Counterfeit prescription pills, known as M30s, have fueled an overdose crisis in the U.S. (U.S. Drug Enforcement Administration)
A panel of state lawmakers moved to make possession of any more than 1 gram of a substance containing fentanyl a felony in Colorado, undoing part of a bipartisan 2019 law that made possession of up to 4 grams of a controlled substance a misdemeanor.
The sponsors of House Bill 22-1326 — the original version of which would increase penalties only for fentanyl distribution, not possession — said the amendment was necessary because of how lethal the synthetic opioid could be. Nearly 2,000 people have died after ingesting substances containing fentanyl, which is 50 times more potent than heroin, since 2015.
The amendment felonizing possession of more than 1 gram comes with a caveat: A court would have to determine that the person knew or should have known that the substance they possessed likely contained fentanyl. House Speaker Alec Garnett, a Denver Democrat who is sponsoring HB-1326 with Rep. Mike Lynch, a Wellington Republican, said this could apply to someone possessing the blue pills known as “M30s” that contain fentanyl but are sometimes marketed as oxycodone.
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This would mean possessing as few as 10 pills could land someone in prison for six months to one year and stick a felony conviction on their record that could bar them from accessing housing, employment and postsecondary education. Under current law, possession of up to 4 grams of a schedule I or II controlled substance is a level 1 drug misdemeanor. The maximum sentence for this type of misdemeanor is 18 months in jail, but the 2019 state law encourages judges to sentence people convicted of drug misdemeanors 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 of the fentanyl debate, including family members of those lost to fentanyl overdose, which many described as poisoning; law enforcement representatives who called for harsher penalties; and harm reduction advocates who implored lawmakers to refrain from further criminalizing drug use in lieu of providing resources for voluntary substance use treatment.
The amendment decreasing the threshold for a level 4 drug felony from 4 grams to 1 gram passed on a 7-4 vote. Democratic Reps. Jennifer Bacon of Denver and Mike Weissman of Aurora opposed this change, saying it would criminalize addiction and wouldn’t help reduce overdose deaths in the state. They were joined in opposition by Republican Reps. Terri Carver of Colorado Springs and Rod Bockenfeld of Watkins — who questioned whether prosecutors could prove knowledge of fentanyl in a substance and thought people found with less than 1 gram of fentanyl should be guilty of a felony.
Provisions contained in the original version of HB-1326 include tougher penalties for distributing or manufacturing fentanyl, requirements for drug offenders to complete addiction treatment, funding to expand access to the opioid overdose reversal drug naloxone, grants for harm reduction agencies, support for treatment in jails, and a statewide fentanyl public education campaign.
After considering the proposed amendments, the panel voted 8-3 to advance HB-1326, sending it to the House Appropriations Committee. The “no” votes included Carver, Bockenfeld and fellow Republican Rep. Stephanie Luck of Penrose, who all said the penalties in the bill for fentanyl possession fell short of what was needed to properly address the overdose crisis.
Felonizing possession of pure fentanyl
The committee also passed an amendment that would make possession of any quantity of a substance that’s at least 60% pure fentanyl a level 2 drug felony, a conviction that comes with four to eight years in prison. This amendment would repeal after one year unless lawmakers decided to extend it.
While Colorado Attorney General Phil Weiser, a Democrat, had supported such a change, prosecutors acknowledged during Tuesday’s hearing that law enforcement rarely if ever encounters fentanyl in this form. It’s almost always found in trace amounts in pills, cocaine or other drugs.
“We do not see pure fentanyl in the cases that we file,” said Denver District Attorney Beth McCann, a Democrat. “What we find typically is a filler and a very small bit of fentanyl.”
Moreover, the Colorado Bureau of Investigation does not currently have the capacity to test pure fentanyl, according to Mesa County District Attorney Dan Rubinstein, a Republican.
Making possession of pure fentanyl a felony is “not something that is going to move the needle at all for us,” Rubinstein said Tuesday. “Based upon that, I actually asked Speaker Garnett and Rep. Lynch not to address pure fentanyl.”
Representatives from the Colorado Criminal Defense Bar and Colorado District Attorneys Council told Newsline that fentanyl pills, known as “M30s” or “blues,” typically weigh about 0.1 gram each. People addicted to fentanyl may take as many as 10 pills in a day, an amount that could lead to a felony conviction.
These pills are sometimes sold as oxycodone and other times as fentanyl. In reality, each pill contains around 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 has not built up a tolerance to opioids.
Those measurements could vary, Raynes said in an email, “because the pills lack consistency and uniformity. Why? Because they are made by drug dealers who don’t focus on precise proportions.”
“Some can and do use 5-10 pills in a single day, but yes, one pill can kill,” he added.
Garnett said he believed the “should have known” provision in the amendment to felonize possession of more than 1 gram could reasonably apply to the blue pills, since they are “the most common form of fentanyl.” But when asked whether someone who bought the pills believing they were oxycodone should be charged with a felony, he demurred.
“I’m not a prosecutor. I’m not bringing these cases,” Garnett said. “I think that will be an issue that continues to kind of move forward, but the way that we are approaching with this bill is we are treating fentanyl different from everything else. Fentanyl is more lethal. Fentanyl is more deadly than everything we’ve seen before.”
Swifter record sealing
Some of the Republicans on the committee backed separate amendments that would have felonized possession of smaller amounts of fentanyl, but they were rejected by the Democratic-majority panel.
An amendment proposed by Carver would have made possession of any amount of fentanyl a felony. Bockenfeld then proposed a separate amendment lowering the felony threshold to one-fourth gram for fentanyl. Both amendments failed.
Other amendments passed by the committee would make it easier for people convicted of a level 4 drug felony for fentanyl possession to seal their criminal records and allow them to vote in elections while serving a sentence.
Editor’s note: This article was updated at 9:15 p.m. April 14, 2022, to correct the proposed penalty for possession of a substance that is at least 60% pure fentanyl.
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