(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), part 2 or 3 of this article 18, section 18-18-434, article 170 of title 12, or article 50 of title 44, 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:
(a) 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.
(b) (Deleted by amendment, L. 2013.)
(c) 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.
(2.5) (a) Notwithstanding subsection (2)(c) of this section, on or after July 1,
2022, a person who violates subsection (1) of this section by knowingly possessing:
(I) Any material, compound, mixture, or preparation that weighs more than
one gram and not more than four grams and contains any quantity of fentanyl,
carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), commits a level 4 drug felony;
(II) Any material, compound, mixture, or preparation that weighs not more
than one gram and contains any quantity of fentanyl, carfentanil, benzimidazole
opiate, or an analog thereof as described in section 18-18-204 (2)(g), commits a
level 1 drug misdemeanor; except that a fourth or subsequent offense for a violation
of this subsection (2.5)(a)(II) is a level 4 drug felony.
(b) Notwithstanding the provisions of section 18-18-403.5 (2.5)(a)(I) of this
section, when a defendant shows supporting evidence to establish that he or she
made a reasonable mistake of fact and did not know that the controlled substance
he or she possessed contained fentanyl, carfentanil, benzimidazole opiate, or an
analog thereof as described in section 18-18-204 (2)(g), the matter shall be
submitted to the finder of fact in the form of an interrogatory included in the verdict
form. Should the finder of fact determine the defendant made such a reasonable
mistake of fact, the defendant commits a level 1 drug misdemeanor.
(2.7) (a) A person who violates subsection (1) of this section by possessing
any material, compound, mixture, or preparation that contains a quantity of
fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in
section 18-18-204 (2)(g), that is more than sixty percent of the total composition of
the material, compound, mixture, or preparation, commits a level 2 drug felony.
(b) (I) This subsection (2.7) takes effect at 12:01 a.m. thirty days after the date
identified in the notice provided to the revisor of statutes by the director of the
Colorado bureau of investigation that the Colorado bureau of investigation has the
resources to determine the quantity of fentanyl, carfentanil, benzimidazole opiate,
or an analog thereof as described in section 18-18-204 (2)(g), compared to the total
composition of the material, compound, mixture, or preparation, or on the date of
the notice to the revisor of statutes if the notice does not specify a different date.
(II) The director of the Colorado bureau of investigation shall notify the
revisor of statutes in writing when the condition specified in subsection (2.7)(b)(I) of
this section has occurred by e-mailing the notice to [email protected].
(III) Concurrent with the notice required in subsection (2.7)(b)(II) of this
section, the director of the Colorado bureau of investigation shall notify the speaker
of the house of representatives, the president of the senate, the chief justice of the
supreme court, the governor, the attorney general, the state public defender, and
each district attorney in the state, that the Colorado bureau of investigation has the
resources to determine the quantity of fentanyl, carfentanil, benzimidazole opiate,
or an analog thereof as described in section 18-18-204 (2)(g), compared to the total
composition of the material, compound, mixture, or preparation.
(IV) This subsection (2.7)(b) is repealed, effective one year after notice to the
revisor of statutes pursuant to subsection (2.7)(b)(II) of this section.
(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.
(6) Notwithstanding subsection (2) of this section to the contrary, a peace
officer shall not arrest and a district attorney shall not charge or prosecute an
employee, agent, or volunteer of an entity described in section 12-30-110 (1)(a) who,
in the performance of the person’s duties, is in possession of a controlled
substance, including fentanyl, carfentanil, benzimidazole opiate, or an analog
thereof as described in section 18-18-204 (2)(g), for the purpose of safe disposal of
the controlled substance, including fentanyl, carfentanil, benzimidazole opiate, or
an analog thereof as described in section 18-18-204 (2)(g), in accordance with
applicable law. As used in this subsection (6), safe disposal means the procedure
and process for depositing the controlled substance, including fentanyl,
carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), in a secure container for law enforcement to subsequently access
and dispose of.
(2) This section was amended by Proposition 122, with the proclamation of
the governor on December 27, 2022. The vote count for the measure at the general
election held November 8, 2022, was as follows:
FOR: 1,296,992
(3) As of publication date, the revisor of statutes has not received the notice
referred to in subsection (2.7).
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 12-1311), 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. L. 2022: (2.5), (2.7), and (6) added, (HB 22-1326), ch. 225, p. 1626, § 2, effective July 1. Initiated 2022: (1) amended, Proposition 122, L. 2022, effective upon proclamation of the Governor, December 27, 2022. L. 2023: (1) amended, (SB 23-290), ch. 249, p. 1411, § 24, effective July 1.
(1) Amendments to subsection (1) by House Bill 12-1311 and Senate Bill 12-020 were harmonized.
For the legislative declaration in SB 12-020, see section 1 of chapter 225, Session Laws of Colorado 2012. For the legislative declaration in HB 22-1326 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to § 2-2-1201 scheduled in 2024, 2025, and 2027, see sections 1 and 55 of chapter 225, Session Laws of Colorado 2022. To obtain a copy of the review, once completed, go to Legislative Resources and Requirements on the Colorado General Assembly’s website.
