5/8/19 UPDATE: Voters in a Denver referendum elected to decriminalize psilocybin use by adults 21 and older in Denver. Psilocybin is the psychoactive substance in magic mushrooms. It will remain illegal to possess, buy, or sell it, but police will be instructed not to prioritize arresting people for simple possession. People should still avoid psilocybin until the local government has issued rules on how to implement this new law. Read the Denver Post article.
In Colorado, anyone who unlawfully uses, sells, or has psilocybin mushrooms (“magic mushrooms”) in their possession is guilty of a criminal offense. Under Colorado drug laws, the penalties for psilocybin mushroom possession depends on the amount of mushrooms found and whether it was intended for personal use or sale. Drug possession is generally a misdemeanor offense; however, possession with intent to distribute is a felony.
In this article, our Colorado criminal defense lawyers will address:
- 1. What are psilocybin mushrooms?
- 2. Are there any legal uses for psilocybin mushrooms?
- 3. What are the penalties for the unlawful use of psilocybin mushrooms?
- 4. What are the penalties for the unlawful possession of psilocybin mushrooms?
- 5. What are the penalties for the unlawful sale or distribution of psilocybin mushrooms?
- 6. Can I avoid jail time for a psilocybin mushroom drug charge?
- 7. What are defenses to psilocybin mushroom criminal charges?
Psilocybin mushrooms are a naturally occurring mushroom that contains hallucinogenic compounds. Psilocybin mushrooms are also known as psychedelic mushrooms, magic mushrooms, or “shrooms.” These mushrooms are taken for recreational or spiritual use.
Users report feelings of euphoria, altered sense of time, altered thinking, visual hallucinations, and spiritual experiences. Adverse effects of psilocybin mushrooms include fear and paranoia, sometimes referred to as a “bad trip.”
Psilocybin is present in about 200 varieties of mushrooms that naturally grow around the world, including Mexico, Canada, the U.S, as well as Europe, Asia, Africa and Australia. Psilocybin mushrooms are generally found in tropical or subtropical forests.
Under Colorado law, controlled substances include illegal drugs, prescription medications, over-the-counter drugs, synthetic drugs, and some naturally occurring plants. This includes psilocybin mushrooms. In Colorado, controlled substances are classified by schedule. Schedule I drugs have no currently accepted medical use, lack accepted safety for use under medical conditions, and have a high potential for abuse. Psilocybin mushrooms are considered a Schedule I drug. Other Schedule 1 hallucinogenic drugs include LSD, peyote, PCP, and mescaline.1
There are no currently accepted medical uses for psilocybin mushrooms in the United States. Psilocybin mushrooms cannot be prescribed by a licensed provider or purchased from a pharmacy. It is unlawful to possess, sell, distribute, or manufacture psilocybin mushrooms in Colorado.
Under Colorado law, the unauthorized use of a controlled substance, including psilocybin mushrooms, is a level 2 drug misdemeanor. Under CRS 18-18-404, before March 1, 2020, the penalties for the use of psilocybin mushrooms include a fine of up to $750 and up to 12 months in jail. However, if it is your first drug offense, you may be eligible for a pretrial diversion program to have your charges dismissed if you successfully complete a drug education and treatment program.
Starting March 1, 2020, the punishment is:
- Probation of up to 1 year;
- Possibly 120 days in jail; and
- Up to $500
But for a 3rd or subsequent offense, up to 180 days in jail.
Under Colorado law, the unlawful possession of a schedule I or schedule II controlled substance is a level 4 drug felony. Under CRS 18-18-403.5, the penalties for possession of psilocybin mushrooms include from 6 to 12 months in prison and a fine of up to $100,000. However, if it is your first drug offense, you may be eligible for “wobbler” sentencing. The court will defer your sentencing to allow you to complete a drug treatment program. Upon successful completion of a court-approved drug treatment program, and if you did not violate your probation terms, you may be able to have your felony charges reduced to a misdemeanor.
Under Colorado law, the unlawful distribution, manufacture, or sale of a schedule I controlled substance, including psilocybin mushrooms, is a felony. Under CRS 18-18-405, the penalties for sale or distribution of psilocybin mushrooms depends on the amount of mushrooms and any material, compound or mixture involved.
|Amount of Psilocybin Mushrooms||Not more than 14 grams||More than 14 grams, but not more than 225 grams||More than 225 grams|
|Drug Felony Level||Level 3 Drug Felony||Level 2 Drug Felony||Level 1 Drug Felony|
|Prison Time||2 to 4 Years||4 to 8 Years||8 to 32 Years|
|Fines||$2,000 to $500,000||$3,000 to $750,000||$5,000 to $1 million|
It is also a level 1 drug felony to sell, dispense, or distribute any psilocybin mushrooms to a minor who is at least two years younger than you.
Simple use of psilocybin mushrooms may only result in a misdemeanor drug charge. A level 2 drug misdemeanor has the potential for jail time; however, in most cases, you will only have to pay a simple fine and can avoid jail time.
If it is your first offense for unlawful psilocybin mushrooms use, you may be eligible for a pretrial diversion program.2 A drug diversion program will defer your court action until you complete a court-approved treatment program. After completing the drug treatment program, you may have your misdemeanor drug charges dropped.
If charged with a low-level drug felony, including simple drug possession, you may be placed on probation while you complete a court-approved drug treatment and education program. Upon successful completion, you may have your felony drug charges reduced to misdemeanor drug possession.3
However, you may not be eligible for a diversion program or sentencing reduction if you have a prior conviction for a crime of violence, two or more prior felony drug convictions, or are ineligible for probation because of prior offenses. You may also be ineligible if you were in possession of more than 4 grams of psilocybin mushrooms.
There are a number of possible defenses to criminal charges for psilocybin mushrooms possession or sale. Common drug crime defenses include:
- The psilocybin mushrooms belonged to someone else
- The mushrooms were not in an area within your control
- The police found psilocybin mushrooms as part of an unlawful search or seizure
Call us for help…
If you were arrested for possession or sale of psilocybin mushrooms, please contact us at Colorado Legal Defense Group. Our caring Colorado defense attorneys have many years of experience representing clients who have been charged with criminal drug offenses. We are among the best Colorado criminal defense attorneys to call. Contact us today for a free consultation by phone or in-person or in our Denver law office.
- C.R.S. 18-18-203(2)(c)
- C.R.S. 18-1.3-101
- C.R.S. 18-1.3-102