More frequently, we suspect that a defendant, as in this case, will move after he or she has been charged to dismiss the indictment or charges. The defendant may accompany that motion with proofs that go beyond the grand jury record, such as hospital or medical reports, or statements by eyewitnesses who observed his or her condition at the time medical assistance was sought.
The only imaginable scenario wherein the defense would choose to wait until trial before asserting immunity under the Act would be if a defendant failed to raise the issue until then. The time and expense of a trial are cost prohibitive as it takes several days to even impanel a jury. A related concern is that jurors’ prejudices towards users of hard drugs could militate against a finding of immunity.
If a bona fide factual dispute of OPA immunity is presented before trial, that issue ordinarily must be decided by the trial court before the time of trial. The need for a timely pretrial ruling on the subject is dictated by the terms of the statute, which protects a qualifying person not only from “conviction,” but also from arrest, charge, and prosecution. We reject the State’s suggestion that the issue be deferred to the time of trial.
We further conclude that the preferred means for the trial court to adjudicate the factual dispute in the distinctive context of the OPA immunity is to conduct an evidentiary hearing, unless the defendant elects to waive such a hearing and have the factual questions relating to the immunity decided by a trial jury.
In calling for hearings by trial courts to resolve fact issues in appropriate OPA immunity disputes, we recognize that, as a general proposition, our rules of court “do not authorize summary judgment-type procedures in criminal cases.” However, in certain situations involving whether an immunity from criminal prosecution is supported by the facts, our courts have recognized a narrow exception to that principle.