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State v. W.S.B.

Superior Court of New Jersey, Appellate Division

February 26, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
W.S.B., [1] Defendant-Respondent.

          Argued January 29, 2018

         On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 17-03-0371.

          Monica do Outeiro, Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Monica do Outeiro, of counsel and on the brief).

          Stefan Van Jura, Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Stefan Van Jura, of counsel and on the brief).

          Before Judges Sabatino, Whipple and Rose.


          SABATINO, P.J.A.D.

         The State's appeal in this case calls for us to interpret and apply the Overdose Prevention Act (the "OPA" or "the Act"), N.J.S.A. 2C:35-30 to -31; N.J.S.A. 24:6J-1 to -6. The OPA, which the Legislature enacted in 2013 and slightly amended in 2015, has yet to be discussed in a published opinion.

         Among other things, the statute confers immunity upon two categories of qualifying persons from being "arrested, charged, prosecuted, or convicted" for certain enumerated possessory drug offenses. The immunity covers persons: (1) who act in good faith to request medical assistance for individuals perceived to be experiencing a "drug overdose, " as defined by N.J.S.A. 24:6J-3; or (2) who experience a drug overdose and have been the subject of such a good faith request for medical assistance by others, or who have sought such assistance themselves. See N.J.S.A. 2C:35-30 (granting immunity for the persons making such requests for assistance); N.J.S.A. 2C:35-31 (granting immunity for the persons who are the subject of such eligible requests).

         The OPA is intended to save lives by "encouraging witnesses and victims of drug overdoses to seek medical assistance." N.J.S.A. 24:6J-2. The Act specifically aims to promote the wider prescription and administration of opioid antidote drugs for the benefit of persons who are at risk of an overdose, as well as their family members and peers. Ibid.

         The trial court in this case applied the Act's immunity in granting a defendant's motion to dismiss an indictment charging him with third-degree possession of a controlled dangerous substance ("CDS"). The limited factual record shows that a police officer responded to a report of a person, who was allegedly described by an unidentified third party as "intoxicated" in the waiting area of a train station. The officer found a person lying on the floor of the station. The officer observed the person nodding in and out of consciousness when asked questions, being unaware of his location, and displaying "pinpoint" eyes. Recognizing these characteristics were indicative of the effects of heroin use, the officer summoned emergency medical technicians ("EMTs").

         The EMTs transported the person, later identified as defendant, from the train station to a local hospital. Defendant was diagnosed there with an intentional drug overdose, but he survived after receiving treatment. Hospital staff found several used and unused bags of a powdery substance in defendant's backpack. The substance was turned over to law enforcement and shown by field testing to be heroin. A grand jury thereafter indicted defendant for the heroin possession offense. He moved to dismiss the indictment, invoking the OPA.

         After considering the written submissions and hearing oral argument, the trial court issued a written opinion finding that the circumstances qualified for immunity under the Act. The court concluded that a "good faith request for medical assistance" had been made under N.J.S.A. 2C:35-31, involving a person that "a layperson would reasonably believe" was exhibiting an "acute condition" indicative of a "drug overdose, " as defined in N.J.S.A. 24:6J-3.

         On appeal, the State argues that the trial court erred in dismissing the indictment under the OPA, contending that the Act does not immunize situations it characterizes as mere "intoxication" from drug use. Defendant counters that the Act contains no such caveat or limitation, and that the record in this case amply supports the trial court's application of the immunity.

         For the reasons that follow, we hold that the broad definition of a "drug overdose" that the Legislature chose to adopt in N.J.S.A. 24:6J-3 does not turn on concepts of "intoxication." Instead, the OPA immunity hinges upon whether the discrete elements specified within that definition are met.

         A defendant may raise the immunity at any stage of the criminal process from the time of arrest through conviction. The defendant bears the burden of establishing the defense applies by a preponderance of the evidence. In certain exceptional situations where the facts known to the State patently appear to support the OPA's exculpatory immunity, the State may have a duty to advise grand jurors of those pertinent facts and the statute's immunity provisions, in order to avoid a qualified defendant from being "charged" in contravention of N.J.S.A. 2C:35-31.[2]

         As our opinion acknowledges, sometimes there can be genuine issues of material fact as to whether the elements of the immunity, including the definition of a "drug overdose" under N.J.S.A. 24:6J-3, are satisfied. The sparse record in this case is inadequate for us to resolve those factual issues. Among other things, the record is vague and unclear regarding the perceived severity of defendant's condition when he was observed at the train station, and whether a layperson would have reasonably believed he was then suffering from an "acute condition" caused by drug consumption that required medical assistance. Consequently, we vacate without prejudice the trial court's dismissal order and remand for an evidentiary hearing.


         The History, Objectives, and Text of the OPA

         In adopting the OPA in 2013, the Legislature declared the following objectives:

The Legislature finds and declares that encouraging witnesses and victims of drug overdoses to seek medical assistance saves lives and is in the best interests of the citizens of this State and, in instances where evidence was obtained as a result of seeking of medical assistance, these witnesses and victims should be protected fromarrest, charge, prosecution, conviction, and revocation of parole or probation for possession or use of illegal drugs. Additionally, naloxone is an inexpensive and easily administered antidote to an opioid overdose. Encouraging the wider prescription and distribution of naloxone or similarly acting drugs to those at risk for an opioid overdose, or to members of their families or peers, would reduce the number of opioid overdose deaths and be in the best interests of the citizens of this State. It is not the intent of the Legislature to protect individuals from arrest, prosecution or conviction for other criminal offenses, including engaging in drug trafficking, nor is it the intent of the Legislature to in any way modify or restrict the current duty and authority of law enforcement and emergency responders at the scene of a medical emergency or a crime scene, including the authority to investigate and secure the scene.
[N.J.S.A. 24:6J-2 (emphasis added).]

         The relevant portions of the OPA granting immunity, codified at N.J.S.A. 2C:35-30 and -31, largely originated from an earlier bill known as the Good Samaritan Emergency Response Act ("GSERA"), which was introduced in 2012. The proposed GSERA bill was similar in many respects to what became the enacted version of OPA, but there were several differences.[3]

         Governor Christie conditionally vetoed the first reprint of the GSERA bill, observing that a more "comprehensive" approach to the drug overdose problem was warranted:

This bill as drafted . . . fails to carefully consider all the interests that must be balanced when crafting immunities to the protections provided in our criminal laws. Thus, although the bill addresses perceived impediments to reporting drug overdoses, the proposal fails to consider the existing approaches to deterrence, public safety, prevention of violence, and the many social problems that accompany the rampant proliferation of drug distribution and use. Accordingly, the more reasoned and practical approach is to address these issues comprehensively and holistically, rather than by simply removing criminal liability and exposure to punitive measures.
Therefore, I return this bill with my recommendations to direct the Division of Criminal Justice within the Department of Law and Public Safety to study the issue of drug overdose reporting, and to provide my Administration and the Legislature with recommendations on a comprehensive approach to addressing this issue.

[Governor's Conditional Veto Statement to A. 578 (Oct. 11, 2012).]

         Thereafter, the Governor conditionally vetoed the first reprint of the OPA, recommending that provisions within GSERA be merged into the OPA. Governor's Conditional Veto Statement to S. 2082 (Apr. 29, 2013).[4]

         In several respects not germane to the present appeal, the scope of the immunity narrowed somewhat during the legislative process. Notably, however, the broad statutory definition of a "drug overdose" - a critical aspect of this case - remained the same within the successive drafts of GSERA and the OPA.

         As enacted by the Legislature following the Governor's conditional veto, the OPA established two key immunity provisions. One was codified in N.J.S.A. 2C:35-30 for a qualifying person who "in good faith" seeks medical assistance for someone experiencing a drug overdose. A second immunity was codified in N.J.S.A. 2C:35-31, extending to a person who "experiences a drug overdose and who seeks medical assistance or is the subject of a good faith request for medical assistance" pursuant to the statute. Both immunity provisions declare that such qualifying persons "shall not be: . . . arrested, charged, prosecuted, or convicted" of a listed series of enumerated offenses. N.J.S.A. 2C:35-30(a) and -31(a).[5]

         Without repeating in detail the entire list here, the immunized offenses include "being under the influence of, or failing to make lawful disposition of, a [CDS] or [CDS] analog, " as is otherwise proscribed by subsections a, b, or c of N.J.S.A. 2C:35-10. See N.J.S.A. 2C:35-30(a)(1) and -31(a)(1). Defendant in this case is charged with such a simple possessory offense.

         The list also includes offenses for inhaling fumes of a toxic chemical; attempting to obtain or possessing prescription drug legends; acquiring CDS by fraudulent means; unlawfully possessing a CDS that was lawfully prescribed or dispensed; using or possessing with intent to use certain drug paraphernalia, needles, or syringes; and the revocation of certain parole or probation conditions. See N.J.S.A. 2C:35-30(a)(2) to (7) and -31(a)(2) to (7). The statute does not immunize offenses omitted from the enumerated list, for it is "not the intent of the Legislature to protect individuals from arrest, prosecution or conviction for other criminal offenses, including engaging in drug trafficking . . . ." N.J.S.A. 24:6J-2 (emphasis added).

         Each of the immunity provisions explicitly limits the statute's protection to criminal charges that are based on evidence "obtained as a result of the seeking of medical assistance." N.J.S.A. 2C:35-30(b)(2) and -31(b). Hence, incriminating evidence that law enforcement officials obtain by other means, such as the fruits of a search warrant or a constitutional warrantless search, unconnected from someone's attempt to seek medical assistance for an individual perceived to be experiencing a drug overdose, is beyond the immunity's reach.

         The Definition of "Drug Overdose" Within N.J.S.A. 24:6J-3

         The pivotal concept for the present case (and no doubt others that arise under the OPA) is the wording of the Legislature's definition in N.J.S.A. 24:6J-3 of a "drug overdose, " a term which is cross-referenced in the immunity provisions of N.J.S.A. 2C:35-30 and -31. According to that definition, a drug overdose is

an acute condition including, but not limited to, physical illness, coma, mania, hysteria, or death resulting from the consumption or use of a controlled dangerous substance or another substance with which a controlled dangerous substance was combined and that a layperson would reasonably believe to require medical assistance.
[N.J.S.A. 24:6J-3 (emphasis added).]

         Meanwhile, the term "medical assistance" is defined in the OPA to encompass

professional medical services that are provided to a person experiencing a drug overdose by a health care practitioner, acting within the practitioner's scope of professional practice, including professional medical services that are mobilized through telephone contact with the 911 telephone emergency service.[6]


         The judicial interpretation of the term "drug overdose" within the OPA must focus on the definition provided in the words of the statute itself. It is well settled that the text of the enactment is the appropriate starting point - and often the ending point - for the judicial process of statutory interpretation. "The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). A court should "ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." Ibid, (internal citations omitted). If a statute's plain language "clearly reveals the Legislature's intent, the inquiry is over." State v. Harper, 229 N.J. 228, 237 (2017) (citing DiProspero, 183 N.J. at 492). We only consider extrinsic sources, such as legislative history, if the words of the statute are "ambiguous, " or if "a literal reading of the law would lead to absurd results." Ibid, (citations omitted). Courts must not "disregard plain statutory language to replace it with an unenacted legislative intent . Dempsey v. Mastropasqua, 242 N.J.Super. 234, 238 (App. Div. 1990) .

         Even if we were to regard the Legislature's definition of a "drug overdose" in N.J.S.A. 24:6J-3 as ambiguous, or as being somehow prone to yield absurd outcomes, extrinsic sources concerning the provision are not particularly informative. The available legislative history does not provide any direct or explicit insight concerning the definition that the Legislature crafted. We have not found, nor been furnished with, written legislative reports or materials that specifically address the intended meaning of the term, beyond the words of the statute itself. In addition, we have not been able to glean any illuminating commentary from the audio recordings of the legislative sessions on the OPA that took place in the State Senate and General Assembly.

         Linguistically unpacked, the rather lengthy definition of a drug overdose within N.J.S.A. ...

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