Although Colorado legalized marijuana many years ago, most drugs remain illegal here. If you have been charged with drug possession, you may be unsure what to do, and you might wonder how to get drug possession charges dropped. Can drug possession charges be dropped in Colorado?
Yes, you can get them dropped, but it depends on the circumstances. There are several ways to get drug possession charges dropped, including:
- Proving the State’s evidence was obtained in violation of your constitutional rights;
- Proving the facts do not support the charge; and
- Negotiating with the prosecutor.
Drug possession charges can upend your life, especially if you are convicted. At The Ferrell Law Firm, PLLC, we have years of experience getting charges dropped. Our firm’s namesake founded a substance abuse treatment center over a decade ago, and we are passionate about helping people struggling with issues related to controlled substances.
Drug Possession in Colorado
Colorado law makes it illegal for a person to knowingly possess a controlled substance. Controlled substances are defined in five schedules. Colorado’s drug schedules are generally consistent with federal law, except that possessing marijuana for personal use is legal here.
Level of the Offense
If you possess four grams or less of a schedule I or II controlled substance, except GHB, you commit a level 1 drug misdemeanor. If you possess any GHB or a schedule III, IV, or V substance, you commit a level 4 drug felony.
Additionally, possessing more than six ounces of marijuana or more than three ounces of marijuana concentrate is a level 1 drug misdemeanor. Possessing three ounces or less of marijuana concentrate is a level 2 drug misdemeanor.
Drug misdemeanors are divided into two categories. The maximum jail sentence for a level 1 drug misdemeanor is 364 days, and the maximum fine is $1,000. The maximum jail sentence for a level 2 drug misdemeanor is 120 days, and the maximum fine is $750.
A level 1 drug felony sentence includes:
- A presumed 8 years in prison;
- Up to 32 years in prison;
- Parole for 3 years; and
- A fine between $5,000 and $1,000,000.
A level 2 drug felony sentence includes:
- A presumed 4 years in prison;
- Up to 8 years in prison;
- Two years of parole; and
- A fine between $3,000 and $750,000.
A level 3 drug sentence includes:
- A presumed 2 years in prison;
- Up to 4 years in prison;
- Parole for 1 year; and
- A fine between $2,000 and $500,000.
A level 4 drug felony sentence includes:
- A presumed 1 year in prison;
- Up to 2 years in prison;
- Parole for 1 year; and
- Fine between $1,000 and $100,000.
The penalties for drug possession can be harsh and severely impact your life. Thankfully, there are many ways to get drug possession charges dropped.
One big way to get drug possession charges dropped is if the officer failed to follow the Constitution when they obtained evidence. Evidence obtained by violating someone’s constitutional rights cannot be used in court. Often, if you can get evidence thrown out, it greatly weakens the State’s case and might give the prosecutor no choice but to drop the charges.
Unreasonable Search and Seizure
Under the Fourth Amendment of the US Constitution, the government cannot search or seize you unreasonably. The Colorado Supreme Court has concluded Colorado’s equivalent provision, Article II, Section 7 of the Colorado Constitution, is even more protective than the Fourth Amendment, making unreasonable search and seizure a strong reason to get charges dropped.
When an officer “seizes” you, they stop you and indicate you are not free to leave. For a seizure to be proper, the officer must have reasonable suspicion you have committed or are committing a criminal offense. The stop must only last as long as is reasonably necessary to assess whether or not you are committing a crime.
For a search to be proper, the officer must have probable cause that you are committing or have committed a crime. If the officer does not have a search warrant, they must also prove that the circumstances justified an exception to the warrant requirement. Probable cause is a higher standard than reasonable suspicion, meaning the officer has to point to more facts that made them believe you were committing or had committed a crime.
Based on the Fifth Amendment, codified in Colorado law, and rooted in the Supreme Court case Miranda v. Arizona, your Miranda rights protect you from self-incrimination. As many TV shows about the police make clear, you have the right not to speak to the police, and you have the right to have an attorney present when you do speak to the police. If the police arrest you, it is very wise to exercise this right. The government has ways to trick you into incriminating yourself during an investigation. So be wise and get your lawyer there to protect you before speaking to the police.
Although search and seizure and Miranda violations are frequent reasons to get evidence thrown out, other constitutional provisions may be relevant to your situation. An experienced defense attorney can help determine whether another provision applies.
The Facts Do Not Support the Charge
Another way to get drug possession charges dropped is to argue that there is not enough evidence to support the charge. You may be able to show any of the following:
- The officer confused you for someone else,
- You did not know you possessed drugs,
- You had a valid prescription, or
- Any number of other explanations for why you did not commit the crime.
Your lawyer will know if the facts do not support the charge and can discuss it with the prosecutor.
Negotiation with the Prosecutor
Finally, you may be able to negotiate with the prosecutor to dismiss the charges. Negotiation is a common way to get first-time drug possession charges dismissed. If the prosecutor agrees that the police acted improperly or the facts do not support the case, they may agree to dismiss or reduce the charges.
If you agree to participate in a pre-trial diversion program, the prosecutor may agree to drop the charges against you. Pre-trial diversion programs typically involve mental health or drug treatment and may require that you complete community service. If you fail to complete the program, the prosecutor may reinstate the charges against you. But, upon successful completion, the charges against you are dropped.
You can also potentially negotiate a plea deal, where the prosecutor may dismiss some charges against you in exchange for a guilty plea on other charges. Although this still results in a conviction, it can be an ideal solution if you are charged with multiple offenses. and the drug charge is the most serious among them.
The Ferrell Law Firm, PLLC Can Help
Being charged with a criminal offense leaves many people unsure of where to turn. At The Ferrell Law Firm, PLLC, we understand drug possession charges often come with complicating mental health considerations. Substance use and abuse are not simple matters, and we are passionate about helping our clients take positive steps forward and, when possible, avoid having drug possession convictions on their records. Contact us today.