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Can I be charged with murder if I sold someone heroin and they overdosed?


No, you cannot be charged with murder for the heroin overdose. The actor Philip Seymour Hoffman died of a heroin, cocaine and prescription drug overdose in his New York City apartment on February 2, 2014. This tragic event led to a public outcry that those who sold him these drugs should be prosecuted for murder. And, of course, several people who were known to have sold Hoffman heroin were arrested. Holding a drug supplier criminally responsible for the death of a drug user is though to be supported by many State's felony murder laws. What is felony murder? As a Jacksonville criminal defense attorney, I represent people charged with felony murder.

The felony murder rule says that if a defendant has committed a felony (say, selling heroin) that causes death (such as by an overdose), the original felony (sale of heroin) is escalated to murder. In some jurisdictions, felony murder, even when the death was utterly unpredictable, carries the death penalty. But the sale of drugs (unlike committing a robbery that ends in a death) does not serve as a basis for a murder charge. This is because the death must have been caused by the defendant's actions. When a person decides to inject themselves with heroin and then takes other drugs in a manner and dosage that kills them, this is usually considered an intervening cause that breaks the chain of causation and was not reasonably foreseeable by the defendant. In Hoffman's case, with a history of addiction, rehab and re-addiction - along with the use of other drugs - which the particular dealer or dealers who were arrested did not cause - was the real cause of his death.

The Supreme Court recently decided this exact issue in Burrage v. United States. Federal prosecutors in Iowa argued that Marcus Burrage should be convicted for distributing the heroin that lead to the death of a drug addict, and they won. Burrage was sentenced to 20 years for the heroin death and another 20 years for selling the heroin. Burrage appealed, arguing that the federal government had to show that the heroin sold to the user was more than just a possible cause of his death. Like Hoffman, the drug addict who died in the Burrage case had a mixture of several drugs in his system.

The Supreme Court unanimously reversed Burrage's conviction, and wrote "At least when the use of a drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable for penalty enhancement under the penalty enhancement provision of the Controlled Substance Act unless such use is a but-for cause of the death or injury" What does this mean? It means the Court set a new standard of causation. Following the decision in Burrage, a prosecutor would have to show that "but for" the dealer's supply of heroin to Hoffman, he would have lived. That's a much more difficult case to prove, since he had cocaine and prescription drugs in his system as well.

Lesson Learned:

Although it's a popular notion, its difficult, if not impossible, to prosecute a drug supplier for felony murder. It must be shown that the drug supplied was not merely a contributing cause, but the only cause of the person's death. Most drug addicts that overdose have many illegal substances in their system, so it's hard to prove that 'but for' the one substance sold by the drug supplier, the person would have lived. While a drug supplier may be morally responsible, he is not legally responsible for causing the death of someone who uses his product.

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