Today, the Colorado Drug laws received a major overhaul, with the goal of keeping people convicted of drug possession crimes out of prison. Due to the efforts of the Colorado Criminal Justice Reform Commission and the Colorado Criminal Defense Bar during this year’s legislative session, these new Colorado criminal laws lessen the punishment for certain drug possession crimes.
The new laws come with the addition of C.R.S. 18-1.3-103.5., which dictates that after an offender successfully completes a probationary sentence, a felony conviction would be reduced to a misdemeanor conviction.
Section (2) (a) reads as follows:
In a case in which the defendant enters a plea of guilty or is found guilty by the court or a jury for a crime listed in subsection (3) of this section, the court shall order, upon successful completion of any community-based sentence to probation or to a community corrections program, the felony conviction vacated and shall enter a conviction for a level 1 misdemeanor drug offense of possession of a controlled substance pursuant to section 18-18-403.5. Upon entry of the judgment of conviction pursuant to section 18-18-403.5, the court shall indicate in its order that the judgment of conviction is entered pursuant to the provisions of this section.
The crimes that apply to this automatic reduction to a misdemeanor after successful completion of the sentence include possession of four or less grams of schedule I or II controlled substances, such as cocaine, and two grams or less of heroin, methamphetamine, ketamine, or cathinone. In addition, the prosecution and defense can stipulate to an amount of the drug in order for the defendant to take advantage of this new subsection of Colorado’s drug law. Therefore, a charge of possession of a higher weight can be lessened in order to allow a defendant to get a misdemeanor conviction if successful on probation or the community-based sentence.
The new law also suggests that a sentencing court exhaust all alternative options on what was a class four-felony drug possession offense before putting someone in prison. The law reflects the desire of the legislature to keep drug offenders out of the Department of Corrections.
The new addition also creates new classifications for drug offenses. For example, what used to be classified as class three-felony possession or a class four-felony is now classified as DM1 to DM4 felony drug offenses, and DM1 to DM2 misdemeanor offenses. The DM1 is the most serious, and requires a mandatory sentence to prison from 8 to 32 years. The presumptive range for a DF2 is 4 to 8 years, and up to 16 years if aggravated. A DF3 requires a sentence from 2 to 4 years, and a DF4 carries six months to one year in the presumptive range.
The reduction from felony to misdemeanor, nicknamed the “wobbler” applies to most DF4 crimes unless the defendant does not meet the criteria. Some, but not all, of the factors disqualifying a defendant from “wobbler” eligibility are where the defendant is not probation-eligible, where the defendant has a prior deferred judgment or diversion for a felony drug charge, where the defendant took advantage of a prior “wobbler” that was reduced to a misdemeanor, and where the offender has a prior misdemeanor drug conviction that was reduced from a felony charge.
Criminal defense attorneys have a lot of work ahead of them learning the new drug laws and making sure their clients are negotiating deals that take advantage of this new law.