(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5569-16T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, February 26, 2018
v. APPELLATE DIVISION
Argued January 29, 2018 – Decided February 26, 2018
Before Judges Sabatino, Whipple and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
Monica do Outeiro, Assistant Prosecutor,
argued the cause for appellant (Christopher
J. Gramiccioni, Monmouth County Prosecutor,
attorney; Monica do Outeiro, of counsel and
on the brief).
Stefan Van Jura, Deputy Public Defender,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Stefan
Van Jura, of counsel and on the brief).
The opinion of the court was delivered by
In the court's discretion, we do not disclose defendant's
identity in this published opinion. We shall use initials for
him in order to avoid discouraging other persons who may be
covered by the statutory immunity from seeking medical
The State's appeal in this case calls for us to interpret
and apply the Overdose Prevention Act (the "OPA" or "the Act"),
N.J.S.A. 2C:35-30 to -31;
N.J.S.A. 24:6J-1 to -6. The OPA,
which the Legislature enacted in 2013 and slightly amended in
2015, has yet to be discussed in a published opinion.
Among other things, the statute confers immunity upon two
categories of qualifying persons from being "arrested, charged,
prosecuted, or convicted" for certain enumerated possessory drug
offenses. The immunity covers persons: (1) who act in good
faith to request medical assistance for individuals perceived to
be experiencing a "drug overdose," as defined by
3; or (2) who experience a drug overdose and have been the
subject of such a good faith request for medical assistance by
others, or who have sought such assistance themselves. See
N.J.S.A. 2C:35-30 (granting immunity for the persons making such
requests for assistance);
N.J.S.A. 2C:35-31 (granting immunity
for the persons who are the subject of such eligible requests).
The OPA is intended to save lives by "encouraging witnesses
and victims of drug overdoses to seek medical assistance."
N.J.S.A. 24:6J-2. The Act specifically aims to promote the
wider prescription and administration of opioid antidote drugs
for the benefit of persons who are at risk of an overdose, as
well as their family members and peers. Ibid.
The trial court in this case applied the Act's immunity in
granting a defendant's motion to dismiss an indictment charging
him with third-degree possession of a controlled dangerous
substance ("CDS"). The limited factual record shows that a
police officer responded to a report of a person, who was
allegedly described by an unidentified third party as
"intoxicated" in the waiting area of a train station. The
officer found a person lying on the floor of the station. The
officer observed the person nodding in and out of consciousness
when asked questions, being unaware of his location, and
displaying "pinpoint" eyes. Recognizing these characteristics
were indicative of the effects of heroin use, the officer
summoned emergency medical technicians ("EMTs").
The EMTs transported the person, later identified as
defendant, from the train station to a local hospital.
Defendant was diagnosed there with an intentional drug overdose,
but he survived after receiving treatment. Hospital staff found
several used and unused bags of a powdery substance in
defendant's backpack. The substance was turned over to law
enforcement and shown by field testing to be heroin. A grand
jury thereafter indicted defendant for the heroin possession
offense. He moved to dismiss the indictment, invoking the OPA.
After considering the written submissions and hearing oral
argument, the trial court issued a written opinion finding that
the circumstances qualified for immunity under the Act. The
court concluded that a "good faith request for medical
assistance" had been made under
N.J.S.A. 2C:35-31, involving a
person that "a layperson would reasonably believe" was
exhibiting an "acute condition" indicative of a "drug overdose,"
as defined in
On appeal, the State argues that the trial court erred in
dismissing the indictment under the OPA, contending that the Act
does not immunize situations it characterizes as mere
"intoxication" from drug use. Defendant counters that the Act
contains no such caveat or limitation, and that the record in
this case amply supports the trial court's application of the
For the reasons that follow, we hold that the broad
definition of a "drug overdose" that the Legislature chose to
N.J.S.A. 24:6J-3 does not turn on concepts of
"intoxication." Instead, the OPA immunity hinges upon whether
the discrete elements specified within that definition are met.
A defendant may raise the immunity at any stage of the
criminal process from the time of arrest through conviction.
The defendant bears the burden of establishing the defense
applies by a preponderance of the evidence. In certain
exceptional situations where the facts known to the State
patently appear to support the OPA's exculpatory immunity, the
State may have a duty to advise grand jurors of those pertinent
facts and the statute's immunity provisions, in order to avoid a
qualified defendant from being "charged" in contravention of
As our opinion acknowledges, sometimes there can be genuine
issues of material fact as to whether the elements of the
immunity, including the definition of a "drug overdose" under
N.J.S.A. 24:6J-3, are satisfied. The sparse record in this case
is inadequate for us to resolve those factual issues. Among
other things, the record is vague and unclear regarding the
perceived severity of defendant's condition when he was observed
The trial court did not find the State violated any duty by
failing to instruct the grand jurors about the OPA in this case,
and instead rested its immunity finding on its assessment of the
facts in the paper record. For the reasons we amplify, infra in
Part IV, we regard the factual record here, at least in its
present form, as being sufficiently ambiguous and debatable to
conclude the State was not obligated to charge the grand jurors
with the OPA. We do have some concerns relating to the
assistant prosecutor's response to a grand juror's query about
defendant's hospital records, a topic we will also address,
at the train station, and whether a layperson would have
reasonably believed he was then suffering from an "acute
condition" caused by drug consumption that required medical
assistance. Consequently, we vacate without prejudice the trial
court's dismissal order and remand for an evidentiary hearing.
The History, Objectives, and Text of the OPA
In adopting the OPA in 2013, the Legislature declared the
The Legislature finds and declares that
encouraging witnesses and victims of drug
overdoses to seek medical assistance saves
lives and is in the best interests of the
citizens of this State and, in instances
where evidence was obtained as a result of
seeking of medical assistance, these
witnesses and victims should be protected
from arrest, charge, prosecution,
conviction, and revocation of parole or
probation for possession or use of illegal
drugs. Additionally, naloxone is an
inexpensive and easily administered antidote
to an opioid overdose. Encouraging the
wider prescription and distribution of
naloxone or similarly acting drugs to those
at risk for an opioid overdose, or to
members of their families or peers, would
reduce the number of opioid overdose deaths
and be in the best interests of the citizens
of this State. It is not the intent of the
Legislature to protect individuals from
arrest, prosecution or conviction for other
criminal offenses, including engaging in
drug trafficking, nor is it the intent of
the Legislature to in any way modify or
restrict the current duty and authority of
law enforcement and emergency responders at
the scene of a medical emergency or a crime
scene, including the authority to
investigate and secure the scene.
N.J.S.A. 24:6J-2 (emphasis added).]
The relevant portions of the OPA granting immunity,
N.J.S.A. 2C:35-30 and -31, largely originated from
an earlier bill known as the Good Samaritan Emergency Response
Act ("GSERA"), which was introduced in 2012. The proposed GSERA
bill was similar in many respects to what became the enacted
version of OPA, but there were several differences.3
Governor Christie conditionally vetoed the first reprint of
the GSERA bill, observing that a more "comprehensive" approach
to the drug overdose problem was warranted:
This bill as drafted . . . fails to
carefully consider all the interests that
must be balanced when crafting immunities to
the protections provided in our criminal
laws. Thus, although the bill addresses
perceived impediments to reporting drug
overdoses, the proposal fails to consider
the existing approaches to deterrence,
public safety, prevention of violence, and
the many social problems that accompany the
For instance, the original version of GSERA would have extended
criminal immunity to persons having the intent to share drug
paraphernalia, but that facet of the proposed law was removed by
the first reprint of GSERA. Compare A. 578 (2012) with A. 578
(2012) (first reprint). Notably, the original GSERA bill did
not include the word "charge" within some of the law's immunity
provisions, but that term was later inserted in the second
reprint. Compare A. 578 (2012) (first reprint) with A. 578
(2012) (second reprint).
rampant proliferation of drug distribution
and use. Accordingly, the more reasoned and
practical approach is to address these
issues comprehensively and holistically,
rather than by simply removing criminal
liability and exposure to punitive measures.
Therefore, I return this bill with my
recommendations to direct the Division of
Criminal Justice within the Department of
Law and Public Safety to study the issue of
drug overdose reporting, and to provide my
Administration and the Legislature with
recommendations on a comprehensive approach
to addressing this issue.
[Governor's Conditional Veto Statement to A.
578 (Oct. 11, 2012).]
Thereafter, the Governor conditionally vetoed the first reprint
of the OPA, recommending that provisions within GSERA be merged
into the OPA. Governor's Conditional Veto Statement to S. 2082
(Apr. 29, 2013).4
In several respects not germane to the present appeal, the
scope of the immunity narrowed somewhat during the legislative
process. Notably, however, the broad statutory definition of a
"drug overdose" – a critical aspect of this case – remained the
same within the successive drafts of GSERA and the OPA.
Originally, the OPA was named the "Opioid Antidote and Overdose
Prevention Act," but once the bill was amended to incorporate
provisions from GSERA, the name was changed to the "Overdose
As enacted by the Legislature following the Governor's
conditional veto, the OPA established two key immunity
provisions. One was codified in
N.J.S.A. 2C:35-30 for a
qualifying person who "in good faith" seeks medical assistance
for someone experiencing a drug overdose. A second immunity was
codified in N.J.S.A. 2C:35-31, extending to a person who
"experiences a drug overdose and who seeks medical assistance or
is the subject of a good faith request for medical assistance"
pursuant to the statute. Both immunity provisions declare that
such qualifying persons "shall not be: . . . arrested, charged,
prosecuted, or convicted" of a listed series of enumerated
N.J.S.A. 2C:35-30(a) and -31(a).5
Without repeating in detail the entire list here, the
immunized offenses include "being under the influence of, or
failing to make lawful disposition of, a [CDS] or [CDS] analog,"
as is otherwise proscribed by subsections a, b, or c of N.J.S.A.
About forty states have similar immunity provisions, sometimes
referred to as "Good Samaritan" laws. See Legal Interventions to
Reduce Overdose Mortality: Naloxone Access and Overdose Good
Samaritan Laws, The Network for Public Health Law (July 2017),
available at https://www.networkforphl.org/_asset/qz5pvn/network
-naloxone-10-4.pdf. New Jersey also has a somewhat analogous
statute, which grants immunity to underage drinkers who call for
medical assistance for themselves or another underage drinker
who appears to be in need of medical assistance.
1.2 A. 9 A-5569-16T1
N.J.S.A. 2C:35-30(a)(1) and -31(a)(1). Defendant
in this case is charged with such a simple possessory offense.
The list also includes offenses for inhaling fumes of a
toxic chemical; attempting to obtain or possessing prescription
drug legends; acquiring CDS by fraudulent means; unlawfully
possessing a CDS that was lawfully prescribed or dispensed;
using or possessing with intent to use certain drug
paraphernalia, needles, or syringes; and the revocation of
certain parole or probation conditions. See
30(a)(2) to (7) and -31(a)(2) to (7). The statute does not
immunize offenses omitted from the enumerated list, for it is
"not the intent of the Legislature to protect individuals from
arrest, prosecution or conviction for other criminal offenses,
including engaging in drug trafficking . . . ."
2 (emphasis added).
Each of the immunity provisions explicitly limits the
statute's protection to criminal charges that are based on
evidence "obtained as a result of the seeking of medical
assistance." N.J.S.A. 2C:35-30(b)(2) and -31(b). Hence,
incriminating evidence that law enforcement officials obtain by
other means, such as the fruits of a search warrant or a
constitutional warrantless search, unconnected from someone's
attempt to seek medical assistance for an individual perceived
to be experiencing a drug overdose, is beyond the immunity's
The Definition of "Drug Overdose" Within
The pivotal concept for the present case (and no doubt
others that arise under the OPA) is the wording of the
Legislature's definition in
N.J.S.A. 24:6J-3 of a "drug
overdose," a term which is cross-referenced in the immunity
N.J.S.A. 2C:35-30 and -31. According to that
definition, a drug overdose is
an acute condition including, but not
limited to, physical illness, coma, mania,
hysteria, or death resulting from the
consumption or use of a controlled dangerous
substance or another substance with which a
controlled dangerous substance was combined
and that a layperson would reasonably
believe to require medical assistance.
N.J.S.A. 24:6J-3 (emphasis added).]
Meanwhile, the term "medical assistance" is defined in the OPA
professional medical services that are
provided to a person experiencing a drug
overdose by a health care practitioner,
acting within the practitioner's scope of
professional practice, including
professional medical services that are
mobilized through telephone contact with the
911 telephone emergency service.
This is the current definition of "medical assistance" in the
statute following its slight amendment in 2015. See L.2015, c.
10 § 1. The original definition in the 2013 version read:
The judicial interpretation of the term "drug overdose"
within the OPA must focus on the definition provided in the
words of the statute itself. It is well settled that the text
of the enactment is the appropriate starting point – and often
the ending point – for the judicial process of statutory
interpretation. "The Legislature's intent is the paramount goal
when interpreting a statute and, generally, the best indicator
of that intent is the statutory language." DiProspero v. Penn,
183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano,
250, 280 (2003)). A court should "ascribe to the statutory
words their ordinary meaning and significance, and read them in
context with related provisions so as to give sense to the
legislation as a whole." Ibid. (internal citations omitted).
If a statute's plain language "clearly reveals the Legislature's
intent, the inquiry is over." State v. Harper,
229 N.J. 228,
"'Medical assistance' means professional medical services that
are provided to a person experiencing a drug overdose by a
health care professional, acting within the scope of his or her
lawful practice including professional medical services that are
mobilized through telephone contact with the 911 telephone
emergency service." See L.2013, c. 46. The salient difference
is the insertion in 2015 of the term "health care practitioner."
Indisputably, in the present case, defendant was treated by
health care practitioners after his condition was reported by
the police officer.
237 (2017) (citing DiProspero,
183 N.J. at 492). We only
consider extrinsic sources, such as legislative history, if the
words of the statute are "ambiguous," or if "a literal reading
of the law would lead to absurd results." Ibid. (citations
omitted). Courts must not "disregard plain statutory language
to replace it with an unenacted legislative intent . . . ."
Dempsey v. Mastropasqua,
242 N.J. Super. 234, 238 (App. Div.
Even if we were to regard the Legislature's definition of a
"drug overdose" in
N.J.S.A. 24:6J-3 as ambiguous, or as being
somehow prone to yield absurd outcomes, extrinsic sources
concerning the provision are not particularly informative. The
available legislative history does not provide any direct or
explicit insight concerning the definition that the Legislature
crafted. We have not found, nor been furnished with, written
legislative reports or materials that specifically address the
intended meaning of the term, beyond the words of the statute
itself. In addition, we have not been able to glean any
illuminating commentary from the audio recordings of the
legislative sessions on the OPA that took place in the State
Senate and General Assembly.
Linguistically unpacked, the rather lengthy definition of a
drug overdose within
N.J.S.A. 24:6J-3 contains the following
First, the person in question must exhibit an "acute
condition." The text of the definition tells us that such an
"acute condition" includes, but is not limited to, "physical
illness, coma, mania, hysteria, or death . . . ."
24:6J-3. The adjective "acute" connotes severity. See
Stedman's Medical Dictionary 23 (28th ed. 2006) (defining the
term "acute" to refer to "a health effect, usually of rapid
onset, brief, not prolonged; sometimes loosely used to mean
severe" and "exposure, brief, intense, short-term; sometimes
specifically referring to brief exposure of high intensity").
The condition cannot be mild or inconsequential.
On the other hand, the condition need not be so severe to
produce a coma or death. Nor does it have to involve mania or
hysteria. Otherwise, we would be improperly ignoring the
Legislature's illustrative inclusion of the broader term
"physical illness." See State v. Malik,
365 N.J. Super. 267,
278 (App. Div. 2003) (instructing that codified provisions
should be construed in a manner that imbues meaning to all of
their provisions); see also State v. Hyland, __ N.J. Super. __,
__ (App. Div. 2017) (slip op. at 18-19).
Second, the statutory definition's requirement of an "acute
condition" is qualified by a causation aspect. Specifically,
the acute condition must be "resulting from the consumption or
use of a [CDS] or another substance with which a [CDS] was
combined . . . ."
N.J.S.A. 24:6J-3 (emphasis added). So, for
example, a person possessing narcotics who appears to be acutely
ill from a knife wound, a burst appendix, or a fracture would
not trigger the immunity. Nor would a drug user or possessor
who has consumed CDS in the past, but who is now experiencing an
acute condition perceived to result from another cause.
Third, the acute condition must be one "that a layperson
would reasonably believe to require medical assistance." Ibid.
(emphasis added). Several of these words, which we have
underscored for emphasis, convey important facets.
By choosing to define the immunity in terms of the
perception of a layperson – rather than of a person with
specialized knowledge about opioids such as a physician, nurse,
EMT, paramedic, or many law enforcement officers – the
Legislature made clear that it did not want laypersons, when
they request medical assistance for someone who seems to be
overdosing, to be held to the rigorous standards of an expert's
A layperson (formerly described as a "layman") is defined
in a leading dictionary as someone who is "not a member of a
particular profession or specialty." Webster's II New College
Dictionary, 623 (2nd ed. 1999). A layperson is also "not an
expert in some branch of knowledge or art[.]" Webster's Third
New International Dictionary, 1281 (1981). See, e.g., N.J.R.E.
702 (defining, in the analogous context of our rules of
evidence, an expert as someone having specialized knowledge,
skill, experience, training, or education).
Expert knowledge by the party who pursues medical
assistance therefore is not required to trigger the OPA's
immunity. Nor is such expert knowledge dispositive. The
pertinent inquiry is not what an expert would conclude about the
subject's condition. Rather, the nature and urgency of the
situation is to be viewed through the eyes of an average person.
Such an approach is consistent with the stated objective of the
Act: to encourage people to get medical attention for acutely
ill persons, or for themselves, lest they may die of an
N.J.S.A. 24:6J-2. The statute aims to incentivize
third parties who perceive another individual's apparent
overdose, or who think they are personally suffering one, to err
on the side of caution and get immediate medical help.
This lay-oriented approach is echoed by N.J.S.A. 24:6J-3's
requirement that the person reporting the situation possess a
"reasonable belief" the subject requires medical attention.
This phrasing invokes the well-established legal notion of the
objective "reasonable person" embodied in tort law and other
contexts. The call for medical help cannot be fanciful or far-
fetched. It must reasonably appear to be "required" under the
Moreover, the call for medical assistance must be pursued
in "good faith" to qualify for the immunity.
30(a) and -31(a). For instance, a "bad faith" pretextual
attempt to exploit the OPA's immunity by taking an illegal drug
possessor who is fearful of being prosecuted to a hospital
emergency room, even though he or she does not genuinely appear
to be acutely ill, will not succeed.
Having dissected the statute in this manner, it becomes
apparent that the Legislature crafted the definition of a drug
overdose within the OPA rather carefully, and with the policy
objectives of the law in mind. To be sure, the statute could be
even clearer in some respects, such as providing a more detailed
explication of what forms of "physical illness" qualify as an
"acute condition." Would, say, a bad stomach ache or an intense
headache caused by drug use suffice? Perhaps not, but
ultimately such questions may turn on the degree of severity
(i.e., acuteness) presented by the facts. We need not resolve
in this opinion all of the theoretical possibilities. All we
can do here is simply identify and attempt to explain the core
elements of the law. If the Legislature wishes to provide
further clarity, it can surely enact amendments to do so.
The State's "Mere Intoxication" Argument
The State argues that the definition of a "drug overdose"
within N.J.S.A. 24:6J-3 should be construed to exclude
situations in which the subject is only "intoxicated." The
State expresses concerns that if we do not impose such a gloss
upon the statute, the immunities of the OPA will be applied
excessively, perhaps even abused by cunning offenders, and
thereby too many legitimate prosecutions for drug offenses will
Although we appreciate the State's concerns, we
respectfully decline its invitation to inject a concept into the
Act that is not contained within its text. The Act's definition
does not anywhere refer to "intoxication," or even a synonym for
that term. Commonly, intoxication, a term which appears in drunk
driving laws and other contexts, connotes a person's impairment
from an ingested substance that occurs to such a degree that he
or she cannot perform certain physical tasks or which
substantially interferes with his or her cognition or
communication. See, e.g., State v. R.T.,
205 N.J. 493, 505
(2011) (Long, J., concurring) ("Intoxication under our law means
a disturbance of mental or physical capacities resulting from
the introduction of substances into the body."); see also
N.J.S.A. 39:4-50 (defining the offense of driving while
intoxicated, with reference to specific levels of blood alcohol
concentration and other factors).
In everyday parlance, a person who is "intoxicated" is
typically understood to be someone who exhibits slurred speech,
loss of balance, trouble speaking with or understanding others,
and other irregularities. However, in some situations, a person
may be so severely intoxicated so as to be in danger of death
from alcohol poisoning or some other grave toxically-induced
Our point is that the term "intoxication" has a wide range
of meanings, depending upon the context. We discern no reason
to read that imprecise term into the multi-part definition of
drug overdose already expressed in
N.J.S.A. 24:6J-3. We decline
to engraft upon the statute an unstated exception for so-called
"mere intoxication" cases. If the Legislature wanted to import
into the OPA concepts of intoxication from
N.J.S.A. 39:4-50 or
other contexts, it had the ability to do so.
Moreover, the State's policy concerns about the possible
misuse or over-application of the OPA's immunity can largely be
addressed by applying the existing terms of the statute,
including the requirements for an "acute" condition; a
layperson's "reasonable" perception that the subject "requires"
medical assistance; and the mandate that the call for assistance
be pursued in "good faith."
We do not share the State's apprehension that the
application of the layperson standard, as expressed in the
statute, will lead to illogical or undesirable consequences in
situations where, as here, the subject who may be overdosing is
encountered by a law enforcement officer. We recognize that
officers, because of their special training, often will have a
more informed basis to assess if a subject is actually
overdosing. We also are mindful that an officer may be
obligated, because of police protocols or situational factors,
to arrange for a person to be taken to a medical facility as a
precautionary measure, or by his or her request, even though the
person is not actually in an "acute condition" caused by CDS
ingestion that "requires" medical assistance.
The bare fact that an officer calls for medical assistance
does not mean that the OPA's immunity automatically applies.
Instead, a deeper factual analysis of the circumstances might
lead to an opposite conclusion. As the Act's declaration of
purpose instructs, the intent of the Legislature is not "to in
any way modify or restrict the current duty and authority of law
enforcement and emergency responders at the scene of a medical
emergency or a crime scene, including the authority to
investigate and secure the scene."
Law enforcement officers, EMTs, and other first responders
should continue to carry out their duties in the ordinary
course, while courts faced with OPA immunity arguments should
apply the terms of the statute to the fact patterns presented on
a case-by-case basis. We dispel here any myth that, "If you get
an officer who encounters you to call in the EMTs, that means
you are automatically immune under the OPA." Not so.
Having addressed these substantive facets of the OPA, we
now turn to a few procedural questions, hoping to provide some
guidance in this opinion of first impression. In particular, we
address concerns about the appropriate time for the statutory
immunity to be raised and resolved, and also how to best deal
with material questions of fact that bear upon its
applicability. These concerns were explored at some length in
oral argument before the trial court and this court, and we
appreciate counsel's desire that we address them for prospective
The OPA is distinctively broad in declaring that its
immunity "shall be" enforced at a wide span of chronological
stages of the criminal process, specifically including arrest,
charge, prosecution, and conviction.
N.J.S.A. 2C:35-30(a) and -
31(a). As a leading commentator has observed, the OPA's
protection "is more than a defense; it is broader. It forbids
arrest and prosecution so it may be a ground for release and for
dismissal of charges." Cannel, N.J. Criminal Code Annotated,
N.J.S.A. 2C:35-31 (2017). The Office of the Attorney
General has expressed apparent agreement with this basic
proposition, stating in a directive: "[T]he law clearly
precludes not only an arrest, but also an ensuing prosecution or
conviction." Attorney General's Directive to Ensure Uniform
Statewide Enforcement of the "Overdose Protection Act", § 7,
from John J. Hoffman, Attorney General, to All County
Prosecutors (June 25, 2013).
The Act thus literally extends immunity to all phases of
the criminal process, starting with a person's arrest and
culminating with conviction at a trial. That continuous and
broad application is consistent with the objectives of the
statute to encourage people to seek medical treatment for
persons who appear to be experiencing an overdose. Persons who
would call for or seek help might hesitate if they knew the
immunity would be useless to them until the time of an eventual
trial, and would not provide a basis to free them from pretrial
release from jail or enable criminal charges to be dismissed at
an early stage.
Hence, we hold that the OPA immunity can be raised at any
time in the criminal process, including, for example, the grand
jury phase, the post-arrest or post-charge phase, a bail or
pretrial detention hearing, a pretrial motion to dismiss
charges, or as a defense at trial. Because the OPA does not
negate an element of a crime but instead is based on separate
public policies that confer immunity from what otherwise would
comprise an offense under certain CDS statutes, we believe the
burden of proving the immunity is properly placed upon the
defendant. The defendant bears that burden of establishing the
immunity by a preponderance of the evidence. See
13(d) (mandating that where the application of the criminal code
depends on a finding of facts which is not an element of an
offense or designated by statute as an affirmative defense, the
burden of proving those facts rests upon the party "whose
interest or contention will be furthered if the finding should
be made"); see also State v. Ingram,
98 N.J. 489, 493 (1985).
If a defendant raises the OPA immunity at time of a jury
trial and the issue poses a factual dispute as to its
applicability, the jury should be provided with instructions
explaining the elements of the statute.7
A somewhat more difficult procedural uncertainty relates to
identifying who is to resolve factual disputes arising under the
immunity's applicability: the court, a grand jury, or a trial
jury? Such factual disputes may, for example, involve whether
the subject exhibited at the time of the call an "acute
condition" and manifested a "physical illness" caused by CDS
consumption, or whether a layperson would "reasonably believe"
the subject "requires" medical assistance; or whether the call
for assistance was made in "good faith." We suspect that in
some cases these questions are readily answered by the review of
documents, such as police reports or grand jury testimony, and
will pose no genuine issues of disputed fact. However, in other
instances the documentary record may be incomplete or
We do not adopt the view that a grand jury considering
evidence of illegal drug offenses must always be told, in every
case where a defendant had received medical assistance, about
Because no model charges under the OPA presently exist, we
respectfully refer our opinion to the Model Criminal Jury Charge
Committee for its consideration.
proofs relating to that defendant's possible OPA immunity and
given a charge explaining the immunity. If, for example, the
immunity clearly does not apply on the facts, then such proof
would not be exculpatory and there would be no obligation to
present such evidence to the grand jurors or to instruct them
about the OPA.
In other circumstances where the OPA's application is less
clear cut, we believe the well-established general principles
for grand jury practice, as expressed by the Supreme Court in
State v. Hogan,
144 N.J. 216, 236-37 (1996), should be followed.
The Court in Hogan acknowledged that grand jurors should be
advised of "clearly exculpatory" proof that "directly negates" a
prospective defendant's guilt. Id. at 237. In addition, the
circumstances may require the grand jurors to be charged as to
specific exculpatory defenses. State v. Hogan,
336 N.J. Super.
319, 341-42 (App. Div. 2001). "[I]t is only when the facts
known to the prosecutor clearly indicate or clearly establish
the appropriateness of an instruction that the duty of the
prosecution arises." Id. at 343-44 (citations omitted). Even
so, the Supreme Court also cautioned in Hogan that an indictment
should be dismissed on that basis only in "rare" situations, and
that "courts should act with substantial caution before
concluding that a prosecutor's decision [to not present certain
allegedly-exculpatory proofs] was erroneous." Hogan,
at 236-39. To borrow a common phrase, the proofs of the
immunity's applicability must be so apparent as to be "jumping
off the page." See State v. Denofa,
187 N.J. 24, 42 (2006).
More frequently, we suspect that a defendant, as in this
case, will move after he or she has been charged to dismiss the
indictment or charges. The defendant may accompany that motion
with proofs that go beyond the grand jury record, such as
hospital or medical reports, or statements by eyewitnesses who
observed his or her condition at the time medical assistance was
If a bona fide factual dispute of OPA immunity is presented
before trial, that issue ordinarily must be decided by the trial
court before the time of trial. The need for a timely pretrial
ruling on the subject is dictated by the terms of the statute,
which protects a qualifying person not only from "conviction,"
but also from arrest, charge, and prosecution.
30(a) and -31(a). We reject the State's suggestion that the
issue be deferred to the time of trial.
We further conclude that the preferred means for the trial
court to adjudicate the factual dispute in the distinctive
context of the OPA immunity is to conduct an evidentiary
hearing, unless the defendant elects to waive such a hearing and
have the factual questions relating to the immunity decided by a
In calling for hearings by trial courts to resolve fact
issues in appropriate OPA immunity disputes, we recognize that,
as a general proposition, our rules of court "do not authorize
summary judgment[-type procedures] in criminal cases." State v.
451 N.J. Super. 534, 542 (App. Div. 2017); see also
State v. Parker,
198 N.J. Super. 272, 278 (App. Div. 1984).
However, in certain situations involving whether an immunity
from criminal prosecution is supported by the facts, our courts
have recognized a narrow exception to that principle.
For example, in State v. Strong,
110 N.J. 583 (1988), the
Supreme Court remanded a criminal case to the trial court for a
new evidentiary hearing on a defendant's motion to dismiss an
indictment based on the defendant's assertion that the
prosecution was barred because of immunity that had been
previously granted to him as a witness. Id. at 608. The trial
court was tasked in Strong with determining from the facts
whether the immunity extended to the testimony of another person
who had testified before the grand jury, or whether the
testimony was derived independently from the earlier compelled
testimony of the immunized witness. Id. at 601-02. The Court
concluded that because the dispositive factual issue had not
been "fully explored and developed" in the trial court, "there
must be a remand and reconsideration of [the] issue." Id. at
Similarly, in State v. Barone,
147 N.J. 599 (1996), the
Court upheld a trial court's decision to conduct an evidentiary
hearing concerning a defendant's invocation of an immunity,
despite the fact that a federal court had previously addressed
immunity issues at a hearing without the State's participation.
Id. at 610-16. Reversing the Appellate Division, the Court in
Barone upheld and reinstated the Law Division judge's
determination that the State's indictment was based upon
independent sources not derived from an immunized proffer
session with federal agents. Id. at 614-16.
The State's reliance on State v. Ochmanski,
216 N.J. Super.
240, 244-45 (Law Div. 1987) in opposing an evidentiary hearing
in the OPA setting is unavailing. Ochmanski did not involve an
issue of criminal immunity. Instead, it considered whether a
defendant's criminal liability was precluded by the statute of
limitations because of a factual dispute concerning the
defendant's fugitive status that would extend the limitations
period. Id. at 245. The Law Division judge in Ochmanski noted
that such a factual dispute concerning the proper computation of
the statute of limitations "is for the jury to decide, not the
judge at a pretrial testimonial [motion] hearing." Ibid. By
contrast to a statute of limitations, which supplies a potential
defense to prosecution, the OPA provides immunity from
prosecution itself, starting with the arrest and charging phase.
As such, Ochmanski is distinguishable.
We also do not find dispositive State v. Majewski,
Super. 353 (App. Div. 2017), which the State has also cited.
The defendant in Majewski moved to dismiss an indictment on the
ground that the prosecutor had misrepresented the applicable law
to grand jurors and had failed to tell the grand jurors about
allegedly exculpatory evidence relating to the element of
purposeful intent. Id. at 359. We reversed the trial court's
denial of the motion to dismiss because we concluded from the
record that the State had failed to define a material element of
the crime for the grand jurors, without resolving whether
"internally inconsistent" accounts of witnesses comprised
"clearly exculpatory" proof that should have been presented to
the grand jurors. Id. at 368. We concluded that the best
course under the circumstances was for the existing indictment
to be dismissed and the matter presented anew before another
grand jury. Ibid. If the State secured a new indictment,
defendant could move again for dismissal in the trial court.
Although re-presentment to a grand jury was the appropriate
approach in Majewski, that remedy does not necessarily pertain
to situations of a statutory immunity where, as we discuss
infra, factual disputes exist that do not result from grand jury
omissions or a violation of Hogan. See also Nicholson,
Super. at 542 n.3 (noting that, as an exception to the general
rule in federal and New Jersey criminal courts, a pretrial
motion to dismiss an indictment is a "permissible vehicle" to
address the sufficiency of the government's evidence in narrow
instances where there is a stipulated record or "immunity issues
are implicated"). In short, the immunity context can provide a
discrete exception to the general practice that disfavors having
criminal trial judges conduct evidentiary hearings about the
facts of a case.
As may be appropriate, the hearing may entail testimony
from witnesses, as well as documentary proofs. As we have
already noted, the defendant will have the burden of proving
evidence to support the immunity, which the prosecutor can
attempt to dispel.
We have considered the possibility of the factual issues
instead being referred back to a grand jury rather than decided
by the court. That is an option the parties may mutually elect
to pursue. If the grand jury elects to "no-bill" the case with
the additional immunity-related evidence, then the matter is
over. However, if the grand jurors do elect to re-indict, their
decision is not final, and defendant may move once again to
dismiss the indictment on appropriate grounds.
In noting these various alternatives, we point out that one
procedural advantage of litigating the factual dispute before
the court (or a trial jury) at an adversarial proceeding, rather
than before a grand jury, is that a hearing in court affords
defense counsel the opportunity to call and cross-examine
witnesses, to present argument to the tribunal, and to respond
to the prosecutor's proofs and arguments. The one-sided nature
of a grand jury proceeding, by contrast, might be less effective
in developing an appropriate record to resolve the immunity
If the trial court determines the OPA immunity applies, the
charges covered by the immunity must be dismissed, subject to
the State's right of appeal, as was exercised in this case.
Conversely, if the court finds the facts as presented to it at
the motion phase do not support the immunity, the defense
nonetheless must be afforded a final opportunity at trial to
persuade a jury as the ultimate fact-finder to the contrary, and
marshal further proofs and arguments on the subject. Cf. State
61 N.J. 250, 271-72 (1972) (analogously permitting a
jury to assess the voluntariness and probative value of a
confession the trial court ruled earlier at a pretrial hearing
was sufficiently voluntary to be admissible). Although we
recognize this would provide a defendant with a "second bite at
the apple," the OPA's explicit provisions immunizing eligible
defendants from prosecution and conviction logically support
providing them with a final opportunity to persuade the jurors
to consider their immunity claims.
We now apply these general principles to the specific
circumstances of this case. The record presented to us
unfortunately is quite limited. The factual portions relevant
to OPA immunity in our record are set forth in only a few
paragraphs of grand jury testimony by a New Jersey Transit
police officer, Leonard Romano, Jr. It is undisputed that
Officer Romano was dispatched to the Long Branch train station
on the evening of November 4, 2016.
Here is how the officer described the circumstances to the
grand jurors, in questioning by an assistant prosecutor:
Q Did you have occasion to go to the
Long Branch Police – I'm sorry, the Long
Branch Train Station?
Q Okay. And that was for a report
of an intoxicated subject in the waiting
Q Did you go to that location?
A Yes I did.
Q Did you see somebody that you
would later identify as [W.S.B.]?
Q All right. And can you please
describe for the members of the Grand Jury,
his demeanor. How was he acting when you
came across him?
A He was in the waiting room, it looked
like he fell off the bench and he was on the
floor. He looked like he was, at first,
drunk, but then once I was able – he wasn't
really responsive. Then once he opened his
eyes and knew what was going on, I could
tell, I could see the pinpoint eyes. Which
is common with narcotics use, specifically
I notified EMS right away because I was
going to sit there and talk to him, but he
didn't really know what was going on. He
didn't even know he was in Long Branch.
Q Okay. But although it was
initially intoxicated, somebody thought
potentially alcohol. From your training
[and] experience it looked more like drugs.
Q Okay. But you called EMS and
[W.S.B.] was taken to the local hospital, is
Although defense counsel8 at the oral argument before the
motion judge, as well as the judge's written opinion, both
briefly allude to a written police report, we have been advised
by appellate counsel that the police report was never moved into
evidence. Nor had the police report been furnished to us as
part of the record on appeal.
Defense counsel at the motion hearing did present and move
into evidence a one-page "arrest booking sheet." The booking
sheet contained two photos taken of defendant in his hospital
bed, noting the time of his arrest was 10:45 p.m., and that he
was being charged with possession of CDS (heroin) and being
under the influence of heroin. Defendant's trial counsel also
provided the motion judge in her moving papers with a one-page
excerpt of his medical record, which the State asserts it did
not possess until that time. The medical record excerpt states
that the hospital's medical staff diagnosed defendant with an
"intentional drug overdose."
A different assistant public defender and a different assistant
prosecutor now represent the parties on appeal. We appreciate
their efforts in clarifying for us the actual contents of the
The only other noteworthy portion of the grand jury
transcript that warrants discussion here is the following
excerpt, which occurred after certain questions from the grand
jurors had prompted the police officer to resume his testimony:
[PROSECUTOR]: Officer, I'm going to
ask you to retain your seat. During
deliberations there were one or more
questions about the case. I just want to
ask you some questions.
Q The heroin was allegedly found in
a glasses case in a bag, is that correct?
Q The bag belonged to [W.S.B.].
Q How do you know it belonged to
A When he was slumped over on the floor,
the bag was still on his back.
Q Okay, so the bag was on his back –
A It was a book bag, it wasn't just a
normal shoulder bag, it was a book bag. So
it was on his, it was still strapped to him
while he was on the floor.
Q Okay. There was another question,
JUROR: And at the hospital was there a
diagnosis and treatment that was reported
for this or do we not know?
[PROSECUTOR]: I'm going to interrupt
that question. A person's medical records
are private and confidential.
The grand jury indicted defendant and charged him with
third-degree possession of Schedule I CDS under
10(a)(1). Defendant moved to dismiss the indictment, arguing
that the OPA protected him. The State contended that
defendant's condition was not within the scope of a "drug
overdose" set forth in
N.J.S.A. 24:6J-3. The trial court
rejected that argument and granted defendant's motion to dismiss
In a detailed written opinion dated August 17, 2017, the
trial court construed the applicable provisions of the OPA. The
court found that under the broad statutory definition of "drug
overdose," defendant was entitled to immunity.
We generally agree with the trial court's scholarly
analysis of the OPA. However, we are not confident that the
sparse record is adequate to resolve the parties' fact-laden
dispute concerning the applicability of the OPA immunity in this
Among other things, the record is unclear or inconclusive
concerning the details of such aspects as: (1) the supposed
hearsay report9 of an "intoxicated" person on the floor of the
train station; (2) whether any bystanders observed defendant's
condition; (3) how his condition was described by the officer in
the full police report; (4) what additional observations the
officer made concerning defendant's actual condition, if any;
(5) whether defendant exhibited any signs of acute physical
illness; and (6) exactly why the officer called for EMT
assistance and particularly whether his call was prompted by
routine standard police protocols rather than an individualized
assessment that defendant's condition was "acute" and "required"
medical assistance. These topics, and any others of relevance,
should be explored at a full evidentiary hearing.
We discern no need to compel this case to be presented anew
before a grand jury. The factual applicability or
inapplicability of OPA immunity to this matter is not obvious
from the record, at least the one provided to us. This is not
We note that the standard under
N.J.S.A. 24:6J-3 logically
calls for an assessment with respect to the perceptions of the
person(s) who actually called for medical assistance i.e., here
the officer, and not the unidentified hearsay declarant who
apparently called the dispatcher seeking police, not medical,
assistance. In addition, even though the person who called for
medical assistance here happens to be a police officer, his
factual observations and actions ultimately must be viewed
through the statutory prism of a layperson. In essence, the
pivotal question comes down to what a hypothetical layperson,
who saw what Officer Romano saw, would have reasonably perceived
at the scene.
the rare situation in which exculpatory proof "jumps off the
page" to an extent requiring the indictment to be set aside
because of alleged prosecutorial misconduct before the grand
jury. That is far from the case here, especially since the
State did not even possess defendant's medical records
diagnosing him with an overdose until the one-page excerpt was
supplied by trial counsel as part of the dismissal motion
As an aside, we must briefly note that it was inaccurate
for the assistant prosecutor to respond extemporaneously to the
grand juror's query about defendant's medical records by saying,
without qualification, that such records are "private and
confidential" and then cutting off the query. Actually, under
federal regulations adopted pursuant to the Health Insurance
Portability and Accountability Act ("HIPAA"), 42 U.S.C. § 1320d
to -9, a hospital "may disclose protected health information for
a law enforcement purpose to a law enforcement official if . . .
[i]n compliance with and as limited by the relevant requirements
of . . . [a] grand jury subpoena . . . ."
164.512(f)(1)(ii)(B). A grand jury subpoena alone is sufficient
under HIPAA for a covered entity such as a hospital to disclose
protected health information for law enforcement purposes. In
re Grand Jury Proceedings,
450 F. Supp. 2d 115, 116 (D. Me.
That said, we do not find that the prosecutor had an
obligation to subpoena or otherwise obtain defendant's medical
records in this case. At most, the records have only limited
probative value under N.J.R.E. 401 as corroborative proof,
arguably to rebut the State's claim that a lay perception of a
drug overdose here would be untenable.
As we have already noted, the focus of the statute is on a
layperson's reasonable perception. Indeed, it is conceivable in
some instances that OPA immunity could still apply if a
layperson observing a subject reasonably believed that person
had an acute condition satisfying the definition of
24:6J-3, even though medical professionals later concluded that
the person had not been in such a severe state. In any event,
we find no prosecutorial misconduct occurred here, despite the
inaccurate ad hoc response supplied to the grand jurors about
For these reasons, the trial court's order dismissing the
indictment is vacated without prejudice, and the matter is
remanded for further proceedings consistent with our opinion.
The trial court shall duly consider defendant's custody or bail
status in the interim. We do not retain jurisdiction.