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Attorneys, police balance safety, immunity in overdoses

April 2, 2018

BISMARCK, N.D. (AP) — Something wasn’t right after Bianca Shopteau injected more methamphetamine than usual one morning in 2015.

She went to a friend’s house, where authorities were called to report an overdose, according to court documents. Shopteau was eventually taken to Sanford and kept for observation.

That 911 call set off a chain of legal events that ended last month when South Central District Judge Thomas Schneider vacated Shopteau’s conviction for misdemeanor ingesting a controlled substance, releasing her from a six-month jail sentence.

After initially pleading guilty and receiving suspended imprisonment, Shopteau’s probation was revoked due to violations and she was re-sentenced to jail time. Then, she and her attorney filed for post-conviction relief.

And won.

Public defender Erica Woehl invoked North Dakota’s statute for prosecutorial immunity in reporting drug overdoses.

“The purpose of the statute was to save lives and get people calling in,” she said.

The Bismarck Tribune reports that with a legislative rewrite of the statute in 2017, there’s more clarity than the 2015 edition but prosecutors remain the gatekeepers, according to Woehl.

“I think the important part is we find prosecutors that take their job seriously as the gatekeepers in upholding the (statute) and weighing public safety above conviction rates,” she said.

Woehl and Burleigh County Assistant State’s Attorney Brian Johnson met over two cases involving the immunity statute: Shopteau and Emilio Rios, who won his motion to dismiss under the statute.

Rios was charged last year with three drug-related felonies after police found drugs and paraphernalia in a home where he had remained with a woman suffering from an opiate overdose.

Johnson said while Shopteau’s conviction was valid under the statute at the time, Rios “was maybe not the most forthcoming. There were some issues with his cooperation.”

The Tribune and Woehl were unable to reach Shopteau for comment. Rios did not return a message for comment.

Coming on the heels of a woman found dead from an overdose in a car outside a Fargo clinic, Johnson said he didn’t resist Woehl in Rios’ case.

“I don’t want somebody to ever not get help because they’re afraid of the consequences,” he said.

“He actually concurred with my motion. He didn’t object,” Woehl said of Johnson. “He drew attention to what was happening in Fargo and why the law is the law.”

She also said a line from Johnson’s response in Shopteau’s lawsuit struck her: “The state is always more concerned with human life and safety than criminal prosecution.”

“His answer was very interesting,” Woehl said, though Johnson was opposing her.

“I didn’t fight it very hard, for one,” Johnson said. “But I was very torn on that because Ms. Shopteau is somebody that seemed to really need the extra push to work on her addiction.”

Addiction is an important issue for Johnson; he’s a former police officer whose sister, Sarah, died from an accidental overdose when she was 39.

“Some people think or might find it strange that a prosecutor is supportive of something where somebody may getting away with a crime, but this is a very unique area and societal issue,” he said.

Last year, HB1269 became law, which included the statutory rewrite for immunity in overdoses. A number of revisions were enacted, including the phrase “if in good faith that individual seeks medical assistance for another individual in need of emergency medical assistance due to a drug overdose.”

The rewrite clarifies and corrects some issues from the 2015 statute, according to Woehl and Johnson.

“I think Ms. Shopteau’s case is a really good model of why the immunity statute as written in 2015 wasn’t quite working the way the Legislature wanted it to and the way that it probably should work,” Johnson said.

Woehl said the “spirit of the statute” is what she tried to get across in the Shopteau case.

“It’s ‘we want to save lives,’” she said.

Bismarck Police Chief Dan Donlin said that’s what police aim to do in overdoses, medical or other emergencies.

“Life safety is a No. 1 priority,” he said. “Trying to save a life, get the individual — no matter what they’re suffering from — medical attention as quickly as possible.”

Attitudes surrounding addiction in drug crimes have changed in his 30-year career, according to Donlin, pointing out that circumstances must be considered when determining whether an investigation, arrests or charges will follow.

“We as law enforcement recognize we will still enforce the laws as they are written, but we also recognize to pay attention to the humanity of individuals,” he said.

Bismarck Police Sgt. Mike Bolme, who heads narcotics investigations, said officers respond to overdoses almost daily. Police have Narcan, a nasal agent to reverse overdoses, and no longer field test unknown, white, powdery substances out of safety — all because of the opioid crisis.

As for the immunity statute, Bolme said narcotics investigators “not only obey the letter of the law but the spirit of it as well.”

“There’s that stigma out there among the abusers that they’re going to get in trouble if they call for help,” he said. “Well, we need to eliminate that stigma, and that’s what that law is about.”

Bismarck Police Deputy Chief Randy Ziegler said he couldn’t recall any recent incidents involving the immunity statute. Woehl and Johnson said they’ve each had about three cases.

Public knowledge of the immunity statute may not be best, Johnson said.

Legislators discussed getting the word out to Narcotics Anonymous groups, but it’s not prosecutors’ or legislators’ jobs to advertise the statute, according to Johnson and Woehl. Media helps, Johnson said.

“It’s one of those things that’s getting out slowly but maybe not as quick as it should,” he said.

Police may bring some visibility to the statute for people involved in an overdose when officers respond and no charges are brought, Bolme said.

“None of this stuff’s worth dying for,” he said.

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Information from: Bismarck Tribune, http://www.bismarcktribune.com

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