AN ACT relating to controlled substances; establishing the crimes of trafficking and high-level trafficking in illicitly manufactured fentanyl, any derivative of fentanyl or any mixture which contains illicitly manufactured fentanyl or any derivative of fentanyl; establishing the crime of intentional misrepresentation of a fentanyl product; requiring each state and local law enforcement agency and the Nevada Sentencing Commission to submit certain reports to the Joint Interim Standing Committee on the Judiciary; requiring, to the extent that money is available, the establishment of certain programs to provide certain offenders or prisoners who have a substance use disorder with medication-assisted treatment; requiring the Joint Interim Standing Committee on the Judiciary to conduct an interim study concerning certain matters relating to forensic laboratories; providing penalties; and providing other matters properly relating thereto.

Existing law provides that a person who knowingly or intentionally sells, manufactures, delivers or brings into this State or is knowingly or intentionally in actual or constructive possession of a schedule I controlled substance, other than marijuana, a schedule II controlled substance or certain other controlled substances is guilty of: (1) low-level trafficking if the quantity of the controlled substance is 100 grams or more but less than 400 grams; and (2) high-level trafficking if the quantity of the controlled substance is 400 grams or more. A person who commits the crime of: (1) low-level trafficking is guilty of a category B felony and subject to certain prescribed penalties; and (2) high-level trafficking is guilty of a category A felony and subject to certain prescribed penalties. (NRS 453.3385) Existing regulations of the State Board of Pharmacy include fentanyl in the list of controlled substances in schedule II and various derivatives of fentanyl in the list of controlled substances in schedule I. (NAC 453.510, as amended by LCB File No. R023-21, NAC 453.520) Section 1.5 of this bill establishes the crimes of trafficking and high-level trafficking in illicitly manufactured fentanyl, any derivative of fentanyl or any mixture which contains illicitly manufactured fentanyl or any derivative of fentanyl. Under section 1.5, a person who knowingly or intentionally sells, manufactures, delivers or brings into this State or is knowingly or intentionally in actual or constructive possession of illicitly manufactured fentanyl, any derivative of fentanyl or any mixture which contains illicitly manufactured fentanyl or any derivative of fentanyl is guilty of: (1) trafficking if the quantity involved is 28 grams or more but less than 42 grams; and (2) high-level trafficking if the quantity involved is 42 grams or more but less than 100 grams. Under section 1.5, a person who commits the crime of trafficking or high-level trafficking is guilty of a category B felony and subject to certain prescribed penalties. Section 1.7 of this bill establishes the crime of intentional misrepresentation of a fentanyl product. Under section 1.7, a person who sells to another person a mixture containing fentanyl and another controlled substance is guilty of intentional misrepresentation of a fentanyl product if the person: (1) knows that the mixture contains fentanyl; and (2) intentionally fails to inform the purchaser that the mixture contains fentanyl. Section 1.7 provides that such a person is guilty of a category B felony and subject to certain prescribed penalties. Sections 2, 5 and 6 of this bill provide that a person found guilty of intentional misrepresentation of a fentanyl product or trafficking or high-level trafficking in illicitly manufactured fentanyl, any derivative of fentanyl or any mixture which contains illicitly manufactured fentanyl or any derivative of fentanyl is subject to the greater penalty for that crime if the acts constituting the crime could subject the person to a lesser punishment under another statute. Sections 3-13 of this bill add references to section 1.5 so that the crimes of trafficking and high-level trafficking in illicitly manufactured fentanyl, any derivative of fentanyl or any mixture which contains illicitly manufactured fentanyl or any derivative of fentanyl are treated the same as the crimes of low-level and high-level trafficking involving schedule I controlled substances, other than marijuana, and schedule II controlled substances for certain purposes. Section 12 adds a reference to section 1.7 so that the crime of intentional misrepresentation of a fentanyl product is treated the same as the crime of selling other controlled substances for certain purposes. Existing law prohibits, with certain exceptions, a court from suspending the sentence of a person convicted of trafficking in a controlled substance. (NRS 453.3405) Section 9 extends this prohibition to a person found guilty of trafficking or high-level trafficking in illicitly manufactured fentanyl, any derivative of fentanyl or any mixture which contains illicitly manufactured fentanyl or any derivative of fentanyl. Section 9 provides an exemption from this prohibition if the person convicted establishes, by a preponderance of the evidence, that he or she did not know that the mixture at issue contained illicitly manufactured fentanyl. Existing law provides that a person who, in good faith, seeks medical assistance for a person who is experiencing a drug or alcohol overdose or other medical emergency or who seeks such assistance for himself or herself, or who is the subject of a good faith request for such assistance may not be arrested, charged, prosecuted or convicted, or have his or her property subjected to forfeiture, or be otherwise penalized for violating certain provisions of existing law governing controlled substances if the evidence to support the penalty was obtained as a result of the person seeking medical assistance. (NRS 453C.150) Section 10 of this bill includes trafficking and high-level trafficking in illicitly manufactured fentanyl, any derivative of fentanyl or mixture that contains illicitly manufactured fentanyl or any derivative of fentanyl among the offenses for which a person may not be penalized under such circumstances. Existing law requires the Director of the Department of Corrections to establish one or more programs of treatment for offenders with substance use or co-occurring disorders who have been sentenced to imprisonment in the state prison. (NRS 209.4236, 209.425) Existing law additionally provides that the treatment of a prisoner in a local jail or detention facility who has a substance use disorder may include medication-assisted treatment. (NRS 211.140) Section 12.3 of this bill requires the Director, to the extent that money is available, to establish a program to provide for the treatment of offenders with a substance use disorder using medication-assisted treatment. Section 12.3 requires: (1) the program to provide each eligible offender who participates in the program with appropriate medication-assisted treatment for the period in which the offender is incarcerated; and (2) each offender who the Director has determined has a substance use disorder for which a medication-assisted treatment exists and who meets any reasonable conditions imposed by the Director to be deemed eligible to participate in the program and offered the opportunity to participate. Section 12.3 prohibits the Director from denying an offender the ability to participate in the program or terminating his or her participation in the program for certain reasons. Finally, section 12.3 provides that an offender who participates in the program is not subject to discipline on the basis that the results of a screening test administered to the offender indicated the presence of a controlled substance. Section 12.7 of this bill requires, to the extent that money is available, a sheriff, chief of police or town marshal who is responsible for a county, city or town jail or detention facility to establish a program similar to that set forth in section 12.3 to provide for the treatment of prisoners with a substance use disorder using medication-assisted treatment. Section 1.8 of this bill requires each state and local law enforcement agency and the Nevada Sentencing Commission to submit to the Joint Interim Standing Committee on the Judiciary on or before March 1 and October 1 of each even-numbered year a report containing certain information regarding: (1) persons who have been charged with trafficking or high-level trafficking in illicitly manufactured fentanyl, any derivative of fentanyl or any mixture that contains illicitly manufactured fentanyl or any derivative of fentanyl or intentional misrepresentation of a fentanyl product; (2) programs for the treatment of persons incarcerated in the state prison or a county, city or town jail or detention facility; and (3) drug overdoses that resulted in the death of certain persons which were due to fentanyl or a controlled substance analog for fentanyl. Section 14 of this bill requires the Joint Interim Standing Committee on the Judiciary to conduct a study during the 2023-2024 interim concerning the possible upgrading of forensic laboratories in this State to enable such laboratories to perform quantitative testing involving controlled substances.