Like other states, Wisconsin has an opioid addiction epidemic. To encourage people to summon emergency aid for someone who has overdosed, the legislature passed §961.443 which provides that that an “aider” is immune from prosecution for the possession of drug paraphernalia under §961.573 or a controlled substance or a controlled substance analog under §961.41(3g) when trying to help a victim of overdose. The court of appeals here holds that: (1) a circuit court should determine before trial (not at trial) whether, under §961.443, a defendant qualifies as an “aider”; (2) the defendant bears the burden of proving she is entitled to this statutory immunity by a preponderance of the evidence; and (3) a defendant’s immunity from prosecution for possession of drugs and/or drug paraphernalia does not extend to bail jumping charges premised upon her possession of drugs and/or drug paraphernalia. Given how difficult it is to overcome addiction, “aiders” will likely also be “bail jumpers,” which means this decision dilutes the immunity offered by §961.443.
Here is how §961.443 is supposed to work. If it is clear that the person possessing drugs and/or drug paraphernalia is an “aider” then the State can’t file charges against her. If the facts aren’t clear, then the State may initiate prosecution, the aider/defendant may file a pretrial motion claiming immunity from prosecution, and the circuit court should decide the motion at its earliest opportunity, even if that requires an evidentiary hearing. The court of appeals explained:
¶13 Delay in the immunity determination would inject unnecessary uncertainty into the prosecution and result in the use of taxpayer resources to continue a prosecution that may eventually be dismissed on immunity grounds. Delay also undermines the benefit the legislature intended to provide an individual who aids a person he/she believes is suffering from an adverse reaction to drugs.
The court of appeals held that the burden of proof lies with the defendant because: (1) she is seeking to change the status quo; (2) drug laws aim to preserve public health and safety; (3) the circumstances of an overdose are more likely to be known by the defendant; and (4) prosecuting a person for violating drug laws is the general rule, immunity is the exception. ¶¶14-18.
In this case, Williams sought immunity from prosecution for possession of drugs and drug paraphernalia and from prosecution for 3 bail jumping charges stemming from her possession of drugs and drug paraphernalia. Citing the plain language of the statute, the court of appeals held that Good Samaritan immunity does not extend to bail jumping charges:
¶23 Williams essentially asks us to act as a super legislature, contemplating and enacting immunity for crimes in addition to those listed. That is not our role. If the legislature meant to provide immunity for bail jumping offenses founded in part upon violations of WIS. STAT. § 961.573 or WIS. STAT. § 961.41(3g), it could have easily written this into WIS. STAT. § 961.443. It did not. The legislature wrote only that immunity would apply to the possession of illegal drugs and drug paraphernalia statutes cited in §961.443(2); it did not go so far as to determine that possessing such illegal items while released on bond for another crime also would be immune. We are bound by the words the legislature chose. On the bail jumping charges, Williams is being prosecuted under WIS. STAT. § 946.49(1)(b), not § 961.573 or § 961.41(3g). That ends it.
Judge Reilly’s concurring opinion argues that if Williams is entitled to immunity from prosecution for possession of drugs/paraphernalia, then the State cannot prove beyond a reasonable doubt the crimes that the bail jumping charges are predicated upon. See State v. Hansford, 219 Wis. 2d 226, 244, 580 N.W.2d 171 (1998)(absent a finding that the defendant has committed a crime, the State has not proved beyond a reasonable doubt an element of the bail jumping charge–that the Defendant intentionally failed to comply with the term of his bond prohibiting criminal activity.”); see also Wis JI–Criminal 1795.
The majority distinguishes Hansford based on its procedural history. It also notes that bail jumping and the conduct underlying bail jumping charges “are distinct and separate offenses.” See State ex rel Jacobus v. State, 208 Wis. 2d 39, 53, 559 N.W.2d 900 (1997). When the State prosecutes someone for bail jumping the focus is on the fact that the person has violated a condition of her bond, “not on the underlying act.” ¶29.
Maybe. But taking that approach in a §961.443 situation clearly undermines the point of the statute. Enforcement of drug laws or aid to victims of drug overdoses? The clash of policies makes this case an attractive candidate for SCOW review.