[Cite as State v. Perry, 2017-Ohio-7214.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            PREBLE COUNTY




STATE OF OHIO,                                    :
                                                        CASE NO. CA2017-01-002
        Plaintiff-Appellee,                       :
                                                                OPINION
                                                  :              8/14/2017
    - vs -
                                                  :

SCOTT R. PERRY,                                   :

        Defendant-Appellant.                      :




                    CRIMINAL APPEAL FROM EATON MUNICIPAL COURT
                                Case No. 2016TRC00251


Martin P. Votel, Preble County Prosecuting Attorney, Gractia S. Manning, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee

Christopher A. Deal, 2541 Shiloh Springs Road, Dayton, Ohio 45426, for defendant-appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, Scott R. Perry, appeals from the decision of the Eaton

Municipal Court denying his motion to suppress. For the reasons outlined below, we affirm.

        {¶ 2} At approximately 11:56 p.m. on Thursday, December 10, 2015, Perry sustained

injuries after he was involved in a single-car accident near the address of 2197 Eaton-

Lewisburg Road, Eaton, Preble County, Ohio. Shortly after the accident, Deputy Paul M.

Plaugher with the Preble County Sheriff's Office arrived at the scene. Once there, Deputy
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Plaugher came in contact with Perry who had a severe laceration to the top and side of his

head. Deputy Plaugher also noticed the smell of alcoholic beverage on Perry's person.

Perry later admitted to consuming four beers that day. It is undisputed that Perry was the

driver of the vehicle involved in the single-car accident.

       {¶ 3} Due to his injuries, Perry was transported to the hospital where he received

medical treatment. This included taking Perry's blood at 12:40 a.m. on Friday, December 11,

2015, approximately one hour after the accident occurred. Perry was subsequently issued a

citation by Deputy Plaugher that charged him with operating a vehicle while under the

influence of alcohol in violation of both R.C. 4511.19(A)(1)(a) and (A)(1)(f), as well as for the

failure to control his vehicle in violation of R.C. 4511.202.

       {¶ 4} The next business day, Deputy Plaugher sent the hospital a written statement

pursuant to R.C. 2317.02(B)(2)(a) requesting the release of certain medical records compiled

during the course of Perry's treatment at the hospital. Pursuant to that statute, which is found

under a provision entitled "privileged communications," R.C. 2317.02(B)(2)(a) states:

              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.

There is no dispute that Deputy Plaugher's request complied with the requirements of R.C.

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2317.022.

       {¶ 5} The hospital received Deputy Plaugher's request for Perry's medical records on

December 17, 2015. Thereafter, on January 22, 2016, Perry's medical records obtained

from the hospital by Deputy Plaugher were filed with the trial court. A review of Perry's

medical records indicates Perry's blood alcohol content was above the legal limit at the time

his blood was drawn shortly after the accident occurred.

       {¶ 6} On March 11, 2016, Perry moved to suppress his medical records. In support

of his motion, Perry argued that by filing such a request without first obtaining a search

warrant, Deputy Plaugher "engaged in a fishing expedition in an effort to obtain information

that may or may not prove to be evidence of a crime."

       {¶ 7} On October 2, 2016, the trial court issued a decision denying Perry's motion to

suppress. In so holding, the trial court first determined that R.C. 2317.02(B)(2)(a) "remains

constitutional." The trial court then stated:

              Without determining that a warrant is required before law
              enforcement can request the medical records described in R.C.
              §2317.02, law enforcement, in this case, acted in good faith by
              following the statute.

       {¶ 8} On December 14, 2016, Perry entered a plea of no contest to OVI in violation of

R.C. 4511.19(A)(1)(a), which, unlike a "per se" violation, generally prohibits any person from

operating a vehicle while under the influence of alcohol. In exchange for Perry's no contest

plea, the state dismissed the other two remaining charges. After Perry entered his no contest

plea, the trial court found Perry guilty as charged. The trial court sentenced Perry to serve

ten days in jail, seven of which were suspended, and ordered Perry to pay a fine of $500,

suspending $125 of that fine. Perry was also placed on one year of probation.

       {¶ 9} Perry now appeals from the trial court's decision denying his motion to

suppress, raising the following single assignment of error for review.


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       {¶ 10} THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING THE

APPELLANT'S MOTION TO SUPPRESS.

       {¶ 11} In his single assignment of error, Perry argues the trial court erred by denying

his motion to suppress.

       {¶ 12} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15,

citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a

motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the

evidence in order to resolve factual questions and evaluate witness credibility. State v.

Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. In turn, this court is

bound to accept the trial court's findings of fact if they are supported by competent, credible

evidence. State v. Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447, ¶ 10.

"'Accepting these facts as true, the appellate court must then independently determine,

without deference to the conclusion of the trial court, whether the facts satisfy the applicable

legal standard.'" State v. Runyon, 12th Dist. Clermont No. CA2010-05-032, 2011-Ohio-263,

¶ 12, quoting Burnside.

       {¶ 13} This case presents a novel question of whether a law enforcement officer must

obtain a search warrant before requesting a suspect's medical records in accordance with

R.C. 2317.02(B)(2)(a). In support of this claim, Perry cites the Third District Court of Appeals'

decisions in State v. Clark, 3d Dist. Hancock No. 5-13-34, 2014-Ohio-4873 and State v. Little,

3d Dist. Auglaize No. 2-13-28, 2014-Ohio-4871, both of which held a law enforcement officer

must comply with the warrant requirement of the Fourth Amendment prior to obtaining

medical records in accordance with R.C. 2317.02(B)(2). Stated differently, the Third District

determined that, although constitutional, R.C. 2317.02(B)(2)(a) and R.C. 2317.022 do not

authorize a warrantless search and seizure of a person's medical records where no
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recognized warrant exception exists.

       {¶ 14} However, because Perry pled no contest to OVI in violation of R.C.

4511.19(A)(1)(a), which, as noted above, generally prohibits any person from operating a

vehicle while under the influence of alcohol, the trial court's decision to deny Perry's motion to

suppress had no bearing on Perry's conviction for that offense. State v. Cooley, 5th Dist.

Ashland No. 15-COA-012, 2015-Ohio-3904, ¶ 9. In other words, because Perry entered a no

contest plea to OVI in violation of R.C. 4511.19(A)(1)(a), not R.C. 45119.19(A)(1)(f), the state

did not need to prove Perry's blood alcohol content was above any prohibited blood alcohol

level, thus rendering the results of the blood draw immaterial to the case at bar. Therefore,

while we believe this case presents an interesting legal question that should, most

importantly, be resolved by the Ohio Supreme Court, we decline to issue what would

essentially be an improper advisory opinion. That is particularly true here considering Perry

did not provide this court with a transcript of either his plea or sentencing hearings.

Therefore, because we must presume the regularity of the proceedings before the trial court

that led to Perry's conviction, Perry's single assignment of error is without merit and

overruled.

       {¶ 15} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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