Colorado Gets Real on Criminal Justice Reform and Changes the Way We Treat Drug Crimes

Revisions to C.R.S. 18-18-403.4 – Unlawful Possession of a Controlled Substance

As of March 1, 2020, it is no longer a felony in the State of Colorado to possess Schedule I or II drugs. Previously, possession of a Schedule I or II drugs was classified as a level 4 felony. After an amendment to the legislation regarding unlawful possession of a controlled substance, C.R.S. 18-18-403.4, passed under House Bill 19-1263, possession of Schedule I or II drugs (under 4 grams), and 3-6 ounces of marijuana concentrate has been demoted from a level 4 felony to a level I misdemeanor. It also reduces charges on possession of 3 ounces or less from a level 1 misdemeanor to a level 2 misdemeanor. These changes greatly reduce the maximum penalties for these offenses on defendants. As well, 19-1263 removed the possible jail sentence for first or second convictions for abusing toxic vapors, and prosecutors can no longer charge defendants with possession of residual drugs found on paraphernalia. With these changes in mind, let’s take a look at C.R.S. 18-18-403.4, and how Colorado handles drug misdemeanors and drug felonies.

What is Unlawful Possession?

Also known as “possession for personal use” or “simple possession”, C.R.S. 18-18-403.5 states that “it is unlawful for a person to knowingly possess a controlled substance.” In order to understand this, we need a few definitions:

• A “controlled substance” is any drug which is regulated by the government
• “Possession” is defined as having physical control over a drug.

While many people think of possession as literally having an illegal substance, there are actually several different kinds of possession in the eyes of the prosecution:

1. Actual Possession – physically having/touching an illegal substance

• Having a dime bag in your pocket

2. Constructive Possession – maintaining control over an illegal substance without touching it

• Police find crystal meth in the locked glovebox of your car

3. Joint Possession – when 2+ people share control over an illegal substance

• A husband and wife keep their shared stash inside a safe in their home

It is important to note that under these given definitions, it is possible to be charged with possession even if you did not physically have the drugs at the time. For example – in the case where a friend was allegedly holding. Illegal drugs for the other, both parties could face legal consequences.

What are the consequences in Colorado?

Punishment for unlawful possession of controlled substances is based on the schedule of the drug, determined by the drug’s acceptable medical use and the drug’s potential for dependency/abuse. The scale runs from 1-5; 1 being the least medically applicable and most addictive, 5 having current medical uses and minimal consequences/addictive tendencies. Below are some common drugs categorized by schedule:

Schedule 1	Heroin MDMA (Ecstasy or “Molly”) LSD GHB BZP Most Cathidones (“Bath Salts”)
Schedule 2	Methamphetamine Amphetamine Cocaine Synthetic opioids – Morphine, Oxycontin, Vicodin, Codeine, Methadone, etc Psilocybin (“Magic Mushrooms”)* Opium PCP (“Angel Dust”) Mescalin
Schedule 3	Ketamine (“Special K” or “K”) Anabolic steroids Hydrocodone
Schedule 4	Benzodiazepines  – Xanax, Valium, etc Ambien(or other prescription sleep aids)
Schedule 5	Buprenorphine Medications w/ small amounts codeine or opium

*Note: the Denver DA does not prosecute for simple possession of mushrooms, after they were decriminalized through Initiative 301 in the 2019 election

Misdemeanors

Based on C.R.S. 18-18-403.5, in Colorado it is a level 1 drug misdemeanor to possess any of the following:

• 4 grams or less of Schedule I drugs (cathinones and GHB excluded)
• 4 grams or less of Schedule II drugs
• Schedule III drugs (Ketamine excluded)
• Schedule IV drugs (Rohypnol excluded)
• Schedule V drugs

The minimum punishment for a level 1 drug misdemeanor is:

• 6 months in jail and/or;
• $500 in fines

The maximum punishment for a level 1 misdemeanor is:

• 18 months in jail and/or;
• $5000 in fines

After the induction of House Bill 19-1263 on March 1, 2020, the penalties for unlawful possession in Colorado are:

• Up to 2 years probation (often includes community service, drug testing/use assessment, and counseling/therapy treatment)
• Possible 180 days jail time
• Maximum $1000 in fines

*Note: In Colorado, a 3^rd subsequent level 1 drug offense raises the maximum jail sentence to 364 days. A 4^th subsequent offense is bumped up from a level 1 misdemeanor to a level 4 drug felony.

While drug misdemeanors carry less significant legal ramifications that drug felonies, a drug misdemeanor should not be ignored, as it may put your finances and your freedom in jeopardy. If you are facing misdemeanor charges in Denver, a relentless criminal defense will be crucial to defeating the charges against you – reach out to attorney Casey Krizman.

Felonies

After the changes made to Colorado drug laws made in March 2020, it is now a level 4 drug felony to possess any of the following:

• Greater than 4 grams of a Schedule I drug
• Greater than 4 grams of a Schedule II drug
• Any amount of Ketamine, Bath Salts, or Rohypnol

The usual sentence for a level 4 drug felony is:

• 6-12 months in prison, followed by 1 year parole, and/or;
• $100-100,000 in fines, and;
• A $1500-$4500 drug offender surcharge

In some cases, a level 4 drug felony can be reduced to a level 1 drug misdemeanor, if the defendant successfully completes probation (with some other requirements). Drug felonies are very serious – but with an experienced legal defense on your side (such as Casey Krizman), these serious charges can be greatly reduced or, in some cases, dismissed entirely.

Aggravated felonies

If a defendant is charged with possession in certain “aggravated” cases, they can be charged with up to double the typical prison sentence for felony possession. Examples of situations which could lead to an aggravated felony charge are if the defendant is:

• On parole for a different felony
• On probation/ bond (not all cases)
• A convicted felon

An aggravated felony conviction can result in jailtime from 1-2 years – if you are facing these charges, seek out a relentless criminal defense to help you minimize your sentence.

Sealing the Record

In many cases, it is beneficial to you to have your record sealed as soon as possible – drug cases (such as unlawful possession) will appear on background checks to employers, and can impact housing and work opportunities.

Drug convictions can be sealed, but there is a waiting period in Colorado:

• Misdemeanor drug convictions can be sealed 5 years after the case is closed
• Felony convictions can be sealed after 7 years

However, dismissed drug convictions can be sealed immediately – speak with an attorney about how best to fight your case to see what can be done to fight the charges against you, or if you need help sealing your record.

Will a drug conviction affect my immigration status?

Yes, you can be deported for a possession offense, and you can lose your immigration status in the US. With the exception of one offense – possessing 30 grams or less or marijuana – all non-US citizens risk deportation for drug charges. In order to ensure that they are not removed from the US, it is imperative that non-citizens fight to have their case dismissed, and consult with an attorney about creating an immigration-safe mitigation plan.

Will it affect my gun rights?

As per federal law, convicted felons are not permitted to own firearms. This means that anyone who is charged with felony drug possession would forfeit their gun rights. In addition, federal law does not allow unlawful drug users to own or purchase firearms. Based on the particulars of the case, this means that a defendant convict only of misdemeanor possession could lose their gun rights as well.

In some instances, a defendant may be able to regain their gun rights through a Governor’s Pardon. As well, successful completion of a wobbler and the reduction of charges from a drug felony to drug misdemeanor may be enough to regain ownership.

Wobblers

In Colorado, a “wobbler” is a drug offense that is reduced to a level 1 drug misdemeanor from a level 4 drug felony – after the defendant successfully completes probation/community corrections. Because misdemeanors carry significantly lower penalties than felonies, wobblers allow prosecutors to rehabilitate rather than unfairly punish convicted persons, and are very beneficial for defendants as well.

Wobblers in Colorado

Here is a list of the level 4 drug felonies which may be reduced to level 1 misdemeanors:

• Possessing 4 grams or less of Schedule I or II drugs
• Possessing 2 grams or less of heroin, methamphetamine, ketamine, or cathinones
• Possession of more than 12 ounces of marijuana
• Possession of more than 3 ounces of marijuana concentrate
• Possessing 4 milligrams or less of Rohypnol
• “buddy distro” – distribution of 4 grams or less of Schedule I or II drugs, with the intention of consuming the drugs with another person within a close time of the distribution
• “buddy distro” – distribution of 2 grams or less of heroin, methamphetamine, ketamine, or cathinones (same intent)
• Prescription fraud (see C.R.S. 18-18-415)

How they Work

After a defendant is convicted of a qualifying level 4 drug felony, they may then begin either probation or a community corrections program (based on the particulars of the given case). The defendant may also have to:

• Complete mandated hours of community service
• Attend therapy, counseling, or rehab
• Remain on house arrest or keep a curfew
• Abstain from drugs and alcohol and submit regular drug tests
• Pay fines
• Avoid further charges and incidents with the law

When the defendant successfully completes their end of the probationary sentence, the court will demote the felony conviction to a level 1 misdemeanor. If the defendant does not complete probation, however, the felony will remain (in some cases, violation of probation may be grounds for imprisonment as well).

Who Qualifies?

Anyone who is charged with a qualifying DF4 qualifies to have their conviction reduced through the successful completion of probation, except for those listed below:

• Anyone convicted of a violent crime according to C.R.S. 18-1.3-406 (includes some sex offense violent crimes)
• Anyone with 2+ previous felony convictions – Even if these previous cases have been reduces through the wobbler process or another diversion tactic, 2 prior misdemeanor convictions that were reduced from felonies would still disqualify a defendant from a wobbler.
• Anyone ineligible for probation in accordance with C.R.S. 18-1.3-201

What’s the Difference – Benefits of Wobblers

Misdemeanors are preferable to defendants in both the short and long term. Here’s why:

• Felonies carry much harsher penalties than misdemeanors, oftentimes carrying mandatory jailtime – this can often be avoided through probation and a misdemeanor conviction
• As mentioned earlier, misdemeanor records can be sealed much quicker than felony convictions, allowing you to put your case behind you and move forward with your life
• Misdemeanor drug convictions look much better to potential employers and on background checks – many people will not hire convicted felons of any sort, so reducing your charges to a misdemeanor can be very helpful
• As mentioned above, in some cases defendants charged with misdemeanor drug convictions may be allowed to maintain their gun rights.

Regardless of whether you qualify for a wobbler, a relentless criminal defense will be critical in fighting your misdemeanor or felony drug charges. Reach out to Casey Krizman at (303) 529-2677 for experienced legal advise.