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Joseph Whitney Smith

Groups split over proposed overdose immunity bill

By Joseph Whitney Smith, Capital News Service

RICHMOND, Va. -- Groups, including former drug users, are split over a Senate bill that would give immunity to both someone reporting or experiencing an overdose. 

In a recent unanimous vote, the Senate passed Senate Bill 667, introduced by Sen. Jennifer Boysko, D-Fairfax. The bill expands on the current protection offered only to the person reporting the overdose, who can be charged with a crime but has an affirmative defense, which leads to dropped or reduced charges when proven they reported an overdose. 

This new bill would offer immunity to both the person reporting the overdose and experiencing the overdose, meaning no charges would be filed. The bill protects individuals from arrest or prosecution for the unlawful purchase, possession or consumption of alcohol, controlled substances, marijuana or having drug paraphernalia. 

The legislation also states that no officers acting in good faith will be found liable for false arrest if it is later determined the individual arrested was immune from prosecution because they overdosed or reported an overdose.

“In Virginia, friends often do not call for help for fear of being arrested,” Boysko said at the committee hearing for the bill.

Boysko told Senate members that every second matters in an overdose and that data show bystanders are three times more likely to call 911 when there is a safe reporting law such as her proposed bill. She also said that the state needs to stop criminalizing individuals that are attempting to seek urgent help for themselves or others. 

“Virginia's death toll from opioid overdoses continues to rise despite state and local government spending millions of dollars to make naloxone available,” Boysko said. “More than 1,500 died just in 2019 in Virginia from drug overdoses.”

According to the Virginia Department of Health, overdose is the leading cause of unnatural death in the state since 2013, followed by motor vehicle related and gun deaths.

“With the new law we’re looking at a healthcare solution for a healthcare crisis,” said Nathan Mitchell, who said he was previously addicted to drugs. Mitchell now serves as the community outreach and advocacy coordinator at the McShin Foundation. Mitchell said the proposed bill does not provide protection for crimes such as distribution or a firearm at the scene of the overdose, only drug and paraphernalia possession. 

According to Mitchell, drug incarceration is inconsistent in the commonwealth. He said after his first drug-related arrest he wasn’t introduced to a recovery program. But, after his second arrest, he received treatment through the help of the McShin Foundation. He said that inconsistency is an example that not all individuals who overdose will have access to the same treatment. 

Drug courts are specialized courts where individuals plead guilty and agree to complete the drug court program. Not every locality in the commonwealth has a drug court, though state law authorizes any locality to establish one with the support of existing and available local, state and federal resources. 

Mitchell said that individuals may not report an overdose to help protect the individual overdosing from being charged with a crime. He said that’s why a bill granting immunity to both parties is important. 

John Shinholser, president and co-founder of the McShin Foundation, a nonprofit that focuses on recovery education and recovery, testified in favor of Boysko’s bill.

“This is evidence-based, data-driven proof that this bill will reduce deaths in Virginia during this crisis,” Shinholser said.

Goochland County resident Micheal McDermott spoke in opposition of Boysko’s bill during the Senate committee meeting. McDermott said he’s been in recovery from substance abuse disorder for over 28 years. The bill has good intentions but immunity should only be given to the person reporting, not overdosing, McDermott said. 

“I don’t think it’s a good idea,” he said. 

There’s no guarantee that an overdose victim treated by paramedics will find recovery, McDermott said. If the person overdosing is on probation, they should receive a probation violation, and perhaps get the needed court-mandated treatment.

Westmoreland County Commonwealth’s Attorney Julia Sichol spoke last month at a House subcommittee in opposition to similar legislation that failed to advance, on behalf of the Virginia Association of Commonwealth’s Attorneys. Sichol said she thinks a bill offering immunity “can also cause harm to lives” because it keeps the person overdosing from being charged with a crime and could possibly prevent them from receiving court-mandated treatment.

“Drug treatment is extremely expensive and sometimes the only way to get the treatment for the individuals is through the court system,” Sichol said. “If you take away the ability for individuals to be charged who have overdosed they are not eligible to participate in drug treatment program, they are not eligible to go through the court system under mandated treatment.”

On Friday, SB 667 was assigned to a House subcommittee.

Bill Aims to Save Lives During Overdose

By Joseph Whitney Smith, Capital News Service

RICHMOND, Va. -- Cullen Hazelwood died of an overdose last year 2 miles from the hospital because his friend was scared to call for help, according to his mother Christy Farmer. 

Farmer wants to see legislation passed in the General Assembly that would extend immunity from prosecution to people reporting an overdose. 

In 2019, the General Assembly passed a law that offered individuals an affirmative

defense from prosecution for purchasing or possessing drugs, meaning the charges could be reduced or cleared. The bill also struck the requirement that the individual reporting an overdose participate in a criminal investigation. Senate Bill 667, patroned by Sen. Jennifer Boysko, D-Fairfax, proposes immunity for people who report overdoses, meaning no charges would be filed. 

Fatal drug overdose has been the leading method of unnatural death in Virginia since 2013, driven by opioid use, according to the Virginia Department of Health. The other two in the category are motor vehicle related and gun deaths. Fentanyl accounts for a majority of fatal overdoses, followed by heroin and prescription opioids, respectively.

House Bill 532, introduced by Del. Betsy Carr, D-Richmond, sought to achieve the same goal as SB 667. However, it was tabled last week in a 5-3 subcommittee vote. Carr said that fear of legal consequence is the most common reason for not contacting emergency services during an overdose. The legislation was intended to make reporting emergencies easier for all parties involved. 

“The people most directly impacted by this legislation are those who experience an overdose as well as those friends or family members who are present when an overdose occurs,” Carr said. 

Farmer said that her 18-year-old son died of an overdose on May 7, 2019. She said he had recently finished a recovery program and had been clean for several months before his relapse. She said when her son overdosed he was with a friend who took him to someone’s apartment but they were not home. 

“A neighbor said he was yelling, ‘I can't get in trouble, I can't get in trouble, I can't get in trouble,’” Farmer said. “Where my son ended up dying was less than 2 miles from a hospital, less than 2 miles from my house, and less than 3 miles from his grandmother’s house.”

Marianne Burke also had a family member that overdosed on heroin but didn’t die. That overdose wasn’t reported due to fear of prosecution, Burke said. 

“It's obvious that the bill that we have called safe reporting has not done the trick in Virginia,” Burke said.

 Westmoreland County Commonwealth’s Attorney Julia Sichol spoke last week in opposition to the House bill, on behalf of the Virginia Association of Commonwealth’s Attorneys. Sichol said she thinks Carr’s bill “can also cause harm to lives” because immunity would keep individuals who report an overdose from being charged with a crime and possibly prevent them from obtaining treatment.

“Drug treatment is extremely expensive and sometimes the only way to get the treatment for the individuals is through the court system,” Sichol said. “If you take away the ability for individuals to be charged who have overdosed they are not eligible to participate in drug treatment program, they are not eligible to go through the court system under mandated treatment.”

Drug courts are specialized courts where individuals plead guilty and agree to complete the drug court program, Sichol said. Patients in the program are on probation and can live at home, she explained. They are screened for drugs three times a week, attend drug treatment counseling, have a curfew and can receive visitors.

Del. Jennifer Carroll Foy, D-Prince William, voted against tabling the House bill, saying she objected to “the contention that we can incarcerate ourselves out of addiction” and that treatment simply should be more accessible. 

“It is the fact that we don’t allow them to get the treatment until we incarcerate them,” she said. “And that’s a failure of us and our system and the way that we think of substance abuse.” 

SB 667 will be heard Wednesday in the Senate Judiciary committee.

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