It is a crime in Colorado to sell, manufacture or dispense a controlled substance, or to possess a controlled substance with the intent to sell it, unless you are authorized by law to do so.

Sale and possession with intent to sell are usually Colorado felonies, depending on the substance and the amount sold and/or possessed.

Consequences of selling a controlled substance in Colorado

Selling controlled substances or possessing them with intent to sell them is a more serious crime than simple possession of controlled substances in Colorado for personal use.

The penalty for unlawfully selling drugs in Colorado can range from as little as misdemeanor probation to up to 32 years in prison and a fine of up to $1,000,000 for large-scale manufacturing and/or distribution. The exact penalty for unlawful drug sales and/or possession depends on factors such as:

• The type of drug,
• The quantity involved, and
• Whether you have a prior felony record.

Defenses to selling illegal drugs in Colorado

There are numerous ways to defend Colorado controlled substance sales charges. Some of the more common include:

• The drugs weren’t yours,
• The drugs were for your personal use,
• You didn’t know you had the drugs,
• There wasn’t enough of the substance to use as a drug,
• You had the legal right to manufacture or sell the controlled substance, or
• The drugs were found during an illegal search.

To help you better understand Colorado’s law against unlawfully selling a controlled substance, our Denver Colorado criminal defense lawyers explain, below:

• 1. What does 18-18-405 C.R.S. prohibit?
  • 1.1. What is a “controlled substance”?
  • 1.2. The meaning of knowingly
  • 1.3. How does the prosecutor prove intent?
• 2. Colorado penalties for unlawful sale of a controlled substance
  • 2.1. Colorado level 1 drug felony
  • 2.2. Colorado level 2 drug felony
  • 2.3. Colorado level 3 drug felony
  • 2.4. Colorado level 4 drug felony
  • 2.5. Colorado level 1 drug misdemeanor
  • 2.6. Alternative sentencing
• 3. Defenses to Colorado drug sales / manufacturing
• 4. The federal Controlled Substances Act

Also see our related article on the Colorado crime of making property available for the distribution or manufacture of drugs.

1. What does 18-18-405 C.R.S. prohibit?

Under section 18-18-405 C.R.S. it is a crime for anyone not authorized by law knowingly to do any of the following with a controlled substance:

• Manufacture,
• Dispense,
• Sell,
• Distribute,
• Possess with intent to manufacture, dispense, sell, or distribute,
• Induce, attempt to induce, or conspire with one or more other persons to do any of the foregoing; or
• Possess one or more chemicals or supplies or equipment with the intent to manufacture a controlled substance.

1.1. What is a “controlled substance”?

Under Colorado law, a “controlled substance” is defined as any drug, substance, or immediate precursor included on Colorado schedules I through V.¹

Controlled substances include illegal recreational drugs, prescription medications, over-the-counter medications, and synthetic and imitation drugs.

A drug does not need to be addictive to fall within the prohibitions of 18-18-405 C.R.S. However, commonly abused controlled substances that often lead to charges of unlawful drug sales or possession with intent to sell in Colorado include (without limitation):

• Cocaine;
• Hallucinogens, such as:
  • LSD,
  • Peyote,
  • Psilocybin (magic mushrooms), and
  • Mescaline;
• Heroin and opioid pills, such as:
  • Codeine,
  • Vicodin,
  • Oxycontin,
  • Methadone, and
  • Fentanyl;
• Amphetamines and methamphetamines;
• Anabloic steroids;
• “Party drugs,” such as
  • Ecstasy,
  • GHB, and
  • Ketamine;
• Barbiturates;
• Sleep medications; and
• Anti-anxiety and ADHD medications.

Marijuana and marijuana concentrate (also known as concentrated cannabix, wax or shatter) are also controlled substances. However, they are regulated separately under 18-18-406 and 407 C.R.S.

Synthetic drug analogs and imitation drugs – such as so-called “Spice” and “Bath Salts” – are also regulated separately under 18-18-422 C.R.S., imitation controlled substances. The sale and manufacture of counterfeit drugs is covered by 18-18-423 C.R.S., counterfeit substances.

1.2. The meaning of “knowingly”

To convict you under 18-18-405 C.R.S., the prosecutor must prove both that you knew that the substance in question was a controlled substance and that you knew that you possessed it.²

The prosecution does not, however, need to prove that you knew how much of the substance you possessed.³

It is not necessary that you know the name of the controlled substance you possess or its exact chemical make-up. It is enough that you know that it is a controlled substance. The knowledge that you knew that what you possessed was a controlled substance can be proved by either direct or circumstantial evidence.⁴

• Example: Doug buys some over-the-counter headache medication while he is on vacation out of the country. Although the medicine is legal there, it contains an amount of codeine that is prohibited under U.S. law. Doug brings it to the U.S. but claims he didn’t know it was a controlled substance. However, while Doug was in the other country, he posted a status update to his Facebook page in which he boasted of buying something he could never legally have in the U.S. A jury could consider that as circumstantial evidence that Doug knew that what he possessed was a controlled substance.

1.3. How does the prosecutor prove intent?

Ways the prosecutor can prove your intent to sell or distribute drugs include (but are not limited to):

• Your statements,
• Your behavior (such as throwing something from the window of your car when a police car approaches),
• E-mails, texts or social media posts,
• The presence of digital scales, pay/owe sheets, baggies or paper “bindles,” or similar items commonly used in drug sales;
• The presence of a large amount of cash with the drugs; and/or
• The drugs are divided into many small packages.⁵

2. Colorado penalties for unlawful sale of a controlled substance

Punishment for illegally selling, manufacturing or possessing a controlled substance with intent to sell it largely depends on the substance and the quantity involved.

You may also face additional penalties if you are subject to Colorado’s aggravated sentencing for felony drug offenses. It applies, among other circumstances, to people who are on parole for or had probation revoked for, a prior felony.

Finally, for purposes of sentencing, if you commit two or more violations of 18-18-405 C.R.S. in any six month period, the amount of drugs you sold, possessed or manufactured can be aggregated if they consist of:

• Any schedule I controlled substance,⁶
• Any schedule II controlled substance,⁷
• Flunitrazepam (Rohypnol),
• Ketamine, or
• Cathinones (khat).

From most to least serious, the possible penalties under 18-18-405 C.R.S. are:

2.1. Colorado level 1 drug felony

You commit a Colorado level 1 drug felony and are subject to a mandatory prison sentence if:

• Any material, compound, mixture, or preparation weighs:
  • More than two hundred twenty-five grams and contains a schedule I or schedule II controlled substance; or
  • More than one hundred twelve grams and contains methamphetamine, heroin, ketamine, or cathinones; or
  • More than 50 grams of a substance containing fentanyl, carfentanil, benzimidazole opiate; or
  • More than fifty milligrams and contains flunitrazepam; or if
• An adult sells, dispenses, distributes, or otherwise transfers any quantity of a schedule I or schedule II controlled substance or any material, compound, mixture, or preparation that contains any amount of a schedule I or schedule II controlled substance, other than marijuana or marijuana concentrate, to a minor and the adult is at least two years older than the minor.

It is also a level 1 drug felony to unlawfully distribute, manufacture, dispense, or sell a material, compound, mixture, or preparation containing fentanyl, carfentanal, or an analog thereof, and a person died as a proximate cause of using or consuming it.⁸

Punishment for a Colorado level 1 drug felony can include:

• 8-32 years in prison (with a minimum of 8 years mandatory), followed by at least 3 years mandatory parole,
• A potential fine of $5,000-$1,000,000, and
• A drug offender surcharge of $4,500.

The mandatory minimum sentence increases to 12 years, however, if you are subject to Colorado’s aggravated felony drug sentencing.

2.2. Colorado level 2 drug felony

You commit a Colorado level 2 drug felony if:

• The violation involves any material, compound, mixture, or preparation that weighs:
  • More than fourteen grams, but not more than two hundred twenty-five grams, and contains a schedule I or schedule II controlled substance;
  • More than 4 grams up to 50 grams of a substance containing fentanyl, carfentanil, benzimidazole opiate;
  • More than seven grams, but not more than one hundred twelve grams, and contains methamphetamine, heroin, ketamine, or cathinones; or
  • More than ten milligrams, but not more than fifty milligrams, and contains flunitrazepam; or if
• An adult sells, dispenses, distributes, or otherwise transfers any quantity of a schedule III or schedule IV controlled substance or any material, compound, mixture, or preparation that contains any quantity of a schedule III or schedule IV controlled substance to a minor and the adult is at least two years older than the minor.⁹

Consequences of a conviction for a Colorado level 2 drug felony can include:

• 4-8 years in prison (with 2 years mandatory parole), and/or
• A fine of $3,000-$750,000, plus
• A drug offender surcharge of $3,000.

The aggravated sentencing range for a Colorado level 2 drug felony includes 8-16 years in prison.

2.3. Colorado level 3 drug felony

You commit a Colorado level 3 drug felony if:

• The violation involves any material, compound, mixture, or preparation that weighs:
  • Not more than fourteen grams and contains a schedule I or schedule II controlled substance;
  • Not more than seven grams and contains methamphetamine, heroin, ketamine, or cathinones;
  • Not more than ten milligrams and contains flunitrazepam;
  • More than four grams and contains a schedule III or schedule IV controlled substance; or
  • Not more than 4 grams of a substance containing fentanyl, carfentanil, benzimidazole opiate¹⁰

Consequences of a conviction for a Colorado level 3 drug felony can include:

• 2-4 years in prison (with 1-year mandatory parole), and/or
• A fine of $2,000-$500,000, plus
• A drug offender surcharge of $2,000.

If you are sentenced in the aggravated range, your possible sentence for a Colorado level 3 drug will increase to 4-6 years in prison.

2.4. Colorado level 4 drug felony

You commit a Colorado level 4 drug felony if:

• The violation involves any material, compound, mixture, or preparation that weighs not more than four grams and contains a schedule III or schedule IV controlled substance; or
• The violation involves distribution or transfer of the controlled substance for the purpose of consuming all of the controlled substance with another person or persons at a time substantially contemporaneous with the transfer; except that this  applies only if the distribution or transfer involves not more than four grams of a schedule I or II controlled substance or not more than two grams of methamphetamine, heroin, ketamine, or cathinones.¹¹

Punishment for a conviction for a Colorado level 4 drug felony can include:

• Incarceration of 6 months to one year (with 1-year mandatory parole), and/or
• A fine of $1,000-$100,000, plus
• A drug offender surcharge of $1,500.

If you are subject to aggravated sentencing, however, you face potential punishment of 1-2 years in prison.

Some level 4 drug felonies are wobblers. They can be reduced to a level 1 drug misdemeanor after successful probation.

2.5. Colorado level 1 drug misdemeanor

You commit a Colorado level 1 drug misdemeanor when the violation involves:

• A schedule V controlled substance; or
• A transfer with no remuneration of not more than four grams of a schedule III or schedule IV controlled substance.¹²

Punishment for a Colorado level 1 drug misdemeanor can consist of:

• 6-18 months in jail, and/or
• A fine of $500-$5,000.

2.6. Alternative sentencing in Colorado drug cases

Unless you are scheduled to a mandatory sentence of incarceration, you may be eligible for alternative drug sentencing instead of jail or prison.

Subject to eligibility (including that your crime be a misdemeanor or a level 4 drug felony), such alternative sentencing may include probation or a deferred sentence of judgment to allow you to complete drug testing and rehabilitation.¹³ 

Upon successful completion, your misdemeanor charge will be dismissed and your felony “wobbler” reduced to a charge of misdemeanor possession. You may also be subject to:

• Payment of a fine, and/or
• Useful public service pursuant to 18-18-432 C.R.S., Colorado’s drug offender public service and rehabilitation program.

3. Defenses to Colorado drug sales / manufacturing

There are many ways to defend charges under Colorado’s drug against selling or manufacturing drugs or possessing a controlled substance with the intent to sell it.

Some of the most common include (but are not limited to):

• The drugs weren’t yours,
• The drugs were for your personal use,
• You didn’t know you had the drugs,
• There wasn’t enough of the substance to use as a drug,¹⁴
• You had the legal right to manufacture or sell controlled substances,
• The drugs were found during an illegal search and seizure in violation of your Fourth Amendment rights.¹⁵

4. The federal Controlled Substances Act

Drugs crimes involving interstate commerce, taking place over the internet, or occurring on federally owned property in Colorado are subject to the United States Controlled Substances Act.

Under 21 U.S.C. 841, the unlawful sale of controlled substances can be punished by up to one-year incarceration for a Schedule V substance, to as much as a life sentence if the sale involves a relatively large quantity of a substance containing a detectable amount of heroin or cocaine.

If you are arrested for a federal drug crime, we recommend you say as little as possible and contact the best Colorado drug lawyer you can immediately.

Call us for help…

Colorado’s controlled substances laws are complex and full of nuances. Innocent people are often accused of drug trafficking when they didn’t know they possessed an illegal drug or didn’t even do anything wrong. And others would be better served by getting counseling and treatment instead of years in prison.

If you or someone you know has been accused of selling drugs in Colorado or possessing drugs with intent to sell them, we’re here to help in any way we can. Don’t let a simple mistake deprive you of your freedom and your good name.

For a free consultation with one of our compassionate Colorado drug defense lawyers, simply fill out the confidential form on this page. Or call us at our Denver home office to discuss your case with one of our knowledgeable Colorado criminal defense attorneys.

Our Colorado drug crime lawyers serve clients throughout the state of Colorado, including in Colorado Springs, Aurora, Fort Collins, Lakewood, Thornton, Arvada, Westminster, Centennial and Boulder.

You may also wish to visit our pages on:

• Colorado cocaine laws,
• Colorado ecstasy (MDMA, Molly) laws,
• Colorado GHB laws,
• Colorado heroin laws,
• Colorado ketamine laws,
• Colorado marijuana laws,
• Colorado marijuana concentrate laws,
• Colorado methamphetamine laws, or
• Colorado PCP (Angel Dust) laws.

Our Denver home office is located at:

Colorado Legal Defense Group
4047 Tejon Street
Denver CO 80211
(303) 222-0330

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