On February 26, 2018, a three-judge appellate panel decided the Monmouth County case of State v. W.S.B. The principle issue under N.J.S.A 2C:35-31 was whether the trial court had sufficient evidence to dismiss an indictment for possession of heroin based on immunity under the Overdose Prevention Act, when an officer, responding to a report of an “intoxicated” person, immediately summoned EMTs who then saved defendant’s life from an intentional drug overdose.
Writing for a unanimous panel, Judge Sabatino held in relevant part as follows. Having addressed the substantive facets of the OPA, we now turn to a few procedural questions, hoping to provide some guidance in this opinion of first impression. We address concerns about the appropriate time for the statutory immunity to be raised and resolved, and how to best deal with material questions of fact that bear upon its applicability. These concerns were explored at some length in oral argument before the trial court and this court, and we appreciate counsel’s desire that we address them for prospective guidance.
The OPA is distinctively broad in declaring that its immunity “shall be” enforced at a wide span of chronological stages of the criminal process, specifically including arrest, charge, prosecution, and conviction. As a leading commentator has observed, the OPA’s protection “is more than a defense; it is broader. It forbids arrest and prosecution, so it may be a ground for release and for dismissal of charges.” The Office of the Attorney General has expressed apparent agreement with this basic proposition, stating in a directive: “[T]he law clearly precludes not only an arrest, but also an ensuing prosecution or conviction.” Attorney General’s Directive to Ensure Uniform Statewide Enforcement of the “Overdose Protection Act”, § 7, from John J. Hoffman, Attorney General, to All County Prosecutors (June 25, 2013).
This preamble appears to foreshadow a decision in the defendant’s favor. However, the panel ultimately rules in favor of the prosecution.