Senate Bill 25-044 Introduced

A Bill for an Act

• Page 1, Line 101Concerning criminal penalties involving a controlled

• Page 1, Line 102substance that includes certain synthetic opiates.

Bill Summary

(Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.)

The bill makes it a level 1 drug felony if a person manufactures, dispenses, sells, or distributes, or possesses with intent to do the same, (manufactures or distributes) any material, compound, mixture, or preparation that contains fentanyl, carfentanil, benzimidazole opiate, or an analog thereof (qualifying controlled substance). Because manufacture or distribution of any amount of a qualifying controlled substance is a level 1 drug felony under the bill, the bill repeals penalty level provisions involving manufacture or distribution of a qualifying controlled substance that are weight- or circumstance-dependent, and related immunity and sentencing requirements.

Effective July 1, 2025, the bill makes the possession of a qualifying controlled substance a level 4 drug felony. The bill repeals the following provisions of law related to the penalties for possessing a qualifying controlled substance:

• A provision that reduces the penalty if the fact finder in the case finds that the possessor made a reasonable mistake of fact and did not know that the material, compound, mixture, or preparation contained fentanyl, carfentanil, benzimidazole opiate, or an analog thereof; and
• A provision that requires a court to vacate the drug felony conviction and enter a conviction for a level 1 drug misdemeanor upon the defendant's successful completion of a community-based sentence to probation or to a community corrections program.

• Page 2, Line 1Be it enacted by the General Assembly of the State of Colorado:

• Page 2, Line 2SECTION 1.  In Colorado Revised Statutes, 18-18-405, amend

• Page 2, Line 3(2) introductory portion, (2)(a)(I)(D), (2)(b)(I)(B), (2)(b)(I)(C), (2)(c)(III),

• Page 2, Line 4(2)(c)(IV), (8) introductory portion, and (8)(a); and repeal (2)(a)(III), (2)(b)(I)(D), and (2)(c)(V) as follows:

• Page 2, Line 518-18-405.  Unlawful distribution, manufacturing, dispensing,

• Page 2, Line 6or sale. (2)  Except as otherwise provided for an offense concerning

• Page 2, Line 7marijuana and marijuana concentrate in section 18-18-406 and for special

• Page 2, Line 8offenders as provided in section 18-18-407, any a person who violates any of the provisions of subsection (1) of this section:

• Page 2, Line 9(a)  Commits a level 1 drug felony and is subject to the mandatory sentencing provisions in section 18-1.3-401.5 (7) if:

• Page 2, Line 10(I)  The violation involves any material, compound, mixture, or preparation that weighs:

• Page 2, Line 11(D)  More than fifty grams Any amount and contains fentanyl,

• Page 3, Line 1carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g); or

• Page 3, Line 2(III) (A)  Except as provided in section 18-1-711 (3)(i), the

• Page 3, Line 3defendant committed a violation of subsection (2)(a)(I)(D), (2)(b)(I)(D),

• Page 3, Line 4or (2)(c)(V) of this section, and the actions in violation of subsection

• Page 3, Line 5(2)(a)(I)(D), (2)(b)(I)(D), or (2)(c)(V) of this section are the proximate

• Page 3, Line 6cause of the death of another person who used or consumed the material,

• Page 3, Line 7compound, mixture, or preparation that contained fentanyl, carfentanil,

• Page 3, Line 8benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g).

• Page 3, Line 9(B)  Notwithstanding subsection (2)(a)(III)(A) of this section, a

• Page 3, Line 10defendant who committed a violation of subsection (2)(c)(V) of this

• Page 3, Line 11section, and the actions in violation of subsection (2)(c)(V) of this section

• Page 3, Line 12are the proximate cause of the death of another person who used or

• Page 3, Line 13consumed the material, compound, mixture, or preparation that contained

• Page 3, Line 14fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as

• Page 3, Line 15described in section 18-18-204 (2)(g), is not subject to the mandatory sentencing requirement as described in section 18-1.3-401.5 (7).

• Page 3, Line 16(b)  Commits a level 2 drug felony if:

• Page 3, Line 17(I)  The violation involves any material, compound, mixture, or preparation that weighs:

• Page 3, Line 18(B)  More than seven grams, but not more than one hundred twelve

• Page 3, Line 19grams, and contains methamphetamine, heroin, ketamine, or cathinones; or

• Page 3, Line 20(C)  More than ten milligrams, but not more than fifty milligrams, and contains flunitrazepam; or

• Page 3, Line 21(D)  More than four grams, but not more than fifty grams, and

• Page 4, Line 1contains fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g);

• Page 4, Line 2(c)  Except as provided in subsection (8) of this section, commits

• Page 4, Line 3a level 3 drug felony if the violation involves any material, compound, mixture, or preparation that weighs:

• Page 4, Line 4(III)  Not more than ten milligrams and contains flunitrazepam; or

• Page 4, Line 5(IV)  More than four grams and contains a schedule III or schedule IV controlled substance. or

• Page 4, Line 6(V)  Not more than four grams and contains fentanyl, carfentanil,

• Page 4, Line 7benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g).

• Page 4, Line 8(8)  Except for a prosecution for manufacturing, a person commits

• Page 4, Line 9a level 1 drug misdemeanor for a violation of subsection (2)(c)(I), (2)(c)(II), (2)(c)(V), or (2)(d) of this section if:

• Page 4, Line 10(a)  The distribution, dispensing, transfer, or sale involves a

• Page 4, Line 11material, compound, mixture, or preparation that weighs not more than

• Page 4, Line 12four grams and contains any amount of a controlled substance identified in subsection (2)(c)(I), (2)(c)(II), (2)(c)(V), or (2)(d) of this section;

• Page 4, Line 13SECTION 2.  In Colorado Revised Statutes, 18-1-711, amend (3)(h); and repeal (3)(i) as follows:

• Page 4, Line 1418-1-711.  Immunity for persons who suffer or report an

• Page 4, Line 15emergency drug or alcohol overdose event - definitions - repeal.

• Page 4, Line 16(3)  The immunity described in subsection (1) of this section applies to the following criminal offenses:

• Page 4, Line 17(h)  Illegal possession or consumption of ethyl alcohol or

• Page 4, Line 18marijuana by an underage person or illegal possession of marijuana

• Page 4, Line 19paraphernalia by an underage person, as described in section 18-13-122; and

• Page 5, Line 1(i)  A violation of section 18-18-405 (2)(a)(III)(A), if the unlawful

• Page 5, Line 2distribution, manufacturing, dispensing, or sale of the material,

• Page 5, Line 3compound, mixture, or preparation weighs not more than four grams and

• Page 5, Line 4contains any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g); and

• Page 5, Line 5SECTION 3.  In Colorado Revised Statutes, 18-1.3-401.5, amend (7), (10)(a)(III.5), and (10)(a)(IV); and repeal (10)(a)(V) as follows:

• Page 5, Line 618-1.3-401.5.  Drug felonies classified - presumptive and

• Page 5, Line 7aggravated penalties - legislative intent. (7)  Except as provided in

• Page 5, Line 8section 18-18-405 (2)(a)(III)(B), Notwithstanding any provision of this

• Page 5, Line 9section to the contrary, if the defendant is convicted of a level 1 drug

• Page 5, Line 10felony, the court shall sentence the defendant to a term of incarceration

• Page 5, Line 11in the department of corrections of at least eight years but not more than

• Page 5, Line 12thirty-two years. The presence of one or more of the aggravating

• Page 5, Line 13circumstances provided in subsection (10)(a) of this section or in section

• Page 5, Line 1418-18-407 (1) requires the court to sentence a defendant convicted of a

• Page 5, Line 15level 1 drug felony to a term of incarceration in the department of

• Page 5, Line 16corrections of at least twelve years but no not more than thirty-two years. The court may impose a fine in addition to imprisonment.

• Page 5, Line 17(10) (a)  Except for a level 1 drug felony, the presence of one or

• Page 5, Line 18more of the following aggravating circumstances at the time of the

• Page 5, Line 19commission of a drug felony offense requires the court, if it sentences the

• Page 5, Line 20defendant to incarceration, to sentence the defendant to a term of at least

• Page 5, Line 21the midpoint in the presumptive range but not more than the maximum term of the aggravated range:

• Page 5, Line 22(III.5)  The defendant was on appeal bond following his or her the defendant's conviction for a previous felony; or

• Page 6, Line 1(IV)  The defendant was on probation for or on bond while

• Page 6, Line 2awaiting sentencing following revocation of probation for a delinquent act that would have constituted a felony if committed by an adult. or

• Page 6, Line 3(V)  The defendant committed a violation of section 18-18-405

• Page 6, Line 4(2)(a)(III)(A), and the unlawful distribution, manufacturing, dispensing,

• Page 6, Line 5or sale of the material, compound, mixture, or preparation weighed more

• Page 6, Line 6than fifty grams and contained fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g).

• Page 6, Line 7SECTION 4.  In Colorado Revised Statutes, 18-18-407, amend (1)(h) as follows:

• Page 6, Line 818-18-407.  Special offender - definitions. (1)  A person who

• Page 6, Line 9commits a felony offense pursuant to this part 4 under any one or more of

• Page 6, Line 10the following aggravating circumstances commits a level 1 drug felony and is a special offender:

• Page 6, Line 11(h)  The defendant committed a violation of section 18-18-405

• Page 6, Line 12(2)(a)(I)(D) (2)(b)(I)(D), or (2)(c)(V), and the defendant possessed pill or

• Page 6, Line 13tablet manufacturing equipment with the intent to use the equipment in the manufacture of a controlled substance.

• Page 6, Line 14SECTION 5.  In Colorado Revised Statutes, 18-18-403.5, amend (2.5) as follows:

• Page 6, Line 1518-18-403.5.  Unlawful possession of a controlled substance -

• Page 6, Line 16notice to revisor of statutes - repeal. (2.5) (a)  Notwithstanding

• Page 6, Line 17subsection (2)(c) subsection (2) of this section, on or after July 1, 2022

• Page 6, Line 18July 1, 2025, a person who violates subsection (1) of this section by

• Page 6, Line 19knowingly possessing any material, compound, mixture, or

• Page 6, Line 20preparation that contains any quantity of fentanyl,

• Page 7, Line 1carfentanil, benzimidazole opiate, or an analog thereof, as

• Page 7, Line 2described in section 18-18-204 (2)(g), commits a level 4 drug felony.

• Page 7, Line 3(I)  Any material, compound, mixture, or preparation that weighs

• Page 7, Line 4more than one gram and not more than four grams and contains any

• Page 7, Line 5quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog

• Page 7, Line 6thereof as described in section 18-18-204 (2)(g), commits a level 4 drug felony;

• Page 7, Line 7(II)  Any material, compound, mixture, or preparation that weighs

• Page 7, Line 8not more than one gram and contains any quantity of fentanyl, carfentanil,

• Page 7, Line 9benzimidazole opiate, or an analog thereof as described in section

• Page 7, Line 1018-18-204 (2)(g), commits a level 1 drug misdemeanor; except that a

• Page 7, Line 11fourth or subsequent offense for a violation of this subsection (2.5)(a)(II) is a level 4 drug felony.

• Page 7, Line 12(b)  Notwithstanding the provisions of section 18-18-403.5

• Page 7, Line 13(2.5)(a)(I) of this section, when a defendant shows supporting evidence

• Page 7, Line 14to establish that he or she made a reasonable mistake of fact and did not

• Page 7, Line 15know that the controlled substance he or she possessed contained

• Page 7, Line 16fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as

• Page 7, Line 17described in section 18-18-204 (2)(g), the matter shall be submitted to the

• Page 7, Line 18finder of fact in the form of an interrogatory included in the verdict form.

• Page 7, Line 19Should the finder of fact determine the defendant made such a reasonable mistake of fact, the defendant commits a level 1 drug misdemeanor.

• Page 7, Line 20SECTION 6.  In Colorado Revised Statutes, 18-1.3-103.5, amend (2)(a), (3)(c), and (3)(d); and repeal (3)(e) as follows:

• Page 7, Line 2118-1.3-103.5.  Felony convictions - vacate and enter conviction

• Page 7, Line 22on misdemeanor after successful completion. (2) (a)  In a case in which

• Page 8, Line 1the defendant enters a plea of guilty or is found guilty by the court or a

• Page 8, Line 2jury for a crime listed in subsection (3) of this section, the court shall

• Page 8, Line 3order, upon successful completion of any community-based sentence to

• Page 8, Line 4probation or to a community corrections program, the drug felony

• Page 8, Line 5conviction vacated and shall enter a conviction for a level 1 drug

• Page 8, Line 6misdemeanor offense of possession of a controlled substance pursuant to

• Page 8, Line 7section 18-18-403.5. Upon entry of the judgment of conviction pursuant

• Page 8, Line 8to section 18-18-403.5, other than section 18-18-403.5 (2.5)(a), the

• Page 8, Line 9court shall indicate in its order that the judgment of conviction is entered pursuant to the provisions of this section.

• Page 8, Line 10(3)  This section applies to convictions for the following offenses:

• Page 8, Line 11(c)  Possession of more than twelve ounces of marijuana or more than three ounces of marijuana concentrate; or

• Page 8, Line 12(d)  A violation of section 18-18-415. or

• (e)  A violation of section 18-18-403.5 (2.5)(a).

• Page 8, Line 13SECTION 7.  Effective date - applicability. This act takes effect

• Page 8, Line 14upon passage and applies to offenses committed on or after said date;

• Page 8, Line 15except that section 5 of this act takes effect July 1, 2025, and applies to offenses committed on or after said date.

• Page 8, Line 16SECTION 8.  Safety clause. The general assembly finds,

• Page 8, Line 17determines, and declares that this act is necessary for the immediate

• Page 8, Line 18preservation of the public peace, health, or safety or for appropriations for

• Page 8, Line 19the support and maintenance of the departments of the state and state institutions.