Article at a Glance:
- Fentanyl is a schedule II substance, meaning it has some medical use and a high potential for misuse
- Fentanyl is considered one of the most potent and dangerous prescription painkillers
- Trafficking fentanyl violates the Federal Controlled Substances Act can result in a $50 million penalty and life in prison
- Hair follicle tests can detect fentanyl for up to 90 days following the latest use of the drug
- Always keep your fentanyl prescription in its original container, safely dispose of any leftover amounts and never let other people use your prescription
Table of Contents
Is Fentanyl Illegal?
Possession of fentanyl without a prescription, or in excess of an individual’s prescribed amount, is illegal. Illegal possession of any of fentanyl’s pharmaceutical forms can lead to arrest, driver’s license suspension, criminal prosecution, fines, and other legal ramifications.
Fentanyl is a synthetic, opioid-derived, prescription painkiller with euphoric and addictive qualities. Fentanyl is considered to be one of the most potent and most dangerous prescription painkillers. Despite its risks, because of fentanyl’s medical applications, the United States Drug Enforcement Administration (DEA) classifies fentanyl as a schedule II substance. This classification denotes a high potential for misuse, along with psychological and physical dependence. Criminal penalties related to the distribution and possession of Schedule II controlled substances like fentanyl, without a prescription, or in excess of prescribed amounts, are largely determined by the quantity of the substance possessed by an individual at the time of arrest and vary widely from state to state.
Regardless of the range of penalties unique to each state, fentanyl possession without medical authorization is universally illegal throughout the United States.
Crimes Associated with Fentanyl
Fentanyl is legally available in the United States in a variety of forms and brands with a prescription from a licensed physician. However, without a prescription, it is a serious crime to possess, use and distribute fentanyl. Additionally, possessing expired medication or more than the prescribed amount are considered by both state and federal governments to be unlawful possession of a controlled substance.
People charged at the state level for fentanyl offenses can face misdemeanor penalties for small quantities or felony charges for large quantities, trafficking, and prescription fraud. These penalties are primarily dictated by the quantity of the substance in a person’s possession, the way the substance came into the person’s possession and the intent of possession. Misdemeanor convictions often result in probation, fines or short periods of incarceration. Felony offenses typically include more severe repercussions, such as up to 10 years in prison and excessive fines, depending upon the severity of the specific offense.
More serious offenses, such as trafficking, are subject to federal prosecution and enhanced penalties. Fentanyl trafficking offenses, which violate the Federal Controlled Substances Act, carry a financial penalty of between $1 million and $50 million, and an incarceration period of up to life in prison. Repeat offenses can lead to additional financial penalties of between $2 and $75 million, alongside additional concurrent life sentences in prison.
Caught Without My Fentanyl Prescription
The only form of legal possession is with a prescription, specifically in an amount equal to or less than the prescribed quantity. It is unlawful for an individual to possess fentanyl without a prescription, obtain an amount greater than his or her prescribed quantity, possess an expired prescription of fentanyl, or attempt to sell a fentanyl prescription to another individual. People engaging in such actions can face state misdemeanor or federal felony charges.
Fentanyl Prescription in a Bottle
If you are prescribed fentanyl by a physician, you will receive a bottle with a medication label. The label lists your general information, the physician’s general information, and the pharmacy’s general information. Also on the label is the name of the prescription (and brand if applicable), dosage instructions, the total amount of the prescription contained within the bottle and the prescribing date and expiration.
The prescription must remain contained within its original bottle, the amount contained within the bottle must match that (or is less than that) of the amount listed on the label and the prescription must not have expired. So long as all of these conditions are met, the individual in possession of their fentanyl prescription will not face any legal exposure.
Prescription Outside the Bottle
While most people are aware that illegal possession is a byproduct of lacking a prescription, very few people are aware that in many states it is also considered a criminal offense for one’s own prescription to be kept outside of its original bottle.
In states where these laws exist, it is only legal to possess a prescription outside of its original container if the drug was removed for consumption. Therefore, an individual should not store prescribed controlled substances in bags, pockets or any other storage device other than the original bottle with the proper prescription label.
Caught and Not My Fentanyl Prescription
Throughout the United States, possession of a controlled substance is illegal without a prescription. Obtaining fentanyl that was not directly prescribed to that person by a physician is a criminal offense that carries severe legal repercussions.
In the state of Florida, for example, the unlawful possession of fentanyl is a third-degree drug felony, which includes penalties of up to five years in prison, a mandatory five-year-long probation period and a financial penalty of up to $5,000.
Getting Caught with Street-Style Fentanyl
While fentanyl is commonly understood as a prescription drug, throughout the last few years, fentanyl from China and Mexico entered the United States.
Possession of street-style, counterfeit or analog forms of fentanyl are criminal offenses with legal consequences.
If you are caught possessing counterfeit fentanyl or fentanyl analog, depending on the amount in your possession, you are likely to be charged with either possession or trafficking offenses. For example, in the state of Michigan, possession of a controlled substance analog (such as an illicit fentanyl derivative) is a felony offense punishable by up to two years in prison and a $2,000 fine. Additionally, trafficking counterfeit Schedule II substances is a felony offense punishable by up to five years in prison and a fine of $5,000. If charged with trafficking in a controlled substance analog, an individual faces imprisonment of up to 15 years and a fine of $250,000.
Getting Caught High on Fentanyl
Outside of the penalties that exist for the possession, sale, and trafficking of fentanyl, there are a series of criminal offenses related specifically to the illegal use of fentanyl without a prescription or medical purpose. For example, in the state of Colorado, the illegal use of a controlled substance like fentanyl is considered a level 2 misdemeanor, with a maximum penalty of 12 months in prison and a $750 fine.
Fentanyl use detected by random drug test programs for individuals who are in pretrial intervention programs can result in more severe criminal penalties than those of the original offense.
Despite its relatively short half-life of two to four hours, fentanyl remains detectable for a significantly longer period. Fentanyl is detectable in urine tests for up to 24 hours, in saliva tests for up to four days, in blood tests for up to 12 hours and in hair follicle tests for up to 90 days following use.
In the event of a failed drug test while on probation or other drug conditions, an individual may face excessive legal and financial penalties.
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- Yeh, Brian T. “Drug Offenses: Maximum Fines and Terms of Imprisonment for Violation of the Federal Controlled Substances Act and Related Laws.” Congressional Research Service, January 20, 2015. Accessed April 15, 2019.
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- Goldman Wetzel. “Florida Penalties for Fentanyl Possession or Trafficking.” December 10, 2018. Accessed April 15, 2019.
- Davis Law Group. “Counterfeit and Synthetic Drug Charges.” Accessed April 15, 2019.
- Colorado Legal Defense Group. “Colorado “use of a controlled substance” laws (Colorado 18-18-404 C.R.S.).” Accessed April 15, 2019.
- US Drug Test Centers. “Probation Drug Testing.” Accessed April 15, 2019.
- Medical Disclaimer
The Recovery Village aims to improve the quality of life for people struggling with a substance use or mental health disorder with fact-based content about the nature of behavioral health conditions, treatment options and their related outcomes. We publish material that is researched, cited, edited and reviewed by licensed medical professionals. The information we provide is not intended to be a substitute for professional medical advice, diagnosis or treatment. It should not be used in place of the advice of your physician or other qualified healthcare provider.