2021 Colorado Code
Title 18 - Criminal Code
Article 18 - Uniform Controlled Substances Act of 2013
Part 4 - Offenses and Penalties
§ 18-18-427. Drug Paraphernalia - Determination - Considerations

1. In determining whether an object is drug paraphernalia, a court, in its discretion, may consider, in addition to all other relevant factors, the following:
   1. Statements by an owner or by anyone in control of the object concerning its use;
   2. The proximity of the object to controlled substances;
   3. The existence of any residue of controlled substances on the object;
   4. Direct or circumstantial evidence of the knowledge of an owner, or of anyone in control of the object, or evidence that such person reasonably should know, that it will be delivered to persons who he knows or reasonably should know, could use the object to facilitate a violation of sections 18-18-425 to 18-18-430;
   5. Instructions, oral or written, provided with the object concerning its use;
   6. Descriptive materials accompanying the object which explain or depict its use;
   7. National or local advertising concerning its use;
   8. The manner in which the object is displayed for sale;
   9. Whether the owner, or anyone in control of the object, is a supplier of like or related items to the community for legal purposes, such as an authorized distributor or dealer of tobacco products;
   10. The existence and scope of legal uses for the object in the community;
   11. Expert testimony concerning its use.

2. In the event a case brought pursuant to sections 18-18-425 to 18-18-430 is tried before a jury, the court shall hold an evidentiary hearing on issues raised pursuant to this section. Such hearing shall be conducted in camera.

History. Source: L. 92: Entire article R&RE, p. 377, § 1, effective July 1.

This section is similar to former § 12-22-503 as it existed prior to 1992.

Law reviews. For article, “Constitutional Law and Civil Rights”, see 59 Den. L.J. 239 (1982).

Annotator's note. Since § 18-18-427 is similar to § 12-22-503 as it existed prior to its repeal in 1992, relevant cases construing that provision have been included in the annotations to this section.

Constitutionality of Drug Paraphernalia Act upheld against challenge based on assertion that use of the terms “reasonably should know” and “could” were unconstitutionally vague and overbroad as used in this section. Lee v. Smith, 772 P.2d 82 (Colo. 1989).

Overbreadth analysis not applicable. Since an overbreadth analysis is appropriately employed where the legislation at issue affects constitutionally protected conduct, and since no constitutionally protected conduct was raised in challenge to Drug Paraphernalia Act, law will not be invalidated as overbroad or vague. Lee v. Smith, 772 P.2d 85 (Colo. 1989).

Standards not set for courts alone. The 11 specific standards of this section, to be considered when determining whether an item falls within the definition of drug paraphernalia, are not for the court's use alone. They were not intended to be withheld from the enforcement officers or anyone else administering or complying with the statute. Hejira Corp. v. MacFarlane, 660 F.2d 1356 (10th Cir. 1981).

Section contains sufficient language to avoid arbitrary enforcement even though there are no guidelines specifically directed to enforcement authorities. High Gear and Toke Shop v. Beacom, 689 P.2d 624 (Colo. 1984).

Applied in Wakabayashi v. Tooley, 648 P.2d 655 (Colo. 1982).