Stricken language would be deleted from and underlined language would be added to present law.
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State of Arkansas 1
94th General Assembly A Bill 2
Regular Session, 2023 HOUSE BILL 1456 3
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By: Representative Gazaway 5
By: Senator Gilmore 6
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For An Act To Be Entitled 8
AN ACT CREATING THE FENTANYL ENFORCEMENT AND 9
ACCOUNTABILITY ACT O F 2023; TO DECLARE A N EMERGENCY; 10
AND FOR OTHER PURPOS ES. 11
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Subtitle 14
CREATING THE FENTANYL ENFORCEMENT AND 15
ACCOUNTABILITY ACT OF 2023; CONCERNING 16
FENTANYL AND OTHER CONTROLLED SUBSTANCES; 17
TO ESTABLISH INCREASED PENALTIES; AND TO 18
DECLARE AN EMERGENCY. 19
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 22
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SECTION 1. DO NOT CODIFY. This act shall be known and may be cited as 24
the "Fentanyl Enforcement and Accountability Act of 2023”. 25
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SECTION 2. Arkansas Code Title 5, Chapter 10, is amended to add an 27
additional subchapter to read as follows: 28
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Subchapter 2 — Death by Delivery 30
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5-10-201. Definitions. 32
As used as this subchapter: 33
(1) "Cocaine" includes without limitation cocaine, an analog of 34
cocaine that is a cocaine -related controlled substance, and any chemical 35
structure modification to cocaine or a cocaine analog, including without 36 HB1456
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limitation the isomers, esters, ethers, and salts of cocaine; 1
(2) "Controlled substance" means the same as defined in § 5 -64-2
101; 3
(3)(A) "Convey" means to provide to a person or cause to pass 4
from a person to another person a controlled substance or counterfeit 5
substance. 6
(B) "Convey" does not include a person providing 7
prescription medication in good faith to a family member within the third 8
degree of consanguinity for the purpose of providing short -term relief for a 9
medical condition or physical injury; 10
(4) “Counterfeit substance” means the same as defined in § 5 -64-11
101; 12
(5) "Deliver" or "delivery" means the same as defined in § 5 -64-13
101; 14
(6) "Dispense" means the same as defined in § 5 -64-101; 15
(7) "Fentanyl" means the same as defined in § 5 -64-101; 16
(8) "Heroin" includes without limitation heroin, an analog of 17
heroin that is a heroin -related controlled substance, and any chemical 18
structure modification to heroin or a heroin analog, including witho ut 19
limitation the isomers, esters, ethers, and salts of heroin; 20
(9) "Methamphetamine" includes without limitation 21
methamphetamine, an analog of methamphetamine that is a methamphetamine -22
related controlled substance, and any chemical structure modifica tion to 23
methamphetamine or a methamphetamine analog, including without limitation the 24
isomers, esters, ethers, and salts of methamphetamine; 25
(10) "Minor" means a person who is younger than eighteen (18) 26
years of age; and 27
(11) "Practitioner" means th e same as defined in § 5 -64-101. 28
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5-10-202. Aggravated death by delivery. 30
(a) A person commits the offense of aggravated death by delivery if: 31
(1)(A) He or she knowingly delivers or conveys fentanyl to 32
another person; and 33
(B) The injection, ingestion, inhalation, or other 34
introduction of the fentanyl, including any adulterants or diluents, is the 35
cause of death of the other person; or 36 HB1456
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(2)(A) He or she knowingly delivers or conveys fentanyl, 1
methamphetamine, heroin, or cocaine to a minor; a nd 2
(B) The injection, ingestion, inhalation, or other 3
introduction of the fentanyl, methamphetamine, heroin, or cocaine, including 4
any adulterants or diluents, causes the death of the minor. 5
(b)(1) A person who commits the offense of aggravated dea th by 6
delivery under subdivision (a)(1) of this section upon conviction is guilty 7
of an unclassified felony and shall be sentenced to term of imprisonment of 8
no less than twenty (20) years nor more than sixty (60) years, or life. 9
(2)(A) Except as provid ed in subdivision (b)(2)(B) of this 10
section, a person who commits the offense of aggravated death by delivery 11
under subdivision (a)(2) of this section upon conviction is guilty of an 12
unclassified felony and shall be sentenced to a term of life imprisonment . 13
(B) A person who commits the offense of aggravated death 14
by delivery under subdivision (a)(2) of this section who is less than three 15
(3) years older than the minor whose death was caused upon conviction is 16
guilty of an unclassified felony and shall be sentenced to a term of 17
imprisonment of no less than twenty (20) years nor more than sixty (60) 18
years, or life. 19
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5-10-203. Death by delivery in the first degree. 21
(a) A person commits the offense of death by delivery in the first 22
degree if: 23
(1) He or she knowingly delivers or conveys methamphetamine, 24
heroin, or cocaine to another person; and 25
(2) The injection, ingestion, inhalation, or other introduction 26
of the methamphetamine, heroin, or cocaine, including any adulterants or 27
diluents, is the cause of death of the person. 28
(b)(1) Except as provided in subdivision (b)(2) of this section, death 29
by delivery in the first degree is a Class Y felony. 30
(2) Death by delivery in the first degree is a Class A felony if 31
the defendant proves by a preponderance of the evidence one (1) or more of 32
the following factors: 33
(A) The defendant does not have a prior felony conviction; 34
(B) The defendant played a minor or passive role in the 35
delivery or conveyance of the methamphetamine, heroin, or coc aine; 36 HB1456
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(C) The defendant was unaware of adulterants or diluents 1
in the methamphetamine, heroin, or cocaine that accelerated or contributed to 2
the death of the other person; or 3
(D) The defendant possessed the methamphetamine, heroin, 4
or cocaine for personal use and the conveyance was not part of a transaction 5
for which the defendant obtained income, resources, or benefits. 6
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5-10-204. Death by delivery in the second degree. 8
(a) A person commits the offense of death by delivery in the second 9
degree if: 10
(1) He or she knowingly delivers or conveys to another person: 11
(A) A controlled substance that is not fentanyl, 12
methamphetamine, heroin, or cocaine; or 13
(B) A counterfeit substance; and 14
(2) The injection, ingestion, inhalation, or other introduction 15
of the controlled substance or counterfeit substance, including any 16
adulterants or diluents, is the cause of death of the person. 17
(b)(1) Except as provided in subdivisions (b)(2) and (b)(3) of this 18
section, death by delivery in the second de gree is a Class A felony. 19
(2) Death by delivery in the second degree is a Class B felony 20
if the defendant proves by a preponderance of the evidence one (1) or more of 21
the following factors: 22
(A) The defendant does not have a prior felony conviction; 23
(B) The defendant played a minor or passive role in the 24
delivery or conveyance of the controlled substance or counterfeit substance; 25
(C) The defendant was unaware of adulterants or diluents 26
in the controlled substance or counterfeit substance that accelerated or 27
contributed to the death of the other person; or 28
(D) The defendant possessed the controlled substance or 29
counterfeit substance for personal use and the conveyance was not part of a 30
transaction for which the defendant obtained income, res ources, or benefits. 31
(3) Death by delivery in the second degree is a Class Y felony 32
if the state proves beyond a reasonable doubt one (1) or more of the 33
following factors: 34
(A) The defendant has a prior felony conviction for 35
delivery of a controlled substance under the Uniform Controlled Substances 36 HB1456
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Act, § 5-64-401 et. seq. or a similar law of another jurisdiction; 1
(B) The defendant manifested extreme indifference to the 2
value of human life during the commission of the offense; or 3
(C) The defendant knew the victim was vulnerable because 4
the victim was a minor, was sixty (60) years of age or older, or was an 5
incompetent person as defined in § 5 -64-407. 6
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5-10-205. Effect of subchapter on Joshua Ashley -Pauley Act. 8
This subchapter does not restr ict or interfere with the rights and 9
immunities provided in the Joshua Ashley -Pauley Act, § 20-13-1701 et. seq. 10
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5-10-206. Exemptions. 12
The following are not offenses under this subchapter: 13
(1) An individual practitioner acting in the usual course of 14
professional practice issuing a valid prescription for a controlled substance 15
for a legitimate medical purpose; 16
(2) A pharmacy, pharmacist, or an individual practitioner 17
dispensing, delivering, or administering a controlled substance pursuant to a 18
prescription; 19
(3) A permitted manufacturer, wholesaler, pharmacy, hospital, 20
long-term care facility, or other medical provider delivering, prescribing, 21
administering, or transferring a controlled substance available by 22
prescription for lawful purposes and in compliance with state and federal 23
law; and 24
(4) A pharmaceutical company manufacturing a controlled 25
substance available by prescription in compliance with state and federal law. 26
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5-10-207. Consensual ingestion not a defense. 28
It is not a defense to a prosecution under this subchapter that a 29
person knowingly and voluntarily consented to the injection, ingestion, 30
inhalation, or other introduction of the controlled substance or counterfeit 31
substance. 32
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5-10-208. Penalties not exclusive. 34
This subchapter and the criminal penalties provided in this subchapter 35
are in addition to any other criminal penalty a person may be subject to 36 HB1456
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under the Arkansas Criminal Code or the Uniform Controlled Substances Act, § 1
5-64-101 et. seq. 2
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5-10-209. Factors considered when determining whether a person 4
possessed a controlled substance for personal use. 5
For purposes of this subchapter, possession of a controlled substance 6
or counterfeit substance for personal use may be demonstrated through the 7
consideration of certain f actors, including without limitation: 8
(1) The person does not possess the means to weigh, separate, or 9
package the controlled substance or counterfeit substance; 10
(2) The person does not possess a record indicating a drug -11
related transaction; 12
(3) The controlled substance or counterfeit substance is not 13
separated or packaged in a manner to facilitate delivery; 14
(4) The person does not possess a firearm that is in the 15
immediate physical control of the person at the time of the delivery or 16
conveyance of the controlled substance or counterfeit substance; and 17
(5) The person does not possess other controlled substances or 18
counterfeit substances at the time of the delivery or conveyance. 19
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5-10-210. Accomplice liability. 21
An individual who is an accomplice under § 5 -2-403 to the delivery or 22
conveyance in § 5-10-202, § 5-10-203, or § 5-10-204 is an accomplice for the 23
purposes of this section. 24
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SECTION 3. Arkansas Code § 5 -64-101(12), concerning the definition of 26
"drug paraphernalia" under th e Uniform Controlled Substances Act, is amended 27
to add an additional subdivision to read as follows: 28
(D) "Drug paraphernalia" does not include a disposable, 29
single-use test strip that can detect the presence of fentanyl or fentanyl 30
analogs in a substance; 31
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SECTION 4. Arkansas Code § 5 -64-421, concerning offenses related to 33
the possession and delivery of fentanyl, is amended to add an additional 34
subsection to read as follows: 35
(i)(1)(A) A person commits the offense of predatory marketing of 36 HB1456
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fentanyl to minors if he or she possesses fentanyl with the purpose to 1
deliver, delivers fentanyl, or manufactures fentanyl; and 2
(B) The fentanyl possessed, delivered, or manufactured is 3
likely to appeal to minors due to the shape, color, taste, or design of the 4
fentanyl or the fentanyl's packaging, including without limitation: 5
(i) Products that are modeled after noncontrolled 6
substance products primarily consumed by and marketed to minors; 7
(ii) Products in the shape of an animal, a vehicle, 8
a person, or a character; or 9
(iii) Products that resemble food or beverages that 10
are attractive to minors and that are commonly sold in retail establishments 11
regardless of whether the food or beverages are generic, trademarked, or 12
branded products, incl uding without limitation products that resemble candy. 13
(2) A person who commits predatory marketing of fentanyl to 14
minors upon conviction is guilty of an unclassified felony and shall be 15
sentenced to a term of life imprisonment and a fine of one million dollars 16
($1,000,000). 17
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SECTION 5. Arkansas Code § 5 -64-440(c), concerning the offense of 19
trafficking a controlled substance, is amended to read as follows: 20
(c)(1) Trafficking a controlled substance is a Class Y felony. 21
(2) Trafficking of fentanyl is an unclassified felony with a 22
sentence of imprisonment of not less than twenty-five (25) years nor more 23
than sixty (60) years, or life, and a fine of one million dollars 24
($1,000,000). 25
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SECTION 6. EMERGENCY CLAUSE. It is found and determined by the 27
General Assembly of the State of Arkansas that illegal controlled substances, 28
including fentanyl, are a public health crisis; that the Arkansas State Crime 29
Labratory performed autopsies on four hundred ninety -six (496) drug overdose 30
deaths in 2021, and of th ose, two hundred eighty -two (282) or fifty-eight and 31
six-tenths percent (58.6%) involved fentanyl; that five (5) years prior, in 32
2016, there were two hundred seven (207) drug overdose deaths; that of those, 33
only eight (8) or three and eight -tenths percent (3.8%) involved fentanyl; 34
that the data reflects a one hundred forty percent (140%) increase in overall 35
drug overdose deaths and a three thousand four hundred twenty -five percent 36 HB1456
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(3,425%) increase in drug overdose deaths involving fentanyl; and this act 1
should become effective immediately to create enforcement and accountability 2
for the distribution of illegal substances and protect the health of Arkansas 3
citizens. Therefore, an emergency is declared to exist, and this act being 4
immediately necessary for t he preservation of the public peace, health, and 5
safety shall become effective on: 6
(1) The date of its approval by the Governor; 7
(2) If the bill is neither approved nor vetoed by the Governor, 8
the expiration of the period of time during which the Governor may veto the 9
bill; or 10
(3) If the bill is vetoed by the Governor and the veto is 11
overridden, the date the last house overrides the veto. 12
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