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Florida Senate advances fentanyl bills that would increase penalties, OK test strips

Two separate bills will move on to their next committee stops.
A Drug Enforcement Administration chemist checks confiscated powder containing fentanyl at the DEA Northeast Regional Laboratory on Oct. 8, 2019, in New York. [ DON EMMERT | Getty Images North America ]
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Updated Feb 15

TALLAHASSEE — Two Florida senators moved forward bills on Tuesday aimed at addressing deadly fentanyl overdoses from two different angles.

Sen. Jason Brodeur, R-Lake Mary, got a first committee approval on his bill that would alter the standard for pursuing first-degree murder charges against people involved in the distribution of certain drugs that cause a fatal overdose.

The Senate Criminal Justice Committee also gave its approval to a bill from Democratic Sen. Tina Polsky of Boca Raton that would decriminalize fentanyl testing strips.

The goal of both bills is to save lives and tackle the fentanyl crisis, said Sen. Jonathan Martin, R-Fort Myers, the chairperson of the committee. He said he hopes the bills can be seen as a one-two punch. “If you’re putting that poison in the drugs you’re selling, we’re coming after you,” he said. “We want the death penalty on the table.”

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As it stands now, Florida law allows for someone to be charged with first-degree murder if their distribution of a certain drug, like fentanyl, is considered the “proximate cause” of a person’s death.

But Brodeur’s bill would change the standard to say if the drug is “proven to have been a substantial factor” in the death, instead of the primary cause, then someone involved in distributing it could be charged with first-degree murder — a charge that could make them eligible for the death penalty.

Brodeur filed a similar bill in 2021, but it died in its first committee.

The bill would also increase the penalty for someone distributing fentanyl, fentanyl products or heroin linked to a nonfatal overdose to a second-degree felony, or a first-degree felony if it is not someone’s first offense. The Senate Criminal Justice Committee approved the bill on a 6-2 vote; it has two more committees to move through before a vote from the full Senate.

Fentanyl is a synthetic opioid. Fentanyl and other synthetic opioids are the most common drugs involved in overdose deaths, according to the Centers for Disease Control and Prevention. In 2020, more than 6,150 people in Florida died from fentanyl overdoses, according to the Florida Department of Health.

According to the Senate analysis of the bill, proving that a drug was the main cause of death has made it difficult for prosecutors because people often die with multiple drugs in their system.

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Some committee members asked how the law would affect the prosecution of people who are not drug dealers, like teenagers who share drugs at a party not knowing they may be laced with fentanyl.

“I’m a yes on the bill today, but I need a commitment that we can talk through and work through this stuff,” said Sen. Jason Pizzo, D-Hollywood.

“I want to be careful about how this is used, and I’m concerned about kids engaging in stupid stuff, or doing what they’re going to do,” he said.

Brodeur said the bill would allow for prosecutorial discretion, and he said “the intent is not to go after those kinds of folks.” But he said as Florida law stands, law enforcement can already pursue charges against people in cases like that.

The Senate analysis says the bill would cause an “increase in prison beds,” though it did not quantify what the number would be or how the inmate population would grow.

The other bill the committee approved would ensure that drug-testing kits that test for fentanyl are not considered illegal drug paraphernalia.

Last year, the idea made it through the Senate as an amendment, but the House took it out. Polsky, the bill sponsor, said she thinks it has a better shot this year as a standalone measure. The bill moved forward out of Tuesday’s committee meeting with a unanimous vote.

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Polsky said the opioid crisis is not something the state can arrest its way out of, and she’d like to see testing strips available in every CVS and Walgreens. About 35 other states have decriminalized drug testing kits.

“How often do we sit here and actually have the opportunity to save lives with our bills?” Polsky said.

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