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Overdose Death Investigations: Criminal Defense Considerations – Can the Prosecution Make Their Case?

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Fentanyl is fueling more and more law enforcement investigations and criminal prosecutions in Texas for many things including, obviously, felony charges for drug trafficking and money laundering.  However, more and more often prosecutors are looking to find ways to charge the accused for a death caused by overdoses involving fentanyl, either used alone or with other drugs such as Tranq.  See, Xylazine or Tranq: Zombie Drug is New Focus for Drug Arrests in Texas.

It’s not just Texas; finding ways to charge someone for an overdose death is a growing national effort. Some have statutes to use.  In the past few years, more and more states have passed drug-induced homicide (“DIH”) statutes.

In 2023, both Congress and the Texas Legislature are considering new criminal statutes that will make fatal fentanyl overdoses a formal homicide charge.  If this legislation becomes law, then it will be the first drug-induced homicide law available to prosecutors in the Lone Star State.  It will be a new tool for them to use.  For more, read our discussion in: Drug-Induced Homicide Prosecutions In Texas: Overdose Murders.

However, the lack of a DIH law here in the Lone Star State is not barring our AUSAs and local district attorneys from trying to tie an overdose death to a criminal charge for the person who supplied the fatal drug that resulted in the person’s demise.

Both state and federal prosecutors already have strategies promoted as ways to hold drug distributors criminally responsible for deaths caused by an illegal drug overdose.  Here in Texas, going after cartel operations in drug trafficking is a top priority.  See, Texas Governor’s Designation of Mexican Cartels As Terrorist Organizations: Criminal Defense Perspective.

The reality, from a criminal defense lawyer’s standpoint, is that while these efforts are designed to go after cartel operations and major drug traffickers, they are not doing so in many instances.  All too often, overdose death charges are being filed against people who were friends, family members, boyfriends, girlfriends, teammates, or fellow students who are heartbroken over the death of their lost loved one.  For all defendants, but especially the latter, it is very important to know the high hurdles the government must face with an aggressive criminal defense.

For more, see: “‘Fentanyl is killing our kids:’ Dallas-area drug prosecutions surge,” written by Bethany Blankley and published by The Center Square on March 27, 2023.

Fentanyl Seen as a Poison by DEA: Prosecution Strategy to Charge for Overdose Deaths

Why is this happening?  For one reason, fentanyl is recognized as a killer; many people who use fentanyl are risking serious bodily injury or death by doing so.  This is because fentanyl is so potent and powerful when even miniscule amounts enter the human body. To learn more, see: Carfentanil, Fentanyl Analogues, Heroin, China, the Police, and Felony Arrests and Fentanyl and Heroin Here in Dallas: Dangers of Arrest and More.

From United States Drug Enforcement Administration Administrator Anne Milgram:

“Fentanyl is the single deadliest drug threat our nation has ever encountered. Fentanyl is everywhere.  From large metropolitan areas to rural America, no community is safe from this poison.  We must take every opportunity to spread the word to prevent fentanyl-related overdose death and poisonings from claiming scores of American lives every day.”

Accordingly, law enforcement agencies at both the state and federal levels have developed tactics to try and bringing overdose death charges when they believe they can show the accused is tied to the decedent who died as a result of fentanyl ingestion (or another serious drug).   It is recognized public policy as one more way to try and combat the growing drug market here in Texas and elsewhere in the United States originating with multi-national cartel operations.  Read, “Overdose Death Investigations Challenge DEA Agents to Bring Justice,” written by the DEA St. Louis Division – Public Information Office and published by the Drug Enforcement Administration on February 8, 2023.

Each of these overdose death cases begin at the crime scene.  Criminal defense efforts also begin here, in a review of the steps undertaken from the discovery of the overdose death to the arrest and charge of the accused.

Search and Seizure at Drug Overdose Scene Includes Focus on Possible Overdose Death Charges

As the DEA article explains, while an overdose investigation may begin with a 911 call seeking emergency medical help, other first responders at the scene will include someone from the county coroner or medical examiner’s office as well as law enforcement officers (e.g., police, sheriff’s deputies, federal agents, etc.).   These are complex inquiries.

According to the DEA, the time from accumulation of evidence at the crime scene to bring criminal charges can take years, “…depending on how far up the drug supply chain we can take the case.”  They report an average time span of two years in these overdose death cases from initial investigation at the scene to making their arrests.

Crime Scene Investigation by Medical Examiner

Another important complexity here is the involvement of the medical examiner.  Here in Texas, there are 24 offices in the State of Texas for coroners and medical examiners.  In our local area, these include the Medical Examiner’s Office for Dallas County; the Tarrant County Medical Examiner’s Office; and the Collin County Medical Examiner’s Office in McKinney, Texas.

In these illegal drug overdose cases, it is important to remember that the medical examiner (unlike on some television shows) is legally mandated by state law to undertake their own independent and scientific investigation of the scene where a dead body is located.  Texas Code and Criminal Procedure §49.25, Subsection B.

Their responsibilities include not only confirming the identity of the decedent, but performing the necessary steps and procedures to determine not only the cause but the manner of death.  Personnel from the Medical Examiner’s Office may be at the scene of an overdose death here in Texas, working side by side with police officers or sheriff’s deputies, but having their own separate job to do.

Criminal defense work will, accordingly, involve a complete and thorough investigation into what happened with law enforcement at the crime scene and its resulting overdose death investigation.  In tandem with this will be defense efforts to study and evaluate everything done by the Medical Examiner’s Office and the resulting formal findings.

Fentanyl Overdose is Treated as Poisoning Death

Under the law, prosecutors will seek to charge for fentanyl overdoses not as a standard murder charge, like can happen after a shooting where weapons charges likely will also be filed.

Overdose deaths are considered to be poisoning deaths.  Most of the evidence filling the government’s files will be circumstantial evidence since the decedent cannot testify as to the source of the drug that “poisoned” the victim.  The fatal drug must be tied by authenticated and admissible evidence to the accused when any overdose death charge is brought by the state district attorney’s office or the AUSA.

Lesser Charge of Distribution with Long Prison Sentence

Criminal defense lawyers must be ready to defend against charges based upon the Controlled Substances Act, where distribution of a drug that can be shown to have resulted in death can get a sentence of twenty (20) years or more upon conviction.   Why a distribution charge?  It is easier for the government to make this case.  It provides for an enhanced sentence if death can be connected.  And, there is no element to prove that the accused had any intent to kill the decedent.  Intent has to be shown in any murder allegation.

By way of comparison, consider the May 2023 criminal case where widow Kouri Richins has been charged under Utah state law with both (1) aggravated murder and (3) three counts of possession of a controlled substance with intent to distribute in connection with her husband’s death.  Here, prosecutors are seeking murder charges where fentanyl was allegedly put in the decedent’s beverage by the accused with the intent to cause his death.  The state has also filed distribution charges.  The defense is challenging the viability of the murder charge, among other things, but the case proceeds where the prosecution is arguing there is evidence of intent to be proven.  Read, “Utah author and murder suspect Kouri Richins denied bail, poses ‘substantial danger,’ judge rules,” written by Kolbie Peterson and published in the Salt Lake Tribune on June 12, 2023.

Burden of Proof on the Prosecution in Overdose Death Case: Burrage’s “But For”

In any illegal drug overdose involving fentanyl, heroin, tranq, or another controlled substance, the law is clear that the government has the burden to prove up each element of the charges beyond a reasonable doubt.  Key in overdose death cases is the element of causation.

Causation: “But For” Must Be Proven by the Prosecution – SCOTUS

In an overdose death case, the prosecution must show that if the criminal act of the accused had not taken place, then the harm (death) would not have happened.  Or, “but for” the acts of the accused, the decedent would not have died.  This has to be done with so much evidence that it is shown beyond a reasonable doubt.  Burrage v. United States, 571 U.S. 204, 134 S. Ct. 881, 187 L. Ed. 2d 715 (2014).

As Justice Scalia explains in the Burrage majority opinion:

The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.” 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012 ed.). We consider whether the mandatory-minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury.

Burrage, 134 S.Ct. at 884.

The High Court held (9-0) as follows:

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. Id. at 892.

What happened in Burrage?

In Burrage, the overdose death was that of Mr. Joshua Banka, described in the opinion as “a long-time drug user” who died “following an extended drug binge.”  The evidence showed that Mr. Banka smoked marijuana in the morning; ingested stolen oxycodone in the afternoon; and then injected heroin purchased from Marcus Burrage at least two, and possibly three times, during the remainder of the day.

His wife found him “…dead in the bathroom and called 911. A search of the couple’s home and car turned up syringes, 0.59 grams of heroin, alprazolam and clonazepam tablets, oxycodone pills, a bottle of hydrocodone, and other drugs.”

At trial, it was not a secret that Marcus Burrage was a drug dealer who made money selling heroin.  The government put two medical experts on the stand who testified that “…multiple drugs were present in Banka’s system at the time of his death, including heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone.”  One expert testified that the heroin “was a contributing factor” in Banka’s death.  The state Medical Examiner opined that the cause of death was a “mixed drug intoxication” with “heroin, oxycodone, alprazolam, and clonazepam all playing a “contributing” role. “

At the trial level, the prosecution won a conviction against Marcus Burrage for causing Joshua Banka’s death.  The case was appealed up to the United States Supreme Court.

The High Court reversed the lower court’s decision.  The flaw?  There was not enough proof of causation in the prosecution’s case.

By the prosecution’s own expert testimony, and that of the Medical Examiner, the heroin was not the sole cause of Mr. Banka’s death.   He died after taking several different (and illegal) drugs.

The heroin was in Mr. Banka’s body, but it was not the only illegal drug ingested; therefore, it was not the sole reason for his demise.  The government could not show that “but for” Mr. Burrage’s providing heroin to Mr. Banka, he would not have died.

Causation Defense in Overdose Death Cases

The Burrage case is very important for all criminal defense cases where the accused is facing overdose death charges.  Experienced criminal defense lawyers will explain that not only is this true from a legal perspective, but it is also true from a factual viewpoint.

Legally, if the prosecution (as well as the independent Medical Examiner) cannot confirm that “but for” the specific drug shown to have been given to the deceased by the accused, there would not have been a death, then the causation element cannot be proven by the state.

Factually, in Texas today, most drugs are mixed with other drugs before they are sold to the consumer.  Fentanyl is commonly mixed with tranq, for instance. Those deciding to use these drugs may well combine them with alcohol or other drugs with the combination proving to be deadly.  Sifting out all these drug combinations is a difficult evidentiary task for the prosecution.

Due Process Concerns with Drug-Induced Homicide Charges

Another criminal defense consideration:  the constitutional implications.  Whenever a prosecutor decides to press criminal charges after a drug overdose death against someone who allegedly provided drugs to the decedent, there must be a criminal defense consideration of the due process protections involved in the matter.

Aside from possible challenges to searches and seizures at the crime scene and during the course of the investigation, there are other constitutional protections to ponder in these matters.

Does the accused have a constitution right to due process that has been ignored when someone is seeking imprisonment based upon death without any showing of intent?  Criminal intent or “mens rea” is known even to the local law student as a cornerstone protection in any homicide case.  See, Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994).

When there is an overdose death conviction in Texas without any evidence beyond a reasonable doubt that the accused intended for the deceased to die, then how can mens rea be shown?  And isn’t this arguably a violation of longstanding due process protections under both state and federal constitutional law?

Defending Overdose Murder or Drug-Induced Homicide Charges

When someone dies after ingesting fentanyl, heroin, or any other drug, law enforcement investigations may lead to several felony charges being brought against the person who allegedly provided the drug that caused the death.

While zealous investigations into fentanyl are being pursued here in Texas as a means to fight against cartel drug trafficking operations, all too often these overdose fatalities end up with someone arrested who is not a professional drug dealer or anyone with direct ties to any cartel.  The person charged with causing the overdose death may well be someone who knew and cared about the decedent, and is grieving their passing.

Distribution charges connected with a death can result in extended sentencing ranges under both state and federal law (where the United States Sentencing Guidelines will apply).  See, Fentanyl Charges Under Federal Law: Felonies and Range of Sentencing Mandatory Minimum Penalties in Federal Sentencing; and Federal Sentencing for Drug Couriers and Drug Mules.

Currently with existing drug distribution statutes, and in the future when the pending felony overdose murder laws are effective, an experienced and dedicated criminal defense will be extremely important in effectively advocating for the accused.

For more, read:


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “TOP 10 THINGS TO KNOW WHEN DEFENDING TEXAS CHARGES OF MANUFACTURE OR DELIVERY OF AN ILLEGAL SUBSTANCE.”

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