Pelton and Mullica seek to stiffen penalties for drug deals resulting in death

Senators Byron Pelton, R-Sterling, and Kyle Mullica, D-Thornton, won approval from a Senate committee last week for a measure that will impose higher penalties for those who deal in Schedule I or II drugs that result in death. 

The bill mirrors the penalties included in last year’s fentanyl bill to include heroin, LSD, marijuana, meth, Ecstasy, Quaaludes, peyote, Vicodin, cocaine, methadone, Dilaudid, Demerol, OxyContin, Adderall and Ritalin.

Senate Bill 109 passed on a 3-2 bipartisan vote, with Sen. Dylan Roberts, D-Eagle, an assistant district attorney in Eagle County, voting with the Republicans on the Senate Judiciary Committee. The bill now heads to the full Senate.

Witnesses testified about the horrors of drug abuse, including in northeastern Colorado, and that the penalties for drug dealing are not high enough.

Terry Hofmeister, a Phillips County Commissioner, told the committee about his niece, who overdosed last November. He doesn’t know if the dealer that gave her the drugs that cost her her life will ever be caught.

“She fought demons for several years” but had gotten clean, even helping with Narcan distribution in Phillips County. “Everything was good.”

But once you have that demon it’s hard to fight, he added, and she lost her life.

“The penalty for drug dealers could never be harsh enough for me,” Hofmeister said, asking the committee to hold drug dealers accountable to the maximum of what they can be charged, and more than just a slap on the wrist. “They make a lot of money, can hire the best lawyers and then walk away. That’s unacceptable to me.”

In Logan County, six times a parent has died because someone dealt drugs, and that means kids who have lost a parent, according to Dave Long, the Director of Human Services. The last two deaths were due to fentanyl, and those kids wound up on the streets, although eventually ending up in residential care.

Mullica, who is a registered nurse who works in the emergency room at a Denver area hospital, said that his community has been clear: if someone comes into the community and deals in drugs that kills someone, there should be a significant consequence.

That doesn’t mean that resources shouldn’t be devoted to mental health or harm reduction or addiction treatment, nor does it mean that someone shouldn’t get treatment for an addiction. 

"They do not want us to throw our hands in the air and do nothing," he said. 

Pelton said his district is dealing with a significant meth problem and is trying to find resources to provide treatment. “We’ve dealt with it in different ways,” including getting more resources to northeastern Colorado, including treatment.

“However, there must be consequences when somebody dies," he said, especially when it comes to criminal behavior. 

District attorneys testified that they’re finding that overdoses are caused by a mix of drugs, and for right now, there’s one penalty for causing a death from fentanyl and a different one for other drugs. Coroners can’t tell which is the cause of death, only that it’s an overdose, and that makes it harder for district attorneys to determine what to charge. That’s a result of the 2022 legislation, they said.

District Attorney Travis Sides of the 13th Judicial District, which covers northeastern Colorado, also spoke in support of the bill and on behalf of the Colorado District Attorneys’ Council.

For decades, people have been dying from meth and other substances, and while fentanyl has been highlighted, it’s only half the problem. In his district, most of the drug cases are for meth; few for fentanyl. This bill makes the law consistent: if you sell an illegal substance that causes someone’s death, it makes no sense to “split hairs” over the exact chemical component of that substance, whether it’s meth, fentanyl or something else. 

The senators brought a significant amendment to capture Good Samaritan language, which allows someone who is sharing drugs with another person to avoid criminal prosecution if the person overdoses. That’s only if the person sharing the drugs calls 911, stays on the scene and cooperates with first responders. It does not apply to dealers and that’s determined by the quantity of drugs.

Those testifying against SB 109 include those in the harm reduction community, who claim that the bill will keep those who are sharing drugs from calling for help in an overdose situation. 

Dr. Sarah Axelrath, a physician who deals with addiction, spoke on behalf of the Colorado Coalition for the Homeless. Her number one concern is to keep her patients alive, and said SB 109 will lead to more fatal overdoses. She pointed out that Mullica, as a registered nurse, knows what happens to people when they overdose and don’t get help, which earned her a rebuke from the committee chair, as witnesses are not allowed to speak about lawmakers’ motives.

Overdosing is a high-stakes medical emergency and people who use drugs are the best allies when it comes to saving lives because they act as the first responders. She encourages her patients to not be alone when they’re using, have Naloxone on hand and to know CPR.

If SB 109 passes, “how can we expect people using banned drugs to call 911 and administer aid in an overdose, knowing they can be charged with homicide?” she asked. “It’s mixed messaging,” she said. This is not effective drug control policy and will not save lives.

The bill also has strong opposition from the Senate’s majority Democrats. Two of the committee’s three Democrats voted against it, and both Senate President Steve Fenberg of Boulder and Senate Majority Leader Dominick Moreno of Commerce City told reporters they would vote against it. 

Four gun control bills won support from majority Democrats in both the House and Senate in the past week. 

The House, following a 14-hour filibuster that started Thursday afternoon and wound up early Friday morning, gave preliminary approval to House Bill 1219, which would establish a three-day waiting period between when someone purchases a firearm and when they can take delivery. 

On Saturday, the House signed off on the bill on a 44-20 vote, with three Democrats voting with the Republicans. 

The most significant change to the bill came at the behest of an amendment offered by House Minority Leader Mike Lynch, R-Wellington. That change was to remove the bill’s safety clause, which would allow it to become law with the Governor’s signature.

Instead, the bill now has a petition clause, which would delay its implementation until Oct. 1, 2023, unless citizens launch a petition drive to put the matter in front of voters at the next appropriate general election, which would be in 2024. 

That’s only happened twice in the last 100 years, in 1932 on a bill regarding oleomargarine, and in 2020, when Republicans challenged the state’s participation in National Popular Vote. The two Republicans who launched that ballot measure, which ultimately upheld the decision of the General Assembly, are now part of the House Republican caucus.

HB 1219 now heads to the Senate. 

In the Senate, three bills cleared the Senate State, Veterans and Military Affairs Committee and won preliminary approval on Friday from the full Senate.

Senate Bill 170 would expand the list of those who can seek an extreme risk protection order, aka the red flag law, to include district attorneys, teachers at the K-12 and higher education level and health care providers, including mental health professionals. 

Senate Bill 168 would allow victims of gun violence to sue firearms manufacturers or dealers in civil court. It’s a work-around to the 2005 federal law that has largely shielded firearms manufacturers from lawsuits when their weapons are illegally used to kill.

Senate Bill 169, also sponsored by Mullica, would raise the age limit for most firearms purchases from 18 to 21. During the bill’s state affairs committee hearing, Mullica brought an amendment to address some, but not all, of the concerns around exemptions.

Under the bill as introduced, the exemptions applied only to those in active-duty military, law enforcement or hold hunting licenses. 

Young people testified that the bill would conflict with the state Division of Parks and Wildlife hunter education programs, some which allow youth as young as 10. Others testified that the bill would not allow young people to defend livestock against predators.

The amendment added in exemptions for hunter education, target or shooting sports and provided an “affirmative defense” for a young person defending livestock. Under that scenario, however, a person could still be arrested but would be allowed to use that defense to drop the charges.  Mullica told this reporter that the language mirrors other state law, such as the safe storage law from 2021. 

However, when the bill came up in the state Senate on Friday, Mullica offered a rewrite, and in that rewrite dropped the affirmative defense in favor of a straight exemption for defense of livestock. 

All three passed the Senate on Monday and now head to the House.