January 29, 2018
appeal from Superior Court of New Jersey, Law Division,
Monmouth County, Indictment No. 17-03-0371.
do Outeiro, Assistant Prosecutor, argued the cause for
appellant (Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney; Monica do Outeiro, of counsel and on
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).
Judges Sabatino, Whipple and Rose.
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
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).
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.
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
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.
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.
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.
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.
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.
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.
History, Objectives, and Text of the OPA
adopting the OPA in 2013, the Legislature declared the
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).]
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
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
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).]
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).
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
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).
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.
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).
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.
Definition of "Drug Overdose" Within N.J.S.A.
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
[N.J.S.A. 24:6J-3 (emphasis added).]
the term "medical assistance" is defined in the OPA
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
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.
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
unpacked, the rather lengthy definition of a drug overdose
within N.J.S.A. ...