[Cite as State v. Clark, 2014-Ohio-4873.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                         CASE NO. 5-13-34

        v.

JOHN M. CLARK,                                      OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Findlay Municipal Court
                             Trial Court No. 11-TRC-09384

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: November 3, 2014




APPEARANCES:

        Kenneth J. Rexford for Appellant

        Alan D. Hackenberg for Appellee
Case No. 5-13-34



WILLAMOWSKI, P.J.

         {¶1} Defendant-appellant, John Clark (“Clark”), brings this appeal from the

judgment of the Findlay Municipal Court in Hancock County, Ohio, finding him

guilty of OVI (operation of a vehicle while under the influence of alcohol) in

violation of R.C. 4511.19(A)(1)(a), and sentencing him accordingly. On appeal,

Clark challenges the trial court’s entries denying his motion to suppress and his

motion to dismiss for speedy trial violations. For the reasons that follow, we

reverse in part and affirm in part the trial court’s judgment.

         {¶2} The facts relevant to this appeal, as stipulated by the parties, are as

follows.

         1) On October 13, 2011, Defendant John Clark was found off of
         South River Road in Findlay, Ohio underneath his motorcycle
         having crashed as a result of a deer crossing his path unexpectedly.1
         The Hancock County Sheriff’s Office first received a report of this
         crash at 1:47 A.M.

         2) As a result of the accident, Defendant Clark was transported to
         the Blanchard Valley Hospital and then later by Life Flight t[o]
         Mercy St. Vincent’s Medical Center in Toledo, Ohio.

         3) On October 13, 2011 at 3:30 AM, St. Vincent’s Medical Center
         drew Defendant Clark’s blood, apparently for medical purposes, and
         tested same, discovering a blood alcohol content of 0.174 %.
         Defendant was discharged from the medical center the next day.


1
  We note that a journal entry from October 3, 2012, states that the parties agreed upon the facts of the case,
as presented in Clark’s motion, except for the cause of the crash. (R. at 23.) The parties do not challenge
the trial court’s finding that the crash was “a result of a deer crossing his path unexpectedly”; therefore, for
the purpose of this opinion, we presume this finding is correct.

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        4) On December 20, 2011, Deputy Thomas Miller of the Hancock
        County Sheriff’s Office sent a request to the St. Vincent’s Medical
        Center pursuant to Ohio Rev. Code 2317.02 and 2317.022
        requesting Defendant’s Clark [sic] medical records for the date of
        the accident. Although the form utilized by Deputy Miller was not
        identical to that contained in R.C. 2317.022, it was substantially
        similar.

        5) St. Vincent’s Medical Center complied with Deputy Miller’s
        request and provided the medical records of the Defendant from the
        date of the accident. Based in part upon those medical records,
        Deputy Miller issued a citation to Defendant Clark for the offense of
        Operating a Motor Vehicle Impaired with a blood alcohol content of
        .174% in violation of R.C. 4511.19(A)(l)(a)(c).

(R. at 25, J. Entry, June 5, 2013.)

        {¶3} Deputy Miller did not obtain a warrant prior to obtaining Clark’s

medical records from St. Vincent’s Medical Center. Instead, he utilized R.C.

2317.02(B)(2)(a) and R.C. 2317.022. R.C. 2317.02(B)(2)(a) states, in relevant

part:

        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

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Case No. 5-13-34



      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).

      {¶4} Revised       Code    2317.022,      which     is    referenced     in     R.C.

2317.02(B)(2)(a), contains the following language detailing how the request for

medical records should be made.

      If an official criminal investigation has begun regarding a person or
      if a criminal action or proceeding is commenced against a person,
      any law enforcement officer who wishes to obtain from any health
      care provider a copy of any records the provider possesses that
      pertain to any test or the result of any test administered to the person
      to determine the presence or concentration of alcohol, a drug of
      abuse, or alcohol and a drug of abuse in the person’s blood, breath,
      or urine at any time relevant to the criminal offense in question shall
      submit to the health care facility a written statement in the following
      form:

      “WRITTEN STATEMENT REQUESTING THE RELEASE OF
      RECORDS
      To: .................... (insert name of the health care provider in
      question).
      I hereby state that an official criminal investigation has begun
      regarding, or a criminal action or proceeding has been commenced
      against .................... (insert the name of the person in question), and
      that I believe that one or more tests has been administered to that
      person by this health care provider 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 that
      person’s whole blood, blood serum or plasma, breath, or urine at a
      time relevant to the criminal offense in question. Therefore, I hereby
      request that, pursuant to division (B)(2) of section 2317.02 of the

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Case No. 5-13-34



           Revised Code, this health care provider supply me with copies of
           any records the provider possesses that pertain to any test or the
           results of any test administered to the person specified above 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 that person’s whole blood, blood serum or
           plasma, breath, or urine at any time relevant to the criminal offense
           in question.[”]2

R.C. 2317.022(B).

           {¶5} Subsequently, Clark was charged with OVI, in violation of R.C.

4511.19(A)(1)(a), and failure to maintain control, in violation of R.C. 4511.202.

(R. at 1.) On December 27, 2011, Clark appeared in the trial court for arraignment

and requested a continuance. (R. at 3.) He was released on his own recognizance

and the matter was continued until January 10, 2012, with the delay charged

against Clark pursuant to R.C. 2945.72(C). (Id.) Prior to the next arraignment,

attorney Kenneth J. Rexford entered an appearance on behalf of Clark and filed a

Demand for Discovery and Inspection, Motion for a Bill of Particulars, Request

for Intention To Use Evidence, Demand for Exculpatory Material, Demand for

Preservation of Evidence, Motion Pursuant to Rule 801(D)(2), Motion for

Production of 404(B) Information, and a Reciprocal Discovery Notice. (R. at 5.)

On January 10, 2012, Clark appeared before the trial court, entered a plea of Not

Guilty, and requested a pretrial conference, which was scheduled for January 31,

2012. (R. at 6-8.) The delay was again charged against Clark pursuant to R.C.
2
    The segment concludes with various lines for the Officer’s contact information.

                                                     -5-
Case No. 5-13-34



2945.72(E). On January 31, 2012, at the pretrial conference, Clark “requested

additional time to consider the Prosecutor’s Recommendation.” (R. at 9.) The

Pre-trial Report, signed by the prosecutor and Clark’s attorney, stated that “time

limits pursuant to ORC 2945.71-73 are hereby waived without limitation.” (Id.)

       {¶6} On February 1, 2012, Clark filed his Motion to Suppress and to

Declare R.C. § 2317.02 in Part Unconstitutional. (R. at 10.) Clark requested the

suppression of “physical and testimonial evidence resulting from an unlawful and

warrantless search of Mr. Clark’s personal medical records, which violated his

rights to privacy.”      (Id.)   He further requested that the court declare

unconstitutional the part of R.C. 2317.02 that permits such a warrantless search.

(Id.) There was a handwritten annotation on this filing stating “2/9/12 Set for

Hearing Speedy Trial Tolled pursuant to R.C. 2945.72(E).” (Id.)

       {¶7} The motion to suppress was scheduled to be heard on May 15, 2012,

but prior to that hearing, on May 11, 2012, the trial court denied the part of the

motion that requested to declare R.C. 2317.02 unconstitutional. (R. at 13.) The

denial was based on the trial court’s determination that it had no jurisdiction to

rule upon the constitutionality of the statute due to Clark’s failure to serve a copy

of the motion upon the Attorney General, as required by R.C. 2721.12. (Id.) The

rest of the motion remained scheduled for the May 15, 2012 hearing. On May 14,

2012, Clark filed a motion to reconsider the trial court’s judgment entry

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dismissing the challenge to the constitutionality of R.C. 2317.02, asserting that

service upon the Attorney General was not required under the circumstances of

this case.

       {¶8} On May 15, 2012, the date scheduled for a hearing on the motion to

suppress, the trial court held a conference at which both parties “requested

additional time to respond to the issue.” (R. at 15.) The suppression hearing was

then rescheduled to a later date, which was July 25, 2012. (R. at 16.) On May 22,

2012, Clark filed Supplemental Memorandum Re: Motion to Suppress. (R. at 17.)

On July 23, 2012, the State requested a continuance of the hearing date, stating

that Clark’s attorney was aware of the motion and had no objection, and

requesting that the delay not be charged against the State under R.C. 2945.71. (R.

at 19.) The hearing was continued, and the time from July 25, 2012, to the next

suppression hearing date of October 3, 2012, was not charged against the State.

(R. at 20-21.)

       {¶9} On October 3, 2012, the parties appeared before the trial court and

agreed upon the facts of the case, except for the cause of the crash. (R. at 23.)

The parties requested that the trial court rule on Clark’s motion to reconsider,

which had been filed in May 2012. (Id.) The issue of the suppression was then

deemed heard and submitted. (Id.) Yet, on January 28, 2013, Clark filed his

Second Supplemental Memorandum Re: Motion to Suppress. (R. at 24.)

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       {¶10} Over four months later, on June 5, 2013, the trial court issued a

ruling on the motion to suppress, finding R.C. 2317.02 constitutional and denying

the motion. (R. at 25.) Clark’s case was then scheduled for a pretrial on July 31,

2013. (R. at 26.) On August 1, 2013, Clark advised the trial court that he was

going to file a motion to dismiss on speedy trial grounds. (R. at 27.)

       {¶11} On August 6, 2013, Clark filed a motion to dismiss for speedy trial

violations, stemming from the trial court’s delay in ruling on the motion to

suppress. (R. at 28.) The trial court denied the motion on September 5, 2013. (R.

at 30.) Clark then withdrew his plea of not guilty and pled no contest. He was

found guilty of the OVI charge, but the remaining charge, failure to maintain

reasonable control, was dismissed. (R. at 35.) Clark now appeals raising three

assignments of error for our review.

       I. THE TRIAL COURT ERRED BY DENYING MR.
       CLARK’S MOTION TO SUPPRESS, IN VIOLATION OF HIS
       RIGHT TO PRIVACY AND OF THE PRINCIPLE OF
       SEPARATION OF POWERS.

       II. THE TRIAL COURT ERRED BY RULING THE R.C.
       §2317.02 AND §2317.022 ARE CONSTITUTIONAL.

       III. THE TRIAL COURT VIOLATED MR. CLARK’S
       RIGHTS UNDER THE OHIO CONSTITUTION AND THE
       UNITED STATES CONSTITUTION TO A SPEEDY TRIAL.

       {¶12} Before addressing the assignments of error, we note that Clark chose

to disregard the rules of appellate procedure, which require him to argue each

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assignment of error separately in his brief (see App.R. 16(A); App.R. 12(A)(2)),

and combined the arguments related to his first two assignments of error under one

section of his brief. We discourage this practice as contrary to the rules and

disorderly.   If Clark felt that one argument supported his contentions, one

assignment of error should have been sufficient. He expects the State and this

court to pick and choose which of the statements in his discussion support the first

assignment of error and which ones support the second assignment of error.

Instead of doing so, this court may simply “disregard an assignment of error

presented for review if the party raising it * * * fails to argue the assignment

separately in the brief, as required under App.R. 16(A).” App.R. 12(A)(2). In the

interest of justice, we nonetheless elect to consider Clark’s arguments at this time.

                  First and Second Assignments of Error—
          Warrantless Search of Clark’s Medical Records Pursuant to
                     R.C. 2317.02(B)(2)(a) and 2317.022

       {¶13} Clark challenges the use of R.C. 2317.02(B)(2)(a) and 2317.022 to

obtain his medical records as unconstitutional.       He claims that the statutory

scheme allows the government to access an individual’s private medical records

without a warrant, probable cause, or even a reasonable and articulable suspicion

and without any “procedural safeguards,” where no exigent circumstances exist to

justify such actions. (App’t Br. at 4, 6, 10.) He further contends that the statute

“has absolutely no substantial procedural safeguards to ensure against abuse by the

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Case No. 5-13-34



government agents taking advantage of that statute,” does not prohibit

dissemination of the medical records, and does not provide for a notification to the

citizen that the intrusion occurred. (Id. at 10-11.)

       {¶14} Although Clark discusses multiple legal concepts in his brief, mixing

them together, he cites two United States Supreme Court cases, Whalen v. Roe,

429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and Ferguson v. City of

Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), which focus on

the right to privacy and the Fourth Amendment protection against unreasonable

search and seizure, and which seem to be relevant to the constitutional challenges

brought herein. We discuss these two cases and address the legal concepts that

stem from them in detail. The other concepts that are mentioned, but not briefed

by Clark, are not addressed in this opinion because of Clark’s failure to support his

other contentions with “reasons,” “citations to the authorities,” and “statutes,” as

required by App.R. 16(A)(7).

                                  A. Whalen v. Roe

       {¶15} Among his other arguments, Clark cites Whalen for the proposition

that the government must “establish administrative procedures—procedural

safeguards—to protect [the privacy right] whenever government legitimately has a

need for medical records.” (App’t Br. at 6; accord id. at 9-12, 18.) As explained

by the Ohio Supreme Court, the concerns addressed in Whalen “related to the

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Case No. 5-13-34



disclosure of information to the general public.” (Emphasis sic.) Stone v. City of

Stow, 64 Ohio St.3d 156, 160-161, 162, 593 N.E.2d 294 (1992) (explaining and

following Whalen). Both the United States Supreme Court and the Ohio Supreme

Court held that a mere “threat of unauthorized disclosure” is not sufficient to

declare a statute unconstitutional. Id. at 162-163, citing Whalen 429 U.S. 589.

The threat of unauthorized disclosure must be “significant” and inevitable in order

“to cause [a statute] to be declared unconstitutional.” Id.; see also Whalen, 429

U.S. at 600, 603-604 (holding that the challenged government program did not,

“on its face, pose a sufficiently grievous threat” to amount to a constitutional

violation) (emphasis added). Therefore, Whalen does not prohibit disclosure of

medical records per se, but merely limits disclosure of the information to the

general public to ensure no “significant” threat of unauthorized disclosure to the

public.

          {¶16} Clark seems to argue that the statutory provisions at issue in this case

infringe upon his interest in avoiding disclosure of personal matters. (App’t Br. at

4, 11.) But he fails to establish a significant and inevitable threat of unauthorized

disclosure of protected personal information to the general public. The statutes

restrict the individuals who can make a request for medical records to “law

enforcement officers,” alleviating Clark’s concern that his protected personal

information will be disclosed by the hospital directly to the general public. R.C.

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2317.02(B)(2)(a).         As discussed above, the concern addressed by procedural

safeguards in Whalen was the disclosure of the patients’ information to the general

public and not disclosure to the law enforcement officers in a criminal

investigation.3

        {¶17} Relying on the United States Supreme Court and the Ohio Supreme

Court’s holdings that a mere threat of disclosure to the general public does not

make a statute unconstitutional, but that the threat must be significant and

inevitable, we do not find that Clark has satisfied his burden of proving that this

statutory scheme is unconstitutional under Whalen.

                               B. Ferguson v. City of Charleston

        {¶18} Relying on Ferguson, Clark asserts that the statutory scheme at issue,

which allows the police officer to request and review Clark’s medical records

without a warrant, violates his Fourth Amendment interest in privacy, i.e., the

protection against unreasonable searches and seizures.

        The Fourth Amendment protects persons from “unreasonable
        searches and seizures” by the government. Section 14, Article I of
        the Ohio Constitution is interpreted to provide the same protections
        as the Fourth Amendment. Evidence seized in violation of the Fourth
        Amendment will be suppressed pursuant to the exclusionary rule.
        However, the defendant must have a reasonable expectation of
3
  The parties in Whalen did not request suppression of the evidence. There were no “suspects,” because
that case did not involve prosecution of the patients who used Schedule II drugs, and the records were
disclosed to the state health department rather than to the prosecution. Moreover, in light of our further
discussion and holding that R.C. 2317.02 and R.C. 2317.022 do not authorize a warrantless disclosure of
medical records to the law enforcement officers, there is no direct threat that the medical information will
become public.

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Case No. 5-13-34



        privacy in the evidence seized for standing to challenge the search or
        seizure.

City of Marion v. Brewer, 3d Dist. Marion No. 9-08-12, 2008-Ohio-5401, ¶ 7,

citing State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, ¶ 8,

and State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997). Clark

cites Ferguson in support of the federally recognized reasonable expectation of

privacy in medical records.4

        {¶19} Ferguson is relevant to the issue before us in that it concerned the

criminal prosecution of patients whose medical records were obtained by law

enforcement without a warrant. In Ferguson, a state hospital performed drug

screens on maternity patients who were suspected of using cocaine. Ferguson,

532 U.S. at 71-72. That policy was implemented in conjunction with the police

and local officials, and relied on a “threat of law enforcement intervention that

‘provided the necessary “leverage” to make the policy effective.’ ” Id. The

United States Supreme Court, reviewing the hospital’s action under the Fourth

Amendment challenge, held that

        [t]he reasonable expectation of privacy enjoyed by the typical patient
        undergoing diagnostic tests in a hospital is that the results of those

4
  Although Clark attempts to use Whalen in support of his argument that the statutory scheme at issue
violates the Fourth Amendment’s protection against unreasonable search and seizure, it is important to note
that the Whalen decision did not concern a Fourth Amendment right. Rather, the patients and physicians in
Whalen were concerned with the possibility of public disclosure of their medical records and the stigma
that would attach from it. There was no discussion of arrest or prosecution that would trigger the Fourth
Amendment challenge, and the Whalen court expressly declined to resolve that case within the scope of the
Fourth Amendment’s interest in privacy. Whalen, 429 U.S. at 604, fn. 32.

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Case No. 5-13-34



       tests will not be shared with nonmedical personnel without her
       consent.

Id. at 78.

       {¶20} The highest court noted that the policy implemented by the state

hospital, which was a state actor, allowed for a search without a warrant, or even

probable cause or any reasonable suspicion. Id. at 76-77. The Supreme Court

disagreed with the “majority of the appellate panel[, which] held that the searches

were reasonable as a matter of law under [a] line of cases recognizing that ‘special

needs’ may, in certain exceptional circumstances, justify a search policy designed

to serve non-law-enforcement ends.” Id. at 74. Finding that no special needs that

were unrelated to law enforcement were advanced by the hospital’s policy, the

Ferguson court invalidated the policy as unconstitutional, notwithstanding the fact

that the hospital’s “motive was benign rather than punitive.” Id. at 79, 85.

       {¶21} Clark points to Ferguson’s recognition of “an individual’s federally

protected expectation of privacy in his medical records” and urges us to invalidate

the Ohio statutory scheme that seemingly allows search and seizure of an

individual’s medical records without a warrant, in contravention of this

expectation of privacy. (App’t Br. at 11.)

       {¶22} Clark recognizes that “the constitutional proscriptions of the Fourth

Amendment and the exclusionary rule apply only to government action and not to


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Case No. 5-13-34



the actions of private persons.” State v. Meyers, 146 Ohio App.3d 563, 575, 767

N.E.2d 739 (3d Dist.2001). Therefore, he does not challenge the hospital’s action

of drawing his blood and performing the medical tests. As such, Meyers, where

we reviewed the issue of “whether the conduct of the hospital constituted state

action” and held that “the hospital’s blood test did not constitute state action

necessary to implicate Fourth Amendment protections,” does not apply to our

analysis herein. See id. at 575-578.

           {¶23} Similarly, the Ferguson dicta about the hospital’s ability to draw

blood from its patient and independently report it to the law enforcement “under

rules of law or ethics”5 does not apply here. See Ferguson, 532 U.S. at 80-81

(distinguishing the case “from circumstances in which physicians or psychologists,

in the course of ordinary medical procedures aimed at helping the patient herself,

come across information that under rules of law or ethics is subject to reporting

requirements, which no one has challenged here”).




5
    The United States Supreme Court recognized,

           There are some circumstances in which state hospital employees, like other citizens, may
           have a duty to provide law enforcement officials with evidence of criminal conduct
           acquired in the course of routine treatment, see, e.g., S.C.Code Ann. § 20–7–510 (2000)
           (physicians and nurses required to report to child welfare agency or law enforcement
           authority “when in the person’s professional capacity the person” receives information
           that a child has been abused or neglected).

Ferguson, 532 U.S. at 78, fn. 13. “We do not address a case in which doctors independently complied with
reporting requirements.” Id at 85, fn. 24.

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       {¶24} Here, at issue is not the hospital’s action of testing Clark’s blood or

of independently forwarding his medical records to the police “under rules of law

or ethics.” See id. Rather, the focus is on the action of the police—a state actor,

searching and seizing Clark’s medical records without a warrant. (See App’t Br.

at 16, 19.)   This distinction is very important because the Supreme Court

recognized that the existence of laws requiring the hospital to independently report

evidence of criminal conduct to law enforcement, “might lead a patient to expect

that members of the hospital staff might turn over evidence acquired in the course

of treatment to which the patient had consented,” thus possibly lowering the

patient’s expectation of privacy. (Emphasis added.) Ferguson, 532 U.S. at 78, fn.

13. Yet, the Supreme Court has not held that a patient would have a lowered

expectation of privacy and subject himself or herself to a warrantless search by the

police in absence of such laws.

       {¶25} Therefore, this case is about the power of the police to perform a

warrantless search of a patient’s medical records; in particular, the results of

medical tests that have been previously properly performed by the hospital and

that show a concentration of alcohol or drugs of abuse at the time of a suspected

criminal offense.




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Case No. 5-13-34



           C. OVI Suspect’s Expectation of Privacy in Medical Records

        {¶26} Although the United States Supreme Court in Ferguson held that a

citizen has a reasonable expectation of privacy in medical records, some state

courts have since held that the society does not recognize a suspect’s expectation

of privacy in medical records as reasonable in situations involving an investigation

for operating a vehicle under the influence of alcohol or drugs of abuse. For

example, the New Hampshire Supreme Court, reviewing the constitutionality of a

New Hampshire statute that was similar to the Ohio statutory scheme at issue,

held,

        To the extent that the defendant may have a reasonable expectation
        of privacy in his medical records generally * * *, we conclude that
        society does not recognize a reasonable expectation of privacy in
        blood alcohol test results obtained and recorded by a hospital as part
        of its consensual treatment of a patient, where those results are
        requested by law enforcement for law enforcement purposes in
        connection with an incident giving rise to an investigation for
        driving while under the influence of intoxicating liquors or
        controlled drugs. See RSA 329:26.

State v. Davis, 161 N.H. 292, 298, 12 A.3d 1271 (2010).

        {¶27} The New Hampshire Court arrived at this conclusion after reviewing

decisions of courts in other jurisdictions:

        Courts in other jurisdictions addressing whether a reasonable
        expectation of privacy exists in blood test results in the DWI context
        have reached different conclusions. Several courts have found that
        society does not recognize a reasonable expectation of privacy under
        the Fourth Amendment in “blood alcohol test results obtained and

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      recorded by a hospital as part of its consensual treatment of a patient,
      where those results are requested by law enforcement for law
      enforcement purposes only in the investigation of an automobile
      accident.” Hannoy v. State, 789 N.E.2d 977, 991 (Ind.Ct.App.2003);
      see also Tims v. State, 711 So.2d 1118, 1122–24
      (Ala.Crim.App.1997); People v. Perlos, 436 Mich. 305, 462 N.W.2d
      310, 319–21 (1990); State v. Guido, 698 A.2d 729, 733–34
      (R.I.1997); State v. Hardy, 963 S.W.2d 516, 523–27
      (Tex.Crim.App.1997); State v. Jenkins, 80 Wis.2d 426, 259 N.W.2d
      109, 113 (1977). Others have held that the government’s acquisition
      of medical records under circumstances similar to those in this case
      violates the defendant’s rights under state constitutional provisions
      prohibiting unreasonable searches and seizures, see, e.g., Com. v.
      Shaw, 564 Pa. 617, 770 A.2d 295, 299 (2001), or state constitutional
      provisions that guarantee a right to privacy, see, e.g., King v. State,
      272 Ga. 788, 535 S.E.2d 492, 494–97 (2000); State v. Nelson, 283
      Mont. 231, 941 P.2d 441, 446–50 (1997).

      While the decisions of courts in other jurisdictions are not binding
      upon us, we find persuasive the reasoning of those cases that focused
      upon the unique circumstances presented when the government
      requests and acquires the results of blood tests administered for the
      purpose of diagnosis and treatment of injuries sustained in an
      automobile accident. See Tims, 711 So.2d at 1122–24; Hannoy, 789
      N.E.2d at 990–92; Perlos, 462 N.W.2d at 315–21; Hardy, 963
      S.W.2d at 523–27. We also agree that, “although not determinative,
      one source in analyzing the reasonableness of an expectation is to
      look to the Legislature,” Perlos, 462 N.W.2d at 319, and that
      whether a privilege exists may be some evidence of societal
      expectations, Hardy, 963 S.W.2d at 524.

      ***

      By its plain language, the statute now exempts from the physician-
      patient privilege blood alcohol test results of a person being
      investigated for driving under the influence of intoxicating liquor or
      controlled drugs where the blood alcohol tests were administered for
      the purpose of diagnosis and treatment. See State v. Nickerson, 147
      N.H. 12, 13, 780 A.2d 1257 (2001).

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       By carving out an exception to the physician-patient privilege under
       this narrow set of circumstances, the legislature has reflected the
       societal “belief that when people drive, they encounter a diminished
       expectation of privacy.” Perlos, 462 N.W.2d at 320. The existence
       of the Implied Consent law further supports this conclusion.

       ***

       Indeed, if a person refuses the request of a law enforcement officer
       to submit to physical tests or to a test of blood, urine or breath, the
       person’s license to drive will be suspended. See RSA 265–A:14
       (Supp.2010).

Id. at 296-298.

       {¶28} We disagree with the line of reasoning adopted by the Supreme

Court of New Hampshire in Davis, which would require us to strip from an OVI

suspect the reasonable expectation of privacy in medical records, as recognized in

Ferguson. First, we note that many of the cases on which the New Hampshire

Court relied were decided prior to Ferguson. The New Hampshire Court in Davis

distinguished Ferguson “because the testing [in Ferguson] was done for, and in

conjunction with, law enforcement,” while “there was no law enforcement

involvement in the taking or testing of the defendant’s blood sample in this case.”

Id. at 298-299. Nevertheless, as we explained above, it is not “the taking or

testing of the defendant’s blood sample” that we are reviewing in cases concerning

the search of a patient’s medical records by the law enforcement. Therefore, the

distinction noted in Davis is not relevant to the case at hand.

                                        - 19 -
Case No. 5-13-34



       {¶29} Second, the New Hampshire Supreme Court’s reliance on an

exception to the physician-patient privilege to find a lack of reasonable

expectation of privacy is misplaced because this testimonial privilege applies to

testimony at trial and does not apply to search warrants. See State v. Fairfield, 8th

Dist. Cuyahoga No. 97466, 2012-Ohio-5060, ¶ 16, appeal not accepted, 134 Ohio

St.3d 1486, 2013-Ohio-902, 984 N.E.2d 30 (holding that a prohibition against

“testifying” applied “to trials and not search warrants because warrants are used to

aid in the investigation process and are ancillary to the criminal proceedings”).

“Proceedings for a search warrant differ from a trial in that the rules of evidence

do not apply.” State v. Jaschik, 85 Ohio App.3d 589, 598, 620 N.E.2d 883 (11th

Dist.1993). Therefore, the fact that the statutory scheme at issue waives the

physician-patient privilege for the purpose of testifying at trial cannot be used to

circumvent the Fourth Amendment protections against unreasonable searches and

seizures.

       {¶30} Furthermore, it cannot be argued that the existence of a physician-

patient privilege waiver, “might lead a patient to expect that members of the

hospital staff might turn over evidence acquired in the course of treatment to

which the patient had consented,” thus lowering the patient’s expectation of

privacy.    (Emphasis added.)     See Hannoy v. State, 789 N.E.2d 977, 991

(Ind.App.2003), quoting Ferguson, 532 U.S. at 78, fn. 13. As explained above,

                                       - 20 -
Case No. 5-13-34



the dicta in Ferguson referred to the requirement of independently reporting

evidence of criminal conduct to law enforcement “under rules of law or ethics.”

Ferguson, 532 U.S. at 80-81. The statutory scheme at issue does not mandate

independent reporting of evidence of the crime. Rather, it mandates responding to

a law enforcement request to provide any evidence “of any test administered” to

the suspect, regardless of whether it shows criminal conduct or not. See R.C.

2317.02(B)(2)(a). Here, at issue is not the independent reporting requirement but

rather, the police action of searching and seizing a patient’s medical records.

       {¶31} Third, the use by the New Hampshire Supreme Court of the implied

consent statute to support obtaining medical records without a warrant overlooks

several important distinctions between the implied consent statute and the

situations covered by Davis and by the Ohio statutory scheme at issue. The

implied consent statute operates only after the driver has been arrested for OVI.

State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 14, 23-

24; R.C. 4511.191(A)(2). Conversely, the method adopted by New Hampshire

and advanced by the State in this case would allow for a warrantless search of the

medical records without the requirement that the person is first arrested. As such,

unlike in the implied consent cases, these situations would not even require

probable cause prior to performing the search. See id. at ¶ 19, 23-24. Such a low

threshold for a warrantless search goes beyond the recognized exceptions to the

                                        - 21 -
Case No. 5-13-34



warrant requirement.6 Furthermore, the warrantless search of a driver’s body for

evidence of intoxication in situations where the driver is arrested for OVI has been

justified by an exigency, which is a risk of losing evidence because of the

diminishing alcohol concentration level in the driver’s blood. See id. at ¶ 19,

citing Schmerber v. California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 16 L.Ed.2d

908 (1966).7 No such exigency exists in circumstances where, as here, the tests

have already been performed and their results are safely stored by the hospital.

Finally, the implied consent statutes provide the driver with an opportunity to limit

or withdraw the consent, thus avoiding the warrantless search, although the refusal

to consent results in certain consequences. Id., at ¶ 20; State v. Brown, 158 Ohio

App.3d 21, 2004-Ohio-3364, 813 N.E.2d 956, ¶ 13 (7th Dist.). Conversely, the

statutory scheme at issue here does not provide for any possibility 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. Thus, the situations addressed by the

New Hampshire Supreme Court in Davis, as well as the situations covered by R.C.

2317.02(B)(2)(a) and 2317.022, are entirely distinct from the situations involving



6
 See list of recognized exceptions to the warrant requirement in part D. below.
7
 But see Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (limiting Schmerber and mandating
a case-by-case approach to the OVI cases to determine whether sufficient exigency exists to allow a
warrantless search).

                                               - 22 -
Case No. 5-13-34



implied consent to a test for alcohol concentration level of an impaired driver

arrested for OVI.

      {¶32} In addition, we note that even under the reasoning of the New

Hampshire Supreme Court in Davis, the Ohio statutory scheme could not function

to authorize warrantless searches of a driver’s medical records because of an

important distinction between the Ohio statutory scheme and the statute upheld in

Davis. The New Hampshire law permitted law enforcement to obtain medical

records without a warrant only in connection with “the incident giving rise to the

investigation for driving a motor vehicle while such person was under the

influence of intoxicating liquors or controlled drugs.” Davis, 161 N.H. at 297.

The Ohio statutes would allow obtaining test results whenever there is any

“criminal investigation,” not limited to only OVI investigations.            R.C.

2317.02(B)(2)(a); R.C. 2317.022(B). In an Indiana case on which the Davis court

relied, the Indiana court excluded “fishing expeditions” related to “any criminal

investigation” from the scope of its statute. Hannoy, 789 N.E.2d at 992. The

Indiana court held:

      We do not want to be misunderstood as holding that Indiana Code
      Section 9–30–6–6(a) authorizes the release of toxicological test
      results or bodily fluid samples to law enforcement anytime it is
      requested in relation to any criminal investigation. We do not
      believe Section 9–30–6–6 authorizes broad “fishing expeditions” by
      law enforcement searching for evidence that some person has
      committed some crime. First, the placement of Section 9–30–6–6 in

                                      - 23 -
Case No. 5-13-34



       the Traffic Code clearly indicates that it applies only to criminal
       investigations concerning operating while intoxicated and its related
       crimes. Second, Hannoy was one of two drivers involved in a fatal
       motor vehicle accident, and we assume that law enforcement officers
       will limit their requests for toxicological test results specifically to
       drivers who have been hospitalized following an accident rather than
       requesting test results from patients at random for no reason
       whatsoever. This makes the request reasonable under the Fourth
       Amendment.

(Emphasis added.) Id.

       {¶33} Unlike the statute in Hannoy, R.C. 2317.02(B)(2)(a) and R.C.

2317.022 are not included in Chapter 4511—“Traffic laws,” in contrast to the

implied consent statute, R.C. 4511.191, which appears immediately after R.C.

4511.19—“Driving while under the influence of alcohol or drugs; tests;

presumptions; penalties; immunity for those withdrawing blood.” These sections

are contained within the Revised Code sections for competency of witnesses, and

Section R.C. 2317.02 is entitled “Privileged communications and acts.”            As

already discussed above, the physician-patient privilege does not apply to the

search proceedings, and the fact that the statutory scheme at issue waives the

physician-patient privilege for the purpose of testifying at trial, cannot be used to

circumvent the Fourth Amendment protections against unreasonable searches and

seizures.

       {¶34} Neither the Ohio Supreme Court nor the United States Supreme

Court have thus far held that an OVI suspect does not enjoy a reasonable

                                        - 24 -
Case No. 5-13-34



expectation of privacy in his or her medical records that show an alcohol or drug

concentration level in the suspect’s blood or urine. But the Ohio Fourth District

Court of Appeals has recognized that an OVI suspect had a reasonable expectation

of privacy in a urine sample obtained by a hospital as part of its routine treatment

and later requested by a law enforcement officer. State v. Funk, 177 Ohio App.3d

814, 2008-Ohio-4086, 896 N.E.2d 203, ¶ 13 (4th Dist.).

       {¶35} The recent decision of the United States Supreme Court in Missouri

v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), supports a holding that an

OVI suspect’s expectation of privacy should not be diminished easily.            In

McNeely, the United States 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.” Id. at

1561. The Supreme Court mandated a case-by-case approach, rejecting the state’s

contention “that exigent circumstances necessarily exist when an officer has

probable cause to believe a person has been driving under the influence of alcohol

because BAC evidence is inherently evanescent.” Id. at 1554, 1561.

       In those drunk-driving investigations where police officers 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. See McDonald v.
       United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948)
       (“We cannot ... excuse the absence of a search warrant without a
       showing by those who seek exemption from the constitutional

                                       - 25 -
Case No. 5-13-34



       mandate that the exigencies of the situation made [the search]
       imperative”).

Id. at 1561.

       {¶36} Although the McNeely decision focused on the exception to the

warrant requirement rather than on the expectation of privacy, we find it relevant

to the case at issue that the Supreme Court refused to allow warrantless searches

even though “the privacy interest implicated by blood draws of drunk-driving

suspects is relatively minimal” and the “governmental interest in combating drunk

driving” compelling. Id. at 1564-1565. In spite of the recognized importance of

preventing “drunk driving,” the Supreme Court declined to depart from the

warrant requirement absent exigent circumstances:

       “No one can seriously dispute the magnitude of the drunken driving
       problem or the States’ interest in eradicating it.” Michigan Dept. of
       State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d
       412 (1990). Certainly we do not. While some progress has been
       made, drunk driving continues to exact a terrible toll on our society.
       See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec.
       2012) (reporting that 9,878 people were killed in alcohol-impaired
       driving crashes in 2011, an average of one fatality every 53
       minutes).

       But the general importance of the government’s interest in this area
       does not justify departing from the warrant requirement without
       showing exigent circumstances that make securing a warrant
       impractical in a particular case.

Id. at 1565-1566. The Supreme Court added that “the Fourth Amendment will not

tolerate adoption of an overly broad categorical approach that would dilute the

                                       - 26 -
Case No. 5-13-34



warrant requirement in a context where significant privacy interests are at stake.”

Id. at 1564.

       {¶37} This holding is very instructive in the case at issue. It directs us to

prevent the dilution of the warrant requirement in cases where a patient’s federally

recognized privacy interest in his or her medical records is at stake and no reasons

exist to diminish that privacy interest. While we recognize the threat that impaired

drivers pose on Ohio roads and the important interest of preventing impaired

driving, we must also acknowledge 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. Here, the State failed to

point to any reason that would justify diminishing a patient’s privacy interest, so

firmly protected by the United States Supreme Court, in securely-stored medical

records.

       {¶38} We are mindful of Ohio cases that have previously addressed

obtaining medical records pursuant to R.C. 2317.02(B)(2)(a) and R.C. 2317.022,

and found no constitutional violations. For example, in State v. Tomkalski, 11th

Dist. Lake No. 2003-L-097, 2004-Ohio-5624, the defendant alleged that his

“constitutional right of privacy” was violated. Id. at ¶ 27. The Eleventh District

Court of Appeals rejected the defendant’s challenge, without discussing Ferguson

or the expectation of privacy. The court only noted that the medical records in

                                       - 27 -
Case No. 5-13-34



Ohio were not protected by the constitutional right of privacy, but by the

physician-patient privilege, which did not apply “ ‘[i]n any criminal action

concerning * * * the results of any test that determines the presence or

concentration of alcohol * * * in the patient’s blood.’ ” Id. at ¶ 26-27, quoting R.C.

2317.02(B)(1)(c). In so far as the physician-patient privilege protects the medical

records from unauthorized disclosure, the issues relevant here do not concern the

Whalen right to privacy, which protects the medical records from unauthorized

disclosure, as we noted in our discussion in section A. above. Instead, we are

focusing on the Ferguson-recognized expectation of privacy in medical records as

it relates to the warrantless search and seizure, and criminal prosecution that stems

from it. The Eleventh District Court of Appeals did not address this issue.

       {¶39} In City of Cleveland v. Rollins, 8th Dist. Cuyahoga No. 79614, 2002

WL 490040 (Mar. 14, 2002), the defendant raised the issue of expectation of

privacy in medical records. The Eighth District Court of Appeals recognized that

R.C. 2317.02(B)(2)(a) serves “merely” to “protect the health care provider from

potential civil liability arising out of the release of arguably privileged

information,” rather than to control admissibility of evidence. Id. at *2. Yet, in

spite of this recognition of the statute’s limited purpose, the Eighth District Court

of Appeals did not address the defendant’s concerns regarding a violation of his

expectation of privacy in his medical records. Instead, the court implied that R.C.

                                        - 28 -
Case No. 5-13-34



2317.02(B)(2)(a) waives the “due process protections” of criminal defendants

“who are suspected of drunk driving or other criminal activity.” Id. The court

thus held that a constitutional violation did not occur where the defendant’s

medical records were obtained pursuant to the statute because “any physician-

patient privilege had already been waived per the terms of R.C. 2317.02(B)(1)(c),”

and “the health care provider in question may have chosen to relinquish the test

results without first receiving a written statement from the investigating officer.”

Id.   Relying on the physician-patient privilege, the Eighth District Court of

Appeals ignored the defendant’s concerns over his expectation of privacy in

medical records. The Ferguson opinion was not mentioned either.

       {¶40} We find it necessary to re-emphasize the difference between

physician-patient privilege, which applies to admissibility of (properly obtained)

evidence at trial, and the Fourth Amendment protection against the government’s

unauthorized invasion into the patient’s medical records, which applies to the

government’s ability to obtain the evidence. See State v. Fairfield, 8th Dist.

Cuyahoga No. 97466, 2012-Ohio-5060, ¶ 16, appeal not accepted, 134 Ohio St.3d

1486, 2013-Ohio-902, 984 N.E.2d 30; State v. Jaschik, 85 Ohio App.3d 589, 598,

620 N.E.2d 883 (11th Dist.1993).         While R.C. 2317.02(B)(2)(a) and R.C.

2317.022 waive the physician-patient privilege, they do not strip an OVI

defendant of his or her expectation of privacy in his medical records.

                                       - 29 -
Case No. 5-13-34



      {¶41} The Ohio Supreme Court noted that “R.C. 2317.02(B)(2) simply

waives patient-physician privilege when law enforcement seeks to obtain certain

test results.” (Emphasis added.) State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-

4629, 833 N.E.2d 1216, ¶ 55. We have recognized in Meyers, 146 Ohio App.3d

563 at 575, 767 N.E.2d 739, that “R.C. 2317.02(B)(2)(a) excluded related records

from the privilege.” “The clear intent of the legislature was to abrogate the

physician-patient privilege and provide the state access to blood-alcohol tests in

criminal cases,” “ ‘except to the extent specifically prohibited by any law of this

state or of the United States.’ ” Id. at 577, quoting R.C. 2317.02(B)(2)(a). We

went even further to call R.C. 2317.02(B)(2)(a) a “mere[] * * * discovery tool

through which the state may request and receive the medical records described

herein.” Id. at 578. We did not, however, exclude R.C. 2317.02(B)(2)(a) from the

scope of the Fourth Amendment and we did not hold that an OVI suspect does not

have a reasonable expectation of privacy in medical records. Rather, in response

to the defendant’s arguments that the hospital was a state actor (id. at 576), we

reviewed the case under the search and seizure principles, holding that “the

hospital’s blood test did not constitute state action necessary to implicate Fourth

Amendment protections.” Id. at 575-578. Other Ohio courts similarly recognize

the statute’s purpose as a waiver of a physician-patient privilege.      See, e.g.,

Rollins, 2002 WL 490040, at *2.

                                      - 30 -
Case No. 5-13-34



       {¶42} Therefore, we hold that an OVI suspect in Ohio enjoys a reasonable

expectation of privacy in his or her medical records “that pertain to any test or the

result of any test administered to the person to determine the presence or

concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in the

person’s blood, breath, or urine at any time relevant to the criminal offense in

question,” which are stored securely in a hospital. R.C. 2317.022(B). It follows

that, prior to obtaining such medical records a law enforcement officer must

comply with the warrant requirement of the Fourth Amendment.

              D. The State’s Practice of Obtaining Medical Records
              Pursuant to R.C. 2317.02(B)(2)(a) and R.C. 2317.022

       {¶43} Here, the law enforcement officer did not obtain a warrant prior to

searching and seizing Clark’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; State v. Kessler, 53 Ohio St.2d 204, 207, 373

N.E.2d 1252 (1978). The burden is on the state to establish that a warrantless

search is valid under one of those exceptions. City of Xenia v. Wallace, 37 Ohio

St.3d 216, 218, 524 N.E.2d 889 (1988).

       {¶44} The Ohio Supreme Court has explicitly recognized the following

seven exceptions to the requirement that a warrant be obtained prior to a search:

       (a) a search incident to a lawful arrest;


                                       - 31 -
Case No. 5-13-34



       (b) consent signifying waiver of constitutional rights;

       (c) the stop-and-frisk doctrine;

       (d) hot pursuit;

       (e) probable cause to search, and the presence of exigent circumstances;

       (f)   the plain view doctrine; and

       (g) administrative search.

Stone v. City of Stow, 64 Ohio St.3d 156, 165, 593 N.E.2d 294 (1992). The parties

do not argue that any of these enumerated exceptions applied in this case.

Therefore, we will not attempt to determine at this point whether Clark’s particular

situation would fit within one of those exceptions. Focusing on the statutory

scheme at issue, we recognize that the seven exceptions above do not include a

police officer requesting and searching records of medical tests, previously

properly performed by the hospital, where no arrest, consent, hot pursuit, or

probable cause and exigent circumstances exist.

       {¶45} This conclusion does not, however, mean that the statutory scheme at

issue is unconstitutional. We merely hold 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 R.C. 2317.02(B)(2)(a) and R.C. 2317.022 without a warrant to obtain

Clark’s medical records violated his constitutional protection against unreasonable

                                        - 32 -
Case No. 5-13-34



search and seizure. This conclusion means that on the basis presented to us,

Clark’s motion to suppress was not properly denied8 by the trial court and that

Clark’s first assignment of error is sustained.

        {¶46} But because statutes enjoy a strong presumption of constitutionality

and Clark failed to sustain his burden of establishing beyond a reasonable doubt

that R.C. 2317.02 and R.C. 2317.022 are unconstitutional, we overrule the second

assignment of error. See Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916

N.E.2d 1056, at ¶ 8.

                         Third Assignment of Error—Speedy Trial

        {¶47} Clark contends that his suppression motion was pending for four

times the time that is expected under Sup.R. 40(A)(3),9 making the delay

unreasonable and entitling him to dismissal for a violation of his right to a speedy

trial. See State v. O’Brien, 34 Ohio St.3d 7, 8, 516 N.E.2d 218 (1987), quoting

State v. Ladd, 56 Ohio St.2d 197, 199, 383 N.E.2d 579, 581 (1978) (“The Sixth

and Fourteenth Amendments to the United States Constitution guarantee a

criminal defendant the right to a speedy trial by the state. This same right is

assured an accused party by Section 10, Article 1 of the Ohio Constitution.”).

Clark urges us to apply a balancing test established by the United States Supreme

8
  We do not determine whether the exclusion of evidence is necessary herein, or if a good faith exception
applies in this case.
9
  Sup.R. 40(A)(3) states that “[a]ll motions shall be ruled upon within one hundred twenty days from the
date the motion was filed, except as otherwise noted on the report forms.”

                                                 - 33 -
Case No. 5-13-34



Court and adopted by the Ohio Supreme Court to determine whether the right to a

speedy trial has been violated:

       The [United States Supreme Court] identified four factors which
       courts should assess in determining whether the right to a speedy
       trial has been violated: (1) the length of the delay; (2) the reason for
       the delay; (3) the defendant’s assertion of his right; and (4) prejudice
       to the defendant. Although the court stated that no one factor is
       controlling, it noted that the length of the delay is a particularly
       important factor:

       “The length of delay is to some extent a triggering mechanism. Until
       there is some delay which is presumptively prejudicial, there is no
       necessity for inquiry into the other factors that go into the balance.”

State v. Selvage, 80 Ohio St.3d 465, 467, 687 N.E.2d 433 (1997), quoting Barker

v. Wingo, 407 U.S. 514, 530-531, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

       {¶48} We need not apply the balancing test, however, because “the accused

may waive his constitutional right to a speedy trial, provided such waiver is

knowingly and voluntarily made.” O’Brien, 34 Ohio St.3d at 9.

       Following an express written waiver of unlimited duration by an
       accused of his speedy trial rights the accused is not entitled to a
       discharge for delay in bringing him to trial unless the accused files a
       formal written objection to any further continuances and makes a
       demand for trial, following which the state must bring him to trial
       within a reasonable time.

Id. at paragraph two of the syllabus.




                                        - 34 -
Case No. 5-13-34



        {¶49} As the trial court found, “defense counsel signed a waiver of speedy

time limits without limitation,”10 and “at no time has the defendant filed ‘a formal

written objection to any further continuances and a demand for trial.’ ” (R. at 30,

quoting O’Brien.)          These findings are supported by the record and are not

challenged by Clark in this appeal. Therefore, Clark is not entitled to a discharge

for delay in bringing him to trial and the trial court did not err in denying his

motion to dismiss for alleged speedy trial violations.

        {¶50} We further note that the trial court went to great lengths to examine

the chronology of this litigation, outlining every appearance and filing by either

party. The trial court counted “the days of delay chargeable to either side” as it

was required to do under State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478,

853 N.E.2d 283, ¶ 8, and determined that the case was tried within applicable time

limits. Clark does not challenge the trial court’s factual findings and calculations

of the days of delay chargeable to either side. He argues that simply because

almost two years had passed between his charge and his conviction, and the

10
  The O’Brien court acknowledged that defendant’s right to a speedy trial may be waived by his or her
counsel.

        Similarly, an accused, or his counsel, may validly waive the speedy trial provisions of
        R.C. 2945.71 et seq. It follows, then, that a knowing, voluntary, express written waiver of
        an accused’s statutory speedy trial rights may equate with a waiver of the coextensive
        constitutional rights, at least for the time period provided in the statute.

(Citations omitted.) O’Brien, 34 Ohio St.3d at 9; see also State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-
7017, 781 N.E.2d 72, ¶ 33; State v. McRae, 55 Ohio St.2d 149, 152, 378 N.E.2d 476 (1978) (“We therefore
find the [State v. McBreen, 54 Ohio St.2d 315, 376 N.E.2d 593 (1978)] holding to control the instant cause
and that appellant is bound by his attorney’s waiver of his constitutional right to a speedy trial.”).

                                                  - 35 -
Case No. 5-13-34



suppression motion was pending for four times the allowed amount, his speedy

trial rights have been violated.

       {¶51} Clark particularly relies on the fact that his motion was pending for

nearly sixteen months. But he conveniently ignores the filings, hearings, and

conferences that occurred in the meantime. The record shows that the trial court

denied his motion in part on May 11, 2012. Thus, the trial court’s initial ruling on

the motion to suppress was “within the time parameters imposed by

Superintendence Rule 40 A3.” (R. at 30.) On May 14, 2012, Clark filed a motion

to reconsider; on May 15, 2012, both parties “requested additional time to respond

to the issue” (R. at 15); on May 22, 2012, Clark filed a supplemental

memorandum; on July 23, 2012, the State requested a continuance with no

objections from Clark and the delay not charged against the State. On the next

scheduled date, October 3, 2012, the issue of the suppression was deemed heard

and submitted; yet, on January 28, 2013, Clark filed another supplemental

memorandum regarding his motion to suppress. Thus, Clark’s assertion that there

was a delay that lasted sixteen months is incorrect, as contradicted by the record

and by the trial court’s factual findings.       Nevertheless, even if Clark were

successful in establishing that some delay occurred in his case, the waiver of

speedy time limits without limitation was effective to preclude granting of the

motion to dismiss for speedy trial violations.

                                        - 36 -
Case No. 5-13-34



       {¶52} Clark’s filing of a motion to dismiss for speedy trial violations on

August 6, 2013, revoked his prior waiver. See Toledo v. Sauger, 179 Ohio App.3d

285, 2008-Ohio-5810, 901 N.E.2d 826, ¶ 19 (6th Dist.). The trial court denied the

motion on September 5, 2013, and he was brought to trial on September 24, 2013.

       {¶53} For the above reasons, we do not find that Clark’s right to a speedy

trial was violated. The third assignment of error is overruled.

                                    Conclusion

       {¶54} Having reviewed the arguments, the briefs, and the record in this

case, we find error prejudicial to Appellant in the particulars assigned and argued.

The judgment of the Findlay Municipal Court in Hancock County, Ohio is

therefore reversed in part and affirmed in part, and we remand this matter for

further proceedings consistent with this opinion.

                                                       Judgment Reversed in Part,
                                                            Affirmed in Part and
                                                                Cause Remanded
ROGERS, J., concurs.

/jlr



SHAW, J., dissents.

       {¶55} While I concur with the judgment of the majority that neither the

appellant’s arguments nor the cases analyzed are sufficient to demonstrate that the


                                       - 37 -
Case No. 5-13-34



statute at issue is unconstitutional, I dissent from the majority’s opinion because I

do not agree with their conclusion that the exclusionary rule might apply in this

instance without regard to the constitutionality of the statute.

       {¶56} The exclusionary rule was created as a judicial remedy for

governmental violations of the Fourth Amendment. Illinois v. Krull, 480 U.S.

340, 347, 107 S.Ct. 1160 (1987) citing Weeks v. United States, 232 U.S. 383, 34

S.Ct. 341 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961). The “prime

purpose” of the exclusionary rule is to deter unlawful police conduct. United

States v. Calandra, 414 U.S. 338, 94 S.Ct. 613 (1974). “[T]he [United States]

Supreme Court has held suppression is not an available remedy when police

officers conducted a search in good faith reliance on some higher authority, such

as a warrant or a statute, even if the warrant or statute were later held invalid or

unconstitutional (the ‘good faith exception’).” (Emphasis added.) United States v.

Gonzalez, 598 F.3d 1095 (9th Cir.2010), citing Illinois v. Krull, 480 U.S. 340, 347,

107 S.Ct. 1160 (1987).

       {¶57} In Illinois v. Krull, the United States Supreme Court held that the

exclusionary rule does not apply where an officer is acting in a good-faith reliance

on the validity of a law, and that is exactly what happened in this case. Krull, 480

U.S. at 349. The police utilized a statute that this court has unanimously found is

not unconstitutional and there is no indication that the officer did not comply with

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the statute in obtaining the evidence at issue. It is both contrary to law and an

abuse of judicial discretion for this court to remand this case to the trial court with

instructions to consider application of the exclusionary rule in this circumstance.

Accordingly, I would overrule the appellant’s assignments of error and I would

affirm the judgment of the trial court.




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