Lifesaving Measures
Special to KLE Magazine
In recent years, law enforcement efforts involving drug users have moved from prosecuting to lifesaving measures. An uptick in cases of blood borne diseases being spread by reusing contaminated needles, due to the difficulty in obtaining clean needles, and overdoses in which individuals were left to die because of a fear of prosecution have made headlines throughout the United States. These concerns have led to changes in public health practices as well as in law enforcement.
As a result, several new provisions directed at saving lives have been enacted by the Kentucky General Assembly. In KRS 217.186, the legislature tried to make naloxone (Narcan), an opioid antagonist which interrupts the mechanism in the brain that causes a fatal response to an overdose, more readily available.
The statute encourages users, loved ones of users, and anyone who might find themselves in a situation where use of the drug is advised as a lifesaving measure, to have access to the medication. Subsection 7 allows pharmacists to dispense the medication, under an established protocol, to anyone who desires it, no matter who the ultimate recipient of the drug might be.
Further, if dispensed through a harm reduction program, which often provides the drug to users to have available should they suffer an overdose, the individual will not receive their own prescription. Instead, it falls to the program to document and/or record the dispensing of the drug. In other words, it is perfectly legal for anyone to possess naloxone, and it is commonly found in the possession of individuals who are, themselves, not illegal drug users – including family, friends, medical providers, social workers, private individuals and public safety personnel. Possessing the medication would not be likely be considered indicative that illegal drugs are in the vicinity, although no case law exists yet. The concept of being in legal possession of naloxone is relatively new, and such issues generally take several years to begin to appear in case law.
A related law, KRS 218A.500, involves the possession of syringes in the context of illegal drug use. To combat disease transmission, Kentucky allows local health departments to operate needle exchange programs, allowing users to obtain clean hypodermic needles and syringes. Although the statute is written a bit awkwardly, focusing on possession of such needles in proximity to the exchange site, such users may be in possession of both unused syringes and used syringes, both, it can be hoped, either properly capped or in sharps containers provided for that purpose. Some local jurisdictions, wanting to battle a concurrent epidemic of used needles scattered in parking lots and other locations, require at least a reasonable equal transaction. New needles are exchanged in return of used ones, so those involved in the program are required to retain possession of their used needles. While possession of such needles might be suggestive of the proximity of illegal substances, prosecuting or taking other legal action, such as a search, as a result circumvents the intent of the program — to both prevent disease transmission and provide an incentive to properly dispose of used, potentially contaminated needles.
In the same statute, if a peace officer is going to frisk or search a suspect and asks about the possession of needles, and the subject responds truthfully in the affirmative, they cannot be charged for drug paraphernalia for the needle or any drug residue on it. However, they may be charged for other illegal drugs in their possession.
A third issue that straddles the line between the desire to not discourage lifesaving actions but also to prosecute when appropriate relates to KRS 218A.133. In that statute, the General Assembly looked back to a related statute already in effect.
KRS 244.992, provides “medical amnesty” to individuals who need medical assistance due to alcohol consumption. In such situations, there were concerns by friends of the subject (or the person seeking assistance for the subject) that if they were under 21, either might be prosecuted for alcohol possession and use. Medical amnesty was intended to obviate that concern by eliminating the risk that seeking help might lead to prosecution. That concept was essentially duplicated in KRS 218A.133 to achieve the same aim and to avoid preventable overdose deaths.
A recent Kentucky case, Commonwealth v. Logsdon, 601 S.W.3d 477 (2020), illustrates this issue.
In 2018, a caller reported Logsdon’s heroin overdose through 911, but he refused to stay at the scene because he had outstanding warrants. Boone County deputies found Logsdon “conscious but confused” and in possession of a syringe with drug residue. A used naloxone container was also at the scene. Logsdon refused further medical treatment and was charged with possession of a controlled substance for residue in the needle and on a folded piece of paper, and for drug paraphernalia. Logsdon pled not guilty and filed a motion to dismiss pursuant to KRS 218A.133; the trial court denied the motion. Logsdon took a conditional guilty plea and appealed to the Kentucky Court of Appeals.
The Kentucky Court of Appeals, recognizing that statutory construction is an issue of law, agreed with Logsdon that immunity from prosecution under such circumstances was the Kentucky General Assembly’s intent in passing the law. Therefore, it was not, the caller’s right, but Logsdon’s right, and it could be reasonably inferred that the caller was also the individual who dispensed the naloxone to Logsdon prior to the arrival of EMS. The Court noted that the exemption from prosecution could apply to the caller, if they seek it, or to the subject suffering from the medical emergency, and the statute does not require the caller to remain physically on scene for the overdose subject to claim the exemption. As Logsdon was eligible for the exemption on both charges, the Court vacated his plea. As such, they overruled a prior, unpublished decision on the same issue and agreed that a caller need not stay with the subject suffering an overdose for the prosecution exemption to apply.
So, what does this mean for Kentucky law enforcement officers? Officers will encounter drug users in possession of syringes and/or naloxone, but each of those items must be considered in context to determine if possession is enough to justify a search based on reasonable suspicion or probable cause, particularly with respect to searches under the motor vehicle exception developed from Carroll v. U.S, 267 U.S. 132 (1925).
Simply having possession of legally obtained naloxone or syringes would almost certainly not be enough to satisfy the requirements of a search based on probable cause. The decision to go forward with such a case would depend upon local prosecutors.
In the case of a call for medical assistance, for both the caller and the subject needing medical attention, the intent of the General Assembly is clearly to encourage such a Good Samaritan act, favoring lifesaving over prosecution for what would likely be a relatively minor drug offense. However, the statute does allow for prosecution for other drugs found at the location, just not the residue connected to the overdose.
In making law enforcement decisions in such instances, it is critical that officers look to the intent of the Kentucky General Assembly and its objective in enacting these statutes to favor lifesaving measures over prosecution and to recognize the legal risk in pursuing a search that courts may consider unjustified, or making an arrest that case law now indicates is unlawful.
