Photo by Hal Gatewood on Unsplash
Andrew Lance, Associate Member, University of Cincinnati Law Review
I. Introduction
Medical amnesty and Good Samaritan laws provide protections and immunity from prosecution when seeking assistance for a medical emergency, typically an overdose. When a person is experiencing an overdose, or if another person (“the caller”) seeks assistance for that person, in certain situations they may not be criminally culpable. When circumstances permit the caller to believe someone needs medical assistance and, as a result, that person is subjected to prosecution based on a qualifying crime, the person may have a statutory right to dismissal of certain charges.
The legal issue concerns what medical conditions qualify as an overdose, particularly when statutory overdoses are defined by how the caller perceives the situation. Milner v. Commonwealth and Wilson v. Commonwealth (2019) were two Kentucky Appeals Court cases that ruled an overdose had to actually occur for protections to apply.[1] In Wilson v. Commonwealth (2021), the Kentucky Supreme Court overturned the appellate courts’ holding and ruled that a medical overdose is not required for protections, but that the caller must have some reasonable basis for concluding an overdose is possible.[2] This article will begin by explaining the various state requirements for medical amnesty protections in Part II. In Parts III, IV, and V, this article will explore the various interpretations and tests implemented recently by Kentucky courts to identify a qualifying overdose, and it will conclude in Part VI with suggestions on improvements moving forward to create a clearer and more effective medical amnesty scheme.
II. State by State Approach
The opioid epidemic has led the vast majority of states to enact some kind of medical amnesty law for drugs and alcohol.[3] Legislatures recognize that the fear of legal consequences for drug and alcohol offenses leads to worse public health consequences.[4] In response to that fear, states across the country have enacted laws that encourage citizens to seek medical assistance in emergency situations by providing the caller, the victim, or both protections against prosecution for drug offenses.[5] These statutes have shown a positive correlation with reduced opioid deaths,[6] but to be most effective, literature suggests the statutes should grant immunity in a broad range of overdose events while simultaneously making citizens confident that police and prosecution will abide by those protections.[7]
States have taken a variety of approaches to drafting and implementing these amnesty laws. In some states, both the overdose victim and caller are afforded protection by amnesty statutes.[8] In order to avail themselves of this protection in some jurisdictions, the caller may be required to remain on the scene of the overdose, cooperate with the EMS or police, provide their name, be the first to call, or have a reasonable belief or good faith that an overdose is occurring.[9]
States also have different policies on what kind of substance overconsumption can qualify for the amnesty provisions.[10] Some states afford amnesty coverage for drugs and alcohol, while others limit the protections to only drugs, and still others only cover specific categories of drugs.[11]
States have different procedures for applying protection from criminal consequences via medical amnesty laws to effectuate the policy of seeking medical assistance.[12] Some states provide full immunity while others only offer mitigation at sentencing hearings.[13] Amnesty laws across the country vary greatly in scope and coverage. For example, some jurisdictions provide protections for infractions like drug paraphernalia and distribution while others only provide mitigation or otherwise no protection at all.[14] States also have different rules on whether people can be charged with other non-drug related crimes if they receive immunity through an amnesty provision or if police can gather evidence for prosecution of other crimes while responding to an overdose report.[15]
However, when the prosecution is independent of the overdose event, such as when an officer obtains consent or a search warrant, the protections may not apply.[16] Generally, the legal theory is that the medical amnesty laws protect individuals from prosecution that directly results from the overdose and need for medical assistance.[17] This line limits the law from becoming too expansive in its application. Therefore, even if the police would not be at the scene but for the call for assistance, circumstances exist where the prosecution would be found to not result from the overdose event.
The disputed criteria for immunity under cases like Milner and Wilson is what qualifies as an overdose for medical amnesty to apply.[18] Because not all states provide a statutory definition for “overdose,” a legal overdose under the statute could either be synonymous with the medical definition or have a statutory definition distinct from the medical or common understanding of an overdose. The definitions can be very expansive due to the general association of illness with substance use or the caller’s observations of the scene being the sufficient qualities of an “overdose,” yet courts often draw a line to prevent all substance consumption from qualifying.[19] Under some definitions, the caller’s “reasonable belief an overdose is occurring” formed from their observations could create a protectable overdose even if one was not actually occurring.[20]
III. Milner v. Commonwealth
In Milner, the caller reported an unconscious person, Milner, in the front seat of the car in a business parking lot.[21] The caller was suspicious that alcohol may be involved, but ultimately the 9-1-1 dispatcher justified seeking help because “it could be medical, you don’t know.”[22] The responding officer woke up the individual, observed a glass pipe and small bag with an unknown substance, and obtained consent to search the car where the officer found more drug-related evidence.[23] Milner was then arrested and later charged with multiple drug offenses.[24]
Kentucky’s medical amnesty law, referred to as the “Good Samaritan statute” generally requires that someone seek medical assistance for a drug overdose in good faith to be immune from prosecution.[25] Under Kentucky’s Good Samaritan law, a drug overdose:
means an acute condition of physical illness, coma, mania, hysteria, seizure, cardiac arrest, cessation of breathing, or death which reasonably appears to be the result of consumption or use of a controlled substance, or another substance with which a controlled substance was combined, and that a layperson would reasonably believe requires medical assistance.[26]
In applying the above statute, the circuit court found that no medical treatment was given to or needed by Milner.[27] However, the circuit court found that the fact that Milner was not overdosing did not prevent the protections under the Good Samaritan statute from applying.[28]
The appellate court overruled this decision and took a hardline stance that the statute literally required the “evidence be obtained as a result of the drug overdose and the need for medical assistance.”[29] In this way, the appeals court asserted that the protections were wholly contingent on the existence of a drug overdose.[30] The subjective belief of the person seeking assistance was irrelevant, meaning that an “apparent, perceived, or presumed” drug overdose was not sufficient to trigger the statute’s protection absent an actual overdose.[31]
The appellate court’s rationale[32] was the caller never attempted to render aid or approach the vehicle, so she could not have observed the drugs or have seen the individual’s disposition.[33] Only seeing someone passed out was not enough to reasonably conclude an overdose was occurring.[34] This conclusion was reached by the court despite the evidence of the 9-1-1 call showing the dispatcher and caller’s concern that something could have been occurring.[35] The caller did not testify, but the caller believed something was wrong necessitating medical help, as evidenced by the call.
A major logical issue with Milner’s conclusion that an overdose must exist is that the statute only requires someone to seek help for an illness associated with substance consumption to qualify as an overdose.[36] When that individual receives medical attention, logically the situation would be less likely to develop into a medical overdose.[37] Ultimately, the result of the Milner precedent would have caused callers and individuals needing assistance to be punished for not suffering the undesired medical outcomes the laws are trying to prevent. The legislature made a conscious choice to sacrifice potential prosecution in exchange for greater public health goals. Thus, drawing a fine line between overdose outcomes and circumstances that may lead to overdose outcomes would not serve this public policy interest by alleviating the fear of prosecution but instead would make the decision to seek help even more complicated.
IV. Wilson v. Commonwealth (2021)
In contrast, the Kentucky Supreme Court in analyzing overdose amnesty adopted a reasonable person standard, an objective standard that asks: under the objective facts available to the caller, could they conclude an overdose was occurring?[38] This test is derived from Kentucky’s definition of overdose, which requires that the person’s condition: “…reasonably appears to be the result of consumption or use of a controlled substance.”[39] The application of the test accounts for all objective facts available to a reasonable person observing the scene.[40]
The Kentucky Appeals Court in Wilson found that the caller observed two people passed out in a car in the caller’s driveway.[41] The caller approached the car with dark tinted windows and attempted to wake the occupants.[42] The responding officer also attempted to wake the occupants and went to each car door to see if any were unlocked.[43] During the process of checking the doors, the officer noticed a plastic cap with sticky residue and tourniquets, then banged on the window louder to wake the occupants.[44] Next, EMS arrived and no medical treatment was given.[45] The 9-1-1 call was not entered into evidence nor did the caller testify, but the ambulance arrived because the 9-1-1 operator requested it.[46] Wilson, one of the car’s occupants, was then placed under arrest and the officer searched the car.[47]
As both lower court cases had substantially similar facts, a key difference between Wilson and Milner was that the caller in Wilson approached the car and attempted to wake the occupants.[48] The Kentucky Supreme Court in Wilson relied on the fact that the record showed no evidence that the caller saw the cap or tourniquets. The court opinion found that the unconscious state could be from any number of other medical conditions, so the caller could not reasonably conclude an overdose was occurring.[49]
Though the Wilson court affirmed the rulings against the defendants, it made sure to clarify and dispel potentially dangerous precedent established in Milner. The Wilson court clarified that the person for whom medical assistance was sought does not actually have to overdose, otherwise the legislature would not have included a specific definition different than the medical definition.[50] Under Wilson, the requirement is that an acute condition of physical illness, coma, mania, hysteria, seizure, cardiac arrest, cessation of breathing, or death reasonably appears to be related to use of controlled substances which a layperson would reasonably believe requires medical assistance.[51] Through this clarification of precedent, the Wilson court alleviated the chilling effect caused by lack of confidence that someone was actually overdosing that could discourage people to call for medical assistance for fear of prosecution.[52]
V. Analysis
As the Kentucky Supreme Court recognized, requiring an actual overdose would have a chilling effect on the desired public policy of encouraging citizens to seek medical assistance for such emergencies.[53] Though caselaw is limited, few states require an actual overdose to have occurred for the caller to avail themselves of that state’s statutory protections.[54]
While the Kentucky Supreme Court took steps towards eliminating this chilling effect, the court could have further clarified what is required for exemptions by not characterizing the “overdose” as a result that can be declared present or not present. Some state legislatures have not used the medical definition of overdose, but instead have often used a definition that evaluates the caller’s reasonable belief or good faith.[55] This means that a statutory overdose is often when a reasonable person might believe an overdose was possible. Because these laws are intended to encourage bystanders to seek help, the benefit of the doubt should be given to the caller; because the caller sought help, the requested assistance should be presumed reasonable.[56] This is especially true given the public’s general hesitance to call for ambulances because of the egregious costs.[57] In short, if someone calls for help with an overdose, the statute should presume that they did so with a genuine intention to help and therefore apply amnesty protection.
The Kentucky Supreme Court should also clarify what exactly the duty of the caller is to avail themselves and others of protection under the statute. The Kentucky Supreme Court relied on neither caller communicating their intent to seek help for an overdose to the 9-1-1 operator.[58] However, that factual requirement in addition to the reasonable objective standard places a high bar on what the caller, an average person with minimal medical training, must know before a medical situation will qualify as an overdose. The court ignored that people are unlikely to present such speculation about their understanding of the nature of the emergency to an authority such as police, courts, or 9-1-1. The caller in Milner admittedly did not know, but she recognized that someone may be in need.[59] In ruling that the caller’s purpose in Wilson was likely for something other than help with an overdose, the Kentucky Supreme Court identified that the officer noticed the drug-related items through the car tint, but then found it unlikely that the caller saw those same items through the tint.[60]
The required knowledge and expression of that knowledge by the caller to the authorities is unclear. Even in situations such as Milner and Wilson where neither caller testified at trial and with limited 9-1-1 testimony, courts should be wary of making such uncertain affirmative duties when legislatures are trying to encourage medical cooperation, not impede it.[61] Though the trial courts lacked evidence because neither caller testified, the court did not need to interpret the caller’s actions identically.[62] The caller in Wilson was supposedly unconcerned with the driver’s health or at least less so than the presence of an unknown car on her property.[63] However, the caller in Milner found a drover passed out in a public parking lot with the car door open and discussed with 9-1-1 the medical situation that “he could be drunk,” so clearly medical concern existed.[64] Given that the overdose definition in Kentucky is broad enough to include acute physical illness and coma, facially a finding of an unconscious person in public where one should probably not be asleep could be reasonable to believe medical assistance was necessary. Though it would be ineffective policy, if the court or statute requires the caller to investigate or confirm the possibility of an overdose, the law should be explicit. Otherwise, a caller who may be overly cautious, a Good Samaritan, or someone that would not limit their assistance to others based on whether they believe only an overdose is likely to occur is less likely to benefit from participating in the actions the laws are intending to encourage.
Another way the statutory interpretation should be more lenient is where if the caller was unobservant and the occupants were in need of certain medical attention, the caller’s lack of knowledge or awareness of the specific medical event should not preclude protection from applying. For example, in Wilson, the court found that it was more likely that the caller was just seeking to remove the vehicle’s occupants from her property and not concerned with the medical situation, but what if the occupants were actually suffering from an overdose? This type of policy is not without precedent—a Georgia appellate court found the state’s amnesty statute applicable when the individual was suffering an overdose, but the caller believed he had been hit by a car.[65] Therefore, a better option than to solely evaluate the objective facts to find if the caller could have concluded an overdose was occurring would be where if the caller could not reasonably draw that conclusion, a qualifying overdose or medical condition actually occurring should be a sufficient but not a necessary condition for protection under the statute. Even if the caller could not in good faith say they believed an overdose was occurring, the motivation or intent should not matter if the overdose event actually occurred.
A court’s interpretation of medical amnesty statutes should instill confidence in the public that they will be protected when adverse medical situations occur affecting themselves or others. Whether someone who suffered an overdose is exempt from prosecution should not turn on whether the bystander subjectively had enough facts to conclude the true nature of the situation. If the caller believed an overdose was occurring but medical assistance was ultimately unnecessary, the statute should still provide protection. This combination of bystander knowledge and medical circumstances would presumably only exclude cases where the caller could not believe an adverse medical condition was possible or cases where medical assistance was not necessary.[66] This means that Milner when compared to Wilson should have been ruled differently because Milner’s caller suspected or was convinced by 9-1-1 that an adverse medical situation was possibly occurring, justifying seeking medical assistance.[67]
To better serve the legislative purpose of encouraging people to seek help, the more important inquiry should be whether or not medical assistance was sought or given.[68] A legislature should not expect a layperson to be able to accurately diagnose or predict the outcome of a medical situation where they believe help may be necessary in order to fall under the protections of a medical amnesty law. Such statutes seek to prevent the harmful outcomes of an overdose, so an effective application of the statute should strive to encourage people to seek help before the overdose becomes obvious; by that point treatment may be too late to save the person. Inevitably, this preemptive approach means that someone will seek help for an overdose that that may not fit neatly in that definition. In such a situation, the only workable outcome is for such a caller to be protected under medical amnesty laws, even if this results in more false alarm calls. Ultimately, the potential lives saved by this policy will outweigh any minor inconveniences.
VI. How Legislatures Could Improve Good Samaritan Laws
State legislatures enacted these medical amnesty laws for a noble purpose—to improve drug-related medical outcomes. Subsequently, the Kentucky Supreme Court took reasonable yet imperfect steps to prevent lower courts from severely limiting the law’s purpose. However, because courts are confined to the words of the statute and legislative intent, they will often choose not to make exceptions to or expand statutes where the legislature had the prior ability to do so.[69] Legislatures could easily expand the protections of the laws as noted by one court in writing that, “[i]f the legislature had intended to include those who were merely under the influence, the legislature could have readily said so.”[70] However,“[t]he legislature intended [The Overdose Protection Act] to protect only those persons suffering from medical distress after an overdose.”[71]
The call for assistance can still have a reasonableness requirement, but requiring a reasonable belief that the symptoms are likely to result in an overdose precludes the many other medical situations that might apply and creates a chilling effect for citizens potentially seeking assistance for borderline-overdose situations. The requirements for exemption from prosecution should instead focus on whether the caller requested medical assistance in general or help with a person’s unknown condition. The caller in Milner happened upon an unresponsive person and was acting as a Good Samaritan seeking help.[72] The statutes could still focus on crimes such as drug possession, but if the medical situation was a heart attack instead of an overdose, that distinction does not serve the public health goals. If the legislative goal was to encourage citizens to seek medical assistance without fear of prosecution, whether medical need fits into the parameters of an individual state’s definition of overdose is an unnecessary complication.
The Kentucky Supreme Court in Wilson may have alleviated some worry about a qualifying overdose, but the court’s opinion and the Kentucky statute do little to encourage seeking medical assistance for unknown situations. The 9-1-1 dispatcher from Milner emphasized that “you don’t know” is a reasonable justification for seeking further help for an unconscious individual.[73] A standard of reasonably seeking assistance with medical emergencies could create confusion with the vast number of situations where medical need and non-drug crimes overlap, such as traffic accidents and substance use, but courts should recognize the situations where police would not be at the location but for the concern for another’s safety.[74] The good faith purpose in seeking help for those in need should be the most important criteria in deciding whether medical amnesty should apply.[75]
At least in the situations where drugs or alcohol are involved, the required element of an overdose for application of medical amnesty creates wasteful litigation, such as the Milner and Wilson cases. Litigation over whether an overdose occurred still imposes the burden of dealing with prosecution which is why a broader inquiry into medical concern is more readily utilizable. This still requires good faith from the prosecution to take initiative and dismiss such cases. In addition to greater deference and presumption that a caller is seeking help with a legitimate medical or even non-overdose event, the inquiry into whether or not medical assistance in general was sought or assistance was given is much simpler than the objective and subjective tests discussed by the Kentucky Supreme Court in Wilson v. Commonwealth.[76]
VII. Conclusion
Wilson v. Commonwealth emphasized that for the protections against prosecution to be applied to people suffering a potential overdose, an actual overdose is not required.[77] The resulting standard in Kentucky is to analyze the facts available to the caller to determine if it was objectively reasonable for the caller to conclude an overdose was occurring.[78] Though, this standard is better than the possible alternative from Milner v. Commonwealth.[79] Because the definition of overdose is overbroad and inclusive of many medical situations, a more effective test should consider whether the caller reasonably sought assistance with a medical event.[80] The variety of circumstances that justify seeking medical help as well as the various symptoms that may or may not be predictive of an overdose justify the conclusion that the definition of “overdose” applied by Kentucky courts is far too restrictive to afford adequate protection and fulfill the intended public policy goals of amnesty laws.[81] Medical amnesty laws should encourage citizens to seek medical help for their peers in all situations, and whether that request for medical assistance was reasonable or not, the burden of legal consequences should not fall on the unsuspecting third party.
[1] Commonwealth v. Milner, No. 2018-CA-001547-MR, 2019 Ky. LEXIS 182 (Ky. Ct. App. 2019); Wilson v. Commonwealth, No. 2018-CA-001087-MR, 2019 Ky. LEXIS 487 (Ky. Ct. App. July 2019).
[2] Wilson v. Commonwealth, 628 S.W.3d 132, 142 (Ky. 2021) (The court overturned the holding but ultimately affirmed the convictions under the application of the court’s test).
[3] Thomas Griner, Sheryl Strasser, Catherine Kemp, Heather Zesiger, State by State Examination of Overdose Medical Amnesty Laws, 40 J. Legal Med. 171, 174 (2020).
[4] Id. at 173-74.
[5] Id. at 174-75.
[6] Chandler McClellan et al., Opioid-Overdose Laws Association with Opioid Use and Overdose Mortality, 86 Addictive BEHAV. 90-95 (2018).
[7] Griner, supra note 3, at 174-175.
[8] Id. at 176 (Table 2).
[9] Id. at 176.
[10] Id. at 176 (Table 2).
[11] Id.
[12] See Id. at 176 (Table 2).
[13] Id. at 175.
[14] Id. at 176 (Table 2 and Table 3).
[15] Id.
[16] Id. at 188-89.
[17] Id.
[18] Commonwealth v. Milner, No. 2018-CA-001547-MR, 2019 Ky. LEXIS 182, at *8-9 (Ky. Ct. App. 2019).
[19] Griner, supra note 3, at 191.
[20] Id. at 191-92.
[21] See Milner, 2019 Ky. LEXIS 182 at *1.
[22] See Wilson v. Commonwealth, 628 S.W.3d 132, 146-47 (Ky. 2021).
[23] See Milner, 2019 Ky. LEXIS 182 at *1-2.
[24] Id. at 2.
[25] See Ky. Rev. Stat. § 218A.133(2) (2021).
[26] Ky. Rev. Stat. § 218A.133(1)(a) (2021).
[27] Milner, 2019 Ky. LEXIS 182 at *8.
[28] Id.
[29] Id. at 8.
[30] Id. at 8-9.
[31] Id. at 8-9.
[32] Note: As explained by the Kentucky Supreme Court’s review of the case in Wilson.
[33] Wilson v. Commonwealth, 628 S.W.3d 132, 146 (Ky. 2021).
[34] See id. at 146-47.
[35] See id. at 137.
[36] See generally Ky. Rev. Stat. § 218A.133(1)(a) (2021).
[37] See Milner, 2019 Ky. LEXIS 182 at *8-9.
[38] Wilson v. Commonwealth, 628 S.W.3d 132, 142 (Ky. 2021).
[39] Id.
[40] Id.
[41] Id. at 145.
[42] Id. at 135.
[43] Id.
[44] Id. at 135-36.
[45] Id. at 136.
[46] Id. at 135-136.
[47] Id. at 136.
[48] Id.
[49] Id. at 145-46.
[50] See id. at 145.
[51] Id.
[52] Id.
[53] Id.
[54] See, e.g., State v. DiSalvo, No. W2-2018-0273A, 2020 R.I. Super. LEXIS 9, at *10-11 (R.I. Super. Ct. Feb. 7, 2020); contra State v. Wolf, No. A-1845-15T1, 2017 N.J. Super. LEXIS 2654, at *5-6 (N.J Super. Ct. App. Div. Oct. 23, 2017) (unpublished); contra State v. Silliman, 168 So. 3d 245, 247 (Fla. Dist. Ct. App. 2015).
[55] See Ky. Rev. Stat. § 218A.133(1)(a).
[56] See generally Griner, supra note 3, 173-175.
[57] See Melissa Bailey, Ambulance trips can leave you with surprising–and very expensive–bills, Washington Post (November 20, 2017) (Therefore, it arguably could be presumed important if they called for help).
[58] Wilson v. Commonwealth, 628 S.W.3d 132, 145 (Ky. 2021).
[59] See id. at 146-47.
[60] See id. at 145-46.
[61] See id. at 135-137.
[62] See id.
[63] See generally id. at 136-37.
[64] See id. at 137.
[65] State v. Mercier, 826 S.E.2d 422, 425 (2019).
[66] See, e.g., State v. Silliman, 168 So. 3d 245, 247 (Fla. Dist. Ct. App. 2015).
[67] See Wilson, 628 S.W.3d at 137.
[68] See DiSalvo, 2020 R.I. Super. LEXIS 9 at *10-11.
[69] See id.
[70] State v. Wolf, No. A-1845-15T1, 2017 N.J. Super. LEXIS 2654, at *5-6 (N.J. Super. Ct. App. Div. Oct. 23, 2017) (unpublished).
[71] Id.
[72] Commonwealth v. Milner, No. 2018-CA-001547-MR, 2019 Ky. LEXIS 182, at *1 (Ky. Ct. App. 2019).
[73] See Wilson v. Commonwealth, 628 S.W.3d 132, 146-47 (Ky. 2021).
[74] State v. Mercier, 826 S.E.2d 422, 425 (Ga. App. 2019).
[75] See Pope v. State, 246 So. 3d 1282, 1284 (Fla. Dist. Ct. App. 2018) (Regardless of whether the caller should have behaved better, saving his friend was a sufficient good faith purpose to justify permitting the act to give him immunity from prosecution).
[76] See Wilson, 628 S.W.3d at 143-45.
[77] Id. at 145.
[78] Id. at 142.
[79] Commonwealth v. Milner, No. 2018-CA-001547-MR, 2019 Ky. LEXIS 182, at *8-9 (Ky. Ct. App. 2019).
[80] See Ky. Rev. Stat. § 218A.133(1)(a) (2021).
[81] See id; see Wilson, 628 S.W.3d at 143-45.
Author
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Andrew Lance is originally from Locust Grove, Georgia. Andrew chose the topics for his blog articles based on his experiences working at the Department of Public Advocacy in Kentucky.