FAQ: What is CRS 18.18.403.5: Unlawful Possession of a Controlled Substance?

Anybody who is facing a possession with a controlled substance charge has been caught allegedly holding illegal drugs. Depending on what schedule it is, whether it’s a schedule II or schedule IV, you are going to have a different charge, but it also depends on how much you were carrying. If someone’s being charged with unlawful possession of a controlled substance, it’s likely they either committed a singular crime of possessing a controlled substance or committed another crime, and while they were doing it, they also had a controlled substance on them.

A lot of times, what that means is cocaine, methamphetamine, crack cocaine, and heroin, but less often. It can also mean marijuana but less often as well because generally, with marijuana being mostly legal here in Colorado, it’s more about possession with intent to distribute, which is where someone possesses the drugs and there’s indicia that they might be trying to sell it, whether they are extra bags or the amount is so high, etc.

But at a basic level, simple possession of a hard drug is what’s involved in the case of CRS 18.18.403.5. A lot of people are confused about this part of the criminal statutes because I think the law is fairly convoluted. I don’t think anybody knows when they’re walking around with three grams of crack exactly where that fits in the possession of a controlled substance statute. So then they get charged, and they need to ask all kinds of questions: “Oh wait, is that a felony or a misdemeanor? Is there a mandatory prison sentence? Are they saying that I’m dealing or just possessing?”

So I think it’s a statute that requires a lot of explanation as to what exactly it all means and depending upon what subsection you’re charged under, it’s going to be a level 1, 2, 3, or 4 drug felony, or perhaps even just a drug misdemeanor based on what it is. The good news for people who are being charged with CRS 18.18.403.5 is that one of my specialties as a criminal defense attorney is dangerous drug defense.

Some drug cases may involve the government “tapping” someone’s phone and listening to the conversations. This is called a “wiretap,” and it is one of the most invasive intrusions of privacy the government can do. For example, take somebody who has been charged with possession of a controlled substance in potentially the most aggravated of cases where they were being listened to on a wiretap.

There are only a few attorneys here in Colorado who know how to litigate a wiretap. I’m one of those people who can because A) the law is a bit hairy on the subject, and B) it just doesn’t happen a lot. So, generally, you’re going to want someone who has experience on a wiretap to be litigating your wiretap. So there’s that on the most aggravated end.

And then, there are things other things like possession of mushrooms, which at this point are decriminalized in the City of Denver but not anywhere else in the Denver Metro area. The interesting thing about these drug crimes is that there are a lot of moving parts. If you plead to certain charges and successfully complete probation, your felony may “wobble” down to a misdemeanor upon successful completion. A lot of times, we talk about deferred judgments in this area. While a “wobbler” is not a deferred judgment, it does allow you to successfully complete probation and have your felony dropped to a misdemeanor. So there’s that.

But then, drug felonies have different, more lenient sentencing guidelines than other felonies. I think because, luckily, the governments are finally starting to figure out that drug abuse is more of a mental health and disease issue, and so they’re not trying to just lock people up as they did in the 1980s with the “War on Drugs.”

So then, how can I help someone being charged with unlawful possession of a controlled substance? Obviously, we’d start by developing a mitigation plan, the same that I always do, where we show the court and the prosecution that this is an aberration for you and that you won’t commit the crime again but then also navigating to different sentencing structures and different possibilities in terms of felony versus misdemeanor, etc.

Being able to navigate the more nuanced laws as it relates to drugs is one of the key aspects of these types of cases. This is a classic example of how I can’t just tell people how their case will turn out or how we’ll defend them until I get them on the phone and talk about all the specifics of their case. I often say there’s no space for cookie-cutter cases in criminal law, ever, really, but this is proof in the pudding.

If someone is searching online for CRS 18.18.403.5, they’re likely getting that number from their charging document, probably their “complaint and information,” which is what the prosecutor files with the court that specifically states the felony charges filed against them.

Let’s say, (police misconduct issues aside) if you’re walking down the street and you’re found with three grams of cocaine, and that’s all you’ve done, then you can be charged with just that charge. But a lot of times, it’s a DUI and theft or breaking and entering, and when the cops do a pat-down, they find your meth, so now you have that second charge.