Overdose Self-Reporters:Immune From Prosecution

This was an appeal out of Dauphin County.  The sole issue on appeal was over the interpretation of the Drug Overdose Response Immunity statute, 35 P.S. § 780-113.7.  That statute provides immunity from prosecution for certain crimes when a person has a reasonable belief someone is suffering from an overdose and contacts local authorities.  In relevant part, the statute reads as follows:

(a) A person may not be charged and shall be immune from prosecution for any offense listed in subsection (b) and for a violation of probation or parole if the person can establish the following:

(1)law enforcement officers only became aware of the person’s commission of an offense listed in subsection (b) because the person transported a person experiencing a drug overdose event to a law enforcement agency, a campus security office or a health care facility; or

(2) all of the following apply:

(i)the person reported, in good faith, a drug overdose event to a law enforcement officer, the 911 system, a campus security officer or emergency services personnel and the report was made on the reasonable belief that another person was in need of immediate medical attention and was necessary to prevent death or serious bodily injury due to a drug overdose;

(ii)the person provided his own name and location and cooperated with the law enforcement officer, 911 system, campus security officer or emergency services personnel; and

(iii) the person provided his own name and location and cooperated with the law enforcement officer, 911 system, campus security officer or emergency services personnel; and

(iv)the person remained with the person needing immediate medical attention until a law enforcement officer, a campus security officer or emergency services personnel arrived.

(b)The prohibition on charging or prosecuting a person as described in subsection (a) bars charging or prosecuting a person for probation and parole violations and for violations of section 13(a)(5), (16), (19), (31), (32), (33) and (37).1

(c)Persons experiencing drug overdose events may not be charged and shall be immune from prosecution as provided in subsection (b) if a person who transported or reported and remained with them may not be charged and is entitled to immunity under this section.

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Here, the question posed for the Superior Court to answer was whether immunity applies to a person who self-reports themselves as overdosing.  The Superior Court held that it does.  The Court reasoned that “while the language of the statute does not explicitly provide for immunity [for self-reporters], denying [ ] immunity in this case would frustrate the Legislature’s intent in passing the act.”  The Superior Court noted, “the Act is designed to save lives by sacrificing the enforcement of minor narcotics criminal penalties.”

Admittedly, the Superior Court recognized that the plain language of the statute conditions the grant of immunity on the presence of two parties: a reporter and a victim.  That is evident by the use of the phrase “another person” under subpart (a)(2)(i).  But despite this language the Superior Court said it is unclear that this requirement was intended.  The court goes on:

The Act does not explicitly exclude immunity for self-reporters.  [E]xcluding self-reporters from the immunity granted by the Act would lead to absurd results.  Using the facts of this case as an example, we could hold that Lewis was not immune because she self-reported and affirm her conviction.  However, if she had summoned anyone else—a neighbor, or passerby, for instance—to phone the police for her, it is clear she would qualify for immunity under the Act.

We do not believe the Legislature intended this absurd dichotomy in results. . . . We cannot believe the Legislature intended to weigh the life of a self-reporter below the life of a drug overdose victim who has a conscientious associate.  Whether a life is worth saving should not depend on the presence of a third party.

Thus, for these reasons, the Superior Court held that the immunities provided for under law are available to self-reporters.