Immunity from Drug Prosecution

There is a little known statute in Wisconsin that provides immunity from prosecution to drug users.  Known as a “Good Samaritan” law, the statute states that a person who summons emergency aid for an individual who has overdosed cannot be prosecuted for possession of a controlled substance or drug paraphernalia.  However, a recent court of appeals case limits the scope of the statute.

Immunity Statute

Located in Section 961.443, the immunity statute provides that an “aider” is someone who:

  • Brings another person to an emergency room, hospital, fire station, or other health care facility if the other person is, or may be, suffering from an overdose or other adverse reaction to any controlled substance or controlled substance analog.
  • Summons a law enforcement officer, ambulance, emergency medical technician, or other health care provider, to assist another person if the other person is, or may be, suffering from an overdose or other adverse reaction to any controlled substance or controlled substance analog.
  • Dials the telephone number “911” or the number for an emergency medical service provider, to obtain assistance for another person if the other person is or may be suffering from an overdose of or other adverse reaction to any controlled substance or controlled substance analog.

If the person qualifies as an “aider,” then that person is immune from prosecution for possession of drug paraphernalia or from possession of a controlled substance.

Recent Case Addressing Immunity Statute

A Wisconsin Court of Appeals case decided on October 19th looked at the immunity statute and made a number of rulings that affect the interpretation of the statute.  First, if it is clear that the person is an aider, then the state cannot file charges against the person.  But if the facts aren’t clear, then the burden shifts to the defendant to prove that they are entitled to the immunity statute.  The defendant must file a pre-trial motion stating that they fall under the immunity statute and then the court must hold a hearing at the earliest possible time to make a ruling.

Further, the immunity statute does not extend to bail jumping charges.  The court ruled that if the legislature wanted to extend immunity to bail jumping charges, or any other charges for that matter, then the legislature would have written them into the statute.  Because only possession of paraphernalia and possession of a controlled substance are listed in the statute, then the legislature only intended to allow immunity from those specific crimes.

Purpose of the Immunity Statute

The purpose of the statue is clear, especially in light of the ongoing opioid epidemic.  Many drug users are afraid to call 911 if someone they know is overdosing out of fear of prosecution.  This statue is designed to eliminate that fear.  When someone is overdosing, a decision to call for aid can be the difference between life and death.  And prosecuting an “aider” is only going to discourage the person from calling for help.

If you are facing prosecution where you believe you qualify as an “aider” under the immunity statute, you should contact us immediately.  You should not be punished for an act that likely saved someone’s life.  Contact us today!