Submitted by Co-Authors Robert G. Walton and Gretchen Ebner
The Relevant Evidentiary Statutes
R.C. 4511.19(D)(1)(a) provides, in part, that in a criminal prosecution for a violation of R.C. 4511.19(A)(1)(a) or its equivalent (impaired driving) the result of any test of any blood withdrawn and analyzed by a health care provider may be admitted with expert testimony to be considered with any other relevant and competent evidence in determining the guilt or innocence of the defendant. This is known as a test administered for medical purposes.
R.C. 4511.19(D)(1)(b) provides, in pertinent part, that in a criminal prosecution for a violation of R.C. 4511.19(A) or (B) or their equivalent (impaired driving or per se offense), a court may admit evidence of the concentration of alcohol in the defendant’s blood or other bodily substance at the time of the alleged violation, as shown by chemical analysis of the substance withdrawn within three hours of the alleged violation. The court may admit the evidence when a person submits to a blood or other bodily substance test at the request of a law enforcement officer under 4511.191 (implied consent), if the person gives actual consent to the officer, or the sample is obtained pursuant to a search warrant. The bodily substance withdrawn under this subsection must be analyzed in accordance with methods approved by the ODH by a person possessing a valid permit issued by the Director of Health. This is known as a test administered at the request of law enforcement for forensic purposes.
The language of the above-referenced subsections is clear and unambiguous and the provisions of each must be read in pari materia. Applying those principles, legal scholars have had no difficulty understanding the differences between the subsections and applying the relevant law to the facts.
- (D)(1)(a) applies only to blood drawn and analyzed at a health care provider for medical reasons; if law enforcement properly obtains the result of the blood-alcohol test from the provider it may only be admitted into evidence to prove an impaired driving charge and must be accompanied by expert testimony to explain the relationship between the result and the defendant’s alleged impairment; the result of the test cannot form the basis for a per se charge, and substantial compliance with the ODH’s alcohol testing regulations is not a predicate to the admissibility of a medical blood-alcohol test result.
- (D)(1)(b) applies to blood (and other bodily substances) drawn and analyzed at the request of law enforcement and obtained by implied consent, actual consent or pursuant to a search warrant; the test result may be admitted to prove an impaired driving and/or a per se charge if the sample is obtained within three hours of the alleged violation, it is obtained by a person with the required qualifications, and it is analyzed in substantial compliance with the ODH alcohol testing regulations; and, absent a showing of substantial compliance the test result is inadmissible for any purposes.
Obtaining Patient Medical Records Containing The Result Of A Medical Blood-Alcohol Test From A Hospital.
Often when a person is in an accident and injured he/she is taken to a hospital for medical treatment. Typically, the hospital will draw and analyze a sample of the person’s blood as part of the treatment. One of the things the blood is tested for is its concentration of ethyl alcohol. In some cases the police are not involved at the relevant time but later come to believe that the person was under the influence of alcohol at the time of the accident. In other cases, the police are involved shortly after the accident but are unsuccessful in obtaining a sample of the person’s blood. In the latter instance, the lack of success may be due to the person’s refusal to consent to giving a sample, the hospital’s refusal to take a sample for non-medical purposes, and/or a lack of a search warrant to obtain a sample.
R.C. 2317.02 contains the physician-patient privilege. It is important to note that it is a trial privilege that states a physician shall not testify in certain respects concerning a communication made to a physician by a patient.  R.C. 2317.02(B)(2)(a) states the following:
“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 . . . in the person’s whole blood . . . at any time relevant to the criminal offense in question, and that conforms to Section 2317.022 of the Revised Code, the provider, except to the extent specifically prohibited by any law of this state or of the United States, shall supply to the officer a copy of any of the requested records the provider possesses . . .” (Emphasis added)
Law enforcement has relied on the aforementioned statute to obtain copies of any records a hospital has pertaining to the results of a blood test administered to a person for diagnostic reasons to determine the presence or concentration of alcohol in the person’s blood. 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. State v. Little, 2014-Ohio-4871. A person has a protected expectation of privacy in his medical records. Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281 (2001). The statutory scheme for obtaining the subject records is inapplicable to the extent prohibited by any law of the United States. A person has a reasonable expectation of privacy in his medical records, and the Fourth Amendment provision against unreasonable searches applies to medical records.
In conclusion, in Ohio an OVI suspect has a reasonable expectation of privacy in his medical records that pertain to the results of any test to determine the presence or concentration of alcohol in the person’s blood at any time relevant to an alleged criminal offense. It follows that, prior to obtaining such medical records, a law enforcement officer must comply with the warrant requirement of the Fourth Amendment. Little, supra.,; State v. Clark, 2014-Ohio-4873; and, State v. Saunders, 2017-Ohio-7348.
 “We find it necessary to re-emphasize the difference between the 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.” State v. Little, 2014-Ohio-4871.
 A special needs exception to the Fourth Amendment is applicable if a person’s privacy right to his medical records is lessened because a hospital has an ethical and legal duty to independently report evidence of a crime. That is not the case under R.C. 2317.02, as that statute requires a hospital to respond to a law enforcement request to provide records containing such evidence.