§ 220.78 Witness or victim of drug or alcohol overdose.
1. A person who, in good faith, seeks health care for someone who is
experiencing a drug or alcohol overdose or other life threatening
medical emergency shall not be charged or prosecuted for a controlled
substance offense under article two hundred twenty or a marihuana
offense under article two hundred twenty-one of this title, other than
an offense involving sale for consideration or other benefit or gain, or
charged or prosecuted for possession of alcohol by a person under age
twenty-one years under section sixty-five-c of the alcoholic beverage
control law, or for possession of drug paraphernalia under article
thirty-nine of the general business law, with respect to any controlled
substance, marihuana, alcohol or paraphernalia that was obtained as a
result of such seeking or receiving of health care.
2. A person who is experiencing a drug or alcohol overdose or other
life threatening medical emergency and, in good faith, seeks health care
for himself or herself or is the subject of such a good faith request
for health care, shall not be charged or prosecuted for a controlled
substance offense under this article or a marihuana offense under
article two hundred twenty-one of this title, other than an offense
involving sale for consideration or other benefit or gain, or charged or
prosecuted for possession of alcohol by a person under age twenty-one
years under section sixty-five-c of the alcoholic beverage control law,
or for possession of drug paraphernalia under article thirty-nine of the
general business law, with respect to any substance, marihuana, alcohol
or paraphernalia that was obtained as a result of such seeking or
receiving of health care.
3. Definitions. As used in this section the following terms shall have
the following meanings:
(a) “Drug or alcohol overdose” or “overdose” means an acute condition
including, but not limited to, physical illness, coma, mania, hysteria
or death, which is the result of consumption or use of a controlled
substance or alcohol and relates to an adverse reaction to or the
quantity of the controlled substance or alcohol or a substance with
which the controlled substance or alcohol was combined; provided that a
patient’s condition shall be deemed to be a drug or alcohol overdose if
a prudent layperson, possessing an average knowledge of medicine and
health, could reasonably believe that the condition is in fact a drug or
alcohol overdose and (except as to death) requires health care.
(b) “Health care” means the professional services provided to a person
experiencing a drug or alcohol overdose by a health care professional
licensed, registered or certified under title eight of the education law
or article thirty of the public health law who, acting within his or her
lawful scope of practice, may provide diagnosis, treatment or emergency
services for a person experiencing a drug or alcohol overdose.
4. It shall be an affirmative defense to a criminal sale controlled
substance offense under this article or a criminal sale of marihuana
offense under article two hundred twenty-one of this title, not covered
by subdivision one or two of this section, with respect to any
controlled substance or marihuana which was obtained as a result of such
seeking or receiving of health care, that:
(a) the defendant, in good faith, seeks health care for someone or for
him or herself who is experiencing a drug or alcohol overdose or other
life threatening medical emergency; and
(b) the defendant has no prior conviction for the commission or
attempted commission of a class A-I, A-II or B felony under this
article.
5. Nothing in this section shall be construed to bar the admissibility
of any evidence in connection with the investigation and prosecution of
a crime with regard to another defendant who does not independently
qualify for the bar to prosecution or for the affirmative defense; nor
with regard to other crimes committed by a person who otherwise
qualifies under this section; nor shall anything in this section be
construed to bar any seizure pursuant to law, including but not limited
to pursuant to section thirty-three hundred eighty-seven of the public
health law.
6. The bar to prosecution described in subdivisions one and two of
this section shall not apply to the prosecution of a class A-I felony
under this article, and the affirmative defense described in subdivision
four of this section shall not apply to the prosecution of a class A-I
or A-II felony under this article.
