Gov. Ron DeSantis signed new legislation into law that imposes higher penalties for fentanyl trafficking. This new law was enacted along with hundreds of others that were passed during the 2022 legislative session.
The legislation, House Bill 95, titled “Controlled substances” officially took effect on October 1. While the legislation targets crimes committed relating to the drug fentanyl, it covers all types of controlled substances.
Reasoning behind the new legislation
Fentanyl abuse has become a major issue in our country, which is why the U.S. Centers for Disease Control (CDC) has focused so much of its efforts on educating the public about its misuse. According to the CDC, fentanyl is responsible for the biggest increase in deaths reported for individuals between the ages of 18 and 45. Because of this increase, the CDC has also seen a 30 percent increase in overdose deaths.
In its most basic form, fentanyl is a powerful synthetic opioid, like morphine. The difference is fentanyl can be 50 to 100 times more potent than morphine. In its prescription form, fentanyl can come under the names, Actiq®, Duragesic®, and Sublimaze®. Similar to the drug morphine, fentanyl has been commonly used to treat patients suffering from severe pain, especially after major surgery. Fentanyl has also been used to treat patients who suffer from chronic pain who are otherwise physically tolerant to other opioids. However, once someone starts using fentanyl and continues to use it for a length of time, he or she can build up a level of tolerance. The more the person uses it, the more tolerant he or she becomes to its effects. Oftentimes, this pattern continues until an unhealthy habit of misuse develops. Unfortunately, it can be too late before anyone notices that the person has developed an addiction to the drug.
According to the Florida Medical Examiner’s Commission, the drug fentanyl caused 5,300 deaths in 2020. During the first half of 2021, the number of opioid-related deaths increased by five percent statewide. However, the number of fentanyl-related deaths increased by approximately 10 percent.
In Polk County alone, 116 people died from fentanyl overdoses in 2021. This figure is up from the 106 reported in Polk County in 2020.
Gov. DeSantis signed the bill at the Polk County Fire Rescue Station 23. Polk Sheriff Grady Judd, Seminole County Sheriff Dennis Lemma, and other local first responders, were present for the signing.
According to a statement made by a paramedic with the Polk County Fire Rescue Department who was present at the bill signing, the hope is that the myths behind who traffics fentanyl or other similar substances, can be eradicated. Many times, when you think of someone who abuses fentanyl, you think of your stereotypical addict or junkie and dealers. Unfortunately, the fentanyl crisis extends much further than that. It affects families and children of people who abuse the drug. In fact, fentanyl abuse often starts as something harmless in the eyes of the person taking it before it grows into a problem they can no longer control.
Changes made by the law
Under Florida Statute 893.135(1)(f), a person is guilty of trafficking methamphetamine if 1) he or she knowingly sold, purchased, manufactured, delivered, brought into Florida, or possessed a certain substance; 2) the substance is known as methamphetamine or amphetamine; and 3) the amount of methamphetamine or amphetamine weighed 14 grams or more. The new law modifies this statute by changing the required amount needed to qualify for a trafficking charge by lowering the amount, significantly. All changes made by HB 95 are made to already-existent drug regulations in Florida Statutes.
The bill adds methamphetamines to the list of controlled substances. If use of the drug results in someone’s death, the person who sold or distributed the methamphetamine can be charged with first-degree felony murder. This means the drug must have been the proximate cause of the person’s death. The list of drugs includes cocaine, opium, methadone, alfentanil, carfentanil, fentanyl, and sufentanil.
The new law also increases the mandatory minimum sentences for trafficking fentanyl. Offenders will face the possibility of seven years incarceration for trafficking 4 to 14 grams of fentanyl. Previously, the minimum sentence was three years of incarceration. People carrying between 4 to 14 grams of fentanyl will face charges of “trafficking in dangerous fentanyl or fentanyl analogues” and could face first-degree felony charges. In addition to seven years of prison time, the offender can also face fines of $50,000.
For offenders carrying 14 to 28 grams of fentanyl, they will face a minimum sentence of 20 years of prison time, if convicted, as well as a $100,000 fine. The previous minimum sentence was 15 years of incarcerated. If the amount of fentanyl mixed in with other controlled substances is more than 28 grams, the offender faces a minimum sentence of 25 years in prison and a $500,000 crime.
Also under HB 95, a person who engages in the perpetration of trafficking methamphetamine that results in another person’s death can be considered premeditated murder. Premeditated murder when committed by a person trafficking methamphetamine will now be included in the list of felonies under Florida law.
This new law also increases the penalties required for people convicted of selling controlled substances within 1,000 feet of a substance-abuse treatment facility. These facilities include hospitals and healthcare facilities that provide substance abuse treatment. HB 95 requires that selling, making, delivering, or possessing controlled substances within 1,000 feet of a substance-abuse treatment facility results in a $500 fine and 100 hours of public service, at minimum, in addition to other legal penalties that may be enforced.
What is Drug Trafficking?
Most people think drug trafficking is a large-scale operation dealing with drugs. However, that could not be further from the truth. In fact, in the State of Florida, the only difference between drug trafficking and possession is the amount of the controlled substance involved. Trafficking includes the sale, purchase, manufacturing, or delivering of controlled substances into the state. Trafficking can include both actual and constructive possession of the controlled substance.
Actual possession of the drug means the person actually has control over the drug. It is on his or her person. However, constructive possession involves a person having knowledge of the controlled substance and the ability to control it. If you are in an area near a large amount of a controlled substance, you could be charged with drug trafficking under the theory of constructive possession. You can be convicted of possession of a drug in the State of Florida even if you do not have the drug on your person. The laws of possession in Florida are broad.
Drug trafficking comes with minimum mandatory sentences, which is what this new law adjusts. What this means is if you are found guilty of trafficking, the judge must sentence you to the minimum mandatory sentence required by law.
Defenses to Trafficking Fentanyl
While every case is different, some common defenses can be used in your average trafficking case. Many times, you may not have any controlled substance on your person, which means the state will have a tough time proving possession and knowledge. Another defense can involve how the controlled substances were seized by law enforcement. If the police did not have a valid search warrant and that is how they found the controlled substance, you may have a valid defense. You may also have a valid defense if the police illegally searched you or your property before finding the controlled substance.
If you did consent to a search by the police, if it can be established that your consent was not valid, that may be another successful defense, as well.
Consent may not be valid by someone who is underage, intoxicated, or incapacitated by drugs or alcohol. If you provided consent for search after being intimidated or threatened by law enforcement, your consent to search may not be valid. Any of these defenses can be raised to successfully fight a drug trafficking charge.
Whatever you do, it is important you consult with an experienced criminal defense attorney before agreeing to speak with the police about any possible fentanyl or other controlled substances trafficking charges. The police will use whatever tactics they can to get you to admit to the crime, even if you did not commit it. Having a strong legal advocate on your side can help you avoid serious consequences associated with the charges.
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