MURDER CHARGE DROPPED AGAINST JUPITER DOCTOR IN FATAL OVERDOSE

A judge dismissed a first-degree murder charge Thursday against a
Jupiter physician thought to be the first in the country to face such
a charge for the overdose death of a patient.

Palm Beach County prosecutors conceded they might have a tough time
using a novel legal theory against Dr. Denis Deonarine when they
charged him in July 2001.

"It's going to be very difficult," prosecutor Barbara Burns said at
the time. "It is a new concept."

The charge Deonarine faced falls under the state's felony murder law,
which allows prosecutors to bring a first-degree murder charge if the
killing takes place during the commission of another crime. In
Deonarine's case, it was alleged drug trafficking -- he faces 79
counts relating to the sale and delivery of narcotic painkillers,
including OxyContin.

Deonarine's attorney, Richard Lubin, asked Palm Beach County Circuit
Judge Richard Wennet to dismiss the murder charge, arguing that the
underlying felony, even if true, took place two days before the
patient died.

"If he died after, it's not felony murder," Lubin said. There has
never been a successful prosecution under the legal theory anywhere in
the country, he said.

Burns argued that Deonarine prescribed OxyContin to Michael Labzda,
21, in high doses without medical justification. She said Deonarine
should have known Labzda was at risk of death.

Labzda was found dead by friends after a night of drinking and taking
drugs on Feb. 8, 2001, two days after getting his last OxyContin
prescription from Deonarine.

The medical examiner ruled he died of "polydrug toxicity."

He had OxyContin and Xanax in his system. One of his friends told
investigators that Labzda snorted crushed OxyContin that night, which
quickly releases the drug into a person's system.

The judge determined the first-degree murder charge could not be
supported and dismissed the charge.

"It didn't occur during the actual trafficking, during the movement of
the actual narcotics," said Wennet, but he suggested another section
of Florida murder statute might apply.

That part of the statute says a person can be charged with
first-degree murder if the "unlawful distribution" of a derivative of
the opium poppy, which includes OxyContin, results in a death.

Burns told the judge she would take the case back before a grand jury
to seek a first-degree murder indictment under that section of the
law. Lubin said the law is rarely used because it is a difficult
charge to prove.

Lubin said Deonarine, 59, is innocent of all the charges against him,
and that he was prescribing medication with due medical care.

In recent years prosecutors have increasingly sought charges against
doctors around the country for prescribing large amounts of narcotics
that result in overdose deaths.

In February 2002, a Panhandle physician, James Graves, became the
first doctor to be convicted of manslaughter in the overdose death of
a patient. He is currently appealing the four manslaughter convictions
and his 63-year sentence.

If Deonarine does face a re-filed first-degree murder charge, Lubin
also can seek to have that charge dismissed.

He has not raised arguments that Labzda was responsible for his own
death.

In September, a federal judge dismissed a wrongful-death suit filed by
Labzda's parents against Purdue Pharma, the maker of OxyContin.

The judge determined that Labzda caused his own death by drinking rum,
beer, snorting the OxyContin and taking the Xanax, which meant Purdue
Pharma could not be found negligent.