By Joseph Whitney Smith
Capital News Service
The groups, including former drug addicts, are divided into a Senate bill that would give immunity to both someone who reports and someone who has overdosed.
In a recent unanimous vote, the Senate approved Senate bill 667, presented by Senator Jennifer Boysko, D-Fairfax. The bill expands on the current protection offered only to the person who reported the overdose, who can be accused of a crime but has an affirmative defense, which leads to dropped or reduced charges when proven to have reported an overdose.
This new bill would offer immunity to both the person who reported the overdose and the person who underwent the overdose, which means that no allegations would be made. The bill protects people from arrests or prosecutions for the illicit purchase, possession or consumption of alcohol, controlled substances or marijuana or the possession of drug accessories.
The legislation also states that no agent acting in good faith will be held liable for false arrest if it is later found that the arrested individual was immune from the charge because he had overdosed or reported an overdose.
“In Virginia, friends often don’t ask for help for fear of being arrested,” Boysko said at the hearing of the bill committee.
Boysko told Senate members that every second is important in the event of an overdose and that data show that bystanders are three times more likely to call 911 when there is a secure reporting law such as the bill. He also said that the state must stop criminalizing people who are trying to seek urgent help for themselves or others.
“Virginia’s death toll from opioid overdose continues to grow despite the state and local government spending millions of dollars making naloxone available,” Boysko said. “More than 1,500 died in Virginia in 2019 from a drug overdose.”
According to the Virginia Department of Health, overdose has been the leading cause of unnatural death in the state since 2013, followed by motor vehicle accidents and gun deaths.
“With the new law, we are looking for a health solution for a health crisis,” said Nathan Mitchell, who said he had previously been addicted to drugs. Mitchell now serves as the community dissemination and defense coordinator of the McShin Foundation. Mitchell said the proposed bill does not provide protection for crimes such as distribution or a firearm at the overdose scene, only the possession of drugs and items.
According to Mitchell, drug incarceration is inconsistent in the Commonwealth. He said after his first drug arrest, he has not been introduced to a recovery program. But, after his second arrest, he received treatment through the help of the McShin Foundation. He said inconsistency is an example of the fact that not all overdosed individuals will have access to the same treatment.
Drug courts are specialized courts in which people plead guilty and agree to complete the drug court program. Not all Commonwealth locations have a drug court, although state law authorizes any location 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 from a crime charge. He said that’s why a bill that grants immunity to both sides is important.
John Shinholser, president and co-founder of the McShin Foundation, a nonprofit organization that focuses on recovery education and recovery, testified in favor of the Boysko bill.
“This is evidence-based and data-based evidence that this law will reduce deaths in Virginia during this crisis,” said Shinholser.
Goochland County resident Michael McDermott spoke in opposition to the Boysko bill during the Senate committee meeting. McDermott has said he has been cured of substance abuse disorder for over 28 years. The bill has good intentions, but immunity should only be given to the person reporting it, not to overdose, McDermott said.
“I don’t think that’s a good idea,” he said.
There is no guarantee that an overdose victim treated by paramedics will find recovery, McDermott said. If the overdose person is on probation, he should receive a violation of probation and perhaps obtain the treatment required by the court.
Westmoreland County Commonwealth Attorney Julia Sichol spoke last month in a House subcommittee in opposition to similar legislation that failed to advance on behalf of the Commonwealth of Virginia Bar Association. Sichol said he believed that a bill that offers immunity “could also cause harm to life” because it prevents the person who has an overdose from being accused of a crime and could prevent them from receiving mandatory treatment.
“Drug treatment is extremely expensive and sometimes the only way to get treatment for people is through the justice system,” said Sichol. “If you take away the ability to charge people who have had an overdose who are not eligible to participate in the drug treatment program, they are not eligible to go through the judicial system under compulsory treatment.”
On Friday SB 667 was assigned to a subcommittee of the Chamber.