Where defendant was charged with possessing methamphetamine after the police were called to assist with her alleged overdose, the amended version of a safe harbor statute enacted after the date of defendant’s alleged offense applies to the case.
On Sept. 3, 2019, the police were summoned to aid defendant for an alleged overdose. When police took her into custody, they discovered two bottle caps containing residue that proved to be methamphetamine. The commonwealth indicted her under Code § 18.2-250 for possession on July 9, 2020.
When defendant was taken into custody, the “safe harbor” provision of Code § 18.2-251.03 provided “‘It shall be an affirmative defense to prosecution of an individual for the unlawful purchase, possession, or consumption of alcohol pursuant to § 4.1-305, possession of a controlled substance pursuant to § 18.2-250, possession of marijuana pursuant to § 18.2-250.1, intoxication in public pursuant to § 18.2-2388, or possession of controlled paraphernalia pursuant to § 54.1-3466[.] … (emphasis added).’”
An amended version of the safe harbor provision took effect on July, 1, 2020. The amended statute provided “‘No individual shall be subject to arrest or prosecution for the unlawful purchase, possession, or consumption of alcohol pursuant to § 4.1-305, possession of a controlled substance pursuant to § 18.2-250, possession of marijuana pursuant to § 18.2-250.1, intoxication in public pursuant to § 18.2-2388, or possession of controlled paraphernalia pursuant to § 54.1-3466[.] … Virginia Code§ 18.2-251.03(8) (as amended) (emphasis added).
At issue in this case is whether the former or amended version of the statute applies. “The Defendant asserts that the amended version of the statute, effective July 1, 2020, barring prosecution, controls because the Commonwealth indicted her on July 9, 2020. In contrast, the Commonwealth argues that, since the offense date was prior to July 1, 2020, the prior version of the statute controls.”
Substantive or procedural
“The applicability of amended Virginia Code § 18.2-251.03(8) to cases initiated or ongoing after the amendments but with an offense date before the amendments is an issue of first impression. To reach a conclusion, the analysis must begin with a determination as to whether the statute and the amendments are substantive or procedural.”
The Virginia Supreme Court has ruled “that the ‘procedural provisions of the statute in effect on the date of trial control the conduct of trial insofar as practicable.’… However, the date of offense controls when the new law is substantive rather than procedural. …
“Virginia case law, statutes, and statutory interpretation support the conclusion that the amended version of Virginia Code § 18.2-251.03(8) applies in this Defendant’s case. …
“[T]he amended statute creates immunity from prosecution if the safe harbor conditions in Virginia Code§ 18.2-251.03(8)(1)-(4) are met. If an individual is prosecuted but meets the safe harbor provisions of Virginia Code § 18.2-251.03(8)(1)-(4), the only redress is by a motion to dismiss the indictment prior to trial.
“Virginia Supreme Court Rule 3A:9(b)(l) states that a defendant must raise, before trial, any ‘objection based on defects in the institution of the prosecution or in the written charge upon which the accused is to be tried[.]’ …
“A statute prohibiting prosecution, if certain conditions are met, clearly is a challenge to a defect in the institution of the prosecution regarding the offense. Therefore, the amended statute creates a procedural bar to prosecution. In accordance with Virginia Code§ 1-239 and the cases interpreting that statute, proceedings must conform to the procedural statutes and rules at the time of the proceeding.”
In defendant’s case “she was not indicted until July 9, 2020. While the charged offense date is in September 2019, she was never arrested on that charge until the indictment. Therefore, the prosecution of the Defendant did not commence until July 9, 2020. At the time of the indictment, the amendments to Virginia Code § 18.2-251.03(8) were in effect and create a procedural bar to prosecution if the Defendant’s case meets the safe harbor provisions. …
“Therefore, the proceedings are governed by the procedural laws in effect at the time of the proceeding. As a result, amended Virginia Code§ 18.2-25 l.03(8) applies and prohibits prosecution if the Defendant’s circumstances meet the safe harbor conditions outlined in Virginia Code § 18.2-25 l.03(8)(1)-(4).”
Commonwealth v. Weatherholtz, Case No. CR 20-459, Sept. 25, 2020; Frederick County Cir. Ct. (Eldridge); Marie Acosta for the commonwealth, Howard J. Manheimer for defendant. VLW 020-8-110, 10 pp.