Colorado’s Laws on Synthetic Marijuana and Salvia (18-18-406.1 and 18-18-406.2 CRS)

Updated February 8, 2022

Are synthetic marijuana and Salvia divinorum legal in Colorado?

Colorado law makes it a misdemeanor to possess or use either synthetic cannabinoids or Salvia divinorum and a felony to sell or manufacture them.

Simple possession can be punished by a fine of up to $750. Manufacturing or selling synthetic marijuana or salvia can land you in prison for up to 4 years – longer if you sell it to a minor or you are on parole for a felony.

To help you better understand Colorado’s law on imitation marijuana, our Denver Colorado criminal defense lawyers discuss the following, below:

• 1. What is synthetic marijuana?
• 2. What are the effects of synthetic marijuana?
• 3. What is Salvia divinorum
• 4. What are the effects of S. divinorum
• 5. Penalties for synthetic cannabinoids or salvia divinorum
  • 5.1. Unlawful use or possession — 18-18-406.1. C.R.S.
  • 5.2. Unlawful distribution, manufacturing, dispensing, sale, or cultivation — 18-18-406.2 C.R.S.
• 6. Defenses to synthetic weed or salvia charges
• 7. Synthetic drugs and federal law

1. What is synthetic marijuana?

Synthetic cannabinoids are human-made chemicals related to marijuana. Although misleadingly referred to as “synthetic marijuana” or “fake weed”, there is no marijuana in the product.

Synthetic cannabinoids are sold in two forms:

• “Liquid incense” — to be vaporized and inhaled in e-cigarettes or other devices, or
• “Herbal incense” or “potpourri” – dried, shredded plant material (with the synthetic cannabinoids sprayed on), which can be smoked in the same way as marijuana buds.

The herbal incense or potpourri form of fake weed usually comes in small foil packets, with names such as “Spice,” “K2,” or “Black Mamba.” The packages are frequently labeled “not for human consumption,” and may contain pictures of cartoon characters or other child-friendly images.

2. What are the effects of synthetic marijuana?

Synthetic cannabinoids are meant to mimic the effects of tetrahydrocannabinol (THC), the main psychoactive ingredient in marijuana. As a result of this similarity, synthetic cannabinoids are often marketed as safe and legal marijuana alternatives.

However, the chemicals used in the production of fake weed are often more potent than the THC occurring naturally in marijuana. They can also have dangerous and often unpredictable side effects, including:

• severe anxiety,
• paranoia,
• seizures,
• hallucinations,
• convulsions, and
• suicidal thoughts.

3. What is Salvia divinorum?

Another product frequently sold as a marijuana alternative is Salvia divinorum, also known as S. divinorum, a psychoactive plant grown in the Sierra Mazatec region of Oaxaca, Mexico. Its leaves contain salvinorin A., a hallucinogen traditionally used during meditation and to facilitate visionary states of consciousness.

The genus name, Salvia, meaning wise, is the same as the herb sage. Divinorum is a corruption of Latin divinatorum, meaning “of the diviners.” Hence S. divionrum is sometimes called “diviner’s sage” or “seer’s sage” or any one of a variety of names connecting the plant to the Virgin Mary.

Typical methods of ingesting S. divinorum include smoking or chewing the leaf, or using a sublingual tincture.

4. What are the effects of S. divinorum?

Salvia is a psychedelic drug. Reported effects sometimes include:

• Uncontrollable laughter,
• Increased memories of the past,
• Sensations of motion or of being pulled or twisted,
• Visions of patterns,
• The feeling of becoming one with objects,
• The feeling of being in several locations at once,
• Feeling of calmness,
• Strange thoughts,
• Feeling of unreality,
• Floating sensation,
• Racing mind, and
• Feeling lightheaded.

Effects can vary from mild to severe, depending on:

• The potency of the plant itself,
• The form of salvia used (with concentrates and tinctures being stronger than the untreated leaves), and
• The method of ingestion (with chewing the leaves providing the mildest effect).

It should be noted that some users find the effects of salvia unpleasant, especially in its more potent forms.

5. Penalties for synthetic cannabinoids or Salvia divinorum

Since the beginning of 2012, it has been against the law to use or possess any amount of any synthetic cannabinoid or salvia divinorum in Colorado.

5.1. Unlawful use or possession — 18-18-406.1. C.R.S.

Possessing or using synthetic marijuana or S. divinorum is a Colorado level 2 drug misdemeanor.

Until March 1, 2020, the penalty is $50 – $750 and possibly 12 months in jail.

Starting March 1, 2020, the punishment is:

• Probation of up to 1 year;
• Possibly 120 days in jail; and
• Up to $500

But for a 3rd or subsequent offense, up to 180 days in jail.

5.2. Unlawful distribution, manufacturing, dispensing, sale, or cultivation — 18-18-406.2 C.R.S.

18-18-406.2 C.R.S. makes it a Colorado level 3 drug felony to knowingly:

• Cultivate salvia divinorum with intent to dispense, sell, or distribute it, or
• Do any of the following with synthetic cannabinoids or salvia divinorum:
  • Manufacture,
  • Dispense,
  • Sell,
  • Distribute,
  • Possess with intent to manufacture, dispense, sell, or distribute, or
  • Induce, attempt to induce, or conspire with one or more other persons, to do any of the foregoing.

Penalties under 18-18-406.2 C.R.S. can include:

• 2-4 years in prison (with 1 year mandatory parole), and/or
• A fine of $2,000-$500,000.

However, the crime rises to a Colorado level 2 drug felony if you:

• Dispense, sell, or distribute synthetic cannabinoid or salvia divinorum to a minor who is less than 18 years of age; and
• You are at least 18 years of age and at least 2 years older than the minor.

As a level 2 drug felony, consequences of the sale or distribution of synthetic marijuana or S. divinorum can include:

• 4-8 years in prison (with 2 years mandatory parole), and/or
• $3,000-$750,000.

And under certain circumstances – such as being on parole for a felony — the consequences of selling, manufacturing or distributing fake week or salvia may include up to 6 years in prison or 16 years for selling to a minor.

For more information on these circumstances, please see our article on Colorado’s aggravated sentencing range for drug felonies.

6. Defenses to synthetic weed or salvia charges

Because Colorado’s laws on synthetic cannabis and salvia are so new, the courts have not had time to consider all the possible defenses to charges under these laws.

However, common defenses to charges of violating these laws are likely to include:

• You didn’t know you possessed the fake weed,
• You possessed it for personal use only, or
• The cannabinoids or salvia were found during an illegal search and seizure in violation of your Fourth Amendment rights.

7. Synthetic drugs and federal law

Salvia divinorum is still legal under U.S. law and the laws of many other states – although this is subject to change at any time.

However, synthetic cannabinoids are illegal under the federal Controlled Substances Act (“CSA”), 21 United States Code 811.

Under the CSA, possession of synthetic marijuana for personal use is punished (if at all) by:

• A fine of not less than $1,000, and
• Up to one (1) year in federal prison.

Typically, the federal government leaves investigation and prosecution of simple possession and even and small-scale sale to the state. However, the sale of synthetic cannabinoids or possession with intent to sell (collectively, “trafficking”) is a serious federal felony. In particular, people who sell large quantities of synthetic marijuana on the internet face an increased likelihood of prosecution under federal law.

Additionally, the CSA, rather than Colorado law, applies to drug offenses committed on federally owned properties within the state of Colorado. Such properties include:

• post offices,
• interstate airports,
• federal buildings,
• federal courthouses,
• national parks and
• federally assisted housing.

Under the CSA, the minimum punishment for the trafficking of fake cannabis is:

• A fine of up to $1,000,000, and/or
• Up to 20 years in federal prison.

This is particularly serious as there is no parole in the federal system. If you are convicted of federal drug trafficking, you will serve your entire sentence in a federal prison, less only credits (if any) for good behavior.

Call us for help…

If you or someone you know has been charged with violating Colorado’s laws on synthetic marijuana or salvia, we invite you to contact us for a free consultation.

To reach one of our caring Colorado defense lawyers, simply fill out the confidential form on this page. Or call us at our Denver home office:

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