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18-18-403.5. Unlawful possession of a controlled substance - notice to revisor of statutes - repeal.

Statute text

(1) Except as authorized by part 1 or 3 of article 280 of title 12, part 2 of article 80 of title 27, section 18-1-711, section 18-18-428 (1)(b), part 2 or 3 of this article 18, section 18-18-434, article 170 of title 12, or article 50 of title 44, it is unlawful for a person knowingly to possess a controlled substance.

(2) On or after March 1, 2020, a person who violates subsection (1) of this section by possessing:

(a) Any material, compound, mixture, or preparation that contains any quantity of flunitrazepam; ketamine; gamma hydroxybutyrate, including its salts, isomers, and salts of isomers; cathinones; or more than four grams of a controlled substance listed in schedule I or II of part 2 of this article 18 commits a level 4 drug felony.

(b) (Deleted by amendment, L. 2013.)

(c) Any material, compound, mixture, or preparation that contains not more than four grams of a controlled substance listed in schedule I or II of part 2 of this article 18 or any quantity of a controlled substance listed in schedule III, IV, or V of part 2 of this article 18 except flunitrazepam, gamma hydroxybutyrate, or ketamine commits a level 1 drug misdemeanor; except that a fourth or subsequent offense for a violation of this subsection (2)(c) is a level 4 drug felony.

(2.5) (a) Notwithstanding subsection (2)(c) of this section, on or after July 1, 2022, a person who violates subsection (1) of this section by knowingly possessing:

(I) Any material, compound, mixture, or preparation that weighs more than one gram and not more than four grams and contains any quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), commits a level 4 drug felony;

(II) Any material, compound, mixture, or preparation that weighs not more than one gram and contains any quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), commits a level 1 drug misdemeanor; except that a fourth or subsequent offense for a violation of this subsection (2.5)(a)(II) is a level 4 drug felony.

(b) Notwithstanding the provisions of section 18-18-403.5 (2.5)(a)(I) of this section, when a defendant shows supporting evidence to establish that he or she made a reasonable mistake of fact and did not know that the controlled substance he or she possessed contained fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), the matter shall be submitted to the finder of fact in the form of an interrogatory included in the verdict form. Should the finder of fact determine the defendant made such a reasonable mistake of fact, the defendant commits a level 1 drug misdemeanor.

(2.7) (a) A person who violates subsection (1) of this section by possessing any material, compound, mixture, or preparation that contains a quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), that is more than sixty percent of the total composition of the material, compound, mixture, or preparation, commits a level 2 drug felony.

(b) (I) This subsection (2.7) takes effect at 12:01 a.m. thirty days after the date identified in the notice provided to the revisor of statutes by the director of the Colorado bureau of investigation that the Colorado bureau of investigation has the resources to determine the quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), compared to the total composition of the material, compound, mixture, or preparation, or on the date of the notice to the revisor of statutes if the notice does not specify a different date.

(II) The director of the Colorado bureau of investigation shall notify the revisor of statutes in writing when the condition specified in subsection (2.7)(b)(I) of this section has occurred by e-mailing the notice to revisorofstatutes.ga@coleg.gov.

(III) Concurrent with the notice required in subsection (2.7)(b)(II) of this section, the director of the Colorado bureau of investigation shall notify the speaker of the house of representatives, the president of the senate, the chief justice of the supreme court, the governor, the attorney general, the state public defender, and each district attorney in the state, that the Colorado bureau of investigation has the resources to determine the quantity of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), compared to the total composition of the material, compound, mixture, or preparation.

(IV) This subsection (2.7)(b) is repealed, effective one year after notice to the revisor of statutes pursuant to subsection (2.7)(b)(II) of this section.

(3) If the circumstances described in section 18-18-428 (1)(b) occur, the peace officer shall not arrest the person pursuant to this section for any minuscule, residual controlled substance that may be present in the used hypodermic needle or syringe, and the district attorney shall not charge or prosecute the person pursuant to this section for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe. The circumstances described in section 18-18-428 (1)(b) may be used as a factor in a probable cause or reasonable suspicion determination of any criminal offense if the original stop or search was lawful.

(4) Notwithstanding the provisions of subsection (2) of this section, on or after March 1, 2020, a district attorney shall not charge or prosecute a person pursuant to this section for any minuscule, residual, or unusable amount of a controlled substance that may be present in a used hypodermic needle or syringe, or other drug paraphernalia, as defined in section 18-18-426. The circumstances described in this subsection (4) may be used as a factor in a probable cause or reasonable suspicion determination of any criminal offense if the original stop or search was lawful.

(5) Notwithstanding any provision of this section, a person may be charged with any other offense in this article 18, including unlawful distribution, manufacturing, dispensing, or sale of a controlled substance, or possession with intent to do the same, pursuant to section 18-18-405, when there is evidence for the person to be so charged. Such evidence may include, but is not limited to, the amount of the controlled substance that the person possesses.

(6) Notwithstanding subsection (2) of this section to the contrary, a peace officer shall not arrest and a district attorney shall not charge or prosecute an employee, agent, or volunteer of an entity described in section 12-30-110 (1)(a) who, in the performance of the person's duties, is in possession of a controlled substance, including fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), for the purpose of safe disposal of the controlled substance, including fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), in accordance with applicable law. As used in this subsection (6), "safe disposal" means the procedure and process for depositing the controlled substance, including fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), in a secure container for law enforcement to subsequently access and dispose of.

History

Source: L. 2010: Entire section added, (HB 10-1352), ch. 259, p. 1165, 4, effective August 11. L. 2012: (1) amended, (SB 12-020), ch. 225, p. 988, 4, effective May 29; (1) amended, (HB 12-1311), ch. 281, p. 1622, 54, effective July 1. L. 2013: (2) amended, (SB 13-250), ch. 333, p. 1908, 8, effective October 1. L. 2014: (2)(a) amended, (SB 14-163), ch. 391, p. 1976, 18, effective July 1. L. 2015: (1) amended and (3) added, (SB 15-116), ch. 76, p. 201, 2, effective July 1. L. 2019: (1) amended, (HB 19-1172), ch. 136, p. 1679, 105, effective October 1; IP(2), (2)(a), and (2)(c) amended and (4) and (5) added, (HB 19-1263), ch. 291, p. 2676, 1, effective March 1, 2020. L. 2022: (2.5), (2.7), and (6) added, (HB 22-1326), ch. 225, p. 1626, 2, effective July 1. Initiated 2022: (1) amended, Proposition 122, L. 2022, effective upon proclamation of the Governor, December 27, 2022. L. 2023: (1) amended, (SB 23-290), ch. 249, p. 1411, 24, effective July 1.

Annotations

Editor's note: (1) Amendments to subsection (1) by House Bill 12-1311 and Senate Bill 12-020 were harmonized.

(2) This section was amended by Proposition 122, with the proclamation of the governor on December 27, 2022. The vote count for the measure at the general election held November 8, 2022, was as follows:

FOR: 1,296,992

AGAINST: 1,121,124

(3) Section 45 of chapter 249 (SB 23-290), Session Laws of Colorado 2023, provides that the act changing subsection (1) applies to offenses committed on or after July 1, 2023.

Annotations

Cross references: For the legislative declaration in SB 12-020, see section 1 of chapter 225, Session Laws of Colorado 2012. For the legislative declaration in HB 22-1326 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to 2-2-1201 scheduled in 2024, 2025, and 2027, see sections 1 and 55 of chapter 225, Session Laws of Colorado 2022. To obtain a copy of the review, once completed, go to "Legislative Resources and Requirements" on the Colorado General Assembly's website.

Annotations

 

ANNOTATION

Annotations

Double jeopardy and merger require defendant's possession conviction be vacated because the evidence at trial did not support a finding, beyond a reasonable doubt, that defendant possessed a quantum of drugs in addition to the one defendant gave the undercover officer. People v. Davis, 2015 CO 36M, 352 P.3d 950.

Subsections (1) and (2)(a) are broader than the federal Controlled Substances Act (CSA) because they criminalize possessing morpholine while the CSA does not. Thus a drug conviction under those subsections cannot qualify as a predicate for removal from the United States under 8 U.S.C. 1227(a)(2)(B)(i). Johnson v. Barr, 967 F.3d 1103 (10th Cir. 2020) (decided under law in effect prior to the 2019 amendment).

The provision of 18-18-413 allowing for possession of a controlled substance by "a person acting at the direction of the legal owner" is not an affirmative defense with regard to this section. People v. Gonzales, 2017 COA 62, 415 P.3d 846.

Prosecution presented sufficient evidence that the drugs in the car were under the dominion and control of the defendant since the evidence showed that the defendant was the only person in the car. People v. Yeadon, 2018 COA 104, 468 P.3d 50, aff'd on other grounds, 2020 CO 38, 462 P.3d 1087.

The drug offense of possession is not a per se grave or serious offense for proportionality review purposes. Not all drug offenses are per se grave or serious. Wells-Yates v. People, 2019 CO 90M, 454 P.3d 191; Melton v. People, 2019 CO 89, 451 P.3d 415; People v. Session, 2020 COA 158, 480 P.3d 747.