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Defending Yourself Against First Degree Reckless Homicide Charges In Drug Overdose Cases.

If you have been charged with First Degree Reckless Homicide in Wisconsin, also known as a (“Len Bias”) case, for allegedly delivering a controlled substance that resulted in an overdose death, you probably know that you may be facing extremely serious criminal penalties, including the possibility of a felony conviction and a long prison sentence. You may also be concerned about the potential life-changing damage to your reputation if you are convicted of a homicide offense. Yet what you may not know is that you is that many innocent people throughout the United States are wrongfully charged in Len Bias cases, and that there are proven ways to successfully defend yourself against First Degree Reckless Homicide charges.

Below I will explain three possible general defenses in Len Bias cases, which is only a small sample of the many possible defenses. The information below is intended to provide general information to educate yourself about defenses our law firm has successfully used in Len Bias cases. This information is neither intended to provide specific legal advice for a specific individual’s case, nor is it intended to create an attorney-client relationship. While our law firm would be happy to represent you or a loved one with a Len Bias case, we cannot provide specific legal advice without first knowing the facts of the case and similarly we cannot represent someone facing Len charges without first having a Legal Representation Agreement.

Many times in Len Bias cases, it is not clear who delivered the drug or drugs that the prosecutor claims caused an overdose death. Under Wisconsin law, delivery of a controlled substance refers to when someone who does not have legal authority (such as someone who is not a medical professional, pharmacist, parent or other person authorized by law to give a specific controlled substance medication to a specific person) gives a controlled substance to another person, regardless of whether there is an exchange of money. In other words, a college student who shares prescription Aderall with his friend during finals is committing delivery of a controlled substance in the State of Wisconsin even if he doesn’t charge any money. Particularly when someone dies and the toxicology blood report shows multiple drugs in their system that are capable of causing the overdose death (also known as “polydrug overdose cases”), it is possible that more than one person delivered the drugs. In these cases, police often review cell phone records and talk to witnesses to try to figure out the identity of the person or persons who delivered the drug or drugs that are believed to have caused the overdose death. With respect to cell phone records, just as evidence of text messages, phone calls or other data on someone’s phone can sometimes help prove the identity of the person who delivered the drug/s, other data, including data from the suspect’s phone can create a strong alibi defense by demonstrating that he or she was not with the person who overdosed at the time of the alleged delivery, or otherwise prove the suspect was not the person who delivered the drug suspected of causing death. Likewise, witnesses interviewed by police who may have been with the person who overdosed when he or she died and also delivered the drug/s that possibly caused death. These witnesses therefore may have motive to lie to police and blame another person for the witnesses’ drug delivery. Oftentimes, they have lengthy criminal records for similar types of drug possession, delivery, and other crimes involving dishonesty that suggest they may be covering up their involvement in a possible homicide. In these situations, a defendant may be able to argue that a third party, or “Denny” suspect, is the actual person responsible for the overdose death.

Additionally, even if there is some evidence that a suspect did deliver controlled substances to another person who overdosed, that does not mean he or she delivered the drugs that caused death for several reasons. The prosecutor often assumes that the drugs found in the blood of the person who overdosed are the same drugs that the suspect delivered. More often than people think, that is not always the case. That is particularly true when it is difficult to pin down when the delivery occurred, when (if at all) the delivered drugs were consumed by the person who overdosed, and when there is evidence that someone other than the suspect cleaned up the scene of the crime by getting rid of the drugs or phone of the person who overdosed before the police arrived. Oftentimes, drug addicts will binge on a certain type of drug that passes through their system relatively quickly such as heroin, and later call another friend or dealer to come over who brings their own stash of drugs when the high wears off.

Finally, particularly in polydrug overdose cases, the autopsy examination and toxicology reports may not be able to prove which drug caused the overdose death. Oftentimes, the medical examiner will rule out any natural causes of death not explained by a drug overdose, and therefore conclude that the quantities of more than one drug found within the body of the person who overdosed were enough to cause death. Moreover, although many people expect autopsy examinations will pinpoint physical evidence that proves which drug caused death in polyoverdose cases. For example, in methamphetamine overdose cases, the person often died of heart failure whereas in opiate overdose cases, the person often dies of respiratory failure. Yet oftentimes in polydrug overdose cases, medical examiners do not find clear evidence pointing to which body system failed, and therefore cannot give a precise opinion as to which drug or combination of drugs caused death based on the autopsy examination.

Similarly, oftentimes medical examiners cannot reliably predict which drug or combination of drugs caused death based on the toxicology report, which typically reports the amount of potentially lethal drugs and their metabolites in a person’s blood and urine. Generally, medical examiners will not give an opinion about the percentage that each drug contributed to the death because that may be impossible to know with any degree of certainty.

Nonetheless, because Wisconsin law requires the prosecution to prove beyond a reasonable doubt that someone accused of a Len Bias charge caused death by delivering a controlled substance, a medical examiner, doctor, or any other expert paid by the State up to hundreds of dollars per hour (hereafter referred to as “prosecution expert”) may exaggerate or unintentionally provide inaccurate opinions that help the State prove its case by claiming that one specific drug likely played a significant role in causing death in polydrug overdose cases. One of the main problems is that the State’s experts sometimes lack an advanced understanding of toxicology, toxicokinetics, and pharmacokinetics, which are fields of medicine that use scientific research to explain how drugs work in a human body and how to measure when the amount of a drug becomes a lethal or deadly amount. For example, in a polydrug overdose case where the State’s expert makes his or her opinion that the amount of an opioid like Fentanyl that was found in someone’s blood toxicology reports is a lethal amount, that opinion may be incorrect for several reasons. First, the the State’s expert is likely not aware of the person’s tolerance or cross-tolerance to the drug, which means that someone who regularly used a significant amount Fentanyl or other type of opiate drugs leading up to their death may be much more tolerant to Fentanyl that the average person who does not regularly use Fentanyl or other opiates, and therefore the the same amount of Fentanyl given to the tolerant person will not kill him or her, but may very likely kill the non tolerant person whose body is not used to Fentanyl or other opiate drugs. Yet unless someone is regularly tested for drug use prior to the overdose, it is often impossible to reliably estimate that person’s tolerance to the drug and even more difficult to precisely approximate the lethal amount of a drug that will kill the person. Nonetheless, tolerance is one of many factors that would allow a doctor to predict the lethal amount of a particular drug for a particular person. Additionally, the State’s experts sometimes are unaware of the concept of postmodern redistribution, or the principle that drugs such as Fentanyl redistribute through the blood stream after death and therefore even a toxicologist specializing in pharmacokinetics, or the movement of drugs throughout the body, cannot know the precise amount of the drug in the person’s system at the time of death by simply analyzing the amount of Fentanyl in a person’s blood at the time of death. Therefore it is nearly impossible to predict the amount of these types of drugs in a person’s system at the time of death. Certainly, if the amount of a controlled substance in someone’s system is at such high levels that not even the most tolerant drug user would likely survive and it is outside the range of postmortem redistribution then these types of defenses may not apply. Ultimately, however, the notoriously complex nature of toxicology, pharmacokinetics, and toxicokinetics is sometimes at odds with proof beyond a reasonable doubt, and the difference between being convicted of homicide, being convicted of a drug delivery, and found not guilty of all charges may come down to a criminal defense lawyer asking the right questions, and knowing what evidence to look for.

If you or your loved one would like a free consultation with a member of our criminal defense team to discuss the possibility of legal representation, please call our main line at (920) 459-8490.

Attorney Corey Mehlos practices criminal defense law in Sheboygan and Ozaukee Counties and throughout Wisconsin.