Virginia drug overdose can avoid a conviction when the good samaritan law is satisfied, says Fairfax criminal lawyer

Virginia drug overdose situations have the potential of barring a conviction when the criminal defendant meets the standards of the commonwealth’s good samaritan law for ovedosing drug users. As a Fairfax criminal lawyer, I find it wonderful that — for the time being — overdosing involves a subjective rather than objective standard. Morris v. Virginia, ___  Va. App. ___ (Aug. 2, 2022). However, the Virginia Court of Appeals’s recent determination in that regard has a very vocal dissent by a judge who is now on the commonwealth’s highest court, which possibly makes that court case all the more likely to be reviewed en banc by the entire Court of Appeals, or by the Virginia Supreme Court.

What is the good samaritan Virginia drug overdose law?

The good samaritan Virginia drug overdose law has been in effect for a few years, with the current version being the most defendant-favorable version. Virginia Code § 18.2-251.03. This good samaritan law provides for the most part: Overdose “means a life-threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances.” The Virginia criminal law shall not subject anyone to arrest nor prosecution for the the use, possession or purchases alcohol, marijuana, controlled paraphernalia nor controlled substances/drugs (nor appearing intoxicated in public) when the person in good father seeks emergency medical attention for himself or herself — or for another — who is experiencing an overdose. The person must remain at the scene of the overdose or at an alternative location for obtaining medical attention, until a law enforcement officer responds. Id. 

How do I prove that I was overdosing, to benefit from the Virginia good samaritan law?

The good samaritan Virginia drug overdose law defines overdose by a subjective standard rather than objective standard. Morgan. That is because the good samaritan law’s reference to “experiencing an overdose” is a subjective matter, says the Morgan 2-1 majority. Here, Morgan felt suicidal from using crack cocaine, and was on his way to the hospital when police found him in possession of cocaine (and later with cocaine in his bloodstream). Reversing the trial judge’s application of an objective standard for determining overdosing, Morgan also applies the rule of lenity, which provides for ambiguities in criminal law to generally be resolved to the favor of the criminal defendant.

Should I expect to receive protection from the good samaritan law by simply testifying that I believed I was overdosing?

Morgan is not automatically out of the woods, because the Virginia Court of Appeals in his case tells the trial court to apply a subjective standard to determine whether Morgan believed he was overdosing. If the trial judge in this Virginia drug overdose law case rejects that Morgan had such a belief at the time he was going to the hospital, he still will not benefit from the Virginia good samaritan drug overdose law. At the same time, if the user of drugs was overdosing, believed s/he was overdosing, or may have believed s/he was overdosing, you as the defendant in such a case need to discuss this fully with your Virginia drug lawyer.

Fairfax criminal lawyer Jonathan Katz has successfully defended hundreds of drug defendants and thousands of criminal defendants and Virginia DUI defendants in total. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending case.