Holding Dealers Criminally Liable for Drug Deaths

According to the National Center for Health Statistics at the Center for Disease Control and Prevention, more than 70,200 Americans died from drug overdoses in 2017, which represented a two-fold increase in a decade. The sharpest increase occurred among deaths related to fentanyl and fentanyl analogs (other synthetic narcotics) with more than 28,400 overdose deaths.1

“Death by distribution” is the title of the new class C felony offense in North Carolina which holds sellers of illicit controlled substances criminally liable for any resulting deaths caused by the controlled substances. (G.S. 14-18.4(b))

“Malice” or the intent to do injury to another party is not required. So any illegal sale of a controlled substance which is the proximate cause of death can be prosecuted under this statute. This would include accidental overdoses as well as deaths resulting from toxic cutting agents.

The controlled substances include opiates, cocaine or methamphetamine and also “depressants.” The illegal sale of benzodiazepines such as Klonopin and Ativan, fall within the list of banned prescription controlled substances.

Class C felonies are punishable by a minimum of 44-182 months of incarceration. If the dealer has a prior narcotic conviction for sale, possession for sale or trafficking, then aggravated penalty of 94-393 months as a Class B-2 felony applies.

A person commits this offense if the following elements are satisfied:
• The person unlawfully sells at least one “certain controlled substance;”
• The ingestion of the certain controlled substance or substances causes the death of the user;
• The sale of the certain controlled substance is the proximate cause of the victim’s death; and
• The person did not act with malice.

A “certain controlled substance” is any of the following:
• Any opium, opiate, or opioid;
• Any synthetic or natural salt, compound, derivative, or preparation of opium, opiate, or opioid;
• Cocaine or any other substance described in G.S. 90-90(1)(d);
• Methamphetamine;
• A depressant described in G.S.90-92(a)(1); or
• A mixture of one or more of these substances. (G.S. 14-18.4(b))

1. 47,600 deaths were due to opioids including prescription opioids (and methadone), heroin and other synthetic narcotics (mainly fentanyl).
17,029 deaths were due to prescription opioids in combination with synthetic narcotics (mainly fentanyl)
15,482 deaths involved heroin alone and in combination with other synthetic narcotics (mainly fentanyl) and without other synthetic narcotics.
10,333 deaths involved methamphetamine and other psychostimulants.
13,942 deaths involved cocaine and any opioid, cocaine without any opioid, and cocaine and other synthetic narcotics.
11,537 deaths were due to benzodiazepines and any opioid, benzodiazepines without any opioid, and benzodiazepines and other synthetic narcotics.