This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0165c.JDC
DATE: 3/23/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 165 Controlled Substance Testing
SPONSOR(S): Judiciary Committee, Hunschofsky
TIED BILLS: IDEN./SIM. BILLS: SB 164
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 16 Y, 0 N Leshko Hall
2) Judiciary Committee 21 Y, 0 N, As CS Leshko Kramer
SUMMARY ANALYSIS
Fentanyl is a synthetic opioid analgesic, appearing as crystals or crystalline powder, that is approximately 50 to
100 times more potent than morphine and is currently a Schedule II controlled substance under Florida law.
Although prescription fentanyl can be misused, most overdoses and related deaths have been linked to illicitly
manufactured fentanyl, including fentanyl analogs. Illicit manufacturers frequently mix fentanyl with other illicit
drugs, such as heroin, methamphetamine, and cocaine to increase the potency of the illicit drug and lower the
cost of production and also, in increasing frequency, press illicitly-manufactured fentanyl into pills made to look
like legitimate prescription opioids.
Section 893.145, F.S., defines the term “drug paraphernalia” as all equipment, products, and materials of any
kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or
otherwise introducing into the human body a controlled substance in violation of ch. 893, F.S., or s. 877.111,
F.S. The term includes testing equipment used, intended for use, or designed for use in identifying, or in
analyzing the strength, effectiveness, or purity of, controlled substances.
Fentanyl test strips (FTS) are low-cost, small strips of paper that can be used to detect fentanyl and fentanyl
analogs in all different kinds of controlled substances (heroin, methamphetamine, cocaine, etc.) and forms of
controlled substances (pills, powders, and injectables).
Under s. 893.147, F.S., it is a first-degree misdemeanor to use, or possess with intent to use, drug
paraphernalia and is punishable by up to one-year imprisonment and a $1,000 fine. It is a third-degree felony
to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia and is
punishable by up to five-years imprisonment and a $5,000 fine.
CS/HB 165 amends s. 893.145(4), F.S., to remove narcotic-drug-testing products used to test a controlled
substance for fentanyl as described in s. 893.03(2)(b)9., F.S., or any fentanyl analogue described in s.
893.135(1)(c)4.a., F.S., from the definition of drug paraphernalia. As such, under the bill, a person using,
possessing, delivering, or manufacturing FTS is not subject to criminal penalties.
The bill may have a indeterminate negative jail and prison bed impact by reducing the number of convictions
under s. 893.147, F.S., resulting in fewer jail and prison admissions.
The bill provides an effective date of July 1, 2023. STORAGE NAME: h0165c.JDC PAGE: 2
DATE: 3/23/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Controlled Substances
Controlled Substance Schedules
Chapter 893, F.S., the Florida Comprehensive Drug Abuse Prevention and Control Act, classifies
controlled substances
1
into five categories, called schedules. These schedules regulate the
manufacture, distribution, preparation, and dispensing of the substances listed therein. The
distinguishing factors between the different controlled substance schedules are the “potential for
abuse”
2
of the substance and whether there is a currently accepted medical use for the substance.
3
The controlled substance schedules are as follows:
Schedule I substances have a high potential for abuse and currently have no accepted medical
use in the United States and their use under medical supervision does not meet accepted safety
standards.
4
Schedule II substances have a high potential for abuse and have a currently accepted but
severely restricted medical use in the United States, and abuse of the substance may lead to
severe psychological or physical dependence.
5
Schedule III substances have a potential for abuse less than the substances contained in
Schedules I and II and have a currently accepted medical use in the United States, and the
abuse of the substance may lead to moderate or low physical dependence or high
psychological dependence, or in the case of anabolic steroids, may lead to physical damage.
6
Schedule IV substances have a low potential for abuse relative to substances in Schedule III
and have a currently accepted medical use in the United States, and abuse of the substance
may lead to limited physical or psychological dependence relative to the substances in
Schedule III.
7
Schedule V substances, compounds, mixtures, or preparation of substances have a low
potential for abuse relative to the substances in Schedule IV and have a currently accepted
medical use in the United States, and abuse of such compound, mixture, or preparation may
lead to limited physical or psychological dependence relative to the substances in Schedule IV.
8
Controlled Substance Analogs
Section 893.0356, F.S., defines a “controlled substance analog” as a substance which, due to its
chemical structure and potential for abuse is substantially similar to that of a controlled substance listed
in Schedule I or Schedule II of s. 893.03, F.S., and has, is represented to have, or is 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 in Schedule I or Schedule II of s. 893.03, F.S.
9
Application of
1
“Controlled substance” means any substance named or described in Schedules I-V of s. 893.03, F.S. S. 893.02(4), F.S.
2
“Potential for abuse” means that a substance has properties as a central nervous system stimulant or depressant or a hallucinogen
that create a substantial likelihood of its being: 1) used in amounts that create a hazard to the user’s health or safety of the community;
2) diverted from legal channels and distributed through illegal channels; or 3) taken on the user’s own initiative rather than on the basis
of professional medical advice. S. 893.02(22), F.S.
3
See s. 893.03, F.S.
4
S. 893.03(1), F.S.
5
S. 893.03(2), F.S.
6
S. 893.03(3), F.S.
7
S. 893.03(4), F.S.
8
S. 893.03(5), F.S.
9
S. 893.0356(2)(a), F.S. STORAGE NAME: h0165c.JDC PAGE: 3
DATE: 3/23/2023
the controlled substance analog definition to new substances prevents them from evading controlling
statutory provisions before they are able to be identified and evaluated.
10
The following are exempted from the definition of controlled substance analog:
A controlled substance;
Any substance for which there is an approved new drug application;
Any compound, mixture, or preparation which contains any controlled substance which is not for
administration to a human being or animal, and which is packaged in such form or concentration, or
with adulterants or denaturants, so that as packaged it does not present any significant potential for
abuse; or
Any substance to which an investigational exemption applies under s. 505 of the Food, Drug, and
Cosmetic Act, 21 U.S.C. 355, but only to the extent that conduct with respect to the substance is
pursuant to such exemption.
11
Fentanyl
Fentanyl is a synthetic opioid analgesic, appearing as crystals or crystalline powder, that is
approximately 50 to 100 times more potent than morphine and is currently a Schedule II controlled
substance.
12
When prescribed by a physician, fentanyl is typically used to treat patients with severe
pain or to manage pain after surgery and is administered via injection, transdermal patch, or in
lozenges.
13
Although prescription fentanyl can be misused, most overdoses and related deaths have
been linked to illicitly manufactured fentanyl, including fentanyl analogs.
14
Illicit manufacturers frequently mix fentanyl with other illicit drugs, such as heroin, methamphetamine,
and cocaine to increase the potency of the illicit drug and lower the cost of production and also, in
increasing frequency, have been pressing illicitly-manufactured fentanyl into pills made to look like
legitimate prescription opioids.
15
When combined with other controlled substances that are in a power
form, fentanyl is unable to mix evenly without leaving behind undetectable clumps. In order to fully mix
fentanyl with another powder, the mixture must be combined with a liquid and shaken before allowing
the liquid to evaporate, returning the mixture to a powdered form. If fentanyl is not fully mixed with
another controlled substance there may be hot spots
16
of pure fentanyl in the final product.
17
A lethal dose of fentanyl for a person can range depending on the person’s body size, past usage, and
tolerance, however, in general, 2 milligrams (mg) is considered a potentially lethal dose.
18
The Drug
Enforcement Administration has reported encountering counterfeit opioid pills with from .02 to 5.1 mg of
fentanyl per tablet, with 42 percent of pills tested for fentanyl containing at least 2 mg.
19
Nationwide,
overdose deaths from fentanyl have nearly doubled annually, with 52.7 percent of all overdose deaths
involving fentanyl, and many of those who died not knowing they ingested fentanyl.
20
10
S. 893.0356(1), F.S.
11
S. 893.0356(2)(b), F.S.
12
S. 893.03(2)(b), F.S. (However, various fentanyl analogs are found in Schedule I); National Institute on Drug Abuse, Fentanyl,
https://www.drugabuse.gov/publications/drugfacts/fentanyl (last visited Mar. 23, 2023); Centers for Disease Control and Prevention
(CDC), Fentanyl: Incapacitating Agent, https://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750022.html (last visited Mar. 23,
2023).
13
National Institute on Drug Abuse, Fentanyl, supra note 12.
14
CDC, Increases in Fentanyl-Related Overdose Deaths-Florida and Ohio, 2013-2015,
https://www.cdc.gov/mmwr/volumes/65/wr/mm6533a3.htm (last visited Mar. 23, 2023).
15
Drug Enforcement Administration (DEA), Facts about Fentanyl, https://www.dea.gov/resources/facts-about-fentanyl (last visited Mar.
23, 2023).
16
A hot spot is a high concentration of fentanyl within a mix of other products. National Center for Drug Abuse Statistics, Fentanyl
Abuse Statistics, https://drugabusestatistics.org/fentanyl-abuse-statistics/ (last visited Mar. 23, 2023).
17
Id.
18
Comparatively, a lethal dose of heroin is 100 mg and of cocaine is 250 mg. Id.
19
Supra note 12.
20
Supra note 13. STORAGE NAME: h0165c.JDC PAGE: 4
DATE: 3/23/2023
In Florida, opioid-related deaths have increased 32 percent between 2016 and 2021.
21
In 2021,
fentanyl ranked second of the drugs most frequently found in decedents and first of the drugs that
caused the most deaths. Specifically, occurrences of fentanyl increased by 10.5 percent and deaths
caused by fentanyl increased by 9 percent between 2020 and 2021. Additionally, occurrences of
fentanyl analogs increased by 41.5 percent and deaths caused by fentanyl analogs increased by 36
percent during the same time period.
22
Drug Trafficking
Section 893.135(1)(c)4.a., F.S., prohibits trafficking in dangerous fentanyl or fentanyl analogues, which
occurs when a person knowingly sells, purchases, manufactures, delivers, or brings into the state, or is
in actual or constructive possession of, a specified quantity of the following controlled substances:
23
Alfentanil;
24
Carfentanil;
25
Fentanyl;
26
Sufentail;
27
A fentanyl derivative;
28
A controlled substance analog of any of the substances above;
29
and
A mixture containing any substance described above.
30
Drug Paraphernalia
Section 893.145, F.S., defines “drug paraphernalia” as all equipment, products, and materials of any
kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing,
analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting,
inhaling, or otherwise introducing into the human body a controlled substance in violation of ch. 893 or
s. 877.111, F.S.
31
Drug paraphernalia is deemed to be contraband and subject to civil forfeiture.
32
The
term includes testing equipment used, intended for use, or designed for use in identifying, or in
analyzing the strength, effectiveness, or purity of, controlled substances.
33
Under s. 893.147(1), F.S., it is a first-degree misdemeanor to use, or possess with intent to use, drug
paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance or to
inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.
34
A first-
degree misdemeanor is punishable by up to one-year imprisonment and a $1,000 fine.
35
Under s. 893.147(2), F.S., it is a third-degree felony to deliver, possess with intent to deliver, or
manufacture with intent to deliver drug paraphernalia, knowing, or under circumstances where one
21
Medical Examiners Commission (MEC), Florida Department of Law Enforcement (FDLE), Drugs Identified in Deceased Persons by
Florida Medical Examiners 2016 Annual Report (November 2017), https://www.fdle.state.fl.us/MEC/Publications-and-
Forms/Documents/Drugs-in-Deceased-Persons/2016-Annual-Drug-Report.aspx (last visited Mar. 23, 2023); FDLE, MEC, Drugs
Identified in Deceased Persons by Florida Medical Examiners 2021 Annual Report (December 2022),
https://www.fdle.state.fl.us/MEC/Publications-and-Forms/Documents/Drugs-in-Deceased-Persons/2021-Annual-Drug-Report-
FINAL.aspx (last visited Mar. 23, 2023).
22
MEC, FDLE, Drugs Identified in Deceased Persons by Florida Medical Examiners 2021 Annual Report (December 2022), supra note
21.
23
S. 893.135, F.S.
24
S. 893.03(2)(b)1., F.S.
25
S. 893.03(2)(b)6., F.S.
26
S. 893.03(2)(b)9., F.S.
27
S. 893.03(2)(b)30., F.S.
28
S. 893.03(1)(a)62., F.S.
29
S. 893.0356, F.S.
30
S. 893.135(1)(c)4.a., F.S.
31
Relating to the inhalation, ingestion, possession, sale, purchase, or transfer of harmful chemical substances. S. 877.111, F.S.
32
S. 893.145, F.S.
33
S. 893.145(4), F.S.
34
S. 893.147(1), F.S.
35
Ss. 775.082 and 775.083, F.S. STORAGE NAME: h0165c.JDC PAGE: 5
DATE: 3/23/2023
should reasonably know that it will be used to plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a
controlled substance or to inject, ingest, inhale, or otherwise introduce into the human body a controlled
substance.
36
A third-degree felony is punishable by up to five-years imprisonment and a $5,000 fine.
37
Fentanyl Test Strips
Fentanyl test strips (FTS) are low-cost, small strips of paper that can be used to detect fentanyl and
fentanyl analogs in all different kinds of controlled substances (heroin, methamphetamine, cocaine,
etc.) and forms of controlled substances (pills, powders, and injectables).
38
FTS require the user to mix
a small amount of controlled substance with water and place the strip in the mixture for about 15
seconds. The user then takes the strip out of the mixture and lets it stand out of the water mixture for
two to five minutes. The user can then read the results which are shown as either a single pink line on
the left-hand side (positive), two pink lines (negative), or a single pink line on the right-hand side or no
lines (invalid).
39
One caveat is that because FTS only require the user to mix a small amount of
controlled substance, the FTS may not detect any hot spots contained in the mixture.
Forty-two states, including Florida, and the District of Columbia capture FTS in their definitions of drug
paraphernalia. However, since 2021, at least three states, including Arizona, Tennessee, and Ohio,
have removed FTS from the list of prohibited drug paraphernalia. Of the remaining five states, four do
not capture FTS in their drug paraphernalia definitions,
40
and Alaska has no laws restricting drug
paraphernalia.
41
Effect of Proposed Changes
CS/HB 165 amends s. 893.145(4), F.S., to remove narcotic-drug-testing products used to test a
controlled substance for fentanyl as described in s. 893.03(2)(b)9., F.S., or any other fentanyl analogue
described in s. 893.135(1)(c)4.a., F.S., from the definition of drug paraphernalia. As such, under the bill
a person using, possessing, delivering, or manufacturing FTS is not subject to criminal penalties.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 893.145, F.S., relating to “drug paraphernalia” defined.
Section 2: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
36
S. 893.147(2), F.S.
37
Ss. 775.082 and 775.083, F.S.
38
CDC, Fentanyl Test Strips: A Harm Reduction Strategy, https://www.cdc.gov/stopoverdose/fentanyl/fentanyl-test-strips.html (last
visited Mar. 23, 2023).
39
Id.
40
Nebraska, South Carolina, Virginia, and Wyoming. Jeffrey A. Singer and Sophia Heimowitz, CATO Institute, Drug Paraphernalia
Laws Undermine Harm Reduction: To Reduce Overdoses and Disease, States Should Emulate Alaska (June 7, 2022),
https://www.cato.org/policy-analysis/drug-paraphernalia-laws-undermine-harm-reduction-reduce-overdoses-disease-states (last visited
Mar. 23, 2023).
41
Jeffrey Singer, American Council on Science and Health, Fentanyl Test Strips Save Lives, Yet Most States Ban Them as “Drug
Paraphernalia” (Jan. 19, 2023), https://www.acsh.org/news/2023/01/19/fentanyl-test-strips-save-lives-yet-most-states-ban-them-
%E2%80%9Cdrug-paraphernalia%E2%80%9D-16827 (last visited Feb. 16, 2023); Jeffrey A. Singer and Sophia Heimowitz, CATO
Institute, Drug Paraphernalia Laws Undermine Harm Reduction: To Reduce Overdoses and Disease, States Should Emulate Alaska
(June 7, 2022), supra note 30. STORAGE NAME: h0165c.JDC PAGE: 6
DATE: 3/23/2023
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a indeterminate negative impact on jail and prison beds by reducing in the number of
convictions under s. 893.147, F.S., resulting in fewer jail and prison admissions.
According to a preliminary report from the Office of Economic and Demographic Research (EDR), the
Department of Corrections has reported that there were only four new commitments for drug
paraphernalia violations under s. 893.147, F.S., in fiscal year (FY) 2018-2019, one new commitment in
FY 2019-2020, one new commitment in FY 2020-2021, and two new commitments in FY 2021-2022.
EDR estimates that based on the low number of commitments for the last four fiscal years the change
made under the bill will not have a significant impact on the prison population.
42
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 23, 2023, the Judiciary Committee adopted an amendment and reported the bill favorably as a
committee substitute. The amendment removes narcotic-drug-testing products used to test a controlled
substance for any fentanyl analogue described in s. 893.135(1)(c)4.a., F.S., from the definition of drug
paraphernalia.
42
EDR, HB 165 – Controlled Substance Testing (Identical SB 164) (on file with House Criminal Justice Subcommittee). STORAGE NAME: h0165c.JDC PAGE: 7
DATE: 3/23/2023
The analysis is drafted to the committee substitute as passed by the Judiciary Committee.