As opioid overdoses in Vermont continue to set records year after year, politicians appear likely to update the state’s laws around fentanyl, the drug responsible for the vast majority of deaths.
Given the current prevalence of fentanyl in the country’s illicit drug supply, proposed legislation would help prevent accused drug dealers from feigning ignorance that the drugs they sold contained the potent opioid. And because the opioid drug supply contains a mixture of substances such as the animal tranquilizer xylazine, new laws may also prevent drug mixtures from evading fentanyl- or opioid-related prosecution.
Current drug laws include a “knowing” component. The person charged with selling or possessing a controlled substance must have “knowingly” done so.
In some cases, the “knowingly” aspect has led to dropped charges when those accused of dealing fentanyl have argued they believed they were selling heroin or a generic mix of “downers.”
Here’s how one case proceeded: In 2022, a confidential informant twice purchased drugs from Shane Tie, each time requesting both “up” — cocaine — and “down” — heroin or fentanyl, according to a sworn affidavit.
While the “up” tested positive for methamphetamine both times, the “down” tested conclusively positive for fentanyl once, court documents show. A subsequent search of Tie’s residence in Springfield discovered additional fentanyl, the affidavit indicates.
But when the Windsor County State’s Attorney’s Office submitted the affidavit for probable cause to charge Tie with selling both fentanyl and meth, Vermont Superior Court Judge John Treadwell deferred a finding of probable cause on the fentanyl trafficking charge. Soon after, Treadwell disposed of the fentanyl charge altogether, citing a lack of probable cause, court records show.
While court documents do not explicitly state why the fentanyl charge was dropped, nowhere in the state’s affidavit does it say Tie knowingly sold fentanyl. Instead, based on the affidavit, he supplied a confidential informant with “down.”
The “knowingly” aspect of Vermont’s fentanyl statute also played a central role in a 2020 Vermont Supreme Court appeal of a fentanyl sale charge.
Jacob Rillo appealed his guilty plea for fentanyl and heroin sale with death resulting, arguing it lacked a factual basis because he was not aware at the time of the sale that the bag of heroin he’d sold contained fentanyl. The court ultimately sided with Rillo, writing that “because defendant did not admit that he knew at the time of the offense that the drug contained fentanyl, there was no factual basis for the plea.”
In recent years, lawmakers and state officials alike have made some effort to rework the “knowingly” component of Vermont’s fentanyl statute to more accurately account for the frequent mixture of substances in the drug supply.
Vermont’s Community Violence Prevention Task Force, authorized by Gov. Phil Scott in 2018, released a white paper earlier this year advocating for altering the definition of “knowingly” and for strengthening laws regarding the sale of drugs with death resulting.
Legislators in both chambers proposed the same suggestions earlier this year.
H.312, introduced last session by three Republican lawmakers, would have changed the definition of “knowingly” possessing or distributing to “consciously ignoring a substantial risk that one or more preparations, compounds, mixtures, or substances contains” a regulated substance in question.
The bill would also have expanded the definition of fentanyl to include mixtures of substances that contain fentanyl.
S.58, introduced by Sen. Dick Sears, D-Bennington, proposed the same changes.
Although both bills received minimal attention last session, Sears, chair of the Senate Judiciary Committee, said in an interview that he plans to take up S.58 in January.
“This is not as simple as it might sound. The intent issue is huge,” Sears said of altering the “knowingly” component of Vermont’s drug laws. “Most criminal laws require some knowing intent.”
The Bennington County senator said conversations with his local state’s attorney and with Gov. Scott’s legal team alerted him to the need for new legislation.
Sears also said that a spate of xylazine-involved overdoses in Bennington earlier this year further highlighted the need for the state’s laws to address drug combinations.
“It’s very concerning to me,” he said of the xylazine and fentanyl now found in Vermont’s illicit opioid supply. “Did the dealers know? I suspect they did. But proving it might be difficult.”
Will his bill pass? Sears said lawmakers across the political spectrum agree that fentanyl needs to be newly addressed in law.
“I think there’s general agreement that something needs to change.”