Acting AG Issues Directive Clarifying “Overdose Prevention Act” Immunity Provisions

John J. Hoffman

John J. Hoffman

TRENTON – Acting Attorney General John J. Hoffman has issued a statewide law enforcement directive to ensure that police and prosecutors throughout New Jersey are well-informed regarding the requirements of the “Overdose Prevention Act” and fully comply with those requirements.

The Overdose Prevention Act, which was passed by the New Jersey Legislature with bipartisan support and was signed into law by Gov. Christie on May 2, is intended to save lives by encouraging people to seek medical assistance whenever a drug overdose occurs. It does so by providing that those who, in good faith, seek medical assistance for an overdose victim will be immune from arrest and prosecution on a charge of use or simple possession of illegal drugs. The immunity also applies to the person suffering the overdose.

“This law truly will save lives, but only if we raise public awareness and ensure that police comply with it, so that those who find themselves in a crisis involving an overdose can have faith that if they call for assistance, their involvement or association with illegal drug use will not land them in jail,” said Acting Attorney General Hoffman. “To be clear, this law does not give immunity to drug dealers or those who make no sincere effort to help a victim, but it should give others the confidence to do the right thing when a life is in danger.”

“In that critical moment when a life hangs in the balance, this law should focus would-be Good Samaritans on making the right call – a call for help,” said Director Elie Honig of the Division of Criminal Justice. “Meanwhile, police who are called to respond also need clear guidance about how to handle what is likely to be a chaotic and emotional situation. This directive was drafted to provide that guidance.”

The directive lists the specific offenses for which the law provides immunity, including “obtaining, possessing, using, being under the influence, or failing to make lawful disposition of any controlled dangerous substance.” It notes, however, that the statute does not preclude arrest, prosecution or conviction for offenses involving the manufacturing or trafficking of illegal drugs. Nor does the statute preclude prosecution for the crime of strict liability for a drug-induced death or the offense of driving while under the influence of an intoxicating substance.

While the statute by its literal text affords immunity only to the specific person who calls 9-1-1 or otherwise seeks medical assistance and the person who suffered the overdose, the directive requires law enforcement to extend broader immunity consistent with the “spirit” of the law.

The directive states:

“Consistent with the spirit of the law and its overriding purpose to reduce disincentives to seeking prompt medical help, where it can reliably be determined that two or more persons were present at the time that the request for medical assistance was made and were aware of and participating in that request, police and prosecutors should proceed as if those persons had collaborated in making the request for medical assistance, even though only one of them actually placed the call to the 9-1-1 emergency system or otherwise made the request for medical assistance. Persons who in this manner collaborated in making the request for medical assistance should not be arrested or prosecuted for an offense [for which immunity is granted under the law].”

Hoffman sent the directive last week to all New Jersey police chiefs and executives, all county and municipal prosecutors, and all county sheriffs. He instructed that any questions by police or municipal prosecutors concerning the meaning of the Overdose Prevention Act should be directed to the appropriate county prosecutor, and any questions by county prosecutors should be directed to the Division of Criminal Justice.

“In order to achieve the salutary goal of the Drug Overdose Prevention Act, all law enforcement officers and prosecutors must be familiar with the new law and take steps to ensure that the legal protections afforded under the statute are respected and uniformly enforced throughout the State,” Hoffman states in the introduction to the directive.

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