Fentanyl drug crime prosecutions on the rise

We have noticed a dramatic spike in the number of fentanyl, furanyl fentanyl and other synthetic opioid prosecutions by the Department of Justice in states across the country. In fact, our firm was recently hired to represent clients in Georgia, Florida, and Alabama who are facing drug conspiracy charges involving fentanyl.

Federal law enforcement’s increased focus on fentanyl is undoubtedly due to a change in the Department of Justice’s drug policies as well as concerns related to the heroin epidemic and related overdoses that have been steadily growing over the past few years.

Fentanyl is a powerful opioid (about 50 times more powerful than heroin) and is often prescribed for the treatment of pain in cancer patients.  There are also many fentanyl analogues (slightly altered versions of fentanyl) which can be even stronger than regular fentanyl.  Under federal law, fentanyl is classified as schedule II drug (the same as cocaine and methamphetamine).  Anyone who is charged with possessing, distributing, or conspiring to distribute fentanyl or fentanyl analogues faces stiff penalties.

For instance, a first time offender who is convicted of a drug conspiracy involving 40 to 399 grams of a mixture containing fentanyl faces anywhere from five to forty years in prison.  If a death or serious injury occurs as a result of someone using the fentanyl, the penalties skyrocket from a mandatory minimum sentence of twenty years in prison to life in prison.  Cases involving quantities of more than 400 grams carry even steeper penalties.  And surprisingly, cases involving fentanyl analogues typically carry more severe sentences than cases involving regular fentanyl.

The harsh sentencing structure for fentanyl drug offenses is especially problematic due to a recently released memo from the Department of Justice.  The Department of Justice’s memo essentially orders prosecutors to charge individuals accused of drug crimes with the most severe offenses possible.  This new policy strips prosecutors of their discretion to charge individuals with lower quantities of fentanyl.  The result is that many defendants in fentanyl cases will likely face many more years in prison if convicted.

The Department of Justice’s crackdown on fentanyl has unfortunately ensnared many pain patients who were lawfully taking fentanyl as well as pain physicians who were lawfully prescribing the drug.  This increased effort to prosecute fentanyl cases has also led to many innocent people being charged as members of a drug conspiracy.

Based on our experience, an effective defense in these cases will focus on searches and seizures of evidence that may be subject to suppression due to a search or seizure that occurred without a proper warrant or probable cause. We have also focused, especially in fentanyl cases, on the requirement that the government prove the type and quantity of the drug through verifiable lab tests. There is a lot of confusion right now about what drugs may or may not be covered by the relevant drug schedules. We review all the evidence and lab reports to make sure the government actually has what they say they have.

If you or someone you know has been charged in a federal case with possessing, distributing or manufacturing fentanyl or some analogue or other synthetic opioid, we may be able to help.

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