Fentanyl is classified as an opiate under the California Health and Safety Code, HS 11055(c). It is a synthetic opioid, a class of drugs which, according to the Centers for Disease Control and Prevention (CDC), are involved in a majority of all drug overdose deaths. In the United States, those overdose deaths increased more than 600% in the 20 year period beginning in 1999.
Fentanyl may be prescribed by a doctor. When prescribed, it is typically used to treat “breakthrough pain” in cancer patients. While fentanyl is similar to morphine, it is up to 100 times more potent.
When the drug is prescribed by a doctor, fentanyl can be given by injection, a patch, or a lozenge. Illegally used fentanyl is sold in various forms, including powder, drops, and nasal sprays, as well as pills that may look just like the prescription version of the drug. Illegal fentanyl is also mixed with other drugs (for example heroin, cocaine, meth or MDMA (Ecstasy or Molly)). Fentanyl strengthens the effect of the other drugs with which it is mixed. Illegal possession of fentanyl is a crime under HS 11350.
Fentanyl possession was, at one time, a wobbler, and therefore could be charged as a misdemeanor or a felony. Since Prop 47 became effective in 2014, however, simple possession is ordinarily charged as a misdemeanor, although there are exceptions to that rule. Those exceptions apply to anyone with one or more prior convictions for serious or violent felonies. These include sexually violent offenses; sexual contact or lewd behavior with children under 14; any homicide offense; solicitation to commit murder; certain assaults with a machine gun on police officers or firefighters; possession of a weapon of mass destruction; or any felony punishable by death or by life in prison. Prop 47 sentencing is retroactive and provides a mechanism for those who have already been convicted of drug possession, including possession of fentanyl, to apply for a reduction of the charge to a misdemeanor.
Note that the benefits of Prop 47 do not apply to offenses more serious than simple possession, such as possession or purchase for sale, illegal sale, transportation furnishing, giving away or administering the drug. In these cases, you could be looking at a felony charge carrying a minimum of three years in prison if you are convicted.
As with any other criminal charge, the burden is on the prosecutor to prove each and every element of the offense with which you are charged. Absent proof beyond a reasonable doubt, you are not guilty of the offense. In addition, there are a number of specific defenses that may apply in a fentanyl case, including:
Illegal search and seizure.
If there was no warrant and no probable cause for a search, any evidence obtained as the result of the search may be inadmissible in court.
Lack of knowing possession.
While the drug may have been near you, or even in your car or other area ordinarily under your control, you may have been unaware of its presence.
Lack of proper testing.
If the test to determine that the substance is fentanyl was flawed, for example by use of improper testing procedures, or if there was a failure to maintain proper chain of custody of the substance, you may be entitled to have the evidence excluded, and this may lead to a dismissal of the charge or charges against you.
Other defenses may also apply in your case.
If you have been charged with possession of fentanyl, possession for sale, or any other offense involving fentanyl, you need to speak to a San Diego fentanyl attorney. At RJT Criminal Lawyer, we have the experience to analyze your case and present the most effective defense available. Call for a free and honest evaluation of your case.