If you’re charged with selling drugs in Colorado, the penalties you’ll face if you’re convicted will be much more serious than if you were caught with a small amount of drugs for personal use. Manufacturing, delivering, or selling drugs is still a serious crime in Colorado and can bring felony charges. The criminal justice system tends to punish the person selling drugs much more harshly than those using them.
In this article, you will get an overview of Colorado’s drug laws and learn what to expect if you are charged with selling drugs.
In This Article
- Colorado Drug Sale Laws
- Legal Definitions Under Colorado Law
- Possession with Intent to Distribute
- Penalties for Selling Drugs in Colorado
- Which Drugs are Illegal in Colorado?
- Sentencing Guidelines for Selling Drugs
- Colorado Drug Offender Fees
- Defenses if You’re Charged with Selling Drugs in Colorado
Have You Been Charged with Selling Drugs?
Among other things, being convicted of selling drugs in Colorado can lead to lifelong branding as a felon. A felony on your record can affect your ability to own a firearm or apply for government benefits. It can also interfere with your housing or employment opportunities. Fortunately, your chances of beating or reducing these charges are much improved with the R&H Criminal Defense Team in your corner. Call 303-688-0944 today to begin your free case assessment.
Colorado Drug Sale Laws
In Colorado, it is a crime for any person not authorized by law to do any of the following with a controlled substance:
- Possess with intent to manufacture, dispense, sell, or distribute
- Induce, attempt to induce, or conspire with other people to do any of the above
- Possess one or more chemicals, or supplies or equipment, with intent to manufacture a controlled substance.
Legal Definitions Under Colorado Law
A barter, an exchange, a gift, or an offer of a controlled substance whether as the principal, proprietor, agent, servant, or employee. People v. Farris, 812 P.2d 654, 655 (Colo. App. 1991)
To deliver a controlled substance.
Here’s what the courts have said about the difference between those terms:
While § 18-18-105(1)(a) uses both the words “sale” and “distribute” to define methods by which the statute may be violated, those words no longer have distinct legal meaning or effect. Both are words used to describe an exchange involving the unauthorized delivery of a controlled substance. People v. Farris, 812 P.2d 654, 655 (Colo. App. 1991)
The “sale, delivery, giving away, or supplying in any other manner, or otherwise disposing of, to another person” a controlled drug. People v. Dinkel, 189 Colo. 404, 405, 541 P.2d 898, 899 (1975)
For the purposes of this article, we will refer to the crime as “selling drugs.”
Money Does Not Have to be Exchanged to be Charged
Money does not have to change hands before you can be charged with selling drugs. Colorado law specifies that it is illegal to knowingly manufacture, dispense, sell, or distribute a controlled substance with or without remuneration.
Let’s look at how one Denver man learned this lesson the hard way.
People v. Mills
In December 1973, Thomas Mills and two associates met with undercover law enforcement in a Denver-area motel room after agreeing to sell them cocaine.
Mills produced a plastic bag containing three smaller bags, each filled with a white powdery substance. He handed the powder to one of the undercover officers who began field testing to check its nature and quality.
The transaction was interrupted at this point when an officer discovered a loaded pistol under Mills’ jacket. Police arrested Mills before any money changed hands.
Mills was charged with selling cocaine and convicted in Denver County district court.
Mills Appeals His Sentence
Mills asserted on appeal that the drug sale was incomplete because no money changed hands. Therefore, he was not guilty of dealing drugs.
The Colorado Supreme Court was not convinced:
“However ingenious this argument may appear to a grammarian, it has little legal merit.”
People v. Mills, 192 Colo. 260, 263, 557 P.2d 1192, 1194 (1976)
The court further explained in its opinion:
“C.R.S. 1963, 48-5-1(10) defines “drug sale” to include “barter, exchange, or gift, or offer therefor… No completed transaction sealed by a transfer of money is required to constitute the “offer” which amounts to a “sale” within this definition.
People v. Mills, 192 Colo. 260, 263-64, 557 P.2d 1192, 1195 (1976)
Possession with Intent to Distribute
Possession with intent to distribute is charged just as harshly as distribution or sale of a controlled substance.
Let’s look at how prosecutors proved intent to distribute in one Colorado case.
People v. Douglas
In June 2011, a police SWAT team raided the Federal Heights trailer home of common-law spouses Michael Crawford and Susan Douglas.
The search yielded 28 marijuana plants, four firearms, $1,000 in cash, recently harvested marijuana in the drying process, and bags with jars containing smaller amounts of marijuana.
Additionally, the officers found medical marijuana application forms, approved by the Colorado Department of Public Health and Environment, for both Douglas and Crawford. The accompanying physician’s statement indicated that each patient required 12 plants — twice the presumptive maximum under Colorado law — because they preferred to ingest marijuana through edibles rather than smoke it.
Douglas and Crawford were each charged with one count of possession with intent to manufacture or distribute less than five pounds of marijuana. They were tried separately in Adams County district court.
Prosecutors Must Prove Intent
During the trial, the prosecution laid out its theory that Douglas and Crawford were fraudulently using their medical marijuana licenses to illegally distribute pot.
To support the theory, the prosecution pressed three primary arguments:
- that the amount of marijuana found at the trailer home was more consistent with distribution than with personal use
- that the sophistication of the marijuana grow demonstrated that plants were being grown for distribution — not medical — purposes; and
- that the presence of guns and cash at the home strongly suggested that the couple was engaged in illegal distribution activities. People v. Douglas, 2015 COA 155, ¶ 10, 412 P.3d 785, 789
Conviction and Appeal
Based on their status as medical marijuana patients registered with the state health department, both Douglas and Crawford asserted an affirmative defense under the state’s Medical Marijuana Amendment.
A jury did not find this defense credible, and Douglas and Crawford were each convicted on one count of possession with intent to distribute.
Douglas was sentenced to two years’ intensive probation, which she appealed.
Challenging the Evidence
On her appeal, Douglas contended that the prosecution’s evidence was insufficient to prove possession with intent to distribute or to disprove her medical marijuana affirmative defense.
The Colorado Court of Appeals ultimately concluded that the evidence, while “not overwhelming,” was sufficient to sustain Douglas’ conviction:
“With respect to the amount of marijuana, the prosecution established that Ms. Douglas and Mr. Crawford together possessed twenty-eight marijuana plants, which, according to the jury instructions, was more than twice the presumptive number permitted for medical use, and nearly twenty percent more than the number of plants allowed under their physician’s certification.” People v. Douglas, 2015 COA 155, ¶ 11, 412 P.3d 785, 789
Penalties for Selling Drugs in Colorado
Selling drugs, or possessing drugs with the intent to sell them, is a more serious crime in Colorado than simply possessing drugs for personal use.
Crimes involving the sale or distribution of drugs are usually felonies in Colorado, depending on the substance and the amount sold.
If you are convicted of selling drugs, it is possible you will only serve misdemeanor probation. At the opposite end of the spectrum, however, you could spend up to 32 years in prison and be ordered to pay a fine of up to $1 million.
How severe a penalty for selling drugs depends on several factors, including:
- the type of drug
- the quantity of the drug
- a prior felony record
Before you can understand sentencing guidelines for the crime of selling drugs, it is important to understand exactly which drugs are illegal to possess, use, or sell in Colorado.
Which Drugs are Illegal in Colorado?
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. If you’re charged with selling drugs and subsequently convicted, the penalty depends largely on the scheduling of the drug.
Schedule I drugs are 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:
- psilocybin (magic mushrooms)
While Schedule II drugs have a high potential for abuse, they do have established medical use. However, their abuse can lead to severe psychological and physical dependence.
Schedule II applies to opium and prescription opioid pain pills, including:
- oxycodone (Oxycontin)
- hydrocodone (Vicodin)
Stimulants such as cocaine and methamphetamine are also Schedule II drugs.
Drugs in this class are less likely to be abused than Schedule I or II drugs. While these substances have a valid medical use, there is the potential for physical dependence and psychological dependence.
Schedule III drugs include:
- anabolic steroids
- medications containing small amounts of codeine
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).
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.
Sentencing Guidelines for Selling Drugs
“… because drug offenses encompass a wide spectrum of conduct, we believe that the most prudent course of action is to refrain from painting them all with the same broad brush. It makes little sense to automatically treat the sale of a large quantity of cocaine by the leader of a drug cartel as equally grave or serious as the mere possession of a very small quantity of cocaine by a drug addict who is not involved in sale or distribution.” Wells-Yates v. People, 2019 CO 90M, ¶ 60
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
As stated above, selling drugs, or possessing a controlled substance with the intent to sell it, will typically lead to felony charges in Colorado.
Felony Drug Penalties
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.
The minimum prison sentence for a Level 1 drug felony is raised to 12 years if the case involves aggravating factors during the offense. C.R.S. 18-1.3-401.5
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
Examples of Level 1 Drug Felonies
You can be charged with a level 1 drug felony if you:
- Manufacture or sell more than 225 grams of a Schedule I or Schedule II drug
- Manufacture or sell more than 112 grams of methamphetamine, heroin, ketamine, or cathinone
- Manufacture or sell more than 50 grams of flunitrazepam
- Sell Schedule I or Schedule II drugs to a minor, if you are an adult at least two years older than the minor
- Sell 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
- Sell more than 50 lbs. of marijuana or more than 25 lbs. of marijuana concentrate
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 between 15 grams and 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
These 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
The least serious of the felony drug crimes, these 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
When Dealing Drugs is a Misdemeanor
In some cases, selling drugs can lead to misdemeanor charges instead of felony ones. You commit a Level 1 drug misdemeanor if your offense involves:
- A Schedule V controlled substance; or
- A transfer with no remuneration of not more than four grams of a Schedule III or Schedule IV controlled substance. C.R.S. § 18-18-405
Colorado Drug Offender Fees
If you are charged with selling drugs and convicted of the crime in Colorado, you will be required to pay a surcharge to the clerk in the county where you committed the crime.
You are also required to pay the surcharge if you receive a deferred sentence.
The amount you are required to pay will vary depending on the severity of your drug crime. Here is how the pay scale is structured:
- $4,500 for each level 1 drug felony
- $3,000 for each level 2 drug felony
- $2,000 for each level 3 drug felony
- $1,500 for each level 4 drug felony
- $1,000 for each level 1 drug misdemeanor
- $300 for each level 2 drug misdemeanor
What Happens if I Can’t Pay the Drug Offender Surcharge?
A judge can waive part of your drug offender surcharge only if the court finds that you are financially unable to pay:
Only if the court finds that the offender is able to pay the entire surcharge is it prohibited from waiving any part of the surcharge. Section 18-19-103(6) permits the drug offender surcharge to be waived in full or in part based upon a defendant’s financial ability to pay. “Any” can mean “some.” Under that definition, § 18-19-103(6)(a) authorizes the court to waive some of the surcharge if the offender is unable to pay some of the surcharge. People v. Archuleta-Ferales, 2014 COA 178, ¶ 1, 343 P.3d 1069, 1070
Defenses if You’re Charged with Selling Drugs in Colorado
In Colorado, entrapment occurs when a law enforcement officer persuades an otherwise law-abiding citizen to commit a crime.
Unlike your Fifth Amendment right to not incriminate yourself, you do not have a constitutional right to an entrapment defense. Since the entrapment defense is not covered by the U.S. Constitution, states are left to define it.
Colorado law holds that:
“The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced.” C.R.S. § 18-1-709
Click here for R&H’s guide to how an entrapment defense can be used if you’re charged with selling drugs.
Procuring Agent Defense
You can use the procuring agent defense if you have been charged with selling drugs. This defense was first established in the 1976 Colorado Supreme Court case People v. Fenninger.
The legal theory behind the procuring agent defense is the defendant acts as the buyer’s agent/representative to find drugs to purchase. Since the defendant is conspiring to purchase drugs, they cannot be convicted of selling or conspiring to sell them.
Let’s take a look at how this defense was used in People v. Fenninger.
Background on the Case
David Fenninger met an undercover Colorado Bureau of Investigations (CBI) agent outside a bar in Glenwood Springs. The CBI agent told Fenninger he “wanted to purchase large quantities of narcotics.”
Fenninger told the CBI agent he had connections in town and would try to set up a meeting with these people for the purpose of buying “dope.”
Over the next several months, Fenninger introduced the CBI agent to several people from whom the agent bought drugs.
The Sale, Arrest & Conviction
Fenninger eventually helped set up a meeting between the CBI agent and three heroin suppliers. Next, Fenninger accompanied the agent and the suppliers to a canyon outside Glenwood Springs. There, the undercover agent gave the suppliers $36,000 for one pound of heroin.
Fenninger was present for the sale, but he never possessed, transferred, or handled the money or the drugs.
As soon as the CBI agent paid for the heroin, Fenninger and the suppliers were arrested.
Fenninger was charged and subsequently convicted of unlawful sale of a narcotic drug with intent to induce or aid another to unlawfully use or possess the drug, as well as conspiracy to commit such a violation.
Conviction Overturned on Appeal
Fenninger appealed his conviction all the way to the Colorado Supreme Court. His criminal defense attorneys helped him beat drug charges based on the procuring agent defense. The state supreme court overturned his conviction. It held that Fenninger acted as the undercover agent’s “representative” in meetings with the suppliers.
“[Fenninger] was prompted by the buyer to introduce him to potential suppliers. The defendant was also to be paid directly by the buyer, the undercover agent here, for his services in procuring a purchase. The defendant was not acquainted with the suppliers before the purchase negotiations. He did not know where the drug was stashed. The suppliers regarded defendant as the buyer’s representative.
The only evidence which arguably links defendant to the suppliers was that he was a conduit for messages from them to the buyer, a fact which is inconsequential, since relaying terms of the deal was part of [Fenninger’s] function as agent for the buyer.”
People v. Fenninger, 191 Colo. 334, 337, 552 P.2d 1018, 1019 (1976)
When the Procuring Agent Defense Does Not Apply
You cannot use the procuring agent defense if you are facing drug charges for dispensing illicit substances. In such cases, the proscribed activity is the transfer and delivery of the drugs rather than their sale.
However, this defense has not been disavowed in cases where an individual is charged exclusively with selling narcotics. People v. Fenninger, 191 Colo. 334, 335, 552 P.2d 1018, 1019 (1976)
Charged with Selling Drugs? Get a Criminal Defense Attorney in Your Corner.
Not all drug dealers are in the same vein as Pablo Escobar or El Chapo. Many people charged with selling drugs were doing so to support their own addictions. The criminal defense attorneys at Robinson & Henry are highly skilled in defending against drug charges. Perhaps more importantly, they are compassionate and empathetic. We will advocate relentlessly for your rights and your future. Call 303-688-0944 today to begin your free case assessment.