18-18-403.5 C.R.S. is the Colorado law that makes it illegal to have:
- Possession of a controlled substance (drugs),
- 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."
- 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.
Possession of schedule I or II drugs is a level 4 drug felony. The typical sentence is:
- 6 months to 2 years in Colorado State Prison, and
- $1,000 to $100,000 in fines
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.
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:
- 1. What is possession of a controlled substance?
- 2. What are the penalties?
- 3. What are common defenses to drug possession?
- 4. Can the record be sealed?
- 5. Are gun rights affected?
- 6. What are the immigration consequences?
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:
- Actual possession is physically touching the drug. An example is holding a Molly pill in one's hand.
- Constructive possession is having control over a drug without touching it. An example is hiding containers of speed in a safe.
- 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.
It is a level 1 drug misdemeanor in Colorado to possess either:
- Schedule III drugs (other than Ketamine),
- Schedule IV drugs (other than Rohypnol), or
- 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
Schedule III (other than Ketamine)
Schedule IV (other than Rohypnol)
It is a level 4 drug felony in Colorado to possess either:
- Schedule I drugs,
- Schedule II drugs, or
- 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
Xyrem is a prescription med containing GHB. With a lawful prescription, it is schedule III. But without one, it is schedule I.
Rohypnol, ketamine, or bath salts
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:
- On parole for another felony;
- On probation or bond (in some cases);
- Jailed as a convicted felon; or
- An escaped prisoner for another felony
Ten strategies to fight Colorado drug possession charges include:
- The drugs did not belong to the defendant. And the defendant had no control over them.
- The defendant had a valid prescription for the drug.
- The defendant did not know he/she possessed the drugs. For example, someone planted them on the defendant.
- The defendant did not realize the substance was a controlled substance.
- The police found only trace amounts of the drug.
- Police entrapped the defendant, who was not predisposed to possession.
- The defendant was falsely accused. Perhaps the accuser was acting out of anger or revenge.
- The police executed an illegal search and seizure. Courts can disregard ("suppress") illegally-obtained evidence.
- There was less of the controlled substance than the prosecutor charged. (This is just a partial defense.)
- 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
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.
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.
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.
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
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).