Riverside and San Bernardino County prosecutors have started charging individuals accused of selling fentanyl that resulted in death to the user with murder. In Riverside County, the DA is currently prosecuting seven such cases against alleged fentanyl dealers and in San Bernardino County, the DA has filed a at least one murder charge against a fentanyl dealer. In Orange County, the district attorney has announced that his department will begin charging those drug dealers who have previously pled guilty to fentanyl sales and who later are accused with the fentanyl sales that causes a death with murder. (Similar to the Watson advisement, discussed below.)

In all counties, the charge is second degree murder based on the theory of implied malice. Under this theory, the murder need not be intentional. Rather, implied malice means that the conduct of the accused displayed a “conscious disregard for life.” In other words, the accused acted in a way that he or she knew could likely cause death but acted anyway.

There is an analogous law in the DUI statutes. A person who causes the death of another by his or her DUI driving can be charged with second degree murder under the implied malice theory. Under the DUI law, when a person is arrested for DUI, an advisement be given to the offender that puts the offender on notice that driving under the influence can result in the death of another person and if the offender is involved in a DUI fatality in the future, he or she can be charged with second degree murder. This advisement is called a Watson Advisement and is mandated by law.

However, there is no corresponding statute that mandates a similar advisement to a drug dealer. Hence, there will surely be appeals if one of these newly charged murder cases against accused fentanyl dealers ends in a murder conviction.

To give you an idea of how hazardous fentanyl can be, it is estimated to be 50 to 100 times stronger than morphine. Often the opioids bought on the street are laced with fentanyl as it is cheap, elicits a strong high, and makes more money for the cartels who are controlling this market. When there is too much fentanyl mixed in with the street opioid, it can be deadly. Many of the fatal fentanyl overdoses in California occur when a person thinks they are buying oxycodone or another opioid, but what the dealer is actually selling is cheap and deadly fentanyl or a fentanyl mix.

When we hear overdose, we think of someone who took way too much of a drug. But often that is not always the case. Advocates for the victims of these overdoses argue that they aren’t overdoses at all, but rather poisoning. The prosecutors and law enforcement maintain that the dealers know they are selling fentanyl but present it as a less dangerous opioid, although the dealer is aware that it may cause death.

The fentanyl tragedy continues unabated. Will the threat of a murder charge stop the cartels and the street dealers? Probably not, the cartels can always find another dealer. Still, you can’t blame the prosecutors for trying.

Orange County criminal defense attorney William Weinberg is available for a complimentary consultation where he will review your matter and advise you of your options. You may contact him at his Irvine office at 949-474-8008 or by emailing him at