Bill would fix oversight in Colorado fentanyl law by expanding protections for users who call 911

Bill would fix oversight in Colorado fentanyl law by expanding protections for users who call 911

New bill would cover fentanyl users, drug sharers who try to stop an overdose

By Seth Klamann (Feb 3, 2023) 

bill introduced in the Colorado House late Thursday would expand a state law that provides immunity to drug users who try to save someone from overdosing, after those same protections were inadvertently undermined by lawmakers during last year’s fight over fentanyl legislation.

The bill would fix that apparent oversight, made when legislators tightened penalties for fentanyl possession in 2022. But it would also expand those immunity protections, available under the state’s Good Samaritan law, to users who report an overdose of other illicit substances but were found to have shared drugs, and the measure would also provide an additional legal defense to some accused low-level dealers.

Supporters, like bill sponsor Rep. Chris deGruy Kennedy, cast the changes as common-sense solutions intended to save lives and work within the realities of drug use: At low levels, the lines between user and seller are often blurred, and calling for help should be encouraged whenever possible.

But law enforcement and district attorneys indicated they’re leery of some of the changes deGruy Kennedy, a Lakewood Democrat, is proposing.

Though representatives for those groups told The Denver Post late Thursday that they’re still examining the bill’s impact, law enforcement spent much of the last legislative session calling for tight penalties for anyone convicted of dealing fentanyl and other drugs, citing the state’s ongoing overdose crisis.

The diverging views of substance use and how to structure state laws to address it echo that bruising legislative fight, which pit public health experts against law enforcement groups and stretched across two contentious months. Ultimately, lawmakers last year lowered the threshold to charge users with felony, rather than misdemeanor, fentanyl possession.

Through that work, lawmakers essentially made a special carveout for fentanyl possession, distinct from Colorado’s broader felony drug framework. In turn, that cut some users out of the state’s Good Samaritan law, which deGruy Kennedy said was the result of lawmakers working on a large piece of legislation at the 11th hour last May.

The top Republican in the House, Minority Leader Mike Lynch, who was a vocal supporter of increasing penalties last year, was unavailable for comment Thursday.

“The bill will make sure that people that are calling in an overdose event to try to save a life, who stay on scene and fully cooperate with law enforcement, are not going to face harsh penalties for choosing to do the right thing,” deGruy Kennedy said.

That cleanup is largely noncontroversial for the constellation of law enforcement, district attorneys and harm-reduction advocates monitoring the bill. There’s more disagreement with how the measure would apply to drug sharing and to certain low-level drug dealers.

The bill would extend the Good Samaritan law to a person who reports an overdose to 911 and cooperates, but was subsequently found to have shared drugs with others. It wouldn’t give immunity to any drug dealers, but if someone who called 911 is suspected of selling small quantities of drugs, they could use that cooperation with first responders as a defense at any subsequent trial.

“What we’re really talking about, in the vast majority of cases, are going to be buddies getting together to share drugs, which may involve splitting the cost of drugs that one of them purchased, which would trigger a distribution crime,” deGruy Kennedy said. “To be clear, they are culpable of a crime in that case, but what I want to assert is that they need to prioritize saving the life of the person overdosing as opposed to running from the police.”

A coalition of Colorado law enforcement groups is still examining the bill but has concerns about the distribution and sharing provisions, a representative said Thursday. Tom Raynes, the executive director of the Colorado District Attorneys Council, said prosecutors are in a similar position.

District attorneys for Denver, Adams and Broomfield counties — with whom deGruy Kennedy said he consulted in crafting the bill — were unavailable for comment late Thursday afternoon.

Experts in substance use, like the Harm Reduction Action Center’s Lisa Raville, have long maintained that sharing drugs and pooling money are common among substance users and don’t fit neatly into drug laws. Raville, whose Denver facility provides clean needles and smoking kits to substance users, praised the bill on Thursday.

She said the new fentanyl penalties enacted last year had discouraged many substance users from calling 911.

“It was very clear that folks were very concerned,” she said. “There was no good message, no one could feel confident in calling 911, so they simply weren’t. As the largest provider of harm reduction services in the state, I could not feel confident for them to call 911 either.”


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