Under Colorado Revised Statute § 18-18-403.5, unlawful drug possession is generally treated as a level 1 drug misdemeanor that carries up to $1,000 in fines and two years of probation.
However, it is a level 4 drug felony to possess more than four grams of such serious drugs as heroin, LSD, ecstasy, cocaine, PCP, or methamphetamine. These penalties include:
- 6 months to 1 year in prison (plus 1 year of parole) and/or
- 1,000 to $100,000.
The same sentence applies to possessing any amount of GHB, flunitrazepam, ketamine, or cathinone.
“Drug possession” also goes by the names:
- “possession for personal use” or
- “simple possession.”
CRS § 18-18-403.5 applies to all types of narcotics except possession of marijuana, including medical marijuana and marijuana concentrate.
The following bubble graph shows some of the common defenses to possession charges.
Below our Denver, Colorado criminal defense lawyers will address these key topics re. drug possession
- 1. Elements
- 2. Penalties
- 3. Defenses
- 4. Record Seals
- 5. Gun Rights
- 6. Immigration Consequences
- Additional Resources
CRS 18-18-403.5 prohibits drug possession for personal use.
1. Elements
For you to be convicted of violating CRS 18-18-403.5, prosecutors have to prove beyond a reasonable doubt that you possessed a controlled substance.
A “controlled substance” is a drug that is regulated by the government. They are classified into one of five “schedules.” Schedule I has the highest potential for abuse while 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 your 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 a stash of smack in their nightstand.
It is also possible to possess drugs without owning them. An example is a friend storing your drugs. In this case, both you and your friend could face charges for possessing.
2. Penalties
Drug possession can be a misdemeanor or a felony in Colorado depending on the specific narcotics and the amount involved, as the following table shows:
| Drug Possession Conviction | Colorado Penalties |
| Level 4 drug felony:
The prison sentence could be doubled (1 to 2 years) in “aggravated” cases where you were either:
Note that certain level 4 drug felonies are wobblers, which means they get reduced to level 1 drug misdemeanors if you complete probation.* |
| Level 2 drug felony:
|
| Level 1 drug misdemeanor:
However, the judge may instead impose:
Note that a fourth or subsequent offense is a level 4 drug felony. |
| * Probation typically requires a drug use assessment, rehab, possible community service, mental health counseling and abstaining from drugs. You may be ineligible for probation if you have two or more prior felony convictions (whether in Colorado or another state). | |
Note that if you are convicted of possessing fentanyl or similar synthetics, you must also submit to a drug assessment and complete a fentanyl education program.1
Possessing can be a felony or a misdemeanor criminal charge under Colorado drug laws.
3. Defenses
Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with drug possession. In our experience, the following ten defenses have proven very effective with prosecutors, judges, and juries at getting these charges reduced or dismissed.
- The drugs did not belong to you, and you had no control over them.
- You had a valid prescription for the drug.
- You did not know you possessed the drugs. For example, someone planted them on you.
- You did not realize the substance was a controlled substance.
- The police found only trace amounts of the controlled substance.
- A peace officer entrapped you, and you were not predisposed to possessing.
- You were falsely accused. Perhaps the accuser was acting out of anger or revenge.
- The police executed an illegal search and seizure. Unless the original stop or search was lawful, courts can disregard (“suppress”) illegally obtained evidence.
- There was less of the controlled substance than the prosecutor charged. (This is just a partial defense.)
- Law enforcement committed misconduct. An example is coercing a confession or not having probable cause to arrest you.
Note that a level 4 drug felony charge of possessing fentanyl could be reduced to a level 1 misdemeanor if you honestly did not know that the substance contained fentanyl.
Best Evidence
In simple drug possession cases, evidence we typically rely on includes:
- eyewitness testimony;
- forensic expert testimony;
- video recordings;
- recorded communications, such as texts and voicemails; and
- the drugs themselves.
As long as prosecutors fail to prove guilt beyond a reasonable doubt, your drug charges should be dropped.2
4. Record Seals
In Colorado, you can seal misdemeanor drug possession convictions two years after the case. For felony convictions, the wait time is three years after the case ends.
However, if your drug charge gets dismissed, you can petition the court for a record seal right away.3
You should pursue record seals as soon as you are eligible. Otherwise, your criminal record will show up on background checks and could cause you to lose valuable job and housing opportunities.
5. Gun Rights
Since federal law prohibits convicted felons from having firearms, a felony drug possession conviction in Colorado would cause you to lose your gun rights.
Federal law also forbids unlawful drug users from having guns. Therefore, depending on your case, you could lose your gun rights even if you were convicted of only misdemeanor drug possession in Colorado.4
In any case, it may be possible to regain your gun rights through a Governor’s Pardon.
6. Immigration Consequences
Any non-citizen convicted of possessing narcotics risks being deported from the U.S. The one exception is having 30 grams or less of marijuana. That is roughly one ounce of marijuana possession (specifically, 1.05822 ounces of marijuana).5
If you are charged with possessing narcotics, you may be able to get the case dismissed. Consult with an attorney to explore your immigration criminal defense options.
Additional Resources
If you are struggling with substance abuse addiction, you can find help here:
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
- Recovery Centers of America – Treatment centers in seven states.
- SMART Recovery – Group therapy for young people struggling with addiction.
- Partnership to End Addiction – Information on how to find drug addiction treatment.
Legal References:
- CRS 18-18-204 (Uniform Controlled Substances Act.). HB 22-1326. Colorado Revised Statutes 18-18-403.5 C.R.S.; House Bill 19-1263. See CRS 18-1.3-201. Note that possessing drug paraphernalia is a drug petty offense. CRS 18-1.3-401.5 (2)(b)(V). See also Wells-Yates v. People, (2019) 2019 CO 90M, 454 P.3d 191. See also Melton v. People, (2019) 2019 CO 89, 451 P.3d 415. People v. Session, (2020) 2020 COA 158, 480 P.3d 747.
- See People v. Davis, (2015) 352 P.3d 950. See also People v. Gonzales, (2017) 2017 COA 62, 415 P.3d 846. See also People v. Yeadon, (2018) 2018 COA 104, 468 P.3d 50.
- CRS 24-72-705.
- 18 U.S.C. § 922(g).
- 8 U.S.C. § 1227(a)(2)(B). See also Johnson v. Barr, (10th Cir. 2020) 967 F.3d 1103.