Indicates Matter Stricken

Indicates New Matter

 

Committee Report

May 09, 2023

H. 3503

Introduced by Reps. Gilliam, Pope, Taylor, Chumley, Haddon, McCravy, Oremus, Hiott, Burns, Wooten, Hixon, Bailey, Caskey, Thayer, Trantham, Forrest, Yow, S. Jones, Sessions, Guffey, Lawson, Chapman, Leber, O'Neal, Vaughan, Robbins, B. J. Cox, M. M. Smith, Davis, Brewer, Murphy, Whitmire, Ligon, Felder, Mitchell, Hager, Connell, Carter, West, Calhoon, B. Newton, Neese, Landing, Blackwell, Pedalino, Willis and W. Newton

 

S. Printed 05/09/23--S.

Read the first time February 02, 2023

 

________

 

The committee on senate Judiciary

To who was referred a Bill (H. 3503) to amend the South Carolina Code of Laws by amending Section 44-53-190, relating to Schedule I substances, so as to add fentanyl-related substances; by amending, etc., respectfully

Report:

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

 

Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:

SECTION X. 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) more than two grains of fentanyl or fentanyl-related substance 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 second offense, the offender is guilty of a felony and, upon conviction, must be imprisoned not more than ten 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 fifteen 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 for a first or second offense 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)(5) 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.

Amend the bill further, SECTION 2, by striking Section 44-53-370(e)(9)(a)1. and inserting:

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

Amend the bill further, by adding an appropriately numbered SECTION to read:

SECTION X. Chapter 53, Title 44 of the S.C. Code is amended by adding:

 

    Section 44-53-393. Notwithstanding any provision of law to the contrary, the term "drug paraphernalia" as defined in Section 44-53-110 shall not include rapid fentanyl test strips or any testing equipment or devices solely used, intended for use, or designed to determine whether a substance contains fentanyl or its analogues.

Amend the bill further, by deleting SECTION 3.

Renumber sections to conform.

Amend title to conform.

 

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           Imprisonment for not      Imprisonment for not more than

fentanyl or fentanyl-related           more than 20 years and   25 years and fine of $100,000

substance or any mixture              fine of $50,000             

containing fentanyl or                                                       

fentanyl-related substance

Amount                                                                 Any Level Offense

≥14 grams but <28 grams of         Imprisonment for not more than 25 years and fine of

fentanyl or fentanyl-related           $200,000

substance or any mixture             

containing fentanyl or fentanyl-   

related substance

≥28 grams of fentanyl or              Imprisonment for not more than 30 years and fine of

fentanyl-related substance or any $200,000

mixture containing fentanyl or     

fentanyl-related substance

The bill also establishes that trafficking in fentanyl constitutes a violent crime.

 

Judicial.  Since the bill creates a new cause of action, there are no data with which to estimate the number of court filings.  However, Judicial intends to use existing General Fund appropriations to manage any increase 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, as the department 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 SECTION 44-53-190, RELATING TO SCHEDULE I SUBSTANCES, SO AS TO ADD FENTANYL-RELATED SUBSTANCES; BY AMENDING SECTION 44-53-370, RELATING TO PROHIBITED ACTS AND PENALTIES, SO AS TO ADD AN OFFENSE FOR TRAFFICKING IN FENTANYL; AND BY AMENDING SECTION 16-1-60, RELATING TO VIOLENT CRIMES, SO AS TO ADD TRAFFICKING IN FENTANYL.

 

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 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 fenantyl.

 

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

 

    (9) 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 nor probation granted, and a fine of fifty thousand dollars;

           2. for a second or subsequent offense, a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended nor 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 16-1-60 of the S.C. Code is amended to read:

 

    Section 16-1-60. For purposes of definition under South Carolina law, a violent crime includes the offenses of: murder (Section 16-3-10); attempted murder (Section 16-3-29); assault and battery by mob, first degree, resulting in death (Section 16-3-210(B)), criminal sexual conduct in the first and second degree (Sections 16-3-652 and 16-3-653); criminal sexual conduct with minors, first, second, and third degree (Section 16-3-655); assault with intent to commit criminal sexual conduct, first and second degree (Section 16-3-656); assault and battery with intent to kill (Section 16-3-620); assault and battery of a high and aggravated nature (Section 16-3-600(B)); kidnapping (Section 16-3-910); trafficking in persons (Section 16-3-2020); voluntary manslaughter (Section 16-3-50); armed robbery (Section 16-11-330(A)); attempted armed robbery (Section 16-11-330(B)); carjacking (Section 16-3-1075); drug trafficking or trafficking in fentanyl as defined in Section 44-53-370(e) or trafficking cocaine base as defined in Section 44-53-375(C); manufacturing or trafficking methamphetamine as defined in Section 44-53-375; arson in the first degree (Section 16-11-110(A)); arson in the second degree (Section 16-11-110(B)); burglary in the first degree (Section 16-11-311); burglary in the second degree (Section 16-11-312(B)); engaging a child for a sexual performance (Section 16-3-810); homicide by child abuse (Section 16-3-85(A)(1)); aiding and abetting homicide by child abuse (Section 16-3-85(A)(2)); inflicting great bodily injury upon a child (Section 16-3-95(A)); allowing great bodily injury to be inflicted upon a child (Section 16-3-95(B)); domestic violence of a high and aggravated nature (Section 16-25-65); domestic violence in the first degree (Section 16-25-20(B)); abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F)); abuse or neglect of a vulnerable adult resulting in great bodily injury (Section 43-35-85(E)); taking of a hostage by an inmate (Section 24-13-450); detonating a destructive device upon the capitol grounds resulting in death with malice (Section 10-11-325(B)(1)); spousal sexual battery (Section 16-3-615); producing, directing, or promoting sexual performance by a child (Section 16-3-820); sexual exploitation of a minor first degree (Section 16-15-395); sexual exploitation of a minor second degree (Section 16-15-405); promoting prostitution of a minor (Section 16-15-415); participating in prostitution of a minor (Section 16-15-425); aggravated voyeurism (Section 16-17-470(C)); detonating a destructive device resulting in death with malice (Section 16-23-720(A)(1)); detonating a destructive device resulting in death without malice (Section 16-23-720(A)(2)); boating under the influence resulting in death (Section 50-21-113(A)(2)); vessel operator's failure to render assistance resulting in death (Section 50-21-130(A)(3)); damaging an airport facility or removing equipment resulting in death (Section 55-1-30(3)); failure to stop when signaled by a law enforcement vehicle resulting in death (Section 56-5-750(C)(2)); interference with traffic-control devices, railroad signs, or signals resulting in death (Section 56-5-1030(B)(3)); hit and run resulting in death (Section 56-5-1210(A)(3)); felony driving under the influence or felony driving with an unlawful alcohol concentration resulting in death (Section 56-5-2945(A)(2)); putting destructive or injurious materials on a highway resulting in death (Section 57-7-20(D)); obstruction of a railroad resulting in death (Section 58-17-4090); accessory before the fact to commit any of the above offenses (Section 16-1-40); and attempt to commit any of the above offenses (Section 16-1-80). Only those offenses specifically enumerated in this section are considered violent offenses.

 

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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