Under CRS § 18-12-108, Colorado law makes it a class 5 felony for a convicted felon knowingly to possess, use or carry a firearm or other prohibited weapon. This offense is commonly referred to as possession of a weapon by a previous offender, or POWPO.
The following table spells out the criminal sentence:
| Colorado POWPO Penalties | |
| Prison | 1 to 3 years |
| Mandatory Parole | 2 years |
| Fines | $1,000 to $100,000 |
As the following graphic shows, Colorado’s POWPO law applies if you have been convicted of either:
- a felony offense listed under CRS 24-4.1-302(1),
- a juvenile act that would constitute one of the felonies listed under CRS 24-4.1-302(1) if committed by an adult (but only for 10 years from the date of juvenile adjudication), or
- misdemeanor offenses related to domestic violence.
To help you better understand the law, our Denver Colorado criminal defense lawyers will discuss:
- 1. Elements
- 2. Penalties
- 3. Defenses
- 4.Immigration Consequences
- 5. Related Offenses
- Additional Reading
What are the elements of a POWPO charge?
For you to be convicted of POWPO in Colorado, prosecutors must prove beyond a reasonable doubt that you knowingly possessed a firearm or other weapon following a conviction of certain crimes. (Click on the following for the full felony list.)
Colorado’s POWPO law also applies if you were convicted as a juvenile of any of the above crimes if the adjudication occurred within the last 10 years.
Finally, Colorado’s POWPO law prohibits you from knowingly possessing firearms and other weapons following a misdemeanor conviction related to domestic violence, such as assault in the third degree (CRS 18-3-204) or harassment (CRS 18-9-111).
Meaning of “Previously Convicted”
For purposes of CRS 18-12-108, you were “previously convicted” even if you pleaded “guilty” or “no contest” and received a deferred judgment. An actual judgment of conviction and sentencing are not required.1
Meaning of “Firearm”
“Firearm” means any automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging, cartridges, or other explosive charges.2 This includes all types of handguns and long guns.
Meaning of “Knowingly”
You act “knowingly” when you are aware that your conduct is practically certain to cause a certain result.3
In POWPO cases, possession of the weapon alone is not enough.4 The prosecutor must show that you knew you had the weapon and understood that what you possessed was a weapon.5
Example: Nancy is at a flea market when she finds an antique cane she thinks her boyfriend, Omar, would like. She buys it and gives it to him. Unbeknownst to either of them, the cane is actually a gun. Omar served time 5 years earlier for a burglary (during which he was injured). If he is caught with the cane gun and can prove he didn’t know what it was, he has a defense to the POWPO charges.
Meaning of “Possession”
You “possess” a weapon when you have actual or constructive control of it either by yourself or shared with another person.6
You have “actual possession” when you have direct physical control over the weapon. For example, you are carrying the weapon.
You have “constructive possession” of a weapon when, although lacking physical custody of the firearm, you still have the power and intent to exercise control over it. For example, the weapon is in your car or home.7
What weapons count under Colorado’s POWPO statute?
Any type of gun will put you in violation of CRS 18-12-108 if you have a prior felony conviction. The gun does not even need to be capable of actually discharging a bullet: Merely possessing a gun with a broken firing mechanism is enough to put you in violation of Colorado’s POWPO law.8
The POWPO statute also applies to non-firearm weapons such as switchblades, ballistic knives, and other dangerous weapons or deadly weapons.
2. Penalties
Possession of a weapon by a previous offender is a Colorado class 5 felony. POWPO consequences include:
- 1 to 3 years in Colorado State Prison and/or
- $1,000 to $100,000 in fines
Probation is not available if you used – or threatened the use of – the firearm in the commission of another crime.
It is illegal under CRS 18-12-108 for felons to own a gun even if it never gets used.
3. Defenses
Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with weapons crimes such as POWPO. In our experience, the following eight defenses have proven very effective with prosecutors, judges, and juries.
- The weapon belonged entirely to someone else.
- You had no right of physical control over the weapon.
- You did not know you had the weapon.
- You knew you had the item, but you did not know it was a weapon.
- You possessed the weapon at home solely for the constitutionally protected purpose of defending your home, person, or property.10
- You possessed a knife that could be used as a deadly weapon, but your only purpose was a legitimate one (for instance, food preparation).
- The weapon was discovered during an illegal search and seizure in violation of your Fourth Amendment rights.
- Your prior conviction was obtained in violation of your constitutional rights.11
4. Immigration Consequences
Any firearms-related conviction is deportable.12 Therefore, non-citizens facing a POWPO charge should hire an experienced attorney right away. Perhaps the lawyer can get the charge reduced to a non-deportable crime or dismissed.
5. Related Offenses
Unlawful Purchase of Firearms
You face charges for unlawful purchase of a firearm (CRS 18-12-111) if you knowingly purchase a gun even though you are ineligible to own a firearm. (Examples of people who may not own guns are convicted felons, fugitives, and drug addicts.)
Unlawful purchase of a firearm is a class 4 felony, and penalties include two to six years in prison (with three years mandatory parole) and/or a fine of $2,000 to $500,000.
Carrying Concealed Without a Permit
If you carry hidden firearms with no current and valid CCW card, you face charges for carrying concealed without a permit (CRS 18-12-105).
A first-time conviction is a class 1 misdemeanor, carrying up to 364 days in jail and/or a fine of up to $1,000. A subsequent conviction within five years is a class 5 felony, carrying one to three years in prison (with two years mandatory parole) and/or a fine of $1,000 to $100,000.
Unlawful Discharge of a Firearm
Unlawful discharge of a firearm (CRS 18-12-107.5) is when you knowingly or recklessly fire a gun into any dwelling, building, occupied structure, or occupied vehicle. A class 5 felony, it carries one to three years in prison (with two years mandatory parole), and/or a fine of $1,000 to $100,000.
It is a Colorado felony for convicted felons to have a firearm.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Time To Reload: The Harms Of The Federal Felon-in-possession Ban In A Post-Heller World – Duke Law Journal.
- Problematic Presumptions: Why The Current State of Felon-in-Possession Law Risks Punishing the Innocent – University of Pennsylvania Law Review.
- Notice(ing) Ex-Offenders: A Case Study of the Manifest Injustice of Passively Violating a Felon-in-Possession Statute – Wisconsin Law Review.
- Going off Half-Cocked: Opposing as-Applied Challenges to the “Felon-in-Possession” Prohibition of 18 U.S.C. Sec. 922(g)(1) – Penn State Law Review.
- In Defense of Felon-in-Possession Laws – Cardozo Law Review.
Legal references:
- People v. Allaire, App.1992, 843 P.2d 38, certiorari denied. See also People v. Wright, 2021 COA 106. HB 23-1293.
- CRS 18-1-901(3)(h).
- CRS 18-1-501 (6).
- See CRS 18-12-108.
- People v. Tenorio, 1979, 590 P.2d 952, 197 Colo. 137.
- People v. Rivera, App.1988, 765 P.2d 624, certiorari granted, reversed 792 P.2d 786; People v. Martinez, 1989, 780 P.2d 560.
- Henderson v. U.S., 2015, 135 S.Ct. 1780, 191 L.Ed.2d 874, on remand 795 F.3d 1254.
- People v. O’Neal, App.2009, 228 P.3d 211, rehearing denied, certiorari denied 2010 WL 1436208.
- CRS 18-1-901 (3)(e). Prior to March 1, 2022, the POWPO penalties were different. In most cases, first-time possession of a weapon by a convicted felon was a Colorado class 6 felony. Consequences of possessing a weapon if you are a convicted felon included 1 – 1 ½ years in prison (with 1-year mandatory parole), and/or a fine of $1,000-$100,000. However, the offense rose to a Colorado class 5 felony if the weapon you are caught with is a dangerous weapon under CRS 18-12-102(1), or your previous conviction occurred within 10 years of the later of the date of conviction (if you were not incarcerated) or the date on which you were released from the court’s supervision and it was for: burglary, arson, or any felony involving the use of force or the use of a deadly weapon. For purposes of Colorado’s POWPO law, the term “dangerous weapon” means a: firearm silencer, machine gun, short shotgun (barrel less than 18” and overall length of less than 26”), short rifle (barrel less than 16” and overall length of less than 26”), or ballistic knife. “Deadly weapon” means: A firearm, whether loaded or unloaded; or A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury. And finally, a second or subsequent conviction for any act that would be a class 5 felony as set forth above became a Colorado class 4 felony. In such a case, the punishment for possession of a weapon by a previous offender included 2-6 years in prison (with 3 years mandatory parole), and/or a fine of $2,000-$500,000. SB21-271.
- See CRS 18-12-108.
- People v. Quintana, 1985, 707 P.2d 355; People v. Kimble, App.1984, 692 P.2d 1142, certiorari granted 697 P.2d 716, appeal dismissed 701 P.2d 17.
- 8 USC § 1227(a)(2)(C), INA § 237(a)(2)(C).