review.” State v. Simmons, 2018-Ohio-2018,
112 N.E.3d 327, ¶ 18
(4th Dist.), citing State v. Pountney,
152 Ohio St.3d 474,
2018-Ohio-22,
97 N.E.3d 478,
¶ 20. (Other citation omitted.) In this situation, appellate courts do not defer to a trial
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court’s interpretation. Id. Furthermore, appellate courts generally apply de novo
review when reviewing trial court decisions to dismiss indictments. State v. Brown, 2018-
Ohio-2267,
114 N.E.3d 228, ¶ 12 (4th Dist.). With these standards in mind, we will
consider each set of charges.
A. Charges Based on Events Occurring Before the Overdose
{¶ 14} According to the State, four of the five counts of the indictment were based
on events that occurred before the overdose. These charges included falsification,
possession of drug instruments, possession of methamphetamine, and one count of
possession of fentanyl (the latter two charges being based on the fact that the syringe
contained both fentanyl and methamphetamine). In responding to the State’s
arguments, Miller concedes that the charges of falsification and possession of drug abuse
instruments were not subject to dismissal under R.C. 2925.11(B)(2)(b). However, Miller
argues that the trial court had authority to dismiss those charges pursuant to Crim.R.
48(B).
{¶ 15} Ohio’s 911 Good Samaritan Law, as outlined in R.C. 2925.11(B)(2)(b),
provides that:
Subject to division (B)(2)(f) of this section, a qualified individual shall not be
arrested, charged, prosecuted, convicted, or penalized pursuant to this
chapter for a minor drug possession offense if all of the following apply:
(i) The evidence of the obtaining, possession, or use of the controlled
substance or controlled substance analog that would be the basis of the
offense was obtained as a result of the qualified individual seeking the
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medical assistance or experiencing an overdose and needing medical
assistance.
(ii) Subject to division (B)(2)(g) of this section, within thirty days after
seeking or obtaining the medical assistance, the qualified individual seeks
and obtains a screening and receives a referral for treatment from a
community addiction services provider or a properly credentialed addiction
treatment professional.
(iii) Subject to division (B)(2)(g) of this section, the qualified individual
who obtains a screening and receives a referral for treatment under division
(B)(2)(b)(ii) of this section, upon the request of any prosecuting attorney,
submits documentation to the prosecuting attorney that verifies that the
qualified individual satisfied the requirements of that division. The
documentation shall be limited to the date and time of the screening
obtained and referral received.
{¶ 16} R.C. 2925.11(B)(2)(a)(iv) defines a “minor possession offense” as “a
violation of this section [R.C. 2925.11] that is a misdemeanor or a felony of the fifth
degree.” In addition, R.C. 2925.11(B)(2)(e)(1) specifically prohibits limiting “the
admissibility of any evidence … with regards to any crime other than a minor drug
possession offense committed by a person who qualifies for protection pursuant to
division (B)(2)(b) of this section for a minor drug possession offense.”
{¶ 17} Based on these definitions, which have been found to be unambiguous,
court have held that the immunity offered by R.C. 2925.11(B)(2)(b) does not apply to
violations other than minor drug possession offenses covered in R.C. 2925.11. For
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example, there is no immunity for possession of drug paraphernalia and possession of
drug abuse instruments. City of Akron v. Pari, 9th Dist. Summit No. 29029, 2019-Ohio-
1083, ¶ 6-7 (no immunity for violations of city ordinances barring possession of drug
paraphernalia and drug abuse instruments); City of Akron v. Brown, 2018-Ohio-4500,
122
N.E.3d 672, ¶ 10 (9th Dist.) (same holding).
{¶ 18} Accordingly, we agree with the State and Miller that the trial court erred in
dismissing the charges of falsification and possession of drug abuse instruments, as
neither crime fits within the definition of a minor possession offense in R.C.
2925.11(B)(2)(a)(iv). As noted, however, Miller contends that the trial court properly
dismissed these charges based on authority given to it under Crim.R. 48(B).
{¶ 19} “The Ohio Supreme Court has recognized that a trial court may dismiss an
indictment under Crim.R. 48(B) when ‘dismissal serves the interests of justice.’ ” State
v. Harris, 186 Ohio App.3d 359,
2010-Ohio-837,
928 N.E.2d 456, ¶ 7 (2d Dist.), quoting
State v. Busch,
76 Ohio St.3d 613, 615,
669 N.E.2d 1125 (1996). In this type of situation,
we review a court’s decision for abuse of discretion. Busch at 616. An “ ‘abuse of
discretion’ has been defined as an attitude that is unreasonable, arbitrary or
unconscionable. … It is to be expected that most instances of abuse of discretion will
result in decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp.,
50 Ohio St.3d 157, 161,
553 N.E.2d 597 (1990).
{¶ 20} In the case before us, the trial court’s decision was based on unsound
reasoning. Crim.R. 48(B) provides that “[i]f the court over objection of the state
dismisses an indictment, information, or complaint, it shall state on the record its findings
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of fact and reasons for the dismissal.” The trial court, therefore, did have authority to
dismiss the charges. However, the court failed to state any findings of fact and reasons
for the dismissal, other than referring to the immunity under R.C. 2925.11(B)(2)(b). This
was incorrect because the immunity statute did not apply to the falsification and
possession of drug abuse instrument charges. Accordingly, the trial court erred in
dismissing these charges.
{¶ 21} With respect to the fentanyl and methamphetamine charges, the State
contends that the contents of the syringe could not be the result of a qualified individual
experiencing an overdose and needing medical assistance under R.C.
2925.11(B)(2)(b)(i) because the overdose had not yet happened when the syringe was
discovered. In response, Miller contends that the State’s interpretation is erroneously
narrow, and that the legislature expansively defined “as a result of” in the statute.
{¶ 22} As noted, R.C. 2925.11(B)(2)(b) allows immunity from arrest, prosecution,
conviction, or penalization if all of several requirements are met, including that “[t]he
evidence of the obtaining, possession, or use of the controlled substance or controlled
substance analog that would be the basis of the offense was obtained as a result of the
qualified individual seeking the medical assistance or experiencing an overdose and
needing medical assistance.” R.C. 2925.11(B)(2)(b)(i).1
{¶ 23} The principle is well-settled that where a statute defines the terms it uses,
this definition controls in applying the statute. Stewart v. Vivian, 151 Ohio St.3d 574,
2017-Ohio-7526,
91 N.E.3d 716, ¶ 25. However, if terms are undefined, they are given
1
The State concedes that Miller met the rest of the immunity requirements in R.C.
2925.11(B)(2)(b).
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their “common everyday meaning.” Id., citing R.C. 1.42.
{¶ 24} Contrary to Miller’s contention, the legislature did not define the term “as a
result of.” Consequently, we apply the common everyday meaning. “Result” (used as
a noun) is defined as “1: something that results as a consequence, issue, or conclusion
also: beneficial or tangible effect: FRUIT. 2: something obtained by calculation or
investigation.” See https://www.merriam-webster.com/dictionary/result. (accessed Aug.
14, 2019).
{¶ 25} Seizure of the syringe did not result from Miller’s experiencing an overdose
and receiving assistance. Instead, the seizure resulted from a traffic stop and Miller’s
provision of false information to the police. These events all occurred before the
overdose manifested.
{¶ 26} In a somewhat similar situation, we rejected immunity claims. Specifically,
in State v. Hagen, 2d Dist. Champaign No. 2018-CA-2, 2018-Ohio-4045 (2d Dist.), a
police officer had been dispatched at around 11:00 a.m., based on a report that a person
was slumped over the steering wheel of a car. Id. at ¶ 2. Emergency personnel
knocked on the car window and asked if the person was alright. The defendant (Hagan)
“immediately turned off the engine, exited the car, told the EMTs he was fine, and began
to walk to the house adjacent to where the car was parked.” Id. Hagan continued to
assure both a police officer and EMT personnel that he was not having medical issues
and did not need medical assistance; he said, instead, that he had given a friend a ride
to the address where the car was parked and fell asleep in the car around 4:00 a.m. Id.
{¶ 27} The police officer did not believe that Hagen was having an overdose or
that he exhibited any signs of an overdose, despite the fact that the officer noticed needle
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marks on Hagan's arm. Hagan told the officer that he had gotten the car from another
man, but did not know his real name. However, dispatch confirmed that the car belonged
to a woman in her 60's. In addition, the officer was aware that the adjacent residence
was a site of suspected drug activity. Id. at ¶ 3-4. Due to all these factors, the officer
asked Hagan if he could look inside the car, and Hagan consented. When the officer
looked inside the rear window, he saw a small red baggy indicative of drug transport.
The officer also opened the car door and smelled marijuana. The ensuing search
revealed various drugs, a used syringe, and a backpack containing drugs and drug
paraphernalia. Id. at ¶ 5.
{¶ 28} Hagan declined medical treatment and was taken to the police station,
where he confirmed that the backpack was his and that he had been using cocaine and
heroin the previous night. However, he denied overdosing and said he had just been
tired. Id. at ¶ 7.
{¶ 29} After being indicted for several drug possession charges as well as other
charges, Hagen filed a demand for immunity, alleging that he was entitled to immunity on
the drug-related charges. Id. at ¶ 9-11. After holding an evidentiary hearing, the trial
court denied immunity; Hogan then pled no contest to two counts of drug possession and
guilty to two unrelated charges. Id. at ¶ 17. Subsequently, Hagen appealed,
contending that he was entitled to immunity under R.C. 2925.11(B)(2)(b). Id. at ¶ 20.
{¶ 30} We affirmed the trial court's decision. First, we noted that the record
compelled “a conclusion that the evidence on which Hagen's drug possession charges
were premised was not acquired as a result of Hagen's ‘experiencing an overdose and
needing medical assistance.’ ” (Emphasis sic.) Id. at ¶ 26, quoting R.C.
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2925.11(B)(2)(b)(i). This was based on the trial court's credibility decision, which
rejected Hagen's contention he had, in fact, overdosed that night. Among other things,
this contradicted everything Hagen told the police at the time. Id. at ¶ 27-28. We also
remarked that even if we accepted Hagen's testimony, the record lacked any evidence
that he needed medical assistance as a result of an overdose. Id. at ¶ 29-30.
{¶ 31} We summarized our final observation as follows:
Finally, the trial court's credibility assessments lead to the conclusion
that the evidence underlying Hagen's drug possession charges was
obtained not as a result of Hagen's overdosing or needing medical
assistance, but instead as a product of Hagen's consent to Officer Hughes's
search of the vehicle. Again, we defer to the trial court's finding that Officer
Hughes's testimony regarding Hagen's consent to the vehicle search was
more credible than Hagen's denial that he consented. … Like the trial
court, we conclude that any possible “medical incident” inferable from the
circumstances surrounding Hagen's arrest had been resolved or
“terminated” before Officer Hughes sought Hagen's consent to the vehicle
search.
(Emphasis added.) Id. at ¶ 31.
{¶ 32} Although Hagen’s factual situation differs from the case before us, the
underlying principles are similar. As noted, Miller’s arrest for falsification and possession
of drug abuse instruments (and the ensuing charges of possession of fentanyl and
methamphetamine) was complete or had terminated before Hagan needed medical
assistance for an overdose. Therefore, the trial court erred in dismissing these drug
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possession charges against Miller, because Miller did not meet the requirements of R.C.
2925.11(B)(2)(b).
B. Events Occurring After the Arrest
{¶ 33} The remaining charge pertains to the fentanyl that was seized at Sycamore
Medical Center. According to the State, there was no cause and effect relationship
between the overdose and the discovery of the drugs, because the fentanyl would have
been discovered either through a search incident to arrest or a routine inventory search
at the jail. Again, Miller contends that the State’s interpretation is too narrow.
{¶ 34} In considering this issue, we have reviewed all the Ohio cases dealing with
R.C. 2925.11(B)(2)(b). None of these cases has addressed the specific situation before
us. Upon reviewing the statute in its entirety, we conclude that R.C. 2925.11(B)(2)(b)(i)
is unambiguous and does not create the exception the State suggests.
{¶ 35} “In construing a statute, the court's paramount concern is legislative intent.
… ‘In determining legislative intent, the court first looks to the language in the statute
and the purpose to be accomplished.’ If the meaning of the statute is unambiguous and
definite, it must be applied as written and no further interpretation is necessary.” State
ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545,
660
N.E.2d 463 (1996), quoting State v. S.R.,
63 Ohio St.3d 590, 594-595,
589 N.E.2d 1319
(1992). (Other citations omitted.)
{¶ 36} “Ambiguity exists only if the language of a statute is susceptible of more
than one reasonable interpretation, and the facts and circumstances of a case do not
permit a court to read ambiguity into a statute.” Brown, 2018-Ohio-4500, 122 N.E.3d
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672, at ¶ 6, citing Dunbar v. State, 136 Ohio St.3d 181,
2013-Ohio-2163,
992 N.E.2d
1111, ¶ 16. “Thus, inquiry into legislative intent, legislative history, public policy, the
consequences of an interpretation, or any other factors identified in R.C. 1.49 is
inappropriate absent an initial finding that the language of the statute is, itself, capable of
bearing more than one meaning.”
Dunbar at ¶ 16.
{¶ 37} As to the purpose of the immunity statute, we have previously commented
that “the ‘crisis in opioid deaths has reached epidemic proportions in the United States
(33,091 in 2015), and currently exceeds all other drug-related deaths or traffic fatalities.’ ”
State v. Melms, 2018-Ohio-1947,
101 N.E.3d 747, ¶ 2 (2d Dist.), quoting Report:
Governor Chris Christie, The President's Commission on Combating Drug Addiction and
the Opioid Crisis, Washington, D.C., November 1, 2017, p. 31. In Melms, the State also
agreed that “ ‘the policy objectives of the immunity provision are laudable; addressing the
opioid crisis of this region is a worthy cause.’ ” Id. at ¶ 22, quoting from the State's Brief.
{¶ 38} Furthermore, the language in the pertinent part of the statute is not
ambiguous. R.C. 2925.11(B)(2)(b)(i) does not say that immunity fails if the evidence
would have been obtained later as the result of a search incident to arrest or from a routine
jail inventory search. If the legislature intended such restrictions, it knew how to do so.
Instead, the only qualification was that “[t]he evidence … was obtained as a result of
the qualified individual seeking the medical assistance or experiencing an overdose and
needing medical assistance.” R.C. 2925.11(B)(2)(b)(i). That, in fact, is what occurred
here, under the definition of “result” noted above, i.e., “something that results as a
consequence. . . .”
{¶ 39} Other states use “result” language similar to Ohio’s statute. See Fla.
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Stat.Ann. 893.21(2); Haw.Rev.Stat.Ann. 329-43.6(b); La.Stat.Ann. 14:403.10(B);
Nev.Rev.Stat.Ann. 453C.150.1(d); N.J.Stat.Ann. 2C:35-30(b)(2); N.M.Stat.Ann. 30-31-
27.1.B; R.I.Gen.Laws Ann. 21-28.9-4(b); S.C.Code Ann. 44-53-1930(A); and
Wash.Rev.Code Ann. 69.50.315(2). While the authority is sparse, the cases mainly
focus on whether the defendant actually experienced an overdose. See, e.g., State v.
Silliman, 168 So.3d 245, 247 (Fla.App.2015) (defendant did not show signs of overdose);
State v. Jago,
228 So.3d 1218 (La.2017) (a life-threatening overdose is not required for
application of the statute); State v. Osborn, Wash. Div.1 No. 77783-1,
2019 WL 1643800,
*2 (Apr. 15, 2019) (no medical treatment was given and the defendant did not experience
an overdose).
{¶ 40} In New Jersey, in a case of first impression, the court concluded that:
Each of the immunity provisions explicitly limits the statute's
protection to criminal charges that are based on evidence “obtained as a
result of the seeking of medical assistance.” N.J.S.A. 2C:35–30(b)(2) and
-31(b). Hence, incriminating evidence that law enforcement officials obtain
by other means, such as the fruits of a search warrant or a constitutional
warrantless search, unconnected from someone's attempt to seek medical
assistance for an individual perceived to be experiencing a drug overdose,
is beyond the immunity's reach.
(Emphasis added.) State v. W.S.B., 453 N.J.Super. 206, 224-25,
180 A.3d 1168 (2018).
{¶ 41} In the case before us, discovery was not unconnected to the attempt to seek
medical assistance for a person perceived to be experiencing a drug overdose.
Moreover, we have found no authority in these jurisdictions that applies the language in
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the way the State suggests. The State has also not cited any such authority from these
jurisdictions.
{¶ 42} Notably, other states have included language that is more explicit and may
suggest a different result (a point on which we express no opinion). For example,
Maryland and Georgia require that “the evidence for the criminal arrest, charge, or
prosecution was obtained solely as a result of the person seeking or receiving medical
assistance.” (Emphasis added.) Md.Code Ann., Crim.Proc. 1-210(b); Ga.Code Ann.
16-13-5(b); see also N.H.Rev.Stat.Ann. 318-B:28-b III (allowing a defense to prosecution
“if the evidence for the charge was gained as a proximate result of the request for medical
assistance” (Emphasis added.)).
{¶ 43} Other states’ laws are even more explicit. For example, in Iowa, to qualify
as “protected information” (which cannot serve as evidence against an overdose patient),
several conditions must exist, including that “[m]edical assistance was not sought during
the execution of an arrest warrant, search warrant, or other lawful search.” Iowa Code
Ann. 124.418.1((d)(2)(f). Minnesota’s statute also provides that “[n]othing in this section
shall: … preclude prosecution of a person on the basis of evidence obtained from an
independent source.” Minn.Stat.Ann. 604A.05. Subd. 4(b)(2). See also 35 Pa.
Stat.Ann. 780-113.7(d)(1) (“[t]his section may not bar charging or prosecuting a person
for offenses enumerated in subsection (b) if a law enforcement officer obtains information
prior to or independent of the action of seeking or obtaining emergency assistance as
described in subsection (a)”); Vt.Stat.Ann. tit. 18, 4254(g) (“[t]he immunity provisions of
this section apply only to the use and derivative use of evidence gained as a proximate
result of the person's seeking medical assistance for a drug overdose, being the subject
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of a good faith request for medical assistance, being at the scene, or being within close
proximity to any person at the scene of the drug overdose for which medical assistance
was sought and do not preclude prosecution of the person on the basis of evidence
obtained from an independent source”).
{¶ 44} Kentucky also precludes a finding of good faith for purposes of obtaining
medical assistance for an overdose where the assistance is sought “during the course of
the execution of an arrest warrant, or search warrant, or a lawful search.”
Ky.Rev.Stat.Ann. 218A.133(1)(b). As noted, the Ohio General Assembly could have
chosen other language, but did not, and R.C. 2925.11(B)(2)(b)(i) is also not ambiguous.
{¶ 45} In its brief, the State imagines a scenario in which traffickers can evade
prosecution for crimes by relying on overdoses. However, other states have precluded
this in their statutes. See Mass.Gen.Laws Ann. 94C 34(d) (“[n]othing contained in this
section shall prevent anyone from being charged with trafficking, distribution or
possession of a controlled substance with intent to distribute”); Mich.Comp.Laws Ann.
333.7403(3) (limiting protection to persons whose overdoses arise “from the use of a
controlled substance or a controlled substance analogue that he or she possesses or
possessed in an amount sufficient only for personal use” (Emphasis added.)); NY PENAL
220.78(2) (allowing immunity for crimes “other than an offense involving sale for
consideration or other benefit or gain”). Again, the Ohio General Assembly could have
added such provisions, if it felt the need to do so.
{¶ 46} Accordingly, we conclude that the trial court did not err in dismissing the
indictment for possession of the fentanyl that was discovered after Miller was taken to the
hospital for treatment. The State’s sole assignment of error, therefore, is sustained in
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part and is overruled in part.
IV. Conclusion
{¶ 47} Having sustained the State’s sole assignment of error in part and overruled
it in part, the judgment of the trial court is affirmed in part and reversed in part, and this
cause is remanded to the trial court for further proceedings.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Jans
Susan F. Souther
Hon. Richard Skelton
