PA Superior Court: Drug Overdose Response Act Defense Cannot Be Waived

An en banc panel of the Superior Court has just decided the case of Commonwealth v. Markun. In Markun, the Court reversed the prior decision of a three-panel judge and found that the immunity to minor drug possession charges provided to an overdose victim by the Drug Overdose Response Act cannot be waived by an attorney’s failure to raise the defense in pre-trial motions or at trial.

The Facts of the Case

The facts of Markun are straight-forward. First responders found the defendant unconscious in a Delaware County Motel 6. Housekeeping personnel had called 911 and reported the medical emergency. She was treated by EMTs and transported to a nearby hospital. Police later arrested her and charged her with misdemeanor knowing and intentional possession of a controlled substance. In this case, the controlled substance was heroin.

The defendant filed a motion to suppress statements that she had made to the investigating police officer. After the trial court denied the motion to suppress, the defendant went to trial in the Delaware County Court of Common Pleas. She was convicted and sentenced to probation. She appealed to the Pennsylvania Superior Court.

The Criminal Appeal

Although the defendant never argued that she should have been immune to prosecution under the Drug Overdose Response Act either in pre-trial motions or at trial, her appellate attorneys raised this issue on appeal. Initially, the Superior Court denied the appeal. Her attorneys, however, filed an Application for Re-Argument En Banc, meaning they asked the entire court to hear the appeal and overrule the decision of the initial three-judge panel. The court agreed to hear the appeal en banc and overturned the defendant’s conviction.

The Court's Reasoning

On appeal, the court ruled that the defenses provided by the Drug Overdose Response Act cannot be waived and can be raised for the first time in an appeal. The Act provides that a person may not be charged and shall be immune from prosecution for many misdemeanor drug possession and paraphernalia offenses if the person can show that they reported an overdose by calling 911, provided their name, and remained with the person who needed immediate medical attention until emergency services personnel arrived. In a recent opinion, the Superior Court found that the Act applies not only to the person who calls 911, but also the victim of an overdose where that victim calls 911 on their own behalf.

The Commonwealth argued that the defendant waived the immunity from prosecution for the misdemeanor drug charge provided by the Act by not raising it in the trial court. The Superior Court, however, rejected this argument. The court found that the immunity provided by the act is similar to subject matter jurisdiction or soverign immunity, and those types of immunity defenses cannot be waived and can be raised for the first time in an appeal. Because the trial court never had jurisdiction to hear the case, the defendant could not waive the defense by failing to raise it previously. The court reasoned that the purpose of the act is to prevent people who discover an overdose victim, who may also be drug users and afraid of incurring criminal liability themselves, from hesitating when deciding whether to call the police out of fear of criminal charges. In order to avoid that possibility, the court found that the Act’s defenses should not be waivable. Accordingly, the Superior Court reversed the conviction.

Limitations to the Drug Overdose Response Act

The Superior Court’s decision properly encourages drug users to get help for themselves or their friends if someone experiences an overdose. At the same time, there are still major limitations to the Act’s immunity provisions. The Act does not provide immunity to serious offenses. For example, the statute does not provide immunity to Possession with the Intent to Deliver charges or the extremely serious and increasingly-prosecuted homicide charges of Drug Delivery Resulting in Death. Accordingly, someone who gave or sold the drugs to the person who overdosed can still be prosecuted for PWID or homicide.

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PA Superior Court: Drug Overdose Response Act Defense Cannot Be Waived