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Can I face drug charges for reporting an overdose in Virginia?

With the opioid epidemic reaching treacherous proportions in Virginia and across the nation, people overdosing and what happens to those who are with them has become a source for debate. Those who are concerned about being arrested and charged with a drug offense for possessing and using drugs with another person may be deterred from taking life-saving actions when that other person overdoses.

There are laws for the safe reporting of overdoses that many might not be aware of, but which could make all the difference in these difficult situations. Knowing about these laws is important to save lives and to serve as a defense when there is an arrest on drug charges under these circumstance. An overdose refers to a condition that is deemed life-threatening after a person has consumed controlled substances. This goes beyond opioids and into alcohol, other drugs, or a combination of substances. When a person is facing prosecution for reporting an overdose when they have unlawfully purchased, possessed, or consumed alcohol or drugs, then they are shielded from legal consequences in certain circumstances.

There are many instances when an individual can be shielded from prosecution when dealing with an overdose However, each of the elements mentioned below must exist in order to utilize the law as an affirmative defense. First, an individual must seek medical attention for himself after overdosing and do so in good faith, or do so for another person who is overdosing, by reporting it to a first responder or by calling 911. Second, the person must stay at the scene where an overdose is taking place or at another location where the person has been taken until a law enforcement officer arrives. When this situation arises and there is no law enforcement officer, then the person must cooperate with law enforcement. Third, the individual must identify him or herself to an officer when an officer responds, and cooperate with any investigation. The alleged violation also must have been discovered because of a call for help due to an overdose.

A person cannot use this affirmative defense if an overdosing person went for medical care on his or her own or for another person while a search warrant was being executed or there was a lawful search taking place. The idea behind this law is to allow those who are overdosing or are with someone who is overdosing to seek help without being fearful of arrest and conviction for drug charges. However, these situations be complicated. When there is an arrest on drug charges under these circumstances, having legal assistance can be key to lodging an effective defense.

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