An Act to revise provisions related to, and establish the crime of, unauthorized distribution of fentanyl and provide a penalty therefor.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 22-42-2.4 be AMENDED:

22-42-2.4. Notwithstanding subdivision § 22-3-8(1), the punishment for conspiracy to commit a violation of § 22-42-2 is the same as the punishment for violating § 22-42-2, and the punishment for conspiracy to commit a violation of section 2 of this Act is the same as the punishment for violating section 2 of this Act.

Section 2. That a NEW SECTION be added to chapter 22-42:

Notwithstanding § 22-42-2, unauthorized distribution of, or possession with the intent to distribute, four milligrams or more of fentanyl, is a Class 2 felony. Unless waived by the prosecutor, the court shall impose the following penalties based on the amount of fentanyl distributed or possessed:

(1) For four milligrams but fewer than fourteen milligrams of fentanyl, at least three years imprisonment, which sentence may not be suspended, and a mandatory fine of fifty thousand dollars;

(2) For fourteen milligrams but fewer than twenty-eight milligrams of fentanyl, at least fifteen years imprisonment, which sentence may not be suspended, and a mandatory fine of one hundred thousand dollars; and

(3) For twenty-eight milligrams or more of fentanyl, at least twenty-five years imprisonment, which sentence may not be suspended, and a mandatory fine of five hundred thousand dollars.

Section 3. That § 22-42-19 be AMENDED:

22-42-19. Any person who commits a violation of § 22-42-2, section 2 of this Act, 22-42-3, or 22-42-4, or a felony violation of § 22-42-7, is guilty of a Class 4 felony, if such the activity has taken took place:

(1) In, on, or within one thousand feet of real property comprising a public or private elementary or secondary school or a playground; or

(2) In, on, or within five hundred feet of real property comprising a public or private youth center, public swimming pool, or video arcade facility; is guilty of a Class 4 felony.

The sentence imposed for a A conviction under this section carries a minimum must be punished by a sentence of imprisonment at least five years in a state correctional facility of five years. Any sentence imposed under this section shall must be consecutive to any other sentence imposed for the principal felony. The court may not place on probation, suspend the execution of the sentence, or suspend the imposition of the sentence of any person convicted of a violation of this section. However, the The sentencing court may impose a sentence other than that specified in this section if the court finds that mitigating circumstances exist which that require a departure from the mandatory sentence provided for in this section. The court's finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall must be in writing.

It is not a defense to the provisions of this section that the defendant did not know the distance involved. It is not a defense to the provisions of this section that school was not in session.