State of New Jersey v. C.C.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3637-23

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

April 29, 2025

Plaintiff-Respondent, APPELLATE DIVISION

v.

C.C.W.,

Defendant-Appellant.

_______________________

Argued March 18, 2025 – Decided April 29, 2025

Before Judges Sumners, Susswein and Bergman.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Cape May

County, Indictment No. 24-01-0008.

Keerah D. McCratic, law student, appearing pursuant

to Rule 1:21-3(b), argued the cause for appellant

(Rutgers Law School, attorneys; Patrick Severe and

Keerah D. McCratic, on the briefs).

James E. Moore, Assistant Prosecutor, argued the

cause for respondent (Jeffrey H. Sutherland, Cape

May County Prosecutor, attorney; James E. Moore, of

counsel and on the brief).

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

This appeal presents a novel statutory construction question under the

Overdose Prevention Act (OPA or Act), N.J.S.A. 2C:35-30 to -31 and N.J.S.A.

24:6J, which was enacted to save lives by "encouraging people who witness or

experience a suspected drug overdose to seek medical assistance. . . ."

N.J.S.A. 24:6J-2. The Legislature recognized that a person might be

discouraged from reporting a suspected drug overdose if they believed that

calling for medical assistance would lead to arrest and prosecution for

unlawfully using or possessing a controlled dangerous substance (CDS). To

ameliorate that concern, the OPA guaranties immunity for certain offenders 1

whose crimes were discovered because police responded to an emergency call

for medical assistance. In furtherance of its ultimate objective to save lives,

the Act provides unequivocally that persons who can establish their eligibility

for immunity "shall not be: arrested, charged, prosecuted, or convicted of" a

covered offense. N.J.S.A. 2C:35-30(a); N.J.S.A. 2C:35-31(a).

1

As we emphasize later in our opinion, the OPA affords immunity only for

use/simple possession CDS offenses. See N.J.S.A. 2C:35-30(c) and N.J.S.A.

2C:35-31(c). It does not provide immunity for a CDS offense involving

distribution or possession with intent to distribute. Nor does it afford

immunity for any non-CDS offense.

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2

Defendant C.C.W. 2 is charged with unlawful possession of

methamphetamine. By leave granted, she appeals the June 12, 2024 Law

Division order denying her motion to dismiss the prosecution pursuant to the

OPA. Defendant's friend called 911 to report that she told him via telephone

that she "wanted to commit suicide." He also reported that defendant "uses

crystal meth." Police officers responding to the call transported defendant to a

hospital. Upon her arrival, hospital staff inventoried defendant's belongings

and found a small amount of methamphetamine in her wallet. The CDS was

given to police, leading to defendant's immediate arrest and ensuing

prosecution.

This appeal requires us to probe the boundaries of the OPA's definition

of the term "drug overdose," focusing on whether the threat of suicide that

prompted the 911 call was the result of defendant's CDS use. Because the

OPA is a quintessentially remedial statute, we construe its immunity provision

liberally. See Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 555 (2013)

(quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431

(1994)) (explaining that a remedial statute which "promotes a strong public

2

To avoid discouraging other persons who may be covered by the statutory

immunity from seeking medical assistance, we use initials to identify

defendant. See State v. W.S.B., 453 N.J. Super. 206, 206 n.1 (App. Div.

2018).

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3

policy of the State . . . should be construed liberally to effectuate its important

social goal"). The remedial nature of the Act, however, does not mean that we

may stray from its plain text.

Notably, the OPA includes a precise, multi-part definition of "drug

overdose." N.J.S.A. 24:6J-3. One element of the statutory definition requires

proof that the overdose subject is experiencing an "acute condition." Ibid.

The State acknowledges that defendant's suicidal ideation constitutes an acute

condition. However, to qualify for the OPA immunity, a defendant must also

establish that the acute condition "result[ed] from the consumption or use of a

[CDS]." Ibid. The Act, in other words, requires proof of a causal nexus

between CDS use and the acute condition that prompts the 911 call for medical

assistance. This case turns on whether defendant can establish that nexus.

It bears emphasis that the OPA's definition of "drug overdose" is broader

than the common meaning of that term. Ordinarily, an overdose is a severe

reaction to an excessive dose of a drug, such as when a person is rendered

unconscious and needs an opioid antidote for resuscitation. The plain text of

the OPA, however, does not require that the subject is presently intoxicated or

"under the influence" of a CDS. Nor does the statutory definition require

proof that the drug consumption occurred just before the acute condition arose.

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We decline to add preconditions to the Legislature's carefully worded

definitions of the terms "drug overdose" and "medical assistance." See

N.J.S.A. 24:6J-3. Accordingly, we hold the OPA's plain language does not

foreclose the possibility that a defendant might qualify for immunity based on

their chronic use of a CDS, i.e., an addiction, provided the acute condition

requiring medical assistance is the result of such prior CDS use.

Defendant's entitlement to immunity turns on whether she can carry her

burden of proving a causal relationship between her acute condition and prior

CDS use. Our review of the record shows that neither the trial court nor the

parties focused on the causation element of the statutory definition of drug

overdose. It appears, moreover, the trial court incorrectly assumed the Act

requires proof that defendant was under the influence of a CDS at the time of

the 911 call. Further, it appears the trial court incorrectly assumed that a 911

call resulting in a psychiatric evaluation is not a request for "medical

assistance" within the meaning of the Act and that a person suffering from a

psychiatric disorder is not eligible for immunity. We therefore deem it

necessary to remand for a new hearing to address whether the suicide concerns

that prompted the 911 call are attributable to defendant's methamphetamine

use.

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I.

We discern the following facts and procedural history from the record.

On October 28, 2023 at 2:23 a.m., defendant's friend, R.S., placed a 911 call to

the Middle Township Police Department (MTPD) requesting a well-being

check for defendant. The MTPD incident report's description of the call reads:

[R.S.] CALLED 911 REQUESTING A CHECK [ON]

THE WELL[]BEING O[F] HIS FRIEND

[DEFENDANT] WHO REACHED OUT TO HIM

VIA TELEPHONE APPROXIMATELY [ONE]

HOUR AGO AND STATED THAT SHE WANTED

TO COMMIT SUICIDE. [R.S.] STATED THAT

[DEFENDANT] USES CRYSTAL METH AND

THAT SHE [MAY] HAVE A KNIFE WHICH SHE

SAID SHE WANTED TO SLIT HER WRISTS.

[R.S.] IS HOMELESS AND ADVISED THAT HE IS

SLEEPING UNDER THE NORTH WILDWOOD

BRIDGE CLOSER TO NORTH WILDWOOD. I

ADVISED [R.S.] TO CALL US BACK IN

[TWENTY] MIN[UTE]S IN CASE AN OFFICER

NEEDS TO SPEAK WITH HIM AND SEE THE

MESSAGES [DEFENDANT] SENT TO HIM.

Responding to the 911 call, MTPD Officer Paul Damiano arrived at

defendant's motel room at 2:55 a.m. Defendant stated that she and R.S. had

been arguing via text message. She showed Damiano the text messages that

she sent to R.S. in which she described "multiple different ways of killing

herself." When asked whether she was suicidal, defendant told Damiano that

she "has an extensive history of suicidal thoughts and has been admitted to

mental health facilities for those instances but did not feel suicidal at the time

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6

of this incident and . . . texted [R.S.] those methods of suicide out of

frustration." Damiano noted that during the conversation defendant "exhibited

oddly excited behavior, [] was unable to focus on one topic, and had noticeable

tremors in her hands and arms."

Because the Alternative Responses to Reduce Instances of Violence and

Escalation Together (ARRIVE) Program 3 was unavailable, Damiano requested

an Acenda mobile screener 4 to evaluate defendant at the scene. The mobile

screener determined that defendant "must go to Cape Regional Medical Center

(CRMC) for a Mental Health Evaluation in their Behavioral Health Unit."

After patting defendant down for weapons and securing her belongings in the

trunk of his patrol vehicle, Damiano transported defendant to the CRMC.

CRMC placed defendant in the Emergency Department (ED) where

hospital staff inventoried her belongings. Hospital staff notified Damiano that

they found "a small plastic container, containing multiple white crystal -like

3

The ARRIVE Program is a New Jersey Attorney General initiative where

mental health screeners arrive on scene with officers. Off. of Att'y Gen.,

ARRIVE Together Program, https://www.njoag.gov/programs/arrive-together/

(visited Apr. 22, 2025).

4

Acenda is a private company that provides a "24-hour, seven-day-a-week

crisis intervention service" for individuals in Cape May who are "suicidal,

homicidal, or acutely psychotic." Psychiatric Emergency Screening Services,

Acenda Integrated Health, https://acendahealth.org/programs/psychiatric-

emergency-screening-services/ (visited Apr. 22, 2025).

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7

rocks, suspected of being methamphetamine" in defendant's wallet along with

her bank cards and other forms of identification. When Damiano asked

defendant what was in the container, she replied that she was unaware what

was inside of it. She speculated that R.S. must have placed it in her wallet

without her knowledge. Damiano informed defendant she was under arrest

and handcuffed her to the hospital bed.

A subsequent search incident to arrest yielded no additional evidence.

The ED physician ordered a urine "drugs of abuse" test for defendant, but for

reasons not disclosed in the record, the test was later cancelled by the

laboratory. Defendant was discharged from the CRMC about three hours and

thirty minutes after arriving.

On January 2, 2024, defendant was charged by indictment with one

count of third-degree possession of a CDS, methamphetamine, N.J.S.A. 2C:35-

10(a)(1). Defendant then filed a motion to dismiss the indictment pursuant to

the OPA's immunity provisions.

On June 12, the trial court held a hearing on defendant's dismissal

motion. Neither party presented witnesses. After reviewing Damiano's

Investigation Report and defendant's CRMC medical records, the court

rendered an oral decision, making the following findings:

Here, the acute condition was the threat of

suicide, . . . it was not drug related. . . . The officer

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did not call [Emergency Medical Services (EMS)] to

the scene but, rather, an emergency psychiatric

screener was called first. It was as a result of that

evaluation that led [defendant] to be taken to the

emergency room.

....

The [c]ourt[] reviewed the medical records. . . .

Her diagnosis surrounds perhaps this mania that

nowhere in any of the hospital records does it suggest

that mania is attributable to anything other than a

psychiatric disorder.

The fact that a stat or emergency lab was

initially ordered with regard to substance abuse and

later canceled I would suggest weighs against

[defendant]. Had the emergency room physician who

ordered that lab report believed that she was under the

influence of something so significant that it led to the

mania rather than a psychiatric problem, my sense is

they would never have canceled that lab. Because had

she been under the influences, perhaps they would

have had to have somehow treated that and it doesn't

appear anywhere in the medical records that she was

ever treated for any kind of an overdose.

Again, . . . nowhere in the records does it

indicate that she was suffering a drug overdose.

Nowhere in the records does it suggest that she was

even under the influence of any intoxicant. . . .

....

. . . The call was initially for psychiatric

assistance, suicidality. No lay person at the scene, not

the officer, not the psychiatric screener, treated this

defendant as if she was having a drug overdose

requiring immediate medical assistance.

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Clearly, under the lay person standard, there was

no reasonable belief that she required medical

assistance for a drug overdose. What she required was

assistance for suicidal threats.

On July 22, 2024, we granted defendant's motion for leave to appeal the

trial court's interlocutory order denying the motion to dismiss the indictment. 5

Defendant raises the following contention for our consideration: 6

THE PREPONDERANCE OF THE EVIDENCE

ESTABLISHES THAT DEFENDANT'S MOTION TO

DISMISS SHOULD NOT HAVE BEEN DENIED

BECAUSE THE [OPA] IMMUNIZES []

DEFENDANT FROM THE POSSESSORY DRUG

OFFENSE.

II.

We begin our analysis by acknowledging certain foundational principles

governing this appeal. As a general proposition, the scope of our review of a

motion to dismiss an indictment is narrow, applying an abuse of discretion

standard. State v. Aloi, 458 N.J. Super. 234, 238 (App. Div. 2019) (quoting

State v. Ferguson, 455 N.J. Super. 56, 63 (App. Div. 2018)). See also State v.

5

Defendant's notice of motion for leave to appeal focused solely on the trial

court order "denying overdose prevention act defense" and did not address the

trial court's order denying her motion to suppress the methamphetamine found

by hospital staff and turned over to police. Nor was the search-and-seizure

issue addressed in defendant's initial brief in support of her motion for leave to

appeal.

6

We omit defendant's search and seizure argument as it is not properly before

this court. See note 5.

A-3637-23

10

Tringali, 451 N.J. Super. 18, 27 (App. Div. 2017) (quoting State v. N.J. Trade

Waste Ass'n, 96 N.J. 8, 18-19 (1984)) ("A trial court should only dismiss an

indictment on the 'clearest and plainest' grounds and only when it is clearly

defective."). Here, however, we are dealing with an immunity statute that ,

when satisfied, requires the dismissal of an indictment. Defendant seeks to

dismiss the prosecution, not because the indictment itself is defective, but

rather for public policy reasons set forth in the OPA that override the need to

prosecute minor drug offenses.

The law is clear that "[w]hen a decision to dismiss [an indictment]

hinges on a purely legal question, []our review is de novo and we need not

defer to the motion court's interpretations." State v. Campione, 462 N.J.

Super. 466, 492 (App. Div. 2020) (quoting State v. Twiggs, 233 N.J. 513, 532

(2018)). This appeal turns on an interpretation of the OPA. We owe the trial

court no special deference on questions of statutory interpretation. State v.

Fuqua, 234 N.J. 583, 591 (2018). Furthermore, we are not bound by a trial

court's interpretations of the legal consequences that flow from established

facts. See Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140

N.J. 366, 378 (1995); State v. Harris, 457 N.J. Super. 34, 44 (App. Div. 2018).

It is well settled that "[t]he overriding goal of all statutory interpretation

'is to determine as best we can the intent of the Legislature, and to give effect

A-3637-23

11

to that intent.'" State v. S.B., 230 N.J. 62, 67-68 (2017) (quoting State v.

Robinson, 217 N.J. 594, 604 (2014)). Consequently, "[t]o determine the

Legislature's intent, we look to the statute's language and give those terms their

plain and ordinary meaning because 'the best indicator of that intent is the

plain language chosen by the Legislature.'" State v. J.V., 242 N.J. 432, 442-43

(2020) (first citing DiProspero v. Penn, 183 N.J. 477, 492 (2005); then quoting

Johnson v. Roselle EZ Quick, LLC, 226 N.J. 370, 386 (2016)). Accordingly,

"[i]f, based on a plain and ordinary reading of the statute, the statutory terms

are clear and unambiguous, then the interpretative process ends, and we 'apply

the law as written.'" Id. at 443 (quoting Murray v. Plainfield Rescue Squad,

210 N.J. 581, 592 (2012)).

In addition, it is a general principle of statutory construction that

reviewing courts must give meaning to every word and phrase in a statute. See

Meehan v. Antonellis, 226 N.J. 216, 237-38 (2016). As our Supreme Court

explained in Shelton v. Restaurant.com, Inc., "[i]n short, words make a

difference. We must assume that the Legislature purposely included every

word, and we must strive to give every word its logical effect." 214 N.J. 419,

441 (2013). But just as reviewing courts should not ignore the words the

Legislature chose to include in a statute, nor should they add language the

Legislature chose not to include. It is inappropriate for "[a] court . . . [to]

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rewrite a plainly[]written enactment of the Legislature [or to] presume that the

Legislature intended something other than that expressed by way of the plain

language." J.V., 242 N.J. at 443 (third alteration in original) (quoting

O'Connell v. State, 171 N.J. 484, 488 (2002)). Accordingly, we have no

authority to add a prerequisite to immunity not imposed by the plain language

of the OPA. Further, only "[i]f . . . the statutory text is ambiguous, [can

courts] resort to 'extrinsic interpretative aids, including legislative history,' to

determine the statute's meaning." Ibid. (quoting S.B., 230 N.J. at 68.).

III.

Turning specifically to the OPA, the Legislature set forth its goals and

objectives in a declaration of policy and findings, which we consider to be part

of the Act's plain text, and not an "extrinsic" interpretive aid. Specifically,

N.J.S.A. 24:6J-2 states:

The Legislature finds and declares that encouraging

people who witness or experience a suspected drug

overdose to seek medical assistance saves lives and is

in the best interests of the citizens of this State and, in

instances where evidence was obtained as a result of

seeking of medical assistance, those people who

witness or experience a suspected drug overdose

should be protected from arrest, charge, prosecution,

conviction, and revocation of parole or probation for

possession or use of illegal drugs or drug

paraphernalia. Additionally, naloxone is a safe,

inexpensive, and easily administered antidote to an

opioid overdose. Encouraging the wider prescription

and distribution of naloxone or similarly acting drugs

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to those at risk for an opioid overdose, or to members

of their families or peers, would reduce the number of

opioid overdose deaths and be in the best interests of

the citizens of this State. To that end, it is the intent

of the Legislature that opioid antidotes be made as

easily accessible and as widely available as possible,

such that they are readily available at all times to

provide treatment to people experiencing a suspected

opioid overdose. It is not the intent of the Legislature

to protect individuals from arrest, prosecution or

conviction for other criminal offenses, including

engaging in drug trafficking, nor is it the intent of the

Legislature to in any way modify or restrict the

current duty and authority of law enforcement and

emergency responders at the scene of a medical

emergency or a crime scene, including the authority to

investigate and secure the scene.

This is not the first time we have construed the OPA. In W.S.B., 453

N.J. Super. at 222, Judge Jack M. Sabatino provided a thoughtful and

comprehensive overview of the Act's key provisions, as well as its legislative

history. We now add to that foundation, addressing a fact-sensitive question

of statutory interpretation not directly discussed in W.S.B.

The OPA confers immunity on two categories of qualifying persons: (1)

those "who, in good faith, seek[] medical assistance for someone experiencing

a drug overdose" and (2) those "who experience a drug overdose and who

seek[] medical assistance or [are] the subject of a good faith request for

medical assistance." N.J.S.A. 2C:35-30; N.J.S.A. 2C:35-31. The present case

involves the second category, and specifically, the variation in which the

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person claiming immunity is the subject of a request for medical assistance

made by another.

In W.S.B., we held that a person claiming immunity shoulders the

burden of proof by a preponderance of the evidence. 453 N.J. Super. at 232 -

33. Defendant does not dispute that she bears the burden of persuasion.

Furthermore, as we have already noted, OPA immunity applies only to

several specifically-enumerated drug-related offenses, including N.J.S.A.

2C:35-10, the "simple" possession offense defendant is presently charged with.

The limited reach of immunity is important to our interpretation of the Act's

plain text because the strict limitation on what crimes may be excused stands

in stark contrast to the broad statutory language used to determine whether a

defendant is shielded from arrest and prosecution for an enumerated crime.

Stated another way, immunity is granted liberally under the Act, but only to

excuse personal use drug offenses. This reflects the Legislature's policy

determination that the need to save lives by encouraging medical assistance

calls in potentially life-threatening situations outweighs the need to prosecute

comparatively minor drug offenses. To put the present prosecution in context

with that legislative policy, we note the certified laboratory report indicates the

methamphetamine found in defendant's wallet weighed 2.322 grams (0.082

ounces).

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IV.

In determining the scope of a statute's intended reach, that is, its "overall

meaning," see Miah v. Ahmed, 179 N.J. 511, 521 (2004) (quoting Chasin v.

Montclair State Univ., 159 N.J. 418, 427 (1999)), we pay special attention to

statutory definitions. When the Legislature chooses to define a term used

throughout a statute, that definition takes precedence over the common and

ordinary meaning of that term. Thus, to the extent a statutory definition is

either broader or narrower than a term's common understanding, the statutory

definitional language governs.

This case hinges on whether defendant was experiencing a "drug

overdose" within the meaning of the OPA when R.S. placed the 911 call. The

statutory definition of that term is thus critical to our analysis. The OPA

defines drug overdose as:

[A]n acute condition including, but not limited to,

physical illness, coma, mania, hysteria, diminished

consciousness, respiratory depression, or death

resulting from the consumption or use of a [CDS] or

another substance with which a [CDS] was combined

and that a layperson would reasonably believe to

require medical assistance.

[N.J.S.A. 24:6J-3.]

In W.S.B., we commented that the Act's definition of "drug overdose" is

broad. 453 N.J. Super. at 221. We also remarked that the definition is "rather

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lengthy," id. at 226, and that the Legislature "crafted the definition of a drug

overdose within the OPA rather carefully," id. at 229.

The definition is comprised of three elements, all of which must be

established to qualify for immunity: (1) the person must exhibit an "acute

condition[,]" (2) "the acute condition must be 'resulting from the consumption

or use of a [CDS] or another substance with which a [CDS] was combined[,]'"

and (3) "the acute condition must be one 'that a layperson would reasonably

believe to require medical assistance.'" Id. at 226-27 (second alteration in

original). We next consider each of these distinct elements.

Acute Condition

As to the "acute condition" element, the OPA provides a non-exhaustive

list of qualifying conditions, "including, but not limited to, physical illness,

coma, mania, hysteria, diminished consciousness, respiratory depression, or

death resulting from the consumption or use of [CDS] . . . ." N.J.S.A. 24:6J -3.

The inclusion of "mania" and "hysteria," when juxtaposed with "physical

illness," support our conclusion that an acute condition is not limited to a

physical toxic reaction to CDS consumption such as "coma" or "respiratory

depression." Rather, by including "mania" and "hysteria" in the list, the

Legislature made clear that an acute condition can also present in the form of

mental health-related and behavioral symptoms.

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While not specifically mentioned in the non-exhaustive list of acute

conditions, we view suicidal ideation to be similar in nature to mania and

hysteria as these conditions all involve behavioral responses to CDS use—not

just physiological reactions to toxins. We thus conclude that nothing in the

statutory definition of acute condition suggests the Legislature meant to

exclude suicidal ideation. Cf. Hovbilt, Inc. v. Township of Howell, 263 N.J.

Super. 567, 571 (App. Div. 1993) (explaining that, under the principle of

ejusdem generis, "when general words follow specific words in a statutory

enumeration, the general words are construed to embrace only the objects

similar in nature to those objects enumerated by the preceding specific

words[,]" which "saves the [L]egislature from spelling out in advance every

contingency in which the statute could apply").

Further, in W.S.B., we noted that "the adjective 'acute' connotes

severity[;] . . . '[t]he condition cannot be mild or inconsequential.'" 453 N.J.

Super. at 227 (citing Stedman's Medical Dictionary 23 (28th ed. 2006)).

Certainly, an impending suicide constitutes a severe situation, as it

definitionally encompasses the risk of death. In any event, we need not further

elaborate on the first element because the State acknowledged at oral argument

that R.S. was reporting an acute condition when he placed the 911 call. We

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therefore conclude defendant has established the first element of the three -part

definition of drug overdose.

Medical Assistance

We momentarily put off our consideration of the second element,

relating to causation, and address the third element which focuses on whether

the acute condition requires "medical assistance." The OPA defines medical

assistance as "professional medical services that are provided to a person

experiencing a drug overdose by a health care practitioner, acting within the

practitioner's scope of professional practice, including professional medical

services that are mobilized through telephone contact with the 911 telephone

emergency service." N.J.S.A. 24:6J-3.

We are satisfied that R.S.'s 911 call was for medical assistance within

the meaning of the OPA. Defendant was transported to a hospital as a direct

result of R.S.'s request for a well-being check. We do not believe immunity is

foreclosed in this case because the assistance sought focused principally on a

psychiatric/mental health evaluation. We reject the notion that a mental health

crisis intervention is categorically excluded from the ambit of medical

assistance under the OPA, especially when, as here, the patient is transported

to a hospital. To hold otherwise would suggest that psychiatry is not a branch

of the medical profession, or that the CRMC staff who evaluated and treated

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defendant, including two ED physicians, were not "health care practitioner[s],

acting within the practitioner's scope of professional practice." N.J.S.A. 24:6J -

3. The Act broadly defines "[h]ealth care practitioner" to mean "any

individual who is licensed or certified to provide health care services pursuant

to Title 45 of the Revised Statutes." Ibid. That Title encompasses a wide

spectrum of health care specialties, including the licensing of psychiatrists and

other professionals who diagnose and treat psychiatric disorders. See, e.g.

N.J.S.A. 45:1-34. If the Legislature had meant to categorically exclude

psychiatric disorders from the scope of OPA immunity, it would have said so

and would not have defined the term health care practitioner so broadly.

We add that the third element of the term drug overdose must be applied

in the context of the 911 caller's perspective. In W.S.B., we noted that "[b]y

choosing to define the immunity in terms of the perception of a layperson . . .

the Legislature made clear that it did not want laypersons, when they request

medical assistance for someone who seems to be overdosing, to be held to

rigorous standards of an expert's superior knowledge." 453 N.J. Super. at 227 -

28. Applying that principle, we are satisfied that R.S. was acting out of

concern for defendant's life and without thinking whether the police response

to his 911 call might later be characterized as something other than a request

for "medical" assistance. We are doubtful that R.S. or any layperson in this

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situation would draw a distinction between medical assistance and psychiatric

assistance.

In W.S.B., we further added that the call for medical assistance must be

made in "good faith" and cannot be "fanciful" or "far-fetched." Id. at 228-29.

The court cautioned, for example, that "a 'bad faith' pretextual attempt to

exploit the OPA's immunity by taking an illegal drug possessor who is fearful

of being prosecuted to a hospital emergency room, even though he or she does

not genuinely appear to be acutely ill, will not succeed." Id. at 229. We

explained the call for medical help "must reasonably appear to be 'required'

under the circumstances presented." Id. at 228.

On this record, we see no indication of willful pretext or an attempt to

manipulate the 911 system to shield defendant from arrest and prosecution.

The State nonetheless contends that R.S. was not a "good faith third-party

call[er] for medical assistance to prevent drug overdose" because he was not

with defendant when he called, did not state to the 911 operator defendant was

overdosing, and did not call until an hour after he last heard from her. We are

not persuaded by any of these arguments.

Although the Act's declaration of policy and findings refers to people

who "witness" a suspected drug overdose, N.J.S.A. 24:6J-2, we do not

interpret that description to require the 911 caller be physically present with

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the overdose subject. The plain language of the OPA's operative provisions

includes no such requirement. Given the ultimate legislative goal is to save

lives, we are satisfied the caller can "witness" an overdose subject's acute

condition through telecommunication. We are also satisfied that police can

rely on the 911 caller's report concerning the overdose subject that is based on

personal knowledge obtained via telecommunication. Cf. State v. Golotta, 178

N.J. 205, 221-22 (2003) (holding that, in the context of a search-and-seizure

question, an anonymous 911 call is more reliable than anonymous tips given to

police by other means, and will justify an investigative detention if it conveys

an "unmistakable sense that the caller has witnessed an ongoing offense that

implicates a risk of imminent death or serious injury").

In this case, the fact that R.S. was not physically present with defendant

when he called 911 did not diminish the reliability of his call to police.

Furthermore, R.S. provided his name and current address. We add that R.S.

was in direct communication with defendant via text message. He thus was

aware of her acute condition in real time but was unable to render direct aid to

her and instead needed to rely on first responders.

It is immaterial, moreover, that since R.S. was at a different location

from defendant, he was not personally at risk of being arrested for a drug

offense when he asked to have police dispatched to check on defendant. The

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purported overdose subject—not the caller—is seeking immunity. See

N.J.S.A. 2C:35-30.

The State's argument that R.S. did not explicitly state that defendant was

"overdosing" begs the question as to what constitutes an overdose —an issue

we address in the next subsection. We hold that eligibility for OPA immunity

does not depend on the caller using any particular phrase or label to

characterize the acute condition. What matters, rather, are the objective facts

conveyed to the 911 operator.

Here, it is not disputed that R.S. reported defendant uses

methamphetamine. That suggests he believed defendant's substance use was

relevant to the circumstances compelling a police well-being check and

something that responding officers should know. The question before us is

whether the fact R.S. relayed defendant's past substance use to police

established that he believed the mental health crisis defendant was

experiencing resulted from her methamphetamine use. In answering that

critical question, we emphasize that under the OPA, we do not hold a 911

caller to the "rigorous standards of an expert's superior knowledge" regarding,

in this instance, the relationship between CDS use and the acute condition

prompting the call. W.S.B., 453 N.J. Super. at 227-28.

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Further, we hold defendant is not disqualified for immunity because R.S.

delayed an hour in calling for medical assistance. The whole point of the

immunity provision is to provide incentive to call police for help by

ameliorating a potential disincentive—the fear of a resultant arrest. That goal

presupposes that a call for police intervention will be made after deliberating

on its benefits and risks.

In this instance, moreover, the fact that text messaging between

defendant and R.S. had ended may have amplified, not assuaged, his concern

that she was poised to act upon her suicidal statements. Nothing in this record

suggests that the need for a mental health crisis intervention had passed before

R.S. mustered the will to call for police assistance. We add that R.S.

ultimately reported on defendant's acute condition via the 911 system—a

method for communicating with police that is reserved for perceived

emergencies.

While time is of the essence in responding to a drug overdose, we are

satisfied that in these unusual circumstances, the OPA embraces a "better late

than never" approach to calls for medical assistance. Certainly, the Act does

not prescribe a time limit for calling for assistance after which the right to

immunity lapses, especially when the person experiencing the overdose is not

the one calling 911. It seems inconsistent with the OPA's remedial nature—

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and fundamentally unfair—to interpret the Act in a manner that would deny

immunity to a purported overdose subject who has no control over when the

911 call is placed. We thus hold that defendant is not disqualified from

immunity simply because R.S. could have placed the 911 call sooner.

Accordingly, we conclude defendant established the third element.

Causation

We turn back to the second definitional element pertaining to the causal

relationship between CDS use and the acute condition that prompts a 911 call.

Although the OPA's immunity feature should be applied liberally to achieve its

life-saving objective, we emphasize it is not enough that thoughts of suicide

occur coincidentally with CDS consumption. The OPA is not a suicide

prevention act per se. Nor is it inapplicable merely because the acute

condition is the risk of death caused by suicidal ideation or attempts, instead of

by an accidental and unexpected toxic reaction to an excess dose of CDS.

Nothing in the OPA's plain text limits its scope to accidental overdoses. Nor

does the Act's plain language require that an intentional suicide be

accomplished by ingesting a lethal dose of CDS, although that situation would,

of course, fall within the Act's scope.

In testing the boundaries of a statute, it is sometimes helpful to consider

circumstances that fall outside the heartland of its coverage. In W.S.B., for

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example, we commented on the causation element by posing hypothetical

scenarios that would not qualify for immunity. 453 N.J. Super. at 227. We

stated, "a person possessing narcotics who appears to be acutely ill from a

knife wound, a burst appendix, or a fracture would not trigger the immunity."

Ibid. We added, "[n]or would a drug user or possessor who has consumed

CDS in the past, but who is now experiencing an acute condition perceived to

result from another cause." Ibid. (emphasis added).

We do not read the latter observation as categorically precluding

immunity when the acute condition results from past, as opposed to immediate,

CDS use. On the contrary, W.S.B. made clear that "the broad definition of a

'drug overdose' that the Legislature chose to adopt in N.J.S.A. 24:6J-3 does not

turn on concepts of 'intoxication.'" Id. at 221.

Relatedly, the Act does not require proof that the overdose subject is

"under the influence" of a CDS. Presumably, the Legislature was familiar with

that phrase because it appears in the very offense with which defendant is

charged—a charge specifically enumerated in the OPA as a crime subject to

immunity. N.J.S.A. 2C:35-30(a)(1). Indeed, the Act carefully and precisely

explains that someone experiencing a drug overdose "shall not be . . . arrested,

charged, prosecuted or convicted for obtaining, possessing, using, being under

the influence of, or failing to make lawful disposition of, a [CDS] or controlled

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substance analog pursuant to subsection a., b., or c. of N.J.S.[A.] 2C:35 -10."

Ibid. (emphasis added). Aside from showing that the Legislature knew how to

refer to the state of being under the influence, this formulation of the OPA

affirms that a person can qualify for immunity when charged with a violation

of N.J.S.A. 2C:35-10 based on "possessing" a CDS without also being alleged

to have been "under the influence" of that CDS.

The fact that the definition of "drug overdose" does not require proof

that an overdose subject is presently under the influence of a CDS is both

conspicuous and telling. We also presume the Legislature carefully considered

what not to include in the definition of "drug overdose" that might restrict its

intended ambit. Cf. DiProspero, 183 N.J. at 495 (quoting Brodsky v. Grinnell

Haulers, Inc., 181 N.J. 102, 112 (2004)) ("The canon of statutory construction,

expressio unius est exclusio alterius—expression of one thing suggests the

exclusion of another left unmentioned—sheds some light on the interpretative

analysis."). The OPA's definition of "drug overdose" strikes us as a carefully

worded term intended to broaden its common and ordinary meaning and, in

this instance, did so by not limiting its application to situations where the

overdose subject is reacting adversely to the immediate ingestion of an

excessive dose of CDS.

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It also bears noting that much of the OPA concerns promoting and

facilitating the use of the opioid antidote naloxone to respond to heroin,

fentanyl, and other opiate-induced overdoses. The immunity provision must

be read in context with the other provisions in the Act. See DiProspero, 183

N.J. at 477 (holding that statutory language should be "read [] in context with

related provisions so as to give sense to the legislation as a whole"). Tellingly,

nothing in the OPA suggests that the immunity provision is limited to

situations where naloxone or some other antidote is used. If the Legislature

intended to limit immunity to cases where that kind of intervention is needed,

it would have said so. As we noted in our discussion of what constitutes an

"acute condition," the Legislature by no means limited OPA immunity to

situations involving coma or respiratory depression.

Additionally, we know that the Legislature is aware of the devastating

long-term effects of drug or alcohol dependency. See N.J.S.A. 2C:35-14

(authorizing treatment in lieu of imprisonment in certain circumstances). Cf.

State v. Clarke, 203 N.J. 166, 181 (2010) (quoting S. L. & Pub. Safety Comm.

Statement to S. 1253 (Jan. 25, 1999)) (supporting the proposition that "the

disease of drug or alcohol dependence is a chronic, relapsing disorder").

N.J.S.A. 2C:35-14(a)(2) refers explicitly to persons who have a "substance use

disorder," which is defined as:

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[A] person who as a result of using a [CDS] or

controlled substance analog or alcohol has been in a

state of psychic or physical dependence, or both,

arising from the use of that [CDS] or controlled

substance analog or alcohol on a continuous or

repetitive basis. Substance use disorder is

characterized by behavioral and other responses,

including, but not limited to, a strong compulsion to

take the substance on a recurring basis in order to

experience its psychic effects, or to avoid the

discomfort of its absence.

[N.J.S.A. 2C:35-2 (emphasis added).]

Relatedly, we presume the Legislature in adopting the OPA was well

aware of the relationship between substance use and mental health disorders—

including depression and suicidal ideations—which are sometimes co-

occurring. Our State's nationally acclaimed Recovery Court program, 7 is a

testament to our State's commitment to saving lives by providing long -term

rehabilitation opportunities to address an offender's long-term substance use

problems, "combat[ting] the hopelessness of addiction with the hopefulness of

treatment." State v. Harris, 466 N.J. Super. 502, 510 (App. Div. 2021). The

OPA likewise falls into the category of a hopeful statute—one that recognizes

that criminal prosecution does not always advance the goal of mitigating the

harms associated with CDS.

7

The program was formerly called the Drug Court program.

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We reiterate and stress that given the OPA's explicit focus on what a

"layperson would reasonably believe to require medical assistance," N.J.S.A.

24:6J-3, we cannot expect, much less require, a potential 911 caller to perform

a diagnostic assessment to determine whether and to what extent a subject's

acute condition is the result of a mental health disorder rather than a substance

use disorder. See N.J.S.A. 2C:35-14(a)(1) (requiring a "professional

diagnostic assessment to determine whether and to what extent the person

[seeking special probation in lieu of imprisonment] has a substance use

disorder and would benefit from treatment"); see also W.S.B., 453 N.J. Super.

at 228 (noting that a layperson cannot be held to the "rigorous standards of an

expert's superior knowledge"). As we also noted in W.S.B., the OPA "aims to

incentivize third parties who perceive another individual's apparent overdose,

or who think they are personally suffering one, to err on the side of caution

and get immediate medical help." Ibid.

V.

Applying the foregoing principles to the matter before us, we are

concerned that the trial court misperceived the OPA's causation requirement

when it found that the acute condition was not "drug related." The court

appears to have assumed that the OPA requires proof defendant was under the

influence of a CDS when she was taken to the hospital. It highlighted, for

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example, the CRMC "drugs of abuse" test was cancelled, suggesting that the

hospital staff did not believe defendant was under the influence of

methamphetamine or any other CDS.

Relatedly, the trial court noted the fact that police called for an

emergency psychiatric screener, rather than EMS, shows responding police

believed defendant was experiencing a psychiatric disorder, not a drug

overdose. The court's finding that defendant's suicidal behavior was

attributable to a psychiatric disorder is well-supported, however, this discounts

the possibility that she also was suffering the effects of a co-occurring

substance use disorder. In sum, the trial court embraced an interpretation of

"drug overdose" that may be consistent with the common and ordinary

meaning of the term, but is narrower than the Legislature's broad definition in

the OPA.

In these circumstances, we deem it necessary to remand for a new

hearing focusing specifically on whether defendant can prove the causation

element, that is, whether a layperson in R.S.'s position would have believed

defendant's acute condition resulted from her CDS use. We take no position

on whether the causation element is satisfied in this case, and offer the

following remand instructions and comments.

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Defendant shall be afforded an opportunity, if she chooses, to present

additional evidence on the causation question, which may include but need not

be limited to testimony from R.S. While we ordinarily would be reluctant to

allow a party to expand the record on remand to meet its burden of persuasion,

we note that in this instance, the State acknowledges in its appeal brief that

under the OPA, "defendants in [C.C.W.]'s position get a 'second bite at the

apple' on the OPA immunity question at trial." See W.S.B., 453 N.J. Super. at

238 (holding "the defense [] must be afforded a final opportunity at trial to

persuade a jury as the ultimate fact-finder . . . and marshal further proofs and

arguments on the [immunity] subject"). Mindful that the concept of causation

can be challenging to explain to a jury, 8 we deem it prudent to afford the trial

court and parties an opportunity to resolve the causation issue at an in limine

hearing rather than broach this fact-sensitive question for the first time at a

jury trial at which additional evidence is presented.

8

In accordance with the recommendation in W.S.B., 453 N.J. Super. at 233,

n.7, the Model Criminal Jury Charge Committee drafted model instructions

explaining immunity under the OPA. See Model Jury Charges (Criminal),

"OVERDOSE PREVENTION ACT DEFENDANT SUBJECT OF CALL FOR

ASSISTANCE (N.J.S.A. 2C:35-31)" (approved Mar. 11, 2019). The model

charge does not amplify the statutory text of the OPA with respect to

causation.

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Further, defendant shall be permitted to present expert testimony on the

question of causation, provided, of course, the expert(s) are properly qualified

under N.J.R.E. 702. We acknowledge that the W.S.B. court noted:

Expert knowledge by the party who pursues medical

assistance therefore is not required to trigger the

OPA's immunity. Nor is such expert knowledge

dispositive. The pertinent inquiry is not what an

expert would conclude about the subject's condition.

Rather, the nature and urgency of the situation is to be

viewed through the eyes of an average person.

[453 N.J. Super. at 228.]

That does not mean, however, that defendant is categorically precluded from

presenting expert testimony generally explaining any possible relationship

between chronic substance use and suicidal ideation as well as specifically

considering any information R.S. knew about defendant's history of substance

use and suicidal ideation.

The State also acknowledged at oral argument that defendant may

present expert testimony at trial regarding the causal nexus between

defendant's CDS use and the acute condition prompting R.S.'s 911 call. We

see no reason why evidence pertaining to immunity that might be introduced at

trial may not also be presented at the remand hearing. Similarly, the State at

the remand hearing may present expert testimony to support its position that

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defendant's suicidal thoughts were not the result of CDS use within the

meaning of the OPA.

Finally, we reiterate that under the OPA, as interpreted in W.S.B., 453

N.J. Super. at 232-33, defendant bears the burden of establishing the grounds

for immunity by a preponderance of the evidence. As we have explained, we

are satisfied she has already met that burden with respect to two of the three

elements of the definition of "drug overdose." It remains for her to prove that

a lay person in R.S.'s position would believe defendant's suicidal ideations

were the result of her substance use, applying the "err on the side of caution"

approach recognized in W.S.B., id. at 228.

If the trial court on remand determines that OPA immunity applies, the

indictment shall be dismissed, subject to the State's right of appeal. If the

court concludes on remand that defendant does not qualify for immunity, the

defense shall be afforded a final opportunity at trial to persuade a jury as the

ultimate fact-finder.

Remanded for proceedings consistent with this opinion. We do not

retain jurisdiction.

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