We need this overdose investigation legislation in every state in the country

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A Washington State lawmaker named Senator Doug Ericksen has introduced innovative and important legislation that would require paramedics, first responders, doctors and other medical professionals in that state to report every overdose fatality they encounter to local law enforcement.

Before my own teenage son suffered the overdose that ended up killing him, I think I kind of just assumed that local police officers and Sheriff’s deputies were always automatically notified of drug overdose fatalities and near fatalities. In most communities, however, including my own, it doesn’t matter how obviously suspicious the circumstances of an overdose appear to be (example: my son’s case), the overdose isn’t automatically treated as a potential crime against the victim, although in many cases, that’s exactly what it is.

The failure of our system to approach the skyrocketing number of drug overdose deaths as the potential homicides that they are makes it very hard for public health authorities and local medical examiners to track the patterns and linkages among drug overdoses in their communities over time. Also, this hands-off attitude toward drug overdose deaths makes it very difficult for investigators and prosecutors who DO have an interest in enforcing the homicide-by-overdose laws that already exist at the federal and state level to do their jobs.

Federal authorities now recommend this approach to local law enforcement and prosecutors as an important tool in the overall strategy for addressing this deadly epidemic. As the mother of a boy killed last spring when local dealers actively encouraged him to take a very large quantity of a prescription drug, and who then refused to call 911 for a long period of time as my son lay dying inside their residence, I obviously believe that these laws which again, are already on the books, need to be enforced. My son’s death was not “accidental” and he didn’t want to die. His death came as a result of criminal activity on the part of others who then showed depraved indifference to his need for immediate medical care.

Below is an excerpt of the relevant sections of 2009 FBI training materials for state and local criminal justice professionals. The training material outlines best practices and protocols for handling opiate overdose deaths at the community level. Note that these protocols draw on the resources that communities already have in place (first responders, medical examiners, professional criminal investigators, prosecutors). This means that local jurisdictions can adopt these recommended best practices for addressing the opiate pill epidemic without significant new expenditures.

Federal Bureau of Investigation (FBI) Training:
Best Practices for Local Law Enforcement in Investigating and Prosecuting Opiate Overdose Deaths
FBI Law Enforcement Bulletin – April, 2009

Key Point: Administrators should develop sound policy and procedures dictating that overdoses be handled as homicides, thereby giving these investigations priority and integrity. A successful overdose investigation has the potential to curtail drug use, drug crimes, and drug dealing in a particular area, gaining positive outcomes from an otherwise tragic event.

The Problem

• Drug trafficking continues to have a deleterious effect on America’s communities. Its negative impact is felt in the myriad other crimes committed in the course of obtaining drugs or in those offenses perpetrated by persons under the influence of drugs.

• Drugs are classified into different groups based upon their origins and effects on the human body. The opiate class of narcotics, which includes morphine, heroin, and oxycodone, are commonly referred to as downers because of their sedative-like effects.

At the Scene of a Suspected Opiate Overdose

• Police agencies often identify fatal drug overdoses as accidental deaths. Being aware of and alert to the indicators of a drug overdose prior to entering a crime scene enables investigators to more effectively conduct their investigation.

• Officers should secure the crime scene as if it were the site of a homicide. They should direct nonessential personnel, such as emergency medical workers, and family members away from the area, and document everyone who enters it.

• Homicide and drug investigators, as well as crime scene technicians, should be called to the site. Before anything is disturbed, the entire scene should be photographed, including the victim. Only then should the victim be turned over to the medical examiner for an autopsy. Finally, investigators should perform an organized search to gather physical evidence.

• Drug crimes usually yield two valuable pieces of evidence not always present in other crimes. First, investigators should pay particular attention to any items of paraphernalia that could be used to package and store drugs, as well as to mechanisms that someone could use to ingest a drug. Heroin typically is packaged in small glassine or wax bags about the size of a quarter and then is ingested by either snorting it through the nose or injecting it into the body. During the search, investigators should look for cut drinking straws or rolled paper, such as dollar bills, used to snort heroin. To inject heroin, users must liquefy it, typically accomplished by heating the heroin and some water on a spoon with a candle or cigarette lighter. Therefore, investigators also should search for spoons, heat sources, and hypodermic needles used to inject heroin. Because prescription drugs can be crushed and snorted, investigators should look for pill bottles and devices capable of crushing hard pills into a powder.

• Items of drug paraphernalia prove especially important because they may contain samples of the drug. Officers should carefully package objects suspected of containing drugs or drug residue in separate containers and transfer them to a laboratory for analysis to determine the specific drug, its purity level, and any adulterants or other substances combined with it. Advances in technology have enabled some laboratories to conduct a signature analysis of the drugs that provides its specific chemical composition, or signature, which then can be compared with that of another sample of drugs to help determine if both originated from the same batch. This test can prove crucial in linking the drugs found on an overdose victim back to the original dealer. In addition to chemical testing, investigators should request that the submitted evidence be examined for latent fingerprints.

• Users contact a dealer and order drugs using landline or cellular telephones, personal digital assistants (PDAs), or the Internet, constituting the second piece of valuable evidence.

• During the crime scene search, investigators should seize all communication devices, which create a paper trail that can aid in an investigation. Using a subpoena or court order, investigators generally can obtain usage records of these devices from the service provider (e.g., the phone company or Internet-service provider) and analyze them. The analysis often provides investigators with a clear time line on the activities of the victim, including dates, times, and duration of contacts between the victim and drug dealer. These business records frequently furnish additional corroboration to physical evidence discovered at the crime scene.

Autopsies

• Although a preliminary determination of death may be made at the crime scene, only an autopsy can definitively establish the cause of death.

• Prior to the autopsy, the victim should be thoroughly photographed. Pictures should capture the general condition of the victim, as well as any signs specific to an opiate overdose, including froth or needle marks. In addition to normal autopsy protocols, such bodily fluids as blood, urine, and eye vitreous should be collected and preserved specifically for toxicological tests.

• Investigators and pathologists should be aware that once introduced into the human body, heroin quickly metabolizes back to its pure form, morphine. As a result, if the victim ingested heroin, toxicology reports will show a presence for morphine, not heroin. Having this knowledge often will alleviate any confusion regarding what drugs the victim may have used. As always, investigators should discuss the autopsy procedures and findings with the pathologist and prosecutor if additional testing needs to be conducted.

Legal Tools

• A drug overdose that drew national media attention inspired the creation of a law that now allows investigators to target drug trafficking organizations responsible for overdose deaths. In June 1986, the Boston Celtics’ first-round draft pick, Len Bias, was found dead in his college dormitory from a drug overdose. That same year, in response to Bias’ death, as well as to the proliferation of crack cocaine, Congress enacted new federal drug laws. One of the provisions, commonly referred to as the Len Bias Law, provides for a mandatory minimum term ofincarceration for 20 years and a maximum life sentence for a dealer who distributes drugs that cause death or serious bodily injury. Therefore, drug dealers face a penalty of no less than 20 years in federal prison if it can be determined that the drugs they sold caused the overdose, regardless of the quantity.

• In federal, as well as most state, prosecutions, sentences for drug crimes are determined by the quantity of drugs sold. In cases involving an overdose, however, the quantity of drug sold is secondary, possibly even irrelevant, in determining a defendant’s sentence. It is not necessary that the victim die from a drug overdose for this law to apply.

• The Len Bias Law provides for the same punishment if death or serious bodily injury occurs as a result of the drugs. Federal law defines serious bodily injury as that which involves, “a substantial risk of death; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” If the victim suffers a drug overdose but does not die, investigators should consult with their prosecutor to determine if the overdose falls within the definition of serious bodily injury.

Case Development

• All law enforcement agencies should join in this effort to investigate these crimes. The benefit of investigating drug overdoses derives from the enhanced sentencing provision of the law. Faced with lengthy jail terms, as well as the desire not to be associated with a death, suspects and potential defendants may be more apt to cooperate with law enforcement than in other investigations. Cooperation may allow defendants to escape the mandatory minimum sentence of 20 years. To this end, investigators may be able to quickly garner the assistance of suspects, thereby rapidly identifying and targeting other persons working up the chain of supply. Rather than targeting a single dealer, investigations should aim to identify all individuals involved in the chain of distribution of the drugs to the victim, thus dismantling an entire organization.

• To be successful, investigators must fulfill two prongs of the law. First, they must prove that the victim died or suffered serious bodily injury as a result of an overdose. Evidence gathered from the crime scene and autopsy can help achieve this.

• Second, investigators must prove that the drugs that caused the overdose came from a specific dealer, which, oftentimes, is the most difficult component to prove. They should examine the business records of service providers to show communication between the victim and drug dealer. Investigators also should question witnesses regarding their knowledge of drug dealing between the victim and dealer.

• In addition to these reactive measures, investigators should consider proactive ones as well. They could send a cooperating witness to meet with the dealer to obtain statements or other evidence linking the dealer to the victim. These measures, used in conjunction with the physical evidence, can assist investigators in identifying and prosecuting all persons responsible for the overdose.

Conclusion

• Unfortunately, opiate overdoses have a tremendous impact on society. However, such incidents can assist law enforcement agencies in effectively targeting and dismantling an entire drug trafficking organization.

• Often, overdoses are not considered crimes. To change that, officers, investigators, and first responders should know the signs of a drug overdose. Further, they need to be aware of the law in their jurisdiction, as well as federal law, as it relates to overdoses.

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