Drug overdose deaths are prosecuted under both New York State and federal law. As prosecutors are increasingly treating these overdose cases as homicides, there is a push to hold someone criminally responsible for these deaths. Oftentimes, it is other addicts and not just drug dealers who are criminally prosecuted for these fatalities.

Therefore, if anyone in your social circle recently had a fatal or a non-fatal overdose, and if you may potentially be involved, it is wise for you to retain criminal counsel. Countless individuals have been prosecuted for narcotics distribution, manslaughter and criminally negligent homicides simply for sharing the drugs with their friends.

Federal Laws for Overdose Death Cases

Under Controlled Substances Act of 1986, any distribution or sale of a controlled substance that results in death or a serious physical injury is punishable by a sentence of 20 years to life. This charge is codified in 18 U.S.C. Section 841.

18 U.S.C. Section 841 prohibits:

  • Manufacturing,
  • Distribution,
  • Dispensation,
  • Possession with intent to manufacture, distribute, or dispense

a controlled substance. Importantly, the definition of “distribute” is the delivery of a controlled substance to the ultimate user. As the definition does not specify whether the distribution must be in exchange for anything of value i.e. cash, it also applies to giving the drugs to someone. Thus, distribution also covers purchasing of a controlled substance and sharing it with someone, like your friend or significant other. Thus, even if you did not distribute the drugs for money, you can be prosecuted for someone’s overdose death if you were the one who gave them the drugs.

Sentencing and Penalties for Overdose Deaths under 18 U.S.C. 841

The sentencing on federal cases is controlled by U.S. Sentencing Guidelines, which have formulas for calculating someone’s score, which converts into months of incarceration, called the Guidelines range. Since 2009, the Guidelines have been advisory, rather than binding on the judges in imposing the sentence. The guidelines serve as the starting point for the Judge’s analysis, but the ultimate sentence can be lower or greater than the guidelines based on the factors set forth in 18 U.S.C. 3553.

For drug cases, the sentencing guidelines are mainly controlled by:

  • The type of the controlled substance,
  • The weight of the controlled substance,
  • Whether the distribution results in death or serious physical injury.

Additionally, these factors have to be taken into account when calculating someone’s sentencing range:

  • Any applicable enhancements or reductions,
  • Departures or variances,
  • Individual’s criminal history.

If you are seeking to calculate your federal guidelines on a case, the easiest way to do so is to schedule a consultation.

New York State Laws for Overdose Death Cases

Under New York State law, overdose deaths have been prosecuted under either Manslaughter in the Second Degree or Criminally Negligent Homicide charges. Manslaughter in the Second Degree charge requires a reckless disregard of a substantial risk of death or serious bodily harm. Criminally Negligent Homicide charges require that the act be done with criminal negligence, or ignorance of a known or obvious risk, or disregard of the life and safety of others.These charges and their penalties are explained in more detail below.

Manslaughter Prosecutions for Overdose Death Cases

In New York, fatal overdoses are frequently prosecuted under the Manslaughter in the Second Degree statute. This charge is codified in New York Penal Law Section 125.15(1). Under New York Penal Law Section 125.15(1), a person is guilty of Manslaughter in the Second Degree when S/he recklessly causes the death of another person.

Sentencing and Penalties for New York Manslaughter in the Second Degree

Under New York Law, Manslaughter in the Second Degree is a Class “C” Non-Violent Felony. This charge is punishable by:

  • Maximum of up to 5 to 15 years in prison,
  • Minimum of 1 to 3 years in prison.

Criminally Negligent Homicide Prosecutions for Overdose Death Cases

Another New York charge that applies to drug overdose deaths is Criminally Negligent Homicide. This charge is codified in New York Penal Law Section 125.10. Under New York Penal Law Section 125.10, a person is guilty of Criminally Negligent Homicide when, with criminal negligence, he causes the death of another person.

Sentencing and Penalties for New York Criminally Negligent Homicide

New York Criminally Negligent Homicide is a Class “E” Felony. Under New York Law, this charge is punishable by:

  • An indeterminate sentence up to 1 1/3 to 4 years in prison;
  • A determinate sentence up to 1 year in jail;
  • A split sentence (up to 6 months jail, rest of time on probation);
  • Probation;
  • Conditional discharge (with the conditions imposed by the sentencing court);
  • Unconditional discharge (no sentencing conditions imposed).

Pending New York State Legislation for Overdose Deaths

In 2018, legislation called Laree’s Law (S2761) was introduced in New York State Senate. This legislation seeks to add Section 125.24, titled Homicide by Sale of an Opiate Controlled Substance to the New York Penal Law. This legislation seeks to hold heroin dealers accountable for fatal overdoses resulting from the sales of their product.

Under the proposed text of Penal Law Section 125.24, an individual would be guilty of Homicide by Sale of an Opiate Controlled Substance when:

  1. S/he unlawfully transports by importing into the state or transporting within the state from one county into another, or unlawfully transports by importing into the state or transporting within the state from one county into another, or unlawfully sells,
  2. An opiate controlled substance, AND
  3. Such substance causes the death of another person.

This proposed overdose charge would be an A-1 felony, punishable by 15 to 25 years. The proposed Laree’s Law, as written now, exempts other drug users from prosecution. The charge specifically states that it is an absolute defense to prosecution when the opiate was jointly and simultaneously acquired and possessed for joint use with the deceased, with intent to jointly inject, inhale or otherwise ingest such opiate controlled substance.

Defenses to Criminal Overdose Cases

Mixed Toxicology

Under federal law, the Government is required to prove that the distributed drug was the “but for” cause of someone’s death. Oftentimes, overdose deaths involve mixed toxicology results, meaning that there are multiple substances in the decedent’s system.

Under the precedent from a 2013 Supreme Court case, Burrage v. United States, the Government is required to prove that the drug you are charged with distributing wasn’t just a contributory cause of death. Rather, the Government is required to prove that “but for” the drug you distributed, the decedent wouldn’t have passed away.

Mixed toxicology may be a viable defense when the autopsy shows multiple substances in the decedent’s system. For example, a combination of heroin, fentanyl, anti-depressants, and alcoholic beverage may make it difficult for the medical examiner to definitively say that it was the heroin and fentanyl which caused someone’s overdose death. If that is the case, you may have a viable mixed toxicology defense. If the Government cannot prove beyond a reasonable doubt that the heroin laced with fentanyl was the “but for” cause of the decedent’s death, the death enhancement cannot apply.

Importantly, without the death or serious physical injury enhancement, based on the charge, it is quite possible that the sentencing range for narcotics distribution will be 0 to 20 years, rather than 20 to life. In those cases, it is possible to get probation if the quantity of the drugs distributed is minimal.

Multiple Sources of Drugs

Frequently, individuals obtain controlled substances from multiple sources. In order for you to be convicted of causing an overdose death, as a death enhancement to federal distribution charges, or through criminally negligent homicide or manslaughter charges, your drugs must be the drugs that cause the overdose.

Thus, if there is evidence showing that the decedent purchased narcotics from multiple sources, you may have a causation defense. That is, the government cannot prove that the drugs that caused the fatal overdose came from you. It is essential that you do not held the Government in any way make their case against you. This is why it is essential to retain a criminal defense attorney as soon as you find out that you are under investigation. You should not be speaking to the police or volunteering any information to help the Government build their case against you.


Although not a defense, cooperation may be a viable strategy for your overdose death case. Law enforcement and federal prosecutors are interested in developing their cases upward. Meaning, they are interested in figuring out who the large-scale distributors are and prosecuting those individuals.

Cooperation may not be a viable option for some individuals. Before agreeing to cooperate, many things need to be considered and discussed with your criminal defense attorney. However, if you’re comfortable cooperating, you may have a way to get a sentence below the mandatory minimum through getting a 5K1.1 letter from the Government, along with a 3553(e) motion, which allows the sentencing Judge to go below the mandatory minimum for your sentence.

Contact New York Overdose Death Criminal Defense Attorneys

If you or your loved one has been arrested and charged for narcotics distribution that led to an overdose death, or manslaughter or criminally negligent homicide for someone’s overdose, you need experienced criminal defense counsel.. Even if you suspect you are just under investigation, you need criminal defense counsel. We have experience handling overdose death cases in federal and New York State Courts. Read our client testimonials.

If you have been arrested or suspect that you are under an investigation by local, state of federal authorities, please call us at 212-729-9494 or contact us today to schedule a consultation.