Colorado Drug Crimes Law: Understanding the Colorado Special Offender Law
By Colorado Criminal Defense Drug Crimes Lawyer H. Michael Steinberg
Colorado’s Special Offender Statute
Special Offender (18-18-407)
This Section mandates a sentence to prison – the Colorado Department of Corrections:
1. Upon a felony conviction under this part 4, the presence of any one or more of the following extraordinary aggravating circumstances designating the defendant a special offender shall require the court to sentence the defendant to the department of corrections for a term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony:
These are the aggracvating factors that require the application of the mandatory prison sentence:
(a) Two or more previous Drug Crime Convictions:
(a) The defendant was previously convicted in courts of the United States or a state or any political subdivision thereof for two or more offenses involving the manufacture, sale, dispensing, or distribution of controlled substances, which offenses did not arise from the same criminal episode or course of events and differ from the pending felony and which were punishable by imprisonment in excess of one year;
(b) The Defendant makes a living from the sale or manufacturing og drugs – as a pattern of life over time:
(b) The defendant committed an offense as part of a pattern of manufacturing, sale, dispensing, or distributing controlled substances, which offense is a felony under applicable laws of Colorado, which constituted a substantial source of that person’s income, and in which that person manifested special skill or expertise;
(c) The Defendant engaged ina pattern of distibution and conspired with others to do so:
(c) The defendant committed a felony which was, or was in furtherance of, a conspiracy with one or more persons to engage in a pattern of manufacturing, sale, dispensing, or distributing a controlled substance, which offense is a felony under applicable laws of Colorado, and the defendant did, or agreed that he would, initiate, organize, plan, finance, direct, manage, or supervise all or part of such conspiracy or manufacture, sale, dispensing, or distributing, or give or receive a bribe, or use force in connection with such manufacture, sale, dispensing, or distribution;
(d) The defendant unlawfully introduced, distributed, or imported into the state of Colorado any schedule I or II controlled substance (contained in part 2 of this article);
(e) The Defendant sold, or dispensed or imported in excess of 100 pounds of marijauna or marjuna concentrate.
(e) The defendant unlawfully sold, dispensed, distributed, possessed, or imported into the state of Colorado a quantity in excess of one hundred pounds of marihuana or marihuana concentrate;
(f) A deadly weapon was used, displayed or possesed and WAS AVAILABLE FOR USE — as part of the drug crime — this statute was amended in 2010 – The recent adoption of H.B. 10-1352, limits special offender sentencing based on possession of a
weapon to cases in which the defendant “possessed on his or her person or within his or her immediate reach [a deadly weapon] at the time of the commission of the offense” has no effect on this case. § 18-18- 407, 2010 Colo. Sess. Laws 1170.
(f) The defendant used, displayed, possessed, or had available for use a deadly weapon as defined in section 18-1-901 (3) (e);
(g) Addresses the Involvement of Children in Drug Crimes
(g) The defendant solicited, induced, encouraged, intimidated, employed, hired, or procured a child, as defined in section 19-1-103 (18), C.R.S., to act as his agent to assist in the unlawful distribution, manufacturing, dispensing, sale, or possession for the purposes of sale of any controlled substance in violation of section 18-18-405. It shall not be a defense under this paragraph (g) that the defendant did not know the age of any such individual.
(h) Self evident:
(h) (I) The defendant engaged in a continuing criminal enterprise by violating any provision of this part 4 which is a felony; and
(II) The violation is a part of a continuing series of two or more violations of this part 4 on separate occasions:
(A) Which are undertaken by that person in concert with five or more other persons with respect to whom that person occupies a position of organizer, supervisor, or any other position of management; and (B) From which that person obtained substantial income or resources.
2.(a) A defendant shall be a special offender if the defendant is convicted of selling, distributing, possessing with intent to distribute, manufacturing, or attempting to manufacture any controlled substance in violation of section 18-18-405 either within or upon the grounds of any public or private elementary, middle, junior high, or high school, vocational school, or public housing development, or within one thousand feet of the perimeter of any such school or public housing development grounds on any street, alley, parkway, sidewalk, public park, playground, or other area or premises that is accessible to the public, or within any private dwelling that is accessible to the public for the purpose of the sale, distribution, use, exchange, manufacture, or attempted manufacture of controlled substances in violation of this article, or in any school bus as defined in section 42-1-102 (88), C.R.S., while such school bus is engaged in the transportation of persons who are students at any public or private elementary, middle, junior high, or high school. The court is required in addition to imposing the sentence to imprisonment in the department of corrections required by subsection (1) of this section, to fine the defendant without suspension at least twice the minimum fine provided for in section 18-1.3-401 (1) (a) (III) if the defendant’s offense is a felony or in section 18-1.3-501 (1) if the defendant’s offense is a misdemeanor.
(b) The department of education may cooperate with local boards of education and the officials of public housing developments, and make recommendations regarding the uniform implementation and furnishing of notice of the provisions of this subsection
(2). Such recommendations may include, but shall not be limited to, the uniform use of signs and other methods of notification which may be used to implement this subsection (2).
(c) For the purposes of this section, the term “public housing development” means any low-income housing project of any state, county, municipal, or other governmental entity or public body owned and operated by a public housing authority that has an on-site manager. “Public housing development” shall not include single-family dispersed housing or small or large clusters of dispersed housing having no on-site manager.
3.(a) In support of the findings under paragraph (b) of subsection (1) of this section, it may be shown that the defendant has had in his own name or under his control income or property not explained as derived from a source other than such manufacture, sale, dispensing, or distribution of controlled substances.
(b) For the purposes of paragraph (b) of subsection (1) of this section only, a “substantial source of that person’s income” means a source of income which, for any period of one year or more, exceeds the minimum wage, determined on the basis of a forty-hour week and fifty-week year, or which, for the same period, exceeds fifty percent of the defendant’s declared adjusted gross income under Colorado or any other state law or under federal law, whichever adjusted gross income is less.
(c) For the purposes of paragraph (b) of subsection (1) of this section, “special skill or expertise” in such manufacture, sale, dispensing, or distribution includes any unusual knowledge, judgment, or ability, including manual dexterity, facilitating the initiation, organizing, planning, financing, directing, managing, supervising, executing, or concealing of such manufacture, sale, dispensing, or distributing, the enlistment of accomplices in such manufacture, sale, dispensing, or distribution, the escape from detection or apprehension for such manufacture, sale, dispensing, or distribution, or the disposition of the fruits or proceeds of such manufacture, sale, dispensing, or distribution.
(d) For the purposes of paragraphs (b) and (c) of subsection (1) of this section, such manufacture, sale, dispensing, or distribution forms a pattern if it embraces criminal acts which have the same or similar purposes, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.
4.Nothing in this section shall preclude the court from considering aggravating circumstances other than those stated in subsection (1) of this section as a basis for sentencing the defendant to a term greater than the presumptive range for the felony.
5.If a defendant who is subject to the provisions of this section is subject to a greater sentence pursuant to the provisions of another statute, the court shall impose sentence pursuant to that statute. The prosecution shall not be forced to elect under which statute to proceed.