Understanding the "Sale of Controlled Drug; Death Resulting" Law in New Hampshire and Recent Case Law

Richard Theberge

• 3 min read
Understanding the "Sale of Controlled Drug; Death Resulting" Law in New Hampshire and Recent Case Law
Photo by Mathurin NAPOLY / matnapo / Unsplash

History

According to my research, NH RSA 318-B:26 Section IX, "Sale of Controlled Drug; Death Resulting," has been included New Hampshire statutes and legislative discussions since January 1992. As of this writing, the law is over 30 years old. Interestingly, I couldn’t find New Hampshire Supreme Court cases on this law before 2008, starting with State v. Silva, 158 N.H. 96 (2004 trial in Rockingham Superior Court).

Currently, the statute's elements for Sale of Controlled Drug; Death Resulting are:

  1. Manufacture, Sale, or Dispensation of a Controlled Drug: If a person manufactures, sells, or dispenses methamphetamine, PCP, or other schedule I or II drugs (or any analog) in violation of RSA 318-B:2, I or I-a, they are strictly liable for any resulting death from the drug’s injection, inhalation, or ingestion.
  2. Cause of Death Requirements:
    • The drug ingestion, inhalation, or injection must be a direct cause of the death.
    • The death must not be remote from the defendant's actions or too dependent on unrelated actions or conditions.
  3. Strict Liability: The statute holds defendants accountable even if the deceased voluntarily ingested the drug or contributed to their own death by reckless or negligent behavior.

Why Were There Fewer Cases Before 2004?

I believe the limited cases before 2004 could be attributed to the following:

  • Drug Availability Changes: Drugs like heroin and fentanyl, which are the most common overdose contributors, only became prevalent in New Hampshire more recently.
  • Technology Advances: Newer technologies have enhanced investigators' ability to trace overdose deaths back to suppliers, providing clearer evidence trails.

NH’s Opioid Crisis and Law Enforcement Tools

New Hampshire has been deeply affected by the opioid crisis. In 2016, the state had among the highest per capita fentanyl overdose death rates in the U.S., three times the national average. New Hampshire's law enforcement uses Sale of Controlled Drug; Death Resulting as a crucial tool to target drug manufacturers and distributors directly responsible for overdose deaths.

This charge is invaluable as it circumvents the need to prove negligence or intent beyond the intent to sell. If evidence supports that a suspect sold drugs that led to a user’s death, strict liability applies, holding the suspect accountable for such fatal outcome.

One defense often encountered is the “user as dealer” argument, where defendants claim they were merely supporting their own habit. Although this sometimes results in smaller (in quantity) dealers being prosecuted, the law does not allow exceptions based on this “user-dealer” narrative. Even low-level distributors are strictly liable for any resulting deaths, provided a direct link exists between their sale and the fatal overdose.

Recent Case Law: State v. John Fortune

The recent New Hampshire Supreme Court case, State v. Fortune, 2024 N.H. 52, clarified the issue of venue for prosecutions under RSA 318-B:26, IX. John Fortune sold drugs to a victim in Belknap County, who then consumed the drugs and died in Sullivan County. Prosecutors charged him in Sullivan County, arguing that, since the death occurred there, it was an appropriate venue.

The defense contested this, citing that, under RSA 602:1, prosecutions should occur where the offense was committed. The Court held that for RSA 318-B:26, IX, venue should be in the county where the act of sale took place because selling is the conduct constituting the offense. The statute’s language does not permit venue based solely on where the outcome (death) occurred, if no other criminal act was committed in that county. As a result, the Court reversed Fortune’s conviction, highlighting that only counties where parts of the offense were actively committed by the defendant are suitable venues.

Lessons for Investigators

Here is a short list of a few things I've learned through trial and error in past investigations related to Controlled Drug Sale; Death Resulting.

  • Autopsy Importance: Even in overdose cases where the evidence is overwhelming, an autopsy is essential in ruling out other causes of death, strengthening the prosecution’s case against any reasonable doubt.
  • Documentation: Comprehensive documentation from the scene and prompt preservation of evidence, like social media accounts and communication records, are critical.
  • Coordination with Prosecutors: In cases where venue or evidence may present legal challenges, consult prosecutors early on to address any potential obstacles. Although State V. Fortune addresses the court's venue in overdose death cases, when the sale occurs within the State of New Hampshire, it may still be possible under NH RSA 625:4 as jurisdiction is established when an offense, or a result of the offense (the death), occurs in the state.

Conclusion

With cases like State v. Fortune, New Hampshire’s Supreme Court provides specific instructions on legal processes, guiding law enforcement in handling overdose investigations. As we tackle the opioid epidemic, it remains crucial to approach each death resulting from controlled drugs with meticulous evidence-gathering and an understanding of evolving legal standards. While we cannot always prevent these tragedies, we can ensure justice is pursued for the lives of close family members and friends who are impacted by illegal drug distribution that results in death.