Nitazenes: The Synthetic Opioid Prosecutors Charge Like Fentanyl.

Nitazenes, also referred to as benzimidazole opioids, present a unique challenge for those facing opioid-trafficking charges due to the nature of their recent emergency scheduling under Florida law. According to the source provided, no nitazene has “approved medical use,” and Florida’s emergency rule places ten previously uncategorized nitazenes directly into Schedule I. This classification is significant because it explicitly differs from fentanyl’s status as a Schedule II controlled substance. While Schedule I substances are characterized as having a “high potential for abuse” and “no currently accepted medical use,” Schedule II drugs like fentanyl do have a “currently accepted medical use.” While the difference might seem substantial, in practice, the high potential for abuse is a quality inherent in both schedules, and defendants charged with offenses involving Schedule I and Schedule II controlled substances can both face the risk of severe penalties. The difference also complicates prosecutors’ and defense attorneys’ ability to rely on existing fentanyl case law, because the statutes that apply to Schedule I and Schedule II controlled substances are different. This means that while prosecutors may attempt to rely on a similar legal theory to prosecute individuals suspected of distributing nitazenes, they will need to adapt their arguments in order to address these drugs’ specific Schedule I classification. Meanwhile, defense attorneys and consultants must address both federal and state law and how these specific laws could apply. Ultimately, given the ongoing nature of synthetic opioid cases, defendants charged with offenses involving nitazenes can expect to face a challenging road ahead.

What Florida charge exposure follows from the eight-compound nitazene listing?

The Florida emergency rule lists ten compounds of the nitazene class:

• isotonitazene
• protonitazene
• metonitazene
• butonitazene
• flunitazene
• etodesnitazene
• etazene
• N-pyrrolidino etonitazene
• etonitazepyne
• metodesnitazene The provided Florida source also clarifies that the possession of any nitazene is a felony offense. This is clear, as the Florida page explicitly describes the possession of Schedule I controlled substances as “a felony offense.” The page also includes an “Opioid Enforcement” section which notes that “some opioid offenses can lead to long-term imprisonment under federal law,” and lists the Florida Department of Law Enforcement (FDLE) as one of the law enforcement agencies that investigates these offenses. This makes it clear that the penalties for opioid offenses can be both state- and federal-level. Ultimately, though, this rule still leaves important questions unanswered, which is why defendants charged with offenses involving nitazenes are at an initial disadvantage. By scheduling nitazenes as Schedule I controlled substances, Florida’s rule implies that prosecutors do not need to prove they are analogues of other fentanyl or heroin-like substances. However, this rule is subject to several questions, including:
• Which compounds qualify as analogued controlled substances?
• How is possession defined in criminal investigations?
• How should prosecutors demonstrate an affirmative intent to manufacture, distribute, or dispense?
• Can defendants who were convicted under the emergency rule challenge the rule’s authority or applicability when it is codified?
• Does the rule apply retroactively, and how does the retroactivity affect previous offenses? Due to these remaining questions and the ongoing nature of synthetic opioid cases, defendants charged with offenses involving nitazenes can expect to face a challenging road ahead. As explained in detail, Spodek Law Group is uniquely positioned to assist with complex synthetic opioid-related cases.

How can investigators connect a seized nitazene to a trafficking case?

Based on the provided source materials, the process of connecting a seized nitazene to a trafficking operation can be broken down into several phases. Here is an overview of what you can expect to see in a typical investigation:

Gathering Evidence through Undercover Purchases, Informants, and Search Warrants

Drug investigations typically begin with one or more initial leads that lead investigators to suspect the presence of drugs like nitazenes. This may come in the form of undercover purchases involving plants (or cooperating witnesses who provide tips to the DEA). These purchases may, in turn, be followed by the issuance of search warrants. As noted on the federal page, search warrants are key pieces of evidence in drug investigations and can authorize searches of vehicles, homes, and other suspected locations that may be harboring drugs.

Laboratory Drug Analysis

Once investigators have seized drugs, the next step in a typical investigation is to have the drugs analyzed in a laboratory. This is important because it is often difficult to visually confirm that a substance is a nitazene rather than another synthetic opioid or even fentanyl or heroin.

Digital Evidence Gathering

In federal cases, however, investigators may use more than just drug analysis to connect a suspect to a nitazene-trafficking operation. Federal investigators may also examine the suspect’s phone records, GPS data, financial records, and social media activity, all of which can be used to provide further evidence linking the defendant to the drug operation.

Conspiracy Allegations

Importantly, investigators may also use conspiracy allegations to connect suspected traffickers to suspected drug operations. The provided federal page explains that traffickers accused of conspiracy do not necessarily have to engage in drug sales or possession personally. If defendants allegedly coordinated a trafficking operation or otherwise conspired to commit a drug offense, they can still face criminal charges even if they do not have a direct link to the possession of narcotics.

Identifying Potential Evidence Weaknesses

While there are many pieces of evidence that can be used to connect a defendant to a synthetic opioid trafficking operation, it will be important for a defense attorney to examine the strengths and weaknesses of the evidence in order to determine what defense strategies may be available. For example, based on the information in the supplied federal page, potential weaknesses include chain-of-custody problems and the need for prosecutors to address a defendant’s knowledge and intent. These are important issues in drug cases, and addressing them effectively will be key to achieving a favorable outcome for nitazene-trafficking defendants.

What can the available sources not establish about a nitazene prosecution?

Based on the provided source materials, the process of conducting a nitazene-trafficking investigation is largely similar to the process of conducting other synthetic drug investigations. As a result, many of the same defenses that are relevant to fentanyl-trafficking cases should be relevant to nitazene-trafficking cases as well. However, some potential issues that are not explicitly discussed on the supplied federal page include:

• Fourth Amendment Challenges: Although search warrants are discussed on the federal page, search warrants are only one of several mechanisms for law enforcement officers to gather evidence. Defendants can also face Fourth Amendment challenges if they were arrested on a drug-related offense following an illegal traffic stop or if investigators illegally seize records or other evidence.
• Laboratory Reliability: Laboratory reliability can be an issue, particularly when the drugs in question are synthetic opioids like nitazenes and fentanyl. If a laboratory produces an inaccurate report, it can substantially impact the effectiveness of the prosecution’s case.
• Entrapment: Entrapment is a possible defense in some drug cases as well. For example, if a cooperating informant induced a defendant to commit a criminal offense through an excessive promise of money, this could present an entrapment defense.
• Informant Credibility: The credibility of an informant can also be an important issue, as informants often play a key role in trafficking investigations. If an informant has an incentive to produce a favorable outcome for the prosecution in order to secure a plea bargain, then their testimony may carry less weight.
• Weapons Allegations: As the federal page states, prosecutors may also allege that defendants possessed firearms or other dangerous weapons while trafficking drugs. This is an additional allegation that can substantially increase a defendant’s sentencing exposure.

With this in mind, it is essential that nitazene-trafficking defendants in Florida rely on a defense team that understands the unique challenges posed by this specific class of opioids and the ongoing nature of synthetic opioid litigation. At Spodek Law Group, we offer nationwide legal services and customized defense strategies.

If You Want Someone to Look at Your Case

Reading about a charge is not the same as having someone read your file. Spodek Law Group keeps an attorney on call around the clock, and the first consultation costs nothing and runs as long as your questions do. The number is 888 348 8028.