After the Colorado General Assembly spent last year’s session wrestling with legislation to address state’s fentanyl epidemic, lawmakers are back at it with a pair of bills proposing changes some want to see it the 2022 bill.

House Bill 1167 is sponsored by Speaker Pro tem Chris deGruy Kennedy, D-Lakewood, and was introduced late Thursday. House Bill 1164, also introduced on Thursday, is sponsored by House Minority Leader Mike Lynch, R-Wellington. Both have been assigned to the House Judiciary Committee.

Kennedy’s bill has to do with immunity and the Good Samaritan provisions in House Bill 22-1326. The intention with that law was that someone sharing fentanyl could avoid prosecution when the person they’re sharing it with overdoses or even dies. The provider of the fentanyl would have to call 911 and stay on scene until law enforcement and first responders arrive. Under that scenario, the provider would be granted immunity for distribution resulting in death.

According to Kennedy, the way the law is working could be discouraging people from calling police in an overdose situation.

“We broke the Good Samaritan” law, Kennedy said Thursday. “We created a new felony fentanyl possession law” that wasn’t intended. 

It has to do with ensuring that all the I’s are dotted and the T’s crossed. Language in one section of statutes pertaining to Good Samaritan wasn’t applied in another, creating an unforeseen loophole. 

The 911 Good Samaritan law was first put into statute in 2012 and updated in 2016. It was supposed to be updated in the 2022 law to address situations involving fentanyl, but that didn’t quite happen. 

Lisa Raville, executive director of the Harm Reduction Action Center, who has worked with Kennedy on the 2023 bill, told Colorado Politics that if someone overdoses and the person who provided the drug – other than fentanyl – stays until first responders arrive, the bill would prevent the provider from incurring new drug distribution charges, even if granted immunity on the overdose. 

What happened with HB 1326 was fentanyl was not included in the right place in the Good Samaritan law, and that could create felony charges for someone possessing drugs who are trying to do the right thing. Right now, “people are very afraid to call” for fear of those charges, she said.

Kennedy’s bill is to bring make the 2022 law keep up with the 2012 and 2016 laws, Raville explained. Saving the life of the person is the highest priority, Kennedy said. 

The second provision in Kennedy’s bill has to do with affirmative defense. 

Tristan Gorman, policy director of the Colorado Criminal Defense Bar, said that is not the same as immunity. It’s not attended to prevent arrest, charging or prosecution, she explained.

If and when a case reaches trial, which is a small percentage of cases, there’s two kinds of defenses a defense attorney can raise, depending on the facts of the case. One is an elemental defense: the defense argues that the prosecution hasn’t met the burden of proof, to prove one or more elements of the offense, beyond a reasonable doubt. 

The second is affirmative defense, which is what’s in HB 1167. The reason it is so different from an elemental defense, she explained is that the defendant is not denying the offense. “Yes, my client did it but it was legally justified,” a defense attorney can claim. Gorman pointed out the best known of affirmative defenses is self defense.

Gorman said that what Kennedy is attempting to do in HB 1167 is to take the requirements of the Good Samaritan law, which includes immunity, and copy that into an affirmative defense for the distribution charge.

HB 1326 also had an affirmative defense provision, but there were misconceptions around it, she added. Before HB 1326, in order to be convicted of possession of a controlled substance, a person had to know what it was they possessed. “You know you have it on you and you know it’s a controlled substance,” she said. 

One of the main arguments in the 2022 fentanyl bill was that fentanyl was different – possession had to be a felony, regardless of amount, because it’s lethal and dangerous. The compromise on the last day of the session was around affirmative defense: If you knew you possessed it and that you knew it was fentanyl, it’s a drug felony class 4. But if you can argue that you made a reasonable mistake and thought it was something else, you’re only guilty of a drug misdemeanor class 1, Gorman said.

It was never immunity, Gorman explained. What people got wrong was that if a defense lawyer uses that affirmative defense at trial, it’s not that the person would be acquitted. Instead of it being a drug felony conviction, it’s a misdemeanor conviction.

Kennedy’s bill brings in the affirmative defense to the distribution charges, and would only apply to distribution, manufacturing or sale of compound mixtures of 4 grams or less, which is considered a drug sharing offense rather than selling the drug for profit, Gorman added.

She said she’d prefer to see this section of the bill incorporated into the Good Samaritan law but thinks that might raise the ire of the law enforcement and district attorney communities. 

“It’s a huge risk to use an affirmative defense,” Gorman added. “I wouldn’t expect this to be used successfully, but it’s an effort by Rep. Kennedy to show the distinction between sharing and high level dealers.” 

The changes should encourage people to call 911 and incentivize people to save lives, she added. Without an affirmative defense, it creates a perverse incentive to leave the scene.

The Good Samaritan law is not without its faults, Gorman said. By requiring someone who is sharing a drug to remain on the scene in a 911 situation, and cooperate with law enforcement, it could lead to self-incrimination for distribution, although immunity could still apply to distribution resulting in death.

Lynch was initially a co-prime sponsor of HB 22-1326, but pulled his name off the bill on the last vote on the last day over the language on “knowingly,” and that’s what his bill intends to address.

HB 1164 would eliminate the requirement that a person had to “knowingly” possess fentanyl and the other similar drugs contained in HB 1326, which is tied to how felony charges are calculated.

It’s a fight he said he’s ready for, but pointed out that some Democrats in the House are in favor of that change. HB 1326 passed on a 35-30 vote in its final version on May 11, with nine Democrats voting “no,” although not all voted that way because of the language around “knowingly.”

Lynch’s bill has other provisions that will help with how Narcan, also known as naloxone, is used. Currently, it’s available to the Colorado Department of Public Health & Environment, but without any direction on where to distribute it, Lynch said. He intends to see the opioid antagonist provided to high schools, and if need be, to middle schools. 

The third part of Lynch’s bill seeks to improve data around Narcan discharge to track when the antagonist is actually provided to someone. He’d like to see that information collected at the time that it is provided, so the state knows whether its use – and the law requiring it – is effective. 

Fentanyl continues to be a growing problem in the United States: according to the National Center for Drug Abuse Statistics, the number of deaths from fentanyl overdoses has been nearly doubling every year. Fentanyl factors into more than half of all overdose deaths in the United States.