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A Second Chance: Drug Offenses & Wobbler Eligibility

Drug Felonies & Wobblers 

In recent years, our criminal justice system has been moving away from the “War on Drugs” harsh punishment scheme. Instead, we are moving towards lighter sentences and even rehabilitation. Of course, this isn’t always case (Looking at you, Florida and Texas). Luckily, Colorado is one of the more progressive states and favors lenient sentences. In 2013, Colorado passed legislation that made extensive changes to the penalties for drug crimes. Among these changes was the allowance for some offenders to avoid a felony drug conviction with the option of “wobblers.” A wobbler is a crime that can be charged as a felony with the potential to “wobble” down to a misdemeanor if certain conditions are met. 

A second chance drug offenses and wobbler eligibility

When Offenses Can Be Wobblers? 

Prosecutors can decide whether to charge wobblers as a misdemeanor or felony, and judges can decide whether to sentence the crime as a misdemeanor or felony. Overall, the judge has the final say, and can decide to go the opposite direction of what the prosecutor decided. In Colorado, wobbler eligible offenses are: 

  • Distribution possession of four grams or less either schedule I or schedule II drugs 
  • Possession of two or less grams of methamphetamine, heroin, ketamine, or cathinones 
  • Possession of four milligrams or less of Flunitrazepam 
  • Felony possession of marijuana or marijuana concentrate, or prescription fraud 

These offenses are eligible for wobbler status if they occurred after October 31st, 2013 and do not have any aggravating factors. The option for a felony to be reduced to a misdemeanor is a huge deal and can offer many defendants a second chance. Often, felonies carry consequences that can follow you for life. You can read more about this on our Consequences of a Felony Conviction blog post, but generally, you could lose the right to vote, the right to own firearms, and can have difficulty finding housing or employment for the rest of your life. 

What Makes Offenses / Defendants Ineligible? 

There are certain factors that make offenses ineligible for a wobbler status. If the crime is violent or the defendant is not eligible for probation, they are ineligible for a wobbler. A defendant is also found ineligible if they have two or more felony drug convictions, or if they have already had a wobbler for a prior offense. This means if you’ve already taken advantage of a wobbler and commit another drug offense, you will be ineligible for drug treatment sentencing and instead may face incarceration. 

What Conditions Must Be Met? 

Typically, a wobbler is filed as a felony and can be dropped to a misdemeanor only after a successful completion of certain conditions. Often, a defendant must complete probation or community corrections and a treatment plan. Other conditions may apply such as mental health treatment, drug testing, and remaining in Colorado. Once the court decides all of the conditions have been successfully completed, the charge will be dropped to a misdemeanor. This is extremely helpful for employment and housing opportunities, background checks, and countless other issues. 

Need More Help? 

If you or someone you know needs with a drug conviction, consider reaching out to Nicol Gersch Petterson for a free 30-minute consultation. Find more information at https://NicolGerschLaw.Com or call 970.670.0378.

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