Safe Reporting of Overdoses: Va. Code § 18.2-251.03

What Happens Legally if I Report an Overdose?

Va. Code § 18.2-251.03 sets out parameters for an affirmative defense when a person reports an overdose and in possession of illegal drugs, or is otherwise in violation of certain laws regarding possession, intoxication or use of drugs or alcohol:

It shall be an affirmative defense to prosecution of an individual for the unlawful purchase, possession, or consumption of alcohol pursuant to § 4.1-305, possession of a controlled substance pursuant to § 18.2-250, possession of marijuana pursuant to § 18.2-250.1, intoxication in public pursuant to § 18.2-388, or possession of controlled paraphernalia pursuant to § 54.1-3466 if:

(A) Such individual, in good faith, seeks or obtains emergency medical attention for himself, if he is experiencing an overdose, or for another individual, if such other individual is experiencing an overdose, by contemporaneously reporting such overdose to a firefighter, as defined in § 65.2-102, emergency medical services personnel, as defined in § 32.1-111.1, a law-enforcement officer, as defined in § 9.1-101, or an emergency 911 system;

(B) Such individual remains at the scene of the overdose or at any alternative location to which he or the person requiring emergency medical attention has been transported until a law-enforcement officer responds to the report of an overdose. If no law-enforcement officer is present at the scene of the overdose or at the alternative location, then such individual shall cooperate with law enforcement as otherwise set forth herein;

(C) Such individual identifies himself to the law-enforcement officer who responds to the report of the overdose; and

(D) The evidence for the prosecution of an offense enumerated in this subsection was obtained as a result of the individual seeking or obtaining emergency medical attention.

Va. Code § 18.2-251.03

Meeting all of the above criteria is the only way to avail oneself of this affirmative defense, and it is only available to the person who seeks emergency medical attention. This affirmative defense does not apply if the medical attention is sought during a lawful search. An affirmative defense does not prevent officers from charging you with a crime, nor does it prevent the Commonwealth from pursuing prosecution, rather, it must be raised at trial.

Should I Hire an Attorney?

Yes. If you are facing possible drug charges, it is important to have quality representation. When this affirmative defense is potentially available, it is at least as -if not more- important to make sure you have counsel who can correctly and effectively assert this defense, so that it is not waived or otherwise lost.

Contact our attorneys Farheena Siddiqui and Brian Szmak to talk about your options.