Under some circumstances, a person may be immune from prosecution for drug violations where the evidence is derived from the seeking of medical assistance. This immunity is referred to as medical amnesty.
Medical amnesty can apply for those who seek help for themselves or someone else and the subject of the request for medical assistance.
The issue of medical amnesty can arise in a number of different situations. At its core, it involves a situation where the person or others realize that a person is or may be in medical distress from substances.
If in the course of seeking medical assistance in that event, evidence of certain drug offenses may be excluded from being used to arrest or prosecute a person involved in the seeking of medical assistance.
Only Minor Drug Violations Are Available for Amnesty
The drug violations that may not be subject to prosecution are:
- A violation of OCGA 16-13-30 (a) involving less than 4 grams of a solid substance or less than one milliliter of a liquid substance, or for substances placed onto a secondary medium less than 4 grams. OCGA 16-13-30 includes purchase, possession or having under one's control a controlled substance,. It would not include manufacture, delivery, distribution, dispensing, administering, selling or possessing with intent to distribute any controlled substance, which are violations of OCGA 16-13-30(b).
- A violation involving less than one ounce of marijuana; or
- A violation involving drug related objects.
So, this can involve a large number of different drugs, including marijuana, methamphetamine, cocaine, LSD, heroin, medications, etc. But, it cannot involve large quantities or involve evidence of manufacture or distribution of controlled substances.
What is Medical Assistance?
Medical assistance means aid provided to a person by health care professional licensed, registered or certified under the laws of the state of Georgia acting within the lawful scope of practice to provide diagnosis, treatment or emergency assistance to such person.
What is Seeking Medical Assistance?
Seeking medical assistance can include calling or contacting 911 or similar emergency services, law enforcement or poison control. It can include providing care to a person while awaiting the arrival of medical assistance.
What is an Overdose?
A drug overdose is an acute condition including:
- extreme physical illness
- decreased level of consciousness
- respiratory depression, coma
- mania or death
resulting from the consumption or use of a controlled substance or dangerous drug by the distressed individual or that a reasonable person would believe to be caused by such use or consumption.
Who Qualifies for Medical Amnesty?
There are two groups of people who qualify for medical amnesty: persons seeking assistance for another person and people experiencing a drug overdose seeking assistance for themselves.
Any person who in good faith seeks medical assistance for a person experiencing or believed to be experiencing a drug overdose is not be arrested, charged or prosecuted for a drug violation if the evidence for the arrest, charge or prosecution resulted solely from seeking such medical assistance.
A person who is experiencing a drug overdose who seeks medical assistance for himself or herself or is the subject of such request shall not be charged, arrested or prosecuted for a drug violation if the evidence for such action resulted solely from the seeking of such medical assistance.
Such medical amnesty also means that such evidence will also not be used to charge or establish a violation relating to:
- a permanent or temporary protective order or restraining order
- A condition of pretrial release, probation or parole based on a drug violation
These circumstances will not prevent the use of evidence which does not fall squarely within the medical amnesty protections.
The Court of Appeals, in a non-precedential but persuasive, decision held that it does not matter what the officer's subjective belief about the reason for the call is. It matters whether there was what a reasonable person would view as an overdose and a seeking of medical assistance.
Why Have a Medical Amnesty Law and Does It Work?
Georgia enacted OCGA 16-13-5 and OCGA 3-3-23 in 2014. While I am not aware of any Georgia-specific studies, there is a Cornell University study which found that the medical amnesty law removed a barrier to people seeking help for a person in distress.
OCGA 3-3-23 provides a similar protection for situations involving an alcohol overdose, particularly for situations involving underage drinking.