[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 

v. 

JOSEPH LEE MILLER 

Defendant-Appellee 

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Appellate Case No. 28284 

Trial Court Case No. 2018-CR-3126 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

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. 
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{¶ 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 
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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 
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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. 
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{¶ 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 
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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 
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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 
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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-Ohio1083, ¶ 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 
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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). 
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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 
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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. 
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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 
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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 
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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. 
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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 
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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 
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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 
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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