On April 29, 2025, a three-judge appellate panel decided the Cape May County case of State v. C.C.W. The principal issue under N.J.S.A. 2C:35-31 was whether immunity for drug possession under the Overdose Protection Act is available when the defendant can prove that suicidal ideation was a result of drug use.
Judge Susswein wrote for the Court in relevant part: Applying the foregoing principles to the matter before us, we are concerned that the trial court misperceived the OPA’s causation requirement when it found that the acute condition was not “drug related.” The court appears to have assumed that the OPA requires proof defendant was under the influence of a CDS when she was taken to the hospital. It highlighted, for example, the CRMC “drugs of abuse” test was cancelled, suggesting that the hospital staff did not believe defendant was under the influence of methamphetamine or any other CDS.
Relatedly, the trial court noted the fact that police called for an emergency psychiatric screener, rather than EMS, shows responding police believed defendant was experiencing a psychiatric disorder, not a drug overdose. The court’s finding that defendant’s suicidal behavior was attributable to a psychiatric disorder is well-supported, however, this discounts the possibility that she also was suffering the effects of a co-occurring substance use disorder. In sum, the trial court embraced an interpretation of “drug overdose” that may be consistent with the common and ordinary meaning of the term, but is narrower than the Legislature’s broad definition in the OPA.
In these circumstances, we deem it necessary to remand for a new hearing focusing specifically on whether defendant can prove the causation element, that is, whether a layperson in R.S.’s position would have believed defendant’s acute condition resulted from her CDS use. We take no position on whether the causation element is satisfied in this case, and offer the following remand instructions and comments.
Defendant shall be afforded an opportunity, if she chooses, to present additional evidence on the causation question, which may include but need not be limited to testimony from R.S. While we ordinarily would be reluctant to allow a party to expand the record on remand to meet its burden of persuasion, we note that in this instance, the State acknowledges in its appeal brief that under the OPA, “defendants in [C.C.W.]’s position get a ‘second bite at the apple’ on the OPA immunity question at trial.” See W.S.B., (holding “the defense must be afforded a final opportunity at trial to persuade a jury as the ultimate fact-finder . . . and marshal further proofs and arguments on the immunity subject”). Mindful that the concept of causation can be challenging to explain to a jury, we deem it prudent to afford the trial court and parties an opportunity to resolve the causation issue at an in limine hearing rather than broach this fact-sensitive question for the first time at a jury trial at which additional evidence is presented.
Further, defendant shall be permitted to present expert testimony on the question of causation, provided, of course, the expert(s) are properly qualified under N.J.R.E. 702.
We acknowledge that the W.S.B. court noted: Expert knowledge by the party who pursues medical assistance therefore is not required to trigger the OPA’s immunity. Nor is such expert knowledge dispositive. The pertinent inquiry is not what an expert would conclude about the subject’s condition. Rather, the nature and urgency of the situation is to be viewed through the eyes of an average person. That does not mean, however, that defendant is categorically precluded from presenting expert testimony generally explaining any possible relationship between chronic substance use and suicidal ideation as well as specifically considering any information R.S. knew about defendant’s history of substance use and suicidal ideation.
The State also acknowledged at oral argument that defendant may present expert testimony at trial regarding the causal nexus between defendant’s CDS use and the acute condition prompting R.S.’s 911 call. We see no reason why evidence pertaining to immunity that might be introduced at trial may not also be presented at the remand hearing. Similarly, the State at the remand hearing may present expert testimony to support its position that defendant’s suicidal thoughts were not the result of CDS use within the meaning of the OPA.
Finally, we reiterate that under the OPA, as interpreted in W.S.B., defendant bears the burden of establishing the grounds for immunity by a preponderance of the evidence. As we have explained, we are satisfied she has already met that burden with respect to two of the three elements of the definition of “drug overdose.” It remains for her to prove that a lay person in R.S.’s position would believe defendant’s suicidal ideations were the result of her substance use, applying the “err on the side of caution” approach recognized in W.S.B.
If the trial court on remand determines that OPA immunity applies, the indictment shall be dismissed, subject to the State’s right of appeal. If the court concludes on remand that defendant does not qualify for immunity, the defense shall be afforded a final opportunity at trial to persuade a jury as the ultimate fact-finder.
The Overdose Prevention Act was signed into law by Governor Christie in 2013. The purpose of the Act was to encourage people to seek immediate medical assistance for an overdose. The State could argue that suicide prevention was not the purpose of the Act. However, the Act applies to accidental and intention drug overdoses. Since drugs are a common method of suicide and drug use is a victimless crime, the Appellate Division appears to have erred on the side of caution and made the correct decision.
