In recent years, Colorado has adopted a more rehabilitative approach toward people who commit drug-related offenses. However, that doesn’t mean the Centennial State takes these crimes lightly. If anything, drug dealers and illicit drug manufacturers are punished that much more harshly. In some circumstances, drug manufacturing charges could mean decades in prison.
This article takes a look at Colorado’s drug manufacturing laws and what you could be up against if you are caught violating them.
Defenses to Drug Manufacturing Charges
Consequences for Drug Manufacturing Charges
Which Drugs are Illegal in Colorado
Drug Manufacturing Charges
Chemical Precursors and Drug Manufacturing Charges
Get a Colorado Criminal Defense Attorney
A drug manufacturing conviction can be life-altering. You stand to lose your job, your house, custody of your children, and even your freedom. A relentless criminal defense attorney can mean the difference between freedom and decades behind bars. Call 303-688-0944 today to begin your free case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.
Defenses to Drug Manufacturing Charges
Colorado courts issue stiff penalties to individuals convicted of manufacturing drugs. If you’re charged with making drugs, you face prison time, hefty fines, mandatory parole in some cases, and the lifelong label of being a felon. That’s why we cannot underscore enough how critical it is to hire a criminal defense attorney who can help you build a strong defense that could get your charges dismissed or reduced.
Let’s take a look at some common defenses to the charge of manufacturing drugs in Colorado.
There are a number of ways to defend a drug manufacturing charge. A good criminal defense attorney will explore every possible defense to get you the best outcome in your case. Please note this is not an exhaustive list of defenses.
Illegal Search and Seizure
Your attorney will review all of the law enforcement records related to your case to ensure the police followed all legal procedures. For instance, did the police obtain the evidence against you legally? Did officers follow the search warrant terms or search your property without probable cause? If not, there may be grounds to have the charges against you dismissed.
Lack of Evidence
Your attorney will also scrutinize the evidence that police have against you to determine whether there is enough to support the charges. If there is insufficient evidence, your charges could be dismissed or changed.
Quantity of Evidence
In Colorado, state law requires that someone has to manufacture a certain quantity of illegal drugs before she or he can be charged with drug manufacturing. Your attorney will review the police’s evidence to determine whether you meet the legal threshold for manufacturing drugs.
The Evidence is Not Yours
Another potential defense is that the seized drugs or equipment to make the drugs do not belong to you. Depending on your circumstances, this may or may not be easy to establish.
Consequences for Drug Manufacturing Charges
Penalties for drug manufacturing charges vary based on the schedule and quantity of the drugs involved. Still, manufacturing drugs is among the most serious crimes you can commit in Colorado, and you will likely face felony charges if arrested.
Penalties for Colorado drug manufacturing time 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.
Colorado Felony Drug Penalties
Level 1 Drug Felony
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
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 Drug Felony
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 Drug Felony
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
Colorado Drug Laws
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 manufacturing laws, let’s take a look at exactly which drugs are illegal 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. The penalties for drug manufacturing charges depend largely on the scheduling of the drug.
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:
- psilocybin (magic mushrooms)
While Schedule II drugs come with a high potential for abuse, the drugs do have some accepted 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)
Stimulants like cocaine and methamphetamine are also on the Schedule II list.
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:
- 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, 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.
Drug Manufacturing Charges
Drug manufacturing charges are among the more harshly punished drug offenses in Colorado. These laws are aimed mostly at the drug makers and dealers, rather than drug users.
Under Colorado law (C.R.S. § 18-18-405), it is illegal for anyone to knowingly:
- manufacture a controlled substance
- possess a controlled substance with the intent of manufacturing it
- induce, attempt to induce, or conspire with one or more other persons, to manufacture, or possess with intent to manufacture, a controlled substance
- possess one or more chemicals or supplies or equipment with the intent to manufacture a controlled substance
Elements of a Drug Manufacturing Charge
In order for prosecutors to convict you on drug manufacturing charges in the state of Colorado, they must prove that you knowingly and intentionally manufactured the controlled substance.
Under Colorado law, drug manufacturing means:
to produce, prepare, propagate, compound, convert, or process a controlled substance, directly or indirectly, by extraction from substances of natural origin, chemical synthesis, or a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.
C.R.S. § 18-18-102
In 2022, Colorado Governor Jared Polis signed into law legislation that attempts to prosecute more people who make and sell illicit fentanyl.
According to Common Sense Institute, a non-partisan economic research organization based in Colorado, the state’s fentanyl-related deaths in 2021 nearly doubled from the previous year. More than 800 people died due to fentanyl in Colorado in 2021.
It’s a level 1 drug felony to manufacture more than 50 grams of fentanyl, carfentanil, benzimidazole opiate, or any similar drugs. C.R.S. § 18-18-405 (2)(a)(I)(D)
Chemical Precursors and Drug Manufacturing Charges
Under Colorado law, you are not allowed to possess certain non-prescription drugs with the intent to use them to make methamphetamine, amphetamine, or any other controlled substance. These are called chemical precursors.
Some examples of chemical precursors include:
- phenylpropanolamine, or
- their salts, isomers, or salts of isomers.
It is perfectly legal to buy and possess these substances if you do not intend to use them for manufacturing meth or other illegal drugs. However, purchasing large quantities of these drugs at a time may give police reason to suspect that you are manufacturing drugs.
Let’s look at one Colorado example.
Colorado Case: Stealing Cold Medicine
In 2000, William Frantz’s wife was arrested in Denver for shoplifting cold medicine. She told police that she and her husband extracted pseudoephedrine from cold medicine tablets by dissolving them in water. Frantz’s wife also said they intended to give the pseudoephedrine to another person in exchange for meth.
Police searched the couple’s home and found a jar of water containing pseudoephedrine. Frantz was then arrested and charged with possession of a Schedule II controlled substance and possession with intent to manufacture a Schedule II controlled substance. He was subsequently convicted of both charges and later appealed.
On appeal, Frantz contended that he was convicted merely for possessing a legal over-the-counter medication. However, a Colorado appeals court pointed to:
“the large quantity of tablets possessed, the fact they were dissolved in a jar of water, and his wife’s statement regarding their purpose. The testimony concerning the condition in which the pseudoephedrine tablets were found, when compared to the usual intended dosage of similar pseudoephedrine products, is sufficient to conclude the multiple pseudoephedrine tablets dropped in water were not in their intended and unconverted form.”
People v. Frantz, 114 P.3d 34, 40 (Colo. App. 2004)
The court upheld Frantz’s conviction.
In this case, prosecutors were able to establish a clear connection between the legal drugs and Frantz’s illicit activity.
Now, let’s look at a Colorado case that went the other way.
Colorado Case: A Fire Breaks Out
In April 1984, Douglas County law enforcement responded to a small fire at a private chemical laboratory. Police noticed various chemicals stored on the premises. Agents from the Drug Enforcement Administration (DEA) and the Colorado Bureau of Investigation were called to the scene. They seized chemicals and equipment, including one-and-a-half pounds of phenylacetoacetonitrile. None of the chemicals seized were controlled substances.
The Owner Arrested & Tried
Scott Noland, the lab’s owner, was arrested and charged with attempted manufacture and possession of a Schedule II controlled substance.
At trial, prosecutors presented expert testimony that phenylacetoacetonitrile can be combined with either sulfuric or phosphoric acid to produce phenyl-2-propanone (P-2-P), which is a Schedule II controlled substance. P-2-P is an intermediate compound that can be combined with methylamine to make methamphetamine.
Both sulfuric and phosphoric acid were seized from the laboratory. However, no P-2-P, methylamine, or methamphetamines were found in the laboratory.
Noland’s defense attorneys argued that phenylacetoacetonitrile can also be combined with ethyl alcohol or methanol to produce phenylacetic acid. Phenylacetic acid is a legitimate compound used to make perfume esters, which Noland maintained was what he made in the laboratory. Agents also seized methanol from the lab.
Still, a Douglas County district court held that Noland took a substantial step toward manufacturing a controlled substance. He was convicted of attempted drug manufacturing charges.
Noland appealed his conviction.
On appeal, Noland argued that the prosecution did not present sufficient evidence to support his conviction beyond a reasonable doubt. A Colorado appeals judge agreed.
The appeals judge stated that even though the prosecution had a witness testify that Noland’s lab had the appearance of an illicit operation, the defendant’s lab was equally consistent with a legitimate one.
“Even with the evidence considered in a light most favorable to the prosecution … there is at most only a mere modicum of evidence the defendant took a substantial step toward manufacture of P-2-P. Consequently, we conclude that the evidence presented at trial was insufficient to support the conviction.”
People v. Noland, 739 P.2d 906, 908 (Colo. App. 1987)
In November 2012, Colorado voters approved Amendment 64 legalizing recreational marijuana possession for adults.
Beyond that, however, Amendment 64 also created tiers of protected activities relating to marijuana. This includes the lawful operation of marijuana-related facilities, which refers to activities associated with the regulated-marijuana business. Some of these activities are protected only for people with certain current, valid licenses.
Keep reading to learn how one Colorado man found this out the hard way.
Colorado Case: An Explosion
In 2015, Austin Lente tried to extract hash oil from a jar of marijuana by injecting butane through a hole in the lid. Unfortunately, the bottom of the jar broke, spilling butane on the floor and setting the laundry room ablaze in Lente’s Colorado Springs home.
Police arrested Lente and charged him with processing or manufacturing marijuana or marijuana concentrate — a level 3 drug felony.
Lente seemed to catch a break when an El Paso County district court dismissed his case. The court reasoned that Lente was protected under Colorado’s Amendment 64, which legalized recreational marijuana.
Prosecutors appealed the court’s ruling, and Lente soon found himself arguing his case before the Colorado Supreme Court.
Colorado’s Highest Court Reverses the Dismissal
Lente admitted he did not have the required licenses to manufacture marijuana. However, he argued that extracting hash oil fell under the protected personal use of processing marijuana plants. Processing marijuana plants for personal use does not require a license under Colorado law.
However, the Colorado Supreme Court ultimately ruled that extracting hash oil from marijuana is a step above mere processing of marijuana. Therefore, it required a license.
The Controlled Substances Act narrowly defines “manufacturing” as “extraction or chemical synthesis,” Associate Justice William Hood wrote in the court’s opinion. Therefore, Hood wrote, “processing” must mean something else:
Because the method of making hash oil at issue here clearly involves extraction, it is manufacturing, not processing, under the CSA… We hold that Amendment 64 does not protect unlicensed hash-oil extraction.
People v. Lente, 2017 CO 74, ¶¶ 22-23, 406 P.3d 829, 833
The Supreme Court overturned the lower court’s ruling.
Get a Criminal Defense Attorney for Drug Charges
The Colorado criminal justice system is not kind to those facing drug manufacturing charges. Let Robinson & Henry’s Criminal Defense Team help protect your future. We will aggressively advocate for you every step of the way. Call 303-688-0944 today to begin your free case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.