By Caryn J. Adams
Attorney & Partner
The Gasper Law Group
There has been a lot of media coverage on the recent statutory changes to Colorado’s drug laws. (Colorado Springs Gazette “Sentencing reform bill would cut some prison terms, fund drug rehab”, Denver Post.com “Lawmakers propose changes to drug sentencing”,Colorado Drug Crimes: 2010 Law Update, Colorado Governor Approves New DUI and Drug Crime Laws, Colorado reducing penalties for certain drug possession crimes). Therefore, the following is intended as a brief and incomplete summary of the changes rather than a discussion of how exactly those changes will be beneficial. In general, the intent is to move away from long prison sentences for drug users (as opposed to drug dealers) and towards greater efforts at treatment. The hope is that a regime that values treatment over incarceration will more rehabilitative for those convicted of drug offenses and more cost effective for the community.
• For years, use of a controlled substance has been treated as a felony offense. The new statutes reduce the use of all controlled substances to a Class 2 Misdemeanor. (One exception: use of two ounces or less of marijuana without a prescription is a petty offense, punishable by a fine).
• Offenses relating to the manufacture or distribution of controlled substances other than marijuana are largely unaffected by the changes. This also includes the offense of possession with the intent to distribute. The biggest change here is an additional statutory section making dealing drugs to a minor Class 3 Felony punishable by a MANDATORY term in the Department of Corrections of at least 4 years.
• Possession of methamphetamine is still either a Class 4 or Class 6 Felony, but the amount that marks the tipping point between the two felonies has changed. Before July 2010 possession of more than a gram of methamphetamine boosted the level to a Class 4 Felony. Now, however, possession of TWO grams or less is a Class 6 Felony, and more than that becomes a Class 4 Felony. This is an important distinction since Class 6 Felonies are punishable (presumptively) by up to 18 months in the Department of Corrections, and Class 4 Felonies range up to 6 years in the DOC. Probation is also still a potential sentence for either offense.
• Possession of all other Schedule I and Schedule II drugs (plus ketamine and flunitrazepam) is either a Class 6 of Class 4 Felony depending on whether the amount possessed is more or less than 4 grams.
• Possession of all other Schedule III, IV, and V drugs without a prescription is a misdemeanor.
• The remaining BIG changes in the statutory scheme have to do with marijuana. As previously mentioned above, possession or consumption of 2 ounces or less is a petty offense punishable by a fine. Possession of up to 12 ounces of marijuana is a misdemeanor offense. Possession of more than 12 ounces of marijuana (or more than 3 ounces of marijuana concentrate) is a Class 6 Felony.
In my personal opinion, the biggest change is what’s come to be known some circles as the “anti-Bogarting provision.” Namely, that transferring less than two ounces of marijuana to someone else without consideration (e.g. sharing a joint) has become a petty offense. This signals a sea-change from the “just say ‘no’” era in which I grew up. However, even this new provision should not be taken as permission to freely light up in your basement with your friends, a la “That 70’s Show.” Conviction of most marijuana offenses, even ones only punishable by a fine, can disqualify students from receiving federal student aid. Additionally, sharing a joint with someone under the age of 15 carries the same mandatory prison sentence as described above.