Death by Distribution Charges
When a person dies due to a drug overdose from a controlled substance they purchased illegally, the person who gave or sold them the drug can be help accountable for their death, with very serious consequences. The federal government and many states have laws that place harsher penalties on people who are guilty of distributing controlled substances if somebody they gave or sold drugs to dies from using the drugs. In North Carolina, a “death by distribution” law came into effect on December 1st, 2019, which imposes felony convictions on illegal distributors of certain drugs when those drugs cause the death of their users.
While these laws came about in an effort to curb the opioid epidemic, there have been increasing cases where people were faced with homicide charges for just sharing drugs with friends, which has resulted in a great amount of debate about the law’s effectiveness. One key issue with this law is that, unlike previous statues that allowed second-degree murder charges to be leveled against dealers who had the intent to harm the drug user, intent to harm is not required under this statute.
These cases are not nearly as straight-forwards as they may seem, which is why it is critical that you hire an experienced drug defense attorney who can tackle these charges in both state and federal court. The lawyers at Tarlton | Polk have extensive experience handling drug crime cases in state and federal court, as well as assault and homicide cases, so they know how to build an excellent defense against these charges.
Understanding North Carolina Drug Schedules
Drug Schedules dictate the penalties for various drug crimes based on the type of substance involved. In North Carolina, the schedules are determined by the North Carolina Commission for Mental Health, Developmental Disabilities and Substance Abuse Services (NCDHHS). Federally, drug schedules are set by the Drug Enforcement Administration (DEA), typically with review of medical and scientific evidence from the Food and Drug Administration (FDA). Federal drug schedules range from 1 to 5, where schedule 1 substances are considered to have the most potential for abuse and least or no valid medical use. North Carolina drug schedules 1 through 5 are mostly consistent with federal drug schedules, though North Carolina has an additional schedule 6. Schedule 6 in North Carolina is specifically for regulating Marijuana and its main psychoactive compound, THC, which the federal drug schedules currently regulate as schedule 1 substances.
Drug schedules for both North Carolina and the federal government are as follows, with discrepancies noted with an *asterisk:
Controlled substances are designated as schedule 1 if they have been determined to:
- Have high potential for abuse; and
- No currently accepted medical use in the United States, or a lack of accepted safety for use in treatment under medical supervision.
They include: Heroin, MDMA (Ecstasy), Psilocybin (from “Magic Mushrooms”), Mescaline (from Peyote), Dimethyltryptamine (DMT), Methaqualone (“Quaaludes”), Lysergic Acid Diethylamide (LSD), *Marijuana
*Marijuana is a schedule 1 drug federally, but a schedule 6 drug in North Carolina.
Controlled substances are designated as schedule 2 if they have been determined to:
- Have a high potential for abuse; and
- Currently accepted medical use in the united states with severe restrictions; and
- Abuse may lead to severe psychic or physical dependence.
They include: codeine, morphine, oxycodone, fentanyl, methadone, amphetamine, methamphetamine (“Crystal Meth”), cocaine, phencyclidine (PCP)
Controlled substances are designated as schedule 3 if they have been determined to:
- lower potential for abuse relative to substances in schedule II and I
- Currently accepted medical use in the united states
- may lead to moderate or low physical dependence or high psychological dependence
They include: ketamine, anabolic steroids, testosterones, products with more than 90mg of codeine per dosage unit (e.g. Tylenol with codeine)
Controlled substances are designated as schedule 4 if they have been determined to:
- lower potential for abuse relative to substance in schedule III
- Currently accepted medical use in the united states
- may lead to limited physical or psychological dependence relative to schedule III substances
They include: Alprazolam (Xanax), Diazepam (Valium), Zolpidem (Ambien), Flunitrazepam (Rohypnol), some narcotic pain relievers which contain opioid overdose reversal medications (e.g. Talwin which contains Naloxone)
Controlled substances are designated as schedule 5 if they have been determined to:
- Have low potential for abuse relative to schedule 4 drugs
- Currently accepted medical use in the united states
- Limited physical or psychological dependence
They include: preparations that include some amount of narcotics, such as over-the-counter cough syrups with small doses of codeine.
*Federal laws do not have a schedule 6, but North Carolina has it specifically for marijuana and its main psychoactive compound THC.
Schedule 6 drugs in North Carolina have:
- low potential for abuse nor risk to public health
- some potential to produce psychic or physiological dependence
no currently accepted medical use within the United States, or need for further and continuing study to develop the scientific evidence of its pharmacological effects.
There are exceptions where THC is legal in accordance with N.C.G.S § 90-94.1, where extract with THC less than 0.9% and no other psychoactive substances, for the use in treatment of epilepsy. This makes it legal for a patient with such prescription or their caregiver to be in possession of the extract, so long as they follow guidelines for disposal.
Death by Distribution in North Carolina
In North Carolina, a conviction of death by distribution can increase an otherwise low-level felony of Classes I through G up to a class C or B2 felony. There are two kinds of death by distribution charges:
Death by Distribution of Certain Controlled Substances
To be guilty of this charge, all the following criteria must be met:
- The defendant unlawfully sold at least one of certain controlled substances, which include:
- opium opiates, opioids or their synthetic or natural derivatives and preparations
- Cocaine and any of its synthetic or natural derivatives and preparations
- Schedule IV depressants (such as Xanax, Rohypnol or Valium)
- Any mixture of the above substances
- The ingestion of any of these controlled substances caused the death of the user.
- The drug sale offense is the proximate cause of the death of the user (i.e. it is sufficiently related to the death to be the cause of it).
- The defendant did not act with malice (i.e. had no intention of causing the user’s death).
Conviction of this crime is punished by a Class C felony.
Aggravated Death by Distribution of Certain Controlled Substances
To be guilty of this charge, all of the above criteria for standard death by distribution must be met, with the addition that the defendant had a previous serious drug conviction within the last 7 years in North Carolina or any United States jurisdiction. Such prior convictions include:
- Continuing Criminal Enterprise (CCE) and drug trafficking.
- Manufacturing, selling, or delivering controlled substances, or possession wit the intent to do so.
- Employing minors to commit drug law violations or promoting drug sales by minors.
- Death by distribution.
Conviction of this crime is punished by a Class B2 felony.
Federal Penalties for Death by Distribution
In federal law, death by distribution is an additional factor in determining minimum sentencing requirements for drug crimes, which carries significant increases in penalties if convicted. While much of the details of the crime are the same as in North Carolina, one key distinction is that federal law also explicitly criminalizes serious bodily injury caused by drug consumption. In federal law, seriously bodily injury is defined as:
Bodily injury which involves:
- Substantial risk of death
- Protracted and obvious disfigurement
- Protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
In essence, seriously bodily injury should be an injury that could have resulted in death, has directly resulted in obvious disfigurement, or has resulted in permanent or long-term mental or physical disability.
As with federal drug crime penalties, the severity of sentencing accounts for the schedule of drugs involved, quantities or drugs, as well as prior convictions. In any case where the defendant is convicted of causing death or serious bodily injury due to drug sales the penalties are quite severe. The shortest possible sentence is a maximum of 15 years and a fine no more than $500,000 for first time offenses involving a schedule III control substance. The maximum sentence possible, which involves large scale trafficking offenses, prior convictions, and schedule I or II drugs, entails a mandatory minimum life sentence and a fine up to $20,000,000 for individuals or $75,000,000 for non-individuals.
Understanding Concurrent Jurisdiction in Drug Crimes
The federal government has concurrent jurisdiction with all states, which means you can be prosecuted in both federal and state court for the same drug offense. This does not violate the double jeopardy clause in the fifth amendment of the federal constitution, which states that you cannot be prosecuted twice for the same crime by the same sovereign entity. This is because state and federal governments are essentially separate government entities. However, the federal court has the doctrine of preemption, meaning that federal law can impede state law in circumstances where they conflict.
While an offense has potential to be tried in both courts, this does not mean that every state drug offense will reach the federal government, or that a federal charge will also result in state charges. Typically, the federal government and state governments have different priorities for drug enforcement, such as the federal government often looking for bigger cases involving interstate or multi-state operations. However, you should be aware that there still are cases where people face both state and federal prosecution for simple possession offenses. Whether facing state, federal or both charges, it is critical that you contact an attorney skilled at tackling all kinds of drug charges at both a state and federal level. The attorneys at Tarlton Polk have handled many drug cases in state and federal court, so we know how to navigate these complex cases with prowess.
Defending Against Death by Distribution Charges
With death by distribution being a somewhat newer area of law, especially in North Carolina, it carries the many pitfalls of new legislation. These pitfalls can be very harmful to those facing these charges without experienced representation, but by the same token they can be an asset to experienced attorneys who can argue against their weaknesses. A key issue with new laws is that there is not as much precedent set for how it should be interpreted in unusual circumstances, which can happen quite often for these types of cases. As these charges are largely focused on cause of death, rather than the defendant’s intent, the main aspect your attorney can tackle is whether the drugs were the proximate cause of death. While every case is unique and some defenses may work well and others may not, a skilled defense attorney can challenge the following aspects:
Death far Removed from Sale
The North Carolina statute has potential to be used against somebody who made a drug sale to one person, who then sold or shared the drugs with another person or several other people removed from the defendant, until someone eventually died from an overdose. While the sale was the first act that led to a chain of acts that resulted in a death, it could potentially be deemed to far removed from the death for the defendant to be culpable.
Misuse of Drugs
If the victim used the drug in ways that the defendant did not foresee, that may be viewed as an unforeseeable act that caused death, especially if the defendant specifically made different recommendations for how the drugs should be taken. This can especially be the case for drug users who intended to commit suicide, not to the knowledge of the defendant, where it may be argued that it was suicidal intention and not the drugs themselves that was the proximate cause of death.
Alteration or Combination of Drugs
If the victim altered the drugs after purchase or took them with other drugs, it could be argued that this act was both unforeseeable and the reason why they died, and that the defendant’s drug sale was not sufficiently the cause of death. This defense has been upheld by the United States Supreme Court in Burrage v. United States, where a defendant was not found guilty of selling heroin to a user who later overdosed on the heroin as well as oxycodone the user stole from his roommate.
In some cases, it can be recognized that a pre-existing medical condition of a victim that makes them particularly vulnerable to injury can render the harm caused by the defendant to be unforeseeable. However, in North Carolina, this approach is largely rejected in a criminal assault context, such as in cases where an assault caused a fatal heart attack. Whether this defense will have any holding in a death by distribution case in North Carolina is yet to be seen.
Speak with a North Carolina Criminal Defense Attorney
It is important to recognize that not all these approaches are applicable to every case, and misuse of any of the above defenses could harm the credibility of the defense. Our lawyers at Tarlton Polk are skilled at devising the most effective defense strategy and know how to stick to it credibly while still readily adapting to changes as the case develops. If you or a loved one has been arrested for drug possession, you need to begin building your defense immediately, please call us today.