2021 Colorado Code
Title 18 - Criminal Code
Article 18 - Uniform Controlled Substances Act of 2013
Part 4 - Offenses and Penalties
§ 18-18-414. Unlawful Acts - Licenses - Penalties

1. Except as otherwise provided in this article 18 or in article 280 of title 12, the following acts are unlawful:
   1. The dispensing or possession of a schedule I controlled substance except by a researcher who is registered under federal law to conduct research with that schedule I controlled substance;
   2. Except as provided in subsection (2) of this section, the dispensing of any schedule II controlled substance unless such substance is dispensed:
      1. From a pharmacy pursuant to a written order or an order electronically transmitted in accordance with 21 CFR 1311; or
      2. By any practitioner in the course of his or her professional practice;

   3. The dispensing of any schedule III, IV, or V controlled substance unless such controlled substance is dispensed from a pharmacy pursuant to a written, oral, mechanically produced, computer generated, electronically transmitted, or facsimile transmitted order or is dispensed by any practitioner in the course of his or her professional practice;
   4. The dispensing of any marijuana or marijuana concentrate;
   5. To refill any schedule III, IV, or V controlled substance more than six months after the date on which such prescription was issued or more than five times;
   6. The failure of a pharmacy to file and retain the prescription as required in section 12-280-134;
   7. The failure of a hospital to record and maintain a record of such dispensing as provided in section 12-280-134 or 27-80-210;
   8. The refusal to make available for inspection and to accord full opportunity to check any record or file as required by this article 18, part 1 of article 280 of title 12, or part 2 of article 80 of title 27;
   9. The failure to keep records as required by this article 18, part 1 of article 280 of title 12, or part 2 of article 80 of title 27;
   10. The failure to obtain a license or registration as required by this article 18, part 1 of article 280 of title 12, or part 2 of article 80 of title 27;
   11. Except when controlled substances are dispensed by a practitioner for direct administration in the course of his practice or are dispensed for administration to hospital inpatients, the failure to affix to the immediate container a label stating:
       1. The name and address of the person from whom such controlled substance was dispensed;
       2. The date on which such controlled substance was dispensed;
       3. The number of such prescription as filed in the prescription files of the pharmacy which dispensed such prescription;
       4. The name of the prescribing practitioner;
       5. The directions for use of the controlled substance as contained in the prescription; and
       6. The name of the patient and, if for an animal, the name of the owner;

   12. The failure of a practitioner, in dispensing a controlled substance other than by direct administration in the course of his practice, to affix to the immediate container a label bearing directions for use of the controlled substance, his name and registry number, the name of the patient, the date, and, if for an animal, the name of the owner;
   13. The administration of a controlled substance other than to the patient for whom prescribed;
   14. The possession, by any practitioner, of a controlled substance which was not obtained from a pharmacy and which was received from a person who is not licensed as a manufacturer, distributor, or practitioner. It is also unlawful for a pharmacy to have possession of a controlled substance which is received from any person who is not licensed as a manufacturer or distributor; except that a pharmacy may buy controlled substances from another pharmacy.
   15. Knowingly transferring drug precursors to any person who uses them for an unlawful activity;
   16. (Deleted by amendment,L. 96, p. 149, § 5, effective April 8, 1996.)
   17. Knowingly acquiring or obtaining, or attempting to acquire or obtain, possession of a drug precursor by misrepresentation, fraud, forgery, deception, or subterfuge;
   18. Knowingly furnishing false or fraudulent material information in, or omitting any material information from, any application, report, or other document required to be kept or filed under this article 18, part 1 of article 280 of title 12, or part 2 of article 80 of title 27, or any record required to be kept by this article 18, part 1 of article 280 of title 12, or part 2 of article 80 of title 27;
   19. (Deleted by amendment,L. 96, p. 149, § 5, effective April 8, 1996.)
   20. The refusal of entry into any premises for any inspection authorized by this article 18, part 1 of article 280 of title 12, or part 2 of article 80 of title 27.

2. 1. , means a situation in which the prescribing practitioner determines:
      1. That immediate dispensing of the controlled substance is necessary for proper treatment of the intended ultimate user;
      2. That no alternative prescription drug is available, including drugs that are not controlled substances under schedule II of part 2 of this article;
      3. That it is not reasonably possible for the prescribing practitioner to provide a written prescription order to be presented to the person dispensing the controlled substance, or to electronically transmit a prescription order to the dispenser, prior to such dispensing.

   2. 1. Upon receiving an emergency oral prescription order from the practitioner, the pharmacist shall immediately reduce the prescription order to writing or an electronic format and shall write or otherwise ensure that the following language and information is recorded in the prescription record: “Authorization for emergency dispensing” and the date and time of dispensing of the oral prescription. (b) (I) Upon receiving an emergency oral prescription order from the practitioner, the pharmacist shall immediately reduce the prescription order to writing or an electronic format and shall write or otherwise ensure that the following language and information is recorded in the prescription record: “Authorization for emergency dispensing” and the date and time of dispensing of the oral prescription.
      2. The prescribing practitioner shall reduce the prescription order to writing or an electronic format and shall deliver the prescription order to the pharmacist in person, by facsimile transmission as provided in paragraph (c) of this subsection (2), by mail, or by electronic transmission within seventy-two hours after prescribing the schedule II controlled substance. If delivered by mail, the envelope must be postmarked within seventy-two hours after prescribing. Upon receipt of the prescription order, the pharmacist shall maintain the prescription order with the oral prescription order that has been reduced to writing or an electronic format.
      3. The pharmacist shall notify the board if the prescribing practitioner fails to deliver the written or electronic prescription order to the pharmacist.

   3. 1. A prescription for a controlled substance listed in schedule II of part 2 of this article may be transmitted via facsimile equipment, so long as the original written, signed prescription is presented to the pharmacist for review prior to the actual dispensing of the controlled substance, except as provided in subparagraph (II) of this paragraph (c). (c) (I) A prescription for a controlled substance listed in schedule II of part 2 of this article may be transmitted via facsimile equipment, so long as the original written, signed prescription is presented to the pharmacist for review prior to the actual dispensing of the controlled substance, except as provided in subparagraph (II) of this paragraph (c).
      2. A prescription written for a schedule II controlled substance for a hospice patient or for a resident of a long-term care facility or for the direct home administration to a patient by parenteral, intravenous, intramuscular, subcutaneous, or intraspinal infusion (infusion drug therapy) may be transmitted by the practitioner or the practitioner's agent to the dispensing pharmacy or pharmacist by facsimile transmission. The practitioner or the practitioner's agent shall note on the prescription that the patient is a hospice patient or a resident in a long-term care facility or a patient receiving infusion drug therapy. The facsimile serves as the original written prescription for purposes of this section and shall be maintained as specified by the board.
      3. For the purposes of this paragraph (c):
         1. “Hospice patient” means an individual who is receiving hospice care from an entity licensed and regulated by the department of public health and environment pursuant to sections 25-1.5-103 (1)(a)(I) and 25-3-101, C.R.S.
         2. “Long-term care facility” means a facility that is licensed and regulated as a skilled nursing facility or nursing care facility by the department of public health and environment pursuant to sections 25-1.5-103 (1)(a)(I) and 25-3-101, C.R.S.

3. A person who violates paragraph
   1. , (b), (c), or (d) of subsection (1) of this section commits a level 4 drug felony.

4. A person who violates paragraph (e), (f), (g), (h), (i), (j), (k), (l), (m), or (n) of subsection (1) of this section or subsection (2) of this section or any other provision of this part 4 for which a penalty is not specified is guilty of a level 2 drug misdemeanor.
5. A person who violates paragraph (o), (q), (r), or (t) of subsection (1) of this section commits a level 3 drug felony.

History. Source: L. 92: Entire article R&RE, p. 368, § 1, effective July 1. L. 95: (1)(d) amended, p. 206, § 22, effective April 13. L. 96: (1)(o), (1)(p), (1)(s), and (5) amended, p. 149, § 5, effective April 8; (1)(c) and (2) amended, p. 1427, § 18, effective July 1. L. 97: (2) amended, p. 17, § 1, effective March 20. L. 98: (2) amended, p. 428, § 1, effective July 1. L. 2003: (2)(c)(III) amended, p. 704, § 25, effective July 1. L. 2010: (1)(d) amended,(HB 10-1352), ch. 259, p. 1174, § 20, effective August 11. L. 2012: (1)(b), IP(2)(a), (2)(a)(III), and (2)(b) amended,(SB 12-037), ch. 40, p. 140, § 2, effective March 22; IP(1), (1)(f), (1)(g), (1)(h), (1)(i), (1)(j), (1)(r), and (1)(t) amended, (HB-1311), ch. 281, p. 1623, § 58, effective July 1. L. 2013: (3), (4), and (5) amended,(SB 13-250), ch. 333, p. 1923, § 23, effective October 1. L. 2019: IP(1), (1)(f) to (1)(j), (1)(r), and (1)(t) amended,(HB 19-1172), ch. 136, p. 1680, § 109, effective October 1.

This section is similar to former § 12-22-314 as it existed prior to 1992.

Annotator's note. Since § 18-18-414 is similar to § 12-22-314 as it existed prior to its repeal in 1992 and is similar to §§ 12-22-302 , 12-22-313 , 12-22-322 , 12-22-404 , and 12-22-412 as they existed prior to the repeal and reenactment of part 3 and part 4 of article 22 of title 12 in 1981, relevant cases construing those provisions have been included in the annotations to this section. For other cases construing the former provisions, see the annotations following those sections in the 1978 replacement volume 5 and the 1980 cumulative supplement thereto.

No equal protection violation stems from the fact that this statute punishes cocaine possession as a misdemeanor and § 18-18-105 punishes cocaine possession as a felony, since practitioners are engaged in an occupation which regularly requires administration, dispensation, and possession of controlled substances. People v. Unruh, 713 P.2d 370 (Colo.), cert. denied, 476 U.S. 1171, 106 S. Ct. 2894, 90 L. Ed. 2d 981 (1986).

For constitutionality of legislative distinction between narcotics and other drugs, see People v. Caponey, 647 P.2d 668 (Colo. 1982).

Possession deemed general intent crime. Possession of a narcotic drug in violation of former § 12-22-302 is a general intent crime. People v. Harfmann, 633 P.2d 500 (Colo. App. 1981).

The offenses proscribed by §§ 12-22-302 and 12-22-314 , now encompassed by this section, were general intent offenses having a culpability requirement of knowing conduct which did not entitle a defendant to an instruction on specific intent. And, the court must instruct the jury that each of the elements constituting the offense must be done “knowingly”. People v. McGhee, 677 P.2d 419 (Colo. App. 1983).

Defense of voluntary intoxication not applicable. The policies adopted by the general assembly in refusing to permit a defense of voluntary intoxication in general intent crimes defined in the criminal code apply with equal force to general intent crimes under the Colorado Controlled Substances Act. People v. Harfmann, 633 P.2d 500 (Colo. App. 1981).

Chemical tests are not necessary in all cases to prove that a particular substance is a narcotic drug. People v. Steiner, 640 P.2d 250 (Colo. App. 1981); People ex rel. J.G., 97 P.3d 300 (Colo. App. 2004).

Proof through circumstantial evidence. The prosecution may prove that a substance is cocaine through circumstantial evidence. People v. Steiner, 640 P.2d 250 (Colo. App. 1981).

The prosecution does not need to admit a substance into evidence to prove that is a controlled substance. So long as a sufficient chain of custody is established, the prosecution can meet its burden through circumstantial evidence. People ex rel. J.G., 97 P.3d 300 (Colo. App. 2004).

Procuring agent defense requires that the defendant act as an exclusive agent for the buyer; as such, the defendant becomes a principal, or a conspirator in the purchase rather than in the sale of the narcotics and, therefore, he cannot be convicted of sale or conspiracy to sell. People v. Smith, 623 P.2d 404 (Colo. 1981); People v. McGhee, 677 P.2d 419 (Colo. App. 1983).

Defense is available in prosecution under this section for sale of a narcotic. People v. Hall, 44 Colo. App. 535, 622 P.2d 571 (1980).

Procuring agent defense negates existence of essential element of offense of sale of narcotic, the sale itself. People v. Hall, 44 Colo. App. 535, 622 P.2d 571 (1980).

Under the “procuring agent” defense, a defendant becomes a principal or conspirator in the purchase rather than the sale of the narcotics and, therefore, cannot be convicted of sale or conspiracy to sell narcotic drugs. Bailey v. People, 630 P.2d 1062 (Colo. 1981).

Trial court must credit defendant for time served against maximum as well as minimum sentence term. When the trial court credits the defendant for time already served in setting the minimum term of his sentence, it is error for the trial court not to also credit the defendant for that time against the maximum term of the sentence. People v. Stewart, 626 P.2d 685 (Colo. 1981).

Applied in People v. Macias, 631 P.2d 584 (Colo. 1981); People v. Gomez, 632 P.2d 586 (Colo. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1439, 71 L. Ed. 2d 655 (1982); People v. Ball, 639 P.2d 1078 (Colo. 1982); People v. Hoffman, 655 P.2d 393 (Colo. 1982); People v. Sprowl, 718 P.2d 524 (Colo. 1986).