Under CRS 18-12-108, the state of Colorado prohibits the possession of a weapon by a previous offender – a crime commonly abbreviated as “POWPO“. This class 5 felony occurs when a convicted felon knowingly possesses, uses or carries a firearm or other prohibited weapon.
The language of CRS 18-12-108 states that:
A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as defined in section 18-1-901 (3)(h) or any other weapon that is subject to the provisions of this article 12 subsequent to the person’s conviction for a felony crime as defined in section 24-4.1-302 (1), or subsequent to the person’s conviction for attempt or conspiracy to commit a crime as defined in section 24-4.1-302 (1) that is a felony, under Colorado or any other state’s law or under federal law.
Specifically, the law applies if the person has been convicted of
- a felony offense listed under CRS 24-4.1-302(1),
- a juvenile act that would constitute one of the felonies listed under CRS 24-4.1-302(1) if committed by an adult (but only for 10 years from the date of juvenile adjudication), and
- misdemeanor offenses related to domestic violence
A class 5 felony, possession of a weapon by a previous offender carries:
- Up to 3 years in prison, and/or
- A fine of up to $100,000.
To help you better understand the law, our Denver Colorado criminal defense lawyers discuss, below:
- 1. What are the elements of a POWPO charge?
- 2. What are the CRS 18-12-108 penalties?
- 3. How can a person defend against these charges?
- 4. Is POWPO a deportable offense?
- 5. Related offenses
1. What are the elements of a POWPO charge?
Colorado’s POWPO law under CRS 18-12-108 prohibits people from knowingly possessing firearms and other weapons following a conviction of any of the following felonies:
- Murder in the first degree (CRS 18-3-102);
- Murder in the second degree (CRS 18-3-103);
- Manslaughter (CRS 18-3-104);
- Criminally negligent homicide (CRS 18-3-105);
- Vehicular homicide (CRS 18-3-106);
- Assault in the first degree (CRS 18-3-202);
- Assault in the second degree (CRS 18-3-203);
- Vehicular assault (CRS 18-3-205);
- Menacing (CRS 18-3-206);
- First-degree kidnapping (CRS 18-3-301);
- Second-degree kidnapping (CRS 18-3-302);
- Sexual assault (CRS 18-3-402);
- Unlawful sexual contact (CRS 18-3-404);
- Sexual assault on a child (CRS 18-3-405);
- Sexual assault on a child by one in a position of trust (CRS 18-3-405.3);
- Sexual assault on a client by a psychotherapist (CRS 18-3-405.5);
- Invasion of privacy for sexual gratification (CRS 18-3-405.6);
- Robbery (CRS 18-4-301);
- Aggravated robbery (CRS 18-4-302);
- Aggravated robbery of controlled substances (CRS 18-4-303);
- Incest (CRS 18-6-301);
- Aggravated incest (CRS 18-6-302);
- Child abuse (CRS 18-6-401);
- Sexual exploitation of children (CRS 18-6-403);
- Crimes against at-risk adults or at-risk juveniles (CRS 18-6.5-103);
- Any crime identified by law enforcement prior to the filing of charges as domestic violence, as defined in CRS 18-6-800.3 (1);
- An act identified by a district attorney in a formal criminal charge as domestic violence, as defined in CRS 18-6-800.3 (1);
- Any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in CRS 18-6-800.3 (1), pursuant to CRS 18-6-801 (1);
- Stalking (CRS 18-3-602);
- A bias-motivated crime (CRS 18-9-121);
- Failure to stop at the scene of an accident (CRS 42-4-1601), where the accident results in the death or serious bodily injury of another person;
- Retaliation against a witness or victim (CRS 18-8-706);
- Intimidating a witness or a victim (CRS 18-8-704);
- Aggravated intimidation of a witness or a victim (CRS 18-8-705);
- Tampering with a witness or victim (CRS 18-8-707);
- Indecent exposure (CRS 18-7-302);
- Human trafficking (CRS 18-3-504);
- Sex trafficking (CRS 18-3-504);
- First degree burglary (CRS 18-4-202);
- Second degree burglary of a dwelling (CRS 18-4-203 (2)(a));
- Retaliation against a judge or elected official (CRS 18-8-615);
- Retaliation against a prosecutor (CRS 18-8-616);
- Retaliation against a juror (CRS 18-8-706.5);
- Child prostitution (CRS 18-7-401);
- Soliciting for child prostitution (CRS 18-7-402);
- Procurement of a child for sexual exploitation (CRS 18-6-404);
- Pimping of a child (CRS 18-7-405);
- Inducement of child prostitution (CRS 18-7-405.5);
- Patronizing a prostituted child (CRS 18-7-406); and/or
- Any criminal attempt (CRS 18-2-101), any conspiracy (CRS 18-2-201), any criminal solicitation (CRS 18-2-301), and any accessory to a crime (CRS 18-8-105), involving any of the aforementioned offenses.
Colorado’s POWPO law also applies to people convicted as juveniles of any of the above crimes if the adjudication occurred within the last 10 years.
Finally, Colorado’s POWPO law prohibits people from knowingly possessing firearms and other weapons following a misdemeanor conviction related to domestic violence, such as assault in the third degree (CRS 18-3-204) or harassment (CRS 18-9-111).
For purposes of CRS 18-12-108, you were “previously convicted” even if you pleaded “guilty” or “no contest” and received a deferred judgment. An actual judgment of conviction and sentencing are not required.1
“Firearm” means any handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging, cartridges, or other explosive charges.2
1.1. The meaning of “knowingly”
A person acts “knowingly” with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts “knowingly” with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.3
The “knowingly” requirement in a possession of a weapon by a previous offender (POWPO) case applies to the possession element of the offense, and not to the prior felony conviction element.4 Possession of the weapon alone is not enough. The prosecutor must show that you knew you had the weapon and that you understood that what you possessed was a weapon.5
Example: Nancy is at a flea market when she finds an antique cane she thinks her boyfriend, Omar, would like. She buys it and gives it to him. Unbeknownst to either of them, the cane is actually a gun. Omar served time 5 years earlier for a burglary (during which he was injured). If he is caught with the cane gun and can prove he didn’t know what it was, he has a defense to the POWPO charges.
1.2. The meaning of “possession”
You “possess” a weapon when you have actual or constructive control of it either by yourself or shared with another person.6
You have “actual possession” when you have direct physical control over the weapon. You have “constructive possession” of a weapon when, although lacking physical custody of the firearm, you still have the power and intent to exercise control over it.7
1.3. What weapons count under Colorado’s POWPO statute?
Any type of gun will bring you into violation of CRS 18-12-108 if you have a prior felony conviction. The gun does not even need to be capable of actually discharging a bullet. Merely possessing a gun with a broken firing mechanism is enough to put you in violation of Colorado’s POWPO law.8
The POWPO statute also applies to non-firearm weapons such as switchblades, ballistic knives, and other dangerous weapons or deadly weapons.
2. What are the CRS 18-12-108 penalties?
Possession of a weapon by a previous offender is a Colorado class 5 felony. POWPO consequences include:
- 1 to 3 years in Colorado State Prison, and/or
- $1,000 to $100,000 in fines
Probation is not available if the person used – or threatened the use of – the firearm in the commission of another crime.
3. How can a person defend against these charges?
The best defense to Colorado POWPO charges depends on the facts of your case. However, defenses we commonly see include (but are not limited to):
- The weapon belonged entirely to someone else.
- You had no right of physical control over the weapon.
- You didn’t know you had the weapon.
- You knew you had the item, but you didn’t know it was a weapon.
- You possessed the weapon at home solely for the constitutionally protected purpose of defending your home, person, or property.10
- You possessed a knife that could be used as a deadly weapon, but your only purpose was a legitimate one (for instance, food preparation).
- The weapon was discovered during an illegal search and seizure in violation of your Fourth Amendment rights.
- Your prior conviction was obtained in violation of your constitutional rights.11
4. Is POWPO a deportable offense?
Yes. Any firearms-related conviction is deportable.12 Therefore, non-citizens facing a POWPO charge should hire an experienced attorney right away. Perhaps the lawyer can get the charge reduced or dismissed, allowing the defendant to remain on U.S. soil.
5. Related offenses
5.1. Unlawful purchase of firearms
People face charges for unlawful purchase of a firearm (CRS 18-12-111) if they knowingly purchase a gun even though they are ineligible to own a firearm. (Examples of people who may not own guns are convicted felons, fugitives, and drug addicts.) It is a class 4 felony, and penalties include 2 to 6 years in prison (with 3 years mandatory parole) and/or a fine of $2,000 to $500,000.
5.2. Carrying concealed without a permit
People who carry hidden firearms with no current and valid CCW card face charges for carrying concealed without a permit (CRS 18-12-105). A first-time conviction is a class 1 misdemeanor, carrying up to 364 days in jail, and/or a fine of up to $1,000. A subsequent conviction within five years is a class 5 felony, carrying 1 to 3 years in prison (with 2 years mandatory parole), and/or a fine of $1,000 to $100,000.
5.3. Unlawful discharge of a firearm
Unlawful discharge of a firearm (CRS 18-12-107.5) is when someone knowingly or recklessly fires a gun into any dwelling, building, occupied structure, or occupied vehicle. A class 5 felony, it carries 1 to 3 years in prison (with 2 years mandatory parole), and/or a fine of $1,000 to $100,000.
If you have been arrested for a violation of Colorado gun laws or other Colorado weapons charges, we invite you to contact us. One of our experienced Colorado criminal lawyers will get back to you quickly to discuss your case and your best defenses to POWPO criminal charges. We create attorney-client relationships throughout the state of Colorado, including Denver, Greeley, Colorado Springs, Jefferson County, Arapahoe, and more.
- People v. Allaire, App.1992, 843 P.2d 38, certiorari denied. See also People v. Wright, 2021 COA 106.
- CRS 18-1-901(3)(h).
- CRS 18-1-501 (6).
- See CRS 18-12-108.
- People v. Tenorio, 1979, 590 P.2d 952, 197 Colo. 137.
- People v. Rivera, App.1988, 765 P.2d 624, certiorari granted, reversed 792 P.2d 786; People v. Martinez, 1989, 780 P.2d 560.
- Henderson v. U.S., 2015, 135 S.Ct. 1780, 191 L.Ed.2d 874, on remand 795 F.3d 1254.
- People v. O’Neal, App.2009, 228 P.3d 211, rehearing denied, certiorari denied 2010 WL 1436208.
- CRS 18-1-901 (3)(e). Prior to March 1, 2022, the POWPO penalties were different. In most cases, first-time possession of a weapon by a convicted felon was a Colorado class 6 felony. Consequences of possessing a weapon if you are a convicted felon included 1 – 1 ½ years in prison (with 1-year mandatory parole), and/or a fine of $1,000-$100,000. However, the offense rose to a Colorado class 5 felony if the weapon you are caught with is a dangerous weapon under CRS 18-12-102(1), or your previous conviction occurred within 10 years of the later of the date of conviction (if you were not incarcerated) or the date on which you were released from the court’s supervision and it was for: burglary, arson, or any felony involving the use of force or the use of a deadly weapon. For purposes of Colorado’s POWPO law, the term “dangerous weapon” means a: firearm silencer, machine gun, short shotgun (barrel less than 18” and overall length of less than 26”), short rifle (barrel less than 16” and overall length of less than 26”), or ballistic knife. “Deadly weapon” means: A firearm, whether loaded or unloaded; or A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury. And finally, a second or subsequent conviction for any act that would be a class 5 felony as set forth above became a Colorado class 4 felony. In such a case, the punishment for possession of a weapon by a previous offender included 2-6 years in prison (with 3 years mandatory parole), and/or a fine of $2,000-$500,000. SB21-271.
- See CRS 18-12-108.
- People v. Quintana, 1985, 707 P.2d 355; People v. Kimble, App.1984, 692 P.2d 1142, certiorari granted 697 P.2d 716, appeal dismissed 701 P.2d 17.
- 8 USC § 1227(a)(2)(C), INA § 237(a)(2)(C).