Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Law / Must stay at scene for drug overdose immunity

Must stay at scene for drug overdose immunity

Where a statute provides immunity from arrest or prosecution to individuals who seek emergency medical assistance for a drug overdose, appellant is not entitled to the statute’s protection.

He did not remain at the overdose scene as the statute requires.

Prior procedure

“The trial court found [appellant] Morris did not qualify for immunity. … A panel of this Court reversed, dividing on how to interpret and apply the definition of ‘overdose’ set out in Code § 18.2-251.03(A), as well as the requirement that an individual be ‘experiencing an overdose.’

“After rehearing en banc, we affirm the trial court for a different reason – Morris failed to meet the independent requirement in Code § 18.2-251.03(B)(2) that he ‘remain[] at the scene of the overdose or at any alternative location to which he … has been transported until a law-enforcement officer responds to the report of an overdose.’”


“Henrico police officers observed a white Ford Edge trying to turn onto the road next to the Short Pump emergency room. The vehicle nearly struck a curb in the turn lane and then stopped in the middle of the road, blocking through-traffic.

“The officers approached the vehicle, driven by Morris, and asked him to park the car. Morris said that ‘he was there to get help,’ telling the officers that he had smoked crack cocaine.

“The officers thought he appeared to be under the influence of drugs and escorted Morris into the emergency room.

“As medical personnel drew a blood sample, Morris ‘made suicidal statements.’

“In response to law enforcement questioning, Morris said that he worked at Food Lion; he was high while at work and asked to sit in his boss’s car to call his mother; he had called his mother ‘because he was thinking about committing suicide’; and he had driven away from the Food Lion and had driven around awhile before heading to the Short Pump emergency room. …

“Morris said that he used heroin, fentanyl, and cocaine, that he had smoked crack cocaine in his boss’s car, and that he ‘“came to the ER to get help for the suicidal thoughts and his drug problem.’”

The commonwealth argued that expert testimony was needed to establish that Morris was experiencing an overdose. Morris, through counsel, “argued that the immunity statute applied because the lab tests showed cocaine in Morris’s blood, Morris drove himself to the emergency room seeking treatment, and he said three times that he was suicidal because of his drug use.”

The trial court denied Morris’s motion to dismiss the drug charge and to suppress the drug evidence. Morris pleaded no contest to the charges and reserved the right to appeal the trial court’s immunity ruling.


“Where, as here, the individual (allegedly) experiencing the overdose is the one seeking immunity, the statute does not apply unless the individual ‘remains at the scene of the overdose or at any alternative location to which he … has been transported until a law-enforcement officer responds to the report of an overdose.’ …

“The subsection continues: ‘If no law-enforcement officer is present at the scene of the overdose or at the alternative location, then such individual shall cooperate with law enforcement as otherwise set forth herein.’ …

“The Commonwealth argued on brief that Morris cannot meet this requirement because he ‘borrowed a car and drove to the emergency room – failing to stay at the scene of the alleged overdose’ and he also had not ‘been transported’ to the hospital.

“At oral argument, Morris contended that the ‘scene of the overdose’ was fluid and continuous, following him everywhere that he went while experiencing suicidal thoughts.

“Morris urges us to strip the words ‘scene’ and ‘overdose’ from all surrounding context. As his argument goes, anywhere a person is experiencing ‘“a life-threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances’ is the ‘scene’ of the overdose.

“By merely existing in a state of overdose at any location, a person has then, necessarily, remained at the scene. And as long as they eventually cooperate with law enforcement, they would meet the statutory criteria.

“The problem with Morris’s interpretation is that it renders superfluous most of Code § 18.2-251.03(B)(2). The only rational reading of the legislature’s choice of the word ‘remain’ is that the individual stay in place – either at the ‘scene’ where the overdose occurred, or the ‘alternative location’ to which the person has been transported. ‘Remain’ would be superfluous if the individual need not in fact ‘remain’ anywhere.

“The problem extends to the second half of the sentence about ‘any alternative location to which he … has been transported.’ Any such ‘alternative location’ would already be covered by Morris’s expansive proposed reading of ‘scene.’

“Instead, we conclude the statute requires an individual experiencing an overdose to remain at the location where the ‘life-threatening condition’ began, or at the location to which he has been transported by another.

“The overdose reporting statute is designed to save lives and to encourage individuals experiencing an overdose, and those around them, to seek medical attention without fear. An interpretation that would permit individuals actively under the influence of controlled substances or alcohol to operate a motor vehicle could endanger lives.”


“[W]e cannot pinpoint the exact location where the event giving rise to the need for emergency care occurred. But we need not determine the exact location to know that the scene of the purported overdose was necessarily a location where Morris was before he decided to seek medical care, and thus somewhere other than where he stopped the car in the middle of the road next to the emergency room.

“To receive immunity from prosecution, the statute required Morris to remain wherever he began experiencing the drug-induced life-threatening condition. He did not do so. Thus, the trial court did not err in refusing to dismiss the drug possession charge.”


Morris v. Commonwealth,  Record No. 1194-21-2, May 9, 2023. CAV (published opinion) (Lorish) (Raphael concurring, joined by Ortiz) (Calins concurring in the judgment) (Chaney dissenting from the judgment). Upon a Rehearing En Banc from the Circuit Court of Henrico County (Johnson) H. Pratt Cook III for appellant. Stephen J. Sovinsky, Jason S. Miyares for appellee. VLW 023-7-161, 75 pp.

VLW 023-7-161

Virginia Lawyers Weekly