BILL ANALYSIS Ó
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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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