Possession Or Use Of Marijuana In A Detention Facility in Colorado

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Statute for 18 – 18 – 406 – Possession Or Use Of Marijuana In A Detention Facility

StatuteHere is the charge you are facing:

18-18-406. Offenses relating to marijuana and marijuana concentrate

(1) Except as described in section 18-1-711, a person who possesses two ounces or less of marijuana commits a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars.

(2) Whenever a person is arrested or detained for a violation of subsection (1) of this section, the arresting or detaining officer shall prepare a written notice or summons for such person to appear in court. The written notice or summons shall contain the name and address of such arrested or detained person, the date, time, and place where such person shall appear, and a place for the signature of such person indicating the person’s written promise to appear on the date and at the time and place indicated on the notice or summons. One copy of said notice or summons shall be given to the person arrested or detained, one copy shall be sent to the court where the arrested or detained person is to appear, and such other copies as may be required by the law enforcement agency employing the arresting or detaining officer shall be sent to the places designated by such law enforcement agency. The date specified in the notice or summons to appear shall be at least seven days after such arrest or detention unless the person arrested or detained demands an earlier hearing. The place specified in the notice or summons to appear shall be before a judge having jurisdiction of such class 2 petty offense within the county in which the class 2 petty offense charged is alleged to have been committed. The arrested or detained person, in order to secure release from arrest or detention, shall promise in writing to appear in court by signing the notice or summons prepared by the arresting or detaining officer. Any person who does not honor such written promise to appear commits a class 3 misdemeanor.

(3) (a) (I) Except as described in section 18-1-711, a person who openly and publicly displays, consumes, or uses two ounces or less of marijuana commits a class 2 petty offense and, upon conviction thereof, shall be punished, at a minimum, by a fine of not less than one hundred dollars or, at a maximum, by a fine of not more than one hundred dollars and, notwithstanding the provisions of section 18-1.3-503, by fifteen days in the county jail.

(II) Open and public display, consumption, or use of more than two ounces of marijuana or any amount of marijuana concentrate shall be deemed possession thereof, and violations shall be punished as provided for in subsection (4) of this section.

(b) Except as is otherwise provided for in paragraph (a) of this subsection (3), consumption or use of marijuana or marijuana concentrate shall be deemed possession thereof, and violations shall be punished as provided for in subsections (1), (2), and (4) of this section.

(4) (a) Any person who possesses more than two ounces of marijuana but no more than six ounces of marijuana commits:

(I) A class 2 misdemeanor.

(II) (Deleted by amendment, L. 2010, (HB 10-1352), ch. 259, p. 1166, § 6, effective August 11, 2010.)

(b) Any person who possesses more than six ounces of marijuana but no more than twelve ounces of marijuana or three ounces or less of marijuana concentrate commits:

(I) A class 1 misdemeanor.

(II) (Deleted by amendment, L. 2010, (HB 10-1352), ch. 259, p. 1166, § 6, effective August 11, 2010.)

(c) Any person who possesses more than twelve ounces of marijuana or more than three ounces of marijuana concentrate commits a class 6 felony.

(5) Transferring or dispensing two ounces or less of marijuana from one person to another for no consideration is a class 2 petty offense and shall not be deemed dispensing or sale thereof.

(6) (a) (I) A person shall not knowingly process or manufacture any marijuana or marijuana concentrate or knowingly allow to be processed or manufactured on land owned, occupied, or controlled by him or her any marijuana or marijuana concentrate except as authorized pursuant to part 1 of article 42.5 of title 12, C.R.S., or part 2 of article 80 of title 27, C.R.S.

(II) Any person who violates the provisions of subparagraph (I) of this paragraph (a) commits:

(A) A class 4 felony; or

(B) A class 3 felony if the violation is committed subsequent to a prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which subparagraph (I) of this paragraph (a) applies or would apply if committed in this state.

(b) (I) Except as is otherwise provided in subsection (7) of this section and except as authorized by part 1 of article 42.5 of title 12, C.R.S., part 2 of article 80 of title 27, C.R.S., or part 2 or 3 of this article, it is unlawful for any person knowingly to dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute marijuana or marijuana concentrate; or attempt, induce, attempt to induce, or conspire with one or more other persons, to dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute marijuana or marijuana concentrate.

(II) As used in subparagraph (I) of this paragraph (b), “dispense” does not include labeling, as defined in section 12-42.5-102 (18), C.R.S.

(III) Any person who violates any of the provisions of subparagraph (I) of this paragraph (b) commits:

(A) A class 5 felony if the amount of marijuana is less than five pounds or the amount of marijuana concentrate is less than one pound;

(B) A class 4 felony if the amount of marijuana is at least five pounds but not more than one hundred pounds or the amount of marijuana concentrate is at least one pound but not more than one hundred pounds;

(C) A class 3 felony if the amount of marijuana or marijuana concentrate is more than one hundred pounds; or

(D) A class 3 felony if the violation is committed subsequent to any prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which subparagraph (I) of this paragraph (b) applies or would apply if committed in this state.

(7) (a) Any provision of this article to the contrary notwithstanding, any person eighteen years of age or older who sells, transfers, or dispenses more than two ounces but less than five pounds of marijuana for consideration to any person under eighteen years of age but at least fifteen years of age or less than one pound of marijuana concentrate, with or without consideration, to another person under eighteen years of age commits a class 4 felony and, in addition to the punishment prescribed in section 18-1.3-401, shall be punished by a fine of not more than five thousand dollars. For offenses committed on or after July 1, 1985, the fine shall be in an amount within the presumptive range set out in section 18-1.3-401 (1) (a) (III).

(b) The sale, transfer, or dispensing of five or more pounds of marijuana or one pound or more of marijuana concentrate to a person under eighteen years of age but at least fifteen years of age is a class 3 felony.

(c) Any person eighteen years of age or older who sells, transfers, or dispenses any amount of marijuana or marijuana concentrate, with or without consideration, to any person under fifteen years of age commits a class 3 felony, and the court shall be required to sentence the defendant to the department of corrections for a term that is at least the minimum in the presumptive range but no more than the maximum term authorized for the punishment of a class 3 felony. For offenses committed on or after July 1, 1985, the fine shall be in an amount within the presumptive range set out in section 18-1.3-401 (1) (a) (III).

(d) Any person commits a class 3 felony if the violation is committed subsequent to a prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which paragraph (a) of this subsection (7) applies or would apply if convicted in this state, and, in addition to the punishment provided in section 18-1.3-401, the court shall sentence the defendant to the department of corrections for at least the minimum term in the presumptive range. For offenses committed on or after July 1, 1985, the fine shall be in an amount within the presumptive range set out in section 18-1.3-401 (1) (a) (III).

(7.5) Except for a person who lawfully cultivates medical marijuana pursuant to the authority granted in section 14 of article XVIII of the state constitution, a person shall not knowingly cultivate, grow, or produce a marijuana plant or knowingly allow a marijuana plant to be cultivated, grown, or produced on land that the person owns, occupies, or controls. A person who violates the provisions of this subsection (7.5) commits:

(a) A class 1 misdemeanor, if the offense involves six or fewer plants; or

(b) A class 5 felony if the offense involves more than six but fewer than thirty plants; or

(c) A class 4 felony if the offense involves thirty or more plants.

(8) (Deleted by amendment, L. 2010, (HB 10-1352), ch. 259, p. 1166, § 6, effective August 11, 2010.)

(9) (Deleted by amendment, L. 2003, p. 1428, § 12, effective April 29, 2003.)

(10) The provisions of this section shall not apply to any person who possesses, uses, prescribes, dispenses, or administers any drug classified under group C guidelines of the national cancer institute, as amended, approved by the federal food and drug administration.

(11) The provisions of this section shall not apply to any person who possesses, uses, prescribes, dispenses, or administers dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a federal food and drug administration approved drug product, pursuant to part 1 of article 42.5 of title 12, C.R.S., or part 2 of article 80 of title 27, C.R.S.

(12) Repealed.

Case Law

When you look at the Statute, you may have questions about definitions of certain words or how the Colorado Court will interpret certain phrases.  To answer these questions, Defense Attorney turn to "case law."  That is, lawyers look at previous cases to determine how these words and phrases should be defined and interpreted. The best way to locate caselaw for free is to go to google scholar and search for legal opinions involving your charges from Colorado courts. Remember to talk to your attorney about any issues in your case and how the lawyer believes that the issues should be handled.


Colorado Penalties for Possession Or Use Of Marijuana In A Detention Facility

Penalties

The charge of Possession Or Use Of Marijuana In A Detention Facility, is categorized as a:

F5, if eight ounces or more used or possessed
F6, if less than eight ounces used or possessed

Click here to find out how much jail time is associated with this penalty.

How to Use This Information

After you have hired a Colorado Defense Attorney, you will need to sit down with him to talk about the strengths and weaknesses of your case.  To begin this process, you should think about what the prosecutor will attempt to show in order to say that you are guilty. This involves analyzing the statute language above as well as the jury instructions (which is the set of instructions that the jury will use to understand the law). This will allow you to get a better idea of how you can attack the prosecutor’s case and build your own case. So to begin, you should understand that the prosecutor will need to prove certain things beyond a reasonable doubt for you to be found guilty.  These things are called “elements”.

The jury will be notified of the elements through a set of instructions called “Jury Instructions.” The Jury Instructions will be crafted by your attorney and the prosecutor. Your Colorado Defense Attorney will mold the jury instructions to your case, adding facts that are specific to the case and omitting unnecessary parts of the instructions.

Please find the model jury instruction for Possession Or Use Of Marijuana In A Detention Facility below. These will be adapted by your Colorado Attorney for your case.

The elements of possession or use of marijuana in a detention facility are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. knowingly, 4. possessed or used [up to 8 ounces] [8 ounces or more] marijuana, 5. while confined in a detention facility. 6. [without the affirmative defense in instruction number ____.] After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of possession or use of marijuana in a detention facility. After considering all the evidence, if you decide the prosecution failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of possession or use of marijuana in a detention facility NOTES ON USE Delete inapplicable bracketed material. The definitions of ?knowingly?, ?marijuana? and ?detention facility? must be given with this instruction. People v. Goodale, 78 P.3d 1103 (Colo. 2003)(statute constitutional)

To begin the process of analyzing your case, think about your case from the perspective of the prosecutor.  Think about the facts that the prosecutor will have to prove to establish each element. Next, sit down with your Denver Colorado Criminal Defense Attorney and talk about some of the legal ways that you can use to counter the prosecutor’s evidence.  Talk to your attorney about whether he thinks any of the prosecutor’s evidence can be kept out of court.  For example, if you were illegally searched, your attorney may be able to keep the things that were found, as a result of that illegal search, out of court.  Additionally, talk to your attorney about whether you have any defenses to Possession Or Use Of Marijuana In A Detention Facility.

Important Notes:

Don’t Forget about Immigration:

If you are not a U.S. citizen, be sure to ask your attorney whether your charges will trigger deportation if you are found guilty or plea to the charge.

Good Luck!

If you have specific questions or would like to speak with an attorney about your legal criminal defense needs, please call Mountain Legal in Denver Colorado at 303-586-1731 or email us at nbaca@mtnlegal.com

Written by

Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca