Knowingly possessing more than 1 gram of fentanyl or a fentanyl compound for personal use would be a felony in Colorado under an amendment passed Wednesday afternoon by the House Judiciary Committee to a bill seeking to stem rising overdose deaths linked to the powerful synthetic opioid.
The committee’s 7-4 vote to adopt the amendment is a response to criticism from law enforcement, who said the measure — House Bill 1326 — was too weak because it failed to change a 2019 law that made possessing up to 4 grams of fentanyl a misdemeanor.
Harm reduction advocates argued fiercely against making fentanyl possession for personal use a felony again, saying that the criminal justice system is not a solution to addiction.
House Bill 1326 now heads to the appropriations committee after passing on an 8-3 vote. Testimony on the measure stretched from Tuesday afternoon into the early morning hours of Wednesday, highlighting the sensitive nature of the legislation and the strong emotions around it.
Republicans, seeking to win back power in Colorado in November, have blasted Democrats over the 2019 law, which decriminalized possession of up to 4 grams of almost all illicit drugs for personal use.
The 2019 measure, House Bill 1263, was meant to treat drug addiction as a public health issue instead of shunting the problem over to the criminal justice system. But critics say the 4-gram limit is dangerously out of step with the potency of fentanyl, a synthetic opioid fatal at about 2 or 3 milligrams.
More than 900 Coloradans died from fentanyl overdoses last year, up from 540 the year before, according to state health department data. Four children under age 10, and 35 people between 10 and 18 years old died from fentanyl overdoses in 2021.
Five people died from a suspected fentanyl overdose in Commerce City earlier this year. Authorities believe the people thought they were ingesting cocaine.
House Bill 1326 was unveiled at a March news conference featuring Gov. Jared Polis, lawmakers and families who lost loved ones to fentanyl, which is 50 times more potent than heroin and 80 to 100 times more potent than morphine.
“When it comes to providing tools for law enforcement and for prosecutors to go after the people who are peddling this drug,” said House Speaker Alec Garnett, a Denver Democrat and prime sponsor the bill. “This is a strong bill.”
Garnett added: “I know that people don’t think it’s a perfect bill. You’re never going to get the perfect bill when it comes to trying to address this crisis because there is no silver bullet.”
As amended Wednesday, House Bill 1326 would make possessing more than 1 gram but less than 4 grams of a fentanyl compound a Level 4 drug felony if the person knew or “should have known” it contained fentanyl.
Illicit fentanyl is often mixed into other drugs because it is cheap and potent, according to the U.S. Drug Enforcement Administration.
Tom Raynes, executive director of the Colorado District Attorneys’ Council, said the requirement that prosecutors prove a person knew they were possessing fentanyl is a challenge — but not an insurmountable one.
“It creates an extra hurdle that exists nowhere else in the law,” Raynes said.
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At least one state, Ohio, has a similar standard, he said.
Rep. Jennifer Bacon, a Denver Democrat, said she couldn’t support the amendment, citing the disproportionate impact drug arrests have on people of color. She said a felony charge has outsized consequences on people and that the legislature needed to take that into consideration.
Bacon was among four members of the Judiciary Committee who voted against the amendment. The three others were Reps. Mike Weissman, D-Aurora; Terri Carver, R-Colorado Springs; and Rod Bockenfeld, R-Arapahoe County.
Carver and Bockenfeld argued that possessing any amount of fentanyl for personal use should be a felony.
Carver offered an amendment that would have made it a felony to possess any amount of fentanyl. The amendment failed, with six members of the committee opposed and five in favor. Rep. Dylan Roberts, an Avon Democrat who works as a prosecutor, joined the four Republicans on the committee in voting in favor of Carver’s amendment.
The committee also amended the bill to make possessing a compound mixture with a fentanyl content of more than 60% a Level 2 drug felony, no matter the quantity. The Colorado Bureau of Investigation can’t currently test a drug mixture for fentanyl with that level of specificity. Garnett characterized the amendment as one meant to prepare for when the agency’s lab has that testing capability.
House Bill 1326 would also:
- Make possessing 1 gram or less of fentanyl or a fentanyl compound a Level 1 drug misdemeanor. On the fourth offense, it would be a Level 4 drug felony, punishable by six months to two years in prison.
- Make possessing 4-50 grams of a fentanyl compound or mixture with the intent to distribute it a Level 2 drug felony, which carries a penalty of four to 16 years in prison
- Make possessing more than 50 grams of a fentanyl compound or mixture with the intent to distribute it a Level 1 drug felony. That comes with a prison term of up to 32 years.
- Make possessing a pill press used to mix fentanyl with other drugs a Level 1 drug felony.
Under current law, possessing up to 14 grams of fentanyl with an intent to distribute is a Level 3 drug felony, punishable by two to six years in prison. Possessing more than 225 grams of fentanyl with an intent to distribute is a Level 1 drug felony, punishable by a prison term of up to 32 years.
Additionally, House Bill 1326 would make it a Level 1 drug felony to distribute fentanyl if it leads to someone’s death, though there is a carveout for people possessing less than 4 grams of the drug who try to assist someone who overdoses.
The bill includes $300,000 for fentanyl test strips and $20 million to pay for the distribution of Narcan, the trade name for an opioid overdose reversal drug. About $6 million is set aside for harm reduction grants and $3 million to provide treatment for people jailed and to provide naloxone to some people when they are released.
Under other amendments passed by the committee on Wednesday, people convicted of possessing 1 to 4 grams of fentanyl would be able to seal their criminal record two years after completing supervised release, rather than the current three-year wait period. Those same people would also be able to vote while in jail.
Fentanyl is a synthetic opioid used to treat severe pain. Illicit fentanyl is primarily manufactured in other countries and smuggled into the U.S., according to the U.S. Drug Enforcement Administration.