COLORADO’S NEW DRUG LAWS

PHILOSOPHY AND POLITICS

SB 03-318 Reclassify drug crimes from F4-Poss, F5-Use to F6 318 Treatment fund

CCJJ – Budget driven (Ritter) HB 10-1352

Budget driven Misd. use, philosophical shift statewide Largely in response to a few jurisdictions

PHILOSOPHY AND POLITICS

SB 12-163 (attempt to make all drug possession a misd.) Habitual user would be felony if pled and proven

Problems: Written into county court

Dismiss and refile for habitual Services lacking in county court All Colo. Drug courts are district courts (funding stream

problems) Denver combined court

General belief that avoiding the felony is motivation to engage in treatment

DRUG FELONY PENALTIES

Statutory midpoint presumptive to max aggravated range aggravators:

-on parole for another felony -on probation for another felony -in prison, community corrections or on escape status -on probation for felony adjudication

Level Minimum Maximum Mandatory Parole

Fine DOS

DF1 8 Years 32 Years 3 Years $5,000-$1,000,000 $4,500

Presumptive Aggravated

DF2 4-8 Years 8-16 Years 2 Years $3,000-$750,000 $3,000

DF3 2-4 Years 4-6 Years 1 Year $2,000-$500,000 $2,000

DF4 6 mos. - 1 Year 1-2 Years 1 Year $1,000-$100,000 $1,500

DRUG FELONY PENALTIES

Statutory aggravators authorizing aggravated range sentence -on bond for felony -on bond for felony delinquent act -on bond for any offense as a plea when original offense was felony -on bond for any delinquent act when original offense was felony

delinquent act -on a DJ&S for a felony delinquent act (Note: DJ&S adult inadvertently

out) -on parole for a felony delinquent act

Level Minimum Maximum Mandatory Parole

Fine DOS

DF1 8 Years 32 Years 3 Years $5,000-$1,000,000 $4,500

Presumptive Aggravated

DF2 4-8 Years 8-16 Years 2 Years $3,000-$750,000 $3,000

DF3 2-4 Years 4-6 Years 1 Year $2,000-$500,000 $2,000

DF4 6 mos. - 1 Year 1-2 Years 1 Year $1,000-$100,000 $1,500

DRUG MISDEMEANOR PENALTIES

Level Minimum Maximum Fine DOS

DM1 6 Months 18 Months $500-$5,000 $1,000

DM2 0 months 12 Months $50-$750 $300

WOBBLER

What is a wobbler?

WOBBLER

Filed as a felony (arrested, booked and filed) Becomes a misdemeanor upon :

Successful completion of Probation; or Community Corrections

WOBBLER

Filed as a felony Becomes a misdemeanor upon :

Successful completion of Probation; or Community Corrections

Successful Completion requires: Determination by the court of successful completion Must include successful completion of treatment as

determined to be appropriate to address treatment needs

WOBBLER ELIGIBLE CRIMES

-Possession of 4 grams or less of Sch. I and II, or 2 grams or less of Meth, Heroin, Ketamine or Cathinones, or 4 milligrams or less of Flunitrazapam

-Distribution-Sharing

-Possession of Mari 12 oz or more; 3 oz or more of concentrate

-Script Fraud

WOBBLER INELIGIBLE

Crime of Violence or Probation ineligible

-Defendant has a prior COV -Offense required to be sentenced pursuant to COV statute -Out of state conviction which would be COV or required to be sentenced as such -Defendant not probation eligible

WOBBLER INELIGIBLE

Defendant has two or more prior drug convictions that are felonies

Drug conviction defined as:

out of state drug conviction

prior diversions of drug felonies

prior deferred prosecution of drug felonies

prior DJ&S of drug felonies

prior felony reduced to misd. as a wobbler

prior misd. drug conviction which began as felony as originally charged

WOBBLER INELIGIBLE - TRACKING

Defendant has two or more prior drug convictions that are felonies

Drug conviction defined as:

out of state drug conviction

prior diversions of drug felonies

prior deferred prosecution of drug felonies

prior DJ&S of drug felonies

prior felony reduced to misd. as a wobbler

prior misd. drug conviction which began as felony as originally charged

WOBBLER – TRACKING

Importance of plea paperwork Quantity

“THE DISTRICT ATTORNEY AND DEFENDANT MAY STIPULATE TO THE AMOUNT OF THE CONTROLLED SUBSTANCE POSSESSED BY THE DEFENDANT AT THE TIME OF SENTENCING, OR THE COURT SHALL DETERMINE THE AMOUNT AT THE TIME OF SENTENCING.”

Prior record Prior record often determines wobbler eligibility, so put in

the agreement. I suggest putting wobbler eligibility in agreement

and advisement.

WOBBLER – PLEA BARGAINING

Effect of: Agree to quantity to make someone eligible DJS or Diversion

WOBBLER INELIGIBLE

Defendant has two or more prior drug convictions that are felonies

Drug conviction defined as:

out of state drug conviction

prior diversions of drug felonies

prior deferred prosecution of drug felonies

prior DJ&S of drug felonies

prior felony reduced to misd. as a wobbler

prior misd. drug conviction which began as felony as originally charged

WOBBLER – PLEA BARGAINING

Effect of: Agree to quantity to make someone eligible DJS or Diversion Plea to misd

WOBBLER INELIGIBLE

-Defendant has two or more prior drug convictions that are felonies

Drug conviction defined as:

out of state drug conviction

prior diversions of drug felonies

prior deferred prosecution of drug felonies

prior DJ&S of drug felonies

prior felony reduced to misd. as a wobbler

prior misd. drug conviction which began as felony as originally charged

WOBBLER – PLEA BARGAINING

Effect of: Agree to quantity to make someone eligible DJS Plea to misd Other options suspended jail agree to probation

NEW VERSION OF DISTRIBUTION

SHARING

Notwithstanding any other provision to the contrary, the distribution or transfer of a Schedule I or Schedule II controlled substance involving not more than four grams or not more than two grams of methamphetamine, heroin, ketamine, or cathinone and when the person transferring all or part of the above quantity performs the transfer for the purpose of jointly possessing and consuming all of the transferred controlled substance at a time substantially contemporaneous with the transfer is a DF4.

SHARING

Elements of sharing are: 1) Transfer of not more than (4 gms or 2 as

applicable); 2) for purpose of jointly possessing and

consuming ALL of transferred controlled substance;

3) at a time substantially contemporaneous with transfer

SHARING

Idea came from marijuana provision (passing joint)

Drafted modeling the Heat of Passion mitigator. Represents a 'mitigating factor' to the crime of

distribution. (See People v. Garcia, 28 P.3d 340 (Colo. 2001 explaining mitigating factors for Heat of Passion).

All elements of a mitigator must find support in evidence

before defendant entitled to submit to a jury. (People v. Ramirez, 56 P.3d 89 (Colo. 2002).

SHARING

Factual issues: did they have use paraphernalia on them did the defendant try to leave after transaction was quantity something this number of people

could reasonably consume at that time

EXHAUSTION OF SENTENCING OPTIONS

If sentencing someone to prison on a DF4

-Court must make a finding that "incarceration is the most suitable option given the facts and circumstances of the case, including the defendant's willingness to participate in treatment."

-Court must also determine that all other reasonable and appropriate sanctions and responses to the violation that are available to the court have: -been tried and failed; -do not appear to be likely to be successful if tried; or -present an unacceptable risk to public safety.

EXHAUSTION OF SENTENCING OPTIONS

If removed from Community Corrections on DF4, in order to comply with above (last slide) - Requirement of sentencing hearing; or - Written findings of exhaustion. - Comm corr may reject anyone they choose as

before.

EXHAUSTION OF SENTENCING OPTIONS

For judges, probation and commcorr

In making the above determination the court shall review (if available): -Information from supervising agency (probation or commcorr) -statement as to what treatment and sentencing options have

been tried and failed; -what other community options are available; -why other alternatives are inappropriate.

-Supervising agency shall provide a risk assessment (likely LSI or similar)

-Supervising agency shall provide other information of risk

DEFERRED JUDGMENTS AND SENTENCES

Court is not required to revoke a DJ&S on a drug deferred if a violation of the DJ&S occurs.

Factual findings court must make to not revoke:

Entry of judgment of conviction would not be consistent with the purposes of sentencing

the defendant would be better served by continuing the DJ&S; AND

that public safety would not be jeopardized by the continuation of the DJ&S

DEFERRED JUDGMENTS AND SENTENCES

Over DA objection?

DEFERRED JUDGMENTS AND SENTENCES

If court makes these finding over DA objection the court SHALL: impose additional and immediate sanctions upon the

defendant to address the violation including, but not limited to imposition of further terms and

conditions which -enhance likelihood of success -respond to non-compliance -promote further individual accountability

May include extending period of DJ&S for up to 2 additional years

May include incarceration in the county jail for up to 90 days

OCTOBER 1, 2013

Effective date of this bill? For everything?

“SECTION 71. Effective date - applicability. This act takes effect October 1, 2013, and applies to offenses committed on or after said date.”

Intent of General Assembly was the all are on fair notice of which cases this applies to.

SB 14-163 (ON GOVERNOR’S DESK TO SIGN)

Adds DF1 and DF2 to crimes marital privilege does not apply Fixes some missing language leaving DFs out of prelim waiver

statutes Corrects some internal references pointing to non-existent statutes Clarifies what cathinones are Clarifies that if you have one of the statutory aggravators the range is

12-32 for DF1 (because there is no presumptive range for DF1s) Adds back appeal bond and DJS for adult felony as aggravators

(inadvertently left out last year) Clarifies that attempt of felony remains a felony and conspiracy of

felony remains a felony Adds new cathinones to the list Ends confusion between hydrocodone and dihydrocodinone