Española City Police officer may have arrested a man on drug possession charges in violation of a state law meant to prevent overdose deaths.
Police Chief Mizel Garcia did not respond to a request for information and comment on what may have been an arrest in violation of state law.
When a city officer arrested a man in violation of the state law in 2017, it resulted in a lawsuit against the city, which the city settled.
Officer Andrew O’Hara arrested Matthew Martinez, 48, of Santa Cruz, on three counts of possession of a controlled substance and one count of possession of drug paraphernalia on Nov. 20, he wrote in an incident report.
O’Hara had been called to the scene for a report of a man slumped over in a car, possibly overdosing. He opened the man’s door and found drug paraphernalia and containers that appeared to have drugs in them. He checked Martinez’s pulse on his neck and when he did, Martinez woke up, O’Hara wrote.
The man allegedly told O’Hara he wasn’t overdosing. He refused medical attention when Española firefighters arrived. O’Hara wrote it appeared Martinez had been smoking fentanyl and arrested him. When he searched him, he found a tin can with white powder in it and a loaded syringe and a clear bag with clear rocks that Martinez identified as methamphetamine, O’Hara wrote.
Rio Arriba Magistrate Judge Joseph Madrid ordered Martinez to be released on his personal recognizance Nov. 21, and ordered him to report to pretrial services.
A status conference in the case is set for this week.
Since 2007, New Mexico has had a Good Samaritan law, pushed by former state senator Richard Martinez. The law, expanded in 2019, makes it so police cannot arrest someone who calls 911, or seeks medical assistance for an alcohol or drug overdose, on charges of drug possession or possession of drug paraphernalia, but gives no immunity for more serious charges.
The law also makes it so the person placing the call for medical assistance can’t be arrested on drug possession or paraphernalia charges, “if the evidence for the alleged violation was obtained as a result of the overdose and the need for seeking medical assistance.”
According to O’Hara’s incident report, the evidence for his arrest was found when he went to check Martinez’s pulse.
Former Española Police Officer Albert Rael arrested a man in 2017 on possession charges after the man was reportedly overdosing. He sued the city and the city settled a year later.