Penalties for Fentanyl Trafficking, Possession of Fentanyl in South Carolina
SC passed a new fentanyl trafficking bill – it was signed by the governor and went into effect June 15, 2023, but is getting media coverage now because the governor just signed the bill a second time – a dog and pony show for the cameras…
What’s in the new fentanyl trafficking law? What does it accomplish, and what are the penalties for trafficking fentanyl in South Carolina?
SC’s New Fentanyl Trafficking Bill – What it Does and Does Not Accomplish
South Carolina’s new fentanyl law is probably more about politics than “closing a loophole” in SC’s drug laws.
People are dying from fentanyl overdoses. It is a public health crisis and has been for years. Something must be done. We expect our elected officials to do something, and so they have delivered… what?
We now have a law that specifically addresses fentanyl trafficking and fentanyl possession when a person possesses more than two grains of the drug. Arguably, the law isn’t necessary because law enforcement already could prosecute fentanyl offenses (and was doing so).
First, fentanyl is most often used to cut heroin, or sometimes other types of drugs. When heroin is cut with another substance, whether that is fentanyl or baking soda, the person is charged with the total weight of the actual illegal drug and the cut that it is mixed with. And the penalties for trafficking in heroin in South Carolina are the same as the “new” penalties for trafficking in fentanyl.
Second, I suspect fentanyl is a “salt, isomer, or salt of an isomer” of opium, just like heroin, which means it was arguably already covered under the definition in SC Code §44-53-370(e)(3) (“…morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin…”).
Apart from giving the governor, legislators, and law enforcement officials a PR opportunity to pretend like they are doing something productive, what does the new law accomplish?
- It creates a new offense for fentanyl trafficking with the same penalties as trafficking in heroin, and
- It creates a new offense for possession of fentanyl two grains or more with the same penalties as PWID, distribution, or manufacturing heroin.
It does not criminalize possession of less than two grains of fentanyl, possession with intent to distribute fentanyl, distribution of fentanyl, or manufacturing of fentanyl…
Definition of Fentanyl
The new law adds a definition of fentanyl:
Section 44-53-190(B) of the S.C. Code is amended by adding an item to read:
(48) Fentanyl-related substances. Unless specifically excepted, listed in another schedule, or contained within a pharmaceutical product approved by the United States Food and Drug Administration, any material, compound, mixture, or preparation, including its salts, isomers, esters, or ethers, and salts of isomers, esters, or ethers, that is structurally related to fentanyl by one or more of the following modifications:
(a) replacement of the phenyl portion of the phenethyl group by any monocycle, whether or not further substituted in or on the monocycle;
(b) substitution in or on the phenethyl group with alkyl, alkenyl, alkoxyl, hydroxyl, halo, haloalkyl, amino or nitro groups;
(c) substitution in or on the piperidine ring with alkyl, alkenyl, alkoxyl, ester, ether, hydroxyl, halo, haloalkyl, amino or nitro groups;
(d) replacement of the aniline ring with any aromatic monocycle whether or not further substituted in or on the aromatic monocycle; or
(e) replacement of the N propionyl group by another acyl group or hydrogen.
This definition includes, but is not limited to, the following substances: Methylacetyl fentanyl, Alpha methylfentanyl, Methylthiofentanyl, Benzylfentanyl, Beta hydroxyfentanyl, Beta hydroxy 3 methylfentanyl, 3 Methylfentanyl, Methylthiofentanyl, Fluorofentanyl, Thenylfentanyl or Thienyl fentanyl, Thiofentanyl, Acetylfentanyl, Butyrylfentanyl, Beta Hydroxythiofentanyl, Lofentanil, Ocfentanil, Ohmfentanyl, Benzodioxolefentanyl, Furanyl fentanyl, Pentanoyl fentanyl, Cyclopentyl fentanyl, Isobutyryl fentanyl, Remifentanil, Crotonyl fentanyl, Cyclopropyl fentanyl, Valeryl fentanyl, Fluorobutyryl fentanyl, Fluoroisobutyryl fentanyl, Methoxybutyryl fentanyl, Isobutyryl fentanyl, Chloroisobutyryl fentanyl, Acryl fentanyl, Tetrahydrofuran fentanyl, Methoxyacetyl fentanyl, Fluorocrotonyl fentanyl, Cyclopentenyl fentanyl, Phenyl fentanyl, Cyclobutyl fentanyl, Methylcyclopropyl fentanyl.
Penalties for Fentanyl Trafficking in SC
The new law also creates the crimes of 1) possession of fentanyl (two grains or more) and 2) fentanyl trafficking (four grams or more).
Penalties for Possession of Fentanyl in SC
The penalties for “possession of two grains or more of fentanyl” are the same as the penalties for possession with intent to distribute, distribution, or manufacturing heroin:
- Up to five years for a first offense,
- Up to ten years for a second offense, and
- Up to 15 years for a third offense.
Considering that possession of two grains or more of heroin is usually charged as possession with intent to distribute, which carries the same penalties as “possession of two grains or more of fentanyl,” it appears that the legislature has just done away with the inconvenience of having to prove intent to distribute – if you possess more than two grains of fentanyl, you will be punished as if you intended to distribute it, period.
The new law also creates the offense of PWID fentanyl (it specifies that two grains is the threshold weight for PWID) but does not provide a penalty for the offense of PWID fentanyl.
Simple Possession Less than Two Grains?
Simple possession of fentanyl, if it is less than two grains, is not found in the new law. Apparently, it will be legal to possess a small amount of fentanyl.
Distribution, PWID, and Manufacturing Fentanyl?
There are no penalties for distribution, PWID, or manufacturing fentanyl in the new law, so can we assume that these activities are also legal?
Penalties for Fentanyl Trafficking in SC?
The potential penalties for fentanyl trafficking in SC are the same as the potential penalties for heroin trafficking in SC:
- 4-14 grams: (first offense) mandatory minimum sentence of seven and up to 25 years, or (second offense) 25 years,
- 14-28 grams: 25 years,
- 28 grams or more: mandatory minimum sentence of 25 and up to 40 years.
Fentanyl Lawyers in Charleston, SC
Charleston, SC drug crimes defense attorney Grant B. Smaldone accepts criminal defense cases in the Charleston, Dorchester, Georgetown, and Myrtle Beach areas of SC, including drug distribution charges. If you’ve been charged with any drug offense in South Carolina, including:
- Simple possession,
- Possession with intent to distribute,
- Manufacturing, or
Call now at (843) 808-2100 or send us a message for a free consultation about your case.