State of West Virginia v. Timothy M. Conner, II ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term
_______________ FILED
March 15, 2021
No. 20-0234 released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent,
v.
TIMOTHY MICHAEL CONNER, II,
Petitioner.
________________________________________________________
Certified Questions from the Circuit Court of Monongalia County
The Honorable Susan B. Tucker, Judge
Criminal Action No. 20-F-105
CERTIFIED QUESTIONS ANSWERED
________________________________________________________
Submitted: February 9, 2021
Filed: March 15, 2021
Jared T. Moore, Esq. Patrick Morrisey, Esq.
The Moore Law Firm, PLLC West Virginia Attorney General
Morgantown, West Virginia Gordon L. Mowen, II, Esq.
Counsel for Petitioner Assistant Attorney General
Counsel for Respondent
JUSTICE HUTCHISON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “The appellate standard of review of questions of law and certified by
a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172,
475 S.E.2d 172 (1996).
2. “The constitutionality of a statute is a question of law which this Court
reviews de novo.” Syl. Pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008).
3. “‘When the constitutionality of a statute is questioned every
reasonable construction of the statute must be resorted to by a court in order to sustain
constitutionality, and any doubt must be resolved in favor of the constitutionality of the
legislative enactment.’ Syl. Pt. 3, Willis v. O’Brien, 151 W. Va. 628, 153 S.E.2d 178(1967).” Syl. Pt. 3, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011).
4. “‘A criminal statute must be set out with sufficient definiteness to give
a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by
statute and to provide adequate standards for adjudication.’ Syl. Pt. 1, State v. Flinn, 158
W. Va. 111, 208 S.E.2d 538 (1974).” Syl. Pt. 1, State v. Blair, 190 W. Va. 425, 438 S.E.2d
605 (1993).
5. “Undefined words and terms in a legislative enactment will be given
their common, ordinary and accepted meaning.” Syl. Pt. 6, in part, State ex rel. Cohen v.
Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984).
i
6. Within the context of West Virginia Code § 60A-4-416(b) (2017),
“[a]ny person who, while engaged in the illegal use of a controlled substance with another”
means any individual who personally and illegally uses, takes, or otherwise consumes a
controlled substance together with another, as well as any individual who provides or
procures the controlled substance for, or sells the controlled substance to, another to
illegally use, take, or otherwise consume.
7. The phrase “seek medical assistance,” within the context of West
Virginia Code § 60A-4-416(b) (2017), means seek medical services of a health care
professional licensed, registered, or certified under chapter thirty or chapter sixteen of the
West Virginia Code acting within his or her lawful scope of practice.
ii
HUTCHISON, Justice:
Following the death of his friend, Shane Cebulak, from a heroin overdose,
Petitioner Timothy Michael Connor, II, was charged with the felony offense of failure to
render aid, in violation of West Virginia Code § 60A-4-416(b) (2017). This Court is now
presented with the following certified questions from the Circuit Court of Monongalia
County, which arose as a result of petitioner’s motion to dismiss the indictment against
him on the ground that the statute is unconstitutionally vague and, therefore, void:
1. Whether the following phrase in West Virginia Code §
60A-4-416(b) is unconstitutionally vague: “Any person
who, while engaged in the illegal use of a controlled
substance with another?”
Circuit Court’s Answer: Yes.
2. Whether the undefined phrase “seek medical assistance” in
the context of West Virginia Code § 60A-4-416(b) provides
an adequate standard for adjudication?
Circuit Court’s Answer: No.
For the reasons discussed below, we disagree with the answers of the circuit
court and conclude that the statute is constitutional.
I. Factual and Procedural Background
On March 28, 2019, Mr. Cebulak picked up petitioner and drove to an
apartment complex in Morgantown. Mr. Cebulak went inside and purchased heroin while
petitioner remained in the vehicle. After purchasing the heroin, Mr. Cebulak returned to
1
the vehicle and drove them to the parking lot of another apartment complex. Mr. Cebulak
then smoked the heroin. Petitioner denies partaking in the use of illegal substances.
According to petitioner, after Mr. Cebulak smoked the heroin, he began
exhibiting signs that he was suffering an overdose. Petitioner proceeded to call an
acquaintance, Joseph Choma, whom petitioner believed to be a nurse. Petitioner asked Mr.
1
Choma for help because he believed that Mr. Cebulak was experiencing an overdose. Mr.
Choma informed petitioner that he was unable to help because he (Mr. Choma) was
intoxicated and advised petitioner that he should drive Mr. Cebulak to a hospital. Petitioner
informed Mr. Choma that he was on parole and would not call 9-1-1. After speaking with
2
petitioner, but before petitioner arrived with Mr. Cebulak, Mr. Choma called his girlfriend
who, in turn, called 9-1-1 to report the overdose. Petitioner drove Mr. Cebulak to Mr.
Choma’s residence and parked the vehicle in an alley nearby. Mr. Cebulak was still
3
breathing when petitioner left him in the vehicle and went inside Mr. Choma’s residence. 4
According to the testimony of Detective Zach Trump of the Morgantown
1
Police Department, at the September 9, 2019, preliminary hearing, Mr. Choma is not, in
fact, a nurse. Rather, “[h]e had a nursing class once.” Petitioner does not dispute this
testimony.
Petitioner had previously been convicted of burglary and conspiracy.
2
Petitioner feared that calling 9-1-1 would jeopardize his parole status.
The circuit court noted that, “[w]hile driving Mr. Cebulak, [petitioner]
3
drove by two hospitals, two fire departments, and one police department. He did not stop
at any of these places.”
Mr. Choma disputes that petitioner went inside his residence.
4
2
The 9-1-1 dispatcher contacted Mr. Choma, who reported that a person was experiencing
an overdose in a vehicle that was parked in an alley behind Mr. Choma’s residence, that
the person was slumped over the passenger seat, that he was breathing but appeared to be
dying, and that the breathing sounded like snoring. When Mr. Choma went outside to see
5
if the vehicle was still there, it was gone. Emergency personnel arrived soon thereafter and,
likewise, were unable to locate Mr. Cebulak or the vehicle.
Approximately two hours later, while out walking his dog, Mr. Choma
discovered Mr. Cebulak in the vehicle parked in the alley. He called 9-1-1, informing the
dispatcher that he did not believe Mr. Cebulak was breathing. Emergency personnel arrived
and confirmed that Mr. Cebulak was deceased.
6
On August 20, 2019, while petitioner was meeting with his parole officer,
officers with the Morgantown Police Department questioned him about the events that
transpired on March 28, 2019. Petitioner gave a statement and was thereafter arrested and
5
Mr. Choma initially told the 9-1-1 dispatcher that he discovered Mr.
Cebulak in his vehicle when he was outside taking out the trash. According to the police
report, approximately one month after Mr. Cebulak’s death, Mr. Choma went to the
Morgantown Police Department to speak with detectives to advise them that “he had not
told the truth in the beginning because he wanted to speak with an attorney first.” Though
not entirely clear from the record on appeal, it appears that Mr. Choma’s description of Mr.
Cebulak in the initial 9-1-1 call of Mr. Cebulak’s condition was based upon what petitioner
told him and that Mr. Choma never saw Mr. Cebulak alive in the vehicle.
When Mr. Cebulak was found, his body was positioned with his head on
6
the front passenger floorboard and with his feet elevated between the driver and passenger
seats. His pants were partially down and his genitals were exposed.
3
charged with failing to render aid to Mr. Cebulak, a felony, in violation of West Virginia
Code § 60A-4-416(b). The statute provides:
Any person who, while engaged in the illegal use of a
controlled substance with another, who knowingly fails to seek
medical assistance for such other person when the other person
suffers an overdose of the controlled substance or suffers a
significant adverse physical reaction to the controlled
substance and the overdose or adverse physical reaction
proximately causes the death of the other person, is guilty of a
felony and, upon conviction thereof, shall be imprisoned for
not less than one year nor more than five years.
W. Va. Code § 60A-4-416(b). Petitioner was subsequently indicted by a Monongalia
County Grand Jury on that charge.
On February 10, 2020, petitioner filed a motion to dismiss the indictment on
the ground that West Virginia Code § 60A-4-416(b) is unconstitutionally vague because it
fails to clearly define what type of conduct is prohibited and, further, requires application
of a purely subjective standard thereby inviting arbitrary enforcement. Petitioner argued
that the statute should be declared void because (1) the phrase “while engaged in the illegal
use of a controlled substance with another” is subject to multiple interpretations, and (2)
the statute’s failure to define “seek medical assistance” is purely subjective.
A hearing on petitioner’s motion to dismiss was conducted on February 21,
2020. Upon conclusion of the hearing, the circuit court held the motion in abeyance and,
by Order of Certification entered on March 13, 2020, determined that certain aspects of
4
West Virginia Code § 60A-4-416(b) warranted the certification of two questions to this
Court:
1. Whether the following phrase in West Virginia Code § 60A-
4-416(b) is unconstitutionally vague: “Any person who, while
engaged in the illegal use of a controlled substance with
another?”
2. Whether the undefined phrase “seek medical assistance” in
the context of West Virginia Code § 60A-4-416(b) provides an
adequate standard for adjudication?
As to the first certified question, the court found that the statute is ambiguous
regarding what circumstances must exist to constitute “using a controlled substance” within
the meaning of the statute: “Specifically, does the statute apply to people personally using
a controlled substance, or does it apply to those who are merely physically present when
another is using a controlled substance?” 7 Thus, the court’s order observed that “[t]he
phrase ‘Any person who, while engaged in the illegal use of a controlled substance with
another,’ as delineated in the statute, fails to give notice to a person under specific
circumstances of what would make a person subject to punishment under the code section.”
As to the second certified question, the circuit court’s order stated that the
phrase “seek medical assistance” as set forth in the statute is
susceptible to differing subjective interpretations, which
precludes the public from knowing what the law requires of
The circuit court’s order noted that the State has “acknowledged that it had
7
no affirmative evidence that the Defendant was personally using a controlled substance
while with Mr. Cebulak on March 28, 2019.”
5
citizens of the State of West Virginia in similar circumstances.
For example, does “seek medical assistance” mean calling 911,
transporting the person in need of assistance to a medical
facility, or some other specific behavior?
The circuit court determined that “seek medical assistance” in the context of West Virginia
Code § 60A-4-416(b) does not provide an adequate standard for adjudication.
On May 1, 2020, the circuit court entered an agreed order indefinitely
continuing the case pending this Court’s ruling on the certified questions.
II. Standard of Review
The certified questions before us involve a challenge to the constitutionality
of a criminal statute. This Court has established that “[t]he appellate standard of review of
questions of law and certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-
Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172 (1996). Similarly, “[t]he
constitutionality of a statute is a question of law which this Court reviews de novo.” Syl.
Pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008).” Accord, Syl. Pt. 2, State
v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011). Still, we evaluate the certified questions
with caution, keeping in mind the importance of judicial restraint because a statute is
presumed to be constitutional:
“When the constitutionality of a statute is questioned
every reasonable construction of the statute must be resorted to
by a court in order to sustain constitutionality, and any doubt
must be resolved in favor of the constitutionality of the
legislative enactment.” Syl. Pt. 3, Willis v. O’Brien, 151 W. Va.
628, 153 S.E.2d 178 (1967).
6
Syl. Pt. 3, James, 227 W. Va. at 410, 710 S.E.2d at 101. With these standards and
considerations in mind, we proceed to answer the certified questions before us.
III. Discussion
In this case, the Court is tasked with determining whether West Virginia
Code § 60A-4-416(b) should be declared unconstitutionally vague and, therefore, void.
“Claims of unconstitutional vagueness in criminal statutes are grounded in the
constitutional due process clauses, U.S. Const. amend. XIV, Sec. 1, and W.Va. Const. art.
III, Sec. 10.” State v. Bull, 204 W. Va. 255, 261, 512 S.E.2d 177, 183 (1998).
In explaining the “void for vagueness” doctrine, we have instructed that
“[a] criminal statute must be set out with sufficient definiteness
to give a person of ordinary intelligence fair notice that his
contemplated conduct is prohibited by statute and to provide
adequate standards for adjudication.” Syl. Pt. 1, State v. Flinn,
158 W. Va. 111, 208 S.E.2d 538 (1974).
Syl. Pt. 1, State v. Blair, 190 W. Va. 425, 438 S.E.2d 605 (1993). We also recognize that
“[t]here is no satisfactory formula to decide if a statute is so
vague as to violate the due process clauses of the State and
Federal Constitutions. The basic requirements are that such a
statute must be couched in such language so as to notify a
potential offender of a criminal provision as to what he should
avoid doing in order to ascertain if he has violated the offense
provided and it may be couched in general language.” Syl. pt.
1, State ex rel. Myers v. Wood, 154 W. Va. 431, 175 S.E.2d
637 (1970).
Syl. Pt. 2, Blair, 190 W. Va. at 426, 438 S.E.2d at 606.
7
A.
The first certified question asks whether the phrase “[a]ny person who, while
engaged in the illegal use of a controlled substance with another” in West Virginia Code §
60A-4-416(b) is unconstitutionally vague. Petitioner argues that the highlighted statutory
language fails to adequately identify the category of persons to which it applies because it
can be reasonably construed in two entirely different ways – that is, to apply to individuals
who are using a controlled substance alongside or together with the individual who
overdoses at the time the overdose occurs and to individuals who are not using a controlled
substance but are merely physically present when the overdose occurs. While petitioner
8
does not necessarily disagree with the former interpretation, he argues that the latter would
amount to “guilt by association,” which is not contemplated in our criminal justice system
and, further, is problematic because the statute does not define to what degree of physical
proximity an individual must be to the overdoser in order for the individual to be charged
with violating the statute. Petitioner contends that the ambiguity in that portion of West
9
Virginia Code § 60A-4-416(b) providing that “[a]ny person who, while engaged in the
8
For simplicity, an individual who suffers an overdose of the controlled
substance or suffers a significant adverse physical reaction to the controlled substance will
hereinafter be referred to as “the overdoser.”
As an example, petitioner posits that an individual who is attending a
9
concert or sporting event and is in some physical proximity to another spectator
(potentially, a stranger) who suffers an overdose may be charged with violating West
Virginia Code § 60A-4-416(b) if he or she fails to seek medical assistance for the
overdoser.
8
illegal use of a controlled substance with another” creates such uncertainty in its meaning
so as to render it unconstitutional.
The State disagrees with petitioner’s position that “[a]ny person who, while
engaged in the illegal use of a controlled substance with another” may be reasonably read
to apply to an individual who is merely physically present at the time of the overdose of
another and points out that the plain language of the statute simply does not support such
a construction. Rather, the State argues that the plain and ordinary meaning of the
challenged statutory language clearly and unambiguously encompasses individuals who
are themselves illegally using controlled substances together with the overdoser. The State
also contends that those who “make ‘use’” of the controlled substance include those who
provided, procured, or sold the controlled substance to the overdoser, and are present at the
time of the overdose. The State contends that the challenged statutory language is not
unconstitutionally vague.
We agree with the State that West Virginia Code § 60A-4-416(b) is
sufficiently definite to give a person of ordinary intelligence fair notice that his or her
contemplated conduct is prohibited. See Syl. Pt. 1, Bull, 204 W. Va. at 257, 512 S.E.2d at
179. In analyzing statutes, we must identify the intent expressed by the Legislature in
promulgating the provision at issue. “The primary object in construing a statute is to
ascertain and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. Workmen’s
Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). In so doing, we must consider
the particular language employed. “Where the language of a statute is clear and without
9
ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation.” Syl. Pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).
The mere fact that the parties disagree about the meaning of the statutory
language at issue does not compel the conclusion that the statute is void for vagueness. See
State v. Yocum, 233 W. Va. 439, 443, 759 S.E.2d 182, 186 (2014). The challenged language
– “[a]ny person who, while engaged in the illegal use of a controlled substance with
another[,]” W. Va. Code § 60A-4-416(b) – contains undefined words and phrases that we
perceive to be plain and unambiguous nonetheless. “Undefined words and terms in a
legislative enactment will be given their common, ordinary and accepted meaning.” Syl.
Pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984). The
common, ordinary, and accepted meaning ascribed to the term “engage[] in” is “to do
(something)” or “to cause (someone) to take part in (something).” We need not discuss in
10
detail that “[a]ny person who, while engaged in the illegal use of a controlled substance
with another” obviously encompasses any person who personally and illegally uses, takes,
or otherwise consumes a controlled substance in company with another person.
Furthermore, consistent with the common, ordinary, and accepted meaning of “engage[]
in,” “[a]ny person who, while engaged in the illegal use of a controlled substance with
another” also encompasses one who causes another to illegally use, take, or otherwise
consume a controlled substance, as in one who provides or procures the controlled
https://www.merriam-webster.com/dictionary/engage%20in. Accessed 26
10
Feb. 2021.
10
substance for, or sells the controlled substance to, the overdoser. Thus, any such person
“who knowingly fails to seek medical assistance for such other person when the other
person suffers an overdose of the controlled substance or suffers a significant adverse
physical reaction to the controlled substance and the overdose or adverse physical reaction
proximately causes the death of the other person,” is in violation of West Virginia Code §
60A-4-416(b).
11
We hold, therefore, that, within the context of West Virginia Code § 60A-4-
416(b), “[a]ny person who, while engaged in the illegal use of a controlled substance with
another” means any individual who personally and illegally uses, takes, or otherwise
consumes a controlled substance together with another, as well as any individual who
provides or procures the controlled substance for, or sells the controlled substance to,
another to illegally use, take, or otherwise consume.
B.
The second certified question asks “[w]hether the undefined phrase ‘seek
medical assistance’ in the context of West Virginia Code § 60A-4-416(b) provides an
adequate standard for adjudication.” Petitioner argues that because “seek medical
Given our discussion herein, we can easily dispense with petitioner’s
11
argument that the statute may be read to apply to one who is not engaged in the illegal use
of a controlled substance with the overdoser but who is merely in some physical proximity
to him or her at the time of the overdose. The plain and unambiguous language of the statute
does not support such an interpretation.
11
assistance” is undefined in the statute, it lacks “any ascertainable standard,” Smith v.
Goguen, 415 U.S. 566, 578 (1974), and depends upon “wholly subjective judgments
without statutory definitions, narrowing context, or settled legal meanings.” United States
v. Williams, 553 U.S. 285, 306 (2008). Absent a statutory definition as to what “seek
medical assistance” requires, petitioner argues that ordinary citizens have no way of
knowing what is required of them to satisfy West Virginia Code § 60A-4-416(b) and avoid
criminal prosecution. According to petitioner, the indeterminacy of what it means to “seek
medical assistance” would not be clarified until after a jury subjectively determines its
meaning, requiring this Court to declare the language unconstitutionally vague and the
statute void. See Blair, 190 W. Va. at 428, 438 S.E.2d at 608 (determining that what it
means to “maintain adequate and suitable facilities” and “perform such service . . . as shall
be reasonable, safe and sufficient for the security and convenience of the public, and the
safety and comfort of its employees” within the context of West Virginia Code § 24-3-1
[1923] is broad and subjective because “[i]t would not be until after the trial before anyone
would be able to answer the above questions, and the answer would depend on the jury’s
subjective interpretation of what is adequate or safe” (footnote omitted).).
In contrast, the State argues that the phrase “seek medical assistance” is not
ambiguous because it provides a standard for adjudication and does not invite arbitrary
enforcement of the statute. Though undefined in West Virginia Code § 60A-4-416(b), the
phrase “seek medical assistance” is commonly understood by reasonable people to mean
calling 9-1-1, a poison control facility, any type of first responder, or a medical facility
12
capable of treating an overdose. Alternatively, the State argues that if “seek medical
assistance” is deemed to be ambiguous, then although the phrase must be strictly construed
pursuant to the rule of lenity, it must also be defined consistent with the intent of the
Legislature, which permits the Court to consider not only the particular statutory language,
but the design of the statute as a whole, its object, and policy. See State ex rel. Morgan v.
Trent, 195 W. Va. 257, 263, 465 S.E.2d 257, 263 (1995) (concluding that although the rule
of lenity requires ambiguous language in a criminal statute to be strictly construed, it does
not foreclose the Court from considering the particular statutory language and the design
of the statute as a whole, its object, and policy). Thus, every reasonable construction of the
statutory language must be resorted to by this Court in order to uphold its constitutionality,
and any doubt resolved in favor of finding it to be constitutional. See Syl. Pt. 3, James, 227
W. Va. at 410, 710 S.E.2d at 101
In ascertaining what the phrase “seek medical assistance” requires within the
context of West Virginia Code §60A-4-416(b), we begin with the word “seek.” We find
that the word “seek” should be afforded its common, ordinary and accepted meaning in the
context in which it is used in West Virginia Code § 60A-4-416(b). See Syl. Pt. 6, State v.
Sulick, 232 W. Va. 717, 753 S.E.2d 875 (2012) (In interpreting a statute, words will “be
given their common, ordinary and accepted meaning in the connection in which they are
used” (citation omitted).). Thus, the word “seek” in the phrase “seek medical assistance”
in West Virginia Code § 60A-4-416(b) means “to go in search of: look for”; “to try to
13
discover”; “to ask for: request”; or “to try to acquire or gain[.]” https://www.merriam-
webster.com/dictionary/seek. Accessed 3 March 2021.
We now turn to the phrase “medical assistance” in West Virginia Code
§60A-4-416(b). We find guidance for the meaning of the phrase in another legislative
enactment that also strives to mitigate fatal overdose events involving controlled
substances. In enacting the Alcohol and Drug Overdose Prevention and Clemency Act
(“Overdose Prevention and Clemency Act” or “Act”), West Virginia Code §§ 16-47-1
through 16-47-6, in 2015, the Legislature candidly recognized that
(a) West Virginia currently has the highest drug overdose
mortality rate in the United States. Since 1999, the number of
drug overdose deaths in West Virginia has increased by over
six hundred percent. Similarly, the age-adjusted death rate
from alcohol-related overdoses has significantly increased in
West Virginia, and throughout the United States, in the past ten
years.
(b) The Legislature finds it is in the public interest to encourage
citizens to intervene in drug and alcohol overdose situations by
seeking potentially life-saving emergency medical assistance
for others without fear of being subject to certain criminal
penalties.
At their core, both the Overdose Prevention and Clemency Act and the statute
at issue in this case, West Virginia Code § 60A-4-416(b), encourage individuals to seek
life-saving medical help during overdose emergencies. The Act applies to persons “who,
in good faith and in a timely manner, seek[] emergency medical assistance for a person
who reasonably appears to be experiencing an overdose[.]” W. Va. Code § 16-47-4(a)
14
(2015), in relevant part. The Act affords immunity from prosecution for certain enumerated
offenses 12 when the person complies with the Act and seeks emergency medical
assistance. 13
Relevant to our discussion herein, the Overdose Prevention and Clemency
Act defines “[e]mergency medical assistance” as “medical services provided to a person
who may be experiencing an overdose by a health care professional licensed, registered or
certified under chapter thirty or chapter sixteen of this code acting within his or her lawful
scope of practice.” W. Va. Code § 16-47-3(2) (2015). Among the health care professionals
licensed, registered or certified under these chapters are physicians (see W. Va. Code §§
30-3-1 through 18 and 30-14-1 through 16); physician assistants (see W. Va. Code §§ 30-
3E-1 through 19); pharmacists (see W. Va. Code §§ 30-5-1 through 34); registered
professional nurses (see W. Va. Code §§ 30-7-1 through 20); licensed practical nurses (see
W. Va. Code §§ 30-7A-1 through 11); and emergency medical service personnel and
providers (see W. Va. Code §§ 16-4C-1 through 23). Given that the common objective of
both the Overdose Prevention and Clemency Act and West Virginia Code § 60A-4-416(b)
is to save and preserve lives by encouraging immediate requests for medical intervention
during overdose events, there can be no question that these statutes relate to the same
12
See id.
See W. Va. Code § 16-47-4(c) (2015) (setting forth what the person seeking
13
emergency medical assistance must do in order to be eligible for immunity from
prosecution).
15
subject matter and, thus, can be properly read in pari materia. 14 Under well-established rules
of statutory construction, “[s]tatutes which relate to the same persons or things, or to the
same class of persons or things, or statutes which have a common purpose will be regarded
in [p]ari materia to assure recognition and implementation of the legislative intent.” Syl.
Pt. 5, in part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217
S.E.2d 907 (1975).
Therefore, we hold that the phrase “seek medical assistance,” within the
context of West Virginia Code § 60A-4-416(b), means seek medical services of a health
care professional licensed, registered, or certified under chapter thirty or chapter sixteen of
the West Virginia Code acting within his or her lawful scope of practice.
15
The fact that the Overdose Prevention and Clemency Act requires that one
14
seek “emergency medical assistance” for the overdoser in order to be eligible for immunity
from prosecution for certain offenses, see W. Va. Code § 16-47-4(a), while West Virginia
Code § 60A-4-416(b) requires that one seek “medical assistance” to avoid criminal
prosecution, is of no moment. Both statutes clearly reflect that an overdose event is, by its
very nature, emergent and life threatening, demanding immediate medical intervention.
Prior to oral argument in this case, the parties appear to have been unaware
15
of the Overdose Prevention and Clemency Act and that the phrase “emergency medical
assistance” is defined therein. As a result, both parties argued in their briefs that the
definition of the phrase “seek medical assistance” in other states’ limited immunity statutes
should inform this Court’s determination of whether that phrase, in the context of West
Virginia Code § 60A-4-416(b), is unconstitutionally vague. As we have concluded herein,
the Overdose Prevention and Clemency Act (specifically, the definition of “emergency
medical assistance” in West Virginia Code § 16-47-3(2)) should be read in pari materia
with West Virginia Code § 60A-4-416(b).
16
IV. Conclusion
Based upon all of the foregoing, we answer the certified questions as follows:
1. Whether the following phrase in West Virginia Code §
60A-4-416(b) is unconstitutionally vague: “Any person
who, while engaged in the illegal use of a controlled
substance with another?”
Answer: No.
2. Whether the undefined phrase “seek medical assistance” in
the context of West Virginia Code § 60A-4-416(b) provides
an adequate standard for adjudication?
Answer: Yes.
The certified questions having been answered, this case is dismissed from
the docket of this Court and remanded to the circuit court for proceedings consistent with
this opinion. 16
Certified questions answered.
Petitioner argues that, regardless of how the phrase “seek medical
16
assistance” is construed, he requested medical assistance within the meaning of the statute
by contacting Mr. Choma, who he believed to be a nurse, and then driving Mr. Cebulak to
Mr. Choma’s residence for the purpose of obtaining medical attention for Mr. Cebulak. He
also contends that he was charged with violating West Virginia Code § 60A-4-416(b)
merely because he was physically present at the time Mr. Cebulak overdosed as there was
no evidence that he used, procured, provided, or sold any controlled substances to him.
Because the matter is before this Court upon certified questions concerning questions of
law, we do not pass upon the question of whether petitioner violated West Virginia Code
§ 60A-4-416(b).
17