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Virginia drug lawyer on the state's Good Samaritan affirmative defense

Virginia Drug Defense- The Good Samaritan rule only applies for active reporting & treating

Fairfax criminal defense lawyer/ drug attorney pursuing the best defense

Feb 12, 2017 Virginia Drug Defense- The Good Samaritan rule only applies for active reporting & treating

In 2015, Virginia enacted a Good Samaritan rule that provides an affirmative defense to those who “in good faith, seeks or obtains emergency medical attention for himself, if he is experiencing an overdose, or for another individual, if such other individual is experiencing an overdose, by contemporaneously reporting such overdose…”

As I said last year, Virginia’s Good Samaritan drug overdose law is not foolproof but is better than the absence of such a law. I detail the Good Samaritan law more fully at the end of this article.

In any event, on February 7, 2017, the Virginia Court of Appeals exempted from the Good Samaritan drug law those who do not actively seek nor actively obtain medical attention if experiencing a drug overdose, rather than simply cooperating with law enforcement and emergency personnel on their arrival. Jennifer Jo Broadous v. Virginia, ___ Va. App. ___ (Feb. 7, 2017).

Here, Broadous overdosed on injected Fentanyl, and her boyfriend called for medical emergency assistance. Broadus fully answered the questions of emergency medical personnel and police except to claim that she did not recall where she obtained the Fentanyl (which she described as heroin) from.

The Virginia Court of Appeals affirmed the trial court’s rejection of Broadus’s affirmative Good Samaritan defense, concluding that the purpose of such a defense is to not discourage people from seeking medical assistance for an illegal drug overdose. Once emergency personnel arrives to help the person suffering the overdose, the purpose of the Good Samaritan defense is no longer in play. Furthermore, Broadous points out the states that have specifically legislated protection for such passive cooperation as Broadous’s have been statutorily specific to protect such passive cooperation, whereas the Virginia Good Samaritan law does not address such passive behavior:

“[A]s of the date of this opinion, slightly more than half of our sister states have enacted statutory ‘safe harbor’ protection for overdose reporters. National Conference of State Legislatures, http://www.ncsl.org/research/civil-and-criminal-justice/drug-overdose-immunitygood-samaritan-laws.aspx. (last visited Nov. 2, 2016). State legislatures that chose to extend protection to the overdose victim who passively receives aid have done so expressly. For example, Ohio defines ‘qualified individual’ as a ‘person acting in good faith who seeks or obtains medical assistance for another person who is experiencing a drug overdose, or a person who is the subject of another person seeking or obtaining medical assistance for that overdose.’ Ohio Code § 2925.11(B)(2)(a)(viii) (emphasis added). This third category is absent from Virginia’s statute presumably because our legislature made a policy decision not to include it. Because ‘[c]ourts cannot add language to the statute the General Assembly has not seen fit to include,’ we will not second guess that policy decision by expanding an affirmative defense in Code § 18.2-251.03 beyond that specifically contemplated by the General Assembly.”

Broadous (citations omitted).

Consequently, Broadous will be stuck with her felony drug possession conviction, unless she obtains en banc relief in the Virginia Court of Appeals or relief in the Virginia Supreme Court. Her strongest argument for further appellate relief would appear to be that “obtains emergency medical attention” is not clarified in the statute as only being active rather than passively obtaining emergency medical assistance, and that the caselaw supports resolving statutory ambiguities in criminal statutes to the benefit of the defendant.

____

Below in abbreviated form are the most pertinent parts of Virginia’s Good Samaritan statute, with comments in [brackets]:

A. “[O]verdose” means a life-threatening [how will a layperson know the situation is life threatening, unless the drug taker is not breathing, barely breathing, or has no pulse?] condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances.

B. It shall be an affirmative defense to prosecution of an individual for the unlawful purchase, possession, or consumption of alcohol…, possession of a controlled substance pursuant to § 18.2-250, possession of marijuana pursuant to § 18.2-250.1, intoxication in public pursuant to § 18.2-388, or possession of controlled paraphernalia pursuant to § 54.1-3466 if: [The Good Samaritan law does not protect against prosecution for possessing with intent to distribute, manufacturing, nor distributing controlled substances or marijuana.]

1. Such individual, in good faith [good faith is a subjective term], seeks or obtains emergency medical attention for himself, if he is experiencing an overdose, or for another individual, if such other individual is experiencing an overdose [this law applies when reporting the overdose for oneself or for others], by contemporaneously reporting such overdose to a firefighter, as defined in § 65.2-102, emergency medical services personnel, as defined in § 32.1-111.1, a law-enforcement officer, as defined in § 9.1-101, or an emergency 911 system;

2. Such individual remains at the scene of the overdose or at any alternative location to which he or the person requiring emergency medical attention has been transported until a law-enforcement officer responds to the report of an overdose [a key here is to wait a sufficient amount of time for law enforcement to arrive]. If no law-enforcement officer is present at the scene of the overdose or at the alternative location, then such individual shall cooperate with law enforcement as otherwise set forth herein;

3. Such individual identifies himself to the law-enforcement officer who responds to the report of the overdose;

4. If requested by a law-enforcement officer, such individual substantially cooperates in any investigation of any criminal offense reasonably related to the controlled substance, alcohol, or combination of such substances that resulted in the overdose [I would argue that the reporter is not being non-cooperative if the caller does not reveal the drugs used, nor the dosages nor method of administration, both because the caller may not be sure what was used nor how much was used, and because the foregoing cooperation language is limited to “investigating any criminal offense,” which arguably does not involve investigating those who have overdosed, because the whole tenor of the Good Samaritan statute is to report drug overdoses in order to obtain proper medical care for overdoses] ; and

5. The evidence for the prosecution of an offense enumerated in this subsection was obtained as a result of the individual seeking or obtaining emergency medical attention. [Therefore, if the 911 caller has illegal drugs on him or her when police arrive, the caller should be absolved of any prosecution for drug or alcohol possession so long as the above-listed Good Samaritan elements have been met].

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