Bill Description: House Bill 233 would impose mandatory minimum sentences for possession of fentanyl, including small amounts of substances containing trace amounts of fentanyl.

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NOTE: House Bill 233 is related to House Bill 67, introduced earlier this session. 

Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

Idaho law contains mandatory minimum sentencing for what it terms "trafficking" in certain controlled substances. The definition of trafficking is based solely on the quantity possessed and does not require the state to prove any intent to distribute. 

This mandatory minimum sentencing law is applied "notwithstanding any other provision of law" and provides no room for judicial discretion, saying, "adjudication of guilt or the imposition or execution of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum fixed term of imprisonment prescribed in this section. Further, the court shall not retain jurisdiction."

House Bill 233 would amend this language and several other subsections to apply the mandatory minimum sentences to second or subsequent offenses instead of to all offenses under this section. Judges would still be allowed to impose these harsh sentences on first offenses, but they would no longer be required to do so.

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House Bill 233 would amend Section 37-2732B, Idaho Code, regarding possession of heroin, to increase the threshold required to trigger the term “trafficking” and the minimum sentencing provision: It would go from 2 grams of heroin to 28 grams. It would also align the minimum prison terms for possessing heroin with those for possessing other controlled substances: 5 years for possession of 200 grams or more and 10 years for 400 grams or more. 

These changes would make it less likely that possessing heroin for personal use will be classified as trafficking, but there is still no requirement for the state to prove intent to distribute.

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House Bill 233 would further amend Section 37-2732B, Idaho Code, to classify possession of certain quantities of fentanyl as trafficking and to impose mandatory minimum sentencing on those convicted of violating this statute.

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Beyond the inherent problems with classifying possession as trafficking and disallowing any degree of judicial discretion in sentencing, there are significant problems with how fentanyl is defined in this new language. 

It says, "Any person who knowingly manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, seven (7) grams or more of … fentanyl, … fentanyl-related substances, … or any mixture or substance containing a detectable amount of any such substance is guilty of a felony, which felony shall be known as 'trafficking in fentanyl.'"

A plain reading of this language suggests that possessing 7 grams or more of any substance containing a "detectable amount" of fentanyl will be regarded as trafficking in fentanyl itself. The limit of detection for Fentanyl test strips is between 0.1 and 0.15 mcg/mL. This means that possessing a tablespoon (7.8 grams) of an inert substance such as flour would trigger the provisions of this law if it contained just 1.5 mcg (micrograms) of fentanyl. 

There is a significant difference between 7 grams of pure fentanyl and 7 grams of any substance containing a "detectable amount" of fentanyl. 

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The mandatory minimum sentencing requirements are directly tied to the quantity of fentanyl possessed, but these quantities are measured using the problematic standard discussed above. The mandatory minimum sentencing requirements can also be triggered by possessing certain quantities of pills: 3 years in prison and a $10,000 fine for 100 pills or more; 5 years in prison and a $15,000 fine for 250 pills or more; and 10 years in prison and a $25,000 fine for 500 pills or more. But there is no clear definition of how much fentanyl each pill would need to have to trigger this provision. 

Assuming the "detectable amount" standard is applied, it is quite possible that someone who possesses pills containing some other substance (either legal or illegal) but laced with trace amounts of fentanyl could be prosecuted under this law.

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