In 2013, the Colorado legislature extensively amended the existing offenses and penalties relating to marijuana offenses and drug offenses in Colorado. The key statute governing both the illegal possession and sale of marijuana is C.R.S. section 18-18-406, supra. Under the new law, all of the offenses previously listed as felonies, misdemeanors or petty offenses, are now designated as “drug felonies,” “drug misdemeanors,” and “drug petty offenses,” with what, in general, amounts to a slightly lesser degree of punishment compared to the punitive scheme applicable to other felonies. This was part of a general overhaul of Colorado’s approach to drug crimes.
More recently, in HB 19-1263, effective for offenses committed on or after March 1, 2020, the legislature acted to lower the penalty for certain Schedule I or II drug possession offenses to a level 1 drug misdemeanor rather than a class 4 drug felony. The measure also reduces penalties for people possessing more than 12 ounces of marijuana or more than three ounces of a marijuana concentrate. However, the legislation does not serve to reduce penalties for drug distribution.
Colorado Drug Felonies Sentences & Penalties:
Drug Felonies are classified in C.R.S. section 18-1.3-401.5(2)(a) and (b) and apply to offenses committed on or after October 31, 2013.
|Class||Presumptive Range||Aggravated Range||Parole||Fine|
|DF1||8*-32 years||None||3 yrs||$5k to $1 mil|
|DF2||4-8 years||8-16 years||2 yrs||$3k-$750k|
|DF3||2-4 years||4-6 years||1 year||$2k-$500k|
|DF4||6 months-1 year||1-2 years||1 year||$1k-$100k|
*Note: Unlike the other provisions, a Level 1 Drug Felony requires a mandatory sentence to prison. (at least 8 years). See Section 18-1.3-501(7).
Mandatory Aggravating Circumstances for purposes of level 2, 3 and 4 Drug Felonies are detailed in section 18-1.3-501(10)(a) and things such as being on parole, probation or bond for another felony, while in confinement for a felony, as an escapee from confinement for a felony.
Discretionary Aggravating Circumstances that can support a sentence in the aggravated range, but still allow a trial court to sentence in the presumptive range, are set forth in section 18-1.3-501(11).
Suspended Sentences are permissible, provided that the defendant is otherwise probation-eligible, in all cases except for level 1 Drug Felonies. See section 18-1.3-501(12).
Colorado Drug Misdemeanors Sentences & Penalties:
Drug Misdemeanors are classified in C.R.S. section 18-1.3-501(1)(d), as follows.
|Class||Minimum Sentence||Maximum Sentence|
|DM1||6 months, $500 fine or both||18 months, $5,000 fine or both|
|DM2||No jail time, $50 fine||12 months, $750 fine|
Sale, Dispensing or Transfer of Marijuana to Minors:
Drug Petty Offenses are punishable as provided in the applicable statute. Turning to section 18-18-406, supra, the first part of the amended statute focuses on the sale, dispensing or transfer of marijuana and marijuana concentrate by adults to minors (where the minor is at least two years younger than the adult.) These offenses are classified according to the weight involved.
|Amount||Drug Felony Level|
|1 ounce or less, or ½ ounce or less of concentrate||Level 4 Drug Felony|
|More than 1 oz., up to 6 oz., or more than ½ oz. up to 3 oz. of concentrate||Level 3 Drug Felony|
|More than 6 oz., up to 2 and ½ lbs., or more than 3 oz., up to one lb. of concentrate||Level 2 Drug Felony|
|More than 2 and ½ lbs., or more than one lb. of concentrate||Level 1 Drug Felony|
Processing or Manufacture of Marijuana
Section 18-18-406(2)(a)(1) covers the processing or manufacture of marijuana or marijuana concentrate (except as otherwise authorized by law). In all cases, regardless of weight, unlawful manufacturing is a level 3 drug felony. Section 18-18-406(2)(b) covers unlawful sale, dispensation, distribution, possession with intent to sell and conspiracy to do any of the above. The level of the drug offense is based on the weight involved:
|4 oz. or less of marijuana or 2 oz. or less of concentrate||Lvl 1 Drug Misdemeanor|
|More than 4 oz. up to 12 oz. of marijuana or more than 2 oz. up to 6 oz. of marijuana concentrate||Lvl 4 Drug Felony|
|More than 12 oz. up to 5 lbs. of marijuana or more than 6 oz. up to 2 ½ lbs. of marijuana concentrate||Lvl 3 Drug Felony|
|More than 5 lbs. of marijuana up to 50 lbs. or more than 2 ½ lbs. up to 25 lbs. of marijuana concentrate||Lvl 2 Drug Felony|
|More than 50 lbs. of marijuana or more than 25 lbs. of marijuana concentrate||Lvl 1 Drug Felony|
Note: Under Section 18-18-406(5)(c), the unlawful transfer of two oz. or less of marijuana, for no consideration, is a Drug Petty Offense and is not deemed to be “dispensing or sale.”
Cultivation of Marijuana
The third part of 18-18-406 proscribes unlawful cultivation. As with everything else, this has to be read in conjunction with exceptions for personal and medical use. In cases where those exceptions don’t apply, cultivation is punishable according to the number of plants:
|Not more than six plants||Lvl 1 Drug Misdemeanor|
|More than six, up to thirty plants||Lvl 4 Drug Felony|
|More than thirty plants||Lvl 3 Drug Felony|
“Simple Possession” of Marijuana
“Simple possession” of marijuana (i.e. without intent to distribute) is addressed in 18-18-406(4). Again, the offenses are categorized according to weight:
Currently, possession of more than two ounces of marijuana, but not more than six ounces, is a level 2 drug misdemeanor. Possession of more than six ounces of marijuana but not more than twelve ounces or not more than three ounces of marijuana concentrate is a level 1 drug misdemeanor. Possession of more than twelve ounces of marijuana or more than three ounces of marijuana concentrate is a level 4 drug felony.
However, effective for offenses committed after March 1, 2020, possession of more than twelve ounces of marijuana or more than three ounces of a marijuana concentrate will be reduced from a level 4 drug felony to a level 1 drug misdemeanor and possession of less than three ounces of marijuana concentrate will be reduced to a level 2 drug misdemeanor.
Note: Under section 18-18-406(5)(a), except as provided in 18-1-711 (which relates to emergency reporting exception), unlawful possession of not more than 2 ounces of marijuana is a Drug Petty Offense, punishable by a fine of not more than $100.
Under 18-18-406(5)(b), open and public display, consumption or use of marijuana, except as provided by the emergency reporting exception, is a Drug Petty Offense if the amount involved is two ounces or less, and punishable by a fine of up to $100 and/or 24 hours of community service. If the amount openly consumed or displayed is more than two ounces, then it is deemed to be possession, and is punished accordingly.
Habitual Offender Provisions
The interplay of Drug Felonies and Habitual Offender provisions is set out in C.R.S. section 18-1.3-801. As a general rule, the court must impose a life sentence and the offender cannot be paroled for 40 years if the offender is convicted of a class 1 or 2 felony or a class 3 crime of violence or a level 1 drug felony and has been twice convicted previously for any similar offenses. In addition, the court must impose a sentence of three times the maximum of the presumptive range for the class of felony of which a person is convicted if that person is convicted of a class 1, 2, 3, 4, or 5 felony, or a level 1, 2 or 3 drug felony, and, within 10 years of the date of the commission of that offense, has been twice convicted of other distinct felonies. If the triggering offense is a level 1 drug felony, the sentence shall be 48 years. Under the same predicates, a court must impose a sentence of four times the maximum of the presumptive range for the class or level of felony of which such person is convicted if that person has been three times previously convicted of distinct felonies. In this case, conviction of a Level 1 Drug Felony results in the imposition of a 64-year sentence.
Attempts and Conspiracies
Under C.R.S. section 18-2-101(10(a), a criminal attempt to commit any drug felony or drug misdemeanor is treated as one level lower than the intended offense, except that any attempt to commit a level 2 misdemeanor is treated as a level 2 misdemeanor itself. The same rule applies to conspiracies pursuant to C.R.S. section 18-2-206(7), but be aware that conspiracies to distribute marijuana, pursuant to 18-18-406, are incorporated into the offense.