A serious felony conviction is now attached to the possession of more than 1 gram of fentanyl in Colorado after Governor Jared Polis passed HB 22-1326. Understanding the state’s drug laws in light of these recent changes is crucial.
Misdemeanor vs. Felony in Colorado
Determining the outcome of a drug law violation involves numerous factors, including the quantity, aggravating circumstances, and criminal history. Felony drug convictions range from Level I (the heaviest charge) to Level IV (the lowest felony charge). Likewise, misdemeanors have degrees; unlawfully possessing a Schedule III or IV drug may result in a Level I misdemeanor (two years’ probation or 180 days in jail). The maximum sentence for a Level II misdemeanor is 120 days in jail or one year on probation.
Methamphetamine, cocaine, ecstasy, or heroin are among the narcotics that are considered a misdemeanor in amounts up to 4 grams in Colorado. The Colorado prosecutor may set a two-year probation sentence in lieu of jail time (usually 6-to-18 months).
Note: A felony applies to fentanyl or any other drug containing a fentanyl compound.
A Level 2 drug felony is possible under Colorado §18-18-412.7 if someone sells or distributes chemicals, materials, or equipment to manufacture drugs (controlled substances). Other unlawful selling, manufacturing, possessing, or using controlled substances remains illegal.
Schedules of Controlled Substances in Colorado
A drug, substance, or particular chemical is classified into one of five schedules based on its medical use and the possibility of abuse and dependence.
Colorado’s schedule of substances is as follows:
- Schedule I: Colorado classifies these drugs as having a high potential for abuse and not considered medically necessary or having medical usefulness. Gamma-hydroxybutyrate (GHB), heroin, LSD (Acid), phencyclidine (PCP), mescaline, peyote, and psilocybin are some Schedule I controlled substances.
- Schedule III: Drugs with a lower potential for abuse and deemed medically beneficial despite a lower or moderate potential for physical dependence and high psychological dependence. Examples of Schedule III controlled substances are barbiturates, certain benzodiazepines, anabolic steroids, Tylenol 3 (acetaminophen with codeine), and suboxone.
- Schedule IV: Drugs in this class are medically valuable and have a low potential for abuse. Physical and psychological dependence may still result from such substances. Drugs included in Schedule IV are diazepam and Ambien (a sleep aid).
- Schedule V: These drugs are deemed medically useful, have minimal potential for abuse, and have little associated physical or psychological dependence risks. Examples of such drugs are cough and cold medications containing minute amounts of narcotics.
As overdose rates rise, Colorado promotes treatment over jail time when possible. Most charges related to using and possession sway toward misdemeanor offenses; however, charges related to controlled substances can result in a felony (see §18-18-404 and §18-18-403.5).
Certain Schedule I or II controlled substances can be a felony if more than 4 grams are present. Possession of gamma-hydroxybutyrate (GHB), ketamine (special K), and Rohypnol (all associated with sexual assault) result in a felony conviction.
Is marijuana entirely legal in Colorado?
Colorado legalized marijuana in 2014. Marijuana may be purchased only from licensed dispensaries and only by adults 21 and older. The daily limit for marijuana purchases is 1 ounce — more than 2 ounces of marijuana results in a petty offense and fines of $100. Between 2-6 ounces may result in a Level II misdemeanor and $700 fines. Six-12 ounces of marijuana is a Level I misdemeanor and punishable by 6-18 months in prison. Possessing more than 12 ounces of marijuana, a Level 4 felony, may result in up to two years in prison. Sale or distribution may result in felony charges. Selling to minors results in the highest level felony, a Level I felony drug charge.
*Quantities above reflect marijuana in flower form only.
Note: Public use of marijuana is prohibited and can lead to arrests and fines.
Can possessing psilocybin result in a felony conviction?
Colorado has considered legalizing psilocybin, also known as magic mushrooms. Police will generally not arrest an individual for possessing low amounts of psilocybin, though using, selling, manufacturing, possessing, and distributing are still illegal. Psilocybin’s legalization may hinge on two upcoming ballot initiatives in 2022.
Intending to distribute psilocybin is a felony. Most other psilocybin charges result in misdemeanors.
Note: If you are facing marijuana or psilocybin offenses, a Boulder drug defense attorney may be able to help.
Colorado often advocates for rehabilitation and treatment over sentencing
The state offers diversion, deferment, and other alternatives to sentencing. Colorado courts often work with drug users to reduce the negative impacts of a felony conviction. (see §18-1.3-103.5).
Mental health issues and addictions may be considered. A guilty plea does not always mean jail.
Arrested for a Drug Crime in Colorado
A drug offense impacts your life today and tomorrow (e.g., fines, jail or prison, housing, and even employment opportunities). When it comes to Colorado drug charges, there are numerous conceivable defenses. Factors like the type of drug found, the amount, and how police conducted their search may affect your defense. You may qualify for a diversion program. An experienced Boulder drug lawyer can examine the details of your case and counsel you on the best path forward.