The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: SB 190
INTRODUCER: Senator Brodeur
SUBJECT: Controlled Substances
DATE: November 29, 2021
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Ravelo Cibula JU Pre-meeting
2. CJ
3. RC
I. Summary:
SB 190 amends several sections of law regarding the unlawful distribution of controlled
substances.
First, the bill amends the causation requirement for the capital offense of “death caused by the
unlawful distribution of a controlled substance.” Currently, the substance needs to be the
“proximate cause” of the death of the victim. Determining the proximate cause may be difficult
in certain situations. A victims medical conditions, substance abuse history, and a “cocktail,” the
use of multiple substances at once, may make it difficult to assess precisely what substance was
the proximate cause of death. The bill replaces this standard with the “sufficient to cause death”
standard. This language would essentially cover situations where an individual overdoses after
taking multiple lethal substances, any of which could have caused his or her death.
Additionally, the bill incorporates two recommendations from the Statewide Task Force on
Opioid Abuse (Task Force). The bill amends the list of controlled substances eligible for
conviction under the above referenced offense to include methamphetamine. The list of
substances eligible for this offense currently includes: Cocaine, Opium, Methadone, Alfentanil,
Carfentanil, Fentanyl, Sufentanil or an analog of any of these substances.
The bill incorporates a second recommendation from the Task Force, creating an enhanced
penalty for the sale of a controlled substance if the offense is committed within 1,000 feet of
certain facilities that often provide health and substance abuse treatment. Depending on the
substance, the enhancement may increase the penalty from a third degree felony to a second
degree felony, or from a second degree felony to a first degree felony.
The bill provides an effective date of October 1, 2022.
REVISED: BILL: SB 190 Page 2
II. Present Situation:
On April 1, 2019, citing an increase in the number of opioid-caused deaths in Florida, Governor
DeSantis created the Statewide Task Force on Opioid Abuse (Task Force).
1
The Governor
directed the Task Force to develop a statewide strategy to identify best practices to combat the
opioid epidemic through education, treatment, prevention, recovery, and law enforcement, and to
compile a report containing legislative recommendations. Two specific recommendations made
by the Task Force relating to law enforcement included:
Adding methamphetamine as a controlled substance qualifying for prosecution as a first
degree murder offense when its distribution proximately causes the user’s death; and
Enhancing criminal penalties for the sale of a controlled substance within 1,000 feet of
substance abuse treatment facilities.
2
The Task Force’s report did not address the proximate cause requirement for the capital offense
of the unlawful distribution certain controlled substances resulting in the death of the user.
First Degree Murder
Under Florida law, first degree murder is a capital felony
3
punishable by a sentence of death or
life imprisonment without the possibility of parole.
4
Although first degree murder is commonly
thought of as requiring “premeditation,” Florida law classifies three separate classes of first
degree murder, two of which do not require any sort of premeditation or intent to cause a death.
Premeditated First Degree Murder
Premeditated first degree murder
5
generally requires that:
The death of the victim be caused by the criminal act of the defendant, and
The defendant make a conscious decision to kill the victim.
Felony Murder
First degree felony murder, often termed the “Felony Murder Rule,” is an unlawful killing as a
result of an individual engaging in the perpetration of, or in the attempt to perpetrate certain
felonies, including:
Certain drug trafficking offenses,
6
Arson,
Sexual battery,
Robbery,
1
Fla. Exec. Order No. 19-97 (April 1, 2019), available at https://www.flgov.com/wp-content/uploads/2019/04/EO-19-97.pdf.
2
Florida Statewide Task Force on Opioid Abuse, Findings and Recommendation of the Statewide Task Force on Opioid
Abuse, 45 (April 1, 2020), available at https://doseofrealityfl.com/pdfs/opioid-task-force-findings-recommendations-opioid-
abuse.pdf.
3
Section 782.04(1)(a), F.S.
4
Section 775.082(1)(a), F.S.
5
Section 782.04(1)(a)1, F.S.
6
See s. 893.135(1)(a), F.S., which includes knowingly selling, purchasing, manufacturing, delivering or bringing into the
state certain amounts of cannabis, cannabis plants, cocaine, morphine, opium, hydromorphone, or any salt, derivative, isomer,
or salt of an isomer thereof, including heroin. BILL: SB 190 Page 3
Burglary,
Kidnapping,
Escape,
Aggravated child abuse,
Aggravated abuse of an elderly person or disabled adult,
Aircraft piracy,
Unlawful throwing, placing, or discharging of a destructive device or bomb,
Carjacking,
Home-invasion robbery,
Aggravated stalking,
Murder of another human being,
Resisting an officer with violence to his or her person,
Aggravated fleeing or eluding with serious bodily injury or death,
Any felony that is an act of terrorism or is in furtherance of an act of terrorism, and
Human trafficking.
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Death Caused by the Unlawful Distribution of a Controlled Substance
First degree murder offenses include the unlawful distribution of certain controlled substances if
committed by a person 18 years of age or older and the distribution proximately causes the death
of a user. (Emphasis added).
8
The applicable controlled substances include:
Cocaine,
Opium or any synthetic or natural salt, compound, derivative, or preparation of opium,
Methadone,
Alfentanil,
Carfentanil,
Fentanyl,
Sufentanil, and
A controlled substance analog of any of the above controlled substances.
9
The Florida Standard Jury instructions for death caused by the unlawful distribution of a
controlled substance defines proximate cause as conduct “that was the primary or moving cause
of the death; the death would not have occurred but for the defendant’s conduct; and the death
was a natural and reasonably anticipated consequence of the defendant’s conduct.”
10
(Emphasis
added). Because the instruction requires the substance be the primary cause of death, a
prosecutor may encounter certain scenarios where he or she cannot prove a specific substance
was the primary cause of death. A victim may, for example, have ingested lethal amounts of both
cocaine and opium, each of which equally could have caused his or her death. Prosecutors have
7
Section 782.04(1)(a)2., F.S.
8
Section 782.04(1)(a)3., F.S.
9
A “controlled substance analog” is defined in s. 893.0356(2)(a), F.S., as a substance which, due to its chemical structure and
potential for abuse, meets the following criteria:
Is substantially similar to that of a controlled substance listed in Schedule I or Schedule II of s. 893.03, F.S.; and
Has a stimulant, depressant, or hallucinogenic effect on the central nervous system or is represented or intended to have a
stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to or greater than that of
a controlled substance listed in Schedule I or Schedule II of s. 893.03, F.S.
10
Fla. Std. Jury Instr. (Crim.) 7.3(a); see also Aumuller v. State, 944 So. 2d 1137 (Fla. 2d DCA 2006). BILL: SB 190 Page 4
reported difficulty obtaining convictions in scenarios such as this, as it is virtually impossible
determine if something was the primary cause if there are multiple sufficient possibilities that
were all equally lethal.
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Sale of a Controlled Substance
Florida law prohibits a person from selling, manufacturing,
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or delivering
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a controlled
substance.
14
The penalty for selling a controlled substance varies depending on several factors,
including the type and amount of the substance sold, and the location where the sale takes place.
Generally, the sale of a controlled substance is punishable as either a second degree felony
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or
third degree felony.
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The penalties are enhanced to a second degree felony or first degree felony
if the sale occurs within 1,000 feet of the real property of specified locations, including a:
Child care facility,
Public or private elementary, middle, or secondary school,
State, county, or municipal park,
Community center or publicly owned recreational facility,
Public or private college, university, or other postsecondary institution,
Place of worship that conducts religious services,
Convenience business,
Public housing facility, or
Assisted living facility
III. Effect of Proposed Changes:
The bill amends several sections of law regarding the unlawful distribution of controlled
substances.
Section 1 of the bill amends s. 782.04(1)(a), F.S., to revise the causation requirement for the first
degree murder offense of “death caused by the unlawful distribution of a controlled substance.”
Under current law, a controlled substance is required to be the proximate cause of the death of
the user. The bill, instead, only requires that the substance be a “substantial factor” in producing
11
Office Memorandum to Bob Cortes from Daniel E. Faggard, Assistant State Attorney, Eighteenth Judicial Circuit, Re:
Substantial Factor Test (Feb. 5, 2021) (on file with the Senate Committee on Judiciary).
12
“Manufacture” means the production, preparation, propagation, compounding, cultivating, growing, conversion, or
processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or
independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any
packaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation,
compounding, packaging, or labeling of a controlled substance by:
A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course
of his or her professional practice.
A practitioner, or his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to,
research, teaching, or chemical analysis, and not for sale. Section 893.02(15)(a), F.S.
13
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled
substance, whether or not there is an agency relationship. Section 893.02(6), F.S.
14
Section 893.13, F.S.
15
A second degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. Sections 775.082 and 775.083,
F.S.
16
Section 893.13(1), F.S. A third degree felony is punishable by up to 5 years imprisonment and a $5,000 fine.
Sections 775.082 and 775.083, F.S. BILL: SB 190 Page 5
the death of the user. This new language may cover situations where a user dies with a
combination of multiple illegal substances in his or her body, each of which could have caused
the user’s death.
The bill further amends s. 782.04, F.S., to include methamphetamine to the list of substances that
may subject the person who distributed the controlled substance to a conviction for first degree
murder based any unlawful distribution. This specific provision was recommended by the
Statewide Task Force on Opioid Abuse.
17
Section 2 of the bill incorporates a second recommendation from the Task Fork and creates an
enhancement to the criminal act of selling, manufacturing, delivering, or possessing with the
intent to sell, manufacture, or deliver a controlled substance within 1000 feet of any:
Mental health facility under ch. 394, F.S.,
Health care facility licensed under ch. 395, F.S., which provides substance abuse treatment,
Licensed service provider as defined in s. 397.311, F.S.,
Facility providing services that include clinical treatment, intervention, or prevention as
described in s. 397.311(26), F.S.,
Recovery residence as defined in s. 397.311, F.S., or
Pain management clinic as defined in ss. 458.3265(1)(a)1.c. or s. 459.0137(1)(a)1.c., F.S.
Depending on the substance, the enhancement increases the penalty from a third degree felony to
a second degree felony, or from a second degree felony to a first degree felony.
Section 3 of the bill provides an effective date of October 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
17
See Fla. Exec. Order No. 19-97 and Florida Statewide Task Force on Opioid Abuse, supra notes 1-2. BILL: SB 190 Page 6
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
SB 190, like CS/HB 325 (2021), a somewhat similar bill from last session is likely to
increase the prison population by an indeterminate amount.
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VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 782.04 and 893.13.
Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
18
Criminal Justice Impact Conference, Narrative Analysis of Adopted Impact for PCS for HB 325, (updated Mar. 4, 2021)
http://edr.state.fl.us/Content/conferences/criminaljusticeimpact/adoptedimpacts.cfm.