If you are paying attention to the news, you may think that South Carolina has a brand-new fentanyl trafficking law that, for the first time, allows law enforcement to arrest drug dealers for trafficking fentanyl, with more severe penalties than ever before for a drug crime in our state.
Much of that is not true.
We do, however, have a new law that criminalizes the possession and trafficking of fentanyl. Below, I’ll look at the details of SC’s new fentanyl trafficking law, including:
- Potential penalties for fentanyl trafficking,
- Potential penalties for other fentanyl crimes in SC, and
- A breakdown of the lies SC’s governor and other elected officials are telling you about the new fentanyl bill.
What are the “New” Penalties for Fentanyl Trafficking in SC?
SC’s new fentanyl laws went into effect June 15, 2023, and they include new crimes for:
- Possession of fentanyl,
- PWID, manufacturing, or distribution of fentanyl,
- Trafficking fentanyl, and
- Possession of a firearm by persons who have been convicted of PWID, manufacturing, distribution, or drug trafficking.
Definition of Fentanyl in South Carolina
The new fentanyl laws in SC include a definition of what fentanyl is:
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.
Simple Possession of Fentanyl
Although all the media hype is about “fentanyl trafficking” – it’s called the fentanyl trafficking bill, and every media article about the new law calls it the fentanyl trafficking law and talks about how fentanyl couldn’t be prosecuted before now…
The Bill is a bit confusing, but it adds new crimes for 1) possession of fentanyl (but not PWID, distribution, or manufacturing), and 2) trafficking fentanyl.
Under subsection 44-53-370(d)(4), possession of two grains (as with heroin, this is grains, not grams) or more of fentanyl is punishable by:
- 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.
That’s the same as the penalties for PWID heroin. Then, under the new 44-53-370(d)(5), possession of two grains or more of fentanyl, as with heroin, creates an inference of possession with intent to distribute.
The bill does not, however, specify a penalty for PWID fentanyl. Presumably, the state will only need to prove possession of two grains or more of fentanyl to impose the same penalties as PWID heroin.
So, if I’m reading the Bill correctly:
- It sets a penalty for possession of two grains or more of fentanyl,
- Possession of less than two grains of fentanyl is not a crime,
- It creates the offense of possession with intent to distribute (PWID) fentanyl,
- But does not set a penalty for PWID fentanyl, and
- It does not create a crime for or set a penalty for distribution or manufacturing of fentanyl.
PWID, Manufacturing, Distribution of Fentanyl
This is not a crime under the new fentanyl law. Presumably, anyone who possesses fentanyl with the intent to distribute, distributes, or manufactures fentanyl can be prosecuted for simple possession of fentanyl, which carries the same penalty as PWID, distribution, or manufacturing heroin.
Possession of fentanyl covers the possession of two grains (but not less than two grains) up to four grams of the drug.
Fentanyl Trafficking Penalties
The bill also creates the offense of trafficking in fentanyl, which carries the exact same penalties that trafficking in heroin already carried:
- 4-14 grams – mandatory minimum sentence of seven and up to 25 years,
- Second offense – 25 years,
- 14-28 grams – 25 years,
- 28 grams or more – mandatory minimum sentence of 25 and up to 40 years.
Myths and Lies from Our State Government About the New Fentanyl Trafficking Law
It’s amazing how SC’s leadership can take something that was positive and necessary, and… lie about it.
Probably the general public has no idea that law enforcement was already arresting fentanyl dealers and charging them with trafficking in heroin, or that the new penalties for trafficking fentanyl are exactly the same as the old penalties for trafficking heroin.
Something had to be done, though, because people are dying from fentanyl overdoses. There are all these people in elected positions who we are looking at to do something, and, since most people have no idea how SC’s drug laws worked in the first place, those elected officials have no problem lying to their constituents about how they are getting “tough on crime.”
There was no Way to Prosecute Fentanyl Trafficking Before
The governor, legislators, and law enforcement leadership are all talking as if they had no way to arrest fentanyl traffickers before…
What they aren’t telling you is that fentanyl is almost always mixed with other types of drugs – most often heroin, and, when heroin or any other drug is “cut” with another substance, the person is still prosecuted for the heroin, including the total weight of the drug and the added “cut.”
Heroin + baking soda? The person is prosecuted for the total weight of the heroin and the baking soda.
Heroin + fentanyl? The person is prosecuted for the total weight of the heroin and the fentanyl – and the penalties for heroin were already the same as the new penalties for trafficking fentanyl.
Just pure fentanyl? Arguably, it was already covered under the heroin law – “four grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four grams or more of any mixture containing any of these substances, is guilty of a felony which is known as “trafficking in illegal drugs.”
It’s a question for a chemist, but isn’t fentanyl a “salt, isomer, or salt of an isomer” of opium just as heroin is?
Did they need to add new language to specifically address fentanyl? Maybe, for cases that involve the possession, distribution, or trafficking of pure fentanyl with no added heroin, although SC courts have not addressed whether the old statutory language covers fentanyl.
But what if they had simply amended the language I quoted above?
“…four grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, [and including fentanyl]…”
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The Thompson and Hiller Defense Firm only accepts criminal defense cases including any kind of SC drug charges.
If you have been charged with simple possession, possession with intent to distribute, distribution, or trafficking of marijuana, cocaine, heroin, fentanyl, or any drug, call the Thompson & Hiller Defense Firm at (843) 444-6122 or contact us online to find out how we can help.
