New Florida Bill Increases Penalties for Fentanyl

September 4, 2023 Don Pumphrey, Jr. Criminal Defense, Drug Charges, News & Announcements Social Share

Florida Governor Ron DeSantis first announced his plan for cracking down on fentanyl-related cases at the January 2023 Miami Police Benevolent Association. Since then, Florida lawmakers have been working on amending various drug statutes to help fight the growing issue of fentanyl overdoses.

As of May 1, 2023, Gov. DeSantis signed HB 1359 into law, amending the current penalties for the sale and distribution of fentanyl that is potentially targeted towards children with “rainbow fentanyl.” The new legal changes have created higher mandatory minimum sentencing for those convicted of selling or distributing fentanyl or fentanyl analogs.

This blog post will provide information on fentanyl, rainbow fentanyl, the changes made in HB 1359, and questioning whether stricter laws and penalties will impact overdoses in Florida. 

Rising Issue of Fentanyl and “Rainbow Fentanyl”

In the last several years, there has been a concerning trend of fentanyl cases in Florida and the rest of the United States. We have previously written blog posts on the dangers of fentanyl and recent spikes in fentanyl overdoses across Florida.

For a brief overview, fentanyl is a synthetic opioid. The DEA defines synthetic opioids as substances that have been created in a laboratory and act on the brain in the same way as natural opioids like morphine do for pain relief. However, fentanyl is estimated to be 50 times stronger than heroin and 100 times more potent than morphine.

There are two types of fentanyl: pharmaceutical fentanyl and illicitly manufactured fentanyl. Pharmaceutical fentanyl is legal when prescribed by a licensed doctor for managing pain. Illicitly manufactured fentanyl is the most common amongst recent overdoses, and has been found illegally sold in powder form, eye drops, or nasal spray. Additionally, it can be added to other illicit drugs such as marijuana or cocaine.

Given the increasing fentanyl cases across multiple states, law enforcement has been working towards creating new laws and regulations regarding the substance. Fentanyl is currently listed as a Schedule II controlled substance, meaning it is severely limited for medical use and has a high potential for abuse.

In 2022, the DEA released a warning for “rainbow fentanyl,” which is brightly colored fentanyl that can be sold in a manner making it difficult for parents and authorities to identify as fentanyl. For example, law enforcement seized 12,000 fentanyl pills after finding them hidden in brightly colored pills that also happened to be stored in popular branded candy boxes.

Attorney General Ashley Moody gave the following statement regarding the increasing fentanyl cases in Florida:

“The prevalence of this dangerous substance poses a critical threat not only to the wellbeing of the citizens and our state but also our nation.”

After Gov. DeSantis’ announcement of creating stricter laws for the sale and distribution of fentanyl, the Florida Legislature has finally worked on the varying amendments now codified under HB 1359.

Changes Under HB 1359

The main changes under HB 1359 relate to the sale and trafficking of fentanyl, specifically when it appears to be falsely advertised to children as food or candy. The amended laws and penalties under HB 1359 are listed for each type of offense below: 

Sale of a Controlled Substance

HB 1359 created an amendment to Florida Statutes Section 893.13 on the sale of controlled substances. The amendment now makes it a first-degree felony for any person who sells, manufactures, delivers, or possesses with the intent to sell, manufacture, or deliver any of the following substances:

• Alfentanil;
• Carfentanil;
• Fentanyl;
• Sufentanil;
• A fentanyl derivative;
• Controlled substance analog of such enumerated substances; or
• A mixture containing any of the above substances; and

Such substance(s) or mixture is in a form that resembles, is mixed with, is absorbed in, spray-dried, or aerosolized onto, coated on, or solubilized with or into, a product that fits at least one of the following characteristics:

• Resembles the trade dress of a branded food product, consumer product, or food logo product;
• Incorporates the actual or fake registered copyright, service mark, or trademark;
• Resembles any candy, cereal, gummy, vitamin, or chewable product, such as gum or gelatin-based product; or
• Contains a cartoon character imprint.

A first-degree felony in Florida has the penalties of up to a $10,000 fine and up to 30 years in prison. However, HB 1359 now requires a conviction under this section to result in a mandatory minimum prison sentence of 3 years.

Drug Trafficking

HB 1359 also amends Florida Statutes Section 893.135 on drug trafficking fentanyl or fentanyl-based substances. Now, any person who is 18 or older and is convicted of trafficking in dangerous fentanyl or fentanyl analogues to a minor will face a mandatory minimum prison term of 25 years not exceeding life imprisonment, along with a $1,000,000 fine if the fentanyl or fentanyl analog is in any form that resembles, is mixed with, is absorbed in, spray-dried, or aerosolized onto, coated on, or solubilized with or into, a product that fits any one of the following characteristics:

• Resembles the trade dress of a branded food product, consumer product, or food logo product;
• Incorporates the actual or fake registered copyright, service mark, or trademark;
• Resembles any candy, cereal, gummy, vitamin, or chewable product, such as gum or gelatin-based product; or
• Contains a cartoon character imprint.

Will Stricter Penalties Reduce Overdoses?

According to Florida Health, there were more than 6,150 deaths in Florida from fentanyl or fentanyl analogs during 2020. The following year, the Florida Department of Law Enforcement (FDLE) reported that fentanyl was the leading cause of overdose deaths, with 2,920 overdoses.

While Florida lawmakers passed HB 1359 with the intention of preventing fentanyl overdoses and apprehending those who illegally sell or distribute the substance, are stricter penalties the right answer?

A 2009 study on Correctional and Sentencing Reform for Drug Offenders explained that there is scientific evidence indicating that incarceration of drug offenders doesn’t have a significant effect on the discouraging of drug use. Further, states with higher rates of drug offender incarceration found they have higher rates of drug abuse within the community. A 2006 study found that there is a point where increased incarceration rates actually resulted in higher crime rates.

The report also points out that when individuals repeatedly abuse certain addictive drugs such as fentanyl, their brain functions will eventually be affected in some capacity. Changes to the brain can affect the person’s ability to fully understand the health, social, and legal consequences.

The Vera Institute of Justice addressed the emerging consensus from certain states that simple drug possession should be re-evaluated. Instead, communities could create cost-effective treatment programs that are better sanction options rather than incarceration.

Earlier this year, Gov. DeSantis passed SB 164, which decriminalized fentanyl testing strips. Florida Harm Reduction Collective Director Tim Santamour gave the following statement after the shift in legal standards:

“I think it’s an important step in curtailing the number of opioid overdoses in Florida. It may lead to folks making healthier decisions like cutting back on their use or even stopping use because they have an awareness of the risks they’re taking.”

Importance of Hiring a Drug Charges Defense Attorney

The passing of HB 1359 means defendants accused of certain drug-related crimes will now face harsher mandatory minimum sentences. While the issue of fentanyl should be taken extremely seriously, it could result in innocent individuals being sentenced to extremely long sentences.

Without obtaining fentanyl testing options such as Naloxone and Narcan, it can be difficult for a person to know if their substance is laced with fentanyl or fentanyl analogs. For example, a person who is caught with marijuana who did not know it was laced with fentanyl could be harshly prosecuted for fentanyl, even though they never intended to have the substance.

Any person facing criminal prosecution for drug-related offenses in Florida should consult a defense attorney. With proper legal guidance and support, a defendant can strategize possible defenses to a drug-related offense. An experienced defense attorney will be knowledgeable regarding the various drug charges and penalties. Depending on the defendant’s criminal history and case details, the defense attorney may be able to help find alternatives to incarceration, such as diversion programs.

Contact Pumphrey Law Firm to Represent Your Case

Have you or a loved one recently been accused of a drug offense in Florida? If so, you should prioritize seeking legal help from a Tallahassee criminal defense attorney. The state of Florida continues to take a harsh stance on drugs, resulting in continuously harsh legislation and penalties. If convicted of a drug offense, you could be faced with steep fines, long-term prison sentences, extensive probation periods, or all the above. Additionally, having a drug offense on your criminal record could potentially prevent you from finding a job or place to live.

To avoid these harsh punishments, contact Pumphrey Law Firm. Our team of attorneys work aggressively to help you earn back your freedom. Contact us for a free consultation today at (850) 681-7777 or send us a message online.

Written by Karissa Key

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