In 2013, the Colorado legislature extensively amended the existing offenses and penalties relating to marijuana offenses and drug offenses in general. 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. 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). 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|
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|
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.”
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 (i.e. without intent to distribute) is addressed in 18-18-406(4). Again, the offenses are categorized according to weight:
|More than two oz., up to 6 oz.||Lvl 2 Drug Misdemeanor|
|More than 6 oz., up to 12 oz. of marijuana, or up to 3 oz. of marijuana concentrate||Lvl 1 Drug Misdemeanor|
|More than 12 oz. of marijuana or more than 3 oz. of marijuana concentrate||Lvl 1 Drug Felony|
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.
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.
The “Wobbler” provisions of C.R.S. section 18-1.3-103.5 provide that, after an offender successfully completes a probationary sentence, a drug felony conviction will be reduced to a drug misdemeanor conviction for certain offenses. Included among the eligible offenses is possession of twelve or more ounces of marijuana or more than 3 ounces of marijuana concentrate. Not all defendants qualify, however. Among disqualifying factors are where the defendant is not probation-eligible, where the defendant has a prior deferred judgment or diversion for a felony drug charge, where the defendant took advantage of a prior “wobbler” that was reduced to a misdemeanor, and where the offender has a prior misdemeanor drug conviction that was reduced from a felony charge. This can be a critical benefit for clients facing collateral consequences as a result of a felony conviction on their record.
Related Offenses As noted, part of Colorado’s approach to liberalization of marijuana laws has involved re-emphasizing protection of minors, and transfer to minors is punished rather severely pursuant to C.R.S. section 18-18-406(1), supra. C.R.S. section 18-6-701 makes it a class 4 felony to contribute to the delinquency of a minor – defined as any person under the age of 18 – by inducing, aiding or encouraging the minor child “to violate any federal or state law, municipal or county ordinance, or court order.” In addition, the court is directed to report the fact of any such conviction, (including a deferred sentence) to the department of education if the defendant is a current or former school employee or holds a teaching license or authorization. Thus, the distribution of marijuana to a minor who then violates state and federal law by merely possessing it exposes the adult to a class 4 non-drug felony, which carries a presumptive range of 2 to 6 years in prison.
The mere presence of certain drugs or drug precursors on a premises can lead to child abuse charges under C.R.S. section 18-6-401. Marijuana and marijuana concentrate are not among those, but a person who unreasonably places a child in any situation that poses a threat of injury to the child’s life or health can be prosecuted under the general provisions.
The marijuana “open container” law appears at C.R.S. section 42-4-1305.5. It provides that no one in the “passenger area” of a motor vehicle, which includes the driver’s seat mat use or consume marijuana or have in his or her possession an “open” marijuana container. Exceptions are made for the living quarters of house trailers and mobile homes. Violation is class A traffic infraction, punishable by a fine of $50 and an additional surcharge.