2021 Colorado Code
Title 18 - Criminal Code
Article 18 - Uniform Controlled Substances Act of 2013
Part 4 - Offenses and Penalties
§ 18-18-403.5. Unlawful Possession of a Controlled Substance

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), or part 2 or 3 of this article 18, 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:
   1. 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.
   2. (Deleted by amendment, L. 2013.)
   3. 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.

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.

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-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.

Amendments to subsection (1) by House Bill 12-1311 and Senate Bill 12-020 were harmonized.

For the legislative declaration in the 2012 act amending subsection (1), see section 1 of chapter 225, Session Laws of Colorado 2012.

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.