Probation Officers’ Use of Naloxone and the Good Samaritan Law

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Like many government agencies, Community Corrections is working to address the opioid epidemic. (Jeff wrote about some of the other things the government is doing here.) Under a new administrative policy, North Carolina probation officers are carrying Naloxone kits to respond to probationers and others experiencing a drug overdose. The policy raises questions, including some related to the limited immunity available under the Good Samaritan law in G.S. 90-96.2.

North Carolina’s probation officers are being equipped with NARCAN, which is the brand name of a Naloxone nasal spray that counteracts the effects of an opioid overdose. Many officers are currently undergoing training on how to use the kits, which they must do to use them under the authority granted by the State Health Director under G.S. 90-12.7. Most officers should be trained by the end of October.

Under the policy, an officer who encounters a probationer or other person that appears to be experiencing a drug overdose is instructed to call 911, check the area for safety, don universal precautions, administer the NARCAN, and, if necessary, administer CPR. Officers are also instructed to seize any illegal or non-prescribed narcotics and give them to law enforcement.

Some incidents in which an officer administers NARCAN could raise issues under the so-called Good Samaritan law set out in G.S. 90-96.2. That law was enacted in 2013 to give a limited grant of immunity from certain drug charges to people who seek assistance during a drug overdose. The idea, of course, was to encourage people to call for help even if they might be engaged in illegal activity.

In 2015 the law was amended to include a provision related to probationers, parolees, and post-release supervisees. It says that an offender shall not be subject to arrest or revocation “if the arrest or revocation is based on an offense for which the person is immune from prosecution” under the earlier enacted portion of the law.

By no means is every incident in which NARCAN might be used going to be covered under the Good Samaritan law. In fact, most will not. First of all, the law only grants immunity for violations based on certain offenses:

  1. Misdemeanor simple possession under G.S. 90-95(a)(3).
  2. Felony possession for less than one gram of cocaine or less than one gram of heroin under G.S. 90-95(a)(3).
  3. Possession of drug paraphernalia under G.S. 90-113.22.

Other crimes, substances, and quantities are not covered.

Second, the law applies only when certain requirements are met. As to a person who calls for help for a person experiencing a drug-related overdose, all of the following must be true:

  1. The person sought medical assistance by contacting 911, law enforcement, or emergency medical personnel.
  2. The person acted in good faith in calling for help, believing that he or she was the first to call.
  3. The person gave his or her own name to 911 or to responders on arrival.
  4. The request for medical assistance did not arise during the course of the execution of an arrest warrant, search warrant, or other lawful search.
  5. The evidence for prosecution of the offenses listed above was obtained as a result of the person calling for help.

The immunity applies to the person who experienced the overdose if all of the requirements other than giving his or her own name are satisfied.

It seems to me that the vast majority of overdose situations involving a probation officer will not meet all of these criteria. The most likely scenario, I think, is that a probation officer will stumble upon a person in distress during a home contact or while completing a warrantless search. In either case, the incident will not likely have originated with a request for assistance by a Samaritan or by the person in distress, and so the situation would not be covered under the immunity law.

Even if an incident were initiated by a call for help and otherwise covered under the law, certain behaviors would not be immune from revocation or arrest. If, for example, the overdosing or Samaritan probationer had a weapon or assaulted the officer, those behaviors would not be immune from arrest or revocation. The officer’s authority to arrest and the court’s authority to revoke are limited only when the violations are based on the offenses listed above (certain drug possession and paraphernalia crimes)—although Community Corrections is taking the position that the law applies both to “commit no criminal offense” and “use, possess, or control” violations involving the covered offenses.

Just because certain behavior by certain probationers may be immune from arrest and revocation does not mean the officer or the court cannot respond at all. The offender could be cited to court and the court could take actions aside from revocation, such as extending probation or ordering treatment. Though the law mentions only revocation, Community Corrections is training officers not to seek any incarceration-based sanction in response to a covered violation—so no CRV, quick dips, splits, or contempt.

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