Jason Cook v. Commonwealth of Kentucky ( 2022 )

RENDERED: APRIL 15, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0722-MR
JASON COOK APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
v. HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 18-CR-00024
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.
DIXON, JUDGE: Jason Cook appeals from the judgment and sentence on his
conditional guilty plea entered by the Rowan Circuit Court on April 12, 2019.
After careful review of the briefs, record, and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On the afternoon of November 18, 2017, an employee of the
Downtown BP in Morehead called the police when she discovered Cook slumped
over in his pickup truck with its engine running. Officer Bryant Furman, the first
to respond, approached the vehicle and observed Cook inside but could not see
well due to the dark tint of the truck’s windows. Officer Furman used a flashlight
and observed a syringe on Cook’s lap and additional drugs and paraphernalia on
the passenger seat. He knocked on the window to get Cook’s attention, but there
was no response. At that point, Officer Furman feared he might be dead and
opened the truck’s door.
Upon opening the door, a syringe fell out of the vehicle, and Cook
awoke. Officer Furman asked him to step out of the vehicle and remove his jacket,
at which time he observed track and pick marks on Cook’s arms. Even though
Cook was awake and alert, Officer Furman called local emergency medical
services (EMS) to evaluate Cook, and the two talked for approximately 20 to 25
minutes until EMS arrived. Cook refused treatment, signed a release, and was
transported to the local detention center. While under observation, Cook suffered
from a drug overdose, later admitting he had swallowed heroin after Officer
Furman awakened him in the BP parking lot.
Cook was subsequently indicted for first-degree possession of a
controlled substance, heroin;1 possession of drug paraphernalia;2 possession of
1
Kentucky Revised Statutes (KRS) 218A.1415. A Class D felony.
2
KRS 218A.500(2). A Class A misdemeanor.
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marijuana;3 and public intoxication.4 Cook moved the trial court to exempt him
from prosecution for drug and paraphernalia possession under KRS 218A.133. His
motion was denied. Cook again moved the trial court for exemption from
prosecution under KRS 218A.133, and after a hearing, his motion was again
denied; whereupon Cook entered a conditional guilty plea, and this appeal
followed.
STANDARD OF REVIEW
“The construction and application of statutes is a matter of law.
Therefore, this Court reviews statutes de novo without deference to the
interpretations adopted by lower courts.” Commonwealth v. McBride, 281 S.W.3d
799, 803 (Ky. 2009) (citation omitted).
ANALYSIS
On appeal, Cook argues KRS 218A.133 does not require an actual
medical emergency for exemption from prosecution. The relevant portions of KRS
218A.133 provide:
(1) As used in this section:
(a) “Drug overdose” means an acute condition of
physical illness, coma, mania, hysteria, seizure,
cardiac arrest, cessation of breathing, or death
3
KRS 218A.1422. A Class B misdemeanor.
4
KRS 525.100. A Class B misdemeanor. This charge was later dismissed by the trial court.
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which reasonably appears to be the result of
consumption or use of a controlled substance, or
another substance with which a controlled
substance was combined, and that a layperson
would reasonably believe requires medical
assistance; and
(b) “Good faith” does not include seeking medical
assistance during the course of the execution of an
arrest warrant, or search warrant, or a lawful
search.
(2) A person shall not be charged with or prosecuted for a
criminal offense prohibiting the possession of a
controlled substance or the possession of drug
paraphernalia if:
(a) In good faith, medical assistance with a drug
overdose is sought from a public safety answering
point, emergency medical services, a law
enforcement officer, or a health practitioner
because the person:
1. Requests emergency medical assistance
for himself or herself or another person;
2. Acts in concert with another person who
requests emergency medical assistance; or
3. Appears to be in need of emergency
medical assistance and is the individual for
whom the request was made;
(b) The person remains with, or is, the individual
who appears to be experiencing a drug overdose
until the requested assistance is provided; and
(c) The evidence for the charge or prosecution is
obtained as a result of the drug overdose and the
need for medical assistance.
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(3) The provisions of subsection (2) of this section shall
not extend to the investigation and prosecution of any
other crimes committed by a person who otherwise
qualifies under this section.
The Supreme Court of Kentucky has recently addressed the
applicability of this statute, holding:
for the sake of simplicity, we have distilled the statute
down into the requirements . . . to be entitled to
immunity. Those requirements are as follows:
In good faith, medical assistance with an acute
condition of physical illness, which reasonably
appears to be the result of consumption or use of a
controlled substance, and that a layperson would
reasonably believe requires medical assistance, is
sought from a public safety answering point,
emergency medical services, or a law enforcement
officer, because the person:
Appears to be in need of emergency medical
assistance and is the individual for whom
the request was made;
The person is the individual who appears to
be experiencing a drug overdose; and
The evidence for the charge or prosecution
is obtained as a result of the drug overdose
and the need for medical assistance.
Wilson v. Commonwealth, 628 S.W.3d 132, 141-42 (Ky. 2021) (emphasis added)
(footnotes omitted). Wilson further held “each element of the foregoing test must
be met to trigger immunity from prosecution[.]” Id. at 142.
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Like Wilson, the case herein may be disposed of for failure to meet the
second element. Here, the BP employee did not seek medical assistance for a
“drug overdose,” as defined by KRS 218A.133(1)(a). She was unsure whether the
man was asleep or passed out and had no information as to why. She was unable
to observe the drugs or paraphernalia through the tinted windows, which Officer
Furman testified he, too, was unable to see until he shined a flashlight into the
vehicle. Officer Furman further testified that when Cook emerged from the vehicle
and began talking with him, Officer Furman did not suspect Cook had
overdosed on drugs, though he did suspect Cook was actively using them.
Officer Furman requested EMS evaluation of Cook out of an abundance of caution.
Wilson held it does not
promote the intent or purpose of the General Assembly to
interpret the statute in a way that grants immunity to a
defendant where the person calling for medical
assistance had no objective basis upon which to
reasonably conclude that the defendant’s acute
physical condition was the result of controlled
substance use, or where the caller did not seem
subjectively to intend to call for medical assistance
with a suspected overdose.
Wilson, 628 S.W.3d at 144 (emphasis added). Based on the facts of this case,
neither the employee’s call to dispatch nor Officer Furman’s call to EMS could,
either objectively or subjectively, satisfy these requirements. Accordingly, Cook
was not entitled to exemption from prosecution.
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CONCLUSION
Therefore, and for the foregoing reasons, the orders entered by the
Rowan Circuit Court are AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Molly Mattingly Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Christina L. Romano
Assistant Attorney General
Frankfort, Kentucky
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