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BENCH BLOG: Immunity for aid when there’s a drug overdose

By: Jean DiMotto//November 22, 2016//

BENCH BLOG: Immunity for aid when there’s a drug overdose

By: Jean DiMotto//November 22, 2016//

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Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at
Judge Jean DiMotto retired in 2013 after
16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected].

The Court of Appeals examined immunity from prosecution for a person who aids someone who appears to be suffering from a drug overdose. In the process, the opinion in State v. Williams offered a raw glimpse into the drug subculture.

The events in this case got underway when a Kenosha County deputy sheriff responded to a single-vehicle accident. The passenger in the vehicle “appeared to be unconscious, but breathing.” The vehicle’s driver, Marie Williams, said she was taking her passenger to the hospital because he had overdosed on drugs.

But she also seemed impaired by narcotics or heroin. The deputy searched her vehicle and found a morphine pill, drug paraphernalia, and a GPS electronic ankle monitor, which Williams claimed had fallen off. Another deputy discovered an unlabeled medication bottle filled with pills. Williams stated they were alprazolam (Xanax). She admitted to having ingested two alprazolam pills in addition to “a Percocet.” She asserted that she had a prescription for both alprazolam and Percocet.

She was subjected to field sobriety tests and was cited for driving while under the influence of an intoxicant (narcotics).


In addition to the OWI citation, Williams was charged as a repeater in seven counts: possession of a controlled substance, possession of narcotic drugs as a party to a crime, possession of drug paraphernalia as a party to a crime, and four counts of bail jumping.

Three of the bail-jumping charges stemmed from the fact that she was out on bond in a pending case in Racine County when she is supposed to have committed the three drug crimes she was now charged with. The fourth bail-jumping charge related to failing to comply with an electronic-monitoring term of her bond.

Immunity motion

Williams brought a motion to dismiss all charges except the charge related to electronic monitoring.

She argued that she was entitled to immunity as an “aider” under sec. 961.443 since she had (1) been attempting to take the passenger to the hospital because she believed he was suffering from a drug overdose and (2) remained on the scene after the accident to advise the deputies that the passenger had overdosed.

The state opposed the motion, and Kenosha County Circuit Judge Chad Kerkman denied it. He reasoned that the immunity issue should be treated as an affirmative defense and therefore decided at trial, not by a pretrial motion.

Williams sought leave to appeal this ruling.

Interestingly, both Williams and the state agreed that the issue of entitlement to immunity from prosecution should be decided by the court in a pretrial hearing. They also agreed that the burden of proof should be borne by the defense at the level of preponderance of the evidence.

Court of Appeals

In an opinion penned by District 2 Judge Mark Gundrum, the court easily determined that aider immunity under sec. 961.443 should be decided by the circuit court at a pretrial evidentiary hearing.

The majority reasoned that if the requirements of immunity are met, the criminal charges either would not be issued in the first instance or would be dismissed if they already had been brought. Continuing a prosecution through trial in order to determine if immunity applies flies in the face of the statutory language “immune from prosecution.”

The court then analyzed the issue of which party has the burden of proof and at what level. The court agreed that the defendant who seeks immunity bears the burden of proof by a preponderance of the evidence.

Issue dividing the court

What divided the court was the question of which of Williams’ charges should be dismissed if immunity was granted.

Williams sought immunity not only for the three drug charges but also the three bail-jumping charges predicated on the three drug offenses. She argued that this would be consistent with the Legislature’s intent “to remove disincentives that prevent witnesses from seeking help for overdose victims.”

The state opposed immunity for the bail-jumping charges, arguing that immunity only applies to the offenses specifically listed in the statute — possession of drugs and drug paraphernalia.

Judge Gundrum and Judge Brian Hagedorn sided with the state. “The legislature could have written the law as broadly as Williams wishes it had, but it did not.” Rather, it provided “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.”


In contrast, Judge Paul Reilly supported Williams’ side of the argument. He reasoned that if immunity were granted on the three drug charges, the state would not be able to prove the bail jumping charges because they require proof of the drug charges as a predicate.

In so arguing Judge Reilly relied on State v. Hansford. There, a man’s conviction for bail jumping in a court trial was premised in part on his conviction by a six-person jury of obstructing an officer. When the jury verdict was reversed because a six-person jury is unconstitutional, the bail-jumping charge was necessarily reversed because the court had relied on the jury’s verdict to prove the third element of the bail-jumping charge.

The Gundrum-Hagedorn majority replied to Reilly’s concurrence by noting that had the circuit judge in Hansford made his own finding on the evidence of obstruction during the bail-jumping trial, the bail-jumping conviction would have survived on appeal. It was only because the judge relied on the verdict of an unconstitutionally convened six-person jury that the bail-jumping conviction tanked.


The statute analyzed in this case is relatively new, having taken effect in April 2014. The issues decided in this case are ones of first impression.

The court helpfully rules on how to determine immunity from prosecution for drug charges when the person possessing drugs or drug paraphernalia aids an overdose victim.

The disagreement about immunity from bail-jumping charges is interesting. Reilly’s point of view has facial appeal, but the majority’s analysis of the Hansford case is more persuasive.

The majority also appropriately emphasized that “bail jumping and the conduct underlying a bail jumping charge are ‘distinct and separate offenses.’”

“The focus of the prosecution (for bail jumping) is on the fact that the individual has violated a condition of his or her bond. The focus is not on the underlying act.”

Thus, Williams’ bail-jumping charges would survive even if she were granted immunity for her drug charges.


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