A Case Of Deputy Dawg Using The Easy Route To Obtain Medical Records Without A Search Warrant: How One Appellate Court Said No-No To The Po-Po For Not Getting A Search Warrant

Growing up, I remember catching some of the older cartoons on the boob tube on Sunday mornings.  Don’t get me wrong, they were no Teenage Mutant Ninja Turtles, but still funny.  One particular character from the old cartoons came to mind when I read State v. Hepler, 2016-Ohio-2662.  And that character is none other than Deputy Dawg.

For those who can’t remember or don’t know, Deputy Dawg was a lazy sheriff deputy that just wanted to take naps and avoid work as much as possible.  He would bumble around with his friends Muskie and Vince to solve the case.  In the end, Deputy Dawg would proudly state, in his country bumpkin twang, “I always get my man.”  Unfortunately for one Deputy Swoap, his man got away.

In Hepler, Hepler had a few too many adult beverages before getting into his car to presumably drive home.  One his way home, Hepler caused a single vehicle accident in the rural part of Wood County.  Deputy Swoap was dispatched to the accident to investigate and assist with any injuries.  Upon arrival, Deputy Swoap asked Hepler if he had been drinking and if he needed any medical assistance.  Hepler answered in the affirmative to the former and in the negative to the latter.  Even though Hepler refused medical treatment, Deputy Swoap allowed the paramedics to take Hepler to St. Luke’s Hospital in Lucas County.

Back at the station, Deputy Swoap sent via fax a Statement Requesting The Release Of Records Pursuant to O.R.C. 2317.02 (B)(2) to the hospital Hepler was being treated.  Said fax was sent at 6:01 a.m.

The form stated the following:

I hereby state that an official criminal investigation has begun regarding Hepler and that I believe that one or more tests has been administered to him by this health care provider to determine the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in his blood, 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 Revised Code, the health care provider supple 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, or alcohol and a drug of abuse in his blood, breath, or urine at any time relevant to the criminal offense in question.

A couple days later, the hospital faxed a copy of a Lab Order Detail report to Deputy Swoap. The report contained urine results for a drug test and a blood results for alcohol.  The urine test report stated that Hepler’s urine was collected on 8/10/2014, it stated no time for collection, it was positive for drugs, and it was collected for “medical purposes only.”

The blood test report stated that Hepler’s blood was collected on 8/10/2014, the collection time was at 6:25 a.m., Hepler’s blood alcohol level (BAC) of .16, and no notation for the purpose of the BAC test.  So unlike the urine test, Hepler’s blood test was not taken for “medical purposes only.”

Hepler was subsequently cited for OVI and various other criminal offenses.  Hepler moved the trial court to suppress the blood results based on a warrantless search and seizure of his medical records without exigent circumstances.  Hepler’s motion to suppress was overruled and Hepler appealed.

On appeal, Hepler argued that patients have a reasonable expectation of privacy in medical records and when under investigation for a crime, “should not be placed in the position where they must decide whether to receive appropriate medical care, which would require diagnostic testing, or refuse medical care due to fear that the government will obtain the results of the diagnostic testing.”

In response, the state asserts that “obtaining a search warrant can sometimes be more difficult than simply filling out an affidavit and presenting it to a judge.  Crossing jurisdictional lines can create havoc for an officer.  In this case the accident which led to the OVI investigation took place in Wood County but the hospital is in Lucas County.  Obtaining a search warrant is that much more difficult for a Wood County Sheriff to find a judge in Lucas County.  Although the difficulty in getting a search warrant is not of great concern when constitutional rights are at stake, such hurdles are unnecessary and do not serve the public good when a search warrant should not be required.”

Oh boo frickin hoo!  I hate it when the U.S. Constitution gets in the way of making life easier for cops!

Moving on, the appellate court starts their analysis by stating that an invasion of bodily integrity such as a compelled physical intrusion beneath an individual’s skin to obtain a sample of blood for use in a criminal investigation implicates an individual’s “most personal and deep-rooted expectations of privacy.”  Missouri v. McNeely, 569 U.S. ____ (2013).

The court then goes into some statutory analysis that I will skip because it is really boring and you would not care anyway.

The court eventually ends up finding that there was no evidence in the record to support that the blood-alcohol test was performed for medical purposes.  The court felt that the evidence suggested that the blood-alcohol test was done in response to law enforcement’s R.C. 2317.02 request sans warrant or a recognized exception to the warrant requirement.

Looking at the facts, Deputy Swoap faxed his request to the hospital at 6:01 a.m.  A specimen for the blood-draw test was collected 24 minutes after the request was made.  And unlike the urine test report, there was no indication on the blood report that the blood-alcohol test was done for medical purposes.

So why not just get a damn warrant Deputy Swoap?!?  Take a look at the following excerpt from Deputy Swoap’s testimony about steps taken after leaving the scene.

Q:        So what did you do then?

A:        Went back to the office and I called St. Luke’s Hospital, requested – to see who I could send the paperwork to hold the blood results.

Q:        And did you do that?

A:        I did.  I sent a request for medical release by Fax.

Q:        And what was your understanding what you would do in filing out this form?

A:        I would fill it out, I would fax it to the hospital, and they would release the toxicology results.

Q:        Now, you filled out that form, let me ask you this.  Why didn’t you choose to get a search warrant to ask for a blood draw?

A:        My understanding that the form has sufficed to get the blood draw before, I didn’t – Lucas County is not in my jurisdiction.  I am not going to attempt to track down a Judge for a search warrant in Lucas County.  And this has worked in the past so I went with the standard practice.

That last answer I read in Deputy Dawg’s country bumpkin twang.  Talk about saying to hell with it and not going the extra mile to get a damn warrant as required by the U.S. Constitution.

With that testimony, the appellate court held that “in no circumstances is an R.C. 2317.02 request a substitute for a warrant for a blood draw test nor is it a recognized exception to the warrant requirement.”  As a final note, the court stated “the trial court put the cart before the horse when it examined Hepler’s expectation of privacy in medical records without first finding that the blood-alcohol test was, in fact, performed for medical purposes.”

As another famous television police character Detective Sgt. Joe Friday use to say, “just the facts ma’am.”  And that is what saved the day for Hepler…the facts.  Something as basic as looking at the time of the blood draw and whether or not the doctor slapped a label that stated “for medical purposes only.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s