Understanding Virginia’s new drug overdose law

A relatively new law in Virginia will offer legal protections for people calling for help after overdoses.

In 2015, the Commonwealth of Virginia's General Assembly passed a safe reporting law that aims to save the lives of people suffering from overdoses. The law, similar to "Good Samaritan" laws in more than 20 other states, provides a defense against prosecution for a person who "seeks or obtains" emergency medical attention for herself or someone else who is overdosing. This law, like those in other jurisdictions, is intended to prevent overdose deaths by encouraging people to seek treatment without fear of possible penalties standing in the way.

Potential pitfalls with the new law?

While it is true that this new statute is at least a step in the right direction toward lowering the rate at which people in Virginia die from overdoses of alcohol, prescription drugs, or illicit substances, some still argue that it is vague and doesn't necessarily go far enough. For example, an argument has been made that the law isn't clear about precisely whom is protected in these situations.

The biggest question that has come about related to this law concerns to whom its protections extend. Is someone who is unconscious and could not call for help on his or her own also protected? Some of Virginia's public defenders have spoken out about the issue, saying that it can be difficult to determine whether people who are overdosing and passed out (or otherwise incoherent) can passively "seek or obtain" medical help when it is sought on their behalf. Because of this uncertainty, some "Good Samaritans" may still hesitate to call for help because they are unsure if the overdosing person him or herself - oftentimes a friend or family member - could end up facing charges.

This possible pitfall with the new law is actually supported by statements from the state legislator who co-sponsored the bill that introduced it. Delegate John O'Bannon (R-Henrico County) stated that the general intent of the law was to protect people who report overdoses. He doesn't think it necessarily applies to someone who is comatose at the time help is called. His public interpretation of the statute, that it protects the person calling, not the person suffering the overdose, would lend credence to people who fear that their overdosing loved ones could face criminal charges if emergency services intervene. Similar statutes in some other states - not all, since jurisdictions vary in their approaches in these laws - protect only the person calling, not necessarily the person overdosing (unless they are one and the same).

On the flip side are people who argue that the law should clearly protect those who are in such dire straits that they are unconscious and cannot summon help for themselves. Proponents of this approach include Assistant Chesapeake Public Defender Dalton Glass, who is currently handling a high-profile appeal of a lower court's conviction of an overdosing woman before the Virginia Court of Appeals. Mr. Glass and other defense attorneys argue that Virginia's statute is designed to help prevent overdose deaths and should, to that end, logically protect the person overdosing as well as those calling for help.

Particulars of the statute

In order to avail him or herself of the affirmative defense against prosecution offered by Virginia code §18.2-251.03, a "Good Samaritan" must meet several conditions, including:

1. Reporting the overdose to a firefighter, police officer, medic/EMT or 911 dispatcher

2. Remaining at the scene with the person overdosing until police respond to the report

3. Identifying him or herself to authorities

4. Cooperating with the police in any investigation into the controlled substance, alcohol or combination thereof that resulted in the overdose

Once these conditions have been proven, then the "Good Samaritan" has an affirmative defense to a number of enumerated potential charges that could arise from the overdose. These include:

  • Unlawful purchase, possession, or consumption of alcohol pursuant to § 4.1-305
  • 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
  • Possession of controlled paraphernalia pursuant to § 54.1-3466

Asserting your legal rights

As of now, there are still questions as to whether the "Good Samaritan" statute's protections flow to an overdosing person when someone else has called for treatment on their behalf. In the meantime, if you need help asserting an affirmative defense under the statute, or you need representation in another Virginia criminal law matter, contact the experienced Warrenton law firm of Mark B. Williams & Associates, PLC. Call them at 540-254-0757 or send an email today.