Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court T.C. NO. 2016-CR-1673
MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No.
85219, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Montgomery
County Courts Building, 301 West Third Street, Dayton, Ohio
45422 Attorney for Plaintiff-Appellee.
ANGELINA JACKSON, Atty. Reg. No. 77937, Assistant Public
Defender, Montgomery County Public Defender's Office, 117
S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for
1} 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.
2} 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.
3} 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."
4} 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
On May 30, 2016, Defendant was arrested by Officer Joshua
Bowling 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. 2925.11(B)(2)(b), which provides as follows:
(b) Subject to division (B)(2)(f) of this section, a qualified
individual shall not be arrested, charged, prosecuted,
convicted, or penalized pursuant to this chapter for a minor
drug possession offense if all of the following apply:
(i) The evidence of the obtaining, possession, or use of the
controlled substance or controlled substance analog that
would be the basis of the offense was obtained as a result of
the qualified individual seeking the medical assistance or
experiencing an overdose and needing medical assistance.
(ii) Subject to division (B)(2)(g) of this section, within
thirty days after seeking or obtaining the medical
assistance, the qualified individual seeks and obtains a
screening and receives a referral for treatment 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
6} R.C. 2925.11 (B)(2)(a) provides the following
(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 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
7} Melms argued that he was not subject to
prosecution for the following reasons:
1. Defendant was not on community control or post release
2. Defendant obtained medical assistance while experiencing a
3. Defendant sought an assessment and referral within (6)
days of being released from incarceration from the Tri-County
4. Defendant was indicted for a minor drug offense * * *;
5. Defendant provided referral for treatment to the