Stricken language would be deleted from and underlined language would be added to present law.
Act 584 of the Regular Session
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State of Arkansas As Engrossed: H4/3/23 1
94th General Assembly A Bill 2
Regular Session, 2023 HOUSE BILL 1456 3
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By: Representatives Gazaway, Beaty Jr., M. Berry, Lundstrum, Maddox, S. Berry, C. Cooper, Eubanks, 5
Gonzales, Haak, Hollowell, Long, J. Mayberry, S. Meeks, J. Moore, Ray, Richmond, Rye, Watson, 6
Wooldridge 7
By: Senators Gilmore, J. Dismang, J. Boyd, J. Bryant, Crowell, B. Davis, Dees, J. Dotson, J. English, 8
Flippo, K. Hammer, Hester, Hill, Irvin, B. Johnson, M. Johnson, B. King, M. McKee, J. Payton, C. Penzo, 9
J. Petty, Rice, Stone, G. Stubblefield, D. Sullivan, D. Wallace 10
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For An Act To Be Entitled 12
AN ACT CREATING THE FENTANYL ENFORCEMENT AND 13
ACCOUNTABILITY ACT O F 2023; TO DECLARE A N EMERGENCY; 14
AND FOR OTHER PURPOS ES. 15
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Subtitle 18
CREATING THE FENTANYL ENFORCEMENT AND 19
ACCOUNTABILITY ACT OF 2023; CONCERNING 20
FENTANYL AND OTHER CONTROLLED SUBSTANCES; 21
TO ESTABLISH INCREASED PENALTIES; AND TO 22
DECLARE AN EMERGENCY. 23
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 26
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SECTION 1. DO NOT CODIFY. This act shall be known and may be cited as 28
the "Fentanyl Enforcement and Accountability Act of 2023”. 29
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SECTION 2. Arkansas Code Title 5, Chapter 10, is amended to add an 31
additional subchapter to read as follows: 32
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Subchapter 2 — Death by Delivery 34
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5-10-201. Definitions. 36 As Engrossed: H4/3/23 HB1456
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As used as this subchapter: 1
(1) "Cocaine" includes without limitation cocaine, an analog of 2
cocaine that is a cocaine -related controlled substance, and any chemical 3
structure modification to cocaine or a cocaine analog, including without 4
limitation the isomers, esters, ethers, and salts of cocaine; 5
(2) "Controlled substance" means the same as defined in § 5 -64-6
101; 7
(3)(A) "Convey" means to provide to a person or cause to pass 8
from a person to another person a controlled substance or counterfeit 9
substance. 10
(B) "Convey" does not include a person providing 11
prescription medication in good faith to a family member within the third 12
degree of consanguinity for the purpose of providing short -term relief for a 13
medical condition or physical injury; 14
(4) “Counterfeit substance” means the same as defined in § 5 -64-15
101; 16
(5) "Deliver" or "delivery" means the same as defined in § 5 -64-17
101; 18
(6) "Dispense" means the same as defined in § 5 -64-101; 19
(7) "Fentanyl" means the same as defined in § 5 -64-101; 20
(8) "Heroin" includes without limitation heroin, an analog of 21
heroin that is a heroin -related controlled substance, and any chemical 22
structure modification to heroin or a heroin analog, including witho ut 23
limitation the isomers, esters, ethers, and salts of heroin; 24
(9) "Methamphetamine" includes without limitation 25
methamphetamine, an analog of methamphetamine that is a methamphetamine -26
related controlled substance, and any chemical structure modifica tion to 27
methamphetamine or a methamphetamine analog, including without limitation the 28
isomers, esters, ethers, and salts of methamphetamine; 29
(10) "Minor" means a person who is younger than eighteen (18) 30
years of age; and 31
(11) "Practitioner" means th e same as defined in § 5 -64-101. 32
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5-10-202. Aggravated death by delivery. 34
(a) A person commits the offense of aggravated death by delivery if: 35
(1)(A) He or she knowingly delivers or conveys fentanyl to 36 As Engrossed: H4/3/23 HB1456
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another person; and 1
(B) The injection, ingestion, inhalation, or other 2
introduction of the fentanyl, including any adulterants or diluents, is the 3
cause of death of the other person; or 4
(2)(A) He or she knowingly delivers or conveys fentanyl, 5
methamphetamine, heroin, or cocaine to a minor; a nd 6
(B) The injection, ingestion, inhalation, or other 7
introduction of the fentanyl, methamphetamine, heroin, or cocaine, including 8
any adulterants or diluents, causes the death of the minor. 9
(b)(1) A person who commits the offense of aggravated dea th by 10
delivery under subdivision (a)(1) of this section upon conviction is guilty 11
of an unclassified felony and shall be sentenced to term of imprisonment of 12
no less than twenty (20) years nor more than sixty (60) years, or life. 13
(2)(A) Except as provid ed in subdivision (b)(2)(B) of this 14
section, a person who commits the offense of aggravated death by delivery 15
under subdivision (a)(2) of this section upon conviction is guilty of an 16
unclassified felony and shall be sentenced to a term of life imprisonment . 17
(B) A person who commits the offense of aggravated death 18
by delivery under subdivision (a)(2) of this section who is less than three 19
(3) years older than the minor whose death was caused upon conviction is 20
guilty of an unclassified felony and shall be sentenced to a term of 21
imprisonment of no less than twenty (20) years nor more than sixty (60) 22
years, or life. 23
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5-10-203. Death by delivery in the first degree. 25
(a) A person commits the offense of death by delivery in the first 26
degree if: 27
(1) He or she knowingly delivers or conveys methamphetamine, 28
heroin, or cocaine to another person; and 29
(2) The injection, ingestion, inhalation, or other introduction 30
of the methamphetamine, heroin, or cocaine, including any adulterants or 31
diluents, is the cause of death of the person. 32
(b)(1) Except as provided in subdivision (b)(2) of this section, death 33
by delivery in the first degree is a Class Y felony. 34
(2) Death by delivery in the first degree is a Class A felony if 35
the defendant proves by a preponderance of the evidence one (1) or more of 36 As Engrossed: H4/3/23 HB1456
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the following factors: 1
(A) The defendant does not have a prior felony conviction; 2
(B) The defendant played a minor or passive role in the 3
delivery or conveyance of the methamphetamine, heroin, or coc aine; 4
(C) The defendant was unaware of adulterants or diluents 5
in the methamphetamine, heroin, or cocaine that accelerated or contributed to 6
the death of the other person; or 7
(D) The defendant possessed the methamphetamine, heroin, 8
or cocaine for personal use and the conveyance was not part of a transaction 9
for which the defendant obtained income, resources, or benefits. 10
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5-10-204. Death by delivery in the second degree. 12
(a) A person commits the offense of death by delivery in the second 13
degree if: 14
(1) He or she knowingly delivers or conveys to another person: 15
(A) A controlled substance that is not fentanyl, 16
methamphetamine, heroin, or cocaine; or 17
(B) A counterfeit substance; and 18
(2) The injection, ingestion, inhalation, or other introduction 19
of the controlled substance or counterfeit substance, including any 20
adulterants or diluents, is the cause of death of the person. 21
(b)(1) Except as provided in subdivisions (b)(2) and (b)(3) of this 22
section, death by delivery in the second de gree is a Class A felony. 23
(2) Death by delivery in the second degree is a Class B felony 24
if the defendant proves by a preponderance of the evidence one (1) or more of 25
the following factors: 26
(A) The defendant does not have a prior felony conviction; 27
(B) The defendant played a minor or passive role in the 28
delivery or conveyance of the controlled substance or counterfeit substance; 29
(C) The defendant was unaware of adulterants or diluents 30
in the controlled substance or counterfeit substance that accelerated or 31
contributed to the death of the other person; or 32
(D) The defendant possessed the controlled substance or 33
counterfeit substance for personal use and the conveyance was not part of a 34
transaction for which the defendant obtained income, res ources, or benefits. 35
(3) Death by delivery in the second degree is a Class Y felony 36 As Engrossed: H4/3/23 HB1456
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if the state proves beyond a reasonable doubt one (1) or more of the 1
following factors: 2
(A) The defendant has a prior felony conviction for 3
delivery of a controlled substance under the Uniform Controlled Substances 4
Act, § 5-64-401 et. seq. or a similar law of another jurisdiction; 5
(B) The defendant manifested extreme indifference to the 6
value of human life during the commission of the offense; or 7
(C) The defendant knew the victim was vulnerable because 8
the victim was a minor, was sixty (60) years of age or older, or was an 9
incompetent person as defined in § 5 -64-407. 10
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5-10-205. Effect of subchapter on Joshua Ashley -Pauley Act. 12
This subchapter does not restr ict or interfere with the rights and 13
immunities provided in the Joshua Ashley -Pauley Act, § 20-13-1701 et. seq. 14
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5-10-206. Exemptions. 16
The following are not offenses under this subchapter: 17
(1) An individual practitioner acting in the usual course of 18
professional practice issuing a valid prescription for a controlled substance 19
for a legitimate medical purpose; 20
(2) A pharmacy, pharmacist, or an individual practitioner 21
dispensing, delivering, or administering a controlled substance pursuant to a 22
prescription; 23
(3) A permitted manufacturer, wholesaler, pharmacy, hospital, 24
long-term care facility, or other medical provider delivering, prescribing, 25
administering, or transferring a controlled substance available by 26
prescription for lawful purposes and in compliance with state and federal 27
law; and 28
(4) A pharmaceutical company manufacturing a controlled 29
substance available by prescription in compliance with state and federal law. 30
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5-10-207. Consensual ingestion not a defense. 32
It is not a defense to a prosecution under this subchapter that a 33
person knowingly and voluntarily consented to the injection, ingestion, 34
inhalation, or other introduction of the controlled substance or counterfeit 35
substance. 36 As Engrossed: H4/3/23 HB1456
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1
5-10-208. Penalties not exclusive. 2
This subchapter and the criminal penalties provided in this subchapter 3
are in addition to any other criminal penalty a person may be subject to 4
under the Arkansas Criminal Code or the Uniform Controlled Substances Act, § 5
5-64-101 et. seq. 6
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5-10-209. Factors considered when determining whether a person 8
possessed a controlled substance for personal use. 9
For purposes of this subchapter, possession of a controlled substance 10
or counterfeit substance for personal use may be demonstrated through the 11
consideration of certain f actors, including without limitation: 12
(1) The person does not possess the means to weigh, separate, or 13
package the controlled substance or counterfeit substance; 14
(2) The person does not possess a record indicating a drug -15
related transaction; 16
(3) The controlled substance or counterfeit substance is not 17
separated or packaged in a manner to facilitate delivery; 18
(4) The person does not possess a firearm that is in the 19
immediate physical control of the person at the time of the delivery or 20
conveyance of the controlled substance or counterfeit substance; and 21
(5) The person does not possess other controlled substances or 22
counterfeit substances at the time of the delivery or conveyance. 23
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5-10-210. Accomplice liability. 25
An individual who is an accomplice under § 5 -2-403 to the delivery or 26
conveyance in § 5-10-202, § 5-10-203, or § 5-10-204 is an accomplice for the 27
purposes of this section. 28
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SECTION 3. Arkansas Code § 5 -64-101(12), concerning the definition of 30
"drug paraphernalia" under th e Uniform Controlled Substances Act, is amended 31
to add an additional subdivision to read as follows: 32
(D) "Drug paraphernalia" does not include a disposable, 33
single-use test strip that can detect the presence of fentanyl or fentanyl 34
analogs in a substance; 35
36 As Engrossed: H4/3/23 HB1456
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SECTION 4. Arkansas Code § 5 -64-421, concerning offenses related to 1
the possession and delivery of fentanyl, is amended to add an additional 2
subsection to read as follows: 3
(i)(1)(A) A person commits the offense of predatory marketing of 4
fentanyl to minors if he or she possesses fentanyl with the purpose to 5
deliver, delivers fentanyl, or manufactures fentanyl; and 6
(B) The fentanyl possessed, delivered, or manufactured is 7
likely to appeal to minors due to the shape, color, taste, or design of the 8
fentanyl or the fentanyl's packaging, including without limitation: 9
(i) Products that are modeled after noncontrolled 10
substance products primarily consumed by and marketed to minors; 11
(ii) Products in the shape of an animal, a vehicle, 12
a person, or a character; or 13
(iii) Products that resemble food or beverages that 14
are attractive to minors and that are commonly sold in retail establishments 15
regardless of whether the food or beverages are generic, trademarked, or 16
branded products, incl uding without limitation products that resemble candy. 17
(2) A person who commits predatory marketing of fentanyl to 18
minors upon conviction is guilty of an unclassified felony and shall be 19
sentenced to a term of life imprisonment and a fine of one million dollars 20
($1,000,000). 21
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SECTION 5. Arkansas Code § 5 -64-440(c), concerning the offense of 23
trafficking a controlled substance, is amended to read as follows: 24
(c)(1) Trafficking a controlled substance is a Class Y felony. 25
(2) Trafficking of fentanyl is an unclassified felony with a 26
sentence of imprisonment of not less than twenty-five (25) years nor more 27
than sixty (60) years, or life, and a fine of one million dollars 28
($1,000,000). 29
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SECTION 6. Arkansas Code § 16 -93-1802(1)(B), if enacted by SB495 of 31
the Ninety-fourth General Assembly, concerning the list of offenses within 32
the definition of "felony ineligible for earned release credits", is amended 33
to add additional subdivisions to read as follows: 34
(xix) Aggravated death by delivery, § 5-10-202; and 35
(xx) Predatory marketing of fentanyl to minors, § 5 -36 As Engrossed: H4/3/23 HB1456
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64-421(i). 1
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SECTION 7. Arkansas Code § 16 -93-1802(2)(B), if enacted by SB495 of 3
the Ninety-fourth General Assembly, concerning the list of offenses within 4
the definition of "restric ted release felony", is amended to add additional 5
subdivisions to read as follows: 6
(liv) Death by delivery in the first degree, § 5 -10-7
203; and 8
(lv) Death by delivery in the second degree, § 5 -10-9
204. 10
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SECTION 8. DO NOT CODIFY. EFFECTIVE DATE. 12
(a) Sections 6 and 7 of this act shall become effective on January 1, 13
2024, if SB495 of the Ninety -fourth General Assembly is enacted by the 14
General Assembly and becomes an act. 15
(b) If SB495 of the Ninety -fourth General Assembly does not become a n 16
act, Sections 6 and 7 of this act shall not become effective. 17
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SECTION 9. EMERGENCY CLAUSE. It is found and determined by the 19
General Assembly of the State of Arkansas that illegal controlled substances, 20
including fentanyl, are a public health crisis ; that the Arkansas State Crime 21
Labratory performed autopsies on four hundred ninety -six (496) drug overdose 22
deaths in 2021, and of those, two hundred eighty -two (282) or fifty-eight and 23
six-tenths percent (58.6%) involved fentanyl; that five (5) years pri or, in 24
2016, there were two hundred seven (207) drug overdose deaths; that of those, 25
only eight (8) or three and eight -tenths percent (3.8%) involved fentanyl; 26
that the data reflects a one hundred forty percent (140%) increase in overall 27
drug overdose deaths and a three thousand four hundred twenty -five percent 28
(3,425%) increase in drug overdose deaths involving fentanyl; and this act 29
should become effective immediately to create enforcement and accountability 30
for the distribution of illegal substances and protect the health of Arkansas 31
citizens. Therefore, an emergency is declared to exist, and Sections 1 32
through 5 of this act being immediately necessary for the preservation of the 33
public peace, health, and safety shall become effective on: 34
(1) The date of its approval by the Governor; 35
(2) If the bill is neither approved nor vetoed by the Governor, 36 As Engrossed: H4/3/23 HB1456
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the expiration of the period of time during which the Governor may veto the 1
bill; or 2
(3) If the bill is vetoed by the Governor and the veto is 3
overridden, the date the last house overrides the veto. 4
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/s/Gazaway 6
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APPROVED: 4/11/23 9
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