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The Controlled Substance Act in the 1980s worked to outline firm guidelines for illegal drugs. The purpose of the CSA was to identify drugs that were not legal and what types of drugs a person can use or possess with a prescription.

Most states tend to follow the federal guidelines for the classification of drugs in their laws, but each state can and often does modify the guidelines of the CSA when they deem it necessary. In Colorado, for example, marijuana has been legalized, and many other substances in certain amounts have been decriminalized.

However, there are still drugs that are illegal in Colorado – and even some drugs that have been decriminalized but are illegal to have in certain quantities. So, while drug schedules in the state can and do change, it’s important to understand how drug schedules work and how changing drug schedules can impact the lives of Coloradans.

Here’s what you need to know about drug schedules in Colorado, who determines them, and how they impact potential penalties that can be faced in the state.

Drug Schedules: What Are They?

Under the Controlled Substances Act, drugs are split into five different Schedules. These Schedules are based on how addictive a substance is and whether or not there are any accepted medical uses for it. Schedule I drugs are the most serious and most addictive with no medical use. Schedule V drugs, on the other hand, aren’t as addictive and have some accepted medical use.

A few examples of the drugs Schedules include:

• Schedule I – LSD, heroin, and ecstasy
• Schedule II – Morphine, oxycodone, and methamphetamines
• Schedule III – Ketamine
• Schedule IV – Ambien, Valium, and Xanax
• Schedule V – Cough medications with codeine

Drug Schedules: How They Are Determined

The Drug Enforcement Administration is the organization responsible for assigning Schedules to substances. They have the authority to evaluate drugs and criminalize them on a sweeping, national scale.

When the DEA evaluates a drug for the schedule, they work with the Department of Health and Human Services to determine its potency, potential for abuse, and side effects. If the drug does have some use in the medical setting, then they take a deep look into how addictive it is. Together, HHS and the DEA consider several aspects of a drug when deciding on its Schedule, such as:

• If the substance is addictive
• How much scientific knowledge exists regarding the substance currently
• If the substance can be used in the manufacture of another drug
• How addictive the substance may be
• If a person can become psychologically dependent on the substance
• The history of abuse as well as the pattern of abuse of the substance
• If the substance poses a risk to public health
• The significance, scope, and duration of abuse of the substance

How Schedules Impact Drug Penalties

Every state has a different way to treat those convicted of drug possession and use. In Colorado, the penalties used to be based on Federal Schedules, but all that changed in March of 2020.

Now, drug possession charges that previously would have been treated like Class IV felonies are prosecuted as Class I misdemeanors instead, with the exception of circumstances where the case has aggravating factors or the defendant has a prior history of drug charges.

In Colorado, most of the courts lean in the direction of drug reform instead of criminalization. First-time drug offenders now may be eligible for services that help to rehabilitate them instead of sending them to prison for offenses that are basically non-violent.

What Drugs Has Colorado Defelonized?

In its fight to help end drug abuse, Colorado has decriminalized the possession of small amounts of Schedule I and II drugs.

So, for Schedule I drugs such as LSD and heroin or Schedule II drugs such as methamphetamine, codeine, and opioids, possession of certain amounts of these substances will result in misdemeanor charges instead of felony charges. In cases where large amounts of these substances are found or there was intent to sell them, a person can still be charged with a felony.

Also, if an extensive criminal history is included in the case, or there were aggravating factors involved, then the case can still be prosecuted as a felony. Aggravating factors include:

• Being on parole for a previous felony
• Being on bond or probation for another charge or crime
• Being in prison or under confinement in a correctional institution
• Being on appeal bond after a conviction of a felony

However, any factor can be deemed an aggravating factor by the Colorado courts, which is even more of a reason to have an experienced attorney on your side if you’re facing drug charges – even in a state that has actively worked to decriminalize some drug crimes, like Colorado.

About the Author:

Andrew Bryant is a well-respected Colorado Springs criminal attorney who has been practicing in the area for years. A Colorado native, he returned to the home he loves after graduating from the University of Kentucky College of Law. Now, he uses the knowledge he gained as an El Paso County District Attorney to fight tirelessly for his clients’ rights. He is AV-Preeminent rated, has been recognized for his work by The National Trial Lawyers, and has been named to Best of the Springs lists by The Gazette for years.