Bill Summary – FastDemocracy

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 Fiscal Policy
BILL:           CS/CS/CS/SB 718
INTRODUCER:     Fiscal Policy Committee; Appropriations Committee on Criminal and Civil Justice;
                Criminal Justice Committee; and Senator Collins and others
SUBJECT:        Exposures of First Responders to Fentanyl and Fentanyl Analogs
DATE:           February 28, 2024               REVISED:
           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Vaughan                          Stokes                                CJ              Fav/CS
2. Atchley                          Harkness                              ACJ             Fav/CS
3. Vaughan                          Yeatman                               FP              Fav/CS
                     Please see Section IX. for Additional Information:
                                   COMMITTEE SUBSTITUTE - Substantial Changes
  I.    Summary:
        CS/CS/CS/SB 718 creates s. 893.132, F.S., relating to dangerous fentanyl exposure of first
        responders resulting in overdose or serious bodily injury. First responders as defined in the bill
        include an emergency medical technician, a paramedic, a firefighter, a correctional officer, a
        correctional probation officer, and a state or local law enforcement officer, who is acting in his or
        her official capacity.
        The bill provides that it is a second degree felony for a person 18 years of age or older who, in
        the course of unlawfully possessing dangerous fentanyl or fentanyl analogs, recklessly exposes a
        first responder to such substance that results in an overdose or serious bodily injury of the first
        responder.
        Dangerous fentanyl or fentanyl analogs means any controlled substance described in
        s. 893.135(1)(c)4.a.(I)-(VII), F.S.
        The bill amends s. 893.21, F.S., to provide immunity from arrest and prosecution for a person
        who acting in good faith, seeks medical assistance because he or she, or another person is
        experiencing an alcohol or drug related overdose.
        The bill will have a positive insignificant prison bed impact. See Section V. Fiscal Impact
        Statement.
BILL:     CS/CS/CS/SB 718                                                                                               Page 2
           The bill takes effect October 1, 2024.
    II.    Present Situation:
           Fentanyl is a controlled substance as defined in s. 893.03, F.S., which classifies controlled
           substances into five categories or classifications, known as schedules. The schedules regulate the
           manufacture, distribution, preparation, and dispensing of substances listed in the schedules. The
           most important factors in determining which schedule may apply to a substance are the potential
           for abuse1 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 (s. 893.03(1), F.S.) 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.
            Schedule II substances (s. 893.03(2), F.S.) 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.
            Schedule III substances (s. 893.03(3), F.S.) 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.
            Schedule IV substances (s. 893.03(4), F.S.) 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.
            Schedule V substances (s. 893.03(5), F.S.) 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.
           “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.”2 Fentanyl is a Schedule
           (2)(b) controlled substance.3 Drug offenses currently account for 23.6 percent of all new prison
           admissions in the Department of Corrections.4
1
  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.
2
  National Institute on Drug Abuse, Fentanyl DrugFacts, (footnotes omitted), available at
https://nida.nih.gov/publications/drugfacts/fentanyl (last visited on December 21, 2023). 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.
3
  Section 893.03(2)(b)9., F.S.
4
  Florida Department of Corrections, Florida’s Criminal Punishment Code: Assessment and Analysis, available at,
https://fdc.myflorida.com/pub/scoresheet/criminal%20Punishment%20Code%202023.pdf (last visited January 16, 2024).
BILL:   CS/CS/CS/SB 718                                                                                                    Page 3
         Controlled Substance Analog
         A “controlled substance analog” is defined in s. 893.0356(2)(a), F.S., 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 of s. 893.03, F.S.; 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 of s. 893.03, F.S.
         Crimes Related to Fentanyl and Related Substances
         Sale of a Controlled Substance
         Section 893.13(1), F.S., prohibits a person from selling, manufacturing,5 or delivering,6 or
         possessing with the intent to sell, manufacture, or deliver a controlled substance. The penalty for
         selling a controlled substance varies depending on several factors, including the type and amount
         of the substance sold, and the location where the sale takes place.
         Under current law, selling, manufacturing, or delivering, or possessing with the intent to sell,
         manufacture, or deliver, fentanyl, alfentanil, carfentanil, sufentanil, a fentanyl derivative, a
         controlled substance analog is punishable as a second degree felony.7,8
         Sale of a Controlled Substance to a Minor
         Section 893.13(4), F.S., prohibits a person 18 years of age or older from:
          Delivering a controlled substance to a person younger than 18 years of age;
          Using or hiring a person younger than 18 years of age as an agent or employee in the sale or
            delivery of a controlled substance; or
          Using a person younger than 18 years of age to assist in avoiding detection or apprehension
            for a violation of ch. 893, F.S.
         A violation is punishable as either a first, second, or third degree felony depending on the
         controlled substance that is sold or delivered.
5
  “Manufacture” means the production, preparation, propagation, compounding, cultivating, growing, conversion, or
processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or
independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any
packaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation,
compounding, packaging, or labeling of a controlled substance by: a practitioner or pharmacist as an incident to his or her
administering or delivering of a controlled substance in the course of his or her professional practice; a practitioner, or his or
her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or
chemical analysis, and not for sale. Section 893.02(15)(a), F.S.
6
  “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled
substance, whether or not there is an agency relationship. Section 893.02(6), F.S.
7
  A second degree felony is punishable by a term of imprisonment not exceeding 30 years and a $10,000 fine. Sections
775.082 and 775.083, F.S.
8
  Section 893.13(1)(a)1., F.S.
BILL:   CS/CS/CS/SB 718                                                                                             Page 4
         Under current law, delivering fentanyl or fentanyl derivatives to a person younger than 18 years
         of age is punishable as a first degree felony.9
         Distribution Resulting in Overdose or Serious Bodily Injury
         Section 893.131, F.S., provides that a person 18 years of age or older who unlawfully
         distributes10 the following substances and an overdose or serious bodily injury of the user results,
         commits a second degree felony:
          Heroin, as described in s. 893.03(1)(b)11., F.S.;
          Alfentanil, as described in s. 893.03(2)(b)1., F.S.;
          Carfentanil, as described in s. 893.03(2)(b)6., F.S;
          Fentanyl, as described in s. 893.03(2)(b)9., F.S;
          Sufentanil, as described in s. 893.03(2)(b)30., F.S;
          Fentanyl derivatives, as described in s. 893.03(1)(a)62., F.S;
          A controlled substance analog, as described in s. 893.0356, F.S, of any substance specified
             above; or
          A mixture containing any substance specified above.
         The substance or mixture must be proved to have caused or been a substantial factor in causing
         the overdose or serious bodily injury.
         A second or subsequent violation is a first degree felony.11
         Drug Trafficking
         Drug trafficking occurs when a person knowingly sells, purchases, manufactures, delivers, or
         brings into the state, or is in actual or constructive possession of, a specified quantity of a
         controlled substance.12 Generally, a drug trafficking offense is punishable as a first degree
         felony.13,14 Section 893.135, F.S., outlines threshold amounts of the applicable controlled
         substance for each trafficking offense. Drug trafficking offenses are subject to mandatory
         minimum sentences and heightened fines, which are determined by the threshold amounts.
         Under s. 893.135(1)(c)4., F.S., a person commits the first degree felony offense of trafficking in
         dangerous fentanyl or fentanyl analogues if he or she knowingly sells, purchases, manufactures,
9
  Section 893.13(4)(a), F.S.
10
   Sections 893.131(1)(a) and 893.02, F.S., defines distribute as to deliver, other than by administering or dispensing, a
controlled substance.
11
   Section 893.131(2)(b), F.S.
12
   Florida law criminalizes trafficking in cannabis; cocaine; illegal drugs, which include morphine, opium, hydromorphone,
or any salt derivative, isomer, or salt of an isomer thereof, including heroin; hydrocodone, oxycodone; fentanyl;
phencyclidine; methaqualone; amphetamine; flunitrazepam; gamma-hydroxybutryic (GHB); gamma-butryolactone (GBL);
1,4-Butanediol; phenethylamines; lysergic acid diethylamide (LSD); synthetic cannabinoids; and n-benzyl phenethylamines.
Section 893.135, F.S.
13
  A first degree felony is punishable by up to 30 years imprisonment and a $10,000 fine. Sections 775.082 and 775.083, F.S.
14
   Trafficking in certain controlled substances can be a capital offense under specified circumstances. See, e.g.,
s. 893.135(1)(h)2., F.S. (Any person who knowingly manufactures or brings into this state 400 grams or more of
amphetamine . . . who knows that the probable result of such manufacture or importation would be the death of any person
commits capital manufacture or importation of amphetamine, a capital felony).
BILL:   CS/CS/CS/SB 718                                                                                                Page 5
         delivers, or brings into this state, or is knowingly in actual or constructive possession of four
         grams or more of:
          Alfentanil, as described in s. 893.03(2)(b)1., F.S.;
          Carfentanil, as described in s. 893.03(2)(b)6., F.S.;
          Fentanyl, as described in s. 893.03(2)(b)9., F.S.;
          Sufentanil, as described as in s. 893.03(2)(b)30., F.S.;
          A fentanyl derivative, as described in s. 893.03(1)(a)62., F.S.;
          A controlled substance analog, as described in s. 893.0356, F.S., of any substance described
             in sub-sub-subparagraphs (I)-(V); or
          A mixture containing any substance described in sub-sub-subparagraphs (I)-(VI).
         In regards to the weighing of a mixture containing a controlled substance, the weight of the
         controlled substance is the total weight of the mixture, including the controlled substance and
         any other substance in the mixture.15
III.     Effect of Proposed Changes:
         The bill creates s. 893.132, F.S., relating to dangerous fentanyl exposure of first responders
         resulting in overdose or serious bodily injury. The bill defines first responder to include: a
         emergency medical technician and a paramedic as defined in s. 401.23, F.S.,16,17 a firefighter as
         defined in s. 633.102, F.S.,18 a correctional officer as defined in s. 943.10(2), F.S.,19 a
         correctional probation officer as defined in s. 943.10(3), F.S.,20 and a state or local law
         enforcement officer as defined in s. 943.10, F.S.,21 who is acting in his or her official capacity.
15
   Section 893.135(6), F.S.
16
   Section 401.23, F.S., defines “Emergency medical technician” as a person who is certified by the department to perform
basic life support pursuant to this part.
17
   Section 401.23, F.S., defines “Paramedic” as a person who is certified by the department to perform basic and advanced
life support pursuant to this part.
18
   Section 633.102, F.S., defines “Firefighter” as an individual who holds a current and valid Firefighter Certificate of
Compliance or Special Certificate of Compliance.
19
   Section 943.10(2), F.S., defines “Correctional officer” as any person who is appointed or employed full time by the state or
any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary
responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional
institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained
personnel.
20
   Section 943.10(3), F.S., defines “Correctional probation officer” as a person who is employed full time by the state whose
primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or
community controllees within institutions of the Department of Corrections or within the community. The term includes
supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional
probation officers, but excludes management and administrative personnel above, but not including, the probation and parole
regional administrator level.
21
   Section 943.10, F.S., defines “Law enforcement officer” as any person who is elected, appointed, or employed full time by
any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests;
and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or
highway laws of the state. The term includes all certified supervisory and command personnel whose duties include, in whole
or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-
time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the
employing agency. The term also includes a special officer employed by a Class I, Class II, or Class III railroad pursuant to
s. 354.01, F.S.
BILL:   CS/CS/CS/SB 718                                                                               Page 6
         The bill provides that it is a second degree felony for a person 18 years of age or older who, in
         the course of unlawfully possessing dangerous fentanyl or fentanyl analogs, recklessly exposes a
         first responder to such substance that results in an overdose or serious bodily injury of the