Unlawful Possession of a Controlled Substance
(Colorado 18-18-403.5 C.R.S.)

young man with pills, a hypodermic need and cocaine spelling "drugs"

Colorado drug possession

Section 18-18-403.5 of the Colorado Revised Statutes (C.R.S.) makes it a crime to knowingly and unlawfully possess a controlled substance.

Controlled substances include both recreational drugs and prescription medicines. You do not violate this law if you hold a valid prescription for the quantity and type of drug you possess, or if you legally purchased the substance over-the-counter in the U.S. (or elsewhere, if not prohibited by U.S. law). 

Depending on the drug's classification (discussed below), unlawful possession of a controlled substance can be either:

  • A Colorado class 4 drug felony, or
  • A Colorado class 1 drug misdemeanor.

Punishment for Colorado felony drug possession

Possession of highly addictive and commonly used drugs is a felony unless you hold a valid prescription. Drugs in this category include frequently abused drugs such as heroin, cocaine, methamphetamine, Vicodin, OxyContin and hallucinogens.

Penalties for Colorado felony drug possession can include:

  • Up to a year in prison, and/or
  • A fine of up to $100,000, and/or
  • Probation in lieu of either a fine, incarceration or both.

However, if there are certain aggravating factors -- such as prior felony convictions -- the sentence for felony possession of a controlled substance can increase to as much 2 years.

Punishment for Colorado misdemeanor drug possession

Possession of other medications (such as Valium, Xanax, sleeping pills or anabolic steroids) without a valid prescription is a misdemeanor. Consequences of a Colorado misdemeanor drug possession charge can include:

  • Up to 18 months in jail, and/or
  • A fine of up to $5,000, and/or
  • Probation in lieu of either a fine, incarceration or both.

Colorado's drug laws are full of nuances and exceptions. To help you better understand Colorado's law on illegal possession of a controlled substance law, our Colorado criminal defense lawyers discuss the following, below:

man taking pill out of blister pack

1. What is a controlled substance?

A controlled substance is a drug or chemical, the manufacture, possession, or use of which is regulated by the government. Controlled substances include narcotics and other illegal drugs, as well as prescription medications, over-the-counter drugs, imitation drugs and drug alternatives (such as Spice and Bath Salts).

For purposes of Colorado drug laws, controlled substances are classified into Schedules, depending on their potential for abuse and their medically accepted use.

Note that marijuana possession and synthetic cannabis are not covered by 18-18-403.5. For more information, please see our article on Colorado marijuana laws.

1.1. Controlled substances leading to felony possession charges

Controlled substances that can lead to felony possession charges include (but are not limited to):

  • Flunitrazepam (Rohypnol), 
  • Ketamine (Special K), 
  • Cathinones (Khat or “Bath Salts”), or 
  • Any Schedule 1 or Schedule II controlled substance. 

1.1.1. Schedule I controlled subtances

Schedule I drugs are those that have a high potential for abuse, have no currently accepted medical use in the United States, and lack accepted safety for use under medical supervision.

Schedule I drugs include, without limitation:

  • Heroin,
  • GHB,
  • BZP, and
  • Theoretically possible (but not yet existing) synthetic opiates, opium derivatives, hallucinogens and nervous system depressants.

1.2. Schedule II controlled substances

Schedule II drugs are those with a high potential for abuse, restricted medical use in the United States, and the potential for abuse to lead to severe psychological or physical dependence.

Schedule II drugs include, without limitation:

  • Opium,
  • Codeine,
  • Morphine,
  • Vicodin, 
  • Oxycontin,
  • Methadone,
  • Peyote,
  • Mescaline,
  • Psilocybin (magic mushrooms),
  • Cocaine,
  • Amphetamine,
  • Methamphetamine, and
  • Barbiturates.

1.1.3. Rohypnol, ketamine and bath salts

Although not classified as Schedule I or II controlled substances, possession of certain drugs can, nevertheless, lead to felony drug possession charges. These drugs are:

  • Flunitrazepam (Rohypnol), 
  • Ketamine ("K" or "Special K"), and
  • Cathinones (Khat or “Bath Salts”).

1.2. Controlled substances leading to misdemeanor possession charges

muscular man injecting anabolic steroids into his bicep
Possessing anabolic steroids is illegal in Colorado without a valid prescription

Drugs leading to misdemeanor possession charges are those listed as schedule III, IV, or V controlled substances (other than Rohypnol and Ketamine, possession of which is a felony).

1.2.1. Schedule III controlled substances

Schedule III controlled substances have a lower potential for abuse than schedule I and II drugs, a currently accepted medical use in the United States, and a moderate or low potential for abuse to lead to physical dependence or high psychological dependence.

Schedule III controlled substances include (without limitation) less addictive stimulants, barbiturates, anabolic steroids, and medications containing small amounts of codeine or morphine. Ketamine is also a Schedule III drug; however, possession of Ketamine is a Colorado felony.

1.2.2. Schedule IV controlled substances

Schedule IV controlled substances have an even lower potential for abuse, a currently accepted medical use in the United States, and a potential for limited physical dependence or psychological dependence relative to the substances included in schedule III.

Schedule IV controlled substances include benzodiazepines (such as Valium and Xanax) and prescription sleep medications (such as Ambien).

1.2.3. Schedule V controlled substances

Schedule V controlled substances have a low potential for abuse relative to Schedule IV substances, a currently accepted medical use in the United States, and the potential for limited physical dependence or psychological dependence relative to the substances in schedule IV.

Schedule V controlled substances include (but are not limited to) medications containing very small amounts of codeine or opium.

2. Penalties for unlawful possession of a controlled substance

2.1. Felony possession

Absent aggravating circumstances (as set forth below), punishment for felony possession of a controlled substance in Colorado can include:

  • 6-12 months in prison (plus 1 year of parole), and/or
  • A fine of $1,000-$100,000.

Alternatively, unless you are ineligible for probation[1] due to prior felony convictions or otherwise, the court may suspend sentencing or delay your incarceration. This is usually to allow you to complete drug assessment and treatment. The court may impose conditions on probation including that:

  • You not use drugs while on probation,
  • You complete a court-approved drug treatment program, and/or
  • You not commit any other crimes.

2.2. Aggravated felony possession

Under aggravating circumstances, the court can or must impose a longer sentence for a felony drug possession charges. If the court sentences you to incarceration due to aggravated circumstances, the minimum sentence is 9 months in prison.

However, punishment for an aggravated Colorado drug felony can go as high as:

  • 1-2 years in prison (plus 1 year of parole), and
  • A fine of $1,000-$100,000.

Circumstances that require mandatory sentencing in the aggravated range include:

  • You were on parole for another felony;
  • You were on probation or bond while awaiting sentencing following revocation of probation for another felony;
  • You were under confinement, in prison, or in any correctional institution as a convicted felon, or you were an escapee from any correctional institution for another felony;
  • You were on appeal bond following your conviction for a previous felony;
  • You were on probation for, or on bond while awaiting sentencing following revocation of probation for, a delinquent act that would have constituted a felony if committed by an adult; or
  • Any other factors the court deems appropriate.

The court also has the discretion to sentence you to an aggravated sentence if, at the time you committed a drug felony:

  • You were charged with, or were on bond for, a felony in a previous case and you were convicted of any felony in the previous case;
  • You were charged with, or were on bond for, a delinquent act that would have constituted a felony if committed by an adult;
  • You were on bond for having pled guilty to a lesser offense when the original offense charged was a felony;
  • You were under a deferred judgment and sentence for another felony;
  • You were on bond in a juvenile prosecution for having pled guilty to a lesser delinquent act when the original delinquent act charged would have constituted a felony if committed by an adult;
  • You were under a deferred judgment and sentence for a delinquent act that would have constituted a felony if committed by an adult; or
  • You were on parole for having been adjudicated a delinquent child for an offense that would constitute a felony if committed by an adult.

 2.3. Mandatory incarceration for repeat felony offenders

You are not eligible for probation or a fine in lieu of imprisonment, community corrections, or work release if you have two or more prior convictions for a felony under the laws of Colorado or any other state, or federal law.[2]

2.4. Misdemeanor possession

Consequences of a Colorado level 1 drug misdemeanor conviction can include:

  • 6-18 months in jail, and/or
  • A fine of $500-$5,000.

Alternatively, the court can sentence you to probation, community corrections or work release. Conditions of probation may include drug assessment and counseling, as well as any other terms and conditions the court deems just.

3. Defending Colorado drug possession charges

Common defenses to Colorado controlled substance possession include (but are not limited to):

  • The drugs weren't yours and you had no control over them;
  • You had a valid prescription for the controlled substance;
  • You didn't know you possessed the drugs;
  • You didn't know that what you possessed was a controlled substance;
  • The police found only trace amounts of the controlled substance;
  • There was less of the controlled substance than the prosecutor charged (partial defense);
  • The drugs were discovered during an illegal search and seizure in violation of your Fourth Amendment rights; or
  • The police failed to read you your Miranda rights or engaged in other misconduct (such as planting evidence or coercing your confession).

Call us for help…

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Colorado can be fairly lenient when it comes to first-time possession of small quantities of drugs for personal use. However, Colorado judges have wide discretion when it comes to sentencing those who violate Colorado drug laws.

If you or someone you know has been accused of unlawful drug possession, our Colorado drug defense attorneys can fight to get the evidence against you thrown out. Or if what you need is treatment instead of jail or prison, we can argue your case to the prosecutor and the judge and get you the help you need.

Don't risk your freedom and your ability to get a job because of an innocent mistake. Contact us for a free consultation and find out why we are considered some of the best drug attorneys in Colorado.

We answer all inquiries promptly and professionally. You can reach us through the form on this page, or at our centrally located Denver office:

Colorado Legal Defense Group
1400 16th Street
16 Market Square
Denver CO 80202
720-955-6112

Legal references:

  1. See 18-1.3-201 C.R.S.
  2. 18-1.3-401.5 (2)(b)(V) C.R.S.

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