DAs implement fentanyl warnings of murder charges

Napa has become the latest county to implement fentanyl advisements that warn defendants convicted of drug crimes they could face murder charges if their sale of substances laced with fentanyl causes someone's death.

"Most importantly it is an attempt to discourage drug dealers from selling drugs, particularly those laced with fentanyl, and buyers from purchasing and consuming drugs," Napa County Assistant District Attorney Paul R. Gero said in an interview Tuesday. Most buyers don't realize the drugs they are purchasing contain fentanyl, he said.

Napa County District Attorney Allison Haley announced the new policy on Monday in response to increases in overdose deaths nationally due to the synthetic opioid.

In 2019, more than 36,000 deaths in the U.S. involved synthetic opioids, more than any other type of opioid, according to the latest statistics from the Centers for Disease Control and Prevention. In 2019 the rate of overdose deaths involving synthetic opioids was more than 11 times higher than in 2013.

Gero said that in addition to trying to deter drug dealers from selling drugs, the advisement also serves, along with the conviction, as proof of implied malice if homicide charges are brought in a future case against the defendant. He said it is similar to the way a "Watson" advisement is given to drivers who are convicted of driving under the influence.

"For decades now, California law has allowed prosecutors to charge people who drive drunk and kill somebody with manslaughter or murder, if they have previously been convicted of a DUI and have gone through the alcohol education class where they're specifically instructed that drinking can cause you to be unsafe and that you could kill somebody," Yolo County District Attorney Jeff Reisig said in an interview.

Reisig, who is president of the California District Attorneys Association, implemented a fentanyl advisement policy in Yolo County this year. He has yet to file any subsequent homicide charges and hopes the warnings serve as deterrence so he won't have to.

"Believe it or not, this type of policy quickly spreads through the streets. People become aware," Reisig said. "It'd be naive to say that every drug dealer is going to stop selling drugs because of this policy. But we do believe and we do know that it's common knowledge among drug dealers that they can be looking at a murder charge if they sell product that is laced. We just hope and pray that this is going to slow people down and make sure that whatever they're selling is not laced with fentanyl."

Other counties that have similar policies include Sacramento, Riverside, El Dorado, Orange, Monterrey, San Luis Obispo and San Diego.

Riverside County District Attorney Mike Hestrin was one of the first DAs in Southern California to charge a drug dealer with homicide on the grounds he sold pills laced with fentanyl that resulted in the death of a teenager last year, according to Public Information Officer John Hall.

The homicide charge against Joseph Michael Constanza, who has since pleaded not guilty, is one of six fentanyl poisoning, second-degree murder charges that have been filed by the DA to date, Hall said. People v. Joseph Michael Constanza, RIF21100641 (Riverside Super. Ct., filed Jan. 19, 2021).

San Diego District Attorney Summer Stephan has charged three people with murder involving fentanyl overdose deaths as a result of the office's partnership with a Drug Enforcement Administration task force that looks into overdose deaths using homicide protocols.

Various DAs have also launched public outreach programs to educate the public on the dangers of fentanyl.