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AB-3105 Fentanyl: penalties.(2017-2018)

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Date Published: 02/16/2018 09:00 PM
AB3105:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill
No. 3105

Introduced by Assembly Member Waldron

February 16, 2018

An act to amend Section 11352 of the Health and Safety Code, relating to fentanyl.


LEGISLATIVE COUNSEL'S DIGEST


AB 3105, as introduced, Waldron. Fentanyl: penalties.
Existing law classifies controlled substances into 5 schedules and places the greatest restrictions and penalties on the use of those substances placed in Schedule I. Opiates, including fentanyl, are classified in Schedule II. Existing law prohibits transporting, importing into this state, selling, furnishing, administering, or giving away specified controlled substances, including fentanyl, and punishes a violation of that prohibition by imprisonment in a county jail for 3, 4, or 5 years.
This bill would make this crime punishable by a term of 10 years to life in a case involving 20 grams or more of a mixture or substance containing a detectable amount of fentanyl, as defined, or 5 grams or more of a mixture or substance containing an analogue, and if death or great bodily injury results from the use of the substance by 20 years to life. If the person has a prior conviction for a felony offense involving a controlled substance, the bill would make the crime punishable by 20 years to life, and if death or great bodily injury results from the use of the substance by life imprisonment. If the person has 2 or more convictions for a felony offense involving a controlled substance, the bill would make the crime punishable by life in prison without the possibility of parole.
This bill would make the crime punishable by a term of 5 years to 40 years in prison in a case involving 2 grams or more, but less than 20 grams, of a mixture or substance containing a detectable amount of fentanyl, as defined, or 1/2 a gram or more, but less than 5 grams, of a mixture or substance containing an analogue and if death or great bodily injury results from the use of the substance by 20 years to life. If the person has a prior conviction for a felony offense involving a controlled substance, the bill would make the crime punishable by 10 years to life, and if death or great bodily injury results from the use of the substance by life imprisonment.
This bill would make the crime punishable by an additional 5 years imprisonment in the state prison in a case involving any amount of fentanyl or an analogue and another controlled substance or fentanyl or an analogue that was sold as another controlled substance. The bill would prohibit the grant of probation or concurrent sentencing for these violations and would impose various periods of supervised release upon release from prison. By increasing the punishment for a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Fentanyl is a dangerous, synthetic opioid that is 50 to 100 times more potent than heroin and morphine and lethal in doses as small as approximately two milligrams. Current sentencing enhancements do not reflect the danger fentanyl poses at lower quantities compared to other illicit substances.
(b) Because a lethal dose of fentanyl can be accidentally inhaled or absorbed through the skin, it’s not just deadly to its users, but it also threatens the lives of law enforcement and customs officials, public health workers, first responders and postal workers who risk unknowingly coming into contact with fentanyl in its different forms.
(c) From 2013 to 2014, the number of drug seizures by law enforcement that tested positive for fentanyl increased by 426 percent and synthetic opioid-related deaths increased by 79 percent, with over 700 overdose deaths related to fentanyl. However, due to variations in states’ medical examiner and coroner testing and reporting techniques, and deaths attributed to heroin, this figure is believed to be significantly higher.
(d) Illicitly manufactured fentanyl, pill press machines, and other supplies needed to manufacture counterfeit pills containing fentanyl are primarily sourced from China and widely available for purchase on the Internet. Traffickers can typically purchase a kilogram of fentanyl powder for as little as $2,000 from a Chinese supplier, transform it into hundreds of thousands of pills, and sell the counterfeit pills for millions of dollars in profit.
(e) In 2015, the federal Drug Enforcement Administration (DEA) and Centers for Disease Control and Prevention (CDC) issued nationwide alerts identifying fentanyl as a threat to public health and safety and stating that the rise of counterfeit pills that contain fentanyl in the illicit drug market will likely result in more opioid-dependent individuals, overdoses, and deaths.
(f) The DEA has identified two key challenges for using the federal Controlled Substances Analogue Enforcement Act of 1986 to prosecute individuals for violations relating to fentanyl:
(1) The law requires that the substance have a substantially similar chemical structure to a controlled substance in order to be considered an analogue, yet the threshold for substantially similar has been cited by numerous courts as difficult to apply.
(2) Each case requires additional investigation to determine whether the substance in question was intended for human consumption and can therefore be considered an analogue.
(g) Illicit fentanyl manufacturers are continuously manipulating the chemical structures of the analogues in order to stay ahead of researchers and law enforcement, thus making prosecuting these crimes overly onerous. Furthermore, the speed at which these alterations can be made outpace the current authorities of the federal Department of Justice to schedule new compounds and analogues under the federal Controlled Substances Act.
(h) The trafficking in fentanyl and other synthetic opioids represents a public health emergency in the United States and requires a comprehensive legislative response.
(i) California should use all available measures to reduce the availability of illicit fentanyl, its chemical precursors, and the equipment by which fentanyl may be milled into counterfeit prescription pills.
(j) California, upon budget appropriation, should make grants available for state and local medical examiners and coroners to screen for fentanyl in suspected opioid overdose cases in regions reporting increases in fentanyl seizures, fentanyl-related overdose fatalities, or unusually high spikes in heroin or unspecified drug overdose fatalities.
(k) State and local law enforcement should, if safe and possible, prioritize and expedite testing of drug samples taken from drug overdose scenes and share the data on fentanyl drug seizures with local health departments, coroners, and medical examiners.
(l) Any grants made available to address the opioid epidemic should be used to improve surveillance of fentanyl-related deaths and to expand access to naloxone for first responders, law enforcement, and health care personnel given that multiple doses of naloxone must be administered per overdose event.

SEC. 2.

 Section 11352 of the Health and Safety Code is amended to read:

11352.
 (a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years.
(b) Notwithstanding the penalty provisions of subdivision (a), any person who transports any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years.
(c) (1) Notwithstanding the penalty provisions of subdivision (a), a violation of subdivision (a) involving 20 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide or five grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N[1-(2-phenylethyl)-4-piperidinyl] propanamide shall be punished as follows:
(A) By imprisonment in the state prison for a term of 10 years to life and by a fine not to exceed ten million dollars ($10,000,000). If death or great bodily injury result from the use of the substance, by imprisonment in the state prison for 20 years to life and by a fine not to exceed ten million dollars ($10,000,000). A person punished pursuant to this subparagraph shall be subject to five years of supervised release upon release from prison.
(B) If the person has a prior felony conviction for an offense involving a controlled substance, by imprisonment in the state prison for 20 years to life and a fine not to exceed twenty million dollars ($20,000,000). If the person has a prior felony for an offense involving a controlled substance and death or great bodily injury result from the use of the substance, by imprisonment in the state prison for life and a fine not to exceed twenty million dollars ($20,000,000). A person punished pursuant to this subparagraph shall be subject to 10 years of supervised release upon release from prison.
(C) If a person has two or more prior felony convictions for an offense involving a controlled substance, by imprisonment in the state prison for life without the possibility of parole and a fine not to exceed twenty million dollars ($20,000,000).
(2) Notwithstanding the penalty provisions of subdivision (a), a violation of subdivision (a) involving two grams or more, but less than 20 grams, of a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide or 0.5 grams or more, but less than five grams, of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N[1-(2-phenylethyl)-4-piperidinyl] propanamide shall be punished as follows:
(A) By imprisonment in the state prison for a term of 5 to 40 years and a fine not to exceed 5 million dollars ($5,000,000). If death or great bodily injury result from the use of the substance, by imprisonment in the state prison for 20 years to life and a fine not to exceed five million dollars ($5,000,000). A person punished pursuant to this subparagraph shall be subject to four years of supervised release upon release from prison.
(B) If the person has a prior felony conviction for an offense involving a controlled substance, by imprisonment in the state prison for 10 years to life and a fine not to exceed eight million dollars ($8,000,000). If the person has a prior felony for a drug offense and death or great bodily injury result from the use of the substance, by imprisonment in the state prison for life and a fine not to exceed eight million dollars ($8,000,000). A person punished pursuant to this subparagraph shall be subject to eight years of supervised release upon release from prison.
(3) A violation of subdivision (a) involving a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide or a detectable amount of any analogue of N-phenyl-N[1-(2-phenylethyl)-4-piperidinyl] propanamide and any other controlled substance shall be punished by an additional term of imprisonment of five years in state prison.
(4) A violation of subdivision (a) involving a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide or any analogue of N-phenyl-N[1-(2-phenylethyl)-4-piperidinyl] propanamide that was represented to be or sold as another controlled substance shall be punished by an additional term of imprisonment of five years in state prison.
(5) A person who violates this section as described in this subdivision shall not be granted probation and a sentence imposed pursuant to this subdivision shall not run concurrently with any other sentence.

(c)

(d) For purposes of this section, “transports” means to transport for sale.

(d)

(e) This section does not preclude or limit the prosecution of an individual for aiding and abetting the commission of, or conspiring to commit, or acting as an accessory to, any act prohibited by this section.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.