Below the ultimate model of the legislature’s much-debated and extremely controversial invoice to fight fentanyl, an individual could be topic to a felony drug cost in the event that they possess even a dusting of the deadly artificial opioid, whether or not or not they understand that what they possess is certainly fentanyl.
However in an eleventh-hour change, the legislature agreed to an avenue by which such an individual can flip that felony right into a misdemeanor at trial. That avenue places the burden on the defendant to show they didn’t know that they had fentanyl. A earlier model put the burden on prosecutors.
“The burden of proof remains to be on the defendant, however there’s a pathway,” stated Lakewood Democrat Brittany Pettersen, a state senator and a sponsor of the invoice, “that in the event you actually had no thought that you just have been shopping for fentanyl, there’s a course of in place the place you’ve the chance to show your innocence. It’s a victim-centered method.”
Home Democrats feared that the invoice, HB22-1326, would die of their chamber if they didn’t undertake this transformation, which is why they agreed to it.
The invoice will head to the desk of Gov. Jared Polis to be signed into legislation — a foregone conclusion, as Polis way back affirmed his assist.
Lawmakers typically agree on many facets of the invoice, together with investments in take a look at strips and lifesaving opioid antagonists, expanded dependancy therapy in jails and new legal penalties for folks discovered to have distributed a substance containing fentanyl if that substance kills another person.
However the matter of how one can punish possession of fentanyl was notably controversial all through the invoice’s life — all the best way as much as the ultimate minutes of the 2022 legislative session, which ended late Wednesday night time.
The invoice as launched proposed no adjustments to possession legislation on this area, which means that anybody with below 4 grams of fentanyl can be topic to not more than a misdemeanor for that crime. The invoice’s lead sponsor, Home Speaker Alec Garnett, stated he knew all alongside that facet of the invoice can be modified amid opposition from legislation enforcement, Republicans and plenty of Democrats. He felt he didn’t have the votes to protect the legislation as is, at the same time as he insisted repeatedly that Colorado should not criminalize folks for easy drug possession.
Garnett confronted great strain — together with from the Democratic governor and legal professional normal, plus just about all main figures in Colorado legislation enforcement — to make it a felony to own any quantity of fentanyl, which is sort of all the time present in compound kind, blended with different substances. He stated he was unwilling to try this, however he made many concessions alongside the best way.
The ultimate model of the invoice doesn’t make felony possession of any quantity of fentanyl however fairly possession of 1-4 grams of any substance containing any quantity of fentanyl. Earlier variations known as for that statute to be mechanically repealed in 2025 — a wish-list merchandise for progressives who need to reevaluate the invoice in a number of years. That auto-repeal was stripped out within the flurry of ultimate adjustments earlier than the top of the session.
The invoice leaves the left distressed.
“I’m profoundly disenchanted,” stated physician and dependancy skilled Sarah Axelrath, “that after weeks of testimony by medical and public well being specialists warning of the detrimental penalties of this invoice, Colorado legislators doubled all the way down to additional criminalize and punish folks fighting dependancy.
“We now have 50 years of information demonstrating that harsher criminalization does nothing to cut back charges of drug use or overdose… (and) will result in larger charges of incarceration, homelessness and deadly overdose in Colorado.”
A comparatively small variety of folks caught in possession of 1-4 grams of fentanyl or fentanyl compound will ever go to trial. Lawmakers estimate it is going to be lower than 5%, as most will take plea offers. Avisionews spoke with a number of protection attorneys Wednesday who’re cautiously optimistic that they are going to be capable to argue their shoppers didn’t know they possessed fentanyl and thus get the cost diminished from a felony to a misdemeanor.
Republicans worry that final result. State Sen. Bob Gardner, a Colorado Springs Republican and legal professional, argued simply earlier than the Senate adjourned for the yr that the ultimate model of the invoice won’t disrupt the drug provide chain successfully and is insufficiently robust on fentanyl. He’s backed up in that sentiment by the overwhelming majority of state Republican lawmakers. However Democrats management the Capitol and have far more leverage on this debate.
The invoice exits the Capitol having unequivocally happy virtually nobody. However many can discover facets of the invoice they be ok with.
“Passing this invoice was of crucial significance to the state and all Coloradans,” stated Tom Raynes, govt director of the Colorado District Attorneys’ Council. “This laws presents an an unprecedented, multipronged assault on our fentanyl epidemic by a mix of hurt discount, enhanced therapy, training choices and legal enforcement provisions.”
Speaker Garnett stated he’s comfy with the modified method on felony possession Wednesday.
“It’s ensuring that they’ve an opportunity to not get charged with a felony, and that’s necessary,” Garnett stated.
Within the ultimate tallies taken Wednesday, 62 of 100 state lawmakers voted to cross the invoice. The vote within the Senate was 27-8, and the vote within the Home was 35-30.
