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‘Safe harbor’ overdose law applies retroactively

A Frederick County circuit judge has ruled that broader protections for overdose victims in criminal court apply even when the overdose occurred before the stronger law took effect.

Despite that favorable ruling this month, the same judge later ruled the circumstances of the case failed to meet the terms of the safe harbor law, leaving a Front Royal woman facing a drug possession charge.

The case may mark the first ruling by a Virginia court on whether a bar to prosecution exists for an offense date prior to the amendments to Va. Code § 18.2-251.03, the law intended to offer safe reporting of overdoses in order to save lives.

Circuit Judge William W. Eldridge IV’s Oct. 2 opinion is Commonwealth v. Weatherholtz (VLW 020-8-110).

Meth use alleged

The incident occurred on Sept. 3, 2019, according to Eldridge’s opinion. Someone called law enforcement to report an overdose. When officers took Kodie Brooke Weatherholtz into custody, the officers found two bottle caps believed to contain residue of an illegal substance.

Her condition led to a detention order and hospitalization.

Ten months passed. Lab results showed the seized material was methamphetamine. Prosecutors secured an indictment on July 9 for an alleged violation of Va. Code § 18.2-250 – possession of a Schedule II controlled substance.

Through her lawyer, Winchester’s Howard J. Manheimer, Weatherholtz contended the prosecution was barred by what was originally termed a “Good Samaritan” law, protecting those who reported an overdose.

The 2020 General Assembly beefed up the law. Legislation changed what had been an “affirmative defense” to drug charges for those reporting an overdose to a provision that bars arrest or prosecution for one reporting an overdose and for someone experiencing the overdose if another calls for help.

“The General Assembly removed the affirmative defense and now enacted a complete bar to arrest and/or prosecution,” Eldridge wrote.

The amended law took effect July 1, eight days before Weatherholtz was indicted.

Change was ‘procedural’

Eldridge said it appeared that no Virginia court had yet addressed whether the statute’s new prosecution bar exists for an offense prior to the effective date of the amendments. He said the analysis should begin with whether the statute and the amendments are substantive or procedural. He concluded they were procedural.

Virginia case law, statutes and statutory interpretation support the conclusion that the amended version of the safe harbor statute applied, the judge said. A Kentucky case provided persuasive authority that the amendments were procedural and not substantive, Eldridge added.

“The amended statute does not repeal a former criminal law or establish a new criminal law,” Eldridge reasoned. The amended statute “does not change the penalty structure of a specific crime,” he continued.

The delayed indictment and arrest offered “an even stronger argument,” Eldridge said, because the prosecution did not commence until after the amended law took effect. The judge set an Oct. 6 hearing on Weatherholtz’ motion to dismiss the indictment.

Motion denied

Weatherholtz won on the law but lost on the facts. At the Oct. 6 hearing, Eldridge concluded her situation did not justify the law’s protection against prosecution.

Manheimer argued the evidence depicted a life-threatening condition: The defendant’s mother told police the 25-year-old Weatherholtz had been using meth. Weatherholtz claimed to see horrific visions.

But the judge said the situation lacked a sense of urgency. He noted that Weatherholtz was reported behaving in a bizarre manner the night before, and resumed delusional behavior after sleeping for eight hours, according to an account in The Northern Virginia Daily.

“There is no timeline creating that sense of urgency,” Eldridge was quoted as saying.

The judge also raised concerns about a high bar for arrests if he ruled that mere mental illness combined with drug use gives full immunity, the paper reported.

The case is being prosecuted by Marie Acosta of the Frederick County commonwealth’s attorney’s office. She was unavailable for comment. Commonwealth’s Attorney Ross Spicer said he respected the rulings of the court and would adhere to the court’s dictates. He declined further comment because the case is pending.

Manheimer said he hoped the publicity would raise awareness of the safe harbor law, designed to encourage reporting of life-threatening drug overdoses. He said the law is expansive, “and it will be a challenge for judges to sort through that standard.”