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When The Police Do Not Find A Usable Amount Of Drugs In A Colorado Prosecution For Possession – When the police investigate a drug possession case under Colorado law and the amount of that controlled substance is less than a “usable quantity” the District Attorney produce evidence – other than the fact of possession – to allow the element of knowledge to go to the jury.
The law in Colorado as to the issue of “useable quantity” in Drug Crime Possession cases is this:
If the amount of the illegally possessed controlled substance is “less than a useable quantity” the burden on the prosecution to prove their case is enhanced.
If the amount of the controlled substances located on a suspect later charged in a criminal case is “so minute that it amounts to only a trace, there is no basis, from that fact alone, for any logical or reasonable inference that the defendant had knowledgeable possession.” Put differently, if the controlled substance in question is only a minute amount any basis for an inference from the location of that minute substance that a Defendant knew he possessed a controlled substance – is not permitted under Colorado law.
In the absence of other this additional evidence there is insufficient evidence to sustain a Defendant’s conviction and a Colorado Trial Judge must grant a Defendant’s motion for judgment of acquittal.
The Colorado jury instruction that defines the elements of the crime of Possession Of A Controlled Substance In Colorado are:
(1) that the Defendant
(2) in the State of Colorado, at or about the date and place charged
(5) the named controlled substance.
The determination of whether the drug that is located is a usable quantity is determined by the Trial Judge. The Judge, not the jury, decides whether a Defendant possessed a usable quantity of the controlled substance, If the Judge makes that finding, only THEN must the People must produce other evidence supporting an inference that the charged Defendant knew he possessed the substance;
Therefore the Trial Judge makes the determination of whether the evidence as to whether the quantity in question is sufficient to go to the jury – on the question of whether the possession of the controlled substance is “knowing” possession – is a determination for the Trial Judge to make.
This is a confusing area of law to many people. The rule is this:
….possession of a usable quantity is evidence of knowing possession…
BUT the obverse is not true:
…the absence of a usable quantity does NOT constitute evidence of “unknowing possession.”
The absence of a usable quantity does not constitute evidence that a Defendant did not know that he possessed the drug. If there is no usable quantity of a controlled substance the only importance of this fact is that the State must present other evidence regarding the Defendant’s knowledge “to justify the jury’s consideration of that element.”
Colorado criminal law allows for a jury to return a verdict of guilty if it finds, beyond a reasonable doubt, that the defendant knowingly possessed any quantity of a controlled substance.
Therefore the fact that the amount possessed by the defendant was less than a usable quantity is not a defense to the charge of possession under section 18-18-405(1). But for the prosecution to prove the mental state of “knowingly” possessing a non-usuble amount – knowledge of possession is an element of the Colorado crime of Possession of a Controlled Substance:
if the prosecution fails to prove that the defendant knew he possessed the drug (whatever its amount), then the defendant’s lack of knowledge of possession is a defense, and, of course, the jury must be so instructed.
The Colorado requirement of “knowledge“ is focused on protecting those who may have drugs in their possession but actually possess the drug unknowingly. Best example is when a person leaves a controlled substance in your car and you really had no ide it was there.
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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.
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at firstname.lastname@example.org – 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 – 720-220-2277. Attorney 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.
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You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 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. 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 – When The Police Do Not Find A Usable Amount Of Drugs In A Colorado Prosecution For Possession.