The Berks Barrister Winter 2017 - 16

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PENNSYLVANIA'S DRUG IMMUNITY STATUTE:
INTERPRETING A PUBLIC HEALTH LAW
in the criminal courts

Giving the Overdose Victim Immunity
By Roarke Aston, Esquire

T

here is little question that drug abuse has become
an increasing health crisis across the United States,
with tens of thousands of overdose deaths each year;
numbers far exceeding those reported less than two decades
ago.1 Not only has Pennsylvania not been spared from this
nationwide crisis, the problem is a particularly acute one in
the Commonwealth. Studies show that overdose rates in
Pennsylvania have risen by a staggering 89% between 1999 and
20112, and by 23% in just the period of 2010-2012.3 These rates
are significantly higher than national averages.4 This increase in
substance abuse is primarily driven by prescription opioids and
heroin.5
In response to studies documenting the dramatic increase
in overdose deaths, Pennsylvania passed legislation in 2014
designed to both encourage the reporting of suspected overdoses
to emergency responders and to allow access to life-saving
overdose treatment more promptly. Act 139 of 2014 amended
The Controlled Substance, Drug, Device and Cosmetic Act
("The Drug Act") to provide emergency responders training
with, and access to, naloxone medication which can be used
to treat an opioid overdose. Act 139 of 2014 also provides for
civil, professional and criminal immunity in the administration
of naloxone in certain circumstances, as well as immunity from
prosecution under certain sections of the Drug Act, in limited
circumstances, for those who report a drug overdose and those
who suffered an overdose which was reported.
This Act, particularly the portion granting certain immunity in
overdose response cases, was a noteworthy one in Pennsylvania's
criminal justice system. While it is inarguable that the health
and familial consequences of substance abuse are the primary
tolls on society, this issue is intertwined with and permeates
our criminal courts. The criminal charges arising directly out of
The Drug Act-such as possession of a controlled substance,

possession with intent to use drug paraphernalia, etc.-constitute
a sizeable portion of the Berks County criminal docket and,
presumably, the dockets of Common Pleas Courts across the
Commonwealth. While the number of drug cases which arise
out of a response to reported overdoses does not come near
to approaching a majority, such cases are not uncommon for
criminal practitioners. This Act will have, and has had, an impact
on the criminal bar.
While the general policy and effect of the Act is what is
important in battling the addiction crisis, the specific language of
the statute is imperative to practitioners. This section of the Act,
codified at 35 P.S. ยง780-113.7, reads in most relevant part:
(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

United States Department of Health and Human Services. Available at https://www.drugabuse.gov/related-topics/trends-statistics/overdose-death-rates.
Trust for America's Health, Pennsylvania State Report (2013), available at http://healthyamericans.org/reports/drugabuse2013/release.php?stateid=PA.
3
Don Sapatkin, Overdose Deaths Rise in PA, NJ. Philadelphia Inquirer, Oct. 22. 2014. Available at http://articles.philly.com/2014-10- 22/news/55284974_1_drugoverdoses-narcan-naloxone. (Accessed October 17, 2016).
4
The Network of Public Health Law, Act 139 Fact Sheet. Available at https://www.networkforphl.org/_asset/9r6xcz/PA-overdose-prevention.pdf
5
United States Department of Health and Human Services. Available at https://www.drugabuse.gov/related-topics/trends-statistics/overdose-death-rates.
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http://berksbar.org/ https://www.drugabuse.gov/related-topics/trends-statistics/overdose-death-rates http://www.healthyamericans.org/reports/drugabuse2013/release.php?stateid=PA http://articles.philly.com/2014-10 https://www.networkforphl.org/_asset/9r6xcz/PA-overdose-prevention.pdf https://www.drugabuse.gov/related-topics/trends-statistics/overdose-death-rates

Table of Contents for the Digital Edition of The Berks Barrister Winter 2017

The Berks Barrister Winter 2017 - 1
The Berks Barrister Winter 2017 - 2
The Berks Barrister Winter 2017 - 3
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The Berks Barrister Winter 2017 - 40
http://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Summer2019
http://www.nxtbook.com/hoffmann/BerksBarrister/BerksBarrister_Springr2019
http://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Winter2019
http://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Summer2018
http://www.nxtbook.com/hoffmann/BerksBarrister/berksbarrister_winter2017
http://www.nxtbookMEDIA.com