[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                      :
                                                  :

                                             ...........

                                             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.
                                                                                          -2-


       {¶ 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
                                                                                           -3-


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
                                                                                         -4-

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.
                                                                                        -5-


       {¶ 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
                                                                                              -6-

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
                                                                                              -7-


       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
                                                                                          -8-


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
                                                                                          -9-


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).
                                                                                         -10-

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
                                                                                       -11-


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.
                                                                                          -12-


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
                                                                                          -13-


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
                                                                                           -14-

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.
                                                                                       -15-


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
                                                                                        -16-


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
                                                                                        -17-


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
                                                                                          -18-


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.



                                      .............



DONOVAN, J. and HALL, J., concur.




Copies sent to:

Mathias H. Heck, Jr.
Heather N. Jans
Susan F. Souther
Hon. Richard Skelton
