We note that the standard under N.J.S.A. 24:6J-3 logically calls for an assessment with respect to the perceptions of the person(s) who called for medical assistance i.e., here the officer, and not the unidentified hearsay declarant who apparently called the dispatcher seeking police, not medical, assistance. In addition, even though the person who called for medical assistance here happens to be a police officer, his factual observations and actions ultimately must be viewed through the statutory prism of a layperson. The pivotal question comes down to what a hypothetical layperson, who saw what Officer Romano saw, would have reasonably perceived at the scene.
We discern no need to compel this case to be presented anew before a grand jury. The factual applicability or inapplicability of OPA immunity to this matter is not obvious from the record, at least the one provided to us. This is not the rare situation in which exculpatory proof “jumps off the page” to an extent requiring the indictment to be set aside because of alleged prosecutorial misconduct before the grand jury. That is far from the case here, especially since the State did not even possess defendant’s medical records diagnosing him with an overdose until the one-page excerpt was supplied by trial counsel as part of the dismissal motion papers.
Here, the Court provides good insight into what defense counsel should do pre-indictment to secure a dismissal under the Overdose Prevention Act. The Court also highlights the impracticality of having defendants receive grants of immunity before arrest. It takes a hospital stay and several days before medical reports are written and disseminated. The arrest will often occur shortly after police initially interact with the individual suffering an overdose.
As an aside, we must briefly note that it was inaccurate for the assistant prosecutor to respond extemporaneously to the grand juror’s query about defendant’s medical records by saying, without qualification, that such records are “private and confidential” and then cutting off the query. Actually, under federal regulations adopted pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”), 42 U.S.C. § 1320d to -9, a hospital “may disclose protected health information for a law enforcement purpose to a law enforcement official if in compliance with and as limited by the relevant requirements of a grand jury subpoena.” 45 C.F.R. 164.512(f)(1)(ii)(B). A grand jury subpoena alone is sufficient under HIPAA for a covered entity such as a hospital to disclose protected health information for law enforcement purposes. In re Grand Jury Proceedings, 450 F. Supp. 2d 115, 116 (D. Me. 2006).