CRS 18-12-108 is the Colorado statute that defines the crime of possession of a weapon by a previous offender (POWPO). This offense occurs when a convicted felon knowingly possesses, uses or carries a firearm or other weapon.
CRS 18-12-108 states that “(1) 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 described in section 18-1-901(3)(h) or any other weapon that is subject to the provisions of this article subsequent to the person’s conviction for a felony, or subsequent to the person’s conviction for attempt or conspiracy to commit 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,
- an attempted felony,
- conspiracy to commit a felony, or
- a juvenile act that would constitute one of the above if committed by an adult.
Punishment for possession of a weapon by a previous offender depends on:
- The crime you were previously convicted of,
- How long it has been since you were convicted, and
- Whether the weapon is considered a “dangerous weapon” under Colorado law.
At their most serious, penalties for first-time possession of a weapon by a previous offender can include:
- Up to 3 years in prison, and/or
- A fine of up to $100,000.
To help you better understand Colorado’s law against possession of a weapon by a convicted felon, our 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
Section 18-12-108 (1) of the Colorado Revised Statutes (C.R.S.) provides:
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 described in section 18-1-901(3)(h) or any other weapon that is subject to the provisions of this article subsequent to the person’s conviction for a felony, or subsequent to the person’s conviction for attempt or conspiracy to commit a felony, under Colorado or any other state’s law or under federal law.
You also commit possession of a weapon by a previous offender if you were a juvenile adjudicated for an act which, if committed by an adult, would constitute a felony or an attempt or conspiracy to commit a felony, under Colorado or any other state’s law or under federal law.
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
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.
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
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
In most cases, first-time possession of a weapon by a convicted felon is a Colorado class 6 felony. Consequences of possessing a weapon if you are a convicted felon can include:
- 1 – 1 ½ years in prison (with 1-year mandatory parole), and/or
- A fine of $1,000-$100,000.
However, the offense rises 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:
- 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.9
And finally, a second or subsequent conviction for any act that would be a class 5 felony as set forth above becomes a Colorado class 4 felony. In such a case, the punishment for possession of a weapon by a previous offender can include:
- 2-6 years in prison (with 3 years mandatory parole), and/or
- A fine of $2,000-$500,000.
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
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.
5.1. 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 2 misdemeanor, carrying 3 to 12 months in jail, and/or a fine of $250 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.
Call us for help…
If you have been arrested for a violation of Colorado gun laws or other Colorado weapons charges, we invite you to contact us for a free consultation. One of our experienced Colorado criminal lawyers will get back to you quickly to discuss your case and your best defenses to POWPO charges.
We can be reached most quickly by using the form on this page. Alternatively, you can call us at our centrally located Denver home office:
Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211
- People v. Allaire, App.1992, 843 P.2d 38, certiorari denied.
- 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).
- 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).