In the Colorado court system, a wobbler is a Colorado drug offense that can get reduced (“wobble down”) from a level 4 drug felony to a level 1 drug misdemeanor if the defendant successfully completes probation or community corrections. The purpose of wobblers is to rehabilitate rather than punish people convicted of minor drug possession (CRS 18-18-403.5) or drug distribution (CRS 18-18-405) crimes.
In this article, our Denver criminal defense attorneys discuss:
- 1. Which Colorado drug crimes are wobblers?
- 2. Who are eligible for wobblers?
- 3. How do wobblers work?
- 4. What are the benefits of wobblers?
1. Which Colorado drug crimes are wobblers?
The following level 4 drug felonies (DF4s) may be lessened to level 1 drug misdemeanors (DM1s) following successful probation or community corrections:
- Possessing more than 12 ounces of marijuana;
- Possessing more than 3 ounces of marijuana concentrate;
- Possession of 4 grams or less of certain schedule I or II drugs;
- Possession of 2 grams or less of methamphetamine, heroin, ketamine, or cathinones;
- Possession of 4 milligrams or less of flunitrazepam (Rohypnol); 1 2
- Distribution or transfer of 4 grams or less of certain schedule I or II drugs, and the purpose was for consuming all the drugs with another person(s) close in time to the distribution (“buddy distro”);
- Distribution or transfer of 2 grams or less of methamphetamine, heroin, ketamine, or cathinones, and the purpose was for drug use consumption with another person(s) close in time to the distribution (“buddy distro”);3
- Prescription fraud (CRS 18-18-415) – fraudulently acquiring prescriptions of controlled substances.4
2. Who are eligible for wobblers under CRS 18-1.3-103.5?
Everyone is eligible to get qualifying level 4 drug felony convictions reduced through probation under Colorado’s wobbler law except for the following people:
- Defendants with 2 or more prior felony drug offense convictions. This includes cases where the felony drug charges were reduced to misdemeanors through diversion, deferred judgment, or the wobbler process. Therefore, having 2 prior misdemeanor drug convictions is disqualifying if they were reduced from a felony through alternative sentencing.
- Defendants with a prior conviction for a crime of violence (CRS 18-1.3-406), which includes certain sex offense violent crimes. Or
- Defendants otherwise ineligible for probation under CRS 18-1.3-201.5
People ineligible for wobblers instead face standard DF4 penalties, which include:
- 6 months to 1 year prison sentence, and/or
- $1,000 to $100,000 in fines, and
- 1 year of mandatory parole.6
3. How do wobblers work?
First, a defendant gets convicted of a qualifying level 4 drug felony. It does not matter whether the conviction is by pleading guilty (or no contest) or by a guilty verdict at trial.
Eligible defendants may then begin probation (or a community corrections program). The terms vary by case, but they may include:
- Paying a fine,
- Attending rehab,
- Attending counseling,
- Community service,
- Abiding by a curfew,
- House arrest,
- Avoiding run-ins with law enforcement, and
- Submitting to drug tests
Upon successful completion of the probationary sentence, the judge will vacate the felony conviction. Then the judge will convict the defendant of a level 1 drug misdemeanor instead.
If the defendant fails to complete probation, the level 4 drug felony conviction remains. Depending on the terms of probation, the defendant may also be remanded to prison.7
4. What are the benefits of wobblers?
Having a misdemeanor drug conviction is preferable to a felony drug conviction for the following four reasons:
- Misdemeanors carry laxer penalties than felonies. Felonies often require mandatory prison time. With misdemeanors, many defendants can avoid jail time by probation and a fine.
- Misdemeanor convictions for drug cases do not look as bad on background checks. Many employers automatically disqualify people convicted of drug-related felony charges but will hire people convicted of misdemeanor possession of a controlled substance.
- With some exceptions, defendants with only misdemeanor convictions can still possess guns. (Note that unlawful drug users or addicts may not possess guns. Also note that people convicted of misdemeanor domestic violence may not possess guns.)8
- Misdemeanor drug convictions may be sealed from defendants’ criminal records two years after the case ends. Meanwhile, level 4 drug felony convictions carry a three-year record seal wait-time.9 (Learn how to get a criminal record seal in Colorado.)
Note that non-citizen defendants can still be deported for misdemeanor drug law violations.10 Learn more about the criminal defense of immigrants in Colorado.
If you or someone you know has been arrested on Colorado drug charges, let us help. Our criminal defense lawyers offer free consultations by telephone, in-person, or via the form on this page. We negotiate with the District Attorney in pursuit of the most favorable resolutions and plea bargains possible.
- Colorado Revised Statutes 18-1.3-103.5 C.R.S.; Uniform Controlled Substances Act of 2013. The statute says, “In order to expand opportunities for offenders to avoid a drug felony conviction, to reduce the significant negative consequences of that felony conviction, and to provide positive reinforcement for drug offenders who work to successfully complete any community-based sentence imposed by the court, the legislature hereby creates an additional opportunity for those drug offenders who may not otherwise have been eligible for or successful in other statutorily created programs that allow the drug offender to avoid a felony conviction [and the Department of Corrections], such as diversion or deferred judgment.”
- Same. This criminal law applies only to offenses that occurred on or after October 31st, 2013 and that have no aggravating factors. Note that drug misdemeanors are harsher than drug petty offenses.
- Same; see CRS 18-18-405 (2)(d)(II).
- CRS 18-1.3-103.5.
- CRS 18-1.3-401.5.
- CRS 18-1.3-103.5; see People v. DeBorde, 2016 COA 185, 411 P.3d 220.
- 18 U.S.C. § 922(g).
- CRS 24-72.
- 8 U.S.C. § 1227.