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    A Comprehensive Guide To Defending Drug Charges Under Colorado Law

    By H. Michael Steinberg Colorado Drug Crimes Criminal Defense Lawyer – Attorney

    A Comprehensive Guide To Defending Against Drug Charges Under Colorado LawA Comprehensive Guide To Defending Against Drug Charges Under Colorado Law – Defending a Colorado Drug crimes case can be a difficult and long journey. A journey you will not wish to take without an experienced criminal defense lawyer. Even though it may seem lengthy this article is only touches on some of the defense issues you may face on your journey.

    First Steps To Take In A Colorado Drug Crimes Case

    If and when you are arrested for a Colorado drug crime it will always be a traumatic experience.

    Three things should be uppermost in your mind:

    Do Not Panic and Do NOT Plead Guilty:

    If you are arrested, cooperate only to the extent of providing the basic information the police need to complete booking and, if bond has not already been set, to get you before a Judge to set bail. Be polite, and do not lose control of your temper. Show the police officers respect and do not test them.

    Exercise Your Right To Remain Silent Under The Fifth Amendment

    When it comes to the alleged facts of the case, you have an absolute right to remain silent. Use it. Immediately invoke this right. Do NOT act in an ambiguous fashion in this regard. Just say the words “I wish to remain silent under the Fifth Amendment” – over and over again if necessary. If you talk – you will regret it.

    Exercise Your Right To A Lawyer Under The Sixth Amendment

    Asking for a lawyer stops ALL questioning related to the investigation. Look at this as the  investigation is heading toward a brick wall at 60 miles an hour. Everything stops at the mere utterance of four words. As soon as the police try to question you about the case, “lawyer up” by saying the words “I want a lawyer” …and then refuse to speak other than to provide the information the police need to book you.

    Remember, you do need to have a real lawyer at your beck and call. You can retain one later and if you cannot afford a lawyer, you have the right to have one provided for you.

    The Defense Of A Colorado Drug Crimes Case – Will A Lawyer Really Make A Difference?

    I am asked this question many times a day. Do I need a lawyer? The question really is – is it worth the money to retain a lawyer? My answer is always the same, if you can afford a good lawyer, retain one. If not, apply for a public defender they are excellent lawyers and are unfairly maligned.  If you do not qualify for a public defender, try to find the money for an experienced, (not an inexperienced), Colorado criminal defense lawyer.

    A lawyer will almost always increase your chances of successfully fighting a Colorado drug charge or at least obtaining the best possible result in your case.

    An experienced Colorado criminal defense lawyer will not only help you to understand what is happening throughout the case, that lawyer will negotiate with the prosecution, and later, if plea bargaining fails, zealously represent you in the pre-trial, trial and, if necessary (if there is a guilty verdict), at the sentencing phase of the case.

    Quick Bench Conference: Understanding The Role of The Cooperating Individual – The” CI”

    In many drug crime prosecutions the DA will “flip” one or more of the co-defendant’s to “turn state’s evidence” and testify against one or more of the other co-defendant’s in the case. Your Colorado criminal defense lawyer’s duty (and if possible, join with other criminal defense lawyers in the case) will be to investigate and prepare a coordinated attack on that C.I. (cooperating individual).

    Stated differently, a “cooperating individual” agrees to testify in return for an agreement with the Government for a more favorable result in their case. Testifying may result in a reduction in that person’s sentence, a reduction in the years they will be on probation, or an easing in the terms and conditions of probation. The CI’s case may even be dismissed under certain circumstances.

    Sometimes the agreement may occur before charges are filed which can result in charges no charges being filed at all against the “cooperating individual.”

    If a trial moves forward with the threat of the testimony of a CI, the task of the defense lawyer must be to vigorously cross examine the co-operating individual based on the nature of the agreement with the CI…establishing that the cooperating witness “will say or do anything” to “save his own skin.”

    This examination is intended to discredit the CI, not only based on self interest, but to use any and every other piece of extrinsic evidence that can be located to attack the credibility of the cooperating individual.

    The Drugs Are Missing or Lost – Spoliation – Lost Or Destroyed Evidence

    While this has been the subject of another article, it is more important to note that an experienced Colorado criminal defense lawyer will press ALL “chain of custody” issues in a drug crimes case. Questions must be asked: Was all of the evidence handled properly? Was there a thorough investigation? Was ALL of the evidence seized and preserved?

    A Motion to Produce the Evidence At Trial compels the DA to physically produce the actual drugs in question in court. If the drugs cannot be produced – did they ever exist? How many people handled these alleged illegal to possess drugs? Were all of these people trained to collect and preserve the evidence – if so, what was their training and experience?

    While Rare, Is There Any Evidence That The Drugs Could Have Been Planted?

    While a major problem in past generations, the planting of drugs does still occur. On the other hand finding real evidence that drugs were planted is nearly impossible. While this is difficult, the raising the issue at trial where the credibility and aggressiveness on the part of the investigating officers has been established, may be an intelligent and effective approach. Jurors, who question the honesty of a police officer may make the leap that the drugs may have been planted to “get” this dirt bag.

    There are police who do this. If it occurs, it is usually not the first time the officer has planted drugs or taken short cuts in the past. Obtaining the officer’s file may reveal such deceptive actions and should be subpoened by the defenese lawyer. Expect a tough fight here.

    Was There Evidence Seized Proving An Intent to Sell? – Was There “Indicia” (Evidence) Of Drug “Distribution” Sufficient To Up- Charge The Case?

    The difference between a charge of simple possession of a controlled substance in Colorado and a charge of possession with the intent to distribute can mean a completely result for the Defendant. While it may seem nearly impossible to be charged with “possession with intent to distribute “ when you never sold any drugs – it is still commonly charged. When it is charged,  it must be vigorously fought in court.

    An anomaly of the law, which may be hard to understand, is that the Government is not required to prove beyond a reasonable doubt that you sold controlled substances, only that you had the intent to do so.

    The State will try to prove, utilizing the evidence seized from you and your environment at the time of an arrest and search, that this is more than a mere possession case. The police will often proffer at trial an “expert” who will translate the evidence seized from a personal use case into a distribution case.

    The “indicia” -(evidence) of intent to distribute can include:

    • The quantity of the drugs seized (personal use vs distribution weight)
    • The packaging of the drugs – (multiple small units such as balloons, bindles, baggies as if this was a distribution operation).
    • The location of the arrest and search – (In you home or on the street corner in a high crime – drug distribution area?)
    • Seizure of a large amount of cash.
    • Seizure of one or more scales with evidence of use.
    • Possession of a deadly weapon – such as a gun or a knife.
    • Statements of witnesses or a person arrested after a recent sale who has agreed to testify for leniency.
    • Evidence of statements a suspect made in front of witnesses that show an intent to sell drugs may provide the missing legal intent to prove a “drug sales” charge.

    Quick Aside – The Law Does Not Distinguish Between Distribution For Payment And Distribution For Free – Both Are Illegal

    While the results of the cases may be different, Colorado law sees distribution as distribution – receiving payment or receiving friendship in exchange for the drugs. The law treats these factors the same.

    Controlled substances can be sold for cash, loaned, or even given away,… the intent to “distribute” illegal drugs, is what the law requires for a conviction. The result, jail or prison versus establishing a drug addiction leading to probation, a drug court sentence, or other drug diversion programs, is the key to the difference in results under these circumstances. personal possession cases are much less serious in the criminal justice system therefore the result in these cases will be much less severe.

    Attacking The Crime Lab – The Analysis Of The Sample

    A Colorado drug crimes case requires that the District Attorney prove that the drug or drugs involved are, actually, illegal to possess. This requires the State to jump through a number of important hoops before the laboratory analysis results proving the composition of the drug can be admitted at trial.

    From the collection methods, the chain of custody of the drugs, to the protocols followed by the crime lab analyst’s in reaching his or her conclusions before being allowed to testify and explain the lab’s findings at trial, every step in the process should be vigorously challenged.

    Is The Drug Actually Illegal To Possess? – Designer Drugs

    No assumptions should be permitted in a Colorado drug crimes trial. The State has to prove the drug in question is actually a controlled substance. Experienced criminal. For example, defense lawyers should always compel the prosecutor to specifically identify the drug and to prove, beyond a reasonable doubt, that the substance in question is actually a controlled substance.

    Many new drugs are not illegal to possess. There can be a lag between the creation of the substance and the law. Also the defense should never assume that the substance has not been tampered with – every case should put the State through their paces and any doubt about how the case has been investigated and established at trial may be enough to place a significant and “reasonable doubt” in the minds of the jury or a judge if this is a “bench trial.”

    Important Note – Is This A Case Of Actual Innocence?

    Colorado drug crimes possession cases present one of the greatest dangers for the conviction of the innocent. There are times, if you have been in this field as long as I have, (an entire lifetime), that you fear that the worst thing can happen. The most serious challenge to any criminal defense lawyer is when a client is truly innocent.

    In cases of actual innocence, criminal defense lawyers will tell you that their fear of an unjust result hangs so heavily on their shoulders, it may seem almost crushing. Although almost incomprehensible, (and it is important that I have rarely seen it happen), there are times when the truly innocent are caught up in a case where they are convicted of something they just simply did not do.

    Proving possession – especially in the context of something called “constructive possession,” addressed below depends on whether the prosecutor can establish “dominion and control” over the drugs in question. These highly circumstantial cases must be fought as hard as is humanly possible to prevent the unthinkable – an innocent person suffering an unjust conviction.

    The danger of attempting to conduct your own defense is especially acute in these case. This happens in most cases where you know you have done nothing wrong, (and of course it is that belief that motivates you to represent yourself in court) so you feel nothing can go wrong. This is the most dangerous of “do it yourself” endeavors.

    Almost any experienced criminal defense lawyer in your area will tell you exactly what can go wrong when you march to the beat of that drummer. He or she will explain to you how the consequences that your naiveté may have … the kind of extremely severe long term impact on your future that you may not only not perceive at that point, but that you will regret for the rest of your life.

    If it is possible in this situation – to point the finger at the real person responsible – it may be a case for the SODDI Defense.

    The SODDI defense (some other dude did it) applies especially in Colorado drug crimes case. Whether the drugs were left in your car by a “high friend,” or left in a pair of pants your girlfriend wore for a while – it is clear that the drugs in question are someone’s.

    Simply put, the SODDI defense  means you simply did not “do it.” The drugs in question belong, not to you, but  to someone else and you were never in possession of them. Actual innocence may have nothing to do with the evidence. In fact, the evidence it is clear to you the evidence – such as it is – is wrong. But knowing this and using the evidence in a way to defend yourself at trial may be very different things.

    Only the most aggressive criminal defense lawyers should take cases involving actual innocence because they must never be negotiated – they must be tried.

    X The Defense Of “Unwitting” Possession

    The next three sections address different but related concepts of “innocent possession.”

    Another defense in Colorado drug crime prosecutions is commonly called the “unwitting possession” defense. This  defense is keyed to the mental state of the accused. Unwitting possession involves a fact pattern in which a person may have actual possession of the illegal drugs, but they are also completely unaware of that possession.

    An example is when a friend asks to leave a “package” with you – calls it a birthday present for their spouse and the package contains a kilo of cocaine. Clearly you are in possession of a large amount of a controlled substance but the possession is “unwitting” and therefore you cannot be held legally liable for actual drug possession because you were not aware that the package contained drugs.

    Attacking The Elements Of The Charge – The “Insufficient Evidence” Defense

    Every essential element of every criminal charge in a Colorado drug case must be proven beyond a reasonable doubt. That means that each and every essential element of that charge must be separately proven by the evidence presented at trial.

    The State’s burden of proof, beyond a reasonable doubt, is the highest burden of proof in the world.

    A common plan of attack for the defense is to challenge the evidence offered to support each one of the elements individually seeking to establish one or more weak links in the chain of that evidence.

    Here are the elements of Possession Of A Controlled Substance as read to the jury:

    Unlawful Possession of a Controlled Substance

    The elements of the crime of unlawful possession of a controlled substance are:

    1. That the defendant, (identification)

    2. in the State of Colorado, at or about the date and place charged, (location and venue),

    3. knowingly, (the mental state of the accused),

    4. possessed a controlled substance.(the element of possession and the nature of the drug allegedly possessed).

    The prosecutor must prove that (1) you (identification) (2) at the date and place charged (location), (3) knowingly (you were aware of what you were doing) (4) possessed (the act) (5) a controlled substance (the illegal act).

    If The DA can’t prove any one of the elements of a charge, then he or she cannot prove their case and you must be acquitted.

    Attacking The State’s Case – Possession Of Drugs Based On A Theory Of “Constructive Possession”

    Constructive Possession is a theory of prosecution based on the State’s argument that a thing – such as drugs – is in your possession because of the “circumstances” surrounding the seizure of those drugs. “Actual” possession is the theory that governs most Colorado drug crime prosecutions. Constructive Possession is an ALTERNATE THEORY for essentially weak cases where actual possession cannot be shown.

    The truth is this – many innocent people are accused of constructive possession of controlled substances and without excellent legal representation, they are convicted. .

    Constructive possession cases are among the most dangerous because they are subject to constantly inconsistent results even within the same case.

    Colorado law defines constructive possession as follows – it is a situation where:

    Condition 1: You are aware of the drug’s presence.

    Condition 2: The drugs are found in an area in which you had “dominion and control.”

    While Condition 1 is important to combating this theory, it is not usually the focus of the defense. In constructive possession cases the focus is usually on Condition 2 – the “dominion and control” issue.

    Because “actual” possession means you had the item in under your direct physical control, it follows that “constructive” possession is a term of art that describes a situation where the drugs may actually belong to another individual but they are found in YOUR immediate custody or physical control.

    These cases turn on being physically close to controlled substances. So – query – did you have the intent to maintain dominion and control over the drugs?

    Dominion and Control Factors:

    • How close were the drugs to you?
    • If the drugs were found in a vehicle – who owned the vehicle?
    • Were there others in the immediate vicinity of the drugs?
    • How much time had passed when you were in the vicinity of the drugs?
    • Were the drugs open and obvious or were they well hidden?

    In the vehicle situation – if the drugs are next to you on the console – this would be an easier case for the State. However, if they were concealed from plain view, under the seats, in the door panels etc, the DA would have a very difficult time making out a case of “constructive possession.”

    Was There An Illegal (Unconstitutional) Search And Seizure?

    A key approach in Colorado drug crime cases is to attack the investigation.

    Were your constitutional rights violated because there was an illegal search for or seizure of the drugs?

    Was your vehicle legally stopped?

    Were you under a surveillance method that was not constitutionally permitted?

    Were you coerced into making a statement that was later used against you in the prosecution of the case?

    Were your Constitutional Rights to remain silent or to have a lawyer present violated?

    Even if the stop of your vehicle was legal, did you actually consent to a search or were you bullied into compliance by the police?

    Did you consent to allowing the police entry into your home or did the police force there way into your home without a warrant and against your will?

    If the police violate your constitutional rights – such as pursuing an illegal search without a warrant or arresting you without probable cause – any evidence would be inadmissible.

    “De-constructing” the search and seizure process used by the police in your case may lead to a finding of a violation of your constitutional rights and that could lead to an Order by the Judge suppressing some or all of the damaging evidence in your case.

    The Mistake of Fact Defense

    Another defense to a Colorado drug crimes charge is a defense referred to as the “mistake of fact” defense. Essentially this defense means the Defendant did not know that the substance in their possession was a drug at all. The mistake is the accused knew there was a baggie of something in his car – but thought the baggie contained a substance other than an illegal drug.

    At trial the Defendant would testify as to how the baggie was found in the car and what he or she thought it was. If the jury believes the Defendant – or has a reasonable doubt about the element of knowledge, the jury must acquit the Defendant.

    Put differently the “mistake of fact” defense attempts to limit criminal liability on the ground that the Defendant operated based on an incorrect assumption of fact rather than a criminal purpose.

    A mistake of fact “insulates” a Defendant from a criminal charge when it serves to negate the required mens rea (or mental state) required for the commission of a crime.

    Colorado’s Immunity Laws Behind The “Overdose Defense” – Good Samaritan Law

    There was a time when those using illegal drugs had to choose between calling 911 and summoning the authorities and saving a life. As of 2012 that situation has changed.

    Here is a summary from a Colorado State Department of Health website that explains the law:

    The 911 The Colorado Overdose “Good Samaritan Law” C.R.S. §18-1-711

    The 911 Good Samaritan Law states that a person is immune from criminal prosecution for an offense when the person reports, in good faith, an emergency drug or alcohol overdose even to a law enforcement officer, to the 911 system, or to a medical provider.

    This same immunity applies to persons who remain at the scene of the event until a law enforcement officer or an emergency medical responder arrives, or if the person remains at the facilities of the medical provider until a law enforcement officer, emergency medical responder, or medical provider arrives.

    The immunity described above also extends to the person who suffered the emergency drug or alcohol overdose event.

    A Summary Of C.R.S. 18-13-122 (7) – Underage Callers Of 911 In Drug Overdose Cases

    An underage person shall be immune from criminal prosecution if he or she establishes the following:

    • He or she called 911 and reported in good faith that another underage person was in need of medical assistance due to marijuana consumption;

    • He or she provided his or her name to the 911 operator;

    • He or she was the first person to make the 911 report; and

    • He or she remained on the scene with the underage person in need of medical assistance until assistance arrived and also cooperated with medical assistance or law enforcement personnel on the scene

    Was This A “Temporary Possession” Situation? – The Hot Potato Defense

    While it may be a “stretch” defense – there are situations when a person possess an illegal drug for such a short period of time that possession of the drug never occurred. This is akin to a failure of the constructive possession theory above. The defense is that the person was never in legal possession of the drug because he or she never possessed it long enough to exercise “dominion and control” over the drug.

    The best example of this is the “hot potato” scenario – where – upon being stopped by the police for a traffic matter, your best “friend” hands you a baggie of illegal drugs just before the police officer walks up to your window. Technically you are in possess of the drugs – but you would assert the temporary possession defense at trial.

    Do you Have An Alibi For The Time Of The Alleged Crime?

    An alibi defense applies when a crime has occurred at a specific place and a specific time.

    Essentially the alibi defense turns on proof that the Defendant could not have committed the crime because he was somewhere else during the time that the crime was committed.

    A successful alibi covers the entire time period during which the crime allegedly occurred.

    Can You Make Out An Entrapment Defense?

    Colorado law has always allowed law enforcement to conduct “sting” operations. These are usually well planned, effective, well documented investigations. However, on occasion the police overstep their authority and “entrap” the target of the sting.

    When the police – either directly as undercover officers – or through the use of a CI- or informant pressures the target into committing a drug crime – while rare- this would be a case for the assertion of the defense of entrapment at trial.

    Entrapment is defined as the circumstance when governmental agents illegally induce a person to commit a crime when that person is not otherwise inclined to commit that crime.

    In the world of Colorado drug crimes entrapment would be, for example the inducement of an individual into buying drugs when that person would not have normally done so.

    Entrapment Jury Instruction

    It is an affirmative defense to the crime of (insert name of crime) that the Defendant engaged in such conduct because he was entrapped.

    A Defendant is “entrapped” if:

    1. The Defendant would not have conceived of or engaged in the offense unless the inducement was offered,

    2. The Defendant engaged in the offense because he was induced to do so by a law enforcement official or any person acting under their direction, and not as a result of the Defendant’s own predisposition,

    3. The methods used created a substantial risk that this particular Defendant would engage in the offense, and

    4. The methods used were more persuasive than merely affording the Defendant an opportunity to commit the offense, even if representations or inducements were made to overcome the defendant’s fear of detection

    Conclusion – A Comprehensive Guide To Defending Against Drug Charges Under Colorado Law

    If you are accused of possessing illegal drugs in Colorado, either simple possession or possession with intent to distribute an experienced Colorado criminal defense attorney can make the difference between the lifelong impact of a conviction on your criminal history and a plea agreement that preserves your right to seal – expunge your record.

    Not every case can be successfully plea bargained however and in certain cases it might make better sense to fight the case all the way through trial.

    When that is your decision, which decision should be carefully made with the advice of your Colorado Drug Crimes criminal defense lawyer, use of one or more of the defenses discussed in this article may turn the tide to the best possible result… a dismissal or acquittal by jury verdict.

    A Comprehensive Guide To Defending Drug Charges Under Colorado Law

    If you found any of the information I have provided on this web page article helpful please click my Plus+1 or the Share buttons for Twitter and Facebook below so that others may also find it.

    The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

    If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

    Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

    Over 40 Years Specializing in Colorado Criminal Law

    ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at:

    [email protected]

    A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

    “A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

    You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

    Putting more than 40 years of Colorado criminal defense experience to work for you.

    H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – A Comprehensive Guide To Defending Against Drug Charges Under Colorado Law.

    A Comprehensive Guide To Defending Against Drug Charges Under Colorado Law
    Article Name
    A Comprehensive Guide To Defending Against Drug Charges Under Colorado Law
    Defending a Colorado Drug crimes case can be a difficult and long journey. A journey you will not wish to take without an experienced criminal defense lawyer. Even though it may seem lengthy this article is only touches on some of the defense issues you may face on your journey.

    Other Articles of Interest:

    If you found the information provided on this webpage to be helpful, please click my Plus+1 button so that others may also find it.

    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
    The Edward Building
    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
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