Court ruling on suicidal man’s trip to ER broadens Virginia’s overdose amnesty law

Virginia’s Court of Appeals overturned a drug conviction for a man who told police he was trying to go to a Richmond-area emergency room in 2020 to get help after smoking crack and feeling suicidal, a ruling that widens the state’s medical amnesty law for drug and alcohol overdoses.

That law is meant to give immunity from arrest or prosecution to people seeking medical attention for an overdose by themselves or someone else, but the appeals court ruled Tuesday someone doesn’t have to prove they were actually overdosing to invoke it. 

Instead, the court ruled, a person’s belief they are experiencing an overdose or other life-threatening condition due to drug use can be enough to shield them from criminal charges while seeking medical care.

Roanoke-area lawyer John S. Koehler, who runs a blog about appellate opinions, said the ruling amounts to “a huge change in the law,” potentially allowing more Virginians stopped for alcohol or drug use to argue they shouldn’t be charged because they were heading to a hospital.

“If this ruling stands, and I put tremendous emphasis on if, it is going to significantly expand the application of that law,” Koehler said. “Primarily with respect to individuals who are themselves the person charged.”

In a 2-1 opinion that delved into dictionary definitions of basic words to argue what it means to be “experiencing an overdose,” the majority wrote that a law requiring defendants to have verifiable proof of an overdose would “cause people to hesitate before seeking emergency care.”

“It could make them ask questions like, ‘Am I really overdosing?’ ‘Would a reasonable person be overdosing if they took what I did?’ ‘Do I need a note from my doctor before calling 911?’” appellate Judge Stuart A. Raphael wrote in the majority opinion, joined by Judge Daniel E. Ortiz. “…The good Samaritan might waver, worrying that a mistake about whether the victim is, in fact, overdosing would trigger criminal liability for the both of them.”

In a sharply worded dissent, now-Supreme Court of Virginia Justice Wesley G. Russell Jr. said the majority was overreaching by adopting an argument the defendant himself didn’t make to dramatically reinterpret the medical amnesty law.

“This effective rewriting of the statute is outside the proper role of the judiciary because it amounts to legislating from the bench,” Russell wrote.

Koehler said he wouldn’t be surprised to see the state appeal the ruling by requesting a hearing before the full Court of Appeals or taking it to the Supreme Court of Virginia. The office of Attorney General Jason Miyares declined to comment on the ruling.

The appellate ruling centered on the case of a grocery store worker who was arrested in November 2020 outside an emergency room in Short Pump and charged with drug possession and driving under the influence of drugs. Henrico County police officers approached the man after seeing him driving erratically near the emergency room, according to court documents, and he told the officers he had recently smoked crack cocaine and went to the ER after having suicidal thoughts. The defendant was found guilty on both charges after pleading no contest. The possession charge resulted in a five-year sentence, with all but two months suspended.

The defendant then appealed by challenging the circuit court’s denial of his effort to invoke the medical immunity statute to suppress the drug evidence and dismiss the possession charge.  

The appeals court’s ruling vacated the possession charge and sent the case back to the lower court to decide whether Morris was entitled to legal immunity under the broader legal standard.

But the appeals court left no doubt about whether suicidal thoughts were also covered under the amnesty law’s wording, which defines an overdose as a “life-threatening condition resulting from the consumption or use of a controlled substance, alcohol or any combination of such substances.”

“A drug-induced impulse to kill oneself is ‘a life-threatening condition’ under that definition,” the majority wrote.

Russell took exception to that logic, saying nothing in the case proved Morris was indeed experiencing suicidal thoughts or that they were caused by his drug use. The new interpretation, he said, allows people who aren’t actually overdosing to claim legal protection under a law clearly meant for overdoses.

“There simply is no legitimate ambiguity in the meaning of the phrase ‘is experiencing an overdose,’” Russell wrote. “Certainly, the language unambiguously requires ‘an overdose.’”

The opinion states that judges could still make a determination on whether a defendant had a “good faith” belief they needed medical attention, and courts could simply reject immunity claims they find implausible.

“I can see a judge saying I don’t find your claim credible because you weren’t anywhere near a hospital,” Koehler said.