[Cite as State v. Craciun, 2018-Ohio-5185.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellant, : 

 CASE NOS. 2017-T-0092

 - vs - : 2017-T-0093 

 2017-T-0094 

NICHOLAS A. CRACIUN, : 2017-T-0095 

 Defendant-Appellee. : 

Criminal Appeals from the Trumbull County Court, Central District, Case Nos. 2016 CRA 

00519, 2016 CRB 00520 A, 2016 CRB 00520 C, and 2016 CRB 00520 D. 

Judgment: Reversed and remanded. 

Dennis Watkins, Trumbull County Prosecutor, and Deena L. DeVico, Assistant 

Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 

44481-1092 (For Plaintiff-Appellant). 

Marty Nosich, The Law Offices of Marty D. Nosich, L.L.C., 143 West Main Street, 

Cortland, OH 44410 (For Defendant-Appellee). 

TIMOTHY P. CANNON, J. 

{¶1} Appellant, the state of Ohio, appeals from the August 30, 2017 judgment of 

the Trumbull County Court, Central District, which granted in part the motion to dismiss 

of appellee, Nicholas A. Craciun, on the basis of qualified statutory immunity. The 

judgment is reversed, and the matter is remanded for further proceedings. 

{¶2} On October 23, 2016, appellee’s young daughter attempted to wake him 

but was unable to do so; 9-1-1 was called for assistance. The call was dispatched to the 
 2

Cortland Police Department as a possible overdose. The police responded to appellee’s 

apartment and encountered him conscious but disoriented. 

{¶3} The following day, appellee was charged with five offenses: (1) aggravated 

possession of drugs (Schedule II - Oxycodone), a felony of the fifth degree, in violation of 

R.C. 2925.11(C)(1); (2) possession of drugs (Schedule IV – Alprazolam), a misdemeanor 

of the third degree, in violation of R.C. 2925.11(C)(2); (3) possession of marijuana, a 

minor misdemeanor, in violation of R.C. 2925.11(C)(3)(a); (4) possession of drug 

paraphernalia, a minor misdemeanor, in violation of R.C. 2925.141; and (5) endangering 

children, a misdemeanor of the first degree, in violation of R.C. 2919.22(A). 

{¶4} Appellee entered a plea of not guilty.1 With consent of the parties, a 

preliminary hearing was continued for 30 days, but the hearing was never held. 

{¶5} On December 12, 2016, appellee, through counsel, filed a motion to dismiss 

based upon the immunity from minor drug possession offenses afforded to a qualified 

individual under R.C. 2925.11(B)(2)(b), which provides: 

(b) 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 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 

 

1. We note that appellant could not have been called upon to plead as to the felony charge at his initial 

appearance. See Crim.R. 5(A) (“In felony cases the defendant shall not be called upon to plead either at 

the initial appearance or at a preliminary hearing.”). 
 3

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. 

{¶6} A “qualified individual” is defined, in relevant part, as “a person who is not 

on community control or post-release control and is * * * a person who is the subject of 

another person seeking or obtaining medical assistance for that overdose as described 

in division (B)(2)(b) of this section.” R.C. 2925.11(B)(2)(a)(viii). 

{¶7} A “minor drug possession offense” is defined as “a violation of this section 

that is a misdemeanor or a felony of the fifth degree.” R.C. 2925.11(B)(2)(a)(iv). 

{¶8} To “seek or obtain medical assistance” “includes, but is not limited to making 

a 9-1-1 call, contacting in person or by telephone call an on-duty peace officer, or 

transporting or presenting a person to a health care facility.” R.C. 2925.11(B)(2)(a)(ix). 

{¶9} In his motion to dismiss, appellee asserted he met the requirements of the 

statute because he was not on community control or post-release control; he was the 

subject of another person seeking medical assistance for an overdose; he was charged 

with only minor drug possession offenses; the controlled substances were discovered as 

a result of the 9-1-1 call seeking medical assistance; and he provided documentation to 

the prosecutor that he has been evaluated and sought treatment from an addiction 

counselor. 

{¶10} The state filed a response in opposition that same date. The state asserted 

the motion should be denied because appellee did not experience an overdose and 
 4

medical assistance was denied by appellee at the scene. The state also denied receiving 

any information that appellee had sought or obtained a screening and a referral for 

treatment from an addiction counselor. 

{¶11} On August 30, 2017, the county court granted appellee’s motion, in part, 

without holding an evidentiary hearing. The county court found that the immunity statute 

applies to the drug offenses at issue even though appellee did not actually experience an 

overdose, but the entry did not include a finding that appellee was a qualified individual 

under the statute. The county court dismissed all four of the drug charges, including the 

felony; only the charge of endangering children remained. The county court’s entry, in its 

entirety, provides as follows: 

This matter came on before the Court upon the Defendant’s Motion 

to Dismiss and the State’s Motion in Opposition. The court 

apologizes for the inordinate delay in issue [sic] this decision. That 

delay was, in part, the result [sic] new legislation in question therein 

as well as the dearth of case law and appellate level decision 

regarding that new legislation. 

The issue is whether Ohio Revised Code, Section 2925.11 prohibits 

the arrest and prosecution of the charges here, under the qualified 

immunity section of that statute as set forth in subsection (B)(2)[b]. 

It seems undeniable that the 911 calls made here were based upon 

concern for Defendant’s physical condition, and possible overdose; 

and, but for those calls, there would have been no reason for the 

authorities to discover Defendant’s possession of the drugs in 

question. This appears to fall squarely within the clear meaning of 

the statute providing immunity from prosecution. 

However, the state argues that the fact that the Defendant did not, in 

fact, overdose takes this matter outside the immunity statute. The 

court disagrees for the reasons stated in Defendant’s Motion. 

Because the call for assistance was prompted by a layman’s 

reasonable concern of possible overdose, the court believes the 

statute applies. To do otherwise would clearly negate the clear 

purpose of the statute, to encourage calls for help and prevent the 

loss of life. 
 5

Therefore, as to Case Numbers 2016 CRA 0519, 2016 CRB 0520 A, 

C & D [the four charges involving drugs or drug paraphernalia], the 

immunity statute applies, and those cases are ordered dismissed. 

However, the state is correct that the immunity statute has no 

application to the remaining criminal charge at 2015 CRB 0520 B 

[endangering children], and there is no prohibition against the state 

proceeding in that case. 

Therefore, the Clerk is ordered to schedule a pretrial conference for 

Case No. 2016 CRB 0520 B. 

 

{¶12} The state filed a timely appeal from this entry and raises the following three 

assignments of error: 

[1.] The court erred when it dismissed four criminal charges. 

[2.] The court abused its discretion when it dismissed charges even 

though the defendant was not subject to the qualified immunity 

exception to those charges. 

[3.] The court erred when it dismissed the charges against Appellee 

because a county court does not have jurisdiction to dismiss felony 

charges and accompanying misdemeanor charges. 

{¶13} In its first assignment of error, the state argues the county court erred in 

granting the motion to dismiss without having held a hearing and without having evidence 

upon which to base that ruling. In its second assignment of error, the state contends the 

county court erred in determining appellee is qualified for statutory immunity based on the 

lack of evidence. 

{¶14} We need only consider the state’s third assignment of error, however, as it 

is dispositive of the appeal. The state alleges the county court erred in dismissing the 

drug charges because it did not have jurisdiction to grant the motion to dismiss the felony 

charge and accompanying misdemeanor charges. 
 6

{¶15} “A county court has jurisdiction to conduct preliminary hearings in felony 

cases, to bind over alleged felons to the court of common pleas, and to take other action 

in felony cases as authorized by Criminal Rule 5.” R.C. 1907.02(A)(1). Criminal Rule 5 

provides for the procedure upon a defendant’s initial appearance and the procedure for 

preliminary hearings held in felony cases. 

{¶16} “In felony cases a defendant is entitled to a preliminary hearing unless 

waived in writing.” Crim.R. 5(B)(1). “At the preliminary hearing the prosecuting attorney 

may state orally the case for the state, and shall then proceed to examine witnesses and 

introduce exhibits for the state. The defendant and the judge or magistrate have full right 

of cross-examination, and the defendant has the right of inspection of exhibits prior to 

their introduction.” Crim.R. 5(B)(2). “At the conclusion of the presentation of the state’s 

case, defendant may move for discharge for failure of proof, and may offer evidence on 

the defendant’s own behalf.” Crim.R. 5(B)(3). 

{¶17} “Upon conclusion of all the evidence and the statement, if any, of the 

accused, the court shall do one of the following: 

(a) Find that there is probable cause to believe the crime alleged or 

another felony has been committed and that the defendant 

committed it, and bind the defendant over to the court of common 

pleas of the county or any other county in which venue appears. 

(b) Find that there is probable cause to believe that a misdemeanor 

was committed and that the defendant committed it, and retain the 

case for trial or order the defendant to appear for trial before an 

appropriate court. 

(c) Order the accused discharged. 

(d) Except upon good cause shown, any misdemeanor, other than a 

minor misdemeanor, arising from the same act or transaction 

involving a felony shall be bound over or transferred with the felony 

case. 
 7

Crim.R. 5(B)(4). 

{¶18} In support of its position on appeal, the state relies on State v. Padgett, 7th 

Dist. Mahoning No. 97 CA 180, 1999 WL 1124759 (Nov. 23, 1999). The procedural 

posture in Padgett is strikingly similar to that of the case sub judice. The defendant was 

arrested for failure to register as a sex offender, a felony charge due to his prior conviction 

for a sexually related felony offense. Id. at *1. Upon his initial appearance in the municipal 

court, a preliminary hearing was scheduled to determine whether the defendant should 

be bound over to the common pleas court. Id. Prior to the preliminary hearing, the 

defendant filed a motion to dismiss on the basis that the law he was accused of violating 

was unconstitutional. Id. The municipal court granted the motion to dismiss before a 

preliminary hearing was ever held. Id. The state of Ohio appealed the decision, arguing 

the municipal court lacked subject matter jurisdiction to grant the motion to dismiss the 

felony charge. Id. 

{¶19} We agree with the state that Padgett is the most instructive case on this 

matter. The trial court in Padgett was a municipal court; the trial court here is a county 

court. Municipal courts are granted very limited power over felony cases. R.C. 

1901.20(B) provides: 

The municipal court has jurisdiction to hear felony cases committed 

within its territory. In all felony cases, the court may conduct 

preliminary hearings and other necessary hearings prior to the 

indictment of the defendant or prior to the court’s finding that there is 

probable and reasonable cause to hold or recognize the defendant 

to appear before a court of common pleas and may discharge, 

recognize, or commit the defendant. 

County courts are granted even more limited power over felony cases: “A county court 

has jurisdiction to conduct preliminary hearings in felony cases, to bind over alleged 
 8

felons to the court of common pleas, and to take other action in felony cases as authorized 

by Criminal Rule 5.” R.C. 1907.02(A)(1). For purposes of the issue before us, the 

analysis provided by the Padgett Court applies equally to municipal and county courts. 

{¶20} The Padgett Court explained that although R.C. 1901.20(B) and Crim.R. 5 

recognize that an accused may be discharged by a municipal court, they both limit the 

court to a “probable cause” determination. Padgett, supra, at *2. “Both allow the 

municipal court to review in a preliminary hearing certain facts and allegations with an 

eye toward determining whether there is probable cause to believe the accused 

committed a crime (either a felony or a misdemeanor) or did not commit a crime.” Id. The 

Padgett Court stated that the statute and rule are silent as to whether the municipal court 

may pass upon the constitutionality of a criminal law and discharge an accused if it finds 

the relevant law is unconstitutional. Id. Similarly here, the statute and rule are silent as 

to whether a county court may determine whether the statutory requirements for immunity 

have been met and order the accused discharged. 

{¶21} The Court in Padgett reiterated that the municipal court’s jurisdiction in a 

preliminary hearing to determine bindover does not include the power or ability to 

determine guilt or innocence. Id. at *3, citing State v. Nelson, 51 Ohio App.2d 31, 36 (8th 

Dist.1977). It then relied on an Ohio Supreme Court case in holding that, just as a motion 

to suppress may not be heard by a municipal court, by extension, a motion to dismiss 

may also not be heard. 

In Mitchell, the accused was found in possession of a bag of heroin 

upon her arrest for disorderly conduct and assault and battery upon 

a police officer. She was then charged with a felony. Upon 

preliminary hearing, counsel moved to suppress the evidence. The 

municipal court granted the motion and then found that there was no 

basis for the felony charge and dismissed it. The municipal court’s 
 9

actions were upheld on appeal, but reversed by the Supreme Court. 

The Court looked at Crim.R. 12(B)(3) which allows an accused to 

raise any defense, evidentiary matter, objection, etc. which are, 

‘capable of determination without the trial of general issue’ to be 

raised prior to trial by motion. Rule 12 then sets out certain issues 

which must be raised before trial, among them, motions to suppress 

and motions based on defects in the complaint or indictment. The 

Court then reviewed Crim.R. 12(C), which states, ‘all pretrial motions 

except as provided in Rule 7(E) and 16(F) [not applicable to either 

matter] shall be made within thirty-five days after arraignment or 

seven days before trial, whichever is earlier. The court in the interest 

of justice may extend the time for making pretrial motions.’ 

Id., citing State v. Mitchell, 42 Ohio St.2d 447 (1975). 

{¶22} The Supreme Court then stated: “In clear and explicit terms, the foregoing 

provisions require a motion to suppress to be made, not at a preliminary hearing, but after 

arraignment and before trial.” Mitchell, supra, at 448. The Court explained that when 

Ohio first began to require magistrates to conduct preliminary hearings, rather than 

laypersons, “though justifying a more expert appraisal of the evidentiary basis upon which 

the determination of probable cause is made, [it] did not require exhaustive inquiry into 

the factual background of arrests, searches, seizures, confessions or identifications, with 

a view to exposing the prosecutor’s total case and determining with finality the 

constitutional validity of its component parts.” Id. at 450 (emphasis added). The Supreme 

Court expounded that “[t]his is because the defendant, after the preliminary hearing is 

concluded, is entitled at best to a discharge from arrest, which discharge under Crim.R. 

5(B) is not a bar to further prosecution.” Id. at 451. 

{¶23} Applying Mitchell, the Padgett Court stated, “[w]hile cognizant that Mitchell

was directed at motions to suppress, we agree with Appellant that the same logic holds 

true for motions to dismiss based on the constitutionality of a criminal law.” Padgett, 
 10

supra, at *4. Likewise here, we agree with the state that the same logic applies for 

motions to dismiss based on statutory immunity under R.C. 2925.11(B)(2). 

{¶24} Just as in Padgett, the county court has issued a ruling here “which does 

more than merely discharge the accused for lack of probable cause that he committed 

this crime.” Id. The effect of the county court order is to bar later prosecution of appellant 

by the common pleas court. The common pleas court, however, is the court with proper 

jurisdiction to apply R.C. 2925.11(B)(2) to felony and accompanying misdemeanor 

charges. “A municipal [or county] court may not do more than merely discharge an 

accused for lack of probable cause to believe that the accused committed the crime 

charged at a preliminary hearing, and certainly may not do more prior to this hearing.” Id. 

Accordingly, the county court lacked jurisdiction to grant appellee’s motion to dismiss. 

{¶25} Appellant’s third assignment of error has merit. 

{¶26} Appellant’s first and second assignments of error are moot. 

{¶27} The judgment of the Trumbull County Court, Central District, is reversed, 

and this matter is remanded for further proceedings consistent with this opinion. 

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion. 

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion. 

____________________ 

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion. 

{¶28} I concur with the judgment that this matter must be reversed and remanded, 

as the trial court should not have dismissed the drug charges against Craciun. While I 
 11

agree with the writing judge’s conclusion that the lower court lacked jurisdiction under 

these particular circumstances, I write separately to address the remaining issues raised 

by appellant since it is evident the lower court’s actions in this matter were inconsistent 

with the proper handling of the discharge of a defendant. 

{¶29} When a municipal or county level court is considering discharging a 

defendant for any reason that is permissible, it is necessary to provide both parties with 

the opportunity to present evidence and for the court to fully consider said evidence. This 

would be the case in both probable cause hearings and in any instances where dismissal 

may be appropriate. 

{¶30} Here, the lower court ruled upon a motion to dismiss based on the grounds 

of immunity but made its decision without allowing the State to present its arguments and 

without having any documents in the record to prove certain facts required for immunity. 

For immunity to apply, it was necessary for Craciun to seek a screening and receive a 

referral for drug addiction and present documentation of that fact to the prosecutor. Since 

this documentation is not in the record, it is not evident whether such a screening ever 

occurred, or at least that it was properly proven to the court. It has been held that where 

there are claims in a motion to dismiss that would justify review, a court “abuses its 

discretion when it grants or denies the motion without a hearing.” State v. Dillon, 181 

Ohio App.3d 69, 2009-Ohio-530, 907 N.E.2d 1226, ¶ 17 (2d Dist.). Again, while the trial 

court improperly determined it had jurisdiction to rule in this case, it must be clearly 

emphasized that lower courts must follow rules requiring hearings, presentation of 

evidence, or any other procedure that has been clearly explained and delineated by 

statute or the appellate courts. Further, had this been a motion to dismiss on a 
 12

misdemeanor offense over which the lower court had clear jurisdiction pursuant to R.C. 

1907.02, it would have been necessary to follow the same procedure. 

{¶31} It is incumbent upon the trial court, when weighing evidence before it and 

determining the appropriateness of discharge, to ensure that all elements of the pertinent 

offense or defense are met. Here, the trial court, in applying the qualified immunity test, 

did not require satisfaction of all prongs. The court did not indicate whether it had 

reviewed any evidence relating to the screening issue, nor did it make any factual findings 

as to this issue. It has been held that the failure to review the record when ruling on a 

motion to dismiss is improper. See State v. Large, 6th Dist. Ottawa No. OT-15-025, 2016-

Ohio-4900, ¶ 13 (where the trial court did not indicate it had reviewed the record in relation 

to a motion for speedy trial, it erred and the matter was remanded for a hearing). Further, 

as the State alleged, there was a lack of sufficient factual findings under Crim.R. 48(B), 

which requires a court dismissing an indictment or complaint over an objection to “state 

on the record its findings of fact and reasons for the dismissal.” While some findings were 

made, entire portions of the qualified immunity requirements were simply not addressed 

by the court in its entry. While the dismissal of felony offenses based on qualified 

immunity may not be permissible under the lower court’s jurisdiction, this analysis extends 

to other instances facing the court, including probable cause determinations as well as 

motions to dismiss in misdemeanor cases that are properly pending before a 

municipal/county level court. 

{¶32} For the reasons outlined above, and since reversal was necessitated by the 

lower court’s improper dismissal of the drug charges on multiple grounds, I concur in 

judgment only. 
 13

____________________ 

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion. 

{¶33} I respectfully dissent. 

{¶34} In its first assignment of error, the state argues the trial court erred in 

dismissing the four criminal drug charges under the Qualified Immunity Statute without 

holding a hearing or having evidence. 

{¶35} “An abuse of discretion standard is appropriate when reviewing a motion to 

dismiss.” State v. Wantz, 11th Dist. Geauga No. 2002-G-2482, 2003-Ohio-7203, *2. The 

term “abuse of discretion” is one of art, connoting judgment exercised by a court which 

neither comports with reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676-

678 (1925). An abuse of discretion may be found when the trial court “applies the wrong 

legal standard, misapplies the correct legal standard, or relies on clearly erroneous 

findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th 

Dist.) 

{¶36} Crim.R. 48, “Dismissal,” states: 

{¶37} “(B) Dismissal by the Court. If the court over objection of the state dismisses 

an indictment, information, or complaint, it shall state on the record its findings of fact and 

reasons for the dismissal.” 

{¶38} In State v. Busch, 76 Ohio St.3d 613, 615 (1996), the Ohio Supreme Court 

explained that Crim.R. 48(B) “does not limit the reasons for which a trial judge might 

dismiss a case, and we are convinced that a judge may dismiss a case pursuant to 

Crim.R. 48(B) if a dismissal serves the interests of justice.” 
 14

{¶39} In its August 30, 2017 judgment entry, the trial court specifically stated the 

following: 

{¶40} “This matter came on before the Court upon the Defendant’s Motion to 

Dismiss and the State’s Motion in Opposition. The court apologizes for the inordinate 

delay in issue this decision. That delay was, in part, the result new legislation in question 

therein as well as the dearth of case law and appellate level decision regarding that new 

legislation. 

{¶41} “The issue is whether Ohio Revised Code, Section 2925.11 prohibits the 

arrest and prosecution of the charges here, under the qualified immunity section of that 

statute as set forth in subsection (B)(2)(6). 

{¶42} “It seems undeniable that the 911 calls made here were based upon 

concern for Defendant’s physical condition, and possible overdose; and, but for those 

calls, there would have been no reason for the authorities to discover Defendant’s 

possession of the drugs in question. This appears to fall squarely within the clear 

meaning of the statute providing immunity from prosecution. 

{¶43} “However, the state argues that the fact that the Defendant did not, in fact, 

overdose takes this matter outside the immunity statute. The court disagrees for the 

reasons stated in Defendant’s Motion. Because the call for assistance was prompted by 

a layman’s reasonable concern of possible overdose, the court believes the statute 

applies. To do otherwise would clearly negate the clear purpose of the statute, to 

encourage calls for help and prevent the loss of life. 
 15

{¶44} “Therefore, as to Case Numbers 2016 CRA 0519, 2016 CRB 0520 A, C & 

D [the four charges involving drugs or drug paraphernalia], the immunity statute applies, 

and those cases are ordered dismissed. 

{¶45} “However, the state is correct that the immunity statute has no application 

to the remaining criminal charge at 2015 CRB 0520 B [endangering children], and there 

is no prohibition against the state proceeding in that case. * * *” 

{¶46} The state’s contention that the trial court erred in failing to hold a hearing is 

misplaced. Crim.R. 48(B) does not require the court to hold a hearing when it dismisses 

a case over the state’s objection. Rather, the rule only requires the court to state its 

findings of fact and reasons for the dismissal on the record. See State v. Carabello, 8th 

Dist. Cuyahoga Nos. 105021 and 105022, 2017-Ohio-4449, ¶11. “In the context of a 

Crim.R. 48(B) dismissal, it is sufficient for a trial court to state its reasons in a journal 

entry.” Id. at ¶12, citing State v. Bales, 9th Dist. Lorain No. 12CA010311, 2013-Ohio5780, ¶11. 

{¶47} Here, the trial court’s August 30, 2017 judgment entry sufficiently sets forth 

the court’s reasons for dismissing the four criminal drug charges. I find the court fulfilled 

its obligation and complied with Crim.R. 48(B). 

{¶48} This writer finds the state’s first assignment of error is without merit. 

{¶49} In its second assignment of error, the state contends the trial court abused 

its discretion in dismissing the four criminal drug charges because Mr. Craciun was not 

subject to the qualified immunity exception. Namely, the state argues that Mr. Craciun 

did not overdose and that Mr. Craciun presented no evidence showing he met all the 

necessary requirements listed in R.C. 2925.11(B)(2)(b). 
 16

{¶50} R.C. 2925.11(B)(2)(b), “Drug possession offenses,” provides: 

{¶51} “(b) 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: 

{¶52} “(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 medical assistance or 

experiencing an overdose and needing medical assistance. 

{¶53} “(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. 

{¶54} “(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.” 

{¶55} A “qualified individual” is defined in part as “a person who is not on 

community control or post-release control and * * * who is the subject of another person 

seeking or obtaining medical assistance for that overdose as described in division 

(B)(2)(b) of this section.” R.C. 2925.11(B)(2)(a)(viii). 
 17

{¶56} A “minor drug possession offense” is defined as “a violation of this section 

that is a misdemeanor or a felony of the fifth degree.” R.C. 2925.11(B)(2)(a)(iv). 

{¶57} To “seek or obtain medical assistance” “includes, but is not limited to making 

a 9-1-1 call, contacting in person or by telephone call an on-duty peace officer, or 

transporting or presenting a person to a health care facility.” R.C. 2925.11(B)(2)(a)(ix). 

{¶58} The record reveals that Mr. Craciun has met the statutory requirements for 

immunity. Mr. Craciun is a “qualified individual” because nothing in the record shows he 

is on community control or post-release control and he is the subject of another person 

seeking medical assistance for a suspected overdose. R.C. 2925.11(B)(2)(a)(viii) and 

(b)(i)-(iii). 

{¶59} The state asserts that because Mr. Craciun did not actually overdose, he is 

not entitled to the protections of the statute. Such a strict interpretation of the statute, 

however, places a layperson in a position of making an unqualified medical determination. 

{¶60} Our nation is experiencing an epidemic of drug overdoses and state 

immunity laws, particularly Ohio in this case, are helpful in encouraging people to call 911 

for assistance. A caller is to have a reasonable belief that someone may be experiencing 

an overdose emergency and is to report such emergency in good faith. See Drug 

Overdose Immunity and Good Samaritan Laws, National Conference of State 

Legislatures (June 5, 2017). 

{¶61} The Ohio legislature enacted the law at issue to encourage persons to 

obtain medical assistance for others, where such assistance may have been delayed or 

avoided altogether due to the possibility that the individual in need of assistance could 
 18

face possible criminal charges. The trial court’s judgment entry recognized that the “clear 

purpose of the statute [is to] encourage calls for help and prevent the loss of life.” 

{¶62} Additionally, the state asserts that nothing in the trial court’s judgment entry 

nor the evidence upon which the trial court made its determination shows that Mr. Craciun 

was a qualified individual under R.C. 2925.11(B)(2)(a)(viii). The state argues that neither 

Mr. Craciun, the police, nor the prosecuting attorney introduced Mr. Craciun’s criminal 

history to show that he was not on community control or post-release control. Thus, the 

court allegedly determined Mr. Craciun’s eligibility for qualified immunity without the 

requisite proof. However, Mr. Craciun’s motion to dismiss stated that he was not on 

community control or post-release control. The state’s motion in opposition did not 

contest this statement, despite the state’s access to police reports through open 

discovery. Crim.R. 16. 

{¶63} The state further argues that Mr. Craciun failed to submit evidence of his 

screening and drug treatment referral pursuant to R.C. 2925.11(B)(2)(b)(ii). However, the 

prosecuting attorney bears the burden of requesting documentation verifying the 

screening and referral. R.C. 2925.11(B)(2)(b)(iii); see State v. Larry E. Brown II, 4th Dist. 

Ross No. 17CA3603, 2018-Ohio-2267, ¶41 (“[W]e do not find the trial court’s conclusion 

that appellee satisfied the screening and treatment-referral requirements to be 

unreasonable or contrary to the plain language of the statute, especially when appellant 

never requested appellee to submit written documentation to verify the screening and 

treatment-referral requirements”). The state has not shown that the prosecuting attorney 

requested screening and referral documents from Mr. Craciun. Also, Mr. Craciun 

indicated in his motion to dismiss that he submitted documentation showing he went to 
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an addiction counselor for evaluation and treatment. This documentation was not in the 

court record, but was filed and time-stamped. 

{¶64} In addition, Mr. Craciun meets the qualifications for immunity from 

prosecution as he was charged with a fifth-degree felony, misdemeanors, and minor 

misdemeanors. R.C. 2925.11(B)(2)(a)(iv) and (b). Mr. Craciun’s possession of controlled 

substances was discovered by the state due to a layman’s phone call to 911 seeking 

medical assistance for a suspected overdose. R.C. 2925.11(B)(2)(a)(ix). 

{¶65} Based on the foregoing, as addressed, the trial court did not abuse its 

discretion in dismissing the four criminal drug charges based on the qualified immunity 

exception. 

{¶66} This writer finds the state’s second assignment of error is without merit. 

{¶67} In its third assignment of error, the state alleges the trial court erred in 

dismissing the four criminal drug charges because it did not have jurisdiction to dismiss 

a felony charge and accompanying misdemeanor and minor misdemeanor charges under 

Crim.R. 5(B)(4). 

{¶68} Crim.R. 5, “Initial appearance, preliminary hearing,” states in part: 

{¶69} “(B) Preliminary Hearing in Felony Cases; Procedure. 

{¶70} “* * * 

{¶71} “(4) Upon conclusion of all the evidence and the statement, if any, of the 

accused, the court shall do one of the following: 

{¶72} “* * * 

{¶73} “(c) Order the accused discharged.” 
 20

{¶74} It is the state’s position that the four criminal drug charges were improperly 

dismissed and that the trial court acted beyond its scope of power under Crim.R. 5(B). In 

support, the state relies on State v. Padgett, 7th Dist. Mahoning No. 97 CA 180, 1999 WL 

1124759 (Nov. 23, 1999), as “the most instructive case on this matter.” (State’s Brief p. 

9). I note that Padgett, a decision from our Sister court, is nearly 20 years old and has 

no citing references. 

{¶75} The state relies on Padgett for the proposition that a motion to dismiss is 

not properly heard in a municipal court when there is a felony charge involved and that a 

municipal court may not do more than merely discharge an accused for lack of probable 

cause to believe that the accused committed the crime charged. Id. at *1, 2, 4. The 

Padgett court stated that Crim.R. 5 recognizes “that in certain cases the accused may be 

discharged by a municipal court.” Id. at *2. The Padgett court went on to state the 

following: 

{¶76} “The municipal court has issued a ruling, here, which does more than 

merely discharge the accused for lack of probable cause that he committed this crime. 

The municipal court actually is attempting to bar later prosecution of this accused based 

on that court’s usurpation of jurisdiction to pass on the law’s constitutionality. A municipal 

court may not do more than merely discharge an accused for lack of probable cause to 

believe that the accused committed the crime charged at a preliminary hearing, and 

certainly may not do more prior to this hearing.” Id. at *4. 

{¶77} Padgett does not support a reversal in this case. In fact, contrary to the 

state’s position, Crim.R. 5(B)(4)(c) specifically permits the trial court to “[o]rder the 

accused discharged.” In addition, as addressed, Crim.R. 48(B) grants a trial court the 
 21

authority to dismiss criminal charges provided that it states its findings of fact and reasons 

for dismissal on the record, i.e., in a judgment entry. See Carabello, supra, at ¶11. Again, 

the trial court’s August 30, 2017 judgment entry sufficiently sets forth the court’s reasons 

for dismissing the four criminal drug cases. The court fulfilled its obligation and complied 

with Crim.R. 48(B) and Crim.R. 5(B)(4)(c). 

{¶78} This writer finds the state’s third assignment of error is without merit. 

{¶79} As it is this writer’s position that the judgment of the trial court should be 

affirmed, I respectfully dissent.