To the law enforcement agencies within Clark County:
New legislation went into effect on September 13, 2016. The new law, which is known as the “911 Good Samaritan Law” and is contained in House Bill 110 grants immunity from arrest and prosecution to certain individuals who seek medical assistance for a drug overdose. This law is not an absolute bar on our ability to prosecute people who overdose and are found to be in possession of drugs. Often, prosecution / court intervention is the only way to ensure that addicts get treatment for their substance abuse issues. Law enforcement officers should be aware of this law and how it affects decisions at the scene and in charging drug possession cases.
What is the effect of the law?
It provides certain “qualified individuals” with immunity from arrest, filing of charges prosecution, conviction, and imposition of penalties for minor drug possession offenses when the evidence of the offense was obtained as a result of: (1) the “qualified individual” seeking or obtaining medical assistance for a drug overdose experienced by another person: (2) the “qualified individual” seeking medical assistance for a drug overdose experienced by himself/herself; or (3) another person seeking or obtaining medical assistance for an overdose experienced by the “qualified individual.” “Seeking or obtaining medical assistance” includes, but is not limited to, making 911 call, contacting in person or by telephone call on on-duty peace officer, or transporting or presenting a person to a health care facility.
What offenses does it apply to?
The immunity provided under this law applies to minor drug possession offenses ONLY.
A minor drug possession offense is a violation of R.C. 2925.11(drug possession) that is a misdemeanor or a felony of the fifth degree. The evidence upon which the minor drug possession charge would be based must have been obtained as a result of the “qualified individual’s” seeking medical assistance for his/her own or another person’s drug overdose or as a result of another person’s seeking medical assistance for the “qualified individual’s” drug overdose.
Who qualifies for immunity this law?
A person qualifies for immunity if he/she meets ALL of the following criteria:
- is one of the following:
- a person acting in good faith who seeks or obtains medical assistance for another person who is experiencing a drug overdose;
- a person who is experiencing a drug overdose and seeks medical assistance for himself/herself for that overdose;
- a person who is experiencing a drug overdose and is the subject of another person seeking or obtaining medical assistance for that overdose; and
- is not on community control or post-release control; and
- has not received immunity under this law twice previously.
Are there any additional steps that the “qualified individual” must take to receive immunity?
Yes. Even if the individual qualifies for immunity under the law, the individual will not receive immunity UNLESS he/she does BOTH of the following:
- within 30 days after seeking or obtaining medical assistance for a drug overdose, the “qualified individual” must seek and obtain a screening and receive a referral for treatment from a community addiction services provider or a properly credentialed addiction treatment professional; AND
- upon the request of any prosecuting attorney, the “qualified individual” must submit documentation to the prosecuting attorney that verifies the he/she, within 30 days, sought and obtained a screening and received a referral from treatment from a community addiction services provider or a properly credentialed addiction treatment professional. The documentation shall be limited to the date and time of the screening obtained and the referral received.
What should law enforcement officers do at the scene of an overdose?
In light of this new law, if a law enforcement officer responds to the scene of an overdose pursuant to a request for medical assistance from the “qualified individual” or another person requesting medical assistance for the “qualified individual” and finds evidence of the “qualified individual’s possession of drug or other drug offense, the officer should:
- Seize the evidence if the officer legally would be permitted to seize the evidence under the Fourth Amendment. Nothing in the H.B. 110 limits the seizure of evidence or contraband that is otherwise permitted by law.
- Process the evidence as the officer normally would in any other case, which includes packaging, marking, tagging and storing the evidence as in any other case and sending it to the crime lab as in any other case. Nothing in H.B. 110 limits the admissibility of evidence in connection with the investigation or prosecution of a crime with regards to an individual who does not qualify for immunity under the law or with regards to any crime other than a minor drug possession offense committed by an individual who does qualify for immunity. If it is later determined that the individual does not qualify for immunity or has not taken the steps required to receive immunity, or if subsequent testing reveals that the evidence supports an offense that is more serious than a minor drug possession offense, we want to preserve our ability to prosecute that individual.
- Give the suspect a copy of the “911 Good Samaritan Law information card” provided by the Clark County Prosecutor’s Office. This card is the official written demand by the Prosecutor’s Office that triggers the suspect’s responsibility to obtain an assessment and a referral. Tell the suspect that failure to comply with the requirements set forth on the card will result in their prosecution. Document in the law enforcement report tha the suspect was given a the “911 Good Samaritan Law information card.”
- If the evidence provides probable cause for a minor drug possession offense only, DO NOT arrest the individual for possession of drugs. Do an incident report complete with the property receipt number for any drugs collected. Send any drugs collected to the lab for testing. Forward the report to the Clark County Prosecutor’s Office Attn: Greg Morris. The Clark County Prosecutor’s Office will make a determination of whether or not the person has taken the steps necessary to receive the qualified immunity. If the person does not qualify for immunity, the case will be set before the Grand Jury for a direct indictment.
- If the evidence obtained provides probable cause for an offense that is an F1,F2,F3, or F4 drug possession offense or any other misdemeanor or felony drug offense that is not possession, the officer may arrest the individual for that offense. H.B. 110 does not apply.
- If the evidence provides probable cause for BOTH a minor drug possession offense and an offense that is an F1,F2,F3, or F4 drug possession offense or any other misdemeanor or felony drug offense that is not possession, DO NOT arrest for the minor drug possession, but the officer may arrest for the other offense(s). Make a note in the report that the person was not charged with minor drug possession and the Clark County Prosecutor’s Office will determine whether or not the person has taken the steps necessary to receive the qualified immunity.
D. Andrew Wilson
Clark County Prosecutor