CRS 18-18-404 is the Colorado law making it a level 2 drug misdemeanor to use controlled substances, typically punishable by up to $500 and one year of probation. The two exceptions are when (1) the person has a valid prescription, or (2) the person is using recreational marijuana.

CRS 18-18-404 states:

Except as is otherwise provided for offenses concerning marijuana and marijuana concentrate in sections 18-18-406 and 18-18-406.5, any person who uses any controlled substance, except when it is dispensed by or under the direction of a person licensed or authorized by law to prescribe, administer, or dispense the controlled substance for bona fide medical needs, commits a level 2 drug misdemeanor.

In this article, our Denver Colorado criminal defense attorneys discuss:

• 1. Is using drugs a crime under CRS 18-18-404?
• 2. What are the penalties for using drugs in Colorado?
• 3. How do I fight drug use charges?
• 4. Will my immigration status be affected?
• 5. Can I seal the criminal record?

1. Is using drugs a crime under CRS 18-18-404?

It is a Colorado drug offense to use controlled substances, but there are two exceptions:

1. The person is using marijuana in accordance with Colorado’s recreational marijuana laws.
2. The person has a current and valid doctor’s prescription to take the controlled substances.¹

Note that “controlled substances” include both illegal drugs and prescription drugs that are unlawful to possess without a valid prescription. These include (without limitation) commonly abused drugs, such as:

• Cocaine,
• LSD,
• Heroin,
• Codeine,
• Vicodin,
• Oxycontin,
• Fentanyl,
• Amphetamine,
• Methamphetamine,
• Anabolic steroids,
• Ecstasy,
• GHB,
• Ketamine, and
• Barbiturates.²

Note that drug use is a separate offense from drug possession. People can face drug possession charges even if they never use them. Possession of drugs comprises:

• Actual possession, such as physically holding or carrying drugs;
• Constructive possession, such as storing drugs in one’s home or storage unit; or
• Joint possession, such as sharing ownership of drugs with someone else.

Also note that adults 21 and older may lawfully possess up to two ounces of marijuana (but not in public).³

Unlawful use of a schedule I, schedule II, schedule III, schedule IV, or schedule V drug in violation of CRS 18-18-404 is a level 2 drug misdemeanor.

2. What are the penalties for using drugs in Colorado?

Colorado drug law makes unlawfully using controlled substances a level 2 drug misdemeanor, which carries up to 12 months in jail and/or $50 to $750 in fines. However, courts may – and often do – instead impose a lesser sentence of:

• Probation of up to 1 year;
• Possibly 120 days in jail (or 180 days in jail for a 3rd or subsequent offense); and
• Up to $500.⁴

Note that possession of a controlled substance carries harsher penalties than mere use. It is usually a level 1 drug misdemeanor punishable by up to $1,000 and two years of probation. But it is a level 4 drug felony to have more than four grams of schedule I or II controlled substances (or any quantity of GHB, Flunitrazepam, Ketamine, or cathinones). The punishment is six months to one year in prison and/or 1,000 to $100,000 plus one year of parole.⁵

3. How do I fight drug use charges?

Although the punishment for unlawfully using a controlled substance is often only a fine, defendants are advised to fight the criminal charges. This is especially true when there are employment-related implications.

Depending on the facts of the case, ten potential defenses to unlawful drug use include (but are not limited to):

1. The police lacked reasonable suspicion to detain the defendant.
2. The police lacked probable cause to arrest the defendant.
3. The defendant did not use any drugs.
4. The defendant was falsely accused.
5. The defendant was the victim of false accusations.
6. The defendant had a valid prescription and used the drugs as instructed by his/her physician.
7. The drug test violated the defendant’s constitutional rights.
8. The drug test sample was contaminated.
9. The lab techs who performed the drug tests had lapsed certification.
10. There was law enforcement misconduct, such as a coerced confession or entrapment.

Ultimately, district attorneys have the burden to prove guilt beyond a reasonable doubt – which is an extremely high bar. If the criminal defense lawyer can show that the state’s evidence is insufficient to support a conviction, the D.A. may be willing to drop the case.

There is a two-year-long waiting period for defendants convicted of drug use to apply for a criminal record seal in Colorado.

4. Will my immigration status be affected?

Any drug-related conviction can jeopardize a non-citizen’s resident status.⁶ Therefore, immigrants who are facing drug charges should consult with an experienced criminal law attorney right away. It may be possible to get the charge dismissed or reduced to a non-deportable offense.

5. Can I seal the criminal record?

Colorado convictions of drug use – which is a level 2 drug misdemeanor – can be sealed from the defendant’s criminal records two years after the case ends. And if the case was dismissed, then the defendant can pursue a record seal immediately.

Learn how to seal criminal records in Colorado.

If you have been arrested or cited, contact our Colorado drug crime defense lawyers for help.

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