Florida Bar News – Measure Aims at Strengthening Penalties for Drug Dealers When Customers Die

  Sen. Jason Brodeur

The Senate Judiciary Committee has approved a measure that would make it easier to charge drug dealers with first-degree murder when their customers die of an overdose.

Over the objection of some Democrats, the committee voted 7-3 on January 10 to approve SB 190 by Sen. Jason Brodeur, R-Lake Mary.

The measure merely closes a loophole in a statute that Florida enacted more than 50 years ago in response to a heroin epidemic, Brodeur told the committee.

“It was the will of the 1972 Legislature to make predators responsible for the poisons that they peddle to their customers,” Brodeur said. “We need to have education, treatment, prevention….but we also need law enforcement, and this is just one piece of that.”

The proposal targets a provision in the statute that requires a defendant’s actions to be the “proximal cause” of a fatal overdose, something that prosecutors say is difficult to prove when a victim’s blood shows traces of multiple substances.

Instead, the measure would substitute “substantial factor.”

The measure would apply to anyone 18 or older who unlawfully distributes a controlled substance “when such substance is proven to have caused or is proven to have been a substantial factor in producing the death of the user.”

The bill defines substantial factor as when “the use of the substance or mixture alone is sufficient to cause death, regardless of whether any other substance or mixture used is also sufficient to cause death.”

The measure has the support of the Florida Sheriffs Association and prosecutors. The Florida Public Defender Association and the Florida Association of Criminal Defense Lawyers are opposed.

Sen. Darryl Rouson, D-St. Petersburg and an attorney, said he supports holding drug dealers responsible for the harm they cause, but is concerned about expanding the death penalty.

“This state has a history of discriminating when it comes to the death penalty,” he said.

Florida Public Defender Association lobbyist Nancy Daniels warned that the proposal wouldn’t survive a legal challenge.

“We think it’s unconstitutional because of the vague standard,” she said.

Witnesses would be less likely to call for help if they knew an overdose could lead to murder charges, Daniels said.

The House Justice Appropriations Subcommittee voted 9-4 on December 1 to pass a companion, HB 95, by Rep. Scott Plakon, R-Longwood. It passed the Criminal Justice and Public Safety Subcommittee 14-4 on October 21. HB 95 faces one more hearing in House Judiciary before reaching the floor.

Both House and Senate bills would add methamphetamine to the list of controlled substances that fall under the statute, and both measures would ban the sale of controlled substances within 1,000 feet of a drug rehab facility. The provisions were recommended by the Task Force on Opioid Abuse, which Gov. Ron DeSantis created in 2019.

SB 190 faces two more hearings, in Criminal Justice and Rules, before reaching the Senate floor.

Jim Ash, Florida Bar News (2022, January 12) https://www.floridabar.org/the-florida-bar-news/measure-aims-at-strengthening-penalties-for-drug-dealers-when-customers-die/