How to Defend Drug Possession Charges in Colorado

The consequences of a drug possession conviction can extend far beyond your final court date if you aren’t careful. This article provides an overview of Colorado drug possession charges and how a criminal defense attorney can help you beat them.

1. law enforcement officer, to the 911 system, or to a medical provider.

2. The person remains at the scene of the event until a law enforcement officer or an emergency medical responder arrives. Or the person remains at the facilities of the medical provider until a law enforcement officer arrives.

3. The person identifies himself or herself to, and cooperates with, the law enforcement officer, emergency medical responder, or medical provider; and

4. The offense arises from the same course of events from which the emergency drug or alcohol overdose event arose.

   C.R.S. § 18-1-711

Supreme Court Clarifies This Law

In 2019, Brittany Harrison and a teenage friend ordered food at a Denver-area Burger King and sat down at a booth. About 90 minutes later, employees noticed that the two were slumped at the table, apparently asleep. Their food was untouched.

Workers loudly tried to wake them up, to no avail. The manager called 911 and requested help for two individuals who were sleeping in the restaurant and would not wake up. She expected police to show up, rouse Harrison and her friend, admonish them about sleeping there, and ask them to leave. It “never really crossed her mind” that either of them was suffering from a drug or alcohol overdose.

The Arrest and Conviction

Harrison woke up when law enforcement arrived. Although groggy, she maintained she had not used drugs that day. Harrison’s teenage friend could not be roused and was transported to the hospital.

Officers did not believe Harrison’s statement and searched her purse and backpack. They found drug paraphernalia and substances that would later test positive for heroin and methamphetamine.

Harrison was arrested and charged with two counts of possession of a controlled substance, as well as one count of possession of drug paraphernalia. During her trial, she invoked immunity under C.R.S. § 18-1-711.

A jury still convicted Harrison on all three counts.

Appeals Court Overturns Conviction

Harrison appealed, and the Colorado Court of Appeals vacated her conviction based on the requirement in C.R.S. 18-1-711(1)(a) that a person must “report in good faith an emergency drug or alcohol overdose event.” People v. Harrison, 2020 CO 57, ¶ 12, 465 P.3d 16, 20

The court determined that “immunity must apply” so long as a reasonable person in the shoes of the person reporting the event would have believed that there was an emergency drug or alcohol overdose event. People v. Harrison, 2020 CO 57, ¶ 12, 465 P.3d 16, 20

The appellate judges concluded that even though the manager did not tell the 911 dispatcher that she needed assistance for an overdose, her “subjective knowledge or ignorance about the cause of the defendant’s condition is not relevant.”

Essentially, the court ruled that regardless of what the manager actually thought, a layperson would have reasonably concluded that Harrison and the teenager had overdosed.

Colorado Supreme Court Reverses Appeals Court Decision

Prosecutors sought review from the Colorado Supreme Court. Justices determined that the appeals court had erred in throwing out Harrison’s conviction.

At the crux of their decision was the Burger King manager’s testimony:

“… she did not observe any drugs or paraphernalia; she did not notice any signs of intoxication or impairment; and it never crossed her mind that Harrison was suffering from a drug or alcohol overdose.” People v. Harrison, 2020 CO 57, ¶ 37, 465 P.3d 16, 24

The manager never told the 911 dispatcher that she needed assistance for a drug overdose. Therefore, the court ruled that the prosecution had disproved Harrison’s immunity defense beyond a reasonable doubt.

When It’s Illegal to Possess Marijuana

Most people are aware that Colorado has legalized the possession of marijuana by people who are 21 years old and older in limited circumstances. You may not know, however, that possessing more than 28 grams (one ounce) of pot is still a crime in Colorado.

If you are under 21, it is illegal to possess any amount of marijuana without a medical prescription.

Marijuana Possession is Still Prohibited Under Federal Law

It remains a crime to possess any amount of marijuana on federally-owned property within the state of Colorado. That means if you’re camping in, say, Rocky Mountain National Park or Mesa Verde, you could be charged with drug possession if you’re caught with marijuana.

In addition to national parks, federal property includes:

• airports

• courthouses

• Department of Veterans Affairs (VA) offices

• Department of Housing and Urban Development (HUD) housing

• post offices

Such property is subject to the more stringent requirements of the federal Controlled Substances Act (21 U.S.C.S. § 812).

Under federal and state law, controlled substances are divided into five categories called schedules.

According to the Drug Enforcement Administration, drug scheduling is a method of classifying substances based upon their “acceptable medical use” and “potential for dependency or abuse.”

Drug scheduling matters. The penalties for drug possession depend largely on the scheduling of the drug.

Schedule I Drugs

Schedule I is reserved for drugs deemed most dangerous to Coloradans’ public health and safety. These substances carry a high potential for abuse and have no acceptable medical purpose recognized by state law.

Schedule I drugs include MDMA (ecstasy), heroin, and various hallucinogens, such as:

• LSD

• PCP

• psilocybin (magic mushrooms)

• peyote

Schedule II Drugs

While Schedule II drugs come with a high potential for abuse, they do have an established medical use. However, abusing these substances can lead to severe psychological and physical dependence.

Schedule II applies to opium and prescription opioid pain pills, such as:

• oxycodone (Oxycontin)

• hydrocodone (Vicodin)

• morphine

• fentanyl

• methadone

Stimulants such as cocaine and methamphetamine are also Schedule II drugs.

Schedule III Drugs

Drugs in this class have a lower abuse potential than Schedule I or II drugs. While these substances do have a valid medical use, they also have the potential for low to moderate physical dependence and high psychological dependence.

Schedule III drugs include:

• barbiturates

• ketamine

• anabolic steroids

• medications containing small amounts of codeine

Schedule IV Drugs

Schedule IV substances have a lower abuse potential than Schedule III drugs, as well as an acceptable medical use. However, limited psychological and physical dependence is possible.

This class covers prescription anti-anxiety medications such as diazepam (Valium) and non-barbiturate sleep medications such as zolpidem (Ambien).

Schedule V Drugs

This class is reserved for the least dangerous drugs with the lowest potential for abuse and accepted medical purposes. Like their Schedule IV counterparts, these substances are likely to lead to only limited physical or psychological dependence.

Schedule V substances include medicines that contain small amounts of certain narcotic drugs. Over-the-counter cough syrups and cold medications containing small amounts of codeine are two examples of Schedule V drugs.

In 2019, Colorado lawmakers passed House Bill 19-1263. The law made possessing small amounts of Schedule I and Schedule II drugs a Class 1 misdemeanor, rather than a Class 4 felony.

That means you now face the possibility of only six to 18 months in county jail if caught with less than two grams of drugs like cocaine, heroin, or methamphetamine.

You can still face felony drug charges if you’re caught possessing:

• more than 4 grams of any Schedule I or Schedule II drug

• any amount of common date rape drugs like GHB, ketamine, or flunitrazepam (Rohypnol known as roofies)

Sentencing for Colorado felony drug possession charges depends on a number of factors, including:

• the drug schedule (the more serious the drug, the more serious the sentence)

• the quantity of drugs involved

• whether the drugs were for personal use, sale, or large-scale distribution

• whether you are a habitual drug offender or have a history of drug convictions

• whether you are currently on probation, on parole, or incarcerated for a felony offense

Colorado’s criminal justice system separates drug charges into seven separate classes.

From most to least serious, they are:

• Level 1 drug felonies

• Level 2 drug felonies

• Level 3 drug felonies

• Level 4 drug felonies

• Level 1 drug misdemeanors

• Level 2 drug misdemeanors

• Drug petty offenses

Felony Drug Penalties

As stated above, most drug possession crimes are misdemeanors in Colorado. However, you commit a Level 4 drug felony when you:

• possess any amount of GHB, flunitrazepam, or ketamine

• possess more than 4 grams of Schedule I or Schedule II drugs

The least serious of the felony drug crimes, these drug possession charges can lead to six months to one year in prison and/or fines of $1,000 to $100,000.

Misdemeanor Drug Penalties

Colorado law subdivides drug misdemeanors into two tiers: Level 1 and Level 2. These drug charges have more lax penalties than drug felonies.

Level 1 Drug Misdemeanor

Punishment includes six to 18 months in jail and/or $500 to $5,000 in fines.

Some examples include:

• unlawful possession of Schedule III, Schedule IV, or Schedule V drugs

• unlawful possession of up to 4 grams of Schedule I or Schedule II drugs, or drugs listed in part 2 or Article 18 of Title 18, not including flunitrazepam or ketamine

• possession of more than 6 ounces of marijuana or more than 3 ounces of marijuana concentrate

• attempt to commit a level 4 drug felony

Level 2 Drug Misdemeanor

The least serious of the Colorado drug charges, a Level 2 drug misdemeanor conviction could result in up to 12 months in county jail, and/or $50 to $750 in fines.

Your first offense means:

• Up to one year of probation

• A possible 120 days in jail

• Up to $500 in fines

However, a third or subsequent offense will likely land you 180 days in jail.

The R&H Criminal Defense Team is comprised of two former Colorado public defenders and a former prosecutor. We know what to say, when to say it, and how to say it. Don’t let a drug possession charge derail your future. Let our criminal defense attorneys negotiate with the prosecutor or show the jury that you are more than one bad decision. Call (720) 797-2215 today to begin your case assessment.