Under Colorado Revised Statute § 18-18-403.5, unlawful drug possession is generally a level 1 drug misdemeanor carrying up to $1,000 in fines and two years of probation.
However, Colorado makes it a level 4 drug felony to possess more than four grams of such serious drugs as heroin, LSD, ecstasy, cocaine, PCP, or methamphetamine. These penalties include:
- 6 months to 1 year in prison (plus 1 year of parole) and/or
- 1,000 to $100,000.
This same sentence applies to possessing any amount of GHB, flunitrazepam, ketamine, or cathinone.
CRS § 18-18-403.5 applies to all types of narcotics except possession of marijuana, including medical marijuana and marijuana concentrate.
Note that “drug possession” also goes by the names:
- “possession for personal use” or
- “simple possession.”
Below, our Denver, Colorado, criminal defense lawyers will address these key topics related to drug possession:
- 1. Elements of CRS 18-18-403.5
- 2. Penalties
- 3. Defenses
- 4. Record Seals
- 5. Gun Rights
- 6. Immigration Consequences
- Frequently Asked Questions
- Additional Resources
1. Elements of CRS 18-18-403.5
For you to be convicted of violating CRS 18-18-403.5, prosecutors have to prove beyond a reasonable doubt that you possessed a controlled substance.
A “controlled substance” is a drug that is regulated by the government. They are classified into one of five “schedules.” Schedule I has the highest potential for abuse, while Schedule V has the least.
“Possession” is having physical control over a drug. There are three types of possession:
- Actual possession is physically touching the drug. An example is holding a Molly pill in your hand.
- Constructive possession is having control over a drug without touching it. An example is hiding containers of speed in a safe.
- Joint possession is when two or more people share control. An example is a couple keeping a stash of smack in their nightstand.
It is also possible to possess drugs without owning them. An example is a friend storing your drugs. In this case, both you and your friend could face possession charges.
Possession of drugs for personal use is often called “simple possession.”
2. Penalties
Drug possession can be a misdemeanor or a felony in Colorado depending on the specific narcotics and the amount involved, as the following table shows:
| Drug Possession Conviction | Colorado Penalties |
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Level 4 drug felony:
The prison sentence could be doubled (1 to 2 years) in “aggravated” cases where you were either:
Note that certain level 4 drug felonies are wobblers, which means they get reduced to level 1 drug misdemeanors if you complete probation.* |
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Level 2 drug felony:
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Level 1 drug misdemeanor:
However, the judge may instead impose:
Note that a fourth or subsequent offense is a level 4 drug felony. |
If you are granted probation, the judge will typically order a drug use assessment, rehab, possible community service, mental health counseling and abstaining from drugs. You may be ineligible for probation if you have two or more prior felony convictions (whether in Colorado or another state).
Note that if you are convicted of possessing fentanyl or similar synthetics, you must also submit to a drug assessment and complete a fentanyl education program.1
Possessing can be a felony or a misdemeanor criminal charge under Colorado drug laws.
3. Defenses
Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with drug possession. In our experience, the following ten defenses have proven very effective with prosecutors, judges, and juries at getting these charges reduced or dismissed.
- The drugs did not belong to you, and you had no control over them.
- You had a valid prescription for the drug.
- You did not know you possessed the drugs. For example, someone planted them on you.
- You did not realize the substance was a controlled substance.
- The police found only trace amounts of the controlled substance.
- A peace officer entrapped you, and you were not predisposed to possessing.
- You were falsely accused. Perhaps the accuser was acting out of anger or revenge.
- The police executed an illegal search and seizure. Unless the original stop or search was lawful, courts can disregard (“suppress”) illegally obtained evidence.
- There was less of the controlled substance than the prosecutor charged. (This is just a partial defense.)
- Law enforcement committed misconduct. An example is coercing a confession or not having probable cause to arrest you.
Note that a level 4 drug felony charge of possessing fentanyl could be reduced to a level 1 misdemeanor if you honestly did not know that the substance contained fentanyl.
Best Evidence
In simple drug possession cases, the evidence we typically rely on includes:
- eyewitness testimony;
- forensic expert testimony;
- video recordings;
- recorded communications, such as texts and voicemails; and
- the drugs themselves.
As long as prosecutors fail to prove guilt beyond a reasonable doubt, your drug charges should be dropped.2
A potential drug possession defense is that someone planted the drugs on you.
4. Record Seals
In Colorado, you can seal misdemeanor drug possession convictions two years after the case. For felony convictions, the wait time is three years after the case ends.
However, if your drug charge gets dismissed, you can petition the court for a record seal right away.3
You should pursue record seals as soon as you are eligible. Otherwise, your criminal record will show up on background checks and could cause you to lose valuable job and housing opportunities.
A felony drug conviction will strip you of your gun rights.
5. Gun Rights
Since federal law prohibits convicted felons from having firearms, a felony drug possession conviction in Colorado would cause you to lose your gun rights.
Federal law also forbids unlawful drug users from having guns. Therefore, depending on your case, you could lose your gun rights even if you were convicted of only misdemeanor drug possession in Colorado.4
In any case, it may be possible to regain your gun rights through a Governor’s Pardon.
Drug possession is deportable.
6. Immigration Consequences
Any non-citizen convicted of possessing narcotics risks being deported from the U.S. The one exception is having 30 grams or less of marijuana. That is roughly one ounce of marijuana possession (specifically, 1.05822 ounces of marijuana).5
If you are charged with possessing narcotics, you may be able to get the case dismissed. Consult with an attorney to explore your immigration criminal defense options.
CRS 18-18-403.5 prohibits drug possession for personal use.
Frequently Asked Questions
How do I know if my drug possession charge is a misdemeanor or felony?
The charge depends on the type and amount of drugs. Most drug possession cases are level 1 misdemeanors with up to $1,000 in fines and two years probation.
However, it becomes a level 4 felony if you have more than four grams of serious drugs like heroin, cocaine, meth, or LSD. Any amount of GHB, Rohypnol, ketamine, or bath salts is also a felony.
What happens if I get convicted of drug possession to my gun rights?
A felony drug possession conviction will permanently take away your gun rights under federal law. Even a misdemeanor conviction could affect your gun rights if you are considered an unlawful drug user. You may be able to restore your rights through a Governor’s Pardon, but it’s not guaranteed.
Can I get my drug possession conviction removed from my record?
Yes, you can seal your record after the case ends. For misdemeanor convictions, you must wait two years. For felony convictions, you must wait three years. If your charges get dismissed, you can petition to seal your record right away.
What are the best defenses against drug possession charges?
Common defenses include proving the drugs were not yours, you had a valid prescription, you did not know the drugs were there, police conducted an unlawful search, or someone falsely accused you. If police found only trace amounts or violated your rights during arrest, these can also be strong defenses.
Additional Resources
If you are struggling with substance abuse addiction, you can find help here:
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
- Recovery Centers of America – Treatment centers in seven states.
- SMART Recovery – Group therapy for young people struggling with addiction.
- Partnership to End Addiction – Information on how to find drug addiction treatment.
Also see our related article on the crime of selling controlled substances.
Legal References:
- Colorado Revised Statutes 18-18-403.5 C.R.S. – Unlawful possession of a controlled substance:
(1) Except as authorized by part 1 or 3 of article 280 of title 12, part 2 of article 80 of title 27, section 18-1-711, section 18-18-428 (1)(b), part 2 or 3 of this article 18, section 18-18-434, article 170 of title 12, or article 50 of title 44, it is unlawful for a person knowingly to possess a controlled substance.
(2) On or after March 1, 2020, a person who violates subsection (1) of this section by possessing:
(a) Any material, compound, mixture, or preparation that contains any quantity of flunitrazepam; ketamine; gamma hydroxybutyrate, including its salts, isomers, and salts of isomers; cathinones; or more than four grams of a controlled substance listed in schedule I or II of part 2 of this article 18 commits a level 4 drug felony.
(b) (Deleted by amendment, L. 2013.)
(c) Any material, compound, mixture, or preparation that contains not more than four grams of a controlled substance listed in schedule I or II of part 2 of this article 18 or any quantity of a controlled substance listed in schedule III, IV, or V of part 2 of this article 18 except flunitrazepam, gamma hydroxybutyrate, or ketamine commits a level 1 drug misdemeanor; except that a fourth or subsequent offense for a violation of this subsection (2)(c) is a level 4 drug felony.
(2.5)
(a) Notwithstanding subsection (2)(c) of this section, on or after July 1, 2022, a person who violates subsection (1) of this section by knowingly possessing:
(I) Any material, compound, mixture, or preparation that weighs more than one gram and not more than four grams and contains any quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), commits a level 4 drug felony;
(II) Any material, compound, mixture, or preparation that weighs not more than one gram and contains any quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), commits a level 1 drug misdemeanor; except that a fourth or subsequent offense for a violation of this subsection (2.5)(a)(II) is a level 4 drug felony.
(b) Notwithstanding the provisions of section 18-18-403.5 (2.5)(a)(I) of this section, when a defendant shows supporting evidence to establish that he or she made a reasonable mistake of fact and did not know that the controlled substance he or she possessed contained fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), the matter shall be submitted to the finder of fact in the form of an interrogatory included in the verdict form. Should the finder of fact determine the defendant made such a reasonable mistake of fact, the defendant commits a level 1 drug misdemeanor.
(2.7)
(a) A person who violates subsection (1) of this section by possessing any material, compound, mixture, or preparation that contains a quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), that is more than sixty percent of the total composition of the material, compound, mixture, or preparation, commits a level 2 drug felony.
(b)
(I) This subsection (2.7) takes effect at 12:01 a.m. thirty days after the date identified in the notice provided to the revisor of statutes by the director of the Colorado bureau of investigation that the Colorado bureau of investigation has the resources to determine the quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), compared to the total composition of the material, compound, mixture, or preparation, or on the date of the notice to the revisor of statutes if the notice does not specify a different date.
(II) The director of the Colorado bureau of investigation shall notify the revisor of statutes in writing when the condition specified in subsection (2.7)(b)(I) of this section has occurred by e-mailing the notice to [email protected].
(III) Concurrent with the notice required in subsection (2.7)(b)(II) of this section, the director of the Colorado bureau of investigation shall notify the speaker of the house of representatives, the president of the senate, the chief justice of the supreme court, the governor, the attorney general, the state public defender, and each district attorney in the state, that the Colorado bureau of investigation has the resources to determine the quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), compared to the total composition of the material, compound, mixture, or preparation.
(IV) This subsection (2.7)(b) is repealed, effective one year after notice to the revisor of statutes pursuant to subsection (2.7)(b)(II) of this section.
(3) If the circumstances described in section 18-18-428 (1)(b) occur, the peace officer shall not arrest the person pursuant to this section for any minuscule, residual controlled substance that may be present in the used hypodermic needle or syringe, and the district attorney shall not charge or prosecute the person pursuant to this section for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe. The circumstances described in section 18-18-428 (1)(b) may be used as a factor in a probable cause or reasonable suspicion determination of any criminal offense if the original stop or search was lawful.
(4) Notwithstanding the provisions of subsection (2) of this section, on or after March 1, 2020, a district attorney shall not charge or prosecute a person pursuant to this section for any minuscule, residual, or unusable amount of a controlled substance that may be present in a used hypodermic needle or syringe, or other drug paraphernalia, as defined in section 18-18-426. The circumstances described in this subsection (4) may be used as a factor in a probable cause or reasonable suspicion determination of any criminal offense if the original stop or search was lawful.
(5) Notwithstanding any provision of this section, a person may be charged with any other offense in this article 18, including unlawful distribution, manufacturing, dispensing, or sale of a controlled substance, or possession with intent to do the same, pursuant to section 18-18-405, when there is evidence for the person to be so charged. Such evidence may include, but is not limited to, the amount of the controlled substance that the person possesses.
(6) Notwithstanding subsection (2) of this section to the contrary, a peace officer shall not arrest and a district attorney shall not charge or prosecute an employee, agent, or volunteer of an eligible entity described in section 25-1.5-115.1 (1) who, in the performance of the person’s duties, is in possession of a controlled substance, including fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), for the purpose of safe disposal of the controlled substance, including fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), in accordance with applicable law. As used in this subsection (6), “safe disposal” means the procedure and process for depositing the controlled substance, including fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), in a secure container for law enforcement to subsequently access and dispose of.CRS 18-18-204. House Bill 22-1326. House Bill 19-1263. See CRS 18-1.3-201. Note that possessing drug paraphernalia is a drug petty offense. CRS 18-1.3-401.5 (2)(b)(V). See also Wells-Yates v. People (Colo. 2019) 454 P.3d 191. See also Melton v. People (Colo. 2019) 451 P.3d 415. People v. Session (Colo.App. 2020) 480 P.3d 747. People v. Astacio (Colo.App. 2025) No. 23CA1076. - See People v. Davis (Colo. 2015) 352 P.3d 950. See also People v. Gonzales (Colo.App. 2017) 415 P.3d 846. See also People v. Yeadon (Colo.App. 2018) 104, 468 P.3d 50.
- CRS 24-72-705.
- 18 U.S.C. § 922(g).
- 8 U.S.C. § 1227(a)(2)(B). See also Johnson v. Barr (10th Cir. 2020) 967 F.3d 1103.