Sunday, August 2, 2015

"Overdose Protection Act" does not exclude drug evidence from jail guard's disciplinary hearing.

On May 29, 2013 South Jersey Times writer Spencer Kent reported on a Cumberland County correction officer's May 15, 2013 arrest for drug possession after Vineland police found him "in a hotel room with a hypodermic needle and a crack pipe."  Curious as to what ultimately happened to the corrections officer, I went to the Cumberland County Courthouse last week to examine the case file of a lawsuit that the officer filed.

In the file, I found an August 4, 2014 written decision by Superior Court Judge Richard J. Geiger.  According to the decision, the corrections officer, William Burgess, "overdosed after he injected heroin into his arm."  His girlfriend--presumably Amber E. Watson, the woman mentioned in Kent's article--called 9-1-1 for help.  Emergency responders administered Narcon (naloxone) and revived Burgess.

Although Burgess was arrested and was granted a conditional discharge in Vineland Municipal Court, he was later able to vacate the conditional discharge because of New Jersey Overdose Protection Act.  According to a July 2, 2013 New Jersey Attorney General press release, the Act protects "those who, in good faith, seek medical assistance for an overdose victim . . . from arrest and prosecution on a charge of use or simple possession of illegal drugs [and this] immunity also applies to the person suffering the overdose."

In his lawsuit, Burgess sought to stop Cumberland County's Department of Corrections from firing him because of the drug use underlying his arrest.  According to Geiger's decision, Cumberland did fire Burgess and Burgess appealed his termination to the Civil Service Commission.  In his suit, he asked Judge Geiger to rule that the Overdose Protection Act protected him not only from criminal sanctions but also from being fired.  Judge Geiger ruled against Burgess. He held that had the legislature intended to protect drug overdosers from being fired, it would have said so in the law.

Judge Geiger's decision also disclosed that Burgess, after having had his conditional discharge vacated, filed a petition to expunge the whole matter from his criminal record.  Burgess' expungement petition was denied by Superior Court Judge Robert G. Malestein because "the subject matter of the records of the arrest was the object of litigation or judicial proceedings, namely plaintiffs disciplinary appeal pending before the Office of Administrative Law."  Because the denial was "without prejudice" Burgess may renew his expungement petition after his termination appeal becomes final.

(I have submitted OPRA requests for any updates to the actions cited above and will update this blog entry upon receipt.)