“The Good Samaritan Law” - §18.2-251.03 (Code of Virginia, 1950)

M. Tyson Daniel
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The following “blog post” is a continuation of a recent Facebook post by M. Tyson Daniel – founder of and lawyer with The Daniel Law Firm PC in Roanoke, Virginia – which addressed, in limited part, the recent passing of “The Good Samaritan Law” in Virginia [codified at §18.2-251.03 (Code of Virginia, 1950), as amended].

For starters, the Virginia General Assembly gets kudos for recently enacting the “Good Samaritan Statute” – see §18.2-251.03 – because it finally brings the law into conformity with a well-established public policy principle which, founded on grounds of equity, states that: people who, at their own peril, engage themselves with law enforcement, for the purpose of helping another person in serious medical distress, ought to be afforded protection from personal prosecution when such prosecution would otherwise stem from their effort to “do-the-right-thing” by engaging the authorities to help another person in need of their assistance. It goes without saying that good deeds ought not to be punished – at least not in this context. We want people to help, or call to get help for, others in distress; and, we want them to do so without reservation based on their own preservation.

In order to transform this principle that “Good Deeds Should Not Be Punished” into daily practice, the GA recognized that we must motivate people to assist others in distress; and, in sum, it’s excellent that our legislature has motivated the otherwise Good Samaritan not to choose to turn a selfish blind eye to their fellow human in dire need of their assistance.

This is not, however, an article about the infinite wisdom of our legislature. Indeed, somewhat to the contrary because, this statute, however well-meaning it is, is drawn so narrowly that, in many instances, the spirit of the statute may be defeated by the plain language of the statute.

For example, here is a hypothetical that evidences the above-referenced flaw in the otherwise, I believe, well-meaning statute:

Jane and her husband, Larry, are retired and they live in a small town in Virginia. They have no children. Larry is at a doctor’s appointment one day and, since he is gone and they have no kids, Jane is at home alone. All of her doors are locked and she’s reading a book. Phillip is a neighbor who she has known for many years and for whom she is sympathetic and, hence, not unfriendly…even though she believes he has a serious drug problem. At about 2pm in the afternoon, Jane hears Phillip banging on her door and screaming to let him into her home because he is dying of a drug overdose. Jane, concerned for Phillip, opens the doors and, without any invitation or other exchange, he runs into her small home and barricades himself into her bedroom. She can hear him yelling “I’m Gonna Die. This Smack is Killing Me!”

Jane, knowing of Phillip’s drug problems and concerned that he’s screaming about a possible Heroin overdose, immediately calls 911 and then, immediately thereafter, calls her husband - who had just left his doctor’s appointment and was already traveling home. Larry, upon this news, travels quickly home to assist.

As it would happen, both the EMS and local law enforcement officers were already present treating Phillip in the bedroom and otherwise “securing the scene,” respectively, when Larry arrived. Notably, when Larry walked-in, one of the officer’s immediately made a remark about the number of pill bottles on a side table. Larry tells the officer of his medical issues and the absence of children; and consequently, no need to otherwise “secure” the various medications.  Another officer was walking by during this exchange and, among the dozen or so pill bottles, sees one bottle that appears to have a plastic baggie in it. He grabs and turns the bottle and then picks-it-up to see it better and, in so doing, he sees Larry’s name on the label of the bottle and he also sees what he believes to be a bag of marijuana in the pill bottle. When he picks the bottle up and questions Larry about it, Larry states that it is his bottle and his marijuana and that he did not have a prescription for the marijuana. Larry is charged with Possession of marijuana. The Officer bringing the charge does not conduct a Field Test and there is, otherwise, no Certificate of Analysis but there is an admission by Larry that it was his marijuana.

Query: Is Larry Protected By the “Good Samaritan Statute” such that he can have the case dismissed on those grounds alone?

Hint: The statute provides for an “affirmative defense” – which means that the burden shifts to the Defendant to show that he or she meets all the elements of the statutory defense. In this instance, the statute (18.2-251.03) is not long and is definitely worth the read. It can be conveniently found at the following link: https://lis.virginia.gov/cgi-bin/legp604.exe?151+ful+CHAP0418+pdf

Answer: When looking only at the plain language of the “Good Samaritan Statute,” Larry is not protected and, excluding all other issues regarding suppression and chemical analysis of the evidence, he would be guilty under Virginia Law. Now, that said, the answer here is meant to:  show the reader the flaw in the statute and it is not meant to be a discussion on the other defenses present (of which there are several). As for the flaw, if one looks at the statute closely, they will notice that it only affords protection to the person who called the EMS or the 911 Services and, in this instance, it was Jane who called but it was Larry who was charged.

As mentioned above, Larry still has a whole slew of defenses/suppression issues including: suppression based on issues of custodial interrogation, absence of Miranda warnings, a shaky “plain view” argument and the absence of a certificate even in the face of his otherwise seemingly inculpatory, but perhaps inadmissible, statements.  

So, to reiterate, the purpose of this post is to show how a well-meaning – but too narrowly drawn statute – can violate the spirit of its own language by excluding the very people who it is designed to protect because of the rules of strict statutory construction. To be sure, I appreciate the rules of statutory construction because they are fixed rules by which we can all count and, therefore, practice. Thus, it seems to me that the solution is to re-draft the statute to include others who stay to assist. Simple enough, eh?


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