Whose Fault is a Drug-Induced Homicide?

Death caused by fentanyl can be first-degree murder in Florida

By Judy Malmon

As the number of deaths due to opioid overdose continue to climb, society is driven to hold someone accountable. One theory is to prosecute the provision of drugs leading to overdose as homicide. Prosecutions vary from state to state but, to date, 20 states currently have drug-induced homicide laws, and several more have such laws in the works. For having played a role in an overdose death, convictions can range from involuntary manslaughter to murder—with penalties ranging from two years to capital punishment. A recently passed law placed Florida at the most extreme end: A conviction of this type could get the death penalty.

Often, the one charged with the crime is a dealer, but it could also be a partner or friend who co-used with the deceased. They may or may not have known what it was they were providing, as increasingly, heroin is laced with synthetic fentanyl, an opioid variant many times stronger and more deadly.

Whether such criminal prosecution will impact the opioid crisis is up for debate. But you don’t have to agree with its policy to have the law apply to you or a family member. In Florida, murder, by definition, includes death “which resulted from the unlawful distribution by a person 18 years of age or older of any of the [listed] substances, or mixture containing any of the [listed] substances, when such substance or mixture is proven to be the proximate cause of the death of the user.” The statute lists a number of controlled substances, and it was recently updated to state that provision of fentanyl that causes death constitutes first-degree murder. Significantly, the law does not require that a provider have the intent to sell or give fentanyl, and may not even be aware of its presence in the drugs they supply.

Prosecutors assert that the charge helps them nab dealers higher up the chain, as those charged are more willing to cooperate in giving up their suppliers. Statistically, however, those charged are more likely to be people close to the deceased. Detractors look to the history of drug use criminalization and its harsh destabilizing effect on communities and contribution to racial disparities, noting that deterrence theories are not supported by statistics.

Effect of “Good Samaritan” Law

One frequently cited concern with this type of prosecution relates to the potential criminal charges one can face when seeking help for a companion who is overdosing. Florida’s “Good Samaritan” law provides immunity from prosecution for someone acting in good faith—one who seeks medical care on behalf of another whom they believe has overdosed. This law is intended to encourage those nearby to step in and seek medical help, but is limited in its protection.

Under the statute, immunity from prosecution for reporting overdose protects both the caller and the one who is overdosing from drug possession charges that would otherwise derive from the incident. However, one who seeks help can still be charged with other drug crimes, including distribution and homicide.

Obviously, any of these types of scenarios and resulting charges are not to be taken lightly. It’s imperative that you seek experienced legal counsel immediately if you or a loved one are faced with drug-related criminal prosecution.

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