Colorado “Special Offender” Felony Drug Sentencing (18-18-407 C.R.S.)

In Colorado, a defendant faces tougher sentencing as a “special offender” when he or she commits a drug felony of any level under certain aggravating circumstances. This can lead to a mandatory prison sentence of up to 32 years.

Such circumstances include (but are not limited to) committing a drug felony:

• With a large quantity of drugs,
• As part of a pattern of criminal drug activity,
• With a deadly weapon in your possession,
• On school grounds,
• By using a child to help you commit the crime.

Consequences of being a special offender

Being a special offender makes any Colorado drug felony a level 1 drug felony. It is a sentencing enhancement, not a separate crime.

A Colorado level 1 drug felony can be punished by:

• A mandatory prison sentence of up to 32 years in prison, and/or
• A fine of up to $1,000,000.

So as you can see, being designated a Colorado special offender has serious consequences, even when the underlying crime is punishable by, at most, a year or two in prison.

To help you better understand Colorado’s “special offender” status for drug offenders, our Denver Colorado criminal defense lawyers discuss the following, below:

• 1. What is a “special offender” under Colorado drug laws?
  • 1.1. Pattern of drug manufacturing or distribution
  • 1.2. Drug manufacturing or distribution conspiracy
  • 1.3. Large quantity of controlled substances
  • 1.4. Use or possession of a deadly weapon
  • 1.5. Possession of a firearm
  • 1.6. Use of a child to commit a drug felony
  • 1.7. Continuing criminal enterprise
  • 1.8. Sale of drugs on school grounds
• 2. Consequences of being a Colorado “special offender”
• 3. Defenses to special offender status

1. What is a “special offender” under Colorado drug laws?

There are numerous ways to earn a “special offender” designation under section 18-18-407 C.R.S. of Colorado’s criminal code. Let’s examine them one by one.

1.1. Pattern of drug manufacturing or distribution

You are a special offender when you commit a drug felony and:

• The crime is part of a pattern of manufacturing, sale, dispensing, or distributing controlled substances, AND
• The money you make is a substantial source of your income, AND
• You manifest special skill or expertise at what you do.

The manufacture, sale, dispensing, or distribution of controlled substances forms a pattern if it embraces criminal acts which have the same or similar purposes, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.

A “substantial source of your income” means a source of income which, for any period of one year or more, exceeds the minimum wage, determined on the basis of a forty-hour week and fifty-week year, or which, for the same period, exceeds fifty percent of your declared adjusted gross income under Colorado or any other state law or under federal law, whichever adjusted gross income is less.

You have “special skill or expertise” if such manufacture, sale, dispensing, or distribution includes any unusual knowledge, judgment, or ability, including manual dexterity, facilitating the initiation, organizing, planning, financing, directing, managing, supervising, executing, or concealing of such manufacture, sale, dispensing, or distributing, the enlistment of accomplices in such manufacture, sale, dispensing, or distribution, the escape from detection or apprehension for such manufacture, sale, dispensing, or distribution, or the disposition of the fruits or proceeds of such manufacture, sale, dispensing, or distribution.

1.2. Drug manufacturing or distribution conspiracy

You will be designated a special offender if you commit a drug felony and:

• You commit the violation in the course of, or in furtherance of, a conspiracy with one or more persons to engage in a pattern of manufacturing, sale, dispensing, or distributing a controlled substance, AND
• You did, or you agreed that you would, initiate, organize, plan, finance, direct, manage, or supervise all or part of such conspiracy or manufacture, sale, dispensing, or distributing, or give or receive a bribe, or use force in connection with such manufacture, sale, dispensing, or distribution.

1.3. Large quantity of controlled substances

You are a special offender if you introduced or imported into the state of Colorado:

• More than 4 grams of:
  • a substance that contains fentanyl or carfentanal; OR
• More than 7 grams of:
  • methamphetamine,
  • heroin,
  • ketamine (also known as “Special K,” “K,” “jet,” or “cat valium”), or
  • cathinones; OR
• More than 10 milligrams of flunitrazepam (Rohypnol), OR
• More than 14 grams of any other schedule I or II controlled substance, including (without limitation):
  • Opium,
  • Morphine
  • LSD,
  • Mescaline,
  • Peyote,
  • Psilocybin (“magic mushrooms”),
  • Methcathinone (sometimes called “cat,” “jeff” or “Charlie”),
  • Prescription opioids (including Vicodin, Oxycontin and codeine),
  • Fentanyl,
  • Cocaine,
  • Barbiturates,
  • Amphetamines.

Also, you are a special offender if you unlawfully distributed, manufactured, dispensed, or sold a material, compound, mixture, or preparation containing fentanyl or carfentanal, and you possessed pill or tablet manufacturing equipment with the intent to use the equipment in the manufacture of a controlled substance.¹

1.4. Use or possession of a deadly weapon

You can be designated a Colorado special drug offender if you during the commission of a drug felony you used, displayed, or possessed a deadly weapon on your person or had one within your immediate reach;

1.5. Possession of a firearm

You are a special offender if during the commission of a drug felony you or a confederate possessed or had access to a firearm in a manner that posed a risk to others or in a vehicle you were occupying at the time of the commission of the violation.

1.6. Use of a child to commit a drug felony

You are a special offender if you solicited, induced, encouraged, intimidated, employed, hired, or procured a child to act as your agent to assist in the unlawful distribution, manufacturing, dispensing, sale, or possession for the purposes of sale of any controlled substance, regardless of whether you knew the child’s age.

1.7. Continuing criminal enterprise

You are a special offender if you committed a drug felony and:

• You engaged in a continuing criminal enterprise by violating any felony provision; and
• The violation is a part of a continuing series of two or more such felony violations on separate occasions and those violations are:
  • Undertaken in concert with five or more other persons with respect to whom you occupy a position of organizer, supervisor, or any other position of management; and
  • Ones from which you obtained substantial income or resources.

1.8 Sale of drugs on school grounds

You become a Colorado special offender when you are convicted of selling, distributing, possessing with intent to distribute, manufacturing, or attempting to manufacture any controlled substance either:

• Within or upon the grounds of any public or private elementary school, middle school, junior high school, or high school, vocational school, or public housing development; or
• Within 1,000 feet of the perimeter of any such school or public housing development grounds on any street, alley, parkway, sidewalk, public park, playground, or other area or premises that is accessible to the public; or
• Within any private dwelling that is accessible to the public for the purpose of the sale, distribution, use, exchange, manufacture, or attempted manufacture of controlled substances in violation of this article; or
• In any school vehicle, while such a school vehicle is engaged in the transportation of persons who are students.

2. Consequences of being a Colorado “special offender”

Being designated a special offender increases the sentence for any Colorado drug felony to a level 1 drug felony.

Penalties for a Colorado level 1 drug felony include:

• A mandatory prison sentence of 8-32 years (with 3 years mandatory parole), and
• A potential fine of $5,000-$1,000,000.

The minimum sentence increases to 12 years if you are subject to Colorado’s aggravated drug sentencing (because, for instance, you are on parole for another felony at the time of offense).

3. Defenses to special offender status

There are three basic ways to defend against a Colorado special offender designation:

Defend the underlying drug offense

If you didn’t commit a drug felony, you aren’t a special offender. Period.

Negate the charged special offender element

The best defense against Colorado’s special offender designation (besides defending the underlying drug offense) depends on the specific facts of your case.

Depending on the charge, however, these defenses might include (but are not limited to):

• Any money you made did not form a substantial portion of your income,
• You had no special skill or expertise in manufacturing or distributing drugs,
• Your crime was a one-time thing, or
• You weren’t within 1,000 feet of a school.

There was police misconduct

Police misconduct – including entrapment, coerced confession and illegal search and seizure – will usually be an offense to the underlying crime.

But if the police engaged in misconduct to uncover evidence of one of the aggravating circumstances that leads to special offender status, you may have a defense to the increased sentencing.

Call us for help…

For guidance and representation with the Colorado criminal justice system, we invite you to contact us at the Colorado Legal Defense Group.