The Colorado legislature’s struggle on how to deal with fentanyl possession took another turn Thursday, when the state Senate decided that prosecutors shouldn’t have to prove that users knowingly possessed the drug in order to charge them with a felony. 

The revision is the most significant and far-reaching change to come out of the Senate’s work on the legislature’s sweeping response to overdoses, which surged nationwide over the past several years, as fentanyl, which is stronger than heroin and lethal in small doses, became an increasingly dominant presence in the illicit drug market. In Colorado, more than 800 people died after ingesting fentanyl in 2021, according to state data.

Senators rejected the push to make it a felony to possess any amount of the drug, a law enforcement priority. Instead, they kept the felony threshold in the bill at 1 gram, up from 4 grams in current statutes. They also shot down efforts to tighten penalties for repeat offenders and to set sentencing requirements for dealers whose wares lead to someone’s death. 

As has been the case since the bill was introduced on March 25, the bulk of Thursday’s hours-long debate on the measure centered around simple possession of the drug. When House lawmakers proposed putting the felony possession threshold at 1 gram, rather than at 4, they required that prosecutors prove that users knew or should have known their substance contained fentanyl.

It’s a key nuance of the drug: While fentanyl is distributed in pill form, it’s increasingly being mixed into other substances. Law enforcement and health experts have said they increasingly see fentanyl in meth, cocaine, heroin and other drugs. Many people who buy those drugs are unwittingly possessing and using fentanyl.

By requiring that prosecutors prove that a user knew they possessed fentanyl, House lawmakers effectively sought to shield a 2019 law change that made it a misdemeanor to possess up to 4 grams of many substances that are now frequently laced with fentanyl. Without that protection, a meth user caught with 1.5 grams of the drug could be hit with a felony charge, instead of a misdemeanor, if fentanyl was found mixed in.

Law enforcement and district attorneys have been deeply critical of that language, arguing it gave users an excuse by simply saying, “I didn’t know.” 

On Thursday, Sen. Bob Gardner, R-Colorado Springs moved to get rid of it. He called House members, who inserted the knew-or-should’ve-known language, alongside the lower felony threshold, “clever” for doing so. That way, he argued, the felony change wouldn’t do much because users caught with fentanyl could simply plead ignorance.

The language does not apply to drug distribution, which is already a felony at any level. The bill also tightens penalties for distributing any amount of fentanyl in any substance, regardless of the dealer’s awareness. 

Sen. Barbara Kirkmeyer, R-Brighton, argued the prosecutors’ case. She repeatedly read messages sent from district attorneys opposing the language – that it would “eviscerate” prosecutors’ ability to enforce the new possession threshold, which she said would become “essentially useless.”

She praised the harm-reduction elements of the bill, which include $20 million for Naloxone; $300,000 for fentanyl test strips; a requirement that jails offer what is considered the gold-standard treatment for opioid-use disorder; and, a statewide education campaign. But she insisted that more is needed to address possession.

Fellow Republicans took up that fight, noting that the known-or-should’ve-known standard doesn’t exist elsewhere in the state’s drug laws. Senate Minority Leader Chris Holbert of Douglas County said the language is “disastrous.” 

Supporters of the language sought to point out the importance of the language in the context of fentanyl. Echoing an argument made frequently by opponents of criminal penalties, Sen. Pete Lee , D-Colorado Springs, said anyone who believes tighter possession laws would solve the drug crisis is “operating in an illusion.”

Sen. Nick Hinrichsen, D-Pueblo, who referred to some of Gardner’s comments as “disingenuous and dishonest,” said his uncle had fatally overdosed on cocaine laced with fentanyl that he didn’t know was present. Yes, he said, the “knowing” language didn’t exist elsewhere in drug laws. But fentanyl is different, and it permeated other drugs unlike any other substance, he said.

“It is not a matter of being clever,” he said. “It is an effort to treat this drug and this crisis unlike any other we’ve ever seen in a manner unlike any we’ve ever seen to appropriately address this crisis with specifics that apply to it.”

Gardner replied that Lee’s criticism of criminal penalties sounds like Lee wanted to legalize all drugs. Gardner and others noted how dangerous fentanyl is and argued that incarceration can act as an incentive to get people into treatment, an assertion that harm reduction advocates reject.

“I don’t choose that road,” Gardner said of legalizing all drugs. “We need responsible, effective harm reduction and responsible, effective criminal justice.”

He and other Republicans also argued that prosecutors aren’t looking to incarcerate the average user but instead want to incentivize users into treatment, while going after higher-level dealers. 

Sen. Julie Gonzales, D-Denver, an opponent of increased penalties for possession, said removing the known-or-should’ve-known language would mean that people who survived an overdose could then be arrested for felony possession. 

After a lengthy debate, the Senate narrowly voted to strip the language. The approach received the support of three Democrats: Sens. Chris Hansen of Denver, Joann Ginal of Fort Collins and Rachel Zenzinger of Arvada. Sen. Rhonda Fields of Aurora, who was originally in favor, voted against.

Those Democrats joined 15 Republicans in supporting the amendment. Zenzinger, who was serving as the chamber’s chair Thursday, told reporters she broke the tie in favor of removing the language.

The full Senate will vote on the entire bill on Friday and send it back to the House, which will kickstart negotiations to reconcile the two chamber’s differences in hopes of getting the bill to the governor’s desk before the session ends on May 11.