People v. Teper,2016 IL App (2d) 160063 (November). Episode 264 (Duration 10:51)

Defendant overdosed on heroin, and was slumped over in her car, can she be prosecuted?

Slumped Over

Police were notified that defendant was slumped over in her car.

They found her and administered narcan because it looked like a heroine overdose. When she came to they charged with class 4 possession for the items they find in the car with her.

Overdose Limited Immunity

Part of the Drug Act says that,

“A person who is experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section.”

720 ILCS 570/414(c).

However, section (e) says that,

“The limited immunity described in subsections (b) and (c) of this Section shall not be extended if law enforcement has reasonable suspicion or probable cause to detain, arrest, or search the person described in subsection (b) or (c) of this Section for criminal activity and the reasonable suspicion or probable cause is based on information obtained prior to or independent of the individual described in subsection (b) or (c) taking action to seek or obtain emergency medical assistance and not obtained as a direct result of the action of seeking or obtaining emergency medical assistance. Nothing in this Section is intended to interfere with or prevent the investigation, arrest, or prosecution of any person for the delivery or distribution of cannabis, methamphetamine or other controlled substances, drug-induced homicide, or any other crime.”

720 ILCS 570/414(e).

She Says She Can't Be Prosecuted

Defendant argued that she was not required to have sought medical assistance for herself, as it would be difficult for anyone experiencing an overdose to seek such assistance, and the statute uses the phrase “seek or otain”.

Both “seek” and “obtain” require affirmative action.

Defendant takes the position that she “obtained” emergency medical assistance when the officers first arrived at the scene, as opposed to when they administered Narcan.

The reviewing court said she was wrong.

State's A Little Wrong Too

The State said that to “seek” requires proactivity, and here defendant was unconscious, so she could not be said to have “sought” emergency medical attention.

However, the definition of “obtain” is “to gain or get (something)” (id.), and here defendant “got” emergency medical attention. The definition further states that the gaining or getting is “usually by effort,” but it does not state or imply that it must be by effort.

Accordingly, defendant “obtained” emergency medical assistance from the police officers, in that they injected her with Narcan and revived her. As such, contrary to the State’s argument, section 414(c) can cover situations in which individuals passively obtain emergency medical assistance.

Court Takes A Narrow View

Reviewing court said defendant got the emergency medical assistance only after the police viewed her, confirmed that she was unresponsive, and saw suspected drugs and drug paraphernalia in the car.

At that point, they believed that she was suffering from a drug overdose, and they provided emergency medical assistance in the form of Narcan.

In other words, the officers obtained evidence of defendant’s drug use and possession by viewing objects in plain sight in the car when they arrived, and they did not acquire the evidence “as a result of” providing defendant with emergency medical assistance.

They said, the officers provided emergency medical assistance as a result of viewing evidence of drug use and possession, not the reverse.

Really? That's a real narrow view of things.

Holding

For immunity to apply under section 414(c), the evidence of drug possession must be “acquired as a result of the person seeking or obtaining emergency medical assistance,” which did not occur here.

And even if section 414(c) initially provided defendant with immunity, section 414(e) prohibited the application of that immunity. Because before rendering emergency medical assistance in the form of the Narcan injection, the officers here had probable cause to arrest defendant for unlawful possession of a controlled substance, because they viewed defendant’s condition and saw suspected drugs and drug paraphernalia.

Stated differently, the officers’ probable cause was based on information they acquired before defendant obtained emergency medical assistance from them, and the evidence was not a direct result of defendant obtaining emergency medical assistance. See 720 ILCS 570/414(e).