Alternative Sentencing (Diversion) in Colorado Drug Cases

If you are arrested for a low-level drug offense in Colorado, you may be able to avoid jail by completing rehabilitation. Depending on the county, this sentencing alternative is handled in specialized Colorado courts called “drug courts.” Pretrial diversion Pretrial diversion is an option in many first-time drug misdemeanor cases like:

• simple possession or
• unlawful drug use.

The judge does not convict you. Instead, your criminal case is put “on hold” while you are undergoing rehabilitation. Then, following successful completion, your misdemeanor drug charge will be dismissed. Deferred sentence A deferred sentence is an option in many level 4 drug felony cases. Unlike pretrial diversion, you are convicted and placed on probation. Though upon successful completion of rehab and any other court-ordered conditions, the judge will:

• vacate your felony conviction and
• instead convict you of misdemeanor possession.

This is also called  “wobbler” sentencing since the felony wobbles down to a misdemeanor.

To help you better understand Colorado’s rehabilitation programs for drug offenders, our Denver criminal defense lawyers discuss the following key topics:

• 1. Pretrial Diversion
• 2. “Wobbler” Sentencing
• 3. Drug Court
• Additional Resources

1. Pretrial Diversion

Section 18-1.3-101 of the Colorado Revised Statutes (C.R.S.) allows for pretrial diversion on drug charges. Under 18-1.3-101 C.R.S., if you are eligible, the court will delay your case for up to two years to allow you to complete a drug treatment program. During the diversion period, you may be placed on probation or under the supervision of a diversion program approved by the district attorney. Upon satisfactory completion of treatment, the court will dismiss all charges against you with prejudice. This means that you can never be tried or convicted on those charges. You will be restored to the status you occupied before the

• arrest,
• citation, or
• summons.

Once your charges are dismissed, they are not considered a conviction for any purpose. You will not need to disclose the arrest on job applications. Also, you may petition under 24-72-702, C.R.S. to seal your arrest record and any other criminal records pertaining to the charged offense.

Who is eligible for pretrial diversion?

You are eligible for pretrial diversion if you are a first-time offender charged with a misdemeanor drug offense. During the diversionary period, you will be required to comply with certain rules, including:

• Remaining in Colorado,
• No use of alcohol, drugs not prescribed by a doctor, or medical marijuana,
• No firearm possession,
• Payment of court-ordered supervision fees,
• Drug testing,
• Attendance at drug counseling groups and/or classes, and
• No serious moving traffic violations.

If appropriate, the court may also order that you participate in:

• Mental health treatment,
• Parenting classes, or
• Other classes or treatment as determined by the diversion officer.

2. “Wobbler” Sentencing

18-1.3-102 C.R.S. allows the court to defer sentencing on certain felony drug charges for up to four years after a plea or finding of guilty or no contest. The delay is to give you time to complete a drug treatment program and avoid prison. Upon successful completion of drug treatment and any other court-ordered conditions of probation, the court will:

• Vacate the felony drug conviction, and
• Enter a conviction for Colorado level 1 drug misdemeanor drug possession under 18-18-403.5 C.R.S.

This deferred sentencing alternative is sometimes referred to as “wobbler” sentencing. A “wobbler” is a crime that can be charged as either a

• felony or
• misdemeanor.

Once your charge is reduced, it is considered a misdemeanor for most purposes. You will not face the collateral consequences of a felony conviction, such as having to disclose the conviction on job applications. However, the order of judgment will indicate that the conviction is entered pursuant to 18-1.3-102 (2)(a) C.R.S. This may make you ineligible for drug treatment instead of incarceration if you subsequently commit another drug offense.

Who is eligible for “wobbler” reduction?

18-1.3-102 C.R.S. applies to convictions for the following offenses if committed after October 31, 2013:

• Possession of a controlled substance under Colorado 18-18-403.5 C.R.S., provided the quantity of the controlled substance is not more than:
  • 4 grams of a Schedule I or Schedule II controlled substance (including, without limitation, cocaine, ecstasy or PCP),
  • 2 grams of methamphetamine, heroin, ketamine, or cathinones (“Bath Salts”), or
  • 4 milligrams of flunitrazepam (Rohypnol);
• A Colorado level 4 drug felony under 18-18-405 C.R.S., unlawful distribution, manufacturing, dispensing, or sale of a controlled substance;
• Possession of more than 12 ounces of marijuana or more than 3 ounces of marijuana concentrate; or
• Obtaining a controlled substance by fraud or deceit in violation of 18-18-415 C.R.S.

You are not eligible for wobbler sentencing, however, if:

• You have a prior conviction for a crime in any state or territory of the United States (including Colorado) that would constitute a Colorado crime of violence;
• You are ineligible for probation pursuant to 18-1.3-201 C.R.S. (e.g., because you have two prior felony convictions or any conviction for a violent crime or serious sexual offense); or
• You have two or more prior felony convictions for a drug offense anywhere in the United States or a U.S. territory.

For purposes of 18-1.3-102 C.R.S., a felony conviction includes:

• Any diversion, deferred prosecution, or deferred judgment and sentence, whether or not completed, for a felony, or
• Any conviction entered as a result of relief previously granted pursuant to this section or as a result of a guilty plea to a misdemeanor originally charged as a felony drug offense.

3. Drug Court

In many jurisdictions, those eligible for pretrial diversion or deferred sentencing are tried in a separate court known as the Colorado Drug Court. Drug court is meant to provide an intense level of supervision for offenders who display a high level of substance abuse or addiction and need a more intense level of community supervision than found on standard probation. It is designed for substance-abusing or dependent offenders who are:

• in high need of treatment and
• at high risk for recidivating (committing another drug offense).

You are not eligible for drug court if you are:

• A violent offender,
• A sex offender,
• An offender who poses a large risk to the community, or
• A lower-risk individual who would be better served through another program.

If you are arrested for a crime of drug use or possession, your risk level may be established by probation services through use of the

• Adult Substance Use Survey (ASUS) and
• Level of Supervision Inventory (LSI).

The LSI is a standardized risk management tool utilized to determine offenders’ needed level of supervision by assessing ten life areas:

1. criminal history;
2. education/employment;
3. financial;
4. family/marital;
5. accommodation;
6. leisure/recreation;
7. companions;
8. alcohol/drug problems;
9. emotional/personal; and
10. attitude/orientation.

If you are sent to drug court, you will:

• undergo treatment and counseling,
• submit to frequent and random drug testing,
• make regular appearances before the judge and
• be monitored for program compliance.

You may also receive ancillary services such as:

• mental health treatment,
• trauma and family therapy, and
• job skills training.

Failure to comply with any of the probation conditions placed on you by the drug court can result in sanctions for non-compliance. These sanctions can range from a loss of privileges to jail time.

Additional Resources

If you or someone you know is suffering from drug addiction, you can find help at the following places:

• Narcotics Anonymous (NA) – 12-step program
• 211Colorado – Substance abuse disorder services.
• Colorado Consortium for Prescription Drug Abuse Prevention – A group of organizations that work together to prevent prescription drug misuse and abuse in Colorado.
• National Rehab Hotline – A free, confidential service that provides referrals to treatment facilities and support resources for people struggling with drug, alcohol, and other addictions.
• Substance Abuse and Mental Health Services Administration (SAMHSA) – A federal agency within the U.S. Department of Health and Human Services that leads public health efforts in the areas of mental and substance use disorders.