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  • WisBar News
    November 04, 2016

    Busted Helping Overdose Victim: Court Decides “Aider” Immunity Issues

    Joe Forward


    Nov. 4, 2016 – A woman charged with drug possession, drug paraphernalia, and bail jumping argued she was immune from prosecution for crimes committed while “aiding” her friend, who overdosed on drugs. Recently, an appeals court agreed in part.

    Under Wis. Stat. section 961.443, an “aider” is immune from certain drug-related crimes if the crimes are committed while in the process of bringing another person to an emergency room, hospital, or fire station, believing that person is overdosing on drugs.

    In 2015, police responded to a single-car accident in Kenosha. The passenger was unconscious but breathing. The driver, Marie Williams, told police she was driving her unconscious friend to the hospital because he had overdosed on drugs.

    Upon observation and a field sobriety test, police cited Williams for OWI. Upon a vehicle search, they found morphine pills and pain killers, as well as drug paraphernalia. They also found a GPS electronic ankle monitor. Williams said the monitor fell off her ankle.

    At the time of the incident, Williams had a pending felony charge and had been released from jail on bond. Ultimately, the state charged Williams with 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.

    The bail jumping charges resulted from the drug-related charges – which violated the terms of her release on bond –and failing to comply with electronic monitoring.

    Williams cited the “aider” statute to move for dismissal of all charges except the bail jumping charge that related to electronic monitoring. The state argued that the “aider” statute did not extend to any charges, based on the facts of the case.

    The circuit court judge ruled that the immunity question was one for the jury and denied the motion. Williams appealed the non-final order.

    In State v. Williams, 2015AP2044-CR (Oct. 19, 2016), a three-judge panel for the District II Court of Appeals ruled that the circuit court must rule on the “aider” immunity question, not the jury. But the panel disagreed on the charges subject to immunity.

    “We agree with Williams and the State that the question of immunity is to be decided by the circuit court pretrial and that the defendant carries the burden of proving by a preponderance of the evidence his/her entitlement to the immunity,” wrote Judge Mark Gundrum, noting the statute does not say who should make that decision and when.

    The panel noted that immunity protects individuals from prosecution, and the circuit court ought to decide whether a defendant has immunity before the case proceeds.

    “Delay in the immunity determination would inject unnecessary uncertainty into the prosecution and result in the use of taxpayer resources to continue a prosecution that may eventually be dismissed on immunity grounds,” Judge Gundrum wrote.

    The panel sided with both parties on the jury question, but two justices ruled that Williams cannot get immunity for every charge that stems from the incident.

    “[W]e agree with the State that if Williams is entitled to immunity, the immunity only applies to the charges related to the specific crimes listed in the statute,” wrote Gundrum, noting the statute only covers drug possession and paraphernalia.

    That is, a 2-1 majority ruled that Williams can still be prosecuted for bail jumping, even if she is immune from the drug possession and paraphernalia charges.


    Judge Paul Reilly wrote a concurrence to argue that if Williams is immune from the drug-related charges, the bail jumping charges could not proceed either.

    “If Williams is entitled to immunity … then it is my belief that the State would be unable to establish proof beyond a reasonable doubt that Williams ‘commit[ed] an additional crime sufficient to maintain the bail jumping charges. …” Judge Reilly wrote.

    The two-judge majority responded that the state could still proceed on the bail jumping charges “by proving at trial the elements of the possession of drugs and drug paraphernalia crimes which underlie the bail jumping charges.”

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