LIVE UPDATE: Panel approves House Bill 1326 on an 8-3 vote 

In his closing comments, Speaker Alec Garnett called HB 1326 a strong bill that provides the tools to law enforcement and prosecutors to go after those who create, import or peddle fentanyl.

“I know people don’t think this is the perfect bill,” he said, before adding that a “perfect bill” is not possible. 

Co-sponsor Rep. Mike Lynch, R-Wellington, pointed out that fentanyl is now the No. 1 cause of death for people aged 18 to 45. It’s taking over the state and is in every drug out there, he said.

“For us to not act would be a dereliction of duty,” he said. “This is what it means to have this job, to actually get together and figure out solutions.” 

But it was clear from comments during the hearing that, for many, the bill is far from complete.

House Judiciary Chair Vice-Chair Rep. Kerry Tipper, D-Lakewood, said she supports a suggestion made by former District Attorney George Brauchler to review the bill after two years. She also called for more resources for law enforcement for investigations into the fentanyl deaths. Families who testified in committee raised the issue, saying law enforcement officials did not investigate the deaths of their loved ones.

Rep. Rod Bockenfeld, R-Watkins, said the bill does not accomplish what it is meant to accomplish, which is to save lives. It gives dealers a work-around on the 1-gram issue, he argued. While he recognized the bill would likely pass without his vote, it is not ready for the full House to consider, he added.

The hours of emotional testimony from families on Wednesday affected lawmakers.

“The testimony got to me,” said Rep. Dylan Roberts, D-Eagle, who added that the bill will save lives and while it’s not perfect, it needs to pass.

Rep. Adrienne Benavidez, D-Commerce City, read off some of the names of those who have died from fentanyl overdoses, including the five in Commerce City also suspected of dying from the drug last month. She said she would be a strong “yes” for the families.

While calling the bill a good one, Rep. Terri Carver, R-Colorado Springs said she is hoping for more robust amendments to strengthen the tools for law enforcement.

“This bill does not meet the challenge we are facing,” she said.

The bill drew an admission from Rep. Monica Duran, D-Wheat Ridge, that her family had lost a 20-year-old niece to fentanyl last year. She complimented the bill’s attention on education and efforts to purchase Narcan and testing strips in bulk, which, under the measure, can be made available to the public.

Panel lowers threshold for felony possession to 1 gram

House Bill 1326 now goes to the House Appropriations Committee. 

The amendment to make “knowing” possession of fentanyl a felony at 1 to 4 grams passed on a 7-4 vote, with House Judiciary Committee chair Mike Weissman, D-Aurora, among the “no” votes.

The next amendment on the panel’s agenda – which Weissman offered – would allow those convicted of felony possession to have their records sealed two years after release. House Speaker Alec Garnett supported the amendment, which passed on an 8-3 vote.

Judiciary members tackle amendments 

The House Judiciary Committee at this hour is working on amendments to the sweeping bill to deal with the state’s fentanyl crisis, following a 13 1/2 hour hearing that wrapped up shortly before 3 a.m. Wednesday.

The bill, sponsored by Speaker Alec Garnett of Denver and Rep. Mike Lynch, R-Wellington, creates new felony levels for distribution of fentanyl. But the discussion on simple possession – and at what level to set felony charges – dominated the hearing on Tuesday and Wednesday.

Current law allows possession of up to 4 grams of pure fentanyl as a misdemeanor, the result of a 2019 law that changed felony charges for a variety of Schedule II drugs, which includes fentanyl. The 2019 law did not specifically mention fentanyl.

The first amendment put on HB 1326 deals with a technology that Colorado does not currently possess. The amendment states that a pill that contains at least 60% fentanyl would result in a felony level 2 charge. However, only the U.S. Drug Enforcement Administration has the technology to test for percentages of fentanyl; the Colorado Bureau of Investigation, which tests fentanyl, can only detect if it is present in the pill, not how much.

A CBI spokesman told Colorado Politics the bureau would review the final legislation to determine what is required of the agency but also noted the agency does not have the resources to purchase the technology envisioned by the amendment. The bill also does not provide funding to obtain that technology.

Sponsors split over issue of possession

The hearing’s major discussion on simple possession issue already produced a split between Garnett and Lynch, the bill’s sponsors.  

An amendment suggested by Garnett would lower the felony charge to possession of one gram, but a substitute amendment from Rep. Terri Carver, R-Colorado Springs, would lower it to zero.

Lynch said he would support the latter.

Rep. Kerry Tipper, D-Lakewood, however, pointed out that Carver’s amendment would make possession of any drug with fentanyl and at any quantity a felony because fentanyl is found in virtually every illicit street drug.

“I’m not here to refelonize” every drug, Tippter said. 

Carver’s amendment failed on a 5-6 vote.

It was followed up quickly by Rep. Rod Bockenfeld, R-Watkins, attempting to move an amendment that would make it a felony to possess more than a quarter of one gram of fentanyl. He argued that even that low level could still be deadly for scores of people. 

But Garnett pointed out a key nuance about fentanyl pills: They’re primarily composed of “filler” substances, which is sometimes the active ingredient in Tylenol. A gram of fentanyl pills, then, doesn’t translate into 1 gram of pure fentanyl on the street. The speaker referenced testimony from law enforcement Tuesday that pure fentanyl is typically not found on the street.

Garnett said 1 gram of fentanyl is “much more reflective” of what constitutes personal use. His amendment also said persons arrested had to know that what they were buying had fentanyl in it. 

“I just want to be very thoughtful about this discussion because it incorporates the challenges of fentanyl,” the speaker said, “because in its purest form, it’s very deadly. However, on the street, that’s not how we’re finding it.”

Bockenfeld’s amendment also failed on a 5-6 vote.

Adding felony charges could drive up the bill’s cost, currently estimated at $17.7 million. The bill already estimates a minimal boost in prison population.

Monica Duran temporarily joins judiciary panel 

The House Judiciary Committee has a new, temporary member Wednesday.

Rep. Monica Duran, D-Wheat Ridge, replaced Rep. Steven Woodrow, D-Denver, who is excused for medical reasons. Woodrow was replaced in Tuesday’s hearing by Rep. Leslie Herod, D-Denver, but she was unable to participate in the Wednesday hearing because she is a member of the Joint Budget Committee, which is meeting at the same time to resolve differences between the House and Senate on the 2022-23 state budget.