Can I Be Charged with Murder for Fentanyl Overdoses?

Could you be charged with murder for fentanyl overdoses? Manslaughter?

What if you didn’t give the person the drugs, but you tried to save their life by calling the authorities? Will they take you to jail because you were there when the person overdosed?

You cannot be charged with murder in SC based on fentanyl overdoses unless you intentionally gave them the drug to kill them. You might be charged with manslaughter, however, and, if you are charged in federal court, your potential sentence can increase significantly based on the death.

If you are facing charges for drug possession, drug trafficking, or drug distribution, or if you were present when someone overdosed and you fear you will be charged criminally, talk to a Myrtle Beach criminal defense lawyer as soon as possible – before you make any statements to law enforcement.

If you contact me by phone or email, I will set up a free initial consultation to discuss your case with you.

Fentanyl Overdoses in Myrtle Beach, SC

Heroin and fentanyl overdoses have become an epidemic in Myrtle Beach and Horry County in recent years, and are still happening on a regular basis:

Myrtle Beach police responded to multiple drug overdose calls during a six-hour span on Tuesday night as the number of overdose deaths in Horry County continues to trend upward.

According to Myrtle Beach police data, between 5 p.m. and midnight officers responded to three separate drug overdose calls.

There were 130 overdose deaths (not counting all the overdoses where the person survived) in Horry County in 2018, and 2019 looks like it will have similar numbers:

Between November 2018 and January 2019, there were 29 overdose deaths, according to the Horry County Coroner’s Office. That is up from 20 from November 2017 to January 2018 and 26 in the same 2016-17 period… there were about 130 overdose deaths in Horry County in all of 2018.

County officials are obviously aware of the problem, they are aware that the public is watching them, and they are aware that a failure to address the problem may be an issue when voters go to the polls.

Also, people are angry. They are angry that their wives, husbands, children, and neighbors are dying from fentanyl overdoses, and they are wondering why drug dealers who provide the deadly dose of fentanyl are not facing murder charges…

Will I Be Charged with Murder if Someone Overdoses on Fentanyl?

Murder in SC is when you kill another person with malice aforethought, which could mean:

  • You intended to kill them;
  • You intended to cause them serious bodily harm;
  • You had a reckless indifference to the value of human life; or
  • You intended to commit a felony or someone died during the commission of a felony.

Although some would say that the use of heroin or fentanyl shows a reckless indifference to the value of human life, I think this would be a hard sell to a jury and should not be permitted by the courts. Fentanyl overdoses just do not fit the definition of murder.

If you give someone a dose of fentanyl with the intention of killing them, just as sure as if you give someone arsenic with the intent to kill them, that’s malice aforethought. It would also be difficult bordering on impossible to prove that you intended to kill the person, but, theoretically, a murder case could be brought if there is evidence of your intent to kill.

The SC Attorney General’s Office recently obtained a murder indictment from the statewide grand jury based on a fentanyl overdose:

Shiv Tailor was indicted by the State Grand Jury for murder in the death of Bradley Brunson. Brunson died from an overdose of fentanyl on November 23, 2018.

Tailor was also charged with trafficking and distributing heroin, distribution of fentanyl among other charges.

My guess is either there was evidence of an intent to kill Brunson, or the Attorney General has decided to experiment with Tailor’s case to see if the courts will allow a murder charge to go forward.

If the state can’t charge someone with murder for fentanyl overdoses, what can be charged?

Can Fentanyl Overdoses Result in Manslaughter Charges?

While murder charges are not likely for fentanyl overdoses in SC, you can be charged with involuntary manslaughter.

Voluntary manslaughter requires: 1) an unlawful killing, 2) in the sudden heat of passion, and 3) upon sufficient legal provocation – it does not fit the facts of an ordinary fentanyl overdose case.

Fentanyl Overdoses can Result in Involuntary Manslaughter Charges in SC

Involuntary manslaughter requires: 1) an unintentional killing, 2) without malice, 3) while engaged in an unlawful activity that does not naturally tend to cause death or great bodily harm.

Although it is arguable whether using heroin or fentanyl naturally tends to cause death or great bodily harm, prosecutors can and do bring charges for involuntary slaughter for fentanyl overdoses, at least until the appellate courts or trial judges tell them they can’t.

That’s not good enough for many prosecutors, because the maximum sentence for involuntary manslaughter in SC is five years in prison when they would much rather charge the dealer with an offense that carries 30 to life, like murder.

bill pending in the SC legislature would expressly allow prosecutors to charge a drug dealer with involuntary manslaughter if a person they sell drugs to dies from an overdose. The bill would also increase the potential sentence for involuntary manslaughter to 15 years.

Why doesn’t that make sense? The five-year cap for involuntary manslaughter is fair – involuntary manslaughter is nothing more than an accidental death that happens while engaged in unlawful activity. Fentanyl overdoses, for the most part, are also accidental deaths – but society tends to think that the drug dealer is more culpable than in other types of accidental deaths.

Pass a law that makes it a separate crime to provide drugs to a person who overdoses, and assign an appropriate sentencing range for that crime – that makes more sense than giving judges the option of a 15-year sentence for other types of accidental deaths…

Can I Be Charged with Murder in Federal Court for a Fentanyl Overdose?

The headline says: “Feds prosecuting fentanyl overdose deaths as homicides in crackdown on opioid dealers.”

It’s misleading, at best.

Fentanyl overdoses are not prosecuted as murder in federal court. If you are convicted of distribution, trafficking, or conspiracy to traffic fentanyl or heroin in federal court, however, and if death or great bodily injury resulted from your product, the federal sentencing guidelines provide a mandatory minimum sentence of 20 years.

The sentences, based on the sentencing guidelines and circumstances of each individual case, vary from the minimum 20 years to the equivalent of life sentences.

Will I Be Charged with a Crime for Helping an Overdose Victim?

Why is it a terrible idea to tell the public you are going to charge them with murder for fentanyl overdoses?

Because more people will die… If you are threatening to charge people with murder, an overdose victim’s acquaintances are more likely to scatter and disappear than to call for an ambulance, administer Narcan, or try to save the person’s life.

Which is why it is important to know that SC has a “good Samaritan” law. SC Code Section 44-53-1920 provides limited immunity from prosecution for any person who helps an overdose victim, including immunity for:

  • Dispensing or delivering a controlled substance when it was delivered to the overdose victim;
  • Possession of a controlled substance;
  • Possession of paraphernalia; and
  • Sale or delivery of paraphernalia when it was delivered to the overdose victim.

Murder and involuntary manslaughter are not listed, though. If you stay and help someone and they live, you have immunity only from the listed offenses. If you stay and help someone and they die, however, you could be charged with murder or involuntary manslaughter.

To receive immunity from SC’s good Samaritan law, the person “must use his or her own name when contacting authorities, fully cooperate with law enforcement and medical personnel, and must remain with the individual needing medical assistance until help arrives.”

SC Criminal Defense Lawyer in Myrtle Beach

Daniel A. Selwa is a criminal defense attorney in Myrtle Beach, SC.

Call now at (843) 492-5449 or send an email for a free consultation to discuss your case and how we can help.

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