Arrested for a Drug Crime in Colorado? What Should You Do Now?

Colorado has just enacted some new drug laws that are relevant to anyone who is arrested for a drug crime. Due to the large number of people in prison in the United States, especially related to drug offenses, officials have pushed to change the drug laws.

Now, this doesn’t mean that drug laws aren’t going to be enforced. Durg laws and drug crime is still a big issue with the District Attorney’s office and the police department. They need to find a common area between being tough on drug crime but not filling up our prisons with petty drug offenders. Here are some of the drug laws that have changed since October 2016

Drug Felony Penalties

Level	Minimum	Maximum	Mandatory Parole	Fine	DOS
DF1	8 years	32 years	3 years	$5,000-$1,000,000	$4,500
	Presumptive	Aggravated
DF2	4-8 years	8-16 years	2 years	$3,000-$750,000	$3,000
DF3	2-4 years	4-6 years	1 year	$2,000-$5,000	$2,000
DF4	6 months – 1 year	1-2 years	1 year	$1,000-$100,000	$1,500

AGGRAVATING FACTORS

• On parole for another felony
• On probation for another felony
• In prison, community corrections or on escape status
• On probation for felony adjudication

*NOTE: (The sentencing range under the above aggravating factors is the statutory midpoint of the presumptive range to the maximum aggravated range)

STATUTORY AGGRAVATORS

• On bond for felony
• On bond for felony delinquent act
• On bond for any offense as a plea when original offense was felony
• On bond for any delinquent act when original offense was felony delinquent act
• On a DJ&S for a felony delinquent act (Note: DJ&S adult inadvertently out)
• On parole for a felony delinquent act

*NOTE: (except for DF1, the presence of any one or more of the above sentence-enhancing circumstances allows the court, if it sentences the defendant to incarceration, to sentence the defendant to a term in the presumptive OR aggravated range)

Drug Misdemeanor Penalties

Level	Minimum	Maximum	Fine	DOS
DM1	6 months	18 months	$500-$5,000	$1,000
DM2	0 months	12 months	$50- $750	#300

What is a Wobbler and How Does it Impact Drug Offenses?

• Filed as a felony (arrested, booked and filed)
• Becomes a misdemeanor upon:
  1. Successful completion of
     1. Probation
     2. Community Corrections
  2. Successful completion requires
     1. Determination by the court of successful completion
     2. Must include successful completion of treatment as determined to be appropriate to address treatment need
• It should be noted that not all drug felonies are Wobbler eligible. You have to get the courts permission once it is determined that you have completed all of your probationary sentences.
• No case before October 31, 2013, will be Wobbler eligible.
• NOT ALL CASES ARE WOBBLER ELIGIBLE. Even if you fit the description for Wobbler eligible that does not mean the judge will grant your request.

Wobbler Eligible Crimes	Wobbler Ineligible Crimes
Possession of 4 grams of less of Schedule I and II or	Crime of violence or probation ineligible
Possession of 2 grams of Meth, Heroin, Ketamine or Cathinones, or 4 milligrams or less of Flunitrazapam	Defendant has prior conviction
Distribution – Sharing(see below for definition of sharing)	Offense required to be sentenced pursuant to conviction statute
Possession of Marijuana 12 oz. or more; 3 oz. or more of concentrate	Out of state conviction which would be conviction or required to be sentenced as such
Script Fraud	Defendant not probation eligible
	Defendant has two or more prior drug convictions that are felonies
	Drug conviction defined as;-       Out of state drug conviction-       Prior diversion or drug felonies-       Prior deferred prosecution of drug felonies-       Prior DJ&S or drug felonies –       Prior felony reduced to misdemeanor as a wobbler –       Prior misdemeanor drug conviction which began as felony as originally charged

What is Drug Sharing?

• Sharing – Notwithstanding any other provision to the contrary, the distribution or transfer of a Schedule I or Schedule II controlled substance involving not more than four grams or not more than two grams of meth, heroin, ketamine or cathinone and when the person transferring all or part of the above quantity performs the transfer for the purpose of jointly possessing and consuming all of the transferred controlled substance at a time substantially contemporaneous with the transfer is a DF4.
  1. Elements of sharing are
     • Transfer of not more than (4 g or 2 as applicable)
     • For purposes of jointly possession and consuming ALL of the transferred controlled substance
     • At a time substantially contemporaneous with transfer
  2. Represents a ‘mitigating factor’ to the crime of distribution

• All elements of a mitigator must find support in evidence before defendant entitled to submit to a jury.

1. Factual Issues
   • Did they have use paraphernalia on them
   • Did the defendant try to leave after the transaction?
   • Was quantity something this number of people could reasonably consume at that time

What is Drug Tracking?

• Tracking (wobbler)
  1. Importance of plea paperwork
     1. Quantity
        • “the district attorney and defendant may stipulate to the amount of the controlled substance possessed by the defendant at the time of sentencing, or the court shall determine the amount at the time of sentencing.”
     2. Prior Record
        • Prior record often determines wobbler eligibility, so put in the agreement

• I suggest putting wobbler eligibility in agreement and advisement

What Does Exhausted all Drug Sentencing Options Mean?

1. If sentencing someone to prison on a DF4
   1. The Court must make a finding that “incarceration is the most suitable option given the facts and circumstances of the case, including the defendant’s willingness to participate in treatment.”
   2. The court must also determine that all other reasonable and appropriate sanctions and responses to the violation that is available to the court have:
      • Been tried and failed
      • Do not appear to be likely to be successful if tried; or
      • Present an unacceptable risk to public safety
   3. If removed from community corrections on DF4, in order to comply with above
      1. Requirement of sentencing hearing
      2. Written findings of exhaustion

• Community corrections may reject anyone they choose as before

1. For Judges, Community of Corrections and Probation
   1. In making the above determination the court shall review (if available)
      • Information from supervising agency (probation or community corrections)
      • Statements as to what treatment and sentencing options have been tried and failed;
      • What other community options are available?
      • Why other alternatives are inappropriate.
   2. Supervising agency shall provide a risk assessment

• Supervising agency shall provide other information of risk

What is Deferred Judgments and Sentencing?

• Deferred Judgments and Sentences
  1. The Court is not required to revoke a DJ&S on a drug deferred if a violation of the DJ&S occurs.
  2. Factual findings court must make to not revoke:
     1. Entry of judgment of conviction would not be consistent with the purposes of sentencing
     2. The defendant would be better served by continuing the DJ&S; AND

• That public safety would not be jeopardized by the continuation of the DJ&S

1. Over DA Objection?
   1. If the court makes these findings over DA objections the court SHALL:
      • Impose additional and immediate sanctions upon the defendant to address the violation
      • Including, but not limited to imposition of further terms and conditions which
        • Enhance likelihood of success
        • Respond to non-compliance
        • Promote further individual accountability
      • May include extending period of DJ&S for up to 2 additional years
      • May include incarceration in the county jail for up to 90 days

What does SB 14-162 Say?

SB 14-163

1. Adds DF1 and DF2 to crimes marital privilege does not apply
2. Fixes some missing language leaving DFs out of Preliminary Waiver Statutes
3. Corrects some internal references pointing to non-existent statutes
4. Clarifies what Cathinones are
5. Clarifies that if you have one of the statutory aggravators the range is 12-32 for DF1 (there is no presumptive range for DF1s)
6. Adds back appeal bond and Deferred Judgement and Sentence for adult felony as aggravators (inadvertently left out last year)
7. Clarifies that attempt of felony remains a felony and conspiracy of felony remains a felony.
8. Adds new cathinones to the list
9. Ends confusion between hydrocodone and dihydrocodinone

Still have questions? If you want to speak to an experienced Drug Crime attorney in Denver, please contact Mr. Bresee. He and his knowledgeable staff can help with your case.

 

By Shannon Lynch