BILL ANALYSIS                                                                                                                                                                                                    





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          |SENATE RULES COMMITTEE            |                       SB 1323|
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                                   THIRD READING 


          Bill No:  SB 1323
          Author:   Bates (R) and Huff (R), et al.
          Introduced:2/19/16  
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 4/5/16
           AYES:  Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 5/27/16
           AYES:  Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
           
           SUBJECT:   Controlled substances:  fentanyl


          SOURCE:    Orange County Sheriff's Department


          DIGEST:  This bill includes the synthetic opioid fentanyl in an  
          enhancement statute under which a defendant convicted of any of  
          a list of specified drug commerce crimes involving heroin,  
          cocaine or cocaine base receives an additional prison term of  
          from three years to 25 years based on the weight of the  
          substance containing the drug involved in the case.  




          ANALYSIS:


          Existing law:


          1)Provides the following penalties for commerce in cocaine,  








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            cocaine base, heroin and specified opiates - including  
            fentanyl.  The section references are to the Health and Safety  
            Code.  Sale includes any transfer or distribution:  11351  
            possession for sale - felony 1170 (h) term of two, three or  
            four years;  11351.5 possession of cocaine base for sale -  
            felony 1170 (h) term of two, three, or four years;  11352  
            sale - three, six or nine years.


          2)Provides the following enhancements based on the weight of the  
            heroin, opiate or cocaine possessed for sale or sold.  (Health  
            and Saf. Code  11370.4, subd. (a).)

             --------------------------- 
            |          1  |3 years      |
            |kilogram     |             |
            |-------------+-------------|
            |           4 |5 years      |
            |kilograms    |             |
            |-------------+-------------|
            |        10   |         10  |
            |kilograms    |years        |
            |-------------+-------------|
            |        20   |         15  |
            |kilograms    |years        |
            |-------------+-------------|
            |        40   |         20  |
            |kilograms    |years        |
            |-------------+-------------|
            |        80   |         25  |
            |kilograms    |years        |
            |             |             |
             --------------------------- 



          This bill adds fentanyl to the list of drugs that include  
          heroin, cocaine or cocaine base for purposes of an enhancement  
          for drug commerce based on the weight of the substance involved  
          in the case that contained one of the listed drugs.  










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          Background

          According to the author:

            SB 1323 would add fentanyl to a category of dangerous  
            drugs, such as heroin, that are subject to penalty  
            enhancements based on the weight an individual has in his  
            possession for sale or distribution.  Fentanyl is a  
            synthetic opioid. In its pharmaceutical form, fentanyl is  
            used to treat people with severe chronic pain when other  
            pain medicines no longer work and as an anesthetic in  
            surgery. When abused, both pharmaceutical and clandestine  
            fentanyl affect the brain and nervous system by producing  
            a euphoric high 80 to 100 times stronger than morphine  
            and 40 times stronger than heroin.  Overdosing on  
            fentanyl causes blood pressure to plummet, diminishes  
            breathing and induces deep sleep coma, which can lead to  
            death.  Between 2013 and 2014, California was one of 25  
            states affected by fentanyl overdose incidents and  
            deaths. Fentanyl produced clandestinely has no legal  
            medical use and can be smoked, snorted, ingested or  
            injected. 

            Fentanyl can be substituted for heroin in opioid  
            dependent individuals.  However, fentanyl is a very  
            dangerous because it is much more potent and results in  
            frequent overdoses that can lead to respiratory  
            depression and death.  Some analogs are even more potent.  
             Particularly troubling is the fact that users are often  
            unaware that they are using fentanyl and, therefore,  
            ignorant to the severe risks they face.  Fentanyl is  
            inexpensive to produce, making it a go-to heroin  
            substitute for the drug cartels.  Finally, fentanyl has  
            proven to be a significant threat to law enforcement  
            personnel and first responders as minute amounts  
            -equivalent to a few grains of salt-can be lethal, and  
            visually, can be mistaken for cocaine or white powder  
            heroin. 

            Nationwide there has been a significant increase in  
            fentanyl-related overdose fatalities.  While most  








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            increases in fentanyl overdose fatalities have been in  
            eastern states, law enforcement officials in California  
            fear that the trend is coming to California.  For  
            example, Orange County has found an increase in driving  
            under the drug's influence cases and in those found in  
            possession of the drug.  

          SB 1323 amends Section 11370.4 of the Health and Safety  
          Code to include fentanyl with heroin and cocaine in the  
          category of drugs that are subject to enhancements by  
          weight. By doing so, this bill targets those distributing,  
          trafficking, and selling mass quantities of Fentanyl.  SB  
          1323 recognizes that the danger posed by fentanyl use is  
          greater than that of other opioids, but also threatens the  
          lives and safety of those who do not even use it.  This  
          bill would therefore take the commonsense step of adding  
          the same enhancements for fentanyl, thereby protecting  
          unknowing users, first responders, and children.  

          Fentanyl was synthesized in the 1960s and has been used  
          medically since 1968.  The Centers for Disease Control and  
          Prevention (CDC) Web site provides this description of fentanyl:

               Fentanyl, a synthetic and short-acting opioid  
               analgesic, is 50-100 times more potent than morphine  
               and approved for managing acute or chronic pain  
               associated with advanced cancer.   ?[M]ost cases of  
               fentanyl-related morbidity and mortality have been  
               linked to illicitly manufactured fentanyl and fentanyl  
               analogs, collectively referred to as  
               non-pharmaceutical fentanyl (NPF).  NPF is sold via  
               illicit drug markets for its heroin-like effect and  
               often mixed with heroin and/or cocaine as a  
               combination product-with or without the user's  
               knowledge-to increase its euphoric effects. While  
               NPF-related overdoses can be reversed with naloxone, a  
               higher dose or multiple number of doses per overdose  
               event may be required ?due to the high potency of NPF.  
                (Internal quotation marks and footnotes omitted.)   
               (http://emergency.cdc.gov/han/han00384.asp)

          The Drug Enforcement Administration (DEA) publishes an annual  








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          illicit drug "threat assessment."  The assessment reviews trends  
          and issues concerning major drugs of abuse.  

          The 2105 Threat Assessment stated as to fentanyl:

               Fentanyl will remain a threat while the current  
               clandestine production continues; however, it is  
               unlikely to assume a significant portion of the opioid  
               market. Fentanyl's short-lasting high, coupled with  
               its high mortality rate, renders it unappealing to  
               many opioid users who prefer the longer-lasting high  
               that heroin offers and who wish to avoid the increased  
               danger from fentanyl. Fentanyl will continue to remain  
               available in limited quantities; however, it will most  
               commonly be consumed unknowingly, mixed with heroin or  
               other drugs. Fentanyl will remain a significant threat  
               to law enforcement personnel and first responders as  
               minute amounts? can be lethal, and visually, can be  
               mistaken for cocaine or white powder heroin.  (Italics  
               added.)

          The DEA has reported to the United States Senate that most  
          illicit fentanyl is produced in Mexico "with its analogs and  
          precursors obtained from distributors in China.  Fentanyl is  
          smuggled across the [Southwest U.S. border] in kilogram  
          quantities?"

          The existing enhancement based on the weight of the drug  
          involved in specified drug commerce crimes includes any  
          substance containing cocaine, cocaine base or heroin.  Illicit  
          drug manufacturers, distributors and sellers often mix fentanyl  
          or an analog with heroin, because it is much more potent than  
          heroin and relatively easy and cheap to manufacture.  A  
          defendant convicted of commerce involving a mixture of heroin  
          and fentanyl would be subject to the weight enhancement under  
          current law.  



          Pharmaceutical fentanyl is much more potent than morphine or  
          heroin.  However, the analgesic, euphoric and overdose  
          properties of pharmaceutical fentanyl are relatively certain and  








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          well known, or can be determined.  However, each batch of  
          non-pharmaceutical fentanyl can have very different chemical  
          composition and effects.  Acetyl fentanyl is actually less  
          potent than pharmaceutical fentanyl, but that is not true for  
          all fentanyl analogs.  There is no consistent ratio of analgesic  
          (pain control), euphoric and overdose properties among fentanyl  
          analogs.  That is, the overdose potential of a drug does not  
          necessarily rise or fall with the euphoric and analgesic  
          properties among the analogs.  The European Monitoring Centre  
          for Drugs and Drug Addiction (EMCDDA) has written that other  
          analogs have been estimated as being thousands of times more  
          potent than morphine.  The EMCDDA cautioned:  "It is difficult  
          to be certain that this increased analgesic potency means that  
          the euphoric effects are similarly increased, and more  
          importantly, whether the overdose potential of these analogues  
          is also increased by the same margin."   
          (http://www.emcdda.europa.eu/publications/drug-profiles/fentanyl) 




          A person who has become accustomed to an analog with  
          comparatively low overdose potential who thereafter uses a drug  
          with a high potential for overdose, is at especially great risk  
          for overdose.  For example, the fentanyl analog  
          3-methylfentanyl, known by the street name of China White,  
          caused many overdose deaths in California in 1978. So-called  
          China White is several hundred times more potent than morphine.   
          Acetyl fentanyl is four to five times more potent than heroin,  
          but substantially less potent than pharmaceutical fentanyl.



          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          According to the Senate Appropriations Committee:


        State prisons:  Potential future increase in state costs (General  
            Fund) for longer terms in state prison than otherwise would  








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            have been imposed in the absence of the proposed sentence  
            enhancement. Given the range of sentence enhancements from  
            three to 25 years, the cumulative impact of even one or two  
            defendants over a span of several years could increase future  
            state costs in the hundreds of thousands of dollars.    


        County jails: Potential future increase in local costs (Local  
            Funds or General Fund*) for extended jail terms than otherwise  
            would have been imposed in the absence of the proposed  
            sentence enhancement. Costs would be dependent on the number  
            of defendants and the length of the sentence enhancement  
            imposed.


        Court workload:  Potential minor increase in workload (General  
            Fund) for separate jury trials for cases charged with the  
            proposed enhancement.




           * Proposition 30 (2012) provides that legislation enacted after  
            September 30, 2012, that has an overall effect of increasing  
            the costs already borne by a local agency, as specified, apply  
            to local agencies only to the extent the State provides annual  
            funding for the cost increase. Although legislation creating a  
            new crime or revising the definition of an existing crime is  
            exempt from Proposition 30 state funding requirements,  
            legislation that changes the penalty for an existing crime is  
            not similarly specifically exempt. Drug commerce offenses  
            involving fentanyl are crimes under existing law. To the  
            extent the greater penalties imposed for drug commerce crimes  
            involving specified amounts of substances containing fentanyl  
            are determined to change the penalties for existing crimes,  
            any increase in costs to local agencies attributable to the  
            provisions of this bill could potentially require annual  
            funding from the State.


          SUPPORT:   (Verified5/27/16)









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          Orange County Sheriff's Department (source)
          Association for Los Angeles Deputy Sheriffs
          Association of Deputy District Attorneys
          California Association of Code Enforcement Officers
          California College and University Police Chiefs Association
          California Narcotics Officers Association
          California Police Chiefs Association
          California State Sheriffs' Association
          Crime Victims United of California
          Los Angeles County Professional Peace Officers Association
          Los Angeles Police Protective League
          Orange County Supervisor, Third District
          Orange County District Attorney
          Riverside Sheriffs Association
          San Bernardino County Sheriff-Coroner
          San Diego County Sheriff's Department


          OPPOSITION:   (Verified5/27/16)


          American Civil Liberties Union 
          California Attorneys for Criminal Justice
          California Public Defenders Association
          Legal Services for Prisoners with Children

          Prepared by:Jerome McGuire / PUB. S. / 
          5/28/16 16:46:06


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