§ 18-18-403.5 CRS – Unlawful Possession of a Controlled Substance – Colorado Law

Below our Denver, Colorado criminal defense lawyers will answer these key questions:

• 1. What is possession of a controlled substance?
• 2. What are the penalties?
  • 2.1. Misdemeanor
  • 2.2. Felony
    • 2.2.1. Aggravated felony possession
• 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?

1. What is possession of a controlled substance?

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:

1. Actual possession is physically touching the drug. An example is holding a Molly pill in your hand.
2. Constructive possession is having control over a drug without touching it. An example is hiding containers of speed in a safe.
3. 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.

2. What are the penalties?

Firstly, the punishment for possessing drugs under Colorado law depends on the schedule of the drug. See the following chart:

Drugs in Colorado	Common examples
Schedule I	Heroin GHB LSD Ecstasy (MDMA or Molly) BZP Most cathinones (Khat or “Bath Salts”) Theoretically possible (but not yet existing) synthetic opiates, opium derivatives, hallucinogens, and nervous system depressants Xyrem is a prescription med containing GHB. With a lawful prescription, it is schedule III. Though without one, it is schedule I.
Schedule II	Opium Codeine Morphine Vicodin Oxycontin Methadone Peyote Mescaline Cocaine PCP (Angel Dust) Amphetamine Methamphetamine
Schedule III	Some barbiturates Anabolic steroids Ketamine (“K” or “Special K”) Flunitrazepam (Rohypnol) Medications containing small amounts of codeine or morphine
Schedule IV (other than Rohypnol)	Benzodiazepines, such as Valium and Xanax. Schedule IV Prescription sleep aids, such as Ambien.
Schedule V	Medications with small amounts of codeine or opium

Note that anyone convicted of possessing fentanyl or similar synthetics must submit to a drug assessment and complete a fentanyl education program.¹

2.1. Misdemeanor

It is a level 1 drug misdemeanor under Colorado state law to possess either:

1. Up to four grams of Schedule I drugs (other than GHB or cathinone),
2. Up to four grams of Schedule II drugs,
3. Schedule III drugs (other than Ketamine ),
4. Schedule IV drugs (other than Rohypnol),
5. Schedule V drugs, or
6. Up to one gram of any substance that contains any amount of fentanyl, carfentanil, or benzimidazole opiate.

The punishment for a level 1 drug misdemeanor is:

• 6 to 18 months in county 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.

2.2. Felony

It is a level 4 drug felony in Colorado to possess either:

1. More than four grams of Schedule I drugs,
2. More than four grams of Schedule II drugs, or
3. Any amount of Rohypnol (Flunitrazepam), ketamine, or bath salts
4. More than one gram up to four grams of any substance that contains any amount of fentanyl, carfentanil, or benzimidazole opiate.

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.

Certain level 4 drug felonies are wobblers. This means they will get reduced to level 1 drug misdemeanors if you complete probation. This typically requires completing rehab and abstaining from drugs.²

You may be 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

Note that it is a level 2 drug felony to possess a substance that is more than 60% fentanyl, carfentanil, or benzimidazole opiate. The penalty is 4 years to 8 years in prison and/or fines of $3,000.00 to $750,000.00

2.2.1. Aggravated felony possession

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 you were:

1. On parole for another felony;
2. On probation or bond (in some cases);
3. Jailed as a convicted felon; or
4. An escaped prisoner for another felony

3. What are common defenses to drug possession charges?

Ten strategies to fight Colorado narcotics possession charges include:

1. The drugs did not belong to you, and you had no control over them.
2. You had a valid prescription for the drug.
3. You did not know you possessed the drugs. For example, someone planted them on you.
4. You did not realize the substance was a controlled substance.
5. The police found only trace amounts of the controlled substance.
6. A peace officer entrapped you, and you were not predisposed to possessing.
7. You were falsely accused. Perhaps the accuser was acting out of anger or revenge.
8. The police executed an illegal search and seizure. Unless the original stop or search was lawful, courts can disregard (“suppress”) illegally obtained evidence.
9. There was less of the controlled substance than the prosecutor charged. (This is just a partial defense.)
10. Law enforcement committed misconduct. An example is coercing a confession or not having probable cause.

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.

Typical evidence in these cases includes:

• 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. The charge could be dropped if the criminal defense attorney can show the district attorney that the state lacks sufficient evidence.⁴

4. Can the record be sealed?

Yes, but Colorado has a waiting period to seal criminal offense convictions.

• Misdemeanor convictions of narcotics possession can be sealed 2 years after the case ends.
• For felonies, it is 3 years after the case ends.
• Meanwhile, drug offense cases that get dismissed may be sealed immediately.⁵

It is recommended that record seals be pursued as soon as possible. Drug cases like the unlawful possession of a controlled substance show up on background checks. Moreover, it may cause you to lose valuable job and housing opportunities.

Learn about how to get a Colorado criminal record seal.

5. Are gun rights affected?

Federal law prohibits convicted felons from having firearms. Therefore, if you are convicted of felony drug possession, you lose your gun rights.

Federal law also forbids unlawful drug users from having guns. Depending on the case, this could apply to you even if you were convicted of only misdemeanor possession.⁶

It may be possible to regain gun rights through a Governor’s Pardon.

6. What are the immigration consequences?

A conviction for possessing narcotics may lead to deportation. 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.
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Denver CO 8021

Our Colorado drug crime attorneys are here to help you through the criminal justice system.

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).

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