How to Defend Drug Possession Charges in Colorado

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By: Bill Henry
PublishedApr 14, 2022
12 minute read

The consequences of a drug possession conviction can extend far beyond your final court date if you aren’t careful. This article provides an overview of Colorado drug possession charges and how a criminal defense attorney can help you beat them.

What’s in This Article

Need Help to Defend Drug Possession Charges? 

If you are facing drug possession charges, it may be tempting to admit guilt for the sake of expediency. Do not do this. The criminal defense attorneys at Robinson & Henry PC will be your staunch advocates both in the courtroom and out. We will work tirelessly to reduce your charges, negotiate a favorable plea deal, fight for you in court, or potentially even get the charges dropped altogether. Give us a call at 303-688-0944 today to begin your case assessment.

“It is unlawful for a person knowingly to possess a controlled substance.” Colo. Revised Statute § 18-18-403.5

This offense, often called possession for personal use or simple possession, applies to all types of controlled substances except marijuana. We’ll delve into the different types of drugs you can’t possess in Colorado further down. Let’s first discuss how your alleged drug possession charges can be defended.

Colorado Drug Possession Defenses Infographic

Colorado Drug Possession Defenses

There are many potential ways to defend drug possession charges. Of course, which ones your attorney can use depends on the facts and circumstances of your case.

Here are a few strategies to defend drug possession charges:
  • You were not in control of the drugs. In the context of Colorado law, control means that you had personal and physical control over the illegal substance.
  • You had no knowledge of the drugs. Drug possession is a crime when a person knowingly or intentionally has control of a drug. The burden of proof is on the prosecution to show that you knew drugs were in the home, car, or another area.
  • Law enforcement performed an illegal search. If the police did not have the legal authority to search your home or property, your case may be dismissed.
  • You were entrapped by police. Entrapment is a practice in which a law enforcement official encourages a person to commit a crime that they would have otherwise been unlikely to commit. Learn more about the Entrapment Defense.

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

To prove drug possession charges, a prosecutor must show that you knew you were in possession of the controlled substance 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)

Dominion and Control in Drug Possession Cases

In drug possession cases, having dominion and control of the controlled substance means that you had the ability and intent to control whether the drugs were found.

For example, let’s say police find a bag of cocaine in your apartment. Your name is the only one on the lease. Therefore, the police can infer that the cocaine belongs to you. You had dominion and control over the place where it was found.

The “Knowing” Element in Drug Possession Cases

To obtain a conviction on a drug possession charge, prosecutors must prove that you knowingly possessed the illicit substance:

An accused, in fact, must have knowledge that he was in possession of a narcotic drug, he must have knowledge that the package under his control contained a narcotic drug, he must knowingly intend to possess a narcotic drug, he must know that the object possessed is a narcotic drug, and he must intend to possess it. People v. Quick, 190 Colo. 171, 172, 544 P.2d 629, 629 (1976)

What is Drug Possession in Colorado?

In the context of Colorado law, drug possession means you have actual control, care, and management of a controlled substance. People v. Warren, 55 P.3d 809, 811 (Colo. App. 2002)

You unlawfully possess a controlled substance when:
  • you know of its presence,
  • the substance is immediately accessible, and
  • you exercise dominion and control over it.
    People v. Poe, 2012 COA 166, ¶ 15, 316 P.3d 13, 16

Types of Drug Possession

Colorado law recognizes three types of drug possession:
  • actual possession
  • constructive possession
  • joint possession

Actual Possession

Actual possession means you are physically touching the drug. An example is holding an MDMA pill in your hand.

Constructive Possession

Constructive possession is having control of the drug without touching it. So, even if the drugs are not found on your person, you could still face drug possession charges.

Even though a defendant does not have marijuana on his person, constructive possession may be proved by showing that the marijuana is at a place at least partially under his dominion and control. A person who is sufficiently associated with the persons having physical custody so that he is able, without difficulty to cause the drug to be produced for a customer can also be found by a jury to have dominion and control over the drug, and therefore possession.
People v. Storr, 186 Colo. 242, 244, 527 P.2d 878, 879 (1974)

A Colorado Case of Constructive Drug Possession

John Storr and Francis Mojo, Jr., met with undercover law enforcement agents to sell them marijuana. At the time of delivery, Mojo pointed out the van carrying the marijuana. When negotiations broke down, police arrested both men.

Although the drugs were found in a van that was neither owned nor driven by Mojo, prosecutors still proved he had constructive possession of the drugs:

“Mojo asked his friend Tooley to obtain the 200 pounds of marijuana which was the object of the sale. Moreover, at the time of delivery, Mojo pointed out the van carrying the marijuana to one of the undercover agents and retorted that it would not stop at the parking lot unless the gang members demonstrated an ability to pay $16,000. He also told the agent that an automobile was tracking the van to assure that the transaction proceeded according to plan and that he could sell the marijuana within one-half hour if the deal were cancelled.” People v. Storr, 186 Colo. 242, 247, 527 P.2d 878, 881 (1974)

Joint Possession

Joint possession means you share control of the drugs with at least one other person. For example, let’s say the police find a bag of heroin on the nightstand in the bedroom you share with your spouse. You both could be charged with drug possession.

However, “Where a person is in possession, but not in exclusive possession of the premises, it may not be inferred that he knew of the presence of marijuana there and had control of it unless there are statements or other circumstances tending to buttress the inference.” Feltes v. People, 178 Colo. 409, 411, 498 P.2d 1128, 1129 (1972)

Essentially, law enforcement cannot necessarily judge you by the company you keep. Let’s take a look at one Colorado case.

Colorado Joint Possession Case
Police Raid a Chalet

Early one January morning in 1969, the Gilpin County Sheriff’s Office led a group of law enforcement officers on a search of a chalet in Blackhawk. At the time, 11 people were staying in the chalet.

The search yielded marijuana, hashish, methamphetamine, and related drug paraphernalia. All 11 occupants were charged and convicted with possession of a controlled substance.

The Tenants Appeal

All 11 occupants appealed their convictions. Ultimately, the Colorado Supreme Court overturned the drug possession convictions for six of the 11 defendants:

In relation to these defendants, the evidence established nothing more than presence in a place where narcotics were found and certainly does not rule out all reasonable hypotheses of innocence. Mere presence without another additional link in the evidence will not sustain a conviction for possession. Feltes v. People, 178 Colo. 409, 417, 498 P.2d 1128, 1132 (1972)

In the same ruling, the state’s highest court affirmed the convictions of the remaining five occupants:

Robert Feltes and Yvonne Gabriel were found in close proximity to a bag of marijuana. The marijuana was in plain view on a table next to the bed occupied by these two persons. This is enough of a link to connect Felts and Gabriel with knowing possession of the marijuana. The two Willemsteins and Jones were found in a room which also contained a great quantity of marijuana and other paraphernalia. The inference is strong that these three people controlled the three bags of marijuana that were found with them. Feltes v. People, 178 Colo. 409, 417, 498 P.2d 1128, 1132-33 (1972)

Temporary Drug Possession is Still Possession

In 1994, a police informant arranged a drug purchase with a suspected cocaine dealer. The informant drove to the dealer’s Adams County home.

The dealer came outside, walked up to the informant’s vehicle, and handed him the cocaine. He was immediately arrested following the transaction.

At the time of arrest, police believed the man lived alone. However, one officer noticed Thomas Barry looking out the home’s glass front door. The officer contended that Barry then closed the window curtains in an effort to conceal himself.

Barry is Arrested, Charged & Convicted

The officer ran into the house as Barry was coming out of a bathroom. As he searched Barry, the officer heard a toilet flushing. He ran into the bathroom and retrieved a plastic baggie just before it would have been flushed down the toilet. The baggie contained cocaine.

Barry admitted that he lived in the house. However, he denied any involvement in dealing cocaine or that the cocaine found in the baggie was his.

Barry was subsequently arrested and charged with possession of a controlled substance. He was later convicted.

Barry’s Appeal

On appeal, Barry challenged his conviction on the basis that his possession was “temporary or passing and for the purpose of disposal.” People v. Barry, 888 P.2d 327, 329 (Colo. App. 1994)

The Colorado Court of Appeals disagreed, holding that Barry’s temporary handling of the cocaine constituted drug possession under Colorado law.

Can I be Charged with Possession if I Report an Overdose?

In Colorado, if someone suffers an emergency drug or alcohol overdose event and certain requirements are satisfied, the person experiencing the overdose or reporting it may not be prosecuted, or even arrested, for possession of a controlled substance or possession of drug paraphernalia. People v. Harrison, 2020 CO 57, ¶ 1, 465 P.3d 16, 18

Colorado law outlines the requirements to avoid prosecution:
  1. The person reports in good faith an emergency drug or alcohol overdose event to a law enforcement officer, to the 911 system, or to a medical provider.
  2. The person remains at the scene of the event until a law enforcement officer or an emergency medical responder arrives. Or the person remains at the facilities of the medical provider until a law enforcement officer arrives.
  3. The person identifies himself or herself to, and cooperates with, the law enforcement officer, emergency medical responder, or medical provider; and
  4. The offense arises from the same course of events from which the emergency drug or alcohol overdose event arose. C.R.S. § 18-1-711
Supreme Court Clarifies This Law

In 2019, Brittany Harrison and a teenage friend ordered food at a Denver-area Burger King and sat down at a booth. About 90 minutes later, employees noticed that the two were slumped at the table, apparently asleep. Their food was untouched.

Workers loudly tried to wake them up, to no avail. The manager called 911 and requested help for two individuals who were sleeping in the restaurant and would not wake up. She expected police to show up, rouse Harrison and her friend, admonish them about sleeping there, and ask them to leave. It “never really crossed her mind” that either of them was suffering from a drug or alcohol overdose.

The Arrest and Conviction

Harrison woke up when law enforcement arrived. Although groggy, she maintained she had not used drugs that day. Harrison’s teenage friend could not be roused and was transported to the hospital.

Officers did not believe Harrison’s statement and searched her purse and backpack. They found drug paraphernalia and substances that would later test positive for heroin and methamphetamine.

Harrison was arrested and charged with two counts of possession of a controlled substance, as well as one count of possession of drug paraphernalia. During her trial, she invoked immunity under C.R.S. § 18-1-711.

A jury still convicted Harrison on all three counts.

Appeals Court Overturns Conviction

Harrison appealed, and the Colorado Court of Appeals vacated her conviction based on the requirement in C.R.S. 18-1-711(1)(a) that a person must “report in good faith an emergency drug or alcohol overdose event.” People v. Harrison, 2020 CO 57, ¶ 12, 465 P.3d 16, 20

The court determined that “immunity must apply” so long as a reasonable person in the shoes of the person reporting the event would have believed that there was an emergency drug or alcohol overdose event. People v. Harrison, 2020 CO 57, ¶ 12, 465 P.3d 16, 20

The appellate judges concluded that even though the manager did not tell the 911 dispatcher that she needed assistance for an overdose, her “subjective knowledge or ignorance about the cause of the defendant’s condition is not relevant.”

Essentially, the court ruled that regardless of what the manager actually thought, a layperson would have reasonably concluded that Harrison and the teenager had overdosed.

Colorado Supreme Court Reverses Appeals Court Decision

Prosecutors sought review from the Colorado Supreme Court. Justices determined that the appeals court had erred in throwing out Harrison’s conviction.

At the crux of their decision was the Burger King manager’s testimony:

“… she did not observe any drugs or paraphernalia; she did not notice any signs of intoxication or impairment; and it never crossed her mind that Harrison was suffering from a drug or alcohol overdose.” People v. Harrison, 2020 CO 57, ¶ 37, 465 P.3d 16, 24

The manager never told the 911 dispatcher that she needed assistance for a drug overdose. Therefore, the court ruled that the prosecution had disproved Harrison’s immunity defense beyond a reasonable doubt.

Which Drugs are Illegal to Possess in Colorado?

When It’s Illegal to Possess Marijuana

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 Possession is Still 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 drug possession 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 possession depend largely on the scheduling of the drug.

Schedule I Drugs

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 Drugs

While Schedule II drugs come with a high potential for abuse, they do have an 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

Drugs in this class have a lower abuse potential than Schedule I or II drugs. While these substances do have a 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 Drugs

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 Drugs

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.

Colorado Drug Possession Penalties

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)

Drug Sentencing Factors

Sentencing for Colorado felony drug possession 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

Drug Sentencing Guidelines

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

Felony Drug Penalties

As stated above, most drug possession crimes are misdemeanors in Colorado. However, you commit a Level 4 drug felony when you:

  • possess any amount of GHB, flunitrazepam, or ketamine
  • possess more than 4 grams of Schedule I or Schedule II drugs

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

Misdemeanor Drug Penalties

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
  • 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
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.

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.

Hire a Criminal Defense Attorney to Defend Drug Possession Charges 

The R&H Criminal Defense Team is comprised of two former Colorado public defenders and a former prosecutor. We know what to say, when to say it, and how to say it. Don’t let a drug possession charge derail your future. Let our criminal defense attorneys negotiate with the prosecutor or show the jury that you are more than one bad decision. Call 303-688-0944 today to begin your case assessment.

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