HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 95 Controlled Substance Offenses
SPONSOR(S): Criminal Justice & Public Safety Subcommittee, Plakon & other
TIED BILLS: IDEN./SIM. BILLS: SB 190
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice & Public Safety Subcommittee 14 Y, 4 N, As CS Padgett Hall
2) Justice Appropriations Subcommittee 9 Y, 4 N Saag Keith
3) Judiciary Committee 14 Y, 6 N Padgett Kramer
SUMMARY ANALYSIS
In 1972, facing an increase in illicit heroin use, Florida criminalized the unlawful distribution of a controlled substance
(heroin) causing a death as first degree murder. In the years since, the list of substances which can serve as the basis
for a first degree murder conviction has expanded to reflect the dangers from additional controlled substances as their
use increased. Under s. 784.04(1)(a)3., F.S., a person 18 years of age or older who unlawfully distributes specified
controlled substances commits first degree murder by causing the death of a victim by the unlawful distribution of a
controlled substance if the proximate cause of his or her death was the use of such controlled substances. A
defendant’s conduct is the proximate cause of another’s death if the conduct was the primary or moving cause of the
death, the death would not have occurred but for the defendant's c onduct, and the death was a natural and
reasonably anticipated consequence of the defendant's conduct. Prosecutors have reported difficulty in prosecuting
such cases under the proximate cause standard where a victim has multiple controlled substances or alcohol in his or
her system. In these cases, a medical examiner may not be able to determine the primary or moving cause of a
victim’s death and may be unable to determine a victim’s death would not have occurred but for ingestion of one of the
enumerated controlled substances.
CS/HB 95 amends s. 782.04(1)(a)3., F.S., to change the causation requirement for death caused by the unlawful
distribution of a controlled substance to require that such distribution is proven to “have caused, or is proven to have
been a substantial factor in producing the death of the user.” “Substantial factor” is defined to mean the “use of the
substance or mixture alone is sufficient to cause death, regardless of whether any other substance or mixture used is
also sufficient to cause death.”
Recently, Florida has been confronted with a new health crisis in the opioid epidemic. In 2019, Governor DeSantis
created the Statewide Task Force on Opioid Abuse (Task Force) and directed the Task Force to develop a statewide
strategy to identify best practices to combat the opioid epidemic through education, treatment, prevention, recovery,
and law enforcement, and compile a report containing legislative recommendations.
The bill amends s. 782.04(1)(a)3., F.S., to implement a recommendation of the Task Force by adding
methamphetamine to the list of specified controlled substances which, if the substance caused or is proven to have
been a substantial factor in producing the victim’s death, can subject the person who distributed the controlled
substance to a conviction for first degree murder.
The bill also amends s. 893.13(1)(h), F.S., to implement a second recommendation of the Task Force by increasing
the penalties for sale of a controlled substance from a third degree felony to a second d egree felony, and from a
second degree felony to a first degree felony, when the offense is committed within 1,000 feet of a substance abuse
treatment facility.
The Criminal Justice Impact Conference reviewed a prior version of the bill with similar lang uage on March 24, 2021
and determined provisions in the bill may have a positive indeterminate impact to the prison population. The bill may
result in an increase of prison beds by an unquantifiable amount.
The bill provides an effective date of October 1, 2022.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Controlled Substances
Florida Law
Chapter 893, F.S., the Florida Comprehensive Drug Abuse Prevention and Control Act, classifies
controlled substances 1 into five categories, called schedules. These schedules regulate the
manufacture, distribution, preparation, and dispensing of the substances listed therein. The
distinguishing factors between the different drug schedules are the “potential for abuse” 2 of the
substance and whether there is a currently accepted medical use for the substance. 3
The controlled substance schedules are as follows:
Schedule I substances have a high potential for abuse and currently have no accepted medical
use in the United States, including substances such as cannabis and heroin. 4
Schedule II substances have a high potential for abuse and have a currently accepted but
severely restricted medical use in the United States, including substances such as raw opium,
fentanyl, and codeine.5
Schedule III substances have a potential for abuse less than the substances contained in
Schedules I and II and have a currently accepted medical use in the United States, including
substances such as stimulants and anabolic steroids. 6
Schedule IV substances have a low potential for abuse relative to substances in Schedule III
and have a currently accepted medical use in the United States, including substances such as
benzodiazepines and barbiturates.7
Schedule V substances have a low potential for abuse relative to the substances in Schedule IV
and have a currently accepted medical use in the United States, including substances such as
mixtures that contain small quantities of opiates, narcotics, or stimulants. 8
Federal Law
The Federal Controlled Substances Act9 also classifies controlled substances into schedules based on
the potential for abuse and whether there is a currently accepted medical use for the substance. The
Drug Enforcement Administration (DEA) is required to consider the following when determining where
to schedule a substance:10
The substance’s actual or relative potential for abuse;
Scientific evidence of the substance’s pharmacological effect, if known;
The state of current scientific knowledge regarding the substance;
The substance’s history and current pattern of abuse;
1
“Controlled substance” means any substance named or described in Schedules I-V of s. 893.03, F.S. S. 893.02(4), F.S.
2 “Potential for abuse” means that a substance has properties as a central nervous system stimulant or depressant or a hallucin ogen
that create a substantial likelihood of its being: 1) used in amounts that create a hazard to the user’s health or safety of the community;
2) diverted from legal channels and distributed through illegal channels; or 3) taken on the user’s own initiative rather tha n on the basis
of professional medical advice. S. 893.035(3)(a), F.S.
3 See s. 893.03, F.S.
4 S. 893.03(1), F.S.
5 S. 893.03(2), F.S.
6 S. 893.03(3), F.S.
7 S. 893.03(4), F.S.
8 S. 893.03(5), F.S.
9 21 U.S.C. § 812.
10 21 U.S.C. § 811(c).
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The scope, duration, and significance of abuse;
What, if any, risk there is to public health;
The substance’s psychic or physiological dependence liability; and
Whether the substance is an immediate precursor of a substance already controlled.
Methamphetamine
Methamphetamine is a highly addictive stimulant that affects the central nervous system that is
classified as a Schedule II controlled substance under state and federal law.11 Nationally, overdoses
from methamphetamine increased ten-fold in the period from 2009-2019.12 During the 12 month period
ending August 2020, there were 21,405 methamphetamine overdose deaths in the United States, and
1,273 methamphetamine overdose deaths in Florida.13 Recent studies have shown an increase in the
use of methamphetamine in combination with opioids, with users reporting the stimulant effect of the
methamphetamine acts to balance out the sleepiness that accompanies opioid us e.14 However, the
combination can enhance the lethality of the drugs by exacerbating the individual cardiovascular and
pulmonary effects of each drug.15
Death Caused by the Unlawful Distribution of a Controlled Substance
Murder
Under s. 782.04(1)(a)3., F.S., a person 18 years of age or older who unlawfully distributes specified
controlled substances commits first degree murder by causing a victim’s death by the unlawful
distribution of a controlled substance if the proximate cause of his or her death was the use of such
controlled substances. The enumerated controlled substances include:
A substance controlled under s. 893.03(1), F.S.;16
Cocaine, as described in s. 893.03(2)(a)4., F.S.;
Opium or any synthetic or natural salt, compound, derivative, or preparation of opium;
Methadone;
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.; or
A controlled substance analog17 of any of the substances specified above.
First degree murder is a capital felony18, punishable by a sentence of death or life imprisonment without
the possibility of parole.19
A person commits third degree murder if he or she unlawfully kills a human being, without any design to
effect death, while perpetrating or attempting to perpetrate any felony other than a felony listed in s.
782.04(4), F.S.20 One of the felonies listed is “death caused by the unlawful distribution of a substance
11
National Institutes of Health, Methamphetamine Research Report, https://www.drugabuse.gov/publications/research-
reports/methamphetamine/overview (last visited Jan. 13, 2022). S. 893.03(2)(c)2., F.S.
12 Id.
13 National Center for Health Statistics, Provisional Drug Overdose Death Counts, https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-
data.htm (last visited Jan. 13, 2022).
14
National Institute on Drug Abuse, Rising Stimulant Deaths Show that We Face More than Just an Opioid Crisis,
https://www.drugabuse.gov/about-nida/noras-blog/2020/11/rising-stimulant-deaths-show-we-face-more-than-just-opioid-crisis (last
visited Jan. 13, 2022).
15 Id.
16 Section 893.03(1), F.S., contains Schedule I controlled substances.
17
A “controlled substance analog” is defined as a substance which, due to its chemical structure and potential for abuse, meets the
following criteria:
Is substantially similar to that of a controlled substance listed in Schedule I or Schedule II of s. 893.03; and
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 o f a
controlled substance listed in Schedule I or Schedule II of s. 893.03. S. 893.0356(2)(a), F.S.
18 S. 782.04(1)(a), F.S.
19 S. 775.082(1)(a), F.S.
20 S. 782.04(4), F.S.
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controlled under s. 893.03(1), F.S., cocaine as described in s. 893.03(2)(a)4., F.S., or opium if such
substance is proven to be the proximate cause of the death of the user”.21 As such, a person who
causes another’s death by distributing one of these controlled substances cannot be prosecuted for
third degree murder because he or she can already be prosecuted for first degree murder under s.
782.04(1)(a)3., F.S.
Causation Requirement
Under the Florida Standard Jury Instructions for death caused by unlawful distribution of a controlled
substance, “[a] defendant's conduct is the proximate cause of another's death if the conduct was the
primary or moving cause of the death; the death would not have occurred but for the defendant's
conduct; and the death was a natural and reasonably anticipated consequence of the defendant's
conduct.”22 Prosecutors have reported difficulty in prosecuting such cases under the proximate cause
standard where a victim has multiple controlled substances or alcohol in his or her system. In these
cases, a medical examiner may not be able to determine the primary or moving cause of a victim’s
death and may be unable to determine that a victim’s death would not have occurred but for ingestion
of one of the enumerated controlled substances.23 In circumstances where a medical examiner is
unable to provide a definitive opinion that one of the enumerated substances was the proximate cause
of a victim’s death, prosecution under the current law for is virtually impossible.
Sale of a Controlled Substance
Section 893.13, F.S., prohibits a person from selling, manufacturing24, or delivering25 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. Generally,
sale of a controlled substance is punishable as either a second degree felony26 or third degree felony.27
The penalties are enhanced to a second degree felony or first degree felony if the sale occurs within
1,000 feet of the real property of specified locations, including a:
Child care facility;
Public or private elementary, middle, or secondary school;
State, county, or municipal park;
Community center or publicly owned recreational facility;
Public or private college, university, or other postsecondary institution;
Place of worship that conducts religious services;
Convenience business;
Public housing facility; or
Assisted living facility.
Offense Severity Ranking Chart
21
S. 782.04(4)(l), F.S.
22 Fla. Std. Jury Instr. (Crim.) 7.3(a). See also Aumuller v. State, 944 So.2d 1137 (Fla. 2d DCA 2006).
23 Letter from Daniel E. Faggard, Assistant State Attorney, Eighteenth Judicial Circuit, HB 325, Re: Substantial Factor Test (Fe b. 5,
2021).
24
“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 independent ly 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, packag ing, 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. S. 893.02(15)(a), F.S.
25 “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one per son to another of a controlled substance,
whether or not there is an agency relationship. S. 893.02(6), F.S.
26 A second degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. Ss. 775.082 and 775.083, F.S.
27 S. 893.13(1), F.S. A third degree felony is punishable by up to five years imprisonment and a $5,000 fine. Ss. 775.082 and 77 5.083,
F.S.
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Felony offenses subject to the Criminal Punishment Code (CPC) are listed in a single offense severity
ranking chart (OSRC), which uses 10 offense levels to rank felonies from least severe (Level 1) to most
severe (Level 10). Each felony offense is assigned to a level according to the severity of the offense,
commensurate with the harm or potential for harm to the community that is caused by the offense, as
determined by statute. A person’s primary offense, any other current offenses, and prior offenses are
scored using the points designated for the offense severity level of each offense. The final calculation,
following the scoresheet formula, determines the lowest permissible sentence that the trial court may
impose, absent a valid reason for departure.28 If an offense is unranked, the CPC specifies a default
level on the OSRC depending on the felony degree of the offense.29
Statewide Task Force on Opioid Abu