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

In Colorado, “special offender” is a designation given to defendants convicted of drug felonies under very serious circumstances. If the court finds that you are a special offender, you face an increased sentence of 8 to 32 years in prison and fines of $5,000 to $1,000,000.

Here are five key things to know:

1. Committing a drug felony while possessing a deadly weapon or while on school grounds are common triggers of the special offender sentencing enhancement.
2. Being a special offender makes any Colorado drug felony a level 1 drug felony.
3. The best defense is to show that you did not commit the underlying drug felony, which would automatically erase the enhancement.
4. Special offender status is determined by a jury during trial, not by a judge during sentencing.
5. In addition to prison and fines, the enhancement carries three years of mandatory parole.

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. What are the consequences of being a Colorado “special offender”?
• 3. What are defenses to special offender status?
• 4. Do judges or juries decide whether I am a special offender?

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, selling, 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.¹

1.2. Drug manufacturing or distribution conspiracy

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

1. 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
2. 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

1. you unlawfully distributed, manufactured, dispensed, or sold a material, compound, mixture, or preparation containing fentanyl or carfentanal, and
2. you possessed pill or tablet manufacturing equipment with the intent to use the equipment in the manufacture of a controlled substance.²

1.4. Use or possession of a deadly weapon

You can be designated a Colorado special drug offender if, 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 (including marijuana) 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. What are the 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.

2.1. Aggravating drug sentencing factors

The minimum sentence increases to 12 years if you are subject to Colorado’s aggravated drug sentencing because you were, at the time of the offense:

• on parole for another felony;
• on probation or bond while awaiting sentencing following revocation of probation for another felony;
• under confinement, in prison, or in any correctional institution as a convicted felon, or an escapee from any correctional institution for another felony;
• on appeal bond following your conviction for a previous felony;
• on probation for, or on bond while awaiting sentencing following revocation of probation for, a delinquent act that would have constituted a felony if committed by an adult; or
• in another situation the court deems as aggravating.³

3. What are defenses to special offender status?

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

3.1. Defend the underlying drug offense

If you did not commit a drug felony, you are not a special offender. Period.

3.2. Negate the charged special offender element

Depending on your specific case, potential 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 were not within 1,000 feet of a school.

3.3. There was police misconduct

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

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 though not the underlying crime.

4. Do judges or juries decide whether I am a special offender?

Although being a special offender increases your sentence, whether you are a special offender is a question of fact that the jury decides during your trial beyond a reasonable doubt. It is not something the judge decides later at sentencing.

For you to be a special offender, the jury must first find you guilty of the underlying drug felony. Then they must find that a special circumstance existed that justifies you being a special offender and therefore subject to a sentence longer than the prescribed statutory maximum.⁴