Fentanyl Charges

June 15, 2022 | Bill Henry

Colorado legislators are hopeful that a new law targeting fentanyl dealers will help confront what has been characterized as a growing crisis in the Centennial State. The law, also known as the “Fentanyl Accountability and Prevention” bill, was signed in May 2022 by Gov. Jared Polis and takes effect July 1, 2022. This article provides an overview of House Bill 22-1326 and what’s at stake for you if you are facing fentanyl charges.

Are You Facing Fentanyl Charges?

The laws surrounding fentanyl are constantly in flux. Fortunately, it’s the job of Robinson & Henry’s Criminal Defense Team to stay abreast of these laws. If you are facing fentanyl charges, you need our help. Call 303-688-0944 today to begin your free case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.

colorado fentanyl laws

Fentanyl Background: A Grim Reality

In February 2022, five people were found dead of suspected fentanyl overdoses in a Commerce City apartment. Authorities believe the victims likely never even knew they had ingested fentanyl, a powerful synthetic opioid that is 50 to 100 times more potent than morphine.

Drug traffickers often mix fentanyl into other street drugs like heroin, cocaine, and methamphetamine. This is because fentanyl is cheaper to manufacture and a small amount goes a long way, according to a report from the CU Boulder Division of Student Affairs’ Health and Wellness Services.

The Commerce City tragedy underscored a grim reality for many Coloradans whose communities have been ravaged by the lethal drug. According to Common Sense Institute, a non-partisan economic research organization based in Colorado, the state’s fentanyl-related deaths in 2021 nearly doubled from the previous year.

More than 800 Coloradans died due to fentanyl in 2021.

Fentanyl Possession is a Felony in Colorado

Until now, it was a misdemeanor in Colorado to possess no more than 4 grams of most schedule I and schedule II controlled substances, such as heroin and Oxycontin. The new fentanyl bill, HB-1326, creates an exception for fentanyl charges. You could be charged with a Level 4 drug felony if you are caught possessing more than one gram of a substance that contains fentanyl.

Fentanyl Compounds & Fentanyl-Like Substances

This law also applies to carfentanil, fentanyl compounds, and other fentanyl analogs.

Fentanyl analogs are drugs that are chemically similar to fentanyl. A fentanyl compound is a drug mixture with any amount of fentanyl in it. For instance, 4 grams of heroin combined with a few milligrams of fentanyl will be considered a fentanyl compound, the Colorado Sun reported in May 2022.

Penalties for Fentanyl Possession

If convicted of these fentanyl charges, you could spend up to 180 days in jail and up to two years on probation. After your third or subsequent conviction, the sentence will go up to 364 days in jail.

When Fentanyl Possession is a Misdemeanor

Possessing 1 gram or less of fentanyl or a fentanyl compound remains a Level 1 drug misdemeanor. However, four or more convictions for possessing 1 gram or less of fentanyl or a fentanyl compound could result in Level 4 drug felony charges.

Prison sentences for these fentanyl charges range from six months to two years.

Conviction Reduction with Drug Treatment

Under some circumstances, you can have your Level 4 drug felony conviction reduced to a misdemeanor if you complete drug treatment. You can also have your criminal record sealed a few years after completing your sentence or probation.

Possession with Intent to Distribute

The fentanyl law also attempts to crack down on fentanyl dealers by increasing the penalties for possessing the drug with the intent to distribute it. This is a very serious charge. A resulting conviction could land you many years in prison.

  • Possessing between four and 50 grams of fentanyl, or a fentanyl compound, with an intent to distribute is a Level 2 drug felony punishable by a prison term of four to 16 years.
  • Possessing more than 50 grams of a fentanyl compound with an intent to distribute is a Level 1 drug felony punishable by up to 32 years in prison.

Other Level 1 Felony Fentanyl Charges

You could also face Level 1 drug felony charges if:

  • the fentanyl you sold caused someone’s death
  • the drugs originated from outside Colorado
  • you possessed a pill press or other manufacturing equipment

Fentanyl Manufacturing and Distribution

The bill makes the unlawful distribution, manufacturing, dispensing, or sale of a material, compound, mixture, or preparation containing fentanyl, carfentanil, or an analog thereof:

  • a level 1 drug felony if it weighs more than 50 grams
  • a level 2 drug felony if it weighs more than 4 grams, but not more than 50 grams
  • a level 3 drug felony if it weighs 4 grams or less

Distribution Resulting in Death

At the time of the Commerce City incident, no legal recourse existed at the state level to punish the dealers who supplied the deadly substance. While federal prosecutors could charge people with “distribution resulting in death,” Colorado prosecutors could not.

Under this new fentanyl law, drug dealers could face Level 1 felony drug charges if they sold the fentanyl that led to someone’s death.

Level 1 felony drug charges carry stiff fines and the possibility of 32 years in prison.

What if I didn’t know I sold fentanyl?

This is perhaps the most pressing question. You can be charged with a felony even if you did not know you were possessing or selling fentanyl.

However, you can use your ignorance as an affirmative defense. This requires admitting that you are guilty of possessing or selling illicit drugs. You would need to provide evidence showing you did not know the drugs contained fentanyl.

If a jury believes your story, your drug charge could be reduced from a felony to a misdemeanor.

Bystander and Treatment Provisions 

Acting as a Good Samaritan

HB 1326 includes a “Good Samaritan” clause. Let’s say you gave another person fentanyl — intentionally or not — and that person overdoses. Instead of fleeing, you call 911, stay on the scene, and cooperate with first responders or law enforcement. You would then face lesser than a felony 1 drug charge — even if the recipient dies.

The Treatment Side

Anyone convicted of fentanyl charges in Colorado will have to undergo a substance use assessment and, if appropriate, treatment. They will also have to take a fentanyl education program developed by the state.

The law also will require that some people jailed on fentanyl charges are released with naloxone, an opioid reversal drug, or a prescription for other medication to help with opioid-use disorders, the Colorado Sun reported.

County jails will also receive money to help provide medication-assisted treatment to their inmates.

Let Us Help You Fight Fentanyl Charges

HB 1326 ups the ante for Coloradans charged with fentanyl-related crimes. You could face more than three decades in prison if you are caught selling fentanyl, even if you were not aware you were doing so. The R&H Criminal Defense Team will advise you of your rights, assess the facts of your case, and fight for your best possible outcome. Call 303-688-0944 today to begin your free case assessment, o lláme al 720-359-2442 para hablar con alguien en español.

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