In an earlier blog post, I summarized North Carolina’s harm reduction immunity laws, including our safe syringe exchange law, G.S. 90-113.27, our Good Samaritan law, G.S. 90-96.2, and others.  As practitioners may know, our Good Samaritan law was enacted in 2013. Since then, the General Assembly broadened the scope of the law, and we have a new appellate case discussing when the law applies. As practitioners may know, the Good Samaritan law can provide limited immunity from prosecution for a person calling to report a drug overdose and the person overdosing. This post lays out the current state of the Good Samaritan law and offers advice on how to litigate and preserve arguments under the law.

Good Samaritan Law Basics. Under G.S. 90-96.2(b) and (c3), a person calling to report a drug-related overdose is immune from prosecution for possession of any misdemeanor-level controlled substance, possession of any felony-level controlled substance involving less than 1 gram, and for possession of any drug paraphernalia when certain conditions are met. To be entitled to the immunity, the caller must meet all of the following requirements:

• The caller must seek medical attention for a person experiencing a drug-related overdose by calling 911, law enforcement, or emergency medical services
• The caller must be acting in good faith when seeking medical help, reasonably believing that they are the first person to call for help
• The caller must provide their name to 911 or to law enforcement upon their arrival
• The call for assistance must not occur during the execution of an arrest warrant, search warrant, or other lawful search
• The evidence for prosecution for the covered offenses was obtained as a result of the person seeking medical treatment.

A “drug-related overdose” is defined in subsection (a) of the law as “an acute condition, including mania, hysteria, extreme physical illness, coma, or death resulting from the consumption or use of a controlled substance, or another substance with which a controlled substance was combined, and that a layperson would reasonably believe to be a drug overdose that requires medical assistance.” G.S. 90-96.2(a).

Under G.S. 90-96.2(c), the person experiencing the overdose enjoys the same limited immunity as the person reporting the overdose if the first, second, fourth, and fifth conditions above are met (basically, if the overdosing person meets all the same requirements other than providing their name to 911 or law enforcement).

Under G.S. 90-96.2(c1), if a person (whether the caller or the person experiencing the overdose) meets the requirements for immunity above, that person is also not subject to arrest for and revocation of any violations of conditions of pretrial release, probation, parole, or post-release supervision arising from the same incident. This subsection further provides that the arrest of a person for whom immunity may apply does not, on its own, constitute a new criminal offense in violation of pretrial release, probation, parole, or post-release supervision conditions.

Under G.S. 90-96.2(d), the statute does not bar the use of any evidence discovered in the investigation of other crimes not covered by subsections (b) and (c) by a person who otherwise qualifies for immunity or by a person for whom immunity does not apply. The statute does not interfere with the ability of law enforcement to seize evidence or contraband as otherwise permitted by law, it does not limit the authority of law enforcement to detain, arrest, or take into custody a person for any other crimes not covered by the statute, and it does not limit the authority of a probation officer to conduct drug testing of any person on pretrial release, probation, or parole.

Legislative Changes. Originally, the law applied only to drug paraphernalia offenses, misdemeanor drug possession offenses, and offenses involving possession of less than 1 gram of cocaine or heroin. As I observed in my earlier blog post, that list left off fentanyl, carfentanil, and other fentanyl mixtures and derivatives commonly associated with drug overdose deaths. In recognition of this limitation, the legislature amended subsection (c3) of the statute in 2023 to remove the references to cocaine and heroin and replace that language with “any controlled substance” instead. S.L. 2023-123. In 2025, the legislature again amended G.S. 90-96.2(c3) to add criminal possession of embalming fluid to the list of covered substances. S.L. 2025-71. Effective December 1, 2025, a person charged with class I possession of less than 28 grams of embalming fluid may claim Good Samaritan immunity when the other requirements of the statute are met. See also G.S. 90-113.154 (Criminal possession of embalming fluid) (2025).

Good Samaritan Caselaw. Only two published cases so far have addressed the Good Samaritan law. In State v. Osborne, 275 N.C. App. 323 (2020), the Court of Appeals considered the nature of the immunity conferred by G.S. 90-96.2 and whether such immunity is waived by the defendant’s failure to raise it as a defense. The case was on remand from the North Carolina Supreme Court, where Justice Earls raised that question in a concurring opinion. State v. Osborne, 372 N.C. 619, 632 (2019) (Earls, J., concurring).  The Court of Appeals ultimately concluded that immunity under G.S. 90-96.2 is not jurisdictional and its applicability does not deprive the trial court of subject matter jurisdiction. Instead, G.S. 90-96.2 confers a “traditional” type of immunity from prosecution. The defendant must therefore raise the issue at trial or the issue is waived on appeal; a defendant cannot assert Good Samaritan immunity for the first time on appeal.

More recently, the Court of Appeals decided State v. Branham, COA24-927, ___ N.C. App. ___ (Oct. 1, 2025). The defendant in Branham raised the issue of immunity under G.S. 90-96.2 at trial, but the trial court found that the statute did not apply under the facts of the case. Police received an alert that a person was sleeping within a car with the engine running. The caller reported that they had knocked on the window of the car and the person inside (the defendant) did not wake up. When law enforcement arrived on scene, an officer again knocked on the window of the car. This time, the defendant woke up and got out of the car. The officer immediately noticed a baggie of powder and paraphernalia consistent with intravenous drug use. Emergency medical services (EMS) personnel arrived on the scene, but the defendant stated that he did not have any medical issues and did not need medical treatment.

The defendant was charged with possession of heroin, drug paraphernalia, and having attained the status of habitual felon. He filed a pretrial motion to dismiss, arguing that he was immune from prosecution under the Good Samaritan law. At a hearing on that motion, the defendant testified that he injected fentanyl prior to the encounter with law enforcement and lost consciousness. He believed he had received the overdose prevention drug naloxone (commonly known as Narcan) and had vomited upon being revived, but no other witness corroborated this version of events. In fact, the defendant acknowledged on the stand that he had refused medical treatment by EMS. He also testified that he had overdosed “quite a few times.” Branham Slip op. at 11. The trial court denied the motion, finding that the defendant failed to show that he had experienced a drug-related overdose. The defendant then entered a guilty plea purporting to preserve his right to appeal the denial of his motion to dismiss for immunity and appealed.

The Court of Appeals found that the denial of the defendant’s motion to dismiss for Good Samaritan immunity was not something that could be directly appealed following a guilty plea. See G.S. 15A-1444 (a2) (limiting the grounds on which a defendant can appeal after a guilty plea). However, the defendant filed a petition for writ of certiorari in apparent recognition of this defect, and the court exercised its discretion to grant certiorari and review the immunity argument on the merits.

Here, the trial court correctly concluded that the immunity did not apply because the defendant failed to show that he experienced a drug-related overdose. Other than claiming to have overdosed and vomited, the defendant presented no evidence that he suffered from an acute condition such as extreme physical illness, mania, hysteria, or coma stemming from his ingestion of drugs. No witness corroborated the defendant’s claim of having received Narcan. There was also no indication that the caller reporting the event to police believed the defendant was overdosing. In the words of the court:

Defendant’s evidence shows only his drug-induced unconsciousness, not that the caller reasonably believed it resulted from drugs. Defendant testified that first responders gave him Narcan. But Agent Dean’s ability to quickly awaken him by tapping on his car window indicates a degree of unconsciousness far short of an ‘acute illness.’ Based on his training and experience, Lieutenant Barkley testified that individuals recovering from an overdose are usually ‘cyanotic, sweating, clammy,’ of which the Defendant showed no signs. Branham Slip op. at 5.

The trial court’s ruling on the defendant’s immunity argument was therefore upheld (as was a challenge to the validity of his guilty plea).

Takeaways. Under the Osborne case, it is incumbent on defenders to be aware of the Good Samaritan law in G.S. 90-96.2 and to assert it on behalf of defendants whenever it potentially applies. Under 15A-954(a)(9), a defendant can move to dismiss pretrial on grounds that the defendant has been granted immunity by law from prosecution, as the defendant did in Branham. If there is an argument that the defendant is entitled to immunity under the Good Samaritan law, defense counsel should file a pretrial motion to dismiss and request an evidentiary hearing. If defense counsel can convince the prosecutor ahead of the hearing that the defendant is immune from prosecution, the charges will presumably be dismissed without the need for a hearing. Where there is a legitimate dispute about whether the defendant meets the requirements of the law, the defense should be prepared to present evidence regarding why the law applies to the facts of the case. Branham indicates that it is the defendant’s burden to prove that the law applies.

The Branham case is a strong signal that the defendant’s bare assertion of having overdosed may not be enough on its own. In many cases, there may be no serious debate about whether the defendant suffered a drug-related overdose amounting to an acute condition as outlined in G.S. 90-96.2(a). Where law enforcement or emergency services administer Narcan and the defendant exhibits typical drug overdose symptoms upon his or her revival, it may be enough to simply elicit testimony from the defendant and from the person administering aid to establish that the defendant had indeed overdosed. In close cases, though, a cautious defender should be prepared to admit medical records or expert testimony regarding overdose symptoms in addition to testimony from the defendant and the person who administered aid about the defendant’s condition at the time to show the defendant experienced an overdose within the meaning of the statute.

Where the statute potentially applies and defense counsel fails to alert the defendant of its existence, the failure to properly advise the defendant could constitute ineffective assistance of counsel. See State v. Osborne, 275 N.C. App. 323, 328 (2020) (Having failed to raise the immunity issue at trial, “Osborne must raise those arguments, if at all, through a motion for appropriate relief in the trial court asserting ineffective assistance of counsel.”)

Finally, defense counsel should properly advise their clients about the lack of any right to appeal the denial of a pretrial motion to dismiss based on Good Samaritan Immunity following a guilty plea. As we saw in the Branham case, a defendant who pleads guilty lacks a statutory right to appeal from a denial of a motion to dismiss based on immunity. It is possible for the issue to be reviewed by way of certiorari (as it was in Branham), but cert review is discretionary and never guaranteed. A defendant with a strong claim of immunity under G.S. 90-96.2 who wishes to ensure appellate review of the issue must try out their case to verdict and not enter a guilty plea.

Readers, I welcome your feedback on how the Good Samaritan law is working in your jurisdiction. If you would like to share, or if you have any questions, I can be reached as always at dixon@sog.unc.edu.