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Arkansas Senate Bill SB283

Arkansas 2023 Regular Session

Arkansas Senate Bill SB283 Compare Versions

Only one version of the bill is available at this time.
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11 Stricken language would be deleted from and underlined language would be added to present law.
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44 State of Arkansas 1
55 94th General Assembly A Bill 2
66 Regular Session, 2023 SENATE BILL 283 3
77 4
88 By: Senator Gilmore 5
99 By: Representative Gazaway 6
1010 7
1111 For An Act To Be Entitled 8
1212 AN ACT CREATING THE FENTANYL ENFORCEMENT AND 9
1313 ACCOUNTABILITY ACT O F 2023; TO DECLARE A N EMERGENCY; 10
1414 AND FOR OTHER PURPOS ES. 11
1515 12
1616 13
1717 Subtitle 14
1818 CREATING THE FENTANYL ENFORCEMENT AND 15
1919 ACCOUNTABILITY ACT OF 2023; CONCERNING 16
2020 FENTANYL AND OTHER CONTROLLED SUBSTANCES; 17
2121 TO ESTABLISH INCREASED PENALTIES; AND TO 18
2222 DECLARE AN EMERGENCY. 19
2323 20
2424 21
2525 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 22
2626 23
2727 SECTION 1. DO NOT CODIFY. This act shall be known and may be cited as 24
2828 the "Fentanyl Enforcement and Accountability Act of 2023”. 25
2929 26
3030 SECTION 2. Arkansas Code Title 5, Chapter 10, is amended to add an 27
3131 additional subchapter to read as follows: 28
3232 29
3333 Subchapter 2 — Death by Delivery 30
3434 31
3535 5-10-201. Definitions. 32
3636 As used as this subchapter: 33
3737 (1) "Cocaine" includes without limitation cocaine, an analog of 34
3838 cocaine that is a cocaine -related controlled substance, and any chemical 35
3939 structure modification to cocaine or a cocaine analog, including without 36 SB283
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4444 limitation the isomers, esters, ethers, and salts of cocaine; 1
4545 (2) "Controlled substance" means the same as defined in § 5 -64-2
4646 101; 3
4747 (3)(A) "Convey" means to provide to a person or cause to pass 4
4848 from a person to another person a controlled substance or counterfeit 5
4949 substance. 6
5050 (B) "Convey" does not include a person providing 7
5151 prescription medication in good faith to a family member within the third 8
5252 degree of consanguinity for the purpose of providing short -term relief for a 9
5353 medical condition or physical injury; 10
5454 (4) “Counterfeit substance” means the same as defined in § 5 -64-11
5555 101; 12
5656 (5) "Deliver" or "delivery" means the same as defined in § 5 -64-13
5757 101; 14
5858 (6) "Dispense" means the same as defined in § 5 -64-101; 15
5959 (7) "Fentanyl" means the same as defined in § 5 -64-101; 16
6060 (8) "Heroin" includes without limitation heroin, an analog of 17
6161 heroin that is a heroin -related controlled substance, and any chemical 18
6262 structure modification to heroin or a heroin analog, including witho ut 19
6363 limitation the isomers, esters, ethers, and salts of heroin; 20
6464 (9) "Methamphetamine" includes without limitation 21
6565 methamphetamine, an analog of methamphetamine that is a methamphetamine -22
6666 related controlled substance, and any chemical structure modifica tion to 23
6767 methamphetamine or a methamphetamine analog, including without limitation the 24
6868 isomers, esters, ethers, and salts of methamphetamine; 25
6969 (10) "Minor" means a person who is younger than eighteen (18) 26
7070 years of age; and 27
7171 (11) "Practitioner" means th e same as defined in § 5 -64-101. 28
7272 29
7373 5-10-202. Aggravated death by delivery. 30
7474 (a) A person commits the offense of aggravated death by delivery if: 31
7575 (1)(A) He or she knowingly delivers or conveys fentanyl to 32
7676 another person; and 33
7777 (B) The injection, ingestion, inhalation, or other 34
7878 introduction of the fentanyl, including any adulterants or diluents, is the 35
7979 cause of death of the other person; or 36 SB283
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8383
8484 (2)(A) He or she knowingly delivers or conveys fentanyl, 1
8585 methamphetamine, heroin, or cocaine to a minor; a nd 2
8686 (B) The injection, ingestion, inhalation, or other 3
8787 introduction of the fentanyl, methamphetamine, heroin, or cocaine, including 4
8888 any adulterants or diluents, causes the death of the minor. 5
8989 (b)(1) A person who commits the offense of aggravated dea th by 6
9090 delivery under subdivision (a)(1) of this section upon conviction is guilty 7
9191 of an unclassified felony and shall be sentenced to term of imprisonment of 8
9292 no less than twenty (20) years nor more than sixty (60) years, or life. 9
9393 (2)(A) Except as provid ed in subdivision (b)(2)(B) of this 10
9494 section, a person who commits the offense of aggravated death by delivery 11
9595 under subdivision (a)(2) of this section upon conviction is guilty of an 12
9696 unclassified felony and shall be sentenced to a term of life imprisonment . 13
9797 (B) A person who commits the offense of aggravated death 14
9898 by delivery under subdivision (a)(2) of this section who is less than three 15
9999 (3) years older than the minor whose death was caused upon conviction is 16
100100 guilty of an unclassified felony and shall be sentenced to a term of 17
101101 imprisonment of no less than twenty (20) years nor more than sixty (60) 18
102102 years, or life. 19
103103 20
104104 5-10-203. Death by delivery in the first degree. 21
105105 (a) A person commits the offense of death by delivery in the first 22
106106 degree if: 23
107107 (1) He or she knowingly delivers or conveys methamphetamine, 24
108108 heroin, or cocaine to another person; and 25
109109 (2) The injection, ingestion, inhalation, or other introduction 26
110110 of the methamphetamine, heroin, or cocaine, including any adulterants or 27
111111 diluents, is the cause of death of the person. 28
112112 (b)(1) Except as provided in subdivision (b)(2) of this section, death 29
113113 by delivery in the first degree is a Class Y felony. 30
114114 (2) Death by delivery in the first degree is a Class A felony if 31
115115 the defendant proves by a preponderance of the evidence one (1) or more of 32
116116 the following factors: 33
117117 (A) The defendant does not have a prior felony conviction; 34
118118 (B) The defendant played a minor or passive role in the 35
119119 delivery or conveyance of the methamphetamine, heroin, or coc aine; 36 SB283
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123123
124124 (C) The defendant was unaware of adulterants or diluents 1
125125 in the methamphetamine, heroin, or cocaine that accelerated or contributed to 2
126126 the death of the other person; or 3
127127 (D) The defendant possessed the methamphetamine, heroin, 4
128128 or cocaine for personal use and the conveyance was not part of a transaction 5
129129 for which the defendant obtained income, resources, or benefits. 6
130130 7
131131 5-10-204. Death by delivery in the second degree. 8
132132 (a) A person commits the offense of death by delivery in the second 9
133133 degree if: 10
134134 (1) He or she knowingly delivers or conveys to another person: 11
135135 (A) A controlled substance that is not fentanyl, 12
136136 methamphetamine, heroin, or cocaine; or 13
137137 (B) A counterfeit substance; and 14
138138 (2) The injection, ingestion, inhalation, or other introduction 15
139139 of the controlled substance or counterfeit substance, including any 16
140140 adulterants or diluents, is the cause of death of the person. 17
141141 (b)(1) Except as provided in subdivisions (b)(2) and (b)(3) of this 18
142142 section, death by delivery in the second de gree is a Class A felony. 19
143143 (2) Death by delivery in the second degree is a Class B felony 20
144144 if the defendant proves by a preponderance of the evidence one (1) or more of 21
145145 the following factors: 22
146146 (A) The defendant does not have a prior felony conviction; 23
147147 (B) The defendant played a minor or passive role in the 24
148148 delivery or conveyance of the controlled substance or counterfeit substance; 25
149149 (C) The defendant was unaware of adulterants or diluents 26
150150 in the controlled substance or counterfeit substance that accelerated or 27
151151 contributed to the death of the other person; or 28
152152 (D) The defendant possessed the controlled substance or 29
153153 counterfeit substance for personal use and the conveyance was not part of a 30
154154 transaction for which the defendant obtained income, res ources, or benefits. 31
155155 (3) Death by delivery in the second degree is a Class Y felony 32
156156 if the state proves beyond a reasonable doubt one (1) or more of the 33
157157 following factors: 34
158158 (A) The defendant has a prior felony conviction for 35
159159 delivery of a controlled substance under the Uniform Controlled Substances 36 SB283
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164164 Act, § 5-64-401 et. seq. or a similar law of another jurisdiction; 1
165165 (B) The defendant manifested extreme indifference to the 2
166166 value of human life during the commission of the offense; or 3
167167 (C) The defendant knew the victim was vulnerable because 4
168168 the victim was a minor, was sixty (60) years of age or older, or was an 5
169169 incompetent person as defined in § 5 -64-407. 6
170170 7
171171 5-10-205. Effect of subchapter on Joshua Ashley -Pauley Act. 8
172172 This subchapter does not restr ict or interfere with the rights and 9
173173 immunities provided in the Joshua Ashley -Pauley Act, § 20-13-1701 et. seq. 10
174174 11
175175 5-10-206. Exemptions. 12
176176 The following are not offenses under this subchapter: 13
177177 (1) An individual practitioner acting in the usual course of 14
178178 professional practice issuing a valid prescription for a controlled substance 15
179179 for a legitimate medical purpose; 16
180180 (2) A pharmacy, pharmacist, or an individual practitioner 17
181181 dispensing, delivering, or administering a controlled substance pursuant to a 18
182182 prescription; 19
183183 (3) A permitted manufacturer, wholesaler, pharmacy, hospital, 20
184184 long-term care facility, or other medical provider delivering, prescribing, 21
185185 administering, or transferring a controlled substance available by 22
186186 prescription for lawful purposes and in compliance with state and federal 23
187187 law; and 24
188188 (4) A pharmaceutical company manufacturing a controlled 25
189189 substance available by prescription in compliance with state and federal law. 26
190190 27
191191 5-10-207. Consensual ingestion not a defense. 28
192192 It is not a defense to a prosecution under this subchapter that a 29
193193 person knowingly and voluntarily consented to the injection, ingestion, 30
194194 inhalation, or other introduction of the controlled substance or counterfeit 31
195195 substance. 32
196196 33
197197 5-10-208. Penalties not exclusive. 34
198198 This subchapter and the criminal penalties provided in this subchapter 35
199199 are in addition to any other criminal penalty a person may be subject to 36 SB283
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203203
204204 under the Arkansas Criminal Code or the Uniform Controlled Substances Act, § 1
205205 5-64-101 et. seq. 2
206206 3
207207 5-10-209. Factors considered when determining whether a person 4
208208 possessed a controlled substance for personal use. 5
209209 For purposes of this subchapter, possession of a controlled substance 6
210210 or counterfeit substance for personal use may be demonstrated through the 7
211211 consideration of certain f actors, including without limitation: 8
212212 (1) The person does not possess the means to weigh, separate, or 9
213213 package the controlled substance or counterfeit substance; 10
214214 (2) The person does not possess a record indicating a drug -11
215215 related transaction; 12
216216 (3) The controlled substance or counterfeit substance is not 13
217217 separated or packaged in a manner to facilitate delivery; 14
218218 (4) The person does not possess a firearm that is in the 15
219219 immediate physical control of the person at the time of the delivery or 16
220220 conveyance of the controlled substance or counterfeit substance; and 17
221221 (5) The person does not possess other controlled substances or 18
222222 counterfeit substances at the time of the delivery or conveyance. 19
223223 20
224224 5-10-210. Accomplice liability. 21
225225 An individual who is an accomplice under § 5 -2-403 to the delivery or 22
226226 conveyance in § 5-10-202, § 5-10-203, or § 5-10-204 is an accomplice for the 23
227227 purposes of this section. 24
228228 25
229229 SECTION 3. Arkansas Code § 5 -64-101(12), concerning the definition of 26
230230 "drug paraphernalia" under th e Uniform Controlled Substances Act, is amended 27
231231 to add an additional subdivision to read as follows: 28
232232 (D) "Drug paraphernalia" does not include a disposable, 29
233233 single-use test strip that can detect the presence of fentanyl or fentanyl 30
234234 analogs in a substance; 31
235235 32
236236 SECTION 4. Arkansas Code § 5 -64-421, concerning offenses related to 33
237237 the possession and delivery of fentanyl, is amended to add an additional 34
238238 subsection to read as follows: 35
239239 (i)(1)(A) A person commits the offense of predatory marketing of 36 SB283
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244244 fentanyl to minors if he or she possesses fentanyl with the purpose to 1
245245 deliver, delivers fentanyl, or manufactures fentanyl; and 2
246246 (B) The fentanyl possessed, delivered, or manufactured is 3
247247 likely to appeal to minors due to the shape, color, taste, or design of the 4
248248 fentanyl or the fentanyl's packaging, including without limitation: 5
249249 (i) Products that are modeled after noncontrolled 6
250250 substance products primarily consumed by and marketed to minors; 7
251251 (ii) Products in the shape of an animal, a vehicle, 8
252252 a person, or a character; or 9
253253 (iii) Products that resemble food or beverages that 10
254254 are attractive to minors and that are commonly sold in retail establishments 11
255255 regardless of whether the food or beverages are generic, trademarked, or 12
256256 branded products, incl uding without limitation products that resemble candy. 13
257257 (2) A person who commits predatory marketing of fentanyl to 14
258258 minors upon conviction is guilty of an unclassified felony and shall be 15
259259 sentenced to a term of life imprisonment and a fine of one million dollars 16
260260 ($1,000,000). 17
261261 18
262262 SECTION 5. Arkansas Code § 5 -64-440(c), concerning the offense of 19
263263 trafficking a controlled substance, is amended to read as follows: 20
264264 (c)(1) Trafficking a controlled substance is a Class Y felony. 21
265265 (2) Trafficking of fentanyl is an unclassified felony with a 22
266266 sentence of imprisonment of not less than twenty-five (25) years nor more 23
267267 than sixty (60) years, or life, and a fine of one million dollars 24
268268 ($1,000,000). 25
269269 26
270270 SECTION 6. EMERGENCY CLAUSE. It is found and determined by the 27
271271 General Assembly of the State of Arkansas that illegal controlled substances, 28
272272 including fentanyl, are a public health crisis; that the Arkansas State Crime 29
273273 Labratory performed autopsies on four hundred ninety -six (496) drug overdose 30
274274 deaths in 2021, and of th ose, two hundred eighty -two (282) or fifty-eight and 31
275275 six-tenths percent (58.6%) involved fentanyl; that five (5) years prior, in 32
276276 2016, there were two hundred seven (207) drug overdose deaths; that of those, 33
277277 only eight (8) or three and eight -tenths percent (3.8%) involved fentanyl; 34
278278 that the data reflects a one hundred forty percent (140%) increase in overall 35
279279 drug overdose deaths and a three thousand four hundred twenty -five percent 36 SB283
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284284 (3,425%) increase in drug overdose deaths involving fentanyl; and this act 1
285285 should become effective immediately to create enforcement and accountability 2
286286 for the distribution of illegal substances and protect the health of Arkansas 3
287287 citizens. Therefore, an emergency is declared to exist, and this act being 4
288288 immediately necessary for t he preservation of the public peace, health, and 5
289289 safety shall become effective on: 6
290290 (1) The date of its approval by the Governor; 7
291291 (2) If the bill is neither approved nor vetoed by the Governor, 8
292292 the expiration of the period of time during which the Governor may veto the 9
293293 bill; or 10
294294 (3) If the bill is vetoed by the Governor and the veto is 11
295295 overridden, the date the last house overrides the veto. 12
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