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Experts warn House Bill 88 could punish unwitting users if mens rea requirement removed
Summary
At a Judiciary Committee hearing, Alex Serto of the Buckeye Institute warned H.B. 88 removes mens rea for fentanyl-related possession, risking prosecution of unwitting users; sponsors amended the bill and accepted the amendment by voice vote.
The House Judiciary Committee heard testimony and questions about House Bill 88 during its fourth hearing, including warnings from a Buckeye Institute legal fellow that the bill as written would remove the mens rea requirement for fentanyl-related possession.
Alex Serto testified that "House Bill 88 retreats from those reforms by removing the mens rea requirement that an offender know or have reason to know that the drugs they possess contain fentanyl or a fentanyl compound," and cautioned that removing that element risks "trapping" unwitting users who did not intend harm.
Committee members raised hypothetical and real-world examples to probe the consequences. Ranking Member Synenberg cited earlier opponent testimony describing two Ohio State students who unknowingly took fentanyl-laced drugs that led to deaths and asked whether a narrow exception should exist for small-scale, unknowing possession or transfers between users. Serto said his testimony focused on possession and that the General Assembly could craft distribution-specific provisions to target traffickers rather than low-level users.
Representative Plummer had earlier moved to amend H.B. 88 (amendment 886), which the committee accepted by voice after Representative Plummer described it as narrowing the bill’s focus, preserving proportionality of penalties, and expanding protections for Good Samaritans in overdose situations.
The committee recorded additional written-only testimony on members' iPads and concluded H.B. 88's hearing without a final vote. Several members asked for additional data and drafting refinements to ensure the law targets traffickers rather than unwitting consumers.
