By H. Michael Steinberg Colorado Drug Crimes Criminal Defense Lawyer
Giving A Friend A Prescription IS A Colorado Crime -18-18-405 – But It Is NOT A Conspiracy – The dangers of giving a friend at work, at home, or on vacation – anywhere – a prescription drug which drug was written as a prescription only to you – are very real.
The bad news is a recent Colorado case affirmed that even a gift of your prescription drug is the same as selling the drug. Put differently, a “distribution” of drugs to a friend is the same – in the eyes of Colorado law – as “dealing” in drugs.
The good news is you cannot be charged with the additional count of Conspiracy to sell drugs.
The evidence in the new case – established that the “transferor” of Tylenol 3 who intended only to give the drugs to her office friend – (the transferee)- who used the drugs ONLY for personal use (cramps) was illegal but was not a Conspiracy.
In the Lucero case – Lucero’s co-worker owned a prescription for Tylenol 3. Lucero was given – free of charged – several tablets over time for Lucero’s pain – The drugs were shared with no one else and this occurred at the workplace.
The Colorado “Buyer-Seller” Rule
The law in Colorado in Colorado is that evidence of a buyer-seller relationship, without more, does not constitute a “conspiracy” to distribute a controlled substance
This principle has been called the “‘buyer–seller rule,” the “buyer-seller exception,” the “retail buyer rule” and the “personal consumption rule.” While it a misnomer to call the exchange between Lucero and her co-worker a sale – the transfer fits under the “buyer-seller” concept.
An exchange – even a sale for a buyer’s personal consumption, does not constitute a “conspiracy.” A transfer for “payment” for the drug is not an important distinction.
To summarize, whether the “transferor-transferee” relationship involves a paid or unpaid transfer of a controlled substance, it is STILL A CRIME to transfer the drug. Because, the transferee intends only to obtain the drugs from the prescription holder, there can be no “unification objective” because the parties – the friends in this case – have different intentions: one has the intention to give the drugs, and the other has the intention to obtain the drugs for personal use.
The consumer of the drug does not share the distribution objective of the seller and thus cannot be part of a “conspiracy” to distribute the controlled substance.
What Follows Is Colorado’s Controlled Substance Distribution, Manufacturing, Dispensing, or Sale Statute – 18-18-405.
§ 18-18-405. Unlawful Distribution, Manufacturing, Dispensing, or Sale
(1) (a) Except as authorized by part 1 of article 42.5 of title 12, C.R.S., part 2 of article 80 of title 27, C.R.S., or part 2 or 3 of this article, it is unlawful for any person knowingly to manufacture, dispense, sell, or distribute, or to possess with intent to manufacture, dispense, sell, or distribute, a controlled substance; or induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute, a controlled substance; or possess one or more chemicals or supplies or equipment with intent to manufacture a controlled substance.
(b) As used in this subsection (1), “dispense” does not include labeling, as defined in section 12-42.5-102(18), C.R.S.
(2) Except as otherwise provided for an offense concerning marijuana and marijuana concentrate in section 18-18-406 and for special offenders as provided in section 18-18-407, any person who violates any of the provisions of subsection (1) of this section:
(a) Commits a level 1 drug felony and is subject to the mandatory sentencing provisions in section 18-1.3-401.5(7) if:
(I) The violation involves any material, compound, mixture, or preparation that weighs:
(A) More than two hundred twenty-five grams and contains a schedule I or schedule II controlled substance; or
(B) More than one hundred twelve grams and contains methamphetamine, heroin, ketamine, or cathinones; or
(C) More than fifty milligrams and contains flunitrazepam; or
(II) An adult sells, dispenses, distributes, or otherwise transfers any quantity of a schedule I or schedule II controlled substance or any material, compound, mixture, or preparation that contains any amount of a schedule I or schedule II controlled substance, other than marijuana or marijuana concentrate, to a minor and the adult is at least two years older than the minor;
(b) Commits a level 2 drug felony if:
(I) The violation involves any material, compound, mixture, or preparation that weighs:
(A) More than fourteen grams, but not more than two hundred twenty-five grams, and contains a schedule I or schedule II controlled substance;
(B) More than seven grams, but not more than one hundred twelve grams, and contains methamphetamine, heroin, ketamine, or cathinones; or
(C) More than ten milligrams, but not more than fifty milligrams, and contains flunitrazepam;
(II) An adult sells, dispenses, distributes, or otherwise transfers any quantity of a schedule III or schedule IV controlled substance or any material, compound, mixture, or preparation that contains any quantity of a schedule III or schedule IV controlled substance to a minor and the adult is at least two years older than the minor;
(c) Commits a level 3 drug felony if the violation involves any material, compound, mixture, or preparation that weighs:
(I) Not more than fourteen grams and contains a schedule I or schedule II controlled substance;
(II) Not more than seven grams and contains methamphetamine, heroin, ketamine, or cathinones;
(III) Not more than ten milligrams and contains flunitrazepam; or
(IV) More than four grams and contains a schedule III or schedule IV controlled substance;
(d) Commits a level 4 drug felony if:
(I) The violation involves any material, compound, mixture, or preparation that weighs not more than four grams and contains a schedule III or schedule IV controlled substance; or
(II) Notwithstanding the provisions of paragraph (c) of this subsection (2), the violation involves distribution or transfer of the controlled substance for the purpose of consuming all of the controlled substance with another person or persons at a time substantially contemporaneous with the transfer; except that this subparagraph (II) applies only if the distribution or transfer involves not more than four grams of a schedule I or II controlled substance or not more than two grams of methamphetamine, heroin, ketamine, or cathinones;
(e) Commits a level 1 drug misdemeanor if the violation involves:
(I) A schedule V controlled substance; or
(II) A transfer with no remuneration of not more than four grams of a schedule III or schedule IV controlled substance.
…
(5) When a person commits unlawful distribution, manufacture, dispensing, sale, or possession with intent to manufacture, dispense, sell, or distribute any schedule I or schedule II controlled substance, as listed in section 18-18-203 or 18-18-204, flunitrazepam, ketamine, or cathinones, or conspires with one or more persons to commit the offense, pursuant to subsection (1) of this section, twice or more within a period of six months, without having been placed in jeopardy for the prior offense or offenses, the aggregate amount of the schedule I or schedule II controlled substance, flunitrazepam, ketamine, or cathinones involved may be used to determine the level of drug offense.
Giving A Friend A Prescription IS A Colorado Crime – 18-18-405 – But It Is NOT A Conspiracy
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iving A Friend A Prescription IS A Colorado Crime -18-18-405 – But It Is NOT A Conspiracy.