As of March 1, 2020, it is now a level 1 drug misdemeanor in Colorado to be in the unlawful possession of just four or fewer grams of most controlled substances, including methamphetamine, cocaine, heroin, and ecstasy. Defendants can often avoid jail by going on probation, and many are eligible to get their case dismissed by doing a diversion program.
CRS 18-18-403.5 defines the Colorado crime of unlawful possession of a controlled substance (drugs) without a current and valid doctor’s prescription. This offense is also called possession for personal use or simple possession. It applies to all types of narcotics except marijuana, including medical marijuana.
(See our article on possession of marijuana laws.)
CRS 18-18-403.5 states that “[I]t is unlawful for a person knowingly to possess a controlled substance.”
- Going to a party holding a bag of coke.
- Driving with unprescribed Percocet in the center console.
- Hiking with a container of MDMA in a backpack.
Possessing more than four grams of schedule I or II drugs is a level 4 drug felony. And possessing any amount of GHB, Flunitrazepam, Ketamine, or cathinones is also a level 4 drug felony. The typical sentence is:
- 6 months to 2 years in Colorado State Prison, and
- $1,000 to $100,000 in fines
Otherwise, possessing is usually a level 1 drug misdemeanor. The court usually imposes probation of up to 2 years, which may include:
- Possibly 180 days in county jail; and/or
- Up to $1,000
But a 4th or subsequent offense becomes a level 4 drug felony.
Many defendants can get probation instead of jail for these drug crimes. And some cases may get dismissed through a diversion program.
Potential arguments to fight possession charges include:
- The police entrapped the defendant during a drug sting,
- The defendant had a lawful prescription, or
- The defendant did not know the drugs were there
Below our Denver criminal defense lawyers will answer these key questions about Colorado possession laws:
- 1. What is possession of a controlled substance?
- 2. What are the penalties?
- 3. What are common defenses to drug possession charges?
- 4. Can the record be sealed?
- 5. Are gun rights affected?
- 6. What are the immigration consequences?
A controlled substance is a drug that is regulated by the government. Controlled substances are classified into one of five “schedules.” Schedule I has the highest potential for abuse. 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 one’s 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 their stash of smack in their nightstand.
It is also possible to possess drugs without owning them. An example is a friend storing another friend’s drugs. In this case, both friends could face charges for possessing.
Firstly, the punishment for possessing drugs under Colorado law depends on the schedule of drug:
Drugs in Colorado
|Schedule I|| |
Xyrem is a prescription med containing GHB. With a lawful prescription, it is schedule III. But without one, it is schedule I.
|Schedule II|| |
|Schedule III|| |
|Schedule IV (other than Rohypnol)|| |
|Schedule V|| |
It is a level 1 drug misdemeanor under Colorado state law to possess either:
- Up to four grams of Schedule I drugs (other than GHB or cathinones),
- Up to four grams of Schedule II drugs,
- Schedule III drugs (other than Ketamine ),
- Schedule IV drugs (other than Rohypnol), or
- Schedule V drugs
The punishment for a level 1 drug misdemeanor is:
- 6 to 18 months in jail; and/or
- $500 to $5,000 in fines
However, the judge may instead impose:
- Probation of up to 2 years;
- Possibly 180 days in jail time (or up to 364 days for a 3rd offense); and
- Up to $1,000
Probation typically involves drug use assessment, possible community service, and mental health counseling.
Note that a fourth or subsequent offense is a level 4 drug felony.
It is a level 4 drug felony in Colorado to possess either:
- More than four grams of Schedule I drugs,
- More than four grams of Schedule II drugs, or
- Any amount of Rohypnol (Flunitrazepam), ketamine, or bath salts
The typical sentence is:
- 6 to 12 months in prison (plus 1 year of parole), and/or
- $1,000 to $100,000 in fines, and
- A drug offender surcharge of $1,500 to $4,500.1
Certain level 4 drug felonies are wobblers. This means they will get reduced to level 1 drug misdemeanors if the defendant completes probation. This typically requires completing rehab and abstaining from drugs.2
Some defendants are ineligible for probation. A common disqualifier is having two or more prior felony convictions. These prior cases can be in Colorado or another state.3
In certain aggravated cases, possessing carries 1 to 2 years in prison. This is double the typical prison sentence for felony possession.
Examples of these “aggravated” cases are when the defendant was:
- On parole for another felony;
- On probation or bond (in some cases);
- Jailed as a convicted felon; or
- An escaped prisoner for another felony
Ten strategies to fight Colorado narcotics possessing charges include:
- The drugs did not belong to the defendant. And the defendant had no control over them.
- The defendant had a valid prescription for the drug.
- The defendant did not know he/she possessed the drugs. For example, someone planted them on the defendant.
- The defendant did not realize the substance was a controlled substance.
- The police found only trace amounts of the controlled substance.
- A peace officer entrapped the defendant, who was not predisposed to possessing.
- The defendant was 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.
Typical evidence in these cases include:
- Eyewitness testimony;
- Forensic expert testimony;
- Video recordings;
- Recorded communications, such as texts and voicemails; and
- The drugs themselves
Prosecutors have the burden to prove guilt beyond a reasonable doubt. As long as the district attorney lacks sufficient evidence, the charge should be dropped.4
Yes, but there is a waiting period in the state of Colorado to seal criminal offense convictions.
Misdemeanor convictions of narcotics possessing can be sealed 5 years after the case ends. For felonies, it is 7 years after the case ends.
Meanwhile, drug offense cases that get dismissed may be sealed immediately.5
It is recommended to pursue record seals as soon as possible. Drug cases like the unlawful possession of a controlled substance show up on background checks. And it may cause defendants to lose valuable job and housing opportunities.
Learn about how to get a Colorado criminal record seal.
Federal law prohibits convicted felons from having firearms. Therefore, people convicted of felony drug possession lose their gun rights.
Federal law also forbids unlawful drug users from having guns. Depending on the case, this could apply to people convicted of only misdemeanor possession as well.6
It may be possible to regain gun rights through a Governor’s Pardon.
An offense of possessing narcotics is deportable. So any non-citizen convicted of possessing narcotics risks being thrown out of the U.S. There is one exception: Having 30 grams or less of marijuana. That is roughly one ounce of marijuana possession (specifically, 1.05822 ounces of marijuana).7
Aliens charged with possessing narcotics may be able to get the case dismissed. They should consult with an attorney to explore their immigration criminal defense options.
Colorado Legal Defense Group
4047 Tejon Street
Denver CO 8021
Arrested in California? See our article about California narcotics possessing laws (11350 HS).
Arrested in Nevada? See our article about Nevada narcotics possessing laws (NRS 453.336).