Case Number: 27685

Judge: Mary E. Donovan

Court: COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

Plaintiff's Attorney: DYLAN SMEARCHECK
Assistant Prosecuting Attorney

Defendant's Attorney: ANGELINA JACKSON
Assistant Public Defender

Description: This matter is before the Court on the August 8, 2017 Notice of Appeal of
Andrew Melms. Melms appeals from the trial court’s July 28, 2017 Judgment Entry of
Conviction, following a no contest plea to one count of aggravated possession of drugs,
namely fentanyl, in violation of R.C. 2925.11(A), a felony of the fifth degree. His appeal
is specifically addressed to the trial court’s denial of his motion to dismiss his indictment
on the basis of immunity from prosecution, pursuant to R.C. 2925.11(B)(2)(b), which went
into effect on September 13, 2016, and is known as the “911 Good Samaritan Law.” We
hereby affirm the judgment of the trial court.
At the outset, we note 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.” Report: Governor Chris Christie, “The President’s
Commission on Combating Drug Addiction and the Opioid Crisis,” Washington, D.C.,
November 1, 2017, pg. 31. These data from the Centers for Disease Control and
Prevention are expected to rise even higher in 2016 and 2017.
Melms was indicted on July 21, 2016. He failed to appear for a scheduled
August 4, 2016 arraignment, and a warrant was issued for his arrest. On March 23,
2017, Melms appeared and entered a plea of not guilty. On April 6, 2017, he filed a
“Request for Intervention in Lieu of Conviction and Time Waiver.”
On May 31, 2017, Melms filed a “Motion to Dismiss Indictment as Defendant
is a ‘Qualified Individual’ under O.R.C. 2925.11(B)(2).” The memorandum in support of
the motion provides the following facts:
On May 30, 2016, Defendant was arrested by Officer Joshua Bowling


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of the Dayton, Ohio, police department for possession of fentanyl, a felony
of the fifth degree. He was found alone, slumped over and nearly
unconscious in the front passenger seat of a vehicle located at Love’s Travel
Stop, 2217 S. Edwin [C.] Moses Blvd., Dayton, Ohio. Dayton Paramedics
were called and responded to the scene. Defendant was then taken to
the Montgomery County Jail. Defendant had a traffic warrant out of Clark
County Jail, Springfield, Ohio. Defendant was transferred to the Clark
County Jail from Montgomery County Jail on June 1, 2016. Subsequently,
Defendant was transferred from Clark County Jail to the Tri-County Jail
(Champaign County) on child support issues. Defendant was released
from the Tri-County Jail on July 2, 2016. Defendant was incarcerated from
the time of his arrest on May 30, 2016, until July 2, 2016.
On July 8, 2016, Defendant sought medical assistance because he
suffered from a drug overdose on May 30, 2016. Six gel caps of fentanyl
were recovered from the scene. Defendant sought treatment with Dayton
Opiate Recovery Clinic located at 8401 Claude Thomas Road, Dayton,
Ohio. See attached letter from Melanie Briggs, CMA of the Dayton Opiate
Recovery Clinic dated April 18, 2017. The letter from Dayton Opiate
Recovery Clinic has been provided to the prosecutor.
* * * Defendant sought treatment for his opiate addiction (6) six days
after he was released from incarceration. Defendant has been taking
subox[o]ne since July of 2016.
Melms asserted that he was immune from prosecution pursuant to R.C.


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2925.11(B)(2)(b)1, which provides as follows:
* * *
(b) Subject to division (B)(2)(f)2 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)3 of this section, within thirty days after
1 We note that R.C. 128.04 further provides as follows: (A) Public safety answering point personnel who are certified as emergency service telecommunicators under section 4742.03 of the Revised Code shall receive training in informing individuals who call about an apparent drug overdose about the immunity from prosecution for a minor drug possession offense created by section 2925.11 of the Revised Code. (B) Public safety answering point personnel who receive a call about an apparent drug overdose shall make reasonable efforts, upon the caller's inquiry, to inform the caller about the immunity from prosecution for a minor drug possession offense created by section 2925.11 of the Revised Code.

2 “Division (B)(2)(b) of this section does not apply to any person who twice previously has been granted an immunity under division (B)(2)(b) of this section. No person shall be granted an immunity under division (B)(2)(b) of this section more than two times.” R.C. 2925.11(B)(2)(f).

3 “Nothing in this section shall compel any qualified individual to disclose protected health information in a way that conflicts with the requirements of the ‘Health Insurance Portability and Accountability Act of 1996,’ 104 Pub.L.No. 191, 110 Stat. 2021, 42 U.S.C. 1320d et seq., as amended, and regulations promulgated by the United States department of health and human services to implement the act or the requirements of 42


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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.
R.C. 2925.11(B)(2)(a) provides the following definitions:
* * *
(iv) “Minor drug possession offense” means a violation of this
section that is a misdemeanor or a felony of the fifth degree.
* * *
(viii) “Qualified individual” means a person who is not on community
control or post-release control and is a person acting in good faith who
seeks or obtains medical assistance for another person who is experiencing
a drug overdose, a person who experiences a drug overdose and who
seeks medical assistance for that overdose, or a person who is the subject
of another person seeking or obtaining medical assistance for that overdose
C.F.R. Part 2.” R.C. 2925.11(B)(2)(g).


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as described in division (B)(2)(b) of this section.
(ix) “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.
Melms argued that he was not subject to prosecution for the following
reasons:
1. Defendant was not on community control or post release control;
2. Defendant obtained medical assistance while experiencing a
drug overdose;
3. Defendant sought an assessment and referral within (6) days of
being released from incarceration from the Tri-County Jail;
4. Defendant was indicted for a minor drug offense * * *;
5. Defendant provided referral for treatment to the prosecuting
attorney.
Melms argued that he “should be allowed dismissal of his charge[] because
he was unable to seek treatment until he was released from incarceration from three
different jails after his initial arrest. Once defendant was released from incarceration he
obtained an assessment and referral and is currently in treatment.” Melms argued that
it “would be fundamentally unfair for him to be denied the benefit of immunity from the
statute.” He asserted that “there is a violation of his Equal Protection Rights under both
the U.S. and Ohio Constitutions. Specifically, Defendant was incarcerated and was
unable to seek the treatment within the 30-day timeframe after overdosing. * * * A denial
of the dismissal would infringe upon his fundamental rights.” Attached to the motion is


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correspondence from “Melanie Briggs, CMA,” of the Dayton Opiate Recovery Clinic that
provides that Melms was “seen at our office” on May 3, 2016, July 8, 2016, and February
9, 2017.
The State opposed the motion on June 5, 2017. The State asserted that
because Melms sought treatment at the Dayton Opiate Recovery Clinic on July 8, 2016,
39 days after his arrest, “the State is not required to grant immunity in this case.”
According to the State, R.C. 2925.11(B)(2)(b)(ii) contains “no language implying that the
thirty days start any time other than when the individual seeks or obtains medical
assistance.” The State argued that Melms obtained medical assistance on May 30,
2016, and that the statute “does not provide any exception for an individual who spends
the entire thirty days in custody. Had the legislature intended the thirty day clock to start
running from the time of release from jail, the statute would have reflected that.” On July
20, 2017, Melms filed supplemental documents to his motion to dismiss, namely a “Follow
Up Visit Progress Note,” dated July 8, 2016, which provides that Melms reported using
heroin that day, was experiencing withdrawal symptoms, and “will start [suboxone]
tomorrow.”
The State responded that there “are no records from Defendant indicating
that he received any treatment from July 8, 2016 through February 9, 2017. Further,
there are no records of what treatment he received on February 9, 2017 or if he continued
to receive treatment after that date.” The State asserts that while Melms “was in jail for
the entirety of the thirty days, * * * that does not change the mandate of the statute,” and
since “the screening occurred outside of the thirty day window, dismissal of the charges
is not required, but rather at the State’s discretion.”


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In its decision overruling Melms’ motion, the trial court determined as
follows:
Defendant appears to have met the requirements of ORC Section
2925.11(B) except for subsection (ii), which requires that treatment be
sough[t] within thirty days of receiving medical assistance for a drug
overdose. Defendant argues that the thirty-day period should be tolled for
the time that he was in jail. The statute, however, does not provide an
exception to the thirty-day period for any reason. If the General Assembly
had desired to toll the period while a person was in jail, it could have done
so. Further, the Court notes that there is no evidence of any follow-up
treatment by Defendant until one treatment date on February 9, 2017.
Thus, it does not appear to this Court that Defendant has made a serious
attempt to seek treatment.
Because Defendant did not obtain the assessment and referral within
thirty days of his obtaining medical assistance as required by O.R.C.
Section 2925.11(B)(2)(b)(ii), Defendant is not a qualified individual immune
from prosecution under the statute.
On July 26, 2017, Melms entered his plea of no contest, and he was
sentenced to community control sanctions for a period not to exceed five years. Melms
asserts one assignment of error herein as follows:
THE TRIAL COURT ERRED IN OVERRULING MR. MELMS’
MOTION TO DISMISS, WHERE THE FAILURE TO GRANT IMMUNITY
FROM PROSECUTION DUE TO CONFINEMENT CONSTITUTED A


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DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW
AS GUARANTEED BY THE UNITED STATES AND OHIO
CONSTITUTIONS.
Melms further identifies the following three issues as part of his sole
assigned error:
1. Denying Mr. Melms immunity from prosecution due to his
confinement deprives him of due process and is fundamentally unfair in
violation of the Fourteenth Amendment to the United States Constitution
and Sections 1 and 16, Article I of the Ohio Constitution.
2. Denying Mr. Melms immunity from prosecution due to his
confinement is a denial of the equal protection of the laws in violation of the
Fourteenth Amendment to the United States Constitution and Section 2,
Article I of the Ohio Constitution.
3. Denying Mr. Melms immunity from prosecution due to his
confinement is contrary to the policy considerations underlying the immunity
statute.
Melms asserts that he is a qualified individual as defined by R.C.
2925.11(B)(2)(a)(viii), that he received medical assistance for an overdose, pursuant to
R.C. 2925.11(B)(2)(b)(i), and that he provided documentation to the prosecutor regarding
his screening and referral for treatment, pursuant to R.C. 2925.11(B)(2)(b)(iii). Melms
notes that “the State does not dispute that [he] was continuously incarcerated from the
date of his overdose until July 2, 2017.” Melms asserts that but for his “involuntary
confinement, he would have been able to obtain the screening and referral within 30 days


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of his overdose and would not have been prosecuted. It was simply impossible for him
to do so.” Melms argues that “the trial court’s application of R.C. 2925.11(B)(2)(b) is
unconstitutional.”
Melms argues that “[t]his case involves a fundamental right in that Mr.
Melms faces deprivation of his physical liberty by virtue of a criminal prosecution.” He
asserts that “there is no compelling governmental interest that is served by denying Mr.
Melms immunity under the circumstances.” Melms asserts that since he was “treated
differently than a non-incarcerated person,” and since “such treatment involves the
potential deprivation of [his] physical liberty, strict scrutiny must be applied.” According
to Melms, he was “subjected to a potential loss of liberty solely because he was
incarcerated after his overdose.” (Emphasis sic.)
Melms further argues that “the unequal treatment at issue in this case is not
simply one based upon the mere pendency of open traffic or criminal matters, but is also
essentially a classification based upon wealth. Had Mr. Melms posted bond and been
released on either of his cases, he would have been able to obtain the evaluation within
thirty days.” He argues that “in this case, the degree of discrimination between
incarcerated and non-incarcerated persons is significant, resulting in Mr. Melms being
convicted of a felony that involves potential prison time.” According to Melms, R.C.
2925.11(B)(2)(b) “was enacted to encourage addicted persons to seek help, which Mr.
Melms did as soon as he was physically able to. There is simply no compelling
governmental interest that justifies treating him differently than a person who was not
confined following an overdose.”
Finally, Melms asserts as follows:


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Ohio is in the midst of an unprecedented epidemic of drug addiction
and overdoses. R.C. 2925.11(B) was amended to encourage addicted
persons not only to seek help at the scene of an overdose, but to also seek
follow up treatment without criminal liability. It is widely recognized that
criminal charges and convictions carry a host of collateral consequences
that can touch nearly every area of a person’s life. Mr. Melms did exactly
what the statute is encouraging people to do, yet because of a delay of a
little over a week that he had no control over, he is now a convicted felon.
This result is completely contrary to the policy considerations underlying the
immunity statute.
(Emphasis sic and footnote omitted.)
The State responds in part as follows:
Here, the statute gives a thirty day deadline from the time the medical
assistance was rendered. There is nothing ambiguous or uncertain about
the deadline. This statute applies to drug users who have just received
emergency medical assistance, a group that by its nature is likely to face
some period of incarceration. The legislature could have added - but did
not – a provision tolling the thirty day clock for time during which an
individual is incarcerated. The fact that no such provision was included
indicates the legislative intent that the thirty days is just that: thirty days.
The State further asserts that since “any distinction drawn by the language
of this statute or its application is not based on any suspect class and no fundamental
right is at issue, the proper analysis is the rational basis test.” The State asserts that the


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“right at stake here is not, as [Melms] claims, freedom from incarceration, but rather an
entitlement to prosecutorial immunity. The newly established immunity from prosecution
set out in R.C. 2925.11(B) is not a fundamental right.”
According to the State, “the class distinction drawn by this law is based
solely on whether an individual has received a screening and referral for addiction
services. Nothing in the statute bars that screening and referral from occurring while an
individual is incarcerated.” The State notes that even if “the class distinction here is
drawn on the basis of wealth, the United States Supreme Court and the Ohio Supreme
Court have both held that classifications drawn on the basis of wealth are not suspect.”
The State “asks that this Court apply the rational basis test,” since “neither
a fundamental right nor a suspect class is at issue here.” The State notes that “the
immunity provision itself and the thirty day deadline both bear a substantial relation to
public health, safety, morals, and general welfare of the public. The law offers immunity
from prosecution as an incentive for individuals who seek treatment for addiction.”
Finally, the State “agrees with Appellant that the policy objectives of the
immunity provision are laudable; addressing the opioid crisis of this region is a worthy
cause.” The State argues that “a conviction holding Appellant accountable for his actions
and requiring community control would be more in line with that objective than would
granting him immunity.” According to the State, from “a policy perspective, community
control sanctions are preferable to simply granting immunity and dismissing the case
because they provide a level of accountability he would otherwise be lacking.” The State
notes that Melms “did not follow through with a screening for [Intervention in Lieu of
Conviction].” The State asserts that rather “than actually seeking treatment for addiction,


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Appellant claims an entitlement to immunity under a provision whose requirements he did
not meet.”
In reply, Melms asserts that the “arbitrary 30-day time frame of R.C.
2925.11(B)(2)(b)(ii) as applied to Appellant violated his rights to due process and the
equal protection of the law.”
We review the trial court’s denial of Melms’ motion to dismiss de novo.
State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 19 (2d Dist.). “ ‘De novo review
requires an independent review of the trial court’s decision without any deference to the
trial court’s determination.’ * * *.” Id.
We initially note that “ ‘[a] regularly enacted statute of Ohio is presumed to
be constitutional and is therefore entitled to the benefit of every presumption in favor of
its constitutionality[,] * * * unless such enactments are clearly unconstitutional beyond a
reasonable doubt.’ * * *.” State v. Vanover, 2d Dist. Clark No. 2014-CA-80, 2015-Ohio
345, ¶ 17.
Regarding Melms’ argument that it was fundamentally unfair to deny him
immunity and that he was denied due process, we first note that it is undisputed that
Melms was arrested on May 30, 2016, following his overdose. In his memorandum in
support of his motion to dismiss, he acknowledges that he was transferred on June 1,
2016 to the Clark County Jail, pursuant to an outstanding warrant, where he was held
until he was transferred to the Tri-County Jail sometime before his release therefrom on
July 2, 2016. Melms was not indicted for the instant offense until July 21, 2016, and the
trial court did not order bail set until August 18, 2016, after Melms failed to appear at his
August 4, 2016 arraignment. In other words, Melms was not being held in jail in lieu of


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bond on the instant drug offense, and while his possession offense triggered the potential
application of R.C. 2925.11(B)(2)(b), his confinement from June 1, 2016 until his July 2,
2016 release was on an unrelated case(s).
As this Court has noted:
As a threshold matter, a person alleging a due process violation must
first demonstrate a deprivation of a protected liberty or property interest.
State v. Hayden, 96 Ohio St.3d 211, 773 N.E.2d 502, 2002-Ohio-4169, ¶ 6,
cert. denied Hayden v. Ohio (2003), 537 U.S. 1197, 123 S.Ct. 1265, 154
L.Ed.2d 1035, citation omitted.
State v. Heys, 2d Dist. Miami No. 09-CA-04, 2009-Ohio-5397, ¶ 10.
“ ‘A constitutionally protected liberty interest has been defined as freedom
from bodily restraint and punishment.’ * * *.” Heys at ¶12. We cannot conclude that, as
applied to Melms, R.C. 2925.11(B)(2)(b) is punitive in nature due to his being lawfully
confined during the 30 day period provided in R.C. 2925.11(B)(2)(b)(ii) to seek screening
and treatment referral. Melms could have sought a screening and referral while in jail,4
and the possibility of a prison sentence upon prosecution is not the type of deprivation of
liberty that the due process clause protects. Accordingly, Melms’ due process argument
fails.
Regarding Melms’ assertion that he was denied equal protection, the Ohio
Supreme Court has previously noted:
The Fourteenth Amendment to the United States Constitution
4 We recognize the difficulty involved in seeking such treatment and assessment while incarcerated. Nevertheless, the record does not contain any evidence that such an effort was made and thwarted by Melms’ incarceration.


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provides that “[n]o State shall * * * deny to any person within its jurisdiction
the equal protection of the laws.” The Equal Protection Clause prevents
states from treating people differently under its laws on an arbitrary basis.
Harper v. Virginia State Bd. of Elections (1966), 383 U.S. 663, 681, 86 S.Ct.
1079, 1089, 16 L.Ed.2d 169, 181 (Harlan, J., dissenting). “Whether any
such differing treatment is to be deemed arbitrary depends on whether or
not it reflects an appropriate differentiating classification among those
affected; the clause has never been thought to require equal treatment of
all persons despite differing circumstances.” Id.
Under the Equal Protection Clause, a legislative distinction need only
be created in such a manner as to bear a rational relationship to a legitimate
state interest. Clements v. Fashing (1982), 457 U.S. 957, 963, 102 S.Ct.
2836, 2843, 73 L.Ed.2d 508, 515. These distinctions are invalidated only
where “they are based solely on reasons totally unrelated to the pursuit of
the State’s goals and only if no grounds can be conceived to justify them.”
Id.; see, also, Heller v. Doe (1993), 509 U.S. 312, 320, 113 S.Ct. 2637,
2642, 125 L.Ed.2d 257, 271; Am. Assn. of Univ. Professors, Cent. State
Univ. v. Cent. State Univ. (1999), 87 Ohio St.3d 55, 58, 717 N.E.2d 286,
290. This rational basis analysis is discarded for a higher level of scrutiny
only where the challenged statute involves a suspect class or a fundamental
constitutional right. Clements, 457 U.S. at 963, 102 S.Ct. at 2843, 73
L.Ed.2d at 515-516; see, also, Cleburne v. Cleburne Living Ctr. (1985), 473
U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320.


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State v. Williams, 88 Ohio St.3d 513, 530, 728 N.E.2d 342 (2000).
As the Williams Court further noted:
“[A] suspect class is one ‘saddled with such disabilities, or subjected
to such a history of purposeful unequal treatment, or relegated to such a
position of political powerlessness as to command extraordinary protection
from the majoritarian political process.’ ” Massachusettes Bd. of
Retirement v. Murgia (1976), 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49
L.Ed.2d 520, 525, quoting San Antonio Indep. School Dist. v. Rodriguez
(1973), 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40. Moreover,
the only classifications recognized as “suspect” are those involving race,
alienage, and ancestry. Id. at 312, 96 S.Ct. at 2566, 49 L.Ed.2d at 524, fn.
4. * * *
Williams at 530.
Further,
* * * [r]ecognized fundamental rights include the right to vote, the right
of interstate travel, rights guaranteed by the First Amendment to the United
States Constitution, the right to procreate, and other rights of a uniquely
personal nature. Murgia, 427 U.S. at 312, 96 S.Ct. at 2566, 49 L.Ed.2d at
524, fn. 3; see, also, Albright v. Oliver (1994), 510 U.S. 266, 272, 114 S.Ct.
807, 812, 127 L.Ed.2d 114, 122.
Williams at 530.
We agree with the State that R.C. 2925.11(B)(2)(b) does not require a
higher level of scrutiny than that provided by rational basis review. As noted above,


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Melms argues that but for his confinement he would have been able to comply with R.C.
2925.11(B)(2)(b)(ii), and that he was accordingly treated differently than a non
incarcerated person. We conclude that lawfully confined individuals are not a suspect
class warranting extraordinary protection, and that Melms’ alleged inability to post bond
did not prohibit him from demanding a screening and referral while confined. We further
conclude that the statute does not involve a uniquely personal fundamental constitutional
right; potential immunity from prosecution is not such a right. Accordingly, rational basis
analysis is appropriate.
As noted in Williams:
Under the rational basis standard, we are to grant substantial
deference to the predictive judgment of the General Assembly. See Turner
Broadcasting Sys. v. Fed. Communications Comm. (1997), 520 U.S. 180,
195, 117 S.Ct. 1174, 1189, 137 L.Ed.2d 369, 391. The state does not bear
the burden of proving that some rational basis justifies the challenged
legislation; rather, the challenger must negative every conceivable basis
before an equal protection challenge will be upheld. See Heller, 509 U.S.
at 320, 113 S.Ct. at 2642, 125 L.Ed.2d at 271.
Id., at 531.
We conclude that R.C. 2925.11(B)(2)(b) bears a rational relationship to the
legitimate interest of the State in encouraging individuals to seek prompt medical attention
or follow-up care for addiction by providing immunity from prosecution as set forth in the
statute. Melms’ equal protection argument accordingly fails.
Lastly, Melm’s third argument is that the result herein is “completely


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contrary to the policy considerations underlying the immunity statute.” R.C.
2925.11(B)(2)(b) provides a 30-day, and not an unlimited window, to qualify for immunity
from prosecution.5 While Melms argues that he “did exactly what the statute is
encouraging people to do,” we note that the documentation he submitted reflects that on
July 8, 2016, over a month after his overdose, Melms admitted using heroin, and there is
no evidence of follow up treatment thereafter until February 9, 2017, seven months later.
Granted Melms seemingly was an ideal candidate for immunity, but for the clear and
unambiguous 30-day window set forth by the legislature. The remedy lies with the
legislature to either eliminate the 30-day restriction or to provide for the exercise of judicial
discretion, particularly in those cases of the most vulnerable, often indigent, incarcerated
individuals who are unaware of the time limit until after counsel is appointed on the drug
offense. In our view, an immediate legislative fix is warranted so that this legislation
achieves its laudable goals.6

Outcome: For the foregoing reasons, Melms’ assigned error is overruled, and the
judgment of the trial court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: