Drug Induced Homicide In

Nevada

In an effort to combat the rising tide of fatalities, many states have implemented Drug Induced Homicide laws to hold drug dealers accountable for the deaths.

Fortunately, Nevada is one of those states. The following is an excerpt from Nevada State Law:

Nev. Rev. Stat. § 200.070 Involuntary manslaughter defined.
Effective: 9/30/06  –  Through: 12/31/18
 

1. Except under the circumstances provided in NRS 484B.550 and 484B.653, involuntary manslaughter is the killing of a human being, without any intent to do so, in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner, but where the involuntary killing occurs in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense is murder.

2. Involuntary manslaughter does not include vehicular manslaughter as described in NRS 484B.657.

Nev. Rev. Stat. § 193.130 Categories and punishment of felonies.
Effective: 9/30/99  –  Through: 12/31/18
 

1. Except when a person is convicted of a category A felony, and except as otherwise provided by specific statute, a person convicted of a felony shall be sentenced to a minimum term and a maximum term of imprisonment which must be within the limits prescribed by the applicable statute, unless the statute in force at the time of commission of the felony prescribed a different penalty. The minimum term of imprisonment that may be imposed must not exceed 40 percent of the maximum term imposed.

2. Except as otherwise provided by specific statute, for each felony committed on or after July 1, 1995:

(a) A category A felony is a felony for which a sentence of death or imprisonment in the state prison for life with or without the possibility of parole may be imposed, as provided by specific statute.

(b) A category B felony is a felony for which the minimum term of imprisonment in the state prison that may be imposed is not less than 1 year and the maximum term of imprisonment that may be imposed is not more than 20 years, as provided by specific statute.

(c) A category C felony is a felony for which a court shall sentence a convicted person to imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 5 years. In addition to any other penalty, the court may impose a fine of not more than $10,000, unless a greater fine is authorized or required by statute.

(d) A category D felony is a felony for which a court shall sentence a convicted person to imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 4 years. In addition to any other penalty, the court may impose a fine of not more than $5,000, unless a greater fine is authorized or required by statute.

(e) A category E felony is a felony for which a court shall sentence a convicted person to imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 4 years. Except as otherwise provided in paragraph (b) of subsection 1 of NRS 176A.100, upon sentencing a person who is found guilty of a category E felony, the court shall suspend the execution of the sentence and grant probation to the person upon such conditions as the court deems appropriate. Such conditions of probation may include, but are not limited to, requiring the person to serve a term of confinement of not more than 1 year in the county jail. In addition to any other penalty, the court may impose a fine of not more than $5,000, unless a greater penalty is authorized or required by statute.

Nev. Rev. Stat. § 200.090 Punishment for involuntary manslaughter.
Effective: 9/30/99  –  Through: 12/31/18
 

A person convicted of involuntary manslaughter is guilty of a category D felony and shall be punished as provided in NRS 193.130.

Nev. Rev. Stat. § 200.030. Degrees of murder; penalties
Effective: 6/30/13  –  Through: 12/31/18
 

1. Murder of the first degree is murder which is:

(a) Perpetrated by means of poison, lying in wait or torture, or by any other kind of willful, deliberate and premeditated killing;

(b) Committed in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years, child abuse or abuse of an older person or vulnerable person pursuant to NRS 200.5099;

(c) Committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the escape of any person from legal custody;

(d) Committed on the property of a public or private school, at an activity sponsored by a public or private school or on a school bus while the bus was engaged in its official duties by a person who intended to create a great risk of death or substantial bodily harm to more than one person by means of a weapon, device or course of action that would normally be hazardous to the lives of more than one person; or

(e) Committed in the perpetration or attempted perpetration of an act of terrorism.

2. Murder of the second degree is all other kinds of murder.

3. The jury before whom any person indicted for murder is tried shall, if they find the person guilty thereof, designate by their verdict whether the person is guilty of murder of the first or second degree.

4. A person convicted of murder of the first degree is guilty of a category A felony and shall be punished:

(a) By death, only if one or more aggravating circumstances are found and any mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstance or circumstances, unless a court has made a finding pursuant to NRS 174.098 that the defendant is a person with an intellectual disability and has stricken the notice of intent to seek the death penalty; or

(b) By imprisonment in the state prison:

(1) For life without the possibility of parole;

(2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 20 years has been served; or

(3) For a definite term of 50 years, with eligibility for parole beginning when a minimum of 20 years has been served.

A determination of whether aggravating circumstances exist is not necessary to fix the penalty at imprisonment for life with or without the possibility of parole.

5. A person convicted of murder of the second degree is guilty of a category A felony and shall be punished by imprisonment in the state prison:

(a) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or

(b) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served.

6. As used in this section:

(a) Act of terrorism has the meaning ascribed to it in NRS 202.4415;

(b) Child abuse means physical injury of a nonaccidental nature to a child under the age of 18 years;

(c) School bus has the meaning ascribed to it in NRS 483.160;

(d) Sexual abuse of a child means any of the acts described in NRS 432B.100; and

(e) Sexual molestation means any willful and lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of the perpetrator or of the child.

Nev. Rev. Stat. § 200.010. “Murder” defined
Effective: 9/30/06  –  Through: 12/31/18
 

Murder is the unlawful killing of a human being:

1. With malice aforethought, either express or implied;

2. Caused by a controlled substance which was sold, given, traded or otherwise made available to a person in violation of chapter 453 of NRS; or

3. Caused by a violation of NRS 453.3325.

The unlawful killing may be effected by any of the various means by which death may be occasioned.

What You Can Do

Let your elected officials know that enough is enough.

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Drug Induced Homicide, Inc.® is registered as a 501(c) nonprofit organization. Contributions are tax-deductible to the extent permitted by law. Drug Induced Homicide, Inc.® 's tax identification number is 85-0772680.

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Our mission is to:

  • Introduce Drug Induced Homicide legislation to Sates that do not currently have this statute.
  • Raise awareness about the effectiveness of criminal investigation and prosecution in reducing deaths related to suspected drug toxicity.
  • Support families of victims who were unlawfully delivered a controlled substance resulting in their death.

Drug Induced Homicide, Inc.® is a registered 501(c) nonprofit organization.

Understanding Drug Induced Homicide Law

From the Attorney General’s point of view.

Read the Brief

For many years, most prosecutors charged only those drug-related deaths involving rival drug gang fights as being homicides. But the focus has now broadened to also examine overdose deaths as prosecutable homicides against those who sold and distributed the drugs causing the overdose. It is important to emphasize that not every death because of a drug overdose is a criminal matter. Some are suicides, and some are simply accidents. But some deaths, legally and ethically, may rise to the level of criminal homicide. These homicides may not be easily discovered, investigated, prosecuted or proven, but they still deserve attention. For that to happen, a paradigm shift in thinking by law enforcement officers and prosecutors is required, away from attitudes focusing on accident to thinking and treating overdoses as homicides.

In order to make that shift, it is important to understand and appreciate the variety of approaches available within existing statutory schemes and case law. While a handful of states have no statutory or case law basis for treating overdose deaths as homicides,[8] the majority already had or have adopted a wide variety of legal theories useful in addressing these cases. Two basic options highlight the differing approaches: use of the existing statutory structure, often referred to as the felony murder rule, and creation of a specific offense of death resulting from the distribution of controlled substances.

What might be characterized as the traditional approach to the matter may be found in those states that have included overdose deaths within their murder statute. Arizona and Oklahoma, among others, list drug offenses as crimes which, when a death occurs during the commission of that offense, is treated as murder.[9] A significant number of states enumerate drug offenses within their murder statutes and, while the laws have been on the books for a considerable time, they are only now being considered for use in overdose cases.

A felony murder statute allows the prosecutor to charge an offense which requires no specific mental state other than that required for the enumerated offense;[10] the law may specifically state that no proof of intent to cause the death is required.[11] In general, proof of the underlying offense and the cause of death will be sufficient to obtain a conviction under this approach. Additional elements, such as proof that the underlying felony must be inherently dangerous to human life,[12] or proof of recklessness in both causation and appreciation or awareness of the risk,[13] may be required in some states.

Where these various felony murder states differ is in their classifications for punishment for the offense. The possibilities range from first degree or capital murder,[14] second degree murder,[15] manslaughter,[16] involuntary manslaughter,[17] and even negligent homicide.[18] They may also limit the application of the statute. For example, Florida’s statute applies only to distribution by an adult,[19] while Colorado’s statute applies only to distribution to a minor on school grounds.[20]

Those states punishing drug dealing resulting in death as a specific offense have adopted a variety of approaches as well. These “drug-induced homicide” statutes are crafted as stand-alone felonies rather than being included in existing murder or other statutes. Again, as with the felony murder alternatives, the treatment of punishment and application may vary. New Hampshire and New Jersey both define the offense as being one of strict liability.[21] Both statutes, mirroring one another, apply to methamphetamine, lysergic acid, diethylamide phencyclidine (PCP), or any other Schedule I and II controlled substances and provides that any person who manufactures, sells, or dispenses the substances in violation of law is strictly liable for a death resulting from their use.

The varieties of these statutes are numerous and diverse. Pennsylvania’s statute applies to any controlled substance and provides that the delivery must be done intentionally.[22] Delaware has imposed a minimum weight threshold to its statute, requiring, for example, that there be delivery of at least one gram or more of heroin.[23] Michigan’s law covers Schedule I and II controlled substances, but specifically excludes marijuana.[24] A recent amendment to the Illinois law allows for prosecution for a death within the state caused by a drug that was delivered outside the state in violation of the law of that other jurisdiction.[25]

For those states, such as California, which have no felony murder or drug-induced homicide statute that would apply to overdose situations, prosecutors are left to cobble together a criminal liability theory using a second degree murder or manslaughter charge with a negligence or reckless element. California might make use of its involuntary manslaughter statute.[26] New York might make use of its statutes regarding criminally negligent homicide (criminal negligence standard) or manslaughter in the second degree (reckless standard).[27] A bill to amend Ohio’s involuntary manslaughter statute to include causing or contributing to the death of a person as a result of the sale, delivery, or administration of a controlled substance and making it a strict liability offense was introduced but has languished since 2016.[28]

Regardless of the criminal statute scheme, one element is the lynchpin to the crime: causation. Whether a felony murder, strict liability, or reckless or negligent theory, causation raises perhaps the most difficult issues in proving these cases.

Overdose cases have a number of matters that may cause the prosecutor some concern, from lack of sympathy for the victim to proving who provided the drugs. On top of these, many of the victims in overdose death cases are polysubstance abusers, injecting or ingesting a wide variety of both legal and illegal substances. Further, because of their drug addictions, their overall general health may be compromised, making them susceptible to diseases and conditions which might impact the situation leading to their deaths. It becomes imperative for the prosecutor to understand what is needed to prove regarding causation.

States have enumerated a variety of different legal standards for causation of death; “direct result,” “caused by,” “proximately caused,” and “results from” being the more common. Also included are “recklessly causes” and “more likely than not.” Each standard has its own legal ramification. It is important to note, however, that the analysis of proximate causation in tort law is quite different from that analysis applied in criminal law. Mere negligence may suffice in a personal injury case, but not in a criminal matter where gross or wanton disregard is needed to show criminal negligence.

In those states making use of a result-oriented scheme, states may follow the reasoning set forth in the leading federal case on the issue, Burrage v United States.[29] Burrage was prosecuted under the provisions of 21 U. S. C. § 841(b) (1) (C) which provides for punishment in the event that “death or serious bodily injury result[ed] from the use of [the drug].” In Burrage, long-time drug user Banka died following an extended binge that included using heroin purchased from Burrage. At trial, medical experts testified that Bank might have died even if he had not taken the heroin Burrage provided. Denying a motion for judgment of acquittal, the trial court instructed the jury that the government only had to prove that heroin was a contributing cause of death. The U.S. Supreme Court looked at both actual and proximate cause, holding that, at least where the use of the drug distributed by Burrage was not an independently sufficient cause of the victim’s death, he could not be held liable unless such use is a “but-for” cause of death. Thus, under Burrage, a particular drug causing a contributory effect to death is not sufficient to create criminal liability.

This narrow approach to causation makes it especially important that the medical examiner and toxicologist both be consulted prior to initiating a prosecution. Beyond the issue of whether the death is an accident versus a homicide, the medical examiner and toxicologist must understand the legal requirements and what ultimately may be asked of them during testimony in homicide prosecutions such as these. The prosecutor must also understand the distinctions and potential nuances in the medical examiner’s stated cause of death.

Even under a felony murder scheme, often seen as a strict liability situation, causation may still be required. For example, the sole act of selling heroin to a purchaser, who, voluntarily and out of the presence and without the assistance of the seller, subsequently injected heroin and died as a result, may be insufficient to invoke the felony murder rule. In order to convict of felony-murder, it may be necessary in some jurisdictions to show that the conduct causing the death was done while in the commission of a felony or in furtherance of the design to commit the felony.[30] Thus, if the commission of the felony is completed upon the sale, a felony murder charge cannot stand. Nor may the result causation element be ignored even in the strict liability situations. These statutes may still contain a result oriented causation requirement.[31]

Thus, even when not specifically enumerated in the statute, causation remains an essential element. For example, where manufacturing or delivering a controlled substance is the underlying felony relied upon in a felony murder prosecution, the state might still be required to prove (1) the commission or attempt to commit the felony; (2) the defendant’s participation in such felony; and (3) the death of the victim as a result of injuries received during the course of the commission or attempt.[32] Furthermore, the cause of death might not necessarily be the sole cause of death.[33] And where the medical examiner has found that the ingestion of the drug was not the sole cause of death, the prosecutor will face an additional legal hurdle. Thus, in order to make the shift to treating overdose deaths as homicides, it is imperative that investigators and prosecutors find not only the correct legal scheme under which to proceed, but also be mindful of the causation element embedded in a statute or required by a jurisdiction’s case law.

Prosecuting overdose deaths as homicides will not be the silver bullet to the public health crisis this nation faces. However, it is one tool in the law enforcement arsenal which, if used appropriately, can assist locally in focusing on the drug dealers who take advantage of those who have become addicted to opioids.

 

Sources and Works Cited

[1] Ctrs. for Disease Control, Provisional Counts of Drug Overdose Deaths

[2] Illicit Drug Use, Illicit Drug Use Disorders, and Drug Overdose Deaths in Metropolitan and Nonmetropolitan Areas

[3] The First Count of Fentanyl Deaths in 2016: Up 540% in Three Years

[4] The Heroin Epidemic: Then and Now

[5] Heroin Use Rises Significantly Among Young Whites

[6] Why Fentanyl Is So Much More Deadly than Heroin

[7] Counterfeit Prescription Pills Containing Fentanyl: A Global Threat, DEA Intell. Brief

[8] The offense of trafficking a controlled substance by possession with intent to distribute cannot be the predicate felony to a felony murder conviction because it is not an inherently dangerous crime. State v. Bankert, 117 N.M. 614, 975 P.2d 370 (1994).

[9] Ariz. Rev. Stat. § 13-1105 and 21 Okla. Stat. Ann. § 21-701/7.

[10] Alaska Stat. § 11.41.120.

[11] Minn. Stat. § 609.195.

[12] Ga. Code Ann. § 16-5-1.

[13] Iowa Code § 707.5.

[14] See, e.g., Ariz. Rev. Stat. § 13-1105, Ga. Code Ann. § 16-5-1.

[15] La. Rev. Stat. Ann. § 14:30.1, Mo. Rev. Stat. § 565.021.

[16] Mass. Gen. Laws Ann. Ch. 265, § 13.

[17] Nev. Rev. Stat. § 200.070.

[18] Mont. Code Ann. § 45-5-104.

[19] Fla. Stat. § 782.04(1(a)3.

[20] Colo. Rev. Stat. § 18-3-102(e).

[21] N.H. Rev. Stat. Ann § 318-B:26; N.J. Rev. Stat. § 2C:35-9.

[22] Tit. 18 Pa. Cons. Stat. Ann. § 2506.

[23] Del. Code Ann .tit 16 § 4752B.

[24] Mich. Comp. Laws Ann. § 750.317a.

[25] 720 Ill. Comp. Stat. 5/9-3.3.

[26] Cal. Penal Code § 192.

[27] N.Y. Penal Law §§ 125.10, 125.15.

[28] H.B. 141, 132nd General Assembly.

[29] 134 S. Ct. 881 (2014).

[30] See State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974)

[31] N.J. Rev. Stat. § 2C:35-9

[32] See., e.g., State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983)

[33] See State v. Jenkins, 229 W.Va. 415, 729 S.E.2d 250 (2012)