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18-18-404. Unlawful use of a controlled substance.

Statute text

(1) (a) Except as is otherwise provided for offenses concerning marijuana and marijuana concentrate in sections 18-18-406 and 18-18-406.5, or for natural medicine or natural medicine product in section 18-18-434, article 170 of title 12, or article 50 of title 44, any person who uses any controlled substance, except when it is dispensed by or under the direction of a person licensed or authorized by law to prescribe, administer, or dispense the controlled substance for bona fide medical needs, commits a level 2 drug misdemeanor.

(b) Repealed.

(1.1) Repealed.

(2) and (3) (Deleted by amendment, L. 2010, (HB 10-1352), ch. 259, p. 1163, 2, effective August 11, 2010.)

(4) Repealed.


Source: L. 92: Entire article R&RE, p. 354, 1, effective July 1. L. 98: (4) added, p. 1435, 4, effective July 1. L. 99: IP(1) amended, p. 799, 17, effective July 1. L. 2000: (4) amended, p. 1359, 41, effective July 1, 2001. L. 2002: (4) amended, p. 1583, 12, effective July 1. L. 2003: (1) amended and (1.1) added, p. 2681, 2, effective July 1; (3) amended, p. 2429, 2, effective July 1. L. 2007: (1)(b) and (1.1) repealed, p. 1689, 10, effective July 1. L. 2009: (4) repealed, (HB 09-1266), ch. 347, p. 1815, 4, effective August 5. L. 2010: (1)(a), (2), and (3) amended, (HB 10-1352), ch. 259, p. 1163, 2, effective August 11. L. 2012: (1)(a) amended, (SB 12-020), ch. 225, p. 988, 5, effective May 29. L. 2013: (1)(a) amended, (SB 13-250), ch. 333, p. 1909, 9, effective October 1. Initiated 2022: (1)(a) amended, Proposition 122, L. 2022, effective upon proclamation of the Governor, December 27, 2022. L. 2023: (1)(a) amended, (SB 23-290), ch. 249, p. 1412, 25, effective July 1.


Editor's note: (1) This section is similar to former 18-18-104 as it existed prior to 1992.

(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)(a) applies to offenses committed on or after July 1, 2023.


Cross references: For the legislative intent contained in the 2003 act amending subsection (1) and enacting subsection (1.1), see section 1 of chapter 424, Session Laws of Colorado 2003. For the legislative declaration in the 2012 act amending subsection (1)(a), see section 1 of chapter 225, Session Laws of Colorado 2012.





Law reviews. For article, "Felony Sentencing in Colorado", see 18 Colo. Law. 1689 (1989).

Equal protection is not violated when a defendant is charged for the same conduct under both this section and 18-18-405(1)(a) because unlawful use and unlawful possession are distinct offenses that each require proof of at least one fact that the other does not. People v. District Ct. of 11th Jud. Dist., 964 P.2d 498 (Colo. 1998).

This section and 18-18-405 do not contain identical elements for purposes of an equal protection analysis. The general assembly's choice to classify possession as a graver offense than use is reasonably related to the general purposes of the criminal legislation. Campbell v. People, 73 P.3d 11 (Colo. 2003).

As written, this section is clear and unambiguous in exempting 18-18-406.5 from its provisions, including the treatment option. People v. Goodale, 78 P.3d 1103 (Colo. 2003).

By intentionally omitting marihuana from the treatment option available under this section, the general assembly explicitly chose to offer the treatment option only to those addicted to other substances. Such a classification has a rational basis based upon real in fact differences between the substances and is not completely arbitrary or irrational. People v. Goodale, 78 P.3d 1103 (Colo. 2003).

Under 18-18-404 (3), defendant's guilty plea is tantamount to a conviction in that it establishes guilt. People v. Roberts, 865 P.2d 938 (Colo. App. 1993).

Trial court exceeded its jurisdiction by applying sentencing alternative under subsection (3) applicable to unlawful "use" of controlled substance offenses to resentencing of probationer convicted of "possession" of a controlled substance under 18-18-405. People v. Hutchings, 881 P.2d 466 (Colo. App. 1994).

Court order to surrender a driver's license and pay certain victim's fees and a drug surcharge fee was not erroneous where the defendant pled guilty to the charge and where the statute authorizes the court to impose "reasonable conditions." People v. Roberts, 865 P.2d 938 (Colo. App. 1993).

While an individual may unlawfully possess a controlled substance without voluntarily using it, it is simply not feasible for an individual to voluntarily use a controlled substance without also possessing it. People v. Villapando, 984 P.2d 51 (Colo. 1999).