More than a gram of fentanyl should land you in jail, Colorado lawmakers say

A panel of state lawmakers has decided to make possession of more than 1 gram of a substance containing fentanyl a felony in Colorado, reversing part of a 2019 bipartisan law that made possession of up to ‘to 4 grams of a controlled substance a misdemeanor.

The sponsors of Bill 22-1326 – the original version of which would increase penalties only for the distribution of fentanyl, not possession – said the amendment was necessary because of the lethality of the synthetic opioid. Nearly 2,000 people have died after ingesting substances containing fentanyl, which is 50 times more potent than heroin, since 2015.

The amendment criminalizing possession of more than one gram comes with a caveat: a court should determine that the person knew or should have known that the substance they possessed likely contained fentanyl. House Speaker Alec Garnett, a Democrat from Denver who sponsors HB-1326 with Rep. Mike Lynch, a Republican from Wellington, said it could apply to someone with the blue pills known as “M30” which contain fentanyl but are sometimes marketed as oxycodone.

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This would mean that possessing as few as 10 pills could result in a prison sentence of six months to a year and put a felony conviction on his record which could prevent him from accessing housing, employment and post-secondary education. Under current law, possession of up to 4 grams of a Schedule I or II controlled substance is a Level 1 drug offense. The maximum penalty for this type of offense is 18 months in prison. , but 2019 state law encourages judges to sentence those convicted of drug offenses to probation instead of jail time.

This amendment and others came after the House Judiciary Committee spent more than 12 hours hearing public testimony from people on all sides in the fentanyl debate, including family members of those who lost a fentanyl overdose, which many described as poisoning; law enforcement officials who have called for harsher sentences; and harm reduction advocates who implored lawmakers to refrain from further criminalizing drug use instead of providing resources for voluntary drug treatment.

The amendment reducing the threshold for a Level 4 drug felony from 4 grams to 1 gram passed 7 to 4. Democratic Representatives Jennifer Bacon of Denver and Mike Weissman of Aurora opposed the change, saying that it would criminalize addiction and not help reduce overdose deaths in the state. They were joined in opposition by Republican Representatives Terri Carver of Colorado Springs and Rod Bockenfeld of Watkins – who questioned whether prosecutors could prove knowledge of fentanyl in a substance and believed those found with less than 1 gram of fentanyl should be guilty of a crime.

Provisions in original HB-1326 include tougher penalties for distributing or manufacturing fentanyl, requiring drug-using offenders to complete drug treatment, funding to expand access to naloxone , an opioid overdose reversal drug, grants for harm reduction agencies, support for treatment in prisons, and a statewide fentanyl public education campaign.

After reviewing the proposed amendments, the panel voted 8-3 to move HB-1326 forward, sending it to the House Appropriations Committee. The “no” votes included Carver, Bockenfeld and fellow Republican Stephanie Luck of Penrose, who all said the penalties in the bill for possession of fentanyl were less than what was needed to properly address the overdose crisis.

President Alec Garnett, D-Denver, speaks during a press conference on fentanyl legislation March 24, 2022, at the Colorado State Capitol building. (Faith Miller/Colorado Newsline)

Felonizing possession of pure fentanyl

The committee also passed an amendment that would make possession of any amount of a substance containing at least 60% pure fentanyl a Level 4 drug felony. This amendment would be repealed after one year, unless lawmakers decide to extend it.

While Colorado Attorney General Phil Weiser, a Democrat, had backed such a change, prosecutors acknowledged in Tuesday’s hearing that law enforcement rarely, if ever, encounters fentanyl in this form. It is almost always found in trace amounts in pills, cocaine or other drugs.

“We don’t see pure fentanyl in the cases we’re filing,” said Denver District Attorney Beth McCann, a Democrat. “What we usually find is a filler and a very small amount of fentanyl.”

Additionally, the Colorado Bureau of Investigation does not currently have the ability to test pure fentanyl, according to Mesa District Attorney Dan Rubinstein, a Republican.

Making possession of pure fentanyl a crime is “not something that’s going to move the needle for us,” Rubinstein said Tuesday. “Based on that, I actually asked President Garnett and Rep. Lynch not to address pure fentanyl.”

Representatives from the Colorado Criminal Defense Bar and the Colorado District Attorneys Council told Newsline that fentanyl pills, known as “M30” or “blues,” typically weigh around 0.1 grams each. People addicted to fentanyl can take up to 10 pills a day, an amount that could result in a felony conviction.

These pills are sometimes sold as oxycodone and other times as fentanyl. In fact, each pill contains about 2 to 2.2 milligrams of fentanyl, according to CDAC executive director Tom Raynes. That’s enough to be a lethal dose for someone who hasn’t developed an opioid tolerance.

These measurements can vary, Raynes said in an email, “because the pills lack consistency and uniformity. Why? Because they’re made by drug dealers who don’t focus on precise proportions.

“Some people can and do use 5-10 pills in a single day, but yes, one pill can kill,” he added.

Garnett said he thinks the “should have known” provision in the amendment to criminalize possession of more than one gram could reasonably apply to blue pills, as they are “the most common form of fentanyl “. But when asked if someone who bought the pills believing they were oxycodone should be charged with a crime, he hesitated.

“I am not a prosecutor. I don’t bring these cases,” Garnett said. “I think it will be an issue that will continue to move forward, but the way we approach it with this bill is that we treat fentanyl differently than everything else. Fentanyl is more lethal. Fentanyl is deadlier than anything we’ve seen before.

Faster Disc Sealing

Some of the Republicans on the committee supported separate amendments that would have criminalized the possession of small amounts of fentanyl, but they were rejected by the majority Democratic panel.

An amendment proposed by Carver would have made possession of any amount of fentanyl a crime. Bockenfeld then proposed a separate amendment lowering the crime threshold to a quarter gram for fentanyl. Both amendments failed.

Other amendments passed by the committee would allow those convicted of a Level 4 drug felony for possession of fentanyl to seal their criminal records and allow them to vote in elections while serving time.

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