IS THERE (ACTUALLY) MEDICAL AMNESTY IN KENTUCKY?

Author: Joe Gerwert, Associate Editor

Imagine spending time with a loved one when they suddenly stopped breathing. You would probably call for medical assistance, right? Now, consider what you would do if you knew your loved one overdosed on heroin and would likely face criminal charges if you called for help. Would you still call 911? This impossible situation was an unfortunate reality for Kentucky State Representative Joni Jenkins.[i]

In March 2015, after hearing Ms. Jenkins testify about the death of her nephew, the Kentucky Legislature voted to enact Senate Bill 192, a statute aimed at “reduc[ing] the trafficking and abuse of heroin.”[ii] The bill included a medical amnesty provision “offering immunity from prosecution for possession of a controlled substance . . . if an individual seeks emergency medical assistance with an overdose.”[iii] The Kentucky Legislature’s primary purpose for passing the provision was to “prevent[ ] overdose deaths whether from heroin or other controlled substances.”[iv]

Under Kentucky’s medical amnesty provision, a defendant must prove several elements to qualify for immunity under the medical amnesty provision of S.B. 192.[v] First, the defendant must prove that they sought medical assistance in response to a drug overdose they, or another person, were suffering.[vi] Next, the defendant must show that they are, or stayed with, the person suffering from a drug overdose until help arrives.[vii] Finally, the defendant must demonstrate that, but for the required medical assistance, the evidence for their prosecution would not have been obtained.[viii]

The Kentucky Supreme Court limited the medical amnesty provision, holding that a defendant must satisfy a three-prong test to prove a drug overdose existed when medical assistance was sought, [ix]: (1) There must have been “an acute condition of physical illness, coma, mania, hysteria, seizure, cardiac arrest, cessation of breathing, or death”;[x] (2) The acute condition must appear to an objectively reasonable person “to be the result of consumption or use of a controlled substance”;[xi] (3) Whether the acute condition was so apparent that “a layperson would reasonably believe [that the condition] require[d] medical assistance.”[xii]

Since its adoption, Kentucky’s medical amnesty statute has only been raised as a defense twelve times.[xiii] Worse, only three defendants have successfully argued the defense since the bill’s enactment.[xiv] This does not necessarily mean that the provision does not prevent overdose deaths, but it is evidence that the statute may be too narrow. In the time since Kentucky adopted the medical amnesty bill, thousands of people have died because of drug overdoses in Kentucky.[xv] In fact, overdose deaths increased in Kentucky every year after the enactment, except in 2018 and 2022.[xvi] Requiring the satisfaction of stringent tests before protecting an individual’s interest might discourage them from calling for help,[xvii] the very problem the legislature sought to resolve with the provision.[xviii]

Aside from Kentucky’s strict interpretation of the bill, other issues exist for medical amnesty in the state. The medical amnesty bill only offers immunity for “possession of a controlled substance or the possession of drug paraphernalia.”[xix] However, Kentucky law also provides that “a person is guilty of trafficking in a controlled substance . . . when he or she knowingly and unlawfully traffics in any quantity of heroin, fentanyl, carfentanil, or fentanyl derivatives.”[xx] Trafficking in a controlled substance requires proof of “intent to manufacture, distribute, dispense, or sell a controlled substance.”[xxi] Intent to sell can be established by mere quantity alone.[xxii] Therefore, a defendant’s medical amnesty defense can be barred by possessing a controlled substance in amounts greater than what is considered typical for personal use.

On balance, Kentucky’s medical amnesty provision does not prevent overdose deaths effectively. Kentucky courts construe the bill narrowly, limiting its application to a confined set of circumstances. This construction creates uncertainty for individuals who could help save a life because it is hard to determine whether they meet the criteria to avoid prosecution—the opposite of the law’s intended purpose. The medical amnesty bill is constricted further when viewed along with other drug-related statutes. What is left of the provision is three cases, two of which were applied retroactively. That means, since 2015, Kentucky has only granted one person immunity after they overdosed and called for emergency medical assistance. This number is far too low and proves that the bill may not prevent drug overdose deaths.

[i] Wilson v. Commonwealth, 628 S.W.3d 132, 139 (Ky. 2021).

[ii] Id. (quoting Kentucky Governor’s Message, 2015 Reg. Sess. S.B. 192).

[iii] Id.

[iv] Id.

[v] Ky. Rev. Stat. Ann. § 218A.133(2) (LexisNexis 2015).

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Wilson, 628 S.W.3d at 144.

[x] Id. (quoting Ky. Rev. Stat. Ann. § 218A.133(1)(a) (LexisNexis 2015)).

[xi] Id.

[xii] Id.

[xiii] E.g., Brown v. Commonwealth, No. 2022-CA-0276-MR, 2023 Ky. App. Unpub. LEXIS 177 (Ky. Ct. App. Mar. 10, 2023) (denying immunity to a drug trafficking charge because of the medical amnesty statute); Cook v. Commonwealth, No. 2019-CA-0722-MR, 2022 Ky. App. Unpub. LEXIS 221 (Ky. Ct. App. Apr. 15, 2022) (denying immunity because the caller did not ask for medical assistance); Allen v. Commonwealth, No. 2017-CA-000389-MR, 2018 Ky. App. Unpub. LEXIS 697 (Ky. Ct. App. Sept. 21, 2018) (denying immunity because the defendant did not remain at the scene until help arrived).

[xiv] Logsdon v. Commonwealth, 601 S.W.3d 477 (Ky. Ct. App. 2020) (granted immunity based on the medical amnesty statute); McArthur v. Commonwealth, No. 2015-CA-001313-MR, 2018 Ky. App. Unpub. LEXIS 377 (Ky. Ct. App. June 1, 2018) (granted immunity retroactively); Pomeroy v. Commonwealth, 509 S.W.3d 721 (Ky. Ct. App. 2016) (granted immunity and held that the medical amnesty statute applies retroactively).

[xv] Kerry Harvey & Van Ingram, 2022 Overdose Fatality Report, Kentucky Office of Drug Control Policy (May 2023), https://odcp.ky.gov/Reports/2022%20Overdose%20Fatality%20Report%20updated.pdf (reporting over 6,000 drug overdose deaths in Kentucky from 2020 to 2022); Van Ingram & John C. Tilley, 2018 Overdose Fatality Report, Kentucky Office of Drug Control Policy (May 2019), https://odcp.ky.gov/Reports/2018%20Kentucky%20Overdose%20Fatality%20Report.pdf (reporting over 2,500 drug overdose deaths in Kentucky in 2017 and 2018); Van Ingram & John C. Tilley, 2016 Overdose Fatality Report, Kentucky Office of Drug Control Policy (June 2017) https://odcp.ky.gov/Documents/2016%20ODCP%20Overdose%20Fatality%20Report%20Final.pdf (reporting over 2500 drug overdose deaths in Kentucky in 2015 and 2016).

[xvi] Id.

[xvii] See Nicole Schill, The Fatal Shortcomings of Our Good Samaritan Overdose Statutes and Proposed Model Statute, 25 Cardozo J. Equal Rts. & Soc. Just. 123, 128 (2018).

[xviii] Wilson, 628 S.W.3d at 139.

[xix] Ky. Rev. Stat. Ann. § 218A.133(2) (LexisNexis 2015).

[xx] Ky. Rev. Stat. Ann. § 218A.1412(1)(c) (LexisNexis 2019).

[xxi] Ky. Rev. Stat. Ann. § 218A.010(56) (LexisNexis 2023).

[xxii] P’Simer v. Commonwealth, No. 2019-SC-344-MR, 2020 Ky. Unpub. LEXIS 62 (Ky. Oct. 29, 2020) (upholding a conviction for trafficking based solely on the quantity of the controlled substance).