South Carolina passed a new fentanyl trafficking law in June of 2023 which includes new crimes and penalties for:
- Trafficking in fentanyl,
- Possession of fentanyl, and
- Possession of a firearm if you have been convicted of a serious drug offense.
Fentanyl overdoses have become a major problem in our state – it is a synthetic opioid with effects like morphine and heroin except it is much stronger and users are much more likely to overdose on their drug of choice when it is cut with fentanyl. The drug has been used as a tranquilizer for elephants if that tells you anything…
Below, we will look at SC’s new fentanyl trafficking law including the definition of fentanyl and potential penalties for the new offenses.
Fentanyl Trafficking in SC – Definitions and Penalties
Although SC law prohibited heroin, morphine, and other “salts or isomers” of opium, it did not expressly prohibit fentanyl – that is what the new fentanyl trafficking bill aimed to fix.
The new law adds fentanyl to the list of prohibited drugs in SC’s trafficking statute, SC Code § 44-53-370(e).
Possession of four grams or more of fentanyl, any mixture containing fentanyl (if your cocaine is cut with fentanyl, you will be charged with trafficking in fentanyl which will carry greater penalties than trafficking in cocaine), or any fentanyl-related substances, you will be charged with the offense of fentanyl trafficking).
The potential penalties for fentanyl trafficking are the same as the penalties for heroin trafficking:
(a) four grams or more, but less than fourteen grams:
- for a first offense, a term of imprisonment of not less than seven years nor more than twenty-five years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;
- for a second or subsequent offense, a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of one hundred thousand dollars;
(b) fourteen grams or more but less than twenty-eight grams, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars;
(c) twenty-eight grams or more, a mandatory term of imprisonment of not less than twenty-five years nor more than forty years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars.
Definition of Fentanyl Under SC’s New Fentanyl Trafficking Bill
The new law also defines “fentanyl-related substances:”
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.
Fentanyl Possession in SC – Definitions and Penalties
The new law also creates the crime of “fentanyl possession” which is a bit different from other drug possession laws in SC.
Possession of heroin, for example, is usually charged when a person possesses less than two grains (grains not grams) of heroin. Two grains or more create an inference that the person intended to distribute the drug, and so law enforcement will usually charge a person with PWID (possession with intent to distribute) heroin when they possess two grains or more.
The new fentanyl law says:
- Possession of two grains or more of fentanyl creates an inference of PWID (which makes no sense, because the law does not create an offense for PWID fentanyl), and
- Possession of two grains or more of fentanyl is simple possession of fentanyl.
Possession of two grains or more of fentanyl carries the same penalties as PWID heroin – effectively removing the requirement that the state prove intent to distribute and punishing possession as if it were PWID.
The penalties for possession of fentanyl include:
- First offense: up to five years/ felony,
- Second offense: up to ten years/ felony, and
- Third offense: up to fifteen years/ felony.
There are no offenses for PWID fentanyl, manufacturing fentanyl, or distribution of fentanyl in the new law.
SC’s New Felony Possession Law – No Firearms if You Have Drug Convictions
The new fentanyl trafficking law also creates a new crime for “any person 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.”
wFelony possession of a firearm under the new SC Code § 44-53-379 is a felony that carries up to five years in prison.
Drug Crime Lawyers in Myrtle Beach, SC
If you have been charged with a drug crime in SC including fentanyl trafficking or fentanyl possession, call the Myrtle Beach drug defense attorneys at Coastal Law now at (843) 488-5000 or fill out our online form to set up a free consultation about your case.