18-18-403.5 C.R.S. - Unlawful Possession of a Controlled Substance in Colorado

Updated


18-18-403.5 C.R.S. is the Colorado law that makes it illegal to have:

  1. Possession of a controlled substance (drugs),
  2. Without a current and valid doctor's prescription

This offense is also called possession for personal use or simple possession. It applies to all types of narcotics except marijuana. (See our article on marijuana possession laws.)

18-18-403.5 C.R.S. states that,

"[I]t is unlawful for a person knowingly to possess a controlled substance."

Examples

  • Going to a party holding a bag of coke.
  • Driving with unprescribed Percocet in the center console.
  • Hiking with a container of MDMA in a backpack.

Penalties

Possession of schedule I or II drugs is a level 4 drug felony. The typical sentence is:

Otherwise, possession is usually a level 1 drug misdemeanor. This carries:

  • 6 to 18 months in jail, and
  • $500 to $5,000 in fines

Many defendants can get probation instead of jail. And some cases may get dismissed through a diversion program.

Defenses

Potential arguments to fight possession charges include:

  • The police entrapped the defendant during a drug sting,
  • The defendant had a lawful prescription, or
  • The defendant did not know the drugs were there

Below our Denver criminal defense lawyers discuss: 

chalkboard (18-18-403.5 C.R.S.)
18-18-403.5 C.R.S. prohibits drug possession for personal use.

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 one's 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 possession charges.

cuffs gavel
Some possession charges may get dismissed such as through deferred judgment.

2. What are the penalties?

2.1. Misdemeanor possession

It is a level 1 drug misdemeanor in Colorado to possess either:

  1. Schedule III drugs (other than Ketamine),
  2. Schedule IV drugs (other than Rohypnol), or
  3. Schedule V drugs

The punishment is:

  • 6 to 18 months in jail, and/or
  • A fine of $500 to $5,000

Alternatively, the court can grant probation, community corrections, or work release. Probation typically involves drug assessment and counseling.

 Misdemeanor possession drugs in Colorado

 Common examples

Schedule III (other than Ketamine)

  • Some barbiturates
  • Anabolic steroids
  • 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

2.2. Felony possession

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

  1. Schedule I drugs,
  2. Schedule II drugs, or
  3. Rohypnol, ketamine, or bath salts

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 $4,500.1

But the judge may decide to grant probation instead. This typically requires completing rehab and abstaining from drugs.2

Some defendants are 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

 Felony possession drugs in Colorado

 Common examples

Schedule I

Xyrem is a prescription med containing GHB. With a lawful prescription, it is schedule III. But without one, it is schedule I.

Schedule II

Rohypnol, ketamine, or bath salts

  • Flunitrazepam (Rohypnol)
  • Ketamine ("K" or "Special K")
  • Cathinones (Khat or “Bath Salts”)

2.2.1. Aggravated felony possession

In certain aggravated cases, possession carries 1 to 2 years in prison. This is double the typical prison sentence for felony possession.

Examples of these "aggravated" cases are when the defendant was:

  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
pills
Possession can be a felony or a misdemeanor. It depends on the drug.

3. What are common defenses to drug possession?

Ten strategies to fight Colorado drug possession charges include:

  1. The drugs did not belong to the defendant. And the defendant had no control over them.
  2. The defendant had a valid prescription for the drug.
  3. The defendant did not know he/she possessed the drugs. For example, someone planted them on the defendant.
  4. The defendant did not realize the substance was a controlled substance.
  5. The police found only trace amounts of the drug.
  6. Police entrapped the defendant, who was not predisposed to possession.
  7. The defendant was falsely accused. Perhaps the accuser was acting out of anger or revenge.
  8. The police executed an illegal search and seizure. 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. The police committed misconduct. An example is coercing a confession.

Typical evidence in these cases include:

  • 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. As long as the prosecution lacks sufficient evidence, the charge should be dropped.4

4. Can the record be sealed?

Yes, but there is a waiting period.

Misdemeanor possession convictions can be sealed 5 years after the case ends. For felonies, it is 7 years after the case ends.

Meanwhile, possession cases that get dismissed may be sealed immediately.5

It is recommended to pursue record seals as soon as possible. Drug cases show up on background checks. And it may cause defendants 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, people convicted of felony drug possession lose their gun rights.

Federal law also forbids unlawful drug users from having guns. Depending on the case, this could apply to people convicted of only misdemeanor possession as well.6

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

6. What are the immigration consequences?

Drug possession is deportable. So any non-citizen convicted of possession risks being thrown out of the U.S. There is one exception: Having 30 grams or less of marijuana.7

Aliens charged with drug possession may be able to get the case dismissed. They should consult with an attorney to explore their immigration criminal defense options.

Receptionists waiting for your call.
Call our Denver criminal defense attorneys. Reach us 24/7 at 303-222-0330. We offer free consultations.

Call us for help…

Need information or help with your case? Contact us at Colorado Legal Defense Group.

Colorado Legal Defense Group
4047 Tejon Street
Denver CO 80211
(303) 222-0330

Arrested in California? See our article about California drug possession laws (11350 HS).

Arrested in Nevada? See our article about Nevada drug possession laws (NRS 453.336).


Legal references:

  1. 18-18-403.5 C.R.S.
  2. See 18-1.3-201 C.R.S.
  3. 18-1.3-401.5 (2)(b)(V) C.R.S.
  4. See People v. Davis, 352 P.3d 950 (2015).
  5. 24-72-705 C.R.S.
  6. 18 U.S.C. § 922(g).
  7. 8 U.S.C. § 1227(a)(2)(B).

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