What should I do if I have been charged or think I might be charged with a drug offense?
Here is a vital rule. People accused of drug offenses must make sure that they are not in possession of contraband, meaning any drug in quantities not authorized by a physician, any drug paraphernalia, prohibited weapons, or any other contraband whatsoever. If the police have reason to believe you are in possession of contraband, they may already be pursuing a warrant to search your home or vehicle. If you suspect that someone may have reported you to the police for a drug offense, you should take all necessary steps to ensure you’re not in possession of any contraband.
As for other types of criminal offenses, the judge in a drug-related case may impose certain conditions on a defendant who is released from jail on a bond. The conditions of a bond might include avoiding alcohol or nonprescription drugs, avoiding certain locations or people, relinquishing firearms, or a variety of other possible conditions.
More and more frequently, courts handling drug cases are using what is called “pretrial supervision” as an alternative to incarceration. Instead of posting a cash bond defendants are often released on personal recognizance. A condition of the release – a bond condition – may be that the defendant must comply with pretrial supervision. In La Plata County, pretrial supervision may consist of regular daily or weekly contact with a sheriff’s deputy, electronic home monitoring (including alcohol monitoring and GPS tracking), or alcohol and drug testing that the defendant must pay for.
Put simply, the #1 rule of pretrial supervision is: Make sure you comply. Pretrial supervision is not automatic. It is within the court’s discretion, which means it can be granted, denied, or taken away. And the unfortunate reality is that prosecutors often find it much easier to prove that you have violated your bond conditions than to prove the underlying case against you. That means that if you violate any requirement of your pretrial supervision, the prosecutor may take advantage of that leverage to get you to plead guilty to the underlying offense. Moreover, one missed phone call to the pretrial services department, or another misstep of some kind, can trigger a warrant for your arrest, and you might be charged with an additional offense for violating bond conditions. So if your pretrial supervision requires you to call in, call in. If you are prohibited from traveling out of state without permission, whether from the judge or the pretrial services department, then don’t travel without that permission.
Drug offenses: Two schools of thought.
Drug offenses in Colorado are covered by complicated laws that are themselves the product of an ongoing debate. On one side of the debate are those who say that treating and rehabilitating people convicted of drug offenses makes more sense than putting them in prison. Supporters of this approach point to the success of addiction counseling and mental-health programs for drug offenders. On the other side of the debate are those who believe that an aggressive “war on drugs” is a worthwhile investment in public safety. Supporters of this side are more likely to say that incarceration is the more appropriate response to a drug conviction.
You see evidence of this debate in Colorado’s drug laws and in the way those laws are enforced. Thanks to recent changes in the criminal statutes governing drug offenses, there is a new emphasis on treatment and rehabilitation. Nevertheless, and at the same time, Colorado is ramping up its war on drugs. In 2017, prosecutors in Colorado filed twice as many felony drug cases as they did in 2012. Most of these felony drug filings were for simple possession. That means that we are looking at the potential for an ever-larger population of incarcerated drug offenders. It is not surprising that Colorado lawmakers are already beginning to worry about a new phase of overcrowding in our prisons.
In this anxious and uncertain environment, it is important to have at least a basic understanding of the criminal laws governing drug offenses in Colorado, especially if you or someone you know is affected in any way by a drug charge. Of course, each case is different, and no article can take the place of a face-to-face consultation with an attorney experienced in this unusual area of the law. That’s because the law that applies to a particular drug charge in Colorado may have been “on the books” for just a few months. And a law or statute specific to a drug charge may be very different from one that applies to a similar criminal charge where no drugs are involved. With that caveat in mind, here are some issues to consider if you or someone you know has been charged with a drug-related crime.
Was the search reasonable?
Since a drug arrest typically follows some sort of search, it is important to evaluate whether that search complied with the Fourth Amendment of the Constitution, which prohibits unreasonable searches and seizures. Basically, the Fourth Amendment guarantees that we as citizens are protected from unjustified intrusions into our lives and property by overzealous law-enforcement officers, or by other government officials eager to secure a criminal conviction.
So the first question to discuss with your attorney is, Was the search or seizure reasonable? To be reasonable, a search must have been conducted either:
- under the authority of a warrant, or
- with the consent of the person affected by the search, or
- where law enforcement reasonably believed that a crime had been or was about to take place, or
- where exigent circumstances justified a warrantless intrusion (such as rendering emergency aid), or
- following a lawful arrest.
Each of these situations involves its own very detailed set of considerations. Those considerations may or may not have been observed by law enforcement in your case, so make sure you speak to an attorney about any search that was conducted.
Classification of Drug Offenses in Colorado
In Colorado, drug offenses are classified according to the possible penalties associated with each one. There are six different levels of drug offenses, four felony levels and two misdemeanor levels. Here are Colorado’s four felony levels for drug offenses:
|Drug Felony Classifications|
|Level||Imprisonment (range)||Potential Fine|
|1||8 years to 32 years||$5,000 – $1 million|
|2||4 years to 8 years||$3,000 – $750,000|
|3||2 years to 4years||$2,000 – $500,000|
|4||6 months to 1 year||$1,000 – $100,000|
As with the felony classifications, drug misdemeanors are distinguished from each other by the range of penalties that may be imposed. There are two levels of drug misdemeanors, as shown here:
|Drug Misdemeanor Classifications|
|Level||Minimum Sentence||Maximum Sentence|
|1||6 months imprisonment, or $500 fine, or both||18 months imprisonment, $5,000 fine, or both|
|2||No imprisonment, $50 fine||12 months imprisonment, $750 fine, or both|
The particular level of offense will affect what happens to an accused person as he or she tries to navigate the criminal-justice system. For example, depending on the level of the offense, the person charged with a drug offense may or may not have a legal right to a preliminary hearing, within a reasonable time after the arrest, to determine whether there was probable cause to believe that they committed the offense charged. Because not every accused person is entitled to this preliminary hearing, it is important to consult with an attorney as quickly as possible.
Colorado’s “wobbler” statute can reduce a felony drug offense to a misdemeanor.
There’s an important exception to the classification system for drug offenses. Before assuming that any drug offense can only be either a felony or a misdemeanor, you should be aware that Colorado has enacted what’s called a wobbler statute. Put simply, a wobbler is a felony that can be reduced to a misdemeanor. Whether the wobbler statute applies to your case is certainly something you should discuss with your attorney whenever a felony drug offense has been charged. Here’s how it works.
In the effort to reform how drug offenses are handled, the Colorado legislature has empowered judges to consider whether, in light of all the facts and circumstances, incarceration or rehabilitation is the more suitable option for a particular defendant. If the defendant meets certain qualifications, and fulfills the conditions imposed by the judge, the judge will “vacate”—that is, set aside—a felony drug conviction and enter a misdemeanor conviction.
For example, the judge might sentence a felony drug offender to a community corrections program or probation. Depending on the situation, this sentence might involve completing a rigorous drug treatment protocol. Once the judge is satisfied that the offender has successfully completed the drug treatment protocol, and has met all of the other requirements of the sentence, the felony is set aside, and a misdemeanor is entered.
So the effect of the “wobbler” statute is that a drug offender who might otherwise face lifelong consequences from a felony conviction now has an opportunity to wobble that conviction down to a misdemeanor. Clearly, that’s good news for many people accused of drug offenses.
Sealing criminal records related to drug offenses.
As strange as it sounds, there may be some good news on the far side of a drug-related conviction. The words “sealing” and “expungement” are often used interchangeably, but the basic idea is that a person’s criminal conviction may become confidential—off limits to public view—if certain conditions are met. Once these conditions are met, the offender and all criminal justice agencies may legally respond to any inquiry about the matter by saying that no such record exists. In Colorado, drug offenses are among the very few types of convictions that can be sealed.
The basic steps are as follows. First, there is a minimum waiting period before you may ask for your conviction to be sealed. Once the waiting period has passed, you prepare and file a written petition with the court. The judge will then consider the merits of your petition: basically, whether your privacy outweighs the public’s interest in retaining the record. You will also have to demonstrate that you have not been convicted of any other crimes since the final disposition of your drug case. Once the judge is satisfied, he or she will enter an order to seal the record. The order sealing the records does not vacate the conviction, but it can represent an important second chance for the person involved.
Here are the prerequisites for sealing criminal conviction records for offenses related to controlled substances, where the conviction occurred between July 1, 2008, and June 30, 2011. For petty drug offenses, misdemeanor drug offenses, and level 5 and 6 felony drug offenses, the petition must be filed no sooner than ten years after the final disposition of criminal proceedings against the petitioner, or the petitioner’s release from supervision concerning a criminal conviction, whichever is later.
With respect to the sealing of records of convictions that occurred on or after July 1, 2011, the following table applies:
|Petition Process to Seal Certain Drug Offense Records for Convictions|
on or after July 1, 2011
|Type of Conviction||Waiting Period to File Petition|
|Petty Drug Offense||1 year|
|Level 2 Drug Misdemeanor||3 Years|
|Level 1 Drug Misdemeanor||5 Years|
|Level 4 Drug Felony||7 Years|
|Other Felonies||10 Years|
As in other situations where a person is asking a court to seal the record of a conviction, the person must demonstrate that he or she has not been convicted of a criminal offense since the date of the final disposition of court proceeding or his or her release from supervision, whichever is later.
Sometimes the process is straightforward: the judge may simply approve the petition and order the record sealed. However, in many cases, the prosecutor objects, or the judge asks for more information. If that happens, a hearing will be scheduled. At the hearing, you’ll have an opportunity to present evidence as to why your petition should be granted. The prosecutor will have an opportunity to oppose your petition. You want to be represented by an attorney that understands the law connected with your case, and what factors the court will evaluate in determining whether or not to grant your petition. Marshall R. Sumrall will file your petition to seal a criminal record and represent you in court for a flat fee. See the page: Sealing Criminal Records for more information.
Contact the Sumrall Law Office for representation in your drug offense case.
If you or a loved one have been charged with a drug offense in Colorado, you are invited to contact the Sumrall Law Office for a free consultation. Mr. Sumrall defends drug cases with zeal and compassion, tailoring the representation to each client’s specific situation. Call now for a free consultation, or inquire online and receive a response within 24 hours.