The basics of Colorado's drug possession penalties and sentencing alternatives.
Updated August 22, 2023
Illegal possession of a controlled substance can result in misdemeanor or felony drug charges in Colorado. But the state places a high priority on treatment and intervention over incarceration for possession crimes. Learn how you might benefit from these policies.
This article reviews Colorado's drug classifications and penalties for illegal possession for personal use. Harsher penalties apply to drug sales, manufacturing, and trafficking offenses.
How Does Colorado Classify Controlled Substances?
Colorado divides controlled substances into five schedules—Schedules I to V. Schedule I drugs are considered the most dangerous and highly addictive, while Schedule V drugs are the least dangerous and the least addictive. Below are some examples of drugs placed into each schedule.
Schedule I includes drugs such as heroin, MDMA, LSD, mescaline, and psilocybin.
Schedule II includes drugs such as opium, codeine, cocaine, fentanyl, carfentil, and meth.
Schedule III includes drugs such as ketamine, pentobarbital, and anabolic steroids.
Schedule IV includes drugs such as barbital, diazepam (Valium), lorazepam (Ativan), and flunitrazepam (Rohypnol).
Schedule V drugs include cough suppressants and other therapeutic medicines containing low doses of codeine or other narcotics.
(Colo. Rev. Stat. §§ 18-18-203 to -207 (2023).)
Penalties for Illegal Drug Possession in Colorado
Colorado punishes possession offenses primarily by the type and amount of drugs involved.
Level 2 Drug Misdemeanors
A few illegal possession offenses are level 2 drug misdemeanors. These offenses include:
- possession of any amount of synthetic cannabinoid or salvia divinorum, and
- possession of more than two ounces and up to six ounces of marijuana or up to three ounces of marijuana concentrate.
Level 2 drug misdemeanors can result in up to 364 days in jail and $50 to $750 in fines.
Level 1 Drug Misdemeanors
Most possession crimes are level 1 drug misdemeanors. These offenses include illegal possession of:
- any amount of a Schedule III, IV, or V drug (with a few exceptions)
- four grams or less of a Schedule I or II drug
- one gram or less of fentanyl, carfentanil, or benzimidazole opiate, and
- more than six ounces of marijuana or more than three ounces of marijuana concentrate.
Level 1 drug misdemeanors carry sentences of 6 to 18 months in jail and a fine of between $500 and $5,000.
Level 4 Drug Felonies
Colorado makes the following possession offenses level 4 drug felonies:
- any quantity of flunitrazepam, ketamine, or GHB
- more than four grams of a Schedule I or II drug
- more than one gram and up to four grams of fentanyl, carfentanil, or benzimidazole opiate, and
- a fourth or subsequent level 1 drug misdemeanor.
A person convicted of a level 4 drug felony faces 6 months to 2 years in prison and $1,000 to $100,000 in fines.
Enhanced Felony Penalties for Drug Possession Offenses
Colorado law carries stiff felony penalties for the following possession offenses.
- Anyone who possesses a substance that contains more than 60% fentanyl, carfentanil, or benzimidazole opiate faces a level 2 drug felony and up to 14 years in prison.
- A drug possession violation involving a deadly weapon can mean up to 32 years in prison for a level 1 drug felony.
(Colo. Rev. Stat. §§ 18-1.3-501, 18-18-403.5, 18-18-406, 18-18-406.1, 18-18-407, 18-18-428 (2023).)
Can You Go to Jail for Drug Possession Charges in Colorado?
It's possible. However, Colorado law specifically states that treatment and intervention are preferred responses over incarceration for misdemeanors and low-level felony possession charges. To this end, the law permits a wide range of diversion and sentencing alternatives to jail. And the law doesn't necessarily limit these options to first-time offenders, so repeat offenders may benefit as well.
Diversion or Deferred Prosecution
Colorado's diversion (or deferred prosecution) options steer defendants away from the criminal justice system and into treatment instead. In a diversion program, the prosecutor agrees to hold off on prosecuting the charges as long as the defendant abides by the terms of the diversion agreement. This agreement usually requires the defendant to pay a fee, undergo substance abuse treatment, and not commit any crimes, among other conditions. Successful completion of diversion typically results in the dismissal of the charges. (Colo. Rev. Stat. § 18-1.3-101 (2023).)
Deferred Judgment and Sentence
Cases that go before a judge may qualify for deferred judgment and sentence. Here, a defendant pleads guilty but the court agrees to hold off on entering the plea. Rather, the judge continues the case and imposes conditions that the defendant must follow. A deferred judgment is similar to probation, but if the defendant successfully completes the conditions, the judge will withdraw the plea and dismiss the case. (Colo. Rev. Stat. § 18-1.3-102 (2023).)
Misdemeanor Probation With Limited Jail Time
In some misdemeanor cases, a judge may decide to sentence the defendant but place the defendant on probation. Probation supervision will generally involve drug treatment and interventions but can also include jail stints. The longer a person's rap sheet is for drug offenses, the longer the jail stints can be. While this option doesn't avoid jail time or a conviction, it still focuses on getting the defendant treatment. (Colo. Rev. Stat. § 18-1.3-501 (2023).)
Alternatives to Felony Drug Convictions
For those defendants who don't qualify for any of the above options, the law creates one more opportunity for certain defendants to at least avoid the stigma and consequences of a felony conviction by having it reduced to a misdemeanor. The defendant must complete a probation or community corrections program. This alternative applies to several felony drug possession charges, except those involving certain amounts of GHB, ketamine, cathinone, or flunitrazepan. (Colo. Rev. Stat. § 18-1.3-103.5 (2023).)
Possible Defenses to Drug Possession Charges in Colorado
In drug possession cases, a defense attorney may raise several arguments to challenge the prosecution's case. A prosecutor must prove every element of the crime beyond a reasonable doubt. Poking holes in the case can lead to an acquittal, dropped charges, or a reduction in the charges.
Lack of Knowledge or Possession
Drug possession crimes generally require proof that the defendant had actual or constructive possession of the drugs. If the prosecution can't prove the defendant knowingly possessed the drug, this may lead a jury to acquit. This might be a defense in situations where a defendant claims the drugs belonged to someone else or didn't know that the substance was an illegal drug.
While not a complete defense, Colorado law also permits a "reasonable mistake" defense for felony charges relating to drugs containing fentanyl, carfentanil, or benzimidazole opiate. Under this provision, a defendant may seek a reduction in the charges from a felony to a misdemeanor. The defendant must prove to the jury (or judge in a bench trial) that they did not know the drug contained amounts of fentanyl, carfentanil, or benzimidazole opiates. (Colo. Rev. Stat. § 18-18-403.5 (2023).)
Illegal Search or Seizure
Another common defense strategy in drug possession cases is to challenge the legality of the search that led to finding the drugs. If police conducted an illegal search, the evidence (the drugs) typically must be excluded. Without evidence of the drugs, the prosecution's case might fall apart.
Immunity From Prosecution
Colorado law provides immunity (protection) from arrest and prosecution when a person seeks emergency help for themself or another person suffering from a drug overdose. Immunity applies only to certain drug charges, including misdemeanor and level 4 felony drug possession charges, and to individuals who remain on the scene and cooperate with police and first responders. (Colo. Rev. Stat. § 18-1-711 (2023).)
Another provision in Colorado law provides limited immunity to those who alert a police officer or first responder to the presence of a needle or syringe during a search of their person or property. This immunity prevents the person from being arrested or charged with possession of residual drug amounts and drug paraphernalia. (Colo. Rev. Stat. § 18-18-428 (2023).)
Talk to an Attorney
If you are charged with drug possession, contact a local criminal defense attorney. Possession charges might seem minor, but a criminal record of drug charges can hurt a person's chances of getting a job or housing. It can also lead to harsher charges in future cases.
