Good Samaritan Law is no help to Waukesha woman
She faces felony charge; man who gave her drugs has charges deferred
WAUKESHA – Anne M. Schulze might have died from a heroin overdose in 2016 but for her 14-year-old son’s call to 911. Emergency medical officials were able to respond in time to get her to a hospital, where after three days, she regained consciousness.
Schulze, 44, said that at the time, she didn’t realize what she snorted was heroin, a drug she’d never used before. It was just something offered by a man she’d been dating briefly when she was having a bad day.
“He had it, and I did it,” she said. “It was impulsive, and it was reckless.”
She’s clean now but stuck in a Bizarro World of the criminal justice system, fighting a possession charge that seems at odds with a new law meant to help opioid users, not punish them.
Prosecutors refuse to defer her prosecution or even deal down to a misdemeanor, while the man who gave her the heroin has had two subsequent possession charges deferred, after going to prison for drug distribution in 2010. He’s never been charged in relation to Schulze’s overdose.
The 911 Good Samaritan Law
About a year after Schulze’s brush with death, in an effort to address the alarming number of fatal opioid overdoses (883 in 2017), the Legislature passed Act 33 to encourage people like Schulze’s son and users themselves to call for help instead of staying silent for fear of arrest.
It was an expansion of the “911 Good
Samaritan Law” passed in 2014, that granted limited immunity to someone, often another user, who calls 911 for a person experiencing a drug overdose.
Act 33 said that “aided persons,” those rescued during overdose by police or firefighters, who are subject to prosecution for having drugs shall be given a deferred prosecution agreement, usually referred to as a DPA. The DPA allows a subject to have a case dismissed if they complete treatment for their drug use.
Six weeks after that law was passed, Schulze, who has no criminal record, was charged with possession of narcotics and drug paraphernalia related to her June 2016 overdose, based on trace heroin residue on a straw and a coaster. Her attorney asked for the DPA, was turned down, and filed a motion asking the court to require it.
But Waukesha County Circuit Judge Ralph Ramirez noted that eight weeks after Schulze was charged, the Legislature amended Act 33 to say the mandatory DPA was only for those whose crimes occurred on or after the day Act 33 took effect, July 19, 2017.
Ramirez read the later act as proof that lawmakers had merely forgotten to limit the change in the law to new cases.
Schulze’s attorney, Anthony Cotton, said that interpretation subjects her to an ex post facto law, and the statute in effect at the time she was charged clearly required the DPA.
“Instead of following the plain words (of the law), the circuit court elected to use legislative history to create an ambiguity that did not exist,” Cotton wrote in an appeal of Ramirez’s order.
“The legislature has spoken in clear language that people subject to prosecution as a result of their addiction ought to receive treatment, not a felony,” the appeal reads.
The U.S. Constitution’s ban on ex post facto laws prohibits not only those that criminalize past conduct that was legal at the time, but also laws that jack up punishment after the fact.
For Schulze, being prosecuted and possibly convicted of heroin possession, a felony, is a far more serious consequence than completing a DPA, and avoiding conviction, Cotton wrote.
The state argued that statutes generally apply to future acts, and so Schulze’s situation wasn’t covered by Act 33. Only procedural changes to the law, not substantive ones, generally apply retroactively, it said.
And it also noted that Act 33 was not the law when Schulze actually overdosed. Just offering DPAs to help combat the opioid epidemic didn’t decriminalize heroin possession, the state argued.
Ramirez declined to order a DPA and the defense’s pending appeal of that decision has put Schulze’s heroin possession case on hold.
‘I passed with flying colors’
Schulze is a soccer mom with no criminal record who’s worked as a hairstylist, medical assistant and farmhand. In a recent interview at her attorney’s office, Schulze said she’s glad she’s clean and frustrated that she’s charged with a felony, while the man who supplied the heroin was not.
“How does that work?” she asked. When Schulze woke up in the hospital, she said, she was met by detectives and a social worker. Concerned about her minor son, the state began a CHIPS petition, for Child in Need of Protection and/or Services.
The process takes place in juvenile court and provides temporary placement of a child at risk of abuse or neglect while their parent gets treatment or services. The goal is to reunite the parent and child whenever possible.
Schulze said she attended a dozen group meetings, two individual counseling sessions, seven drug education classes and passed every drug test.
“All the lawyers in my case said I passed with flying colors,” she said.
14 months later, a summons
Yet shortly after the matter was dismissed, 14 months after her overdose, she got a summons in the mail about her felony charge.
“I literally fell to the floor shaking,” she said. “I followed everything to the letter, and now I’m being punished.”
Why were the charges so late?
For one, it took until March 20, 2017, for the state crime lab to conclude there was some heroin residue on the straw and coaster taken from Schulze’s apartment. Then it was another five months before the complaint was filed.
District Attorney Sue Opper blamed that on a backlog of cases in her office, which has offered 38 DPAs under Act 33.
Cotton said Schulze immediately applied for drug court in Waukesha County, which usually will result in a change to a misdemeanor for someone in her situation. Because she had already gotten treatment she was rejected as having “low needs.”
“Perversely, the person who refuses to address one’s addiction gets a non-felony whereas the constructive person gets a felony,” Cotton said.
Supplier got three breaks
He was referring to Adam Rydzik, 36, of Greenfield. Court records show he was charged in October 2017 with possession of narcotics in Waukesha County, pleaded guilty in June and diverted to drug treatment court. The conviction has been withheld pending the outcome.
In May, he was charged with possession of narcotics in Milwaukee County, where he pleaded guilty in September and again had his conviction withheld while he goes to drug treatment court.
Rydzik has prior convictions for possessing heroin in 2008, and for delivery of drugs in 2010, for which he was sentenced to two years in prison.
A successful intervention
“Waukesha County’s social services department is rightly proud of their early involvement in cases like this,” Cotton said. “They should be using her as an example of successful intervention, not pushing her to the ground.”
Cotton blamed the situation on one arm of government — the Corporation Counsel’s office, which handles CHIPS matters — not communicating with another — the District Attorney’s office.
Opper said the only DPAs the district attorney’s office handles is under Act 33, and those in which a person qualifies for drug court, which rejected Schulze.
Cotton thinks prosecuting after successful intervention seems counterproductive and could push a weaker person to relapse into drug use.
Schulze said about a month after her overdose, her nephew died from one in another state. She said the experiences scared her straight. She said she learned in the CHIPS treatment she was at least dependent, if not addicted, to prescription painkillers she’d used for years. She stopped them cold turkey.
It scared her son, too, who is living with his father, though both parents share custody. She sees him regularly.