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fentanyl vote

A screen in the House of Delegates displays the votes for HB 2184.

CHARLESTON — A bill to create penalties for people who possess fentanyl and who expose certain people to it passed the West Virginia House of Delegates on Monday and now advances to the Senate.

With four members absent, only two members of the House — Delegates Mike Pushkin, D-Kanawha, and Barbara Fleischauer, D-Monongalia — voted against the bill.

Lawmakers — in a committee meeting last week and in discussions on the House floor Monday — did not hear from medical experts, toxicologists or anyone who specializes in fentanyl use, including those who widely assert that “passive exposure” to fentanyl is rarely dangerous.

According to a 2018 study by the American College of Medical Toxicology and the American Academy of Clinical Toxicology, “incidental dermal absorption is very unlikely to cause opioid toxicity. Toxicity cannot occur from simply being in proximity to the drug.”

The proposed law was first introduced in 2020 but was not taken up by any committee. In 2021, the bill quickly passed the House but died in the Senate Judiciary Committee.

The bill, sponsored by Delegates Larry Pack, R-Kanawha, and Dr. Matthew Rohrbach, R-Cabell, who specializes in internal medicine, would levy a misdemeanor charge and up to a $500 fine and one year in jail for anyone found to illegally possess fentanyl or another “harmful drug” or “chemical agent” and who exposes “government representatives” to it. If that exposure causes “physical harm,” the charge would be upgraded to a felony and the person could face up to five years in jail and a $2,000 fine.

Government representatives are identified as health care workers, utility workers, emergency service personnel, correctional employees or law-enforcement officers acting in their official capacity. The bill does not define what constitutes a harmful drug, what “exposure” entails or what qualifies as “physical harm” due to said exposure.

It is already illegal in West Virginia to possess fentanyl or other controlled substances without a prescription.

Legal counsel for the House Committee on Health and Human Resources said last week that prosecutors likely would be able to argue that anyone in possession of fentanyl who is apprehended by a law enforcement officer, or who has it on their person in certain situations, could be subject to the charges, were the bill to become law. This could stand, he said, even if the person is cooperative with police and alerts them to the drugs before they are searched.

An amendment introduced by Pushkin and adopted by the House on Friday would make certain people — namely those who help an overdose victim and are cooperative with responsive agencies, including police and EMS — immune from certain prosecution.

This protection, offered through the public health section (Chapter 16) of West Virginia state code, extends to people who are in need of emergency services, as long as they “participate in, comply with, and complete” a substance abuse treatment or recovery program approved by the court. In these cases, the court also may consider “alternative sentencing” and “clemency” options for the person, according to the code.

News reports of police officers and other first responders having severe adverse reactions, including alleged overdoses, after coming into casual contact with fentanyl have been widely circulated in recent years.

In August, a group of more than 400 drug experts from across the United States signed a letter urging news outlets and law enforcement groups to issue corrections on what they said were erroneous reports regarding fentanyl exposure, which often were not fact-checked and never provided evidence that the drug was responsible for any adverse reactions.

Those most at risk for experiencing harm related to fentanyl are people who — knowingly or unknowingly, as the drug is cheaper to manufacture and is often used to cut other, more expensive drugs — ingest it.

In West Virginia between 2019 and 2020, the number of fatal overdoses involving fentanyl increased 85%, from 518 to 955, according to data from the Department of Health and Human Resources. The drug was found in 75% of all overdoses in the state over that same period.

There are no known reports of first responders in West Virginia, or elsewhere, having died from or suffered bodily harm from fentanyl exposure on their skin or in their proximity.

Caity Coyne covers health for HD Media. She can be reached at 304-348-7939 or Follow @CaityCoyne on Twitter.

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