Fentanyl test strips decriminalized under new Kansas law

Governor Laura Kelly signed Senate Bill 174 on May 11, 2023, decriminalizing fentanyl test strips. According to a media press release on Monday, May 15, “Decriminalizing test strips, which can detect the presence of fentanyl in other substances, will help prevent overdose deaths in Kansas.”

“Overdoses caused by fentanyl have devastated communities across Kansas and the nation,” Governor Kelly said. “By decriminalizing fentanyl test strips, we are providing the resources needed to combat the opioid and fentanyl epidemic so that families and loved ones no longer have to feel the pain of a preventable death.”

The bipartisan bill received a large amount of support from both Kansas Republicans and Kansas Democrats, with a vote of 113-9 in the House and 31-7 in the Senate.

“The fentanyl epidemic is devastating our communities,” Rep. Stephen Owens (R) said. “Senate Bill 174 represents our first steps in working together to fight this terrible drug. I am proud to stand with Governor Kelly as we continue to work together to save lives.”

Kansas Rep. Jason Probst (D), has let his frustrations regarding fentanyl in Kansas known in his Substack post where he wrote, “Some Kansas Senators seem determined to keep killing kids with fentanyl.” This was due to the Senate Public Health and Welfare Committee taking fentanyl testing strips and an Overdose death review board out from HB2390, replacing it with verbiage from SB6. Nevertheless, Rep. Probst was happy to see SB174 get signed into law.

“With the signing of Senate Bill 174, Kansas is putting into action the values of kindness, compassion, and love for our neighbors,” Rep. Probst said. “By decriminalizing fentanyl testing strips, we are helping Kansans protect themselves from a deadly poison that has taken far too many lives—including the tragic and profoundly painful loss of far too many teenagers and young adults in our state.”

SB174 will do a lot more than decriminalize fentanyl test strips. In fact, it does about seven different things. These include the following:

1. Amends the crime of battery

The crime of battery is amended to provide a definition of battery specifically for healthcare providers. With this amendment battery against a healthcare provider is defined “as a battery committed against a health care provider while such provider is engaged in the performance of such provider’s duty. “Healthcare provider” is defined as an individual who is licensed, registered, certified, or otherwise authorized by the state of Kansas to provide health care services in this state.”

This is a class A person misdemeanor.

2. Provides definitions of “Manufacture,” “Drug Paraphernalia,” and “Fentanyl-related Controlled Substances”

From the bill summary:

The bill amends the definition of “manufacture” to include placing a controlled substance into a pill or capsule form.

The bill amends the definition of “drug paraphernalia” to exclude tests used to detect the presence of fentanyl, ketamine, or gamma-hydroxybutyric acid (GHB).

The bill adds the definition of “fentanyl-related controlled substances” in the Kansas Criminal Code to include certain Schedule I and Schedule II controlled substances, as specified by the bill. The bill also makes a technical amendment to reconcile amendments made by the 2022 Legislature by removing the definition of the term “possession” from KSA 21-5701 and by repealing KSA 21-5701b.

3. Penalty for the unlawful manufacturing of fentanyl increased

Originally a drug severity level 2 felony, the bill raises the manufacturing of fentanyl-related substances to a drug severity level 1 felony.

4. Amends the crimes of burglary and aggravated burglary

In this bill, domestic battery and violation of a protection order are added to the list of crimes a person can have “intent to commit” when entering or remaining in one of the locations specified in the crimes of burglary and aggravated burglary.

5. Crimes of interference with law enforcement

According to the bill summary:

The bill amends the crime of interference with law enforcement to add conduct constituting the crime. The crime includes knowingly fleeing from a law enforcement officer by means other than operation of a motor vehicle, when:

• The officer has reason to stop the person under continuing law in the Kansas Code of Criminal Procedure; and

• The officer has given the person visual or audible signal to stop.

The offense is classified as one of the following:

• A class A nonperson misdemeanor in the case of a misdemeanor, or resulting from any authorized disposition for a misdemeanor, or a civil case;

• A severity level 7 nonperson felony in the case of a felony, or resulting from parole or any authorized disposition for a felony; or

• A severity level 5 nonperson felony if the offender discharged or used a firearm while fleeing.

6. Special Sentencing Rules Related to Manufacture or Distribution of Fentanyl

A special sentencing rule is created under this bill for the penalty for the crime of manufacturing material that contains any quantity of fentanyl-related controlled substances. “This includes presumptive imprisonment and two times the maximum duration of the presumptive sentence term. The sentence is not to be considered a departure and will not be subject to appeal.”

The bill also creates a special sentencing rule like that described above if the appearance or packaging of the controlled substance is found to be beyond a reasonable doubt “attractive to minors.”

7. Amends laws regarding prosecutorial authority of the Attorney General

Under this bill the Attorney General is authorized, concurrently with a county or district attorney, to prosecute the following:

• Theft, under continuing law in the Revised Kansas Criminal Code;

• A violation of the Kansas Racketeer Influenced and Corrupt Organizations Act; and

• An attempt, conspiracy, or criminal solicitation of such crimes when the alleged course of conduct occurs in two or more counties.