Your Guide to Fighting Colorado Drug Charges

It’s no secret that Colorado was a pioneer in decriminalizing, allowing, and regulating the use of recreational marijuana. However, the Centennial State still has many strict drug laws on the books. This article provides an overview of Colorado drug laws and sentencing guidelines for drug charges.

A drug-related conviction is not easily erased. Drug charges can have a profound impact on your personal relationships, employment, and housing opportunities—even your driver’s license. The criminal defense attorneys at Robinson & Henry will bring the right balance of compassion and steely resolve to your case. Call 303-688-0944 today to begin your case assessment.

Colorado’s Uniform Controlled Substances Act (Colo. Rev. Stat. § 18-18-101) was intended to control the illegal manufacture and distribution of substances that may have legitimate medical purposes but are subject to abuse and can have a detrimental effect on users. People v. Frantz, 114 P.3d 34, 35 (Colo. App. 2004)

Before we dive into Colorado’s drug laws, let’s begin with a substance that, while legal, can still lead to drug charges under certain circumstances.

Most people are aware that Colorado has legalized the possession of marijuana by people who are 21 years old and older in limited circumstances. You may not know, however, that possessing more than 28 grams (one ounce) of pot is still a crime in Colorado.

If you are under 21, it is illegal to possess any amount of marijuana without a medical prescription.

Marijuana is Prohibited Under Federal Law

It remains a crime to possess any amount of marijuana on federally owned property within the state of Colorado. That means if you’re camping in, say, Rocky Mountain National Park or Mesa Verde, you could be charged with a crime if you’re caught with marijuana.

In addition to national parks, federal property includes:

• airports

• courthouses

• Department of Veterans Affairs (VA) offices

• Department of Housing and Urban Development (HUD) housing

• post offices

Such property is subject to the more stringent requirements of the federal Controlled Substances Act (21 U.S.C.S. § 812).

Under federal and state law, controlled substances are divided into five categories called schedules.

According to the Drug Enforcement Administration, drug scheduling is a method of classifying substances based upon their “acceptable medical use” and “potential for dependency or abuse.”

Drug scheduling matters. The penalties for drug charges depend largely on the scheduling of the drug.

Schedule I

Schedule I is reserved for drugs deemed most dangerous to Coloradans’ public health and safety. These substances carry a high potential for abuse and have no acceptable medical purpose recognized by state law.

Schedule I drugs include MDMA (ecstasy), heroin, and various hallucinogens, such as:

• LSD

• PCP

• psilocybin (magic mushrooms)

• peyote

Schedule II

While Schedule II drugs come with a high potential for abuse, they do have established medical use. However, abusing these substances can lead to severe psychological and physical dependence.

Schedule II applies to opium and prescription opioid pain pills, such as:

• oxycodone (Oxycontin)

• hydrocodone (Vicodin)

• morphine

• fentanyl

• methadone

Stimulants such as cocaine and methamphetamine are also Schedule II drugs.

Schedule III

Drugs in this class have a lower abuse potential than Schedule I or II drugs. While these substances do have valid medical use, they also have the potential for low to moderate physical dependence and high psychological dependence.

Schedule III drugs include:

• barbiturates

• ketamine

• anabolic steroids

• medications containing small amounts of codeine

Schedule IV

Schedule IV substances have a lower abuse potential than Schedule III drugs, as well as an acceptable medical use. However, limited psychological and physical dependence is possible.

This class covers prescription anti-anxiety medications such as diazepam (Valium) and non-barbiturate sleep medications such as zolpidem (Ambien).

Schedule V

This class is reserved for the least dangerous drugs with the lowest potential for abuse and accepted medical purposes. Like their Schedule IV counterparts, these substances are likely to lead to only limited physical or psychological dependence.

Schedule V substances include medicines that contain small amounts of certain narcotic drugs. Over-the-counter cough syrups and cold medications containing small amounts of codeine are two examples of Schedule V drugs.

In Colorado, being convicted of drug charges could result in anything from mandatory substance abuse treatment to several decades in prison.

Colorado’s three central drug offenses are:

1. using drugs

2. possessing drugs

3. selling or manufacturing drugs

It’s illegal to use any controlled substances in Colorado except when the drugs are:

“dispensed by or under the direction of a person licensed or authorized by law to prescribe, administer, or dispense the controlled substance for bona fide medical needs.” C.R.S. § 18-18-404

In this context, use means injecting or ingesting a controlled substance. People v. Villapando, 984 P.2d 51, 54 (Colo. 1999)

In the context of Colorado drug charges, possession indicates actual control, care, and management of a drug. People v. Warren, 55 P.3d 809, 811 (Colo. App. 2002)

You unlawfully possess a controlled substance when:

1. you know of its presence,

2. the substance is immediately accessible, and

3. you exercise dominion and control over it.

   People v. Poe, 2012 COA 166, ¶ 15, 316 P.3d 13, 16

What is the Burden of Proof for Drug Possession in Colorado?

Knowledge and Intent

To prove drug possession charges, a prosecutor must show that you knew you were in possession of the controlled substances and that you intended to be in possession of it.

If the amount of controlled substance that you allegedly possessed is less than a usable quantity, then prosecutors must produce other evidence supporting an inference that you knew you possessed the substance. People v. Hoeck, No. 08CA1829, 2009 Colo. App. LEXIS 2178, at *1 (App. Dec. 10, 2009)

Ignorance is Not a Defense

People v. Perea, Colorado Court of Appeals

In 2003, Rodger Perea was arrested on drug charges after a Denver police officer found a baggie of cocaine in his sock during a traffic stop. A Denver County court subsequently convicted Perea of possessing a Schedule II controlled substance.

Perea appealed his conviction.

The Appeal

Perea asserted that, when police pulled the car over, his cousin tossed a baggie at him and said, “I’m going to jail for a long time if I have it on me.”

Perea claimed that he did not know what was in the baggie until the officer told him it was cocaine.

The crux of Perea’s appeal was that for him to be convicted, the prosecution needed to show he knew exactly what controlled substance his cousin gave him. The prosecution contended that, no, Perea only needed to know that he was in possession of a controlled substance, not what kind of drug it was.

The Colorado Appeals Court agreed with the prosecution and affirmed Perea’s conviction. The appeals court cited a case out of Wisconsin in its ruling:

“Insulating from criminal liability those defendants who knowingly deal in prohibited controlled substances, but are ignorant, mistaken, or willing to misrepresent the exact nature or chemical name of the substance which they traffic, is contrary to public policy. . . . one who knowingly engages in the trade of controlled substances should not profit by feigning ignorance, and subsequently relying on the State’s potential inability to prove knowledge of the exact substance involved.”

The court further ruled that:

“From the type of baggie tossed to defendant, the statement by the cousin, and defendant’s attempt to hide the baggie, a reasonable jury could infer that he at the very least knew it was a controlled substance he was hiding.” People v. Perea

Possession and Use Are Not the Same

The 2003 Colorado Supreme Court case Campbell v. People established a clear legal distinction between drug possession and drug use.

Scott Campbell faced a slew of drug charges after police found marijuana and cocaine in his car. Boulder County prosecutors proposed a plea agreement: If Campbell pleaded guilty to cocaine possession, they would dismiss all other charges.

The plea agreement stipulated that a trial court would determine whether to sentence Campbell to a Class 4 or a Class 5 felony.

The trial court concluded Campbell had committed a Class 4 felony, the more serious of the two offenses. He received a 10-year prison sentence, which he appealed.

Campbell Appeals: Contends Use and Possession are the Same

Campbell claimed that drug use and drug possession were identical offenses. Yet, the lesser offense of drug possession carried a harsher sentence. This, Campbell argued, violated the equal protection provision of the Colorado Constitution.

Court Rules Use and Possession are Two Distinct Offenses

The Colorado Supreme Court held that possession and use are not identical drug charges under state law. The court’s ruling essentially held that you can possess a controlled substance without using it. However, you cannot use a controlled substance without first possessing it:

Possession of a controlled substance does not necessarily involve use. If a person is holding a plastic bag containing a psilocybin mushroom, he possesses a schedule I controlled substance. He does not use it until he ingests the mushroom. To use the mushroom, he must first possess it. Once he uses the mushroom, he no longer possesses it. Use and possession are therefore not identical acts. Campbell v. People, 73 P.3d 11, 14 (Colo. 2003)

The sale or manufacture of controlled substances is among the more harshly punished drug charges in Colorado. These laws are aimed mostly at drug dealers, rather than drug users.

Under Colorado law (C.R.S. § 18-18-405), it is illegal for anyone to knowingly:

• manufacture, dispense, sell, or distribute a controlled substance

• possess a controlled substance with the intent of manufacturing, dispensing, selling, or distributing it

• induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute, a controlled substance

• possess one or more chemicals or supplies or equipment with intent to manufacture a controlled substance

Manufacturing a controlled substance also includes any packaging or repackaging of the substance or labeling or relabeling of its container. Patton v. People, 35 P.3d- 124, 126 (Colo. 2001)

Imitation Drugs

Imitation drugs are substances intended to be mistaken for the real thing:

“Imitation controlled substance” means a substance that is not the controlled substance that it is purported to be but which, by appearance, including color, shape, size, and markings, by representations made, and by consideration of all relevant factors as set forth in section 18-18-421, would lead a reasonable person to believe that the substance is the controlled substance that it is purported to be. C.R.S. § 18-18-420

Manufacturing, selling or distributing an imitation drug, or possessing one with the intent to sell it, is typically a Colorado level 4 drug felony. It becomes a level 3 drug felony when an adult distributes an imitation controlled substance to a minor, and the adult is at least two years older than the minor.

Colorado lawmakers tend to favor rehabilitation over punishment when it comes to personal drug use—at least initially. As a result, drug use and drug possession charges are usually misdemeanors.

In 2019, Colorado lawmakers passed House Bill 19-1263. The law made possessing small amounts of Schedule I and Schedule II drugs a Class 1 misdemeanor, rather than a Class 4 felony. That means you now face the possibility of only six to 18 months in county jail if caught with less than two grams of drugs like cocaine, heroin, or methamphetamine.

When Drug Possession is a Felony

You can still face felony drug charges if you’re caught possessing:

• more than 4 grams of any Schedule I or Schedule II drug

• any amount of common date rape drugs like GHB, ketamine, or flunitrazepam (Rohypnol known as roofies)

Being arrested for manufacturing a controlled substance will likely lead to felony drug charges. Penalties for Colorado felony drug charges can include both prison time and hefty fines.

Penalties for Colorado felony drug charges range from as little as six months in county jail and/or a $1,000 fine, to a 32-year prison sentence and up to $1 million in fines.

Sentencing for Colorado felony drug charges depends on a number of factors, including:

• the drug schedule (the more serious the drug, the more serious the sentence)

• the quantity of drugs involved

• whether the drugs were for personal use, sale, or large-scale distribution

• whether you are a habitual drug offender or have a history of drug convictions

• whether you are currently on probation, on parole, or incarcerated for a felony offense

Colorado’s criminal justice system separates drug charges into seven separate classes.

From most to least serious, they are:

• Level 1 drug felonies

• Level 2 drug felonies

• Level 3 drug felonies

• Level 4 drug felonies

• Level 1 drug misdemeanors

• Level 2 drug misdemeanors

• Drug petty offenses

Level 1

This is the most serious class of drug charges in Colorado. Penalties range from eight to 32 years in a Colorado state prison. These sentences can also come with $5,000 to $1 million in fines, a $4,500 surcharge, and a three-year mandatory parole period.

However, the minimum prison sentence is raised to 12 years if the case involves aggravating factors during the offense. Aggravating factors are when:

• you were on parole

• you were on probation or bond for another felony

• you were in confinement for a felony

• you committed the crime after you escaped from confinement for a felony

C.R.S. 18-1.3-401.5

Examples of Level 1 Drug Felonies

• Manufacturing or selling more than 225 grams of a Schedule I or Schedule II drug

• Manufacturing or selling more than 112 grams of methamphetamine, heroin, ketamine, or cathinone

• Manufacturing or selling more than 50 grams of flunitrazepam

• Selling Schedule I or Schedule II drugs to a minor, if you are an adult at least two years older than the minor

• Selling more than 2.5 lbs. of marijuana—or more than 1 lb. of marijuana concentrate—to a minor, if you are an adult at least two years older than the minor

• Selling more than 50 lbs. of marijuana, or more than 25 lbs. of marijuana concentrate

Level 2

Level 2 felony drug charges are punishable by four to eight years in prison and/or fines ranging from $3,000 to $750,000.

In aggravating circumstances, the prison term can range from eight to 16 years.

Here are some examples of Level 2 felony drug charges in Colorado:

• Selling anywhere from more than 14 grams to up to 225 grams of a Schedule I or Schedule II controlled substance

• Selling or distributing materials to manufacture controlled substances

• Possessing materials to make methamphetamine and amphetamine

Level 3

These drug charges can land you anywhere from two to four years in prison. Additionally, you could get slapped with anywhere from $2,000 to $500,000 in fines.

You may be charged with a Level 3 drug felony in Colorado if you:

• attempt to commit a Level 2 drug felony

• sell no more than 14 grams of Schedule I or Schedule II drugs

• distribute an imitation controlled substance to a minor, if you are an adult who is at least two years older than the minor

Level 4

The least serious of the felony drug crimes, these drug charges can lead to six months to one year in prison and/or fines of $1,000 to $100,000.

You commit a Level 4 drug felony when you:

• attempt to commit a Level 3 drug felony

• sell no more than 4 grams of Schedule III or Schedule IV drugs

• possess any amount of GHB, flunitrazepam, or ketamine

• possess more than 4 grams of Schedule I or Schedule II drugs

Colorado law subdivides drug misdemeanors into two tiers: Level 1 and Level 2. These drug charges have more lax penalties than drug felonies.

Level 1 Drug Misdemeanor

Punishment includes six to 18 months in jail and/or $500 to $5,000 in fines.

Some examples include:

• unlawful possession of Schedule III, Schedule IV, or Schedule V drugs (C.R.S 18-18-403.5)

• unlawful possession of up to 4 grams of Schedule I or Schedule II drugs, or drugs listed in part 2 or Article 18 of Title 18, not including flunitrazepam or ketamine

• possession of more than 6 ounces of marijuana or more than 3 ounces of marijuana concentrate

• attempt to commit a level 4 drug felony (R.S. 18-2-101)

Level 2 Drug Misdemeanor

The least serious of the Colorado drug charges, a Level 2 drug misdemeanor conviction could result in up to 12 months in county jail, and/or $50 to $750 in fines.

Unlawful drug use is one example of a Level 2 misdemeanor drug charge.

Your first offense means:

• Up to one year of probation

• A possible 120 days in jail

• Up to $500 in fines

However, a third or subsequent offense will likely land you 180 days in jail.

The Benefits of Hiring an Attorney for Your Drug Charge

If you’ve been accused of a drug crime, it’s critical that you hire a qualified defense attorney. According to the Colorado Bail Book, a defendant with an attorney present for the first court appearance is:

• 2 ½ times more likely to be released on their own recognizance

• 4 ½ times more likely to have their bail amount significantly reduced

• more likely to serve less time in jail (median reduction from 9 days jailed to 2)

A drug conviction can, quite literally, ruin your life. If you have been accused of drug crimes, you want your future in the hands of dogged criminal defense attorneys like the ones at Robinson & Henry. We will zealously advocate for your rights and do our best to ensure these charges won’t haunt you for the rest of your life. Call 303-688-0944 to begin your case assessment.