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Colorado lawmakers approve fentanyl bill; jury would decide if person knew drugs had fentanyl

Lawmakers say final changes strike balance in making possession over 1 gram a felony
fentanyl pills
Posted at 10:54 PM, May 11, 2022

DENVER — DENVER – With just over an hour left in the 2022 legislative session, Colorado lawmakers passed a finalized bill that aims to address the state’s fentanyl crisis, approving last-minute changesthat would allow a jury or judge to decide whether a person charged with felony fentanyl possession between 1 and 4 grams knew the drug compound contained fentanyl and have the charge lowered to a misdemeanor.

A conference committee of House and Senate members came to the agreement Wednesday afternoon after the House failed to agree to amendments earlier this week made in the Senate, which stripped out a portion of the bill that said a person would only face a drug felony charge if they “knowingly” possessed between 1 and 4 grams of a drug compound containing fentanyl. The conference committee passed the final report 6-0.

Then the House and Senate both approved the conference committee’s finalized report and repassed the bill despite protests from some Republicans, primarily Sen. Bob Gardner, R-Colorado Springs, and several House Republicans, that the burden of proof would be placed on prosecutors to disprove a person's claims they did not know the compound contained fentanyl, and claims from law enforcement advisers made to lawmakers that each possession charge for between 1 and 4 grams would effectively be a level 1 drug misdemeanor.

State lawmakers working to pass legislation before midnight deadline

Republican Senate Minority Leader Chris Holbert, R-Douglas County, and Assistant Minority Leader Sen. John Cooke, R-Greeley, both said their local prosecutors supported the conference committee measure as better than nothing and said they would be supporting the bill. The Senate eventually voted to adopt the conference committee report and then to pass the bill again, 27-8. Sen. Julie Gonzales, D-Denver, was the lone Democratic no vote alongside seven Republicans.

House Speaker Alec Garnett, D-Denver, one of the bill’s prime sponsors, said ahead of the conference committee vote he did not believe there would be any reason the bill wouldn’t pass with the agreement in place, and others said it struck the right balance between addressing concerns from law enforcement and prosecutors, and those of people who work with people with addiction, who felt further criminalizing possession was the wrong move.

Before the final vote in the House on adopting the report and passing the bill, Garnett again laid out the last changes to the bill and reiterated that if a person tells the court they did not know their drugs contained fentanyl, it would not be an affirmative defense to see all charges dropped. The jury or judge would respond in an interrogatory included in the verdict form.

Reps. Matt Soper and Janice Rich, Western Slope Republicans, both urged a yes vote on the bill, saying the new distribution charging guidelines for felony drug charges were enough reason to pass the bill and adding that local officials had urged the measure’s passage because of Interstate 70, one of the state’s main drug corridors.

After discussion that went until nearly 10:45 p.m., the House voted 35-30 to pass the bill on to the governor's desk. After the vote, Rep. Mike Lynch, R-Wellington, removed himself as a prime sponsor of the bill after voting no on adoption of the bill over the possession limits.

The final agreement would allow someone who is charged with a drug felony for possessing 1-4 grams of a compound containing fentanyl to trigger a process in court by which they could present evidence they did not know the drugs they were in possession of contained fentanyl, and the jury or judge would be able to whether decide to drop the charge to a level 1 drug misdemeanor.

“There’s still culpability and accountability,” Garnett said.

“What we're saying is that if you do if you do come in contact with that fentanyl, unknowingly, that you're not a felon, and that's so very important," said Rep. Leslie Herod, D-Denver. "We heard story after story after story of people who died from accidental or unknowing fitting or poisonings, they should not be wrapped up in this.”

The bill is perhaps one of the most controversial and consequential of the 2022 session. Before this year’s legislative session, lawmakers pledged to do something during the session to address the quickly increasing number of fentanyl related overdose deaths.

And lawmakers brought their iteration of the bill, HB22-1326, up in late March after five people died of what is believed to be accidental fentanyl poisonings at a Commerce City apartment.

Originally, the bill would have made possession of more than four grams of a drug compound that contains fentanyl a level 4 drug felony and strengthened drug felony penalties for distribution of compounds that contain fentanyl.

But as some lawmakers, primarily Republicans, worked during House committee and floor hearings to try to make possession of any amount of a drug compound containing fentanyl a felony, Democrats and Republicans agreed to an amendment that changed the measure. Under the House-amended measure, a person would commit a felony if they “knowingly” possessed more than one gram of a drug compound containing any amount of fentanyl.

But the Colorado Senate went further and amended the fentanyl bill last Thursday to remove the “knowingly” language, then passed it on Friday, which would mean anyone possessing more than one gram of any drug with even a speck of fentanyl in it would be charged with a felony. Lawmakers, prosecutors and police officials have all stated over the past several months that nearly every street drug is being found cut with fentanyl.

Most law enforcement officials and their advocates pushed during committee testimony to tighten penalties for possession, and most of them questioned how they could prosecute people in possession of 1-4 grams of fentanyl with the “knowingly” part of the language included.

But much of the testimony from doctors, public health workers, former addicts, and addiction specialists pushed against the idea of further criminalizing drug possession, saying that doing so would do little to help people with addiction and tie up more criminal justice and government resources without addressing the health aspects of addiction.

Aside from the criminalization of possession, the most controversial part of the bill, the meassure made headway through the General Assembly as bill sponsors and other lawmakers – both Democrats and Republicans – said they had to do something to address the scourge of fentanyl, even if the bill that goes to the governor's desk is not perfect. A proposed amendment in the Senate to sunset the felony possession limits in 2025 failed to make the final measure after it was removed in the conference committee.

“There is no silver bullet,” Garnett, one of the prime sponsors of the bill, said as it passed the House Judiciary Committee. “Both sides are like, ’It has to be only this way or only this way,’ and we know in this building that’s not how it works. This is not the perfect solution … but this bill, in my opinion, must pass.”

The bill’s passage in the Senate was not final, however, after last week's changes. Because of the amendments passed in the Senate since the House first passed the measure, it had to go back to the House this week for lawmakers to concur with or reject the Senate amendments, or to a six-lawmaker conference committee that would hash out the differences between the measure as passed by the House and Senate.

On Tuesday night, the House voted not to concur with the Senate amendments, sending the measure to a vote to go to conference committee on the final day of the legislative session. Garnett voted not to accept the Senate amendments, while fellow House sponsor Rep. Mike Lynch, R-Wellington, another sponsor, voted to concur with the Senate amendments. And on Wednesday, the conference committee was approved ahead of the final measure’s approval in both chambers.

The bill’s scope was not limited to the new penalties for possession. It strengthens penalties for people who distribute fentanyl or fentanyl compounds but also increases services for people who suffer from addiction, widens access to life-saving Narcan and fentanyl testing strips, and includes several educational and prevention aspects to it that most who supported it said were key even if they opposed other parts of the measure.

The final measure also provides for medical care for people with addictions inside jail and upon their release.

“If you are in in the criminal justice system, you should have access to medically assisted treatment. And that's what's in this bill. It's huge,” Herod said.

The new penalties would go into effect starting July 1. Polis’ office indicated he would sign the bill.

“The Governor appreciates the ongoing work to fight fentanyl and addiction, deeply appreciates the work of Speaker Garnett to bring prosecutors, police, drug treatment experts, and advocates together,” the office said in a statement. “While people of good faith can quibble over the exact details of any bill, the Governor sees this bill as a big step in the right direction to make Colorado safer for all.”

Attorney general Phil Weiser called passage of the bill "an important step forward to combat deadly fentanyl."

"“Throughout the process, each of us shared the same goal—saving lives. I pushed for several notable improvements to this bill, including ramping up the resources needed to disrupt fentanyl trafficking rings," Weiser said in a statement. "This bill does not contain everything I would have liked to see, but it makes significant improvements on the harm reduction, public awareness, addiction treatment, and criminal justice fronts. I am grateful for the leadership of Speaker Garnett, Sen. Pettersen, and Sen. Cooke in delivering this comprehensive approach.

Denver7's Meghan Lopez and Colette Bordelon contributed to this report.