Section 18-18-403.5 - Unlawful possession of a controlled substance - notice to revisor of statutes - repeal(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 revisorofstatutes.ga@coleg.gov.(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.Amended by 2023 Ch. 249,§ 24, eff. 7/1/2023.Amended by 2022 Ballot Proposition 122, passed by voters in 11/8/2020 election, effective upon official proclamation by governor.Amended by 2022 Ch. 225, § 2, eff. 7/1/2022, app. to offenses committed on or after 7/1/2022.Amended by 2019 Ch. 136, § 105, eff. 10/1/2019.Amended by 2019 Ch. 291, § 1, eff. 3/1/2020.Amended by 2015 Ch. 76, § 2, eff. 7/1/2015.Amended by 2014 Ch. 391, § 18, eff. 7/1/2014.Amended by 2013 Ch. 333, § 8, eff. 10/1/2013.L. 2010: Entire section added, (HB 10-1352), ch. 1165, p. 1165, § 4, effective August 11. L. 2012: (1) amended, (SB 12-020), ch. 988, p. 988, § 4, effective May 29; (1) amended, (HB-1311), ch. 281, p. 1622, § 54, effective July 1. L. 2013: (2) amended, (SB 13-250), ch. 1908, p. 1908, § 8, effective October 1. L. 2014: (2)(a) amended, (SB 14-163), ch. 1976, p. 1976, § 18, effective July 1. L. 2015: (1) amended and (3) added, (SB 15 -116), ch. 201, p. 201, § 2, effective July 1. L. 2019: (1) amended, (HB 19-1172), ch. 1679, p. 1679, § 105, effective October 1; IP(2), (2)(a), and (2)(c) amended and (4) and (5) added, (HB 19-1263), ch. 2676, p. 2676, § 1, effective 3/1/2020.Amendments to subsection (1) by House Bill 12-1311 and Senate Bill 12-020 were harmonized.
For the legislative declaration in the 2012 act amending subsection (1), see section 1 of chapter 225, Session Laws of Colorado 2012.