OH3: There is a reasonable expectation of privacy in medical records; SW required

There is a reasonable expectation of privacy in medical records under Ferguson supported by McNeely. While statute may waive doctor-patient privilege, it does not waive the reasonable expectation of privacy. State v. Little, 2014-Ohio-4871, 2014 Ohio App. LEXIS 4743 (3d Dist. November 3, 2014) [accord: State v. Clark, 2014-Ohio-4873, 2014 Ohio App. LEXIS 4741 (3d Cir. November 3, 2014)]:

[*P32] Neither the Ohio Supreme Court nor the United States Supreme Court have thus far held that an OVI suspect does not enjoy a reasonable 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.).

[*P33] 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 mandate that the exigencies of the situation made [the search] imperative”).

Id. at 1561.

[*P34] 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 warrant requirement in a context where significant privacy interests are at stake.”

Id. at 1564.

[*P35] 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 drunk drivers pose on Ohio roads and the important interest of preventing drunk 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.

[*P36] 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 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.

[*P37] In City of Cleveland v. Rollins, 8th Dist. Cuyahoga No. 79614, 2002-Ohio-1087, 2002 WL 490040, 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. 2002-Ohio-1087, 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. 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.

[*P38] 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.

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