The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/SB 164
INTRODUCER: Rules Committee and Senators Polsky and Berman
SUBJECT: Controlled Substance Testing
DATE: March 22, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Erickson Stokes CJ Favorable
2. Collazo Cibula JU Favorable
3. Erickson Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 164 amends s. 893.145, F.S., the drug paraphernalia statute, to exclude from the
definition of “drug paraphernalia” narcotic drug testing products that are used to determine
whether a controlled substance contains fentanyl, fentanyl-related compounds, fentanyl
derivatives, analogs of these substances, and mixtures containing any of these substances or any
analog of these substances. If so amended, a person who possesses or uses a fentanyl test strip kit
would not be subject to arrest and prosecution for any offense under s. 893.145, F.S.
The Legislature’s Office of Economic and Demographic Research preliminarily estimates that
the bill will have a “negative insignificant” prison bed impact (a decrease of 10 or fewer prison
beds). See Section V. Fiscal Impact Statement.
The bill takes effect July 1, 2023.
II. Present Situation:
Scheduling of Fentanyl as a Controlled Substance
State law1 classifies controlled substances into five categories or classifications, known as
schedules. These schedules regulate the manufacture, distribution, preparation, and dispensing of
substances listed in the schedules. The most important factors in determining which schedule
1
Section 893.03, F.S.
BILL: CS/SB 164 Page 2
may apply to a substance are the “potential for abuse”2 of the substance and whether there is a
currently accepted medical use for the substance. The controlled substance schedules are
described as follows:
Schedule I substances have a high potential for abuse and no currently accepted medical use
in treatment in the United States. Use of these substances under medical supervision does not
meet accepted safety standards.3
Schedule II substances have a high potential for abuse and a currently accepted but severely
restricted medical use in treatment in the United States. Abuse of these substances may lead
to severe psychological or physical dependence.4
Schedule III substances have a potential for abuse less than the Schedule I and Schedule II
substances and a currently accepted medical use in treatment in the United States. Abuse of
these substances may lead to moderate or low physical dependence or high psychological
dependence. Abuse of anabolic steroids may lead to physical damage.5
Schedule IV substances have a low potential for abuse relative to Schedule III substances and
a currently accepted medical use in treatment in the United States. Abuse of these substances
may lead to limited physical or psychological dependence relative to Schedule III
substances.6
Schedule V substances have a low potential for abuse relative to Schedule IV substances and
a currently accepted medical use in treatment in the United States. Abuse of these substances
may lead to limited physical or psychological dependence relative to Schedule IV
substances.7
“Fentanyl is a powerful synthetic opioid that is similar to morphine but is 50 to 100 times more
potent. It is a prescription drug that is also used and made illegally.”8 Fentanyl is a Schedule II
controlled substance.9
“Synthetic opioids, including fentanyl, are now the most common drugs involved in drug
overdose deaths in the United States.”10 According to Florida’s Statewide Drug Policy Advisory
Council, the majority of overdose death in Florida in 2021 were related to opioids, and “[t]he
most significant increases [in overdose deaths relative to the previous year] were deaths
2
Section 893.035(3)(a), F.S., defines “potential for abuse” as a substance that has properties as a central nervous system
stimulant or depressant or a hallucinogen that create a substantial likelihood of the substance being: used in amounts that
create a hazard to the user’s health or the safety of the community; diverted from legal channels and distributed through
illegal channels; or taken on the user’s own initiative rather than on the basis of professional medical advice.
3
Section 893.03(1), F.S.
4
Section 893.03(2), F.S.
5
Section 893.03(3), F.S.
6
Section 893.03(4), F.S.
7
Section 893.03(5), F.S.
8
National Institute on Drug Abuse, Fentanyl DrugFacts, https://nida.nih.gov/publications/drugfacts/fentanyl (last visited on
Mar. 3, 2023) (internal citations omitted). As a medicine, fentanyl is “typically used to treat patients with severe pain,
especially after surgery[,]” and “is also sometimes used to treat patients with chronic pain who are physically tolerant to other
opioids.” Id.
9
Section 893.03(2)(b)9., F.S.
10
National Institute on Drug Abuse, supra note 2.
BILL: CS/SB 164 Page 3
involving fentanyl which increased by 11 percent, and deaths caused by fentanyl increased by 9
percent.”11
Controlled Substance Analog
A “controlled substance analog” is as a substance which, due to its chemical structure and
potential for abuse, meets the following criteria:
The substance is substantially similar to that of a controlled substance listed in Schedule I or
Schedule II; and
The substance has a stimulant, depressant, or hallucinogenic effect on the central nervous
system or is represented or intended to have a stimulant, depressant, or hallucinogenic effect
on the central nervous system substantially similar to or greater than that of a controlled
substance listed in Schedule I or Schedule II.12
Fentanyl Test Strip Kit
According to the Centers for Disease Control and Prevention (CDC), fentanyl test strips (FTS)
are “small strips of paper that can detect the presence of fentanyl in all different kinds of drugs
(cocaine, methamphetamine, heroin, etc.) and drug forms (pills, powder, and injectables).”13
The CDC outlines the steps to conduct the test:
“Put a small amount (at least 10mg) of your drugs aside in a clean, dry container.”
“Add water to the container and mix together.”
“Place the wavy end of the test strip down in the water and let it absorb for about 15
seconds.”
“Take the strip out of the water and place it on a flat surface for 2 to 5 minutes.”
“Read results.”
o “Positive results: A single pink line on the left-hand side indicates that fentanyl or a
fentanyl analog has been detected in your drugs. If you receive a positive result, it is
much safer to discard the batch. Using it could kill you. Illicitly manufactured fentanyl is
extremely potent and can be deadly.”
o “Negative results: Two pink lines indicate that fentanyl or a fentanyl analog has not been
detected in your drugs. Remember that no test is 100% accurate and your drugs may still
contain fentanyl or fentanyl analogs even if you receive a negative result. You should still
take caution as FTS might not detect more potent fentanyl-like drugs, like carfentanil,
and fentanyl might not be everywhere in your drugs and your test might miss it.”
o “Invalid results: A single pink line on the right-hand side or no lines at all, indicates an
invalid test. If you get an invalid result, test your drugs again using a new strip.”14
11
Statewide Drug Policy Advisory Council, 2022 Annual Report (Dec. 1, 2022), 8, available at https://www.floridahealth.
gov/provider-and-partner-resources/dpac/_documents/2022_DPAC_Annual_Report.pdf.
12
Section 893.0356(2)(a), F.S. (referencing Schedules I and II in s. 893.03, F.S.).
13
Centers for Disease Control and Prevention, Fentanyl Test Strips: A Harm Reduction Strategy, https://www.cdc.gov/
stopoverdose/fentanyl/fentanyl-test-strips.html#:~:text=Fentanyl%20test%20strips%20(FTS)%20are,%2C%20
powder%2C%20and%20injectables (last visited on Mar. 3, 2023) (internal citations omitted).
14
Id.
BILL: CS/SB 164 Page 4
Drug Paraphernalia Statutes
“Drug paraphernalia” includes:
all equipment, products, and materials of any kind which are used, intended for
use, or designed for use in planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing, processing, preparing,
testing, analyzing, packaging, repackaging, storing, containing, concealing,
transporting, injecting, ingesting, inhaling, or otherwise introducing into the
human body a controlled substance in violation of [the chapter governing drug
abuse, prevention, and control] or [the statute prohibiting the inhalation,
ingestion, possession, sale, purchase, or transfer of harmful chemical substances].
Drug paraphernalia is deemed to be contraband which shall be subject to civil
forfeiture.15
Drug paraphernalia includes testing equipment used, intended for use, or designed for use in
identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances. 16
When determining in a criminal case whether an object constitutes drug paraphernalia, a jury or
judge must consider, in addition to all other logically relevant factors, all of the following:
Statements by an owner or by anyone in control of the object concerning its use.
The proximity of the object, in time and space, to a direct violation of this act.
The proximity of the object to controlled substances.
The existence of any residue of controlled substances on the object.
Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the
object, to deliver it to persons who he or she knows, or should reasonably know, intend to use
the object to facilitate a violation of this act. The innocence of an owner, or of anyone in
control of the object, as to a direct violation of this act shall not prevent a finding that the
object is intended for use, or designed for use, as drug paraphernalia.
Instructions, oral or written, provided with the object concerning its use.
Descriptive materials accompanying the object which explain or depict its use.
Any advertising concerning its use.
The manner in which the object is displayed for sale.
Whether the owner, or anyone in control of the object, is a legitimate supplier of like or
related items to the community, such as a licensed distributor of or dealer in tobacco
products.
Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales
of the business enterprise.
The existence and scope of legitimate uses for the object in the community.
Expert testimony concerning its use.17
15
Section 893.145, F.S. (referencing ch. 893, F.S., and s. 877.111, F.S.) (emphases added).
16
Section 893.145(4), F.S.
17
Section 893.146, F.S.
BILL: CS/SB 164 Page 5
It is a first degree misdemeanor18 to:
Use, or possess with intent to use, drug paraphernalia to test a controlled substance.19
Advertise objects in a publication when it is known or reasonable to know that the purpose is
to promote the sale of objects designed or intended for use as drug paraphernalia.20
It is a third degree felony21 to:
Deliver, possess with intent to deliver, or manufacture with intent to deliver drug
paraphernalia, knowing, or under circumstances where one reasonably should know, that it
will be used to test a controlled substance.22
Use, possess with the intent to use, or manufacture with the intent to use drug paraphernalia,
knowing or under circumstances in which one reasonably should know that it will be used to
transport a controlled substance or contraband.23
Immunity from Arrest, Charge, Prosecution, or Penalization
Under the immunity statute,24 a person acting in good faith who seeks medical assistance for an
individual experiencing, or believed to be experiencing, a drug-related overdose may not be
arrested, charged, prosecuted, or penalized for possession of a controlled substance, or the use or
possession of drug paraphernalia.25 Similar immunity is provided for the person who
experiences, or has a good faith belief that he or she is experiencing, drug-related overdose and is
in need of medical assistance.26
The immunity statute appears to provide immunity from arrest, etc., for a violation of the use or
possession statute,27 provided an FTS kit was used or possessed and the criteria in the use or
possession statute have otherwise been met. However, there are other offenses in the use or
possession statute that might be applicable to an FTS kit and that might not qualify as immune
from arrest, etc. under the immunity statute.
III. Effect of Proposed Changes:
The bill amends. s. 893.145, F.S., the drug paraphernalia statute, to exclude from the definition
of “drug paraphernalia” narcotic drug testing products that are used to determine whether a
controlled substance contains fentanyl, fentanyl-related compounds, derivatives, and analogs,
and mixtures containing any of these substances.28 If so amended, a person who possesses or
18
A first degree misdemeanor is punishable by a term of imprisonment of not more than 1 year and a fine not exceeding
$1,000. Sections 775.082(4)(a) and 775.083(1)(d), F.S.
19
Section 893.147(1)(a), F.S.
20
Section 893.147(5), F.S.
21
A third degree felony is generally punishable by a term of imprisonment of not more than five years and a fine not
exceeding $5,000. Sections 775.082(3)(e) and 775.083(1)(c), F.S. But see ss. 775.082(10) and 921.00241, F.S. (providing for
prison diversion).
22
Section 893.147(2), F.S.
23
Section 893.147(4), F.S. (referencing the definition of contraband found in s. 932.701(2)(a)1., F.S.).
24
See generally s. 893.21, F.S.
25
Section 893.21(1), F.S.
26
Section 893.21(2), F.S.
27
Section 893.147(1), F.S.
28
The bill references s. 893.03(2)(b)9., F.S., which is the scheduling reference for fentanyl in the controlled substance
schedules. The bill also references s. 893.131(1)(c)4.a., F.S., the fentanyl trafficking provision, which references fentanyl,
BILL: CS/SB 164 Page 6
uses a fentanyl test strip kit would not be subject to arrest and prosecution for any offense under
s. 893.145, F.S.
The bill takes effect July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not appear to require cities and counties to expend funds or limit their
authority to raise revenue or receive state-shared revenues as specified by Article VII,
s. 18 of the Florida Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Criminal Justice Impact Conference, which provides the final, official estimate of the
prison bed impact, if any, of legislation, has not yet reviewed the bill. The Legislature’s
Office of Economic and Demographic Research (EDR) preliminarily estimates that the
alfentanil, carfentanil, sufentanil, fentanyl derivatives, analogs of these substances, and mixtures containing any of these
substances or any analog of these substances.
BILL: CS/SB 164 Page 7