Overdosing is an essential element for avoiding a drug possession conviction under Virginia’s good samaritan law, says Fairfax criminal defense lawyer

Overdosing (ODing) is an irreplaceable element of avoiding a Virginia drug possession conviction under the Commonwealth’s good samaritan law. As a Fairfax criminal defense lawyer, I know that the Virginia Court of Appeals refuses to water down the statutory OD definition means “a life-threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances.”( Virginia Code § 18.2-251.03(A). )   Garrett v. Commonwealth of Virginia, ___ Va. App. ___ (2026). Virginia’s drug possession good samaritan law generally exempts a person from arrest and prosecution (and those conviction) for “unlawful purchase, possession, or consumption of marijuana…, involuntary manslaughter pursuant to § 18.2-36.3, possession of a controlled substance pursuant to § 18.2-250, intoxication in public pursuant to § 18.2-388, or possession of controlled paraphernalia” where the person has in good faith called for emergency medical assistance for themselves or another who is overdosing, or a person who is the beneficiary of such a request for medical assistance. § 18.2-251.03(B).

Expect Virginia trial judges to assign the defense with the burden of proving overdosing when Virginia’s good samaritan drug possession defense is pursued

As a Fairfax criminal defense lawyer, I expect that Virginia trial judges will assign to criminal defendants the burden of proving overdosing when they seek protection under Virginia’s good samaritan law, due to Garrett’s proclaiming: “Recognizing that the parties have not briefed what burden of proof applies to Code § 18.2-251.03, we leave that question for another day and assume without deciding that the defendant bears the burden by a preponderance of the evidence.” Garrett. 

Must I present expert medical testimony to benefit from Virginia’s good samaritan drug defense?

Under Garrett, expert medical testimony is not automatically required to satisfy the overdosing element of Virginia’s good samaritan drug offense exemption: “Nor does our opinion per se require defendants to present expert medical testimony in support of their motion for immunity. All types of evidence—including lay-witness testimony, circumstantial evidence, and illustrative evidence—can be ‘presented . . . to persuade the trier of fact that [this] proposition should be taken as established or “proved.”‘… Indeed, it has long been recognized that a similar condition—intoxication—may be proven without medical testimony and ‘may be evidenced circumstantially in the same general modes that are available . . . for mental capacity or condition in general,’ including ‘the person’s conduct,’ ‘predisposing circumstances, i.e., by the drinking of intoxicating liquor,’ and ‘prior or subsequent condition of intoxication.’.. The same is true of whether someone ‘is experiencing an overdose.’ Code § 18.2-251.03(B)(1).” Garrett (citations omitted).

Why was Garrett unable to meet the OD element of Virginia’s good samaritan drug defense?

Garrett lost her appeal because she was not able to present any evidence of overdosing other than that an otherwise uninformed convenience store employee

Overdosing is an essential element for avoiding a drug possession conviction under Virginia’s good samaritan law, says Fairfax criminal defense lawyer

Overdosing (ODing) is an irreplaceable element of avoiding a Virginia drug posession conviction under the Commonwealth’s good samaritan law. As a Fairfax criminal defense lawyer, I know that the Virginia Court of Appeals refuses to water down the statutory OD definition means “a life-threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances.”( Virginia Code § 18.2-251.03(A). )   Garrett v. Commownealth of Virginia, ___ Va. App. ___ (2026). Virginia’s drug possession good samaritan law generally exempts a person from arrest and prosecution (and those conviction) for “unlawful purchase, possession, or consumption of marijuana…, involuntary manslaughter pursuant to § 18.2-36.3, possession of a controlled substance pursuant to § 18.2-250, intoxication in public pursuant to § 18.2-388, or possession of controlled paraphernalia” where the person has in good faith called for emergency medical assistance for themselves or another who is overdosing, or a person who is the beneficiary of such a request for medical assistance. § 18.2-251.03(B).

Expect Virginia trial judges to assign the defense with the burden of proving overdosing when Virginia’s good samaritan drug possession defense is pursued

As a Fairfax criminal defense lawyer, I expect that Virginia trial judges will assign to criminal defendants the burden of proving overdosing when they seek protection under virginia’s good samaritan law, due to Garrett’s proclaiming: “Recognizing that the parties have not briefed what burden of proof applies to Code § 18.2-251.03, we leave that question for another day and assume without deciding that the defendant bears the burden by a preponderance of the evidence.” Garrett. 

Must I present expert medical testimony to benefit from Virginia’s good samaritan drug defense?

Under Garrett, expert medical testimony is not automatically required to satisfy the overdosing element of Virginia’s good samaritan drug offense exemption: “Nor does our opinion per se require defendants to present expert medical testimony in support of their motion for immunity. All types of evidence—including lay-witness testimony, circumstantial evidence, and illustrative evidence—can be ‘presented . . . to persuade the trier of fact that [this] proposition should be taken as established or “proved.”‘… Indeed, it has long been recognized that a similar condition—intoxication—may be proven without medical testimony and ‘may be evidenced circumstantially in the same general modes that are available . . . for mental capacity or condition in general,’ including ‘the person’s conduct,’ ‘predisposing circumstances, i.e., by the drinking of intoxicating liquor,’ and ‘prior or subsequent condition of intoxication.’.. The same
is true of whether someone ‘is experiencing an overdose.’ Code § 18.2-251.03(B)(1).” Garrett (citations omitted).

Why was Garrett unable to meet the OD element of Virginia’s good samaritan drug defense?

Garrett lost her argument for appellate relief for overdosing under Virginia’s good samaritan law, because she was not able to present trial evidence any better than that she was passed out in a car parked at a convenience store lot, where an employee unfamiliar with such ailments arranged for a welfare check to be made on her. Garrett’s trial and appellate lawyers were left to argue what they could with what they had, but that was not enough for her to prevail on her good samaritan argument against a conviction for possessing a Schedule I controlled substance.

Fairfax criminal defense lawyer Jonathan Katz shifted to a criminal defense career over thirty years ago in part due to his opposition to the drug wars. Jon Katz spiritedly and persuasively defends accused people against Virginia felony, misdemeanor and DUI prosecutions. Usually Jon can meet with you within a business day of your contacting us, for your free in-person initial confidential consultation about your court-pending Virginia prosecution.