Which Crimes are Eligible to Become a Wobbler?

As of October 2013, there are important new laws regarding class 4 drug felonies, also known as “DF4s.” The state changed the way that courts treat drug-related crimes, and the new laws (they can be found at CRS 18-1.3-103.5) focus on treatment for drug use after arrest, particularly for DF4 arrests, which generally carry lighter sentences. If an individual has a class 4 drug-related crime that is a felony, meaning that they were arrested, booked, and it was filed as a felony, there is a chance that they could get it dropped to a misdemeanor if the charge is “wobbler eligible.”

Before learning about the actual mechanics of the wobbler, it is important to note that not all DF4’s are eligible to become “wobble”. Wobbler-eligible crimes include:

  • Distribution possession of four grams or less of either schedule I or II drugs;
  • Possession of two or less grams of methamphetamine, heroin, ketamine, or cathinones;
  • Possession of four milligrams or less of Flunitrazepam;
  • Felony possession of marijuana or marijuana concentrate; or prescription fraud.

If any of these offenses occurred after October 31st, 2013, and there aren’t any aggravating factors making the individual ineligible, then the DF4 is eligible to wobble.

Some DF4s, even if they would normally be eligible due to the amount or type of drug, can be found ineligible if certain factors are present in the crime. If the crime is a violent crime or the individual is ineligible for probation, they are ineligible for a wobbler. An individual is also found ineligible if they have two or more prior felony drug convictions. Additionally, if the individual has already had a “wobbler” for a prior offense, they may be ineligible the next time they get a felony drug charge. If you have been arrested for a drug related offense, it is crucial that you talk to an experienced lawyer who knows about wobbler eligibility. Even if you were arrested for a more serious drug-related crime, they may be able to help plead it down so that it is eligible to become a wobbler.

A wobbler is a crime that is filed as a felony, and then becomes a misdemeanor. This drop down to a misdemeanor can happen through either successful completion of probation, or successful completion of community corrections. When probation or community corrections has been completed, it must be determined that the completion was “successful” or the wobbler will not be triggered. Successful completion requires two things to trigger the wobbler. First, the court must make a determination that the individual has successfully completed their probation or community corrections. Second, the individual must successfully complete treatment as instructed (by the court) to address the individual’s treatment needs. The treatment plan may be different for different individuals based on how much treatment the court and the probation department believe that individual requires for rehabilitation. If these requirements are met, then the offense will be dropped to a misdemeanor, which is extremely beneficial for background checks, employment applications, and a multitude of other issues.

If you or someone you know are arrested and charged with a DF4, contact an experienced defense attorney who can help you understand your charges and work to change the felony to a misdemeanor by working you through the wobbler process.

Written by David Moorhead, 9/18/17