Fentanyl Trafficking in South Carolina – Penalties for Fentanyl Possession and Fentanyl Trafficking

The governor “ceremonially signed” a new fentanyl trafficking law in SC last week that criminalizes 1) possession of more than two grains of fentanyl, 2) trafficking in fentanyl, and 3) possession of a firearm by convicted drug offenders.

The governor ceremonially signed the bill because it was actually signed, and went into effect, back in June of this year.

Overdoses caused by fentanyl have become an epidemic in South Carolina, and our state’s elected officials need the public to see that they are “doing something.” Like ceremonially signing a fentanyl trafficking bill for the media as they pretend that they have been unable to arrest fentanyl traffickers before now…

Below, I’ll cover the basics of SC’s new fentanyl trafficking law, including:

• The penalties for fentanyl possession,
• The penalties for fentanyl trafficking, and
• How law enforcement was already charging people with fentanyl in SC.

Penalties for Fentanyl Trafficking in South Carolina

Fentanyl trafficking in South Carolina is defined the same as drug trafficking with other types of controlled substances – in most cases, the offense of trafficking will be based on the weight of the drugs, although the crime can also be based on conspiracy.

The threshold weight for trafficking, found in SC Code §44-53-370(e), is the same as for heroin:

• 7-25 years for a first offense trafficking 4-14 grams of fentanyl,
• 25 years for a second offense trafficking 4-14 grams of fentanyl,
• 25 years for trafficking 14-28 grams of fentanyl, and
• 25-40 years (the highest penalty for any drug offense in South Carolina) for trafficking 28 grams or more of fentanyl.

Penalties for Fentanyl Possession

The new fentanyl trafficking bill also criminalizes possession of fentanyl, although fentanyl possession is defined differently than heroin possession.

Possession of two or more grains (grains not grams) of fentanyl is punishable by:

• Up to five years for a first offense,
• Up to ten years for a second offense, or
• Up to 15 years for a third offense.

Definition of Fentanyl in SC

The statutory definition of fentanyl is included in the new law:

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.

Was Law Enforcement Really Not Arresting People for Fentanyl Before the Bill Was Passed?

SC politicians have been acting as if law enforcement could not charge people with fentanyl before the new bill was passed. Apparently, when police find fentanyl on a person, they just had to let them go, and this is why people have been overdosing on the drug.

Thankfully, the police can charge people now, and there will be no more overdoses. Right?

No, that’s not really how it works.

SC Code §44-53-370(e)(3)’s definition that covers heroin most likely also covered pure fentanyl (“…morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin…”).

In most cases, however, fentanyl is found in the heroin – dealers will “cut” heroin with fentanyl to make their product stronger. Any “cut” that is included in a mixture is weighed and charged as the drug it is mixed with. For example, if there is one gram of heroin cut with four grams of baking soda, the person is charged with trafficking in heroin – four grams.

Similarly, when heroin cut with fentanyl is found, the person is charged with possession, PWID, or trafficking in heroin – which has the same penalties as fentanyl under the new fentanyl trafficking law.

How is Fentanyl Possession Different from Heroin Possession?

The new fentanyl trafficking law defines “possession of fentanyl” as possession of two or more grains of fentanyl, so it covers two grains up to four grams of fentanyl.

Possession of heroin is usually charged when the person possesses up to two grains of heroin, but the person is usually charged with possession with intent to distribute (PWID) heroin if they possess two or more grains.

The penalties listed for possession of fentanyl are the same as the penalties for PWID, distribution, or manufacturing heroin – the difference is that the state will not need to prove PWID, distribution, or manufacturing fentanyl, only possession, to get the same penalty.

• The fentanyl trafficking bill does not criminalize possession of less than two grains of fentanyl (it will most likely be charged as heroin possession anyway), and
• It does not criminalize possession with intent to distribute (PWID), manufacturing, or distribution of fentanyl (in most cases it can be charged as possession of fentanyl instead, with the same penalties).

Felony Possession of a Firearm

The fentanyl trafficking bill also makes it a felony punishable by up to five years for anyone “who has been convicted of possession with intent to distribute, distribution or delivery of, manufacturing of, or trafficking in a controlled substance as defined in Sections 44-53-370 and 44-53-375, to possess a firearm or ammunition within this State.”

Got Axelrod?

If you have been arrested and charged with possession of fentanyl, fentanyl trafficking, or any drug crime in South Carolina, schedule a free consultation with a Myrtle Beach criminal defense lawyer on the Axelrod team.

Call us at 843-258-4478 or fill out our contact form today.