Indicates Matter Stricken

Indicates New Matter

Committee Report

February 1, 2023

S. 153

Introduced by Senators Young, Gustafson, Senn, Rankin and Adams

S. Printed 02/01/23--S.

Read the first time January 10, 2023

________

The committee on Senate Judiciary

To who was referred a Bill (S. 153) to amend the South Carolina Code of Laws, by amending Sections 44-53-190(B) and 44-53-370(e), relating to the trafficking offenses for certain controlled substances, etc., respectfully

Report:

That they have duly and carefully considered the same, and recommend that the same do pass:

LUKE RANKIN for Committee.

statement of estimated fiscal impact

Explanation of Fiscal Impact

State Expenditure

This bill defines the term fentanyl-related substances and adds the term to the list of Schedule I controlled substances. The bill also creates the felony offense of trafficking in fentanyl and establishes the following penalty structure:

Penalty Structure for Trafficking in Fentanyl

Amount

First Offense

Second or Subsequent Offense

≥4 grams but <14 grams of fentanyl or fentanyl-related substance or any mixture containing fentanyl or fentanyl-related substance

Imprisonment for not less than 10 years but no more than 25 years, no part of which may be suspended or probation granted, and fine of $50,000

Mandatory imprisonment for 25 years, no part of which may be suspended or probation granted, and fine of $100,000

Amount

Any Level Offense

≥14 grams but <28 grams of fentanyl or fentanyl-related substance or any mixture containing fentanyl or fentanyl-related substance

Mandatory imprisonment for 25 years, no part of which may be suspended or probation granted, and fine of $200,000

≥28 grams of fentanyl or fentanyl-related substance or any mixture containing fentanyl or fentanyl-related substance

Mandatory imprisonment for not less than 25 years nor more than 40 years, no part of which may be suspended or probation granted, and fine of $200,000

The bill also establishes that the knowing or intentional possession of two or more grains of fentanyl or a fentanyl-related substance constitutes a prima facie case for an unlawful act involving controlled substances.

Judicial. Since the bill creates a new cause of action, there is no data with which to estimate the number of court filings. However, Judicial intends to use existing General Fund appropriations to manage any modifications in caseloads. Therefore, this bill will have no expenditure impact on Judicial.

Commission on Prosecution Coordination. This bill creates a new offense, which could result in an increase in the number of warrants that are sent to the Offices of Circuit Solicitor for review, prosecution, and disposition; however, the potential increase in warrants is unknown. The implementation of this bill will have no expenditure impact, as the commission expects to manage any increase in caseloads within current resources.

Commission on Indigent Defense. The implementation of this bill will have no expenditure impact for Indigent Defense, as the commission expects to manage any increase in caseloads within current resources.

Department of Corrections. This bill may result in an increase in the number of inmates housed by the Department of Corrections. However, no data are available to estimate the increase in the number of inmates that may be housed by Corrections. According to Corrections, in FY 2021-22, the annual total cost per inmate was $32,247, $30,044 of which was state funded, and the marginal cost per inmate was $4,836.28, $4,829.76 of which was state funded. However, as the potential increase in incarcerations in unknown, any expenditure impact for Corrections is undetermined.

State Revenue

This bill has the potential to increase General Fund revenue from fines, as well as Other Funds revenue of Judicial and other applicable agencies who receive a distribution from fine revenue for such an offense, due to the increased fine for offenders convicted in general sessions courts. However, as the number of such offenses that might occur in a given year is unknown, the revenue impact is undetermined.

Frank A. Rainwater, Executive Director

Revenue and Fiscal Affairs Office

________

A bill

TO AMEND the South Carolina code of laws, by amending SECTIONS 44-53-190(B) AND 44-53-370(e), RELATING TO THE TRAFFICKING OFFENSES FOR CERTAIN CONTROLLED SUBSTANCES, TO ADD AN OFFENSE FOR "TRAFFICKING IN FENTANYL", TO DEFINE NECESSARY TERMS and provide penalties; and by amending section 44-53-370(d) to provide for presumptive weights for possession with intent to distribute fentanyl or fentanyl-related substances.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1.   Section 44-53-190(B) of the S.C. Code is amended by adding an appropriately numbered new item at the end to read:

   __. 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; and/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 fenantyl.

SECTION 2.   Section 44-53-370(e) of the S.C. Code is amended by adding an appropriately numbered new item at the end to read:

   ( ) four grams or more of any fentanyl or fentanyl-related substance, as described in Section 44-53-190 or 44-53-210, or four grams or more of any mixture containing fentanyl or any fentanyl-related substance, is guilty of a felony which is known as "trafficking in fentanyl" and, upon conviction, must be punished as follows if the quantity involved is:

         (a) four grams or more, but less than fourteen grams:

            1. for a first offense, a term of imprisonment of not less than ten years nor more than twenty-five years, no part of which may be suspended or probation granted, and a fine of fifty thousand dollars; or

            2. for a second or subsequent offense, a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended or probation granted, and a fine of one hundred thousand dollars;

         (b) fourteen grams or more but less than twenty-eight grams, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars;

         (c) twenty-eight grams or more, a mandatory term of imprisonment of not less than twenty-five years nor more than forty years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars;

SECTION 3.   Section 44-53-370(d) of the S.C. Code is amended to read:

   (d) A person who violates subsection (c) with respect to:

      (1) a controlled substance classified in Schedule I (B) and (C) which is a narcotic drug or lysergic acid diethylamide (LSD) and in Schedule II which is a narcotic drug is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than two years or fined not more than five thousand dollars, or both. For a second offense, the offender is guilty of a felony and, upon conviction, must be imprisoned not more than five years or fined not more than five thousand dollars, or both. For a third or subsequent offense, the offender is guilty of a felony and, upon conviction, must be imprisoned not more than five years or fined not more than ten thousand dollars, or both. Notwithstanding any other provision of law, a person convicted and sentenced pursuant to this item may have the sentence suspended and probation granted and is eligible for parole, supervised furlough, community supervision, work release, work credits, education credits, and good conduct credits;

      (2) any other controlled substance classified in Schedules I through V is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than six months or fined not more than one thousand dollars, or both. For a second or subsequent offense, the offender is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than one year or fined not more than two thousand dollars, or both, except as provided in subsection (d)(4). Notwithstanding any other provision of law, a person convicted and sentenced pursuant to this item may have the sentence suspended and probation granted and is eligible for parole, supervised furlough, community supervision, work release, work credits, education credits, and good conduct credits;

      (3) cocaine is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than three years or fined not more than five thousand dollars, or both. For a first offense, the court, upon approval of the solicitor, may require as part of a sentence, that the offender enter and successfully complete a drug treatment and rehabilitation program. For a second offense, the offender is guilty of a felony and, upon conviction, must be imprisoned not more than five years or fined not more than seven thousand five hundred dollars, or both. For a third or subsequent offense, the offender is guilty of a felony and, upon conviction, must be imprisoned not more than ten years or fined not more than twelve thousand five hundred dollars, or both. Notwithstanding any other provision of law, a person convicted and sentenced pursuant to this item may have the sentence suspended and probation granted and is eligible for parole, supervised furlough, community supervision, work release, work credits, education credits, and good conduct credits;

      (4) possession of more than: one gram of cocaine, one hundred milligrams of alpha- or beta-eucaine, four grains of opium, four grains of morphine, two grains of heroin, two grains of fentanyl or a fentanyl-related substance as described in Section 44-53-190 or 44-53-210, one hundred milligrams of isonipecaine, twenty-eight grams or one ounce of marijuana, ten grams of hashish, fifty micrograms of lysergic acid diethylamide (LSD) or its compounds, fifteen tablets, capsules, dosage units, or the equivalent quantity of 3, 4-methylenedioxymethamphetamine (MDMA), or twenty milliliters or milligrams of gamma hydroxybutyric acid or a controlled substance analogue of gamma hydroxybutyric acid, is prima facie guilty of violation of subsection (a) of this section. A person who violates this subsection with respect to twenty-eight grams or one ounce or less of marijuana or ten grams or less of hashish is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days or fined not less than one hundred dollars nor more than two hundred dollars. Conditional discharge may be granted in accordance with the provisions of Section 44-53-450 upon approval by the circuit solicitor to the magistrate or municipal judge. As a part of a sentence, a magistrate or municipal judge may require attendance at an approved drug abuse program. Persons charged with the offense of possession of marijuana or hashish under this item may be permitted to enter the pretrial intervention program under the provisions of Sections 17-22-10 through 17-22-160. For a second or subsequent offense, the offender is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than one year or fined not less than two hundred dollars nor more than one thousand dollars, or both. Notwithstanding any other provision of law, a person convicted and sentenced pursuant to this item may have the sentence suspended and probation granted and is eligible for parole, supervised furlough, community supervision, work release, work credits, education credits, and good conduct credits.

   When a person is charged under this subsection for possession of controlled substances, bail shall not exceed the amount of the fine and the assessment provided pursuant to Section 14-1-206, 14-1-207, or 14-1-208, whichever is applicable. A person charged under this item for a first offense for possession of controlled substances may forfeit bail by nonappearance. Upon forfeiture in general sessions court, the fine portion of the bail must be distributed as provided in Section 14-1-205. The assessment portion of the bail must be distributed as provided in Section 14-1-206, 14-1-207, or 14-1-208, whichever is applicable.

SECTION 4.   The repeal or amendment by this act of any law, whether temporary or permanent, or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION 5.   This act takes effect upon approval by the Governor.

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