Groups split over proposed overdose immunity bill
By Joseph Whitney Smith
Capital News Service
Groups, including former drug users, are split over a Senate bill that would give immunity both to someone reporting and someone experiencing an overdose.
In a recent unanimous vote, the Senate passed Senate Bill 667, introduced by Sen. Jennifer Boysko, D-Fairfax. The bill expands on the current protection offered only to the person reporting the overdose, who can be charged with a crime but has an affirmative defense, which leads to dropped or reduced charges when proven they reported an overdose.
This new bill would offer immunity both to the person reporting the overdose and to the person experiencing the overdose, meaning no charges would be filed. The bill protects individuals from arrest or prosecution for the unlawful purchase, possession or consumption of alcohol, controlled substances or marijuana or possession of drug paraphernalia.
The legislation also states that no officers acting in good faith will be found liable for false arrest if it is later determined the individual arrested was immune from prosecution because they overdosed or reported an overdose.
“In Virginia, friends often do not call for help for fear of being arrested,” Boysko said at the committee hearing for the bill.
Boysko told Senate members that every second matters in an overdose and that data show bystanders are three times more likely to call 911 when there is a safe reporting law such as her proposed bill. She also said that the state needs to stop criminalizing individuals that are attempting to seek urgent help for themselves or others.
“Virginia’s death toll from opioid overdoses continues to rise despite state and local government spending millions of dollars to make naloxone available,” Boysko said. “More than 1,500 died just in 2019 in Virginia from drug overdoses.”
According to the Virginia Department of Health, overdose is the leading cause of unnatural death in the state since 2013, followed by motor vehicle related and gun deaths.
“With the new law, we’re looking at a healthcare solution for a healthcare crisis,” said Nathan Mitchell, who said he was previously addicted to drugs. Mitchell now serves as the community outreach and advocacy coordinator at the McShin Foundation. Mitchell said the proposed bill does not provide protection for crimes such as distribution or a firearm at the scene of the overdose, only drug and paraphernalia possession.
According to Mitchell, drug incarceration is inconsistent in the commonwealth. He said after his first drug-related arrest, he wasn’t introduced to a recovery program. But, after his second arrest, he received treatment through the help of the McShin Foundation. He said that inconsistency is an example that not all individuals who overdose will have access to the same treatment.
Drug courts are specialized courts where individuals plead guilty and agree to complete the drug court program. Not every locality in the commonwealth has a drug court, though state law authorizes any locality to establish one with the support of existing and available local, state and federal resources.
Mitchell said individuals may not report an overdose to help protect the individual overdosing from being charged with a crime. He said that’s why a bill granting immunity to both parties is important.
John Shinholser, president and co-founder of the McShin Foundation, a nonprofit that focuses on recovery education and recovery, testified in favor of Boysko’s bill.
“This is evidence-based, data-driven proof that this bill will reduce deaths in Virginia during this crisis,” Shinholser said.
Goochland County resident Micheal McDermott spoke in opposition of Boysko’s bill during the Senate committee meeting. McDermott said he’s been in recovery from substance abuse disorder for more than 28 years. The bill has good intentions, but immunity should only be given to the person reporting, not overdosing, McDermott said.
“I don’t think it’s a good idea,” he said.
There’s no guarantee that an overdose victim treated by paramedics will find recovery, McDermott said. If the person overdosing is on probation, they should receive a probation violation, and perhaps get the needed court-mandated treatment.
Westmoreland County Commonwealth’s Attorney Julia Sichol spoke last month at a House subcommittee in opposition to similar legislation that failed to advance, on behalf of the Virginia Association of Commonwealth’s Attorneys. Sichol said she thinks a bill offering immunity “can also cause harm to lives” because it keeps the person overdosing from being charged with a crime and could possibly prevent them from receiving court-mandated treatment.
“Drug treatment is extremely expensive and sometimes the only way to get the treatment for the individuals is through the court system,” Sichol said. “If you take away the ability for individuals to be charged who have overdosed they are not eligible to participate in drug treatment program, they are not eligible to go through the court system under mandated treatment.”
On Friday, SB 667 was assigned to a House subcommittee.