[kenrexford]

The history of the law is somewhat interesting. In 92 prosecutors wanted the Ohio supreme court to allow subpoenas for the test results. This would be better, because at least the court would be involved and the target could object. The court declined because the legislature had created a doctor and patient privilege that the court could not undo.

So , the legislature revoked the privilege entirely in 93. This seemed bad, so they in 94 came up with this law.

The problem with the fix in 94 was that they went too far. Expectations were that government officials would self regulate and not snoop beyond that which we as a society would want.

Who would ever think that the government, let alone individuals within the government, might abuse power given to them? Why would anyone do that?

The classic problem. To make life easier for the government, we take away procedures and streamline the investigation. We expect nothing to go wrong. And then we get J Edgar, Patriot Act, NSA, you name it.

[mycroft]

I note that there's nothing in that section of the code that requires (or forbids, I guess) patient notification that this is happening. I also note that blood tests for other things can be done and are safe as long as they are not "to determine the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse". Maybe the hospitals have to start explicitly not doing those tests if at all possible while running a "standard bloodwork".

I also note that "at any time relevant to the criminal offense in question." is the time frame in the written notice, but nowhere does it have to be stated what that time frame is.

I am so happy that access to things that are deemed private by default can be accessed by "opening a criminal investigation" on a person, on the sole decision of anyone in law enforcement, with no checks, balances, or notice to the person involved now or any time up to disclosure in a trial. This can't possibly be abused.

[mike777]

wow so this code has been around for 20 years and this is the first time the Ohio court of appeals is hearing it?
-----

"The problem with the fix in 94 was that they went too far. Expectations were that government officials would self regulate and not snoop beyond that which we as a society would want."

I don't think this will be an important legal point in this case. If it were my guess is that society would think in this case the police did NOT snoop beyond...but again I doubt this will be the deciding issue.

-------------

"The classic problem. To make life easier for the government, we take away procedures and streamline the investigation. We expect nothing to go wrong"

I don't think this is the classic problem. The classic problem is ..is it better to convict one innocent person so 100 guilty ones are not let free...."
hence we have a problem....convicting one innocent person.

[kenberg]

 kenrexford, on 2014-March-12, 13:31, said:

the bad accident is not a problem. A warrant works. The only reason for the Ohio law is to avoid asking the judge.

I think that it is at least possible that you and I are largely in agreement. The details always matter, but if you are saying that you accept the right of the police to get a warrant but reject their right to just go to the hospital and demand the test results, I am with you. The police need to be able to investigate accidents, they don't get carte blanche. Exact details probably would give me indigestion, but we probably agree on the general principle.

[mike777]

To be fair I do think there can be examples where the public safety trumps the need to get a warrant for medical record information. But these would be rare cases.

There are examples where doctors must self report medical information to the govt.

[kenberg]

 mike777, on 2014-March-12, 16:49, said:

To be fair I do think there can be examples where the public safety trumps the need to get a warrant for medical record information. But these would be rare cases.

There are examples where doctors must self report medical information to the govt.

I think, but as with everything legal I don't know, that this obligation only happens if there is a future danger. A person has a serious communicable disease or is having a psychological meltdown.

Doctors have to be able to do what is medically right and they (often at least) have neither the time nor the training, and probably not the inclination, to think through the legal issues. I think if a cop shows up with a warrant, the doc complies. If a cop shows up w/o any supporting paperwork and starts explaining to the doc what he must do, this is very bad. The doc has no way of knowing what his obligations are. So a warrant or a subpena or some sort of legal paper should be provided. For the doc's, or the hospital's, or the administrator's, protection as well as the patient's.

I think often such a warrant should be granted, this is where I may be in disagreement with others. But I think that it should require some sort of serious legal review before the cop goes in and demands info. Getting the right information to assess responsibility is not an emergency situation, there is plenty of time for judicial review/

[mike777]

Yes but they must in many places report gunshot wounds for example.

[kenrexford]

 mike777, on 2014-March-12, 16:23, said:

wow so this code has been around for 20 years and this is the first time the Ohio court of appeals is hearing it?

Frightening, but I seem to be the only attorney in Ohio to both recognize the problem and argue it as a matter of privacy. A few others tried to challenge the law in the past but argued that the law violated the statutory privileges as opposed to the constitutionality, or argued that somehow the government was taking the blood. In other words, my predecessors have been somewhat lacking in the analysis.

I take great pride in having successfully challenged now 7 separate laws on constitution grounds. It's not easy to argue these issues precisely, apparently. Few are willing to try.

[nige1]

 Bbradley62, on 2014-March-12, 13:51, said:

How about if the law is changed to say that blood alcohol/drug tests will always be done on all drivers involved in any traffic accident, and that if medical situations prevent police from conducting such tests before drivers are brought to the hospital, then the hospital is required to perform certain tests (at police expense)? I'd be good with this.

IMO Bradley62's law is good. In the mean-time, I think the court should allow prosecution-access to hospital-test blood-alcohol levels of a person, accused of causing a car-accident, no matter who paid for the test.

[mike777]

 nige1, on 2014-March-12, 19:44, said:

IMO Bradley62's law is good. In the mean-time, I think the court should allow prosecution-access to hospital-test blood-alcohol levels of person, accused of causing a car-accident, no matter who paid for the test.

"How about if the law is changed to say that blood alcohol/drug tests will always be done on all drivers involved in any traffic accident, and that if medical situations prevent police from conducting such tests before drivers are brought to the hospital, then the hospital is required to perform certain tests (at police expense)? I'd be good with this."


Bradley62 suggestion has problems

There are not enough cops to take everyone involved in an accident for blood testing. The cops would do nothing else.
Cities are broke and deeply in debt they don't have money for thousands of blood tests and all the etc that goes with that.

Even if you limit it to people who complain of pain after an accident the costs and time engulf everything else in the city. There are at least 3 million accidents that involve injures...more many more if you include all traffic accidents. In just ten years that is more than 30 million.

If you take all the time and cost involved going to a hospital and then the lab and then etc for all of this the cost is enormous.

[Bbradley62]

I probably worded my suggestion poorly; I would expect that the first step in testing drivers would be to administer an inexpensive and non-invasive field sobriety test. Anyone who passed such a field test would not need further testing.

[barmar]

This kind of reminds me of those scenes in cop shows where the officer/detective shows up without a search warrant. The homeowner wants to refuse the search, but the cop says something like "I could get a warrant, but you're just delaying the inevitable." And this is probably true. If the Ohio law required a court order, isn't it likely that they would have approved getting this suspect's medical records?

If you were arguing in a case where such approval might not have been granted, I think you'd be more likely to succeed. Or are the facts of this case irrelevant -- should the CoA rule the law unconstututional because it might result in a privacy violation in some other instances?

[kenrexford]

 barmar, on 2014-March-13, 13:18, said:

This kind of reminds me of those scenes in cop shows where the officer/detective shows up without a search warrant. The homeowner wants to refuse the search, but the cop says something like "I could get a warrant, but you're just delaying the inevitable." And this is probably true. If the Ohio law required a court order, isn't it likely that they would have approved getting this suspect's medical records?

If you were arguing in a case where such approval might not have been granted, I think you'd be more likely to succeed. Or are the facts of this case irrelevant -- should the CoA rule the law unconstututional because it might result in a privacy violation in some other instances?

This is the insanity of the whole thing.

The Ohio law allows the officer to get blood test results without anyone (except the hospital) knowing and without a judge approving this. This, in my opinion, creates a serious privacy interest risk, because there are no procedural safeguards. As a purely theoretical matter, this seems like a no-brainer, obviously.

So, the question is, why do this? We are talking about medical records, meaning no emergency. It seems easy enough to just go to a judge for a warrant, right?

There are several real world "problems" that explain this.

First, people are lazy. Including judges. If we can avoid multiple parties being involved and just have one man fill out one form, we do less work. That's a poor excuse for invading privacy interests, but it is a motivation.

Second, judges might not find probable cause. If the officer does not leg work on scene, where's the probable cause for a warrant?

Third, legislatures are stupid. There are easy fixes, like created by other States. Set up a procedure that involves a judge later but that places the burden on the suspect to object. This still risks a judge declining the request.

So, the end result is simple. In many cases, the procedure is unnecessary except for laziness purposes. In a few, the State wants the loose procedures because they want to snoop despite having no good reason to snoop other than a hunch.

My clients, however, ultimately stand as surrogates for all the other people who might have this law abused against them. "Facial challenges" work that way. Granted, some aggrieved party could sue the State of Ohio for being blackmailed by a cop who snooped for no good, but who brings a public suit over blackmail? Legally speaking, the law allows the bad guy to argue the case for all of the good guys, because, to a degree, it is the bad guy who has nothing to lose from the public airing of his grievances.

[kenberg]

I am trying to imagine just how this takes place. I think of a cop asking me if student X was in my class on a certain day a week or so ago. I put in the time lag so that there is no emergency. I don't think I would answer. This would be partly out of concern for his privacy, but at least as much it would be concern for my own legal liability. I am not a lawyer, I happily avoid such issues whenever possible, and I think my response would be something like "You bring me documentation, including a signed copy for me, saying I must answer and I will answer". I have managed to go through life never being sued by anyone for anything, and I would like to keep it that way.

Does each and every hospital have a legal adviser on hand to help the staff decide when they should and when they should not answer a question like this? Cops come in various forms and with various jurisdictions. How is a staff person supposed to know how to deal with this?


It seems that everything points to needing some sort of review process. I would think it could be reasonably simple, but there has to be something. Even a state senator should be able to understand that.

[nige1]

 Bbradley62, on 2014-March-13, 12:58, said:

I probably worded my suggestion poorly; I would expect that the first step in testing drivers would be to administer an inexpensive and non-invasive field sobriety test. Anyone who passed such a field test would not need further testing.

Accidents are expensive. Provided that it deterred drivers from drinking and drug-taking, might money be saved even by a compulsory blood-test for drivers suspected of causing an accident? And is money the only consideration? If it saved only a hundred lives a year, could more rigorous enforcement be justified?

[Bbradley62]

 nige1, on 2014-March-13, 18:41, said:

Accidents are expensive. Even if a blood-test were compulsory for drivers suspected of causing an accident, might money be saved by deterring drivers from drinking and drug-taking? And is money the only consideration? If more rigorous enforcement saved only a hundred lives a year, could it be justified?

I can't speak to the trade-off between prevention and punishment. But yes, I think more rigorous enforcement could be justified. This is why my suggestion is that all drivers involved in an accident should be subject to impairment test(s), starting with a "close your eyes and touch your nose" type and continuing to breathalyzers or more if the field test is failed.

[Trinidad]

 Bbradley62, on 2014-March-13, 22:07, said:

I can't speak to the trade-off between prevention and punishment. But yes, I think more rigorous enforcement could be justified. This is why my suggestion is that all drivers involved in an accident should be subject to impairment test(s), starting with a "close your eyes and touch your nose" type and continuing to breathalyzers or more if the field test is failed.

I would definitely not start with "close your eyes and touch your nose". I would use a breathalyzer right away. This thing gives a value, its calibration can be checked and subsequent actions can be based on the result, even if the results are not conclusive evidence in court.

"Close your eyes and touch your nose" (CYEATYN) tests are unreliable. And the first test result ways the heaviest in the decision making, not the most reliable test. Officers who first test with CYEATYN and get a positive will then test with a breathalyzer. If the breathalyzer test is negative, they will tend to continue to investigate, despite the fact that the much more reliable breathalyzer test told them to stop investigating and let the guy off the hook. In addition, the CYEATYN test relies on the officer's judgement. People (that includes police officers) are notorious for overestimating the quality of their own judgement and underestimating the quality of instrumental analysis. Therefore, the police officer will tend to dismiss the reliable breathalyzer test in favor of the unreliable CYEATYN test. "I can't be this wrong!?! It must be this stupid thing that doesn't work!"

Rik

[mike777]

It is important to remember that the police do not respond to many accidents. They are not notified or they have many higher priorities. Keep in mind the police do not respond to many so called low level crimes for hours and hours and in some cases never.

Keep in mind drivers can refuse to do blood tests and even other tests. Now there is a huge cost in terms of time and money to get court orders etc. Keep in mind if you spend money on this stuff you don't spend money on other stuff...hard choices must be made.

Also roughly 30-40% of drivers on the road on any late night may be intoxicated. The police and court systems in most cities just choose to live with this to focus on other priorities. It often only takes one or two drinks or a tiny amount of drugs to fail these tests.

[barmar]

 kenberg, on 2014-March-13, 15:46, said:

I am trying to imagine just how this takes place. I think of a cop asking me if student X was in my class on a certain day a week or so ago. I put in the time lag so that there is no emergency. I don't think I would answer. This would be partly out of concern for his privacy, but at least as much it would be concern for my own legal liability.

There's a well-known principle of doctor-patient confidentiality. Is teacher-student confidentiality a thing? If it does exist, does that include attendance records?

[mike777]

Speaking of confidentiality and the law I never understood why it is perfectly legal to lie to the local police but it is crime to lie to federal police.