The great tragedy of fatal drug overdoses is that many of them can be prevented if medical care is administered quickly. The difference between life and death can be someone in the room calling 9-1-1 quickly or making a drive to the hospital. Unfortunately, emergency aid is not rendered because the closest people to the overdose may have been using drugs themselves or otherwise fear being criminally associated with the controlled substances in the same room. Time ticks away and people die.
However, the Michigan Legislature took steps to prioritize saving lives over criminal prosecutions. Public Act No. 307 of 2016 became effective January 4th, 2017 and provided a “safe harbor” for individuals who would otherwise be guilty of possessing illegal drugs. The following individuals are exempt from prosecution for knowing or intentionally possessing certain controlled substances contrary to MCL 333.7403:
- “An individual who seeks medical assistance for himself or herself or who requires medical assistance and is presented for assistance by another individual if he or she is incapacitated because of a drug overdose or other perceived medical emergency arising from the use of a controlled substance or a controlled substance analogue that he or she possesses or possessed in an amount sufficient only for personal use and the evidence of his or her violation of this section is obtained as a result of the individual’s seeking or being presented for medical assistance.” MCL 333.7403(3)(a).
- “An individual who in good faith attempts to procure medical assistance for another individual or who accompanies another individual who requires medical assistance for a drug overdose or other perceived medical emergency arising from the use of a controlled substance or a controlled substance analogue that he or she possesses or possessed in an amount sufficient only for personal use and the evidence of his or her violation of this section is obtained as a result of the individual’s attempting to procure medical assistance for another individual or as a result of the individual’s accompanying another individual who requires medical assistance to a health facility or agency.” MCL 333.7403(3)(b).
The following definitions apply to these exemptions:
- “‘Drug overdose’ means a condition including, but not limited to, extreme physical illness, decreased level of consciousness, respiratory depression, coma, mania, or death, that is the result of consumption or use of a controlled substance or a controlled substance analogue or a substance with which the controlled substance or controlled substance analogue was combined, or that a layperson would reasonably believe to be a drug overdose that requires medical assistance.” MCL 333.7403(7)(a).
- “‘Seeks medical assistance’ means reporting a drug overdose or other medical emergency to law enforcement, the 9-1-1 system, a poison control center, or a medical provider, or assisting someone in reporting a drug overdose or other medical emergency.” MCL 333.7403(7)(b).
It should be noted that this good Samaritan exception ONLY applies in the prosecution of possession of controlled substances and does not prevent the investigation, arrest, charging or prosecution of any other violations of state or federal law. MCL 333.7403(5). For example, if there are guns present at the time of the emergency aid, this safe harbor provision does not prevent potential prosecutions for concealed weapons violations or felon in possession of firearms charges. In addition, this exception applies to possession crimes only and does not extend to drug trafficking, manufacture or distribution.
If an individual sought medical assistance for a drug overdose (either for his or her own person or for someone else), then that individual may have an absolute defense to a charge of unlawful drug possession. This shield provides an opportunity for that person in the right place and at the right time to save a life without worrying about criminal prosecution. If charges do arise, an experienced defense attorney can help present evidence to the court that said individual was trying to do the right thing.
If you or a loved one are facing accusations for controlled substance violations or any other criminal offense, do not hesitate to contact the criminal defense lawyers at Kershaw, Vititoe & Jedinak PLC.