State v. Gubanich

[Cite as State v. Gubanich, 2022-Ohio-2815.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 21CA0054-M

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
JAMES F. GUBANICH MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 20TRC04829

DECISION AND JOURNAL ENTRY

Dated: August 15, 2022

CALLAHAN, Judge.

{¶1} Defendant-Appellant, James Gubanich, appeals from the judgment of the Medina

Municipal Court, denying his motion to suppress. This Court affirms.

I.

{¶2} Mr. Gubanich was involved in an accident while riding his motorcycle in Hinckley

Township. Officer Jessica Parente, the officer who responded to the scene, found him lying on

the ground with a severe head injury. She remained on scene while paramedics arrived and tended

to Mr. Gubanich. During that time, the officer detected a strong odor of alcohol coming from Mr.

Gubanich’s person.

{¶3} Mr. Gubanich was taken directly to MetroHealth Medical Center (“MetroHealth”)

in Cleveland for treatment. While he was there, MetroHealth drew his blood. Rather than secure

a warrant to obtain the results of Mr. Gubanich’s blood test, Officer Parente requested a copy of

the results directly from MetroHealth pursuant to R.C. 2317.02(B)(2)(a). MetroHealth later
 2

provided her with those test results, and the results showed that Mr. Gubanich had a blood alcohol

concentration in excess of the legal limit.

{¶4} Mr. Gubanich was charged with operating a vehicle under the influence of alcohol

(“OVI”), OVI with a prohibited blood alcohol concentration, and failure to control. He moved to

suppress the test results Officer Parente had received from MetroHealth, arguing that R.C.

2317.02(B)(2)(a) was unconstitutional and that the officer had obtained his results in violation of

his Fourth Amendment rights. The trial court held a motion hearing, which consisted entirely of

legal arguments. Following the hearing, the trial court issued a written decision.

{¶5} The trial court rejected Mr. Gubanich’s argument that R.C. 2317.02(B)(2)(a) was

unconstitutional. While the court agreed that Officer Parente had violated Mr. Gubanich’s Fourth

Amendment rights by obtaining his blood test results without a warrant, the court refused to apply

the exclusionary rule. The court found that Officer Parente had acted in good faith when she relied

on R.C. 2317.02(B)(2)(a) to secure the blood test results. Consequently, it denied Mr. Gubanich’s

motion to suppress.

{¶6} Following the denial of his motion to suppress, Mr. Gubanich pleaded no contest

on all charges. The trial court merged his two OVI offenses as allied offenses of similar import

and sentenced him on the R.C. 4511.19(A)(1)(a) violation. Upon motion, the court agreed to stay

the execution of its sentence so Mr. Gubanich might appeal from its ruling on his motion to

suppress.

{¶7} Mr. Gubanich now appeals from the trial court’s judgment and raises two

assignments of error for this Court’s review. For ease of analysis, this Court reorders the

assignments of error.
 3

II.

{¶8} Before turning to the merits of the appeal, this Court pauses to address its decision

in State v. Palacios, 9th Dist. Lorain No. 17CA011093, 2018-Ohio-3523. In Palacios, this Court

determined that, by pleading no contest to an OVI charge under R.C. 4511.19(A)(1)(a), a defendant

admitted he had operated a vehicle under the influence. Palacios at ¶ 8. Because the defendant

had only been convicted of violating R.C. 4511.19(A)(1)(a), this Court held that his admission

resulted in a forfeiture of his argument on appeal that the trial court had erred by not suppressing

his blood test results. Id. Even so, this Court acknowledged that the record showed the defendant

had predicated his no contest plea upon his, his counsel’s, and the trial court’s erroneous

assumption that he would be able to appeal from the denial of his motion to suppress. Id. at ¶ 9-

10. This Court resolved the appeal by sua sponte vacating the defendant’s plea and remanding the

matter to the trial court for further proceedings. Id. at ¶ 10-11.

{¶9} Much like the defendant in Palacios, Mr. Gubanich pleaded no contest to his OVI

charges following an unfavorable suppression ruling. Because the trial court merged his OVI

counts at sentencing, he was only convicted of violating R.C. 4511.19(A)(1)(a). Were this Court

to apply Palacios, that decision would prevent us from reaching the merits of Mr. Gubanich’s

assignments of error. This Court would be forced to conclude that Mr. Gubanich forfeited his

suppression arguments when he pleaded no contest. See id. at ¶ 8. Upon further reflection and

review of recent case law issued by the Ohio Supreme Court, however, this Court determines that

Palacios was wrongly decided. See generally Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,

2003-Ohio-5849, paragraph one of the syllabus.

{¶10} Traf.R. 11(G) provides that a no contest plea “does not preclude a defendant from

asserting upon appeal that the trial court prejudicially erred in ruling on * * * a pretrial motion to
 4

suppress evidence.” “Inherent in that rule’s language is the notion that when a judgment stemming

from a no-contest plea is appealed, it is permissible for the appellate court to review the claimed

error for prejudice, just like any other error.”1 State v. LaRosa, 165 Ohio St.3d 346, 2021-Ohio-

4060, ¶ 41. For a defendant to prevail on appeal following his no contest plea, the trial court’s

suppression ruling must have had a material effect on his decision to plead. Id. at ¶ 50-56.

Courts often will not have a full picture of the evidence following a hearing on a
motion to suppress, and it is difficult to ascertain the extent to which an erroneous
judgment on a suppression motion might have affected the defendant’s decision to
plead no contest. It is also important to remember that when an alleged error is
properly preserved, the state has the burden of proving beyond a reasonable doubt
the absence of prejudice, which would likely be difficult to establish in most
appeals stemming from a suppression ruling and subsequent no-contest plea,
particularly when the court does not have a sufficient picture of the existing
evidence to help it make that determination. Indeed, regarding no-contest pleas, it
might be the rare case in which a judgment erroneously denying a motion to
suppress is determined to be harmless error.

(Emphasis added.) Id. at ¶ 52.

{¶11} Both the plain language of Traf.R. 11(G) and the Ohio Supreme Court’s recent

decision in LaRosa make clear that a defendant does not forfeit his suppression challenge merely

by entering a plea of no contest. A defendant may appeal from a trial court’s suppression ruling

and prevail if the court’s erroneous ruling materially affected his decision to plead no contest. Id.

at ¶ 50-56. Further, LaRosa makes clear that, when a defendant has properly preserved a

suppression-related error, it is the State’s burden to prove beyond a reasonable doubt that any error

the court committed in its suppression ruling was harmless (i.e., that the defendant was not

prejudiced by the ruling). Id. at ¶ 52. Because Palacios improperly presumed that the defendant

therein forfeited his suppression argument by pleading no contest, it is overruled.

1
Although LaRosa interpreted Crim.R. 12(I), the plain language of that rule is identical to the plain
language of Traf.R. 11(G).
 5

{¶12} Notably, the State has made no attempt to argue that any error on the part of the

trial court in overruling Mr. Gubanich’s motion to suppress was harmless beyond a reasonable

doubt. The State has responded to Mr. Gubanich’s arguments on their merits. Moreover, because

Mr. Gubanich’s suppression hearing only consisted of legal arguments and there is no transcript

of the plea hearing, the record contains extremely limited information about the evidence against

Mr. Gubanich. Given the dearth of evidence in the record and the State’s response to Mr.

Gubanich’s arguments, this Court will proceed to a merits review rather than attempt to conduct a

review for harmless error.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN DENYING [MR. GUBANICH’S] MOTION TO
SUPPRESS WHEN OHIO REV. CODE §2317.02(B)(2)(a) WAS FACIALLY
UNCONSTITUTIONAL AND THE OFFICER COULD NOT HAVE
REASONABLY RELIED IN GOOD FAITH UPON IT IN OBTAINING [MR.
GUBANICH’S] BLOOD TEST RECORDS[.]

{¶13} In his second assignment of error, Mr. Gubanich argues that the trial court erred

when it denied his motion to suppress because Officer Parente relied on an unconstitutional statute

to seize his blood test results. Specifically, Mr. Gubanich argues that R.C. 2317.02(B)(2) is

facially unconstitutional because it conflicts with the Fourth Amendment. For the following

reasons, this Court rejects his argument.

{¶14} While this Court’s review of a ruling on a motion to suppress generally involves a

mixed question of law and fact, see State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8,

Mr. Gubanich’s second assignment of error only concerns a question of law. He challenges the

trial court’s legal conclusion that R.C. 2317.02(B)(2) is constitutional on its face. He has not
 6

challenged the statute as applied to him or claimed that any factual questions exist.2 Accordingly,

this Court will limit its review to the legal issue he has presented and independently determine

whether the trial court reached the correct legal conclusion. See id., citing State v. McNamara,

124 Ohio App.3d 706 (4th Dist.1997).

{¶15} Statutes are afforded a strong presumption of constitutionality. State v. Collier, 62

Ohio St.3d 267, 269 (1991). “[I]f at all possible, [they] must be construed in conformity with the

Ohio and United States Constitutions.” Id. A party asserting that a statute is unconstitutional must

prove that the statute is unconstitutional beyond a reasonable doubt. Id. The party must show that

“there is a clear conflict between the legislation in question and some particular provision or

provisions of the Constitution.” City of Xenia v. Schmidt, 101 Ohio St. 437 (1920), syllabus. If

the party challenges the statute on its face, he “must demonstrate that there is no set of

circumstances in which the statute would be valid.” Groch v. Gen. Motors Corp., 117 Ohio St.3d

192, 2008-Ohio-546, ¶ 26. “The fact that a statute might operate unconstitutionally under some

plausible set of circumstances is insufficient to render it wholly invalid.” Harrold v. Collier, 107

Ohio St.3d 44, 2005-Ohio-5334, ¶ 37.

{¶16} R.C. 2317.02(B) governs the physician-patient privilege in Ohio. State v. Moore,

9th Dist. Lorain No. 00CA007587, 2001 WL 111559, *2 (Feb. 7, 2001). The statute “is designed

to create an atmosphere of confidentiality” and to encourage patients to freely share and

2
Mr. Gubanich’s second assignment of error includes one sentence in which he avers that the
good-faith exception to the exclusionary rule does not apply because R.C. 2317.02(B)(2) is
patently unconstitutional. To the extent that sentence could be construed as an as-applied
challenge, this Court declines to address the argument in the context of Mr. Gubanich’s second
assignment of error. The applicability of the good-faith exception is the focal point of Mr.
Gubanich’s first assignment of error. Accordingly, this Court will address the applicability of the
good-faith exception in its discussion of the first assignment of error. See Discussion of
Assignment of Error Number One, infra.
 7

discuss relevant information with their treating physicians. State Med. Bd. of Ohio v. Miller, 44

Ohio St.3d 136, 139-140 (1989). Because it is a statutory privilege, the physician-patient privilege

is to be “strictly construed against the party seeking to assert it * * *.” Ward v. Summa Health

Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, ¶ 15. “By carving out a number of exceptions, the

General Assembly has made clear that the physician-patient privilege is not absolute.” Torres

Friedenberg v. Friedenberg, 161 Ohio St.3d 98, 2020-Ohio-3345, ¶ 19.

{¶17} R.C. 2317.02(B)(2)(a) provides, in relevant part, as follows:

If any law enforcement officer submits a written statement to a health care provider
that states that an official criminal investigation has begun regarding a specified
person or that a criminal action or proceeding has been commenced against a
specified person, that requests the provider to supply to the officer copies of any
records the provider possesses that pertain to any test or the results of any test
administered to the specified person to determine the presence or concentration of
alcohol * * * in the person’s whole blood, blood serum or plasma, * * * at any time
relevant to the criminal offense in question, and that conforms to [R.C. 2317.022],
the provider, except to the extent specifically prohibited by any law of this state or
of the United States, shall supply to the officer a copy of any of the requested
records the provider possesses.

The foregoing provision was adopted by the General Assembly in 1994. See State v. Mayl, 106

Ohio St.3d 207, 2005-Ohio-4629, ¶ 54, citing 145 Ohio Laws, Part III, 5460. Before that time,

“blood-alcohol tests were not available in criminal prosecutions unless the [physician-patient]

privilege was waived by a defendant.” Mayl at ¶ 54. See also State v. Wash, 9th Dist. Lorain Nos.

90CA004802, 90CA004803, 1990 WL 154728, *2 (Oct. 10, 1990) (examining prior version of

R.C. 2317.02(B) and determining that blood-alcohol test was a communication protected by the

physician-patient privilege). R.C. 2317.02(B)(2)(a) deems the physician-patient privilege waived

as a matter of law when law enforcement seeks to obtain relevant test results upon a proper written

request. Mayl at ¶ 54-55.
 8

{¶18} Mr. Gubanich argues that R.C. 2317.02(B)(2) is unconstitutional on its face because

it conflicts with the Fourth Amendment.3 While the Fourth Amendment forbids unreasonable

searches and seizures and only allows warrants to issue upon probable cause, Mr. Gubanich argues,

R.C. 2317.02(B)(2)(a) allows law enforcement officials to obtain health care records upon written

request without a warrant or showing of probable cause. He claims that the statute usurps the role

of the judiciary. He further claims that there are no circumstances under which the statute could

be deemed constitutionally sound.

{¶19} Upon review, this Court cannot conclude that Mr. Gubanich has established,

beyond a reasonable doubt, that R.C. 2317.02(B)(2) is facially unconstitutional and that “there is

no set of circumstances in which the statute would be valid.” Groch, 117 Ohio St.3d 192, 2008-

Ohio-546, at ¶ 26. See also Collier, 62 Ohio St.3d at 269. “R.C. 2317.02(B)(2) simply waives

patient-physician privilege when law enforcement seeks to obtain certain test results.” Mayl at ¶

55. Mr. Gubanich has failed to point this Court to a single case wherein the statute was found to

be unconstitutional on its face. See App.R. 16(A)(7). One of the cases he cited did not contain a

facial challenge to the statute. See State v. Eads, 1st Dist. Hamilton Nos. C-190213, C-190214,

C-190215, 2020-Ohio-2805 (considering R.C. 2317.02(B)(2)(a) as applied and determining that

the defendant had a reasonable expectation of privacy in his test results). Another case contained

an express qualification, cautioning the reader that the opinion was not a comment on the

constitutionality of the statute. State v. Saunders, 5th Dist. Morrow No. 17CA0001, 2017-Ohio-

7348, ¶ 31, 32 (noting that the court’s holding did not “mean the statutory scheme at issue [was]

3
While Mr. Gubanich cites both the Fourth Amendment and Article I, Section 14 of the Ohio
Constitution in his brief, he has not argued that his constitutional rights are greater under the Ohio
Constitution. Accordingly, this Court limits its discussion to the Fourth Amendment. See State v.
Kinney, 83 Ohio St.3d 85, 87 (1998) (“Section 14, Article I of the Ohio Constitution is nearly
identical in its language, and its protections are coextensive with its federal counterpart.”).
 9

unconstitutional”). A third case specifically overruled the defendant’s argument that R.C.

2317.02(B)(2)(a) was unconstitutional. State v. Little, 3d Dist. Auglaize No. 2-13-28, 2014-Ohio-

4871, ¶ 43-44. Further, at least two other districts have rejected arguments that the statute is

unconstitutional. See City of Cleveland v. Dames, 8th Dist. Cuyahoga No. 82980, 2003-Ohio-

6054, ¶ 3-7; State v. Rose, 6th Dist. Lucas No. L-96-165, 1998 WL 65497, *3 (Feb. 6, 1998). Mr.

Gubanich’s unsupported claim that R.C. 2317.02(B)(2) violates the Fourth Amendment is

insufficient to prove that the statute is unconstitutional beyond a reasonable doubt. Even if the

statute “might operate unconstitutionally under some plausible set of circumstances,” that fact

alone “is insufficient to render it wholly invalid.” Harrold, 107 Ohio St.3d 44, 2005-Ohio-5334,

at ¶ 37. Mr. Gubanich has failed to overcome the strong presumption that the statute is

constitutional. See Collier at 269. Accordingly, his second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED WHEN IT FOUND THAT THE STATE OF OHIO
ACTED IN GOOD FAITH RELIANCE UPON OHIO REV. CODE
§2317.02(B)(2)(a) BY OBTAINING [MR. GUBANICH’S] BLOOD TEST
MEDICAL RECORDS WITHOUT A WARRANT CONSIDERING THE
UNITED STATES SUPREME COURT’S DECISION IN CARPENTER V.
UNITED STATES, 138 U.S. 2206 (2018) AND OHIO APPELLATE COURT
DECISIONS[.]

{¶20} In his first assignment of error, Mr. Gubanich argues that the trial court erred when

it denied his motion to suppress on the basis that Officer Parente acted in good faith. Specifically,

he argues that Officer Parente could not have reasonably relied upon R.C. 2317.02(B)(2) to secure

his blood test results because the statute is clearly unconstitutional and preexisting case law

supports the conclusion that individuals have a legitimate expectation of privacy in their health

records. For the following reasons, this Court rejects his argument.
 10

{¶21} As previously noted, this Court’s review of a trial court’s ruling on a motion to

suppress involves a mixed question of law and fact. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, at ¶ 8. “When considering a motion to suppress, the trial court assumes the role of trier of

fact and is therefore in the best position to resolve factual questions and evaluate the credibility of

witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, a reviewing court

“must accept the trial court’s findings of fact if they are supported by competent, credible

evidence.” Burnside at ¶ 8. “Accepting these facts as true, the appellate court must then

independently determine, without deference to the conclusion of the trial court, whether the facts

satisfy the applicable legal standard.” Id., citing McNamara, 124 Ohio App.3d 706.

{¶22} Because the hearing on Mr. Gubanich’s motion to suppress was limited to legal

arguments, the record contains few details about the circumstances surrounding Officer Parente’s

request for Mr. Gubanich’s blood test results. In its decision, the trial court primarily relied on the

facts alleged in Mr. Gubanich’s written motion. The court found that Mr. Gubanich was involved

in a single vehicle accident while riding his motorcycle and sustained a “severe laceration/scalp

tearing injury to his head.” While Mr. Gubanich was being treated at the scene, the court found,

Officer Parente detected a strong odor of alcohol coming from his person. The court found that,

after Mr. Gubanich was transferred to MetroHealth for treatment, Officer Parente made a request

for his medical records, pursuant to R.C. 2317.02(B)(2), and did not secure a warrant for those

results.

{¶23} Notably, the record contains conflicting statements about the specific course of

action Officer Parente took after Mr. Gubanich’s accident. In Mr. Gubanich’s written motion, he

claimed that Officer Parente declined to go to MetroHealth and chose to fax the hospital a written

request for his medical records. At the suppression hearing, however, the prosecutor advised the
 11

court that Officer Parente had driven to MetroHealth and had requested a copy of Mr. Gubanich’s

records in person. The trial court did not address the foregoing discrepancy in its decision, and

neither party has referenced it on appeal. Because it is not dispositive of the specific issue raised

herein, this Court need not resolve the conflict. It is undisputed that, however she might have done

so, Officer Parente made a written request for Mr. Gubanich’s test results pursuant to R.C.

2317.02(B)(2) and did not secure a warrant for those results. Consequently, this Court will accept

that factual finding as true and consider the trial court’s legal conclusion in light of that finding.

See Burnside at ¶ 8, citing McNamara, 124 Ohio App.3d 706.

{¶24} The trial court found that Mr. Gubanich had a legitimate expectation of privacy in

his blood test results, that R.C. 2317.02(B)(2) did not override the Fourth Amendment’s warrant

requirement, and that Mr. Gubanich’s rights were violated when Officer Parente seized his test

results without a warrant. Even so, the trial court declined to apply the exclusionary rule. The

court found that Officer Parente acted in good faith when she relied on R.C. 2317.02(B)(2) to seize

the test results. The court noted that the plain language of the statute authorized the action Officer

Parente took, there was no controlling authority warning her against relying on the statute in lieu

of a warrant, and decisions from other appellate districts had not materially diminished the

uncertainty surrounding the issue. The court concluded that Officer Parente could not properly be

charged with knowledge that her seizure of Mr. Gubanich’s test results was unconstitutional.

Consequently, it denied Mr. Gubanich’s motion to suppress.

{¶25} Mr. Gubanich argues that the trial court erred when it determined that the good-

faith exception applied. He argues that Officer Parente could not reasonably have relied on R.C.

2317.02(B)(2) because the statute is clearly unconstitutional. According to Mr. Gubanich, the

United States Supreme Court has recognized that individuals have a privacy interest not only in
 12

their health records but also in other personal records in the possession of third parties. See

Ferguson v. City of Charleston, 532 U.S. 67 (2001) (warrant required before state hospital may

perform urine screens on pregnant women for the purpose of identifying crack cocaine users and

sharing that information with law enforcement); Carpenter v. United States, 585 U.S. ___, 138

S.Ct. 2206 (2018) (warrant required before law enforcement may obtain cell phone records that

track a person’s physical movements through cell-site location information). Further, he asserts,

other Ohio appellate districts have recognized that R.C. 2317.02(B)(2) does not obviate the need

for officers to obtain a warrant before seizing health records. See, e.g., Saunders, 2017-Ohio-7348,

at ¶ 16-32; Little, 2014-Ohio-4871, at ¶ 38-40. Because Officer Parente either knew or should

have known that he had a privacy interest in his blood test results and that R.C. 2317.02(B)(2) was

unconstitutional, Mr. Gubanich argues, she did not act in good faith when she seized his test results

without a warrant.

{¶26} This Court begins by noting that the issue of whether R.C. 2317.02(B)(2) is

unconstitutional as applied to Mr. Gubanich is not before us. Nor is the issue of whether he has a

legitimate expectation of privacy in his blood test results. The only issue before this Court is

whether the trial court erred when it determined that Officer Parente acted in good-faith reliance

on R.C. 2317.02(B)(2). While the State invites us to broaden our review and affirm the trial court’s

decision on other grounds (i.e., that Mr. Gubanich does not have a reasonable expectation of

privacy in his tests results), this Court declines to do so. See State v. Adamson, 83 Ohio St.3d 248,

251 (1998) (declining invitation to rule upon specific issue when “it [was] not necessary for [the

Supreme Court] to rule on [the] matter to resolve the case”). Instead, for purposes of this decision,

we assume without deciding that Mr. Gubanich had a reasonable expectation of privacy in his

results and concern ourselves “solely with whether [Officer Parente] acted in good-faith reliance
 13

upon an apparently valid statute.” Illinois v. Krull, 480 U.S. 340, 357 (1987), fn. 13. See also

State v. Scott, 9th Dist. Lorain Nos. 15CA010844, 15CA010846, 2017-Ohio-358, ¶ 13-14

(assuming warrant was improperly issued and limiting review to application of the good-faith

exception).

{¶27} “The exclusionary rule is a judicially created remedy for Fourth Amendment

violations.” State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 92. It “serves to protect

Fourth Amendment rights through its deterrent effect rather than creating a personal constitutional

right * * *.” Scott at ¶ 12. Thus, the question of “[w]hether the exclusionary rule’s remedy of

suppression is appropriate in a particular context is a separate analysis from whether there has been

a Fourth Amendment violation.” State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, ¶ 24.

Suppression is appropriate only if it “will create a sufficient deterrent effect to prevent future

violations of the Fourth Amendment and Article I, Section 14 [of the Ohio Constitution].” Id. at

¶ 26. See also Castagnola at ¶ 96 (“The purpose of the exclusionary rule is to deter police

misconduct.”).

{¶28} “The United States Supreme Court has applied the good-faith exception * * * to

searches conducted in reasonable reliance on subsequently invalidated statutes * * *.” State v.

Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, ¶ 33, citing Krull, 480 U.S. 340. Good faith

is examined under an objective standard that “requires officers to have a reasonable knowledge of

what the law prohibits.” Banks-Harvey at ¶ 37, quoting United States v. Leon, 468 U.S. 897, 919

(1984), fn. 20. The question is whether the provisions of the statute “are such that a reasonable

officer should have known that the statute was unconstitutional.” Krull at 355. “Unless a statute

is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature

that passed the law.” Id. at 349-350.
 14

{¶29} “Ohio appellate courts are in conflict as to whether the Fourth Amendment is

violated by [an officer’s] use of R.C. 2317.02 * * * to obtain, without a warrant or patient consent,

medical records containing toxicology test results from a hospital that performed the tests for the

purpose of medical treatment after a suspicious accident.” Eads, 2020-Ohio-2805, at ¶ 23.

Moreover, neither the Ohio Supreme Court, nor this Court has reviewed that issue in the context

of a Fourth Amendment challenge. Mr. Gubanich suggests that it was unreasonable for Officer

Parente to rely on R.C. 2317.02(B)(2) in light of the United States Supreme Court’s decisions in

Ferguson v. City of Charleston and Carpenter v. United States. Yet, those decisions either do not

speak directly to the issue at hand or have yet to be widely applied in that manner.

{¶30} Ferguson recognized that the performance of a warrantless diagnostic test by a

public hospital is unconstitutional if the hospital is performing the test for the purpose of obtaining

evidence of criminal conduct to be shared with law enforcement. Ferguson, 532 U.S. at 69-70,

84-86. Yet, there is no indication in the record that Officer Parente directed MetroHealth to

perform a blood test on Mr. Gubanich or that the hospital drew his blood for any reason other than

medical treatment. Officer Parente only sought a copy of the test results from the tests

MetroHealth had already performed for treatment purposes. Ferguson is not dispositive in that

instance, so this Court cannot say that the case rendered Officer Parente’s reliance on R.C.

2317.02(B)(2) objectively unreasonable. See Banks-Harvey at ¶ 33-37.

{¶31} Carpenter recognized that individuals maintain a reasonable expectation of privacy

in cell phone data that tracks their physical movements even though the data is shared and

maintained by wireless carriers. Carpenter, 138 S.Ct. at 2217. Much like Officer Parente relied

on R.C. 2317.02(B)(2), the officers in Carpenter relied on the Stored Communications Act to

compel the disclosure of the records at issue rather than obtaining a warrant. See id. at 2212.
 15

While the Supreme Court struck down that compelled, warrantless disclosure, it also cautioned

that its decision was not a pronouncement “that all orders compelling the production of documents

will require a showing of probable cause.” Id. at 2222. The Supreme Court specifically indicated

that government officials would be able “to use subpoenas to acquire records in the overwhelming

majority of investigations” and that warrants would be required only “in the rare case where the

suspect has a legitimate privacy interest in records held by a third party.” Id. Since its issuance in

2018, only one appellate court has considered Carpenter in the context of a request for medical

records under R.C. 2317.02(B)(2). See Eads, 2020-Ohio-2805, at ¶ 28-30. Though the First

District found that Carpenter supported the conclusion that defendants enjoy a reasonable

expectation of privacy in their blood test results, see id. at ¶ 30, it also found that officers had

reasonably relied on R.C. 2317.02(B)(2) when they secured Mr. Eads’ test results, and thus,

refused to apply the exclusionary rule, see id. at ¶ 41-42. Mr. Gubanich has not addressed the First

District’s conclusion that the good-faith exception applied to the search conducted in Eads.

{¶32} Upon review, this Court cannot conclude that the trial court erred when it refused

to apply the exclusionary rule in this case. Because this case represents an issue of first impression

for this Court, Officer Parente lacked any guidance from this appellate district at the time she

requested Mr. Gubanich’s blood test results pursuant to R.C. 2317.02(B)(2). Further, the Ohio

Supreme Court has yet to consider the statute in the context of a Fourth Amendment challenge,

analogous case law from the United States Supreme Court has yet to be widely interpreted, and

other “Ohio appellate courts are in conflict” regarding the issue. See id. at ¶ 23. Assuming without

deciding that Mr. Gubanich has a recognizable privacy interest in his blood test results and that

R.C. 2317.02(B)(2) conflicts with that right, we cannot say that Officer Parente should have known

the seizure she conducted was unconstitutional under the Fourth Amendment. See Krull, 480 U.S.
 16

at 348-349. Based on the foregoing circumstances, the trial court did not err when it found that

Officer Parente acted in good faith and denied Mr. Gubanich’s motion to suppress. Consequently,

Mr. Gubanich’s first assignment of error is overruled.

III.

{¶33} Mr. Gubanich’s assignments of error are overruled. The judgment of the Medina

Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.
 17

Costs taxed to Appellant.

LYNNE S. CALLAHAN
FOR THE COURT

SUTTON, J.
CONCURS.

HENSAL, P. J.
CONCURRING IN JUDGMENT ONLY.

{¶34} I agree that Mr. Gubanich’s conviction and sentence should be affirmed but for a

different reason than the majority opinion. Because of the merger of the counts, Mr. Gubanich

was only convicted of operating a vehicle under the influence of alcohol under Revised Code

Section 4511.19(A)(1)(a). State v. Whitefield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 24.

Consequently, any arguments as to the prohibited-blood-alcohol-concentration offense are moot.

State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 137-138 (explaining that defendant’s

arguments about kidnapping offense were moot because it had merged with other offenses).

{¶35} Regarding the majority’s discussion of State v. Palacios, 9th Dist. Lorain No.

17CA011093, 2018-Ohio-3523, in Palacios, this Court determined that Mr. Palacios could not

challenge the State’s acquisition of his blood test results because, in pleading no contest to a

violation of Section 4511.19(A)(1)(a), he had admitted that he operated a vehicle under the

influence of alcohol or a drug of abuse. Id. at ¶ 8. This Court concluded that Mr. Palacios forfeited

his argument. Id. I agree with the majority opinion, however, that this Court should have

determined that Mr. Palacios’s argument was preserved under Criminal Rule 12(I).
 18

{¶36} The majority opinion moves to a discussion of whether the trial court’s denial of

Mr. Gubanich’s motion to suppress was harmless error, but further discussion of Palacios is

required first. That is because, although Mr. Palacios’s argument was preserved by rule, it was

still not reviewable by this Court because it was moot. As the Second District Court of Appeals

has explained, “[a] conviction under R.C. 4511.19(A)(1)(a) focuses on the conduct of the

defendant and observations of the arresting officers, rather than the results of a chemical test or

breathalyzer exam[.]” State v. Gladman, 2d Dist. Clark No. 2013 CA99, 2014-Ohio-2554, ¶ 24.

“The results of the * * * test are not necessary or required to sustain the trial court’s finding of

guilt” to a violation of Section 4511.19(A)(1)(a), “[t]hus any issues regarding the admissibility of

the results of the * * * exam are moot.” Id.; State v. Perry, 12th Dist. Preble No. CA2017-01-002,

2017-Ohio-7214, ¶ 14 (concluding that blood draw results were immaterial to the case after

defendant entered a plea of no contest to a violation of Section 4511.19(A)(1)(a). Accordingly, I

believe that this Court correctly concluded in Palacios that it could not review Mr. Palacios’s

argument, albeit for an incorrect reason.

{¶37} The majority opinion follows its discussion of Palacios with a discussion of

harmless error that is out of place, presumably because of where Criminal Rule 12(I), which is

identical to Traffic Rule 11(G), is discussed in LaRosa. State v. LaRosa, 165 Ohio St.3d 346,

2021-Ohio-4060. In LaRosa, the Ohio Supreme Court first concluded that some of the evidence

that Mr. LaRosa challenged in his motion to suppress should have been suppressed. Id. at ¶ 35. It

then proceeded to discuss whether the error was reversible. It includes a brief discussion of Rule

12(I) to point out that, even though a plea of no contest preserves an issue for appeal, an appellate

court is permitted “to review the claimed error for prejudice, just like any other error.” Id. at ¶ 41.

Mootness was not a concern in LaRosa because none of the offenses merged at sentencing.
 19

{¶38} Adhering to the part of LaRosa that discusses Criminal Rule 12, the majority

opinion goes from citing the decision in support of its explanation of why Mr. Gubanich’s

argument is preserved to a discussion of whether the State has established that any error by the

trial court was harmless. Although the majority opinion does not go through a harmless error

analysis at that stage of the opinion because of the limited record and the State’s failure to argue

harmless error, I do not agree that it would have been appropriate to skip over the essential step of

requiring Mr. Gubanich to establish error first before analyzing for harmless error.

{¶39} In prior cases, if a defendant was under the mistaken impression that he would be

able to raise his arguments on appeal after pleading no contest, this Court has vacated the

conviction and plea and remanded the matter to the trial court for further proceedings. E.g.,

Palacios at ¶ 10-11; State v. Rondon, 9th Dist. Summit No. 25447, 2011-Ohio-4938, ¶ 6. In this

case, however, Mr. Gubanich only requested a transcript of the suppression hearing. Although

Mr. Gubanich’s written plea agreement provides that he intends to appeal the trial court’s denial

of his motion to suppress, it is unknown whether the appealability of that issue was discussed at

the subsequent plea hearing. Accordingly, the record does not establish that Mr. Gubanich either

was not informed of or misunderstood the consequences of pleading no contest to a violation of

Section 4511.1(A)(1)(a). I, therefore, agree that the trial court’s judgment must be affirmed.

APPEARANCES:

DAVID C. SHELDON, Attorney at Law, for Appellant.

GREGORY A. HUBER, Attorney at Law, for Appellee.