When The Police Do Not Find A Usable Amount Of Drugs In A Colorado Prosecution For Possession
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.
Beginning With What Is A Usable Quantity Of Drugs In A Colorado Drug Crime Possession Case?
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.
What Elements Make Up The Crime Of Possession Of A Controlled Substance In Colorado?
Possession of a Controlled Substance Section 18-18-405(1)
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
(3) knowingly
(4) possessed
(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.
The Other Hand: The Possession Of A Usable Quantity Of A Controlled Substance Is Considered Evidence Of Knowing Possession.
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.
One Final Note – The Knowledge Element
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.
When The Police Do Not Find A Usable Amount Of Drugs In A Colorado Prosecution For Possession
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