Wobbler Crimes in Colorado

Having all the facts about your charges, including whether they qualify as wobblers, is critical to your defense.

A wobbler is a “crime that can be either a misdemeanor (a conviction punishable by a small amount of jail time, typically one year or less) or a felony (a conviction punishable by time in state prison). Wobblers can be charged either way, and depending on the law of their state, judges may have the discretion to reduce a felony conviction in a wobbler case to a misdemeanor.”[1]  In Colorado, Judges have that exact authority.[2]

How Does a Wobbler Work?

In Colorado, the legislature wanted “to expand [the] opportunities . . . to avoid a drug felony conviction, to reduce the significant negative consequences of that felony conviction, and to provide positive reinforcement for drug offenders who work to successfully complete any community-based sentence imposed by the court.”[3]  Accordingly, where a “defendant enters a plea of guilty or is found guilty by the court or a jury for a crime listed . . ., the court shall order, upon successful completion of any community-based sentence to probation or to a community corrections program, the drug felony conviction vacated and shall enter a conviction for a level 1 drug misdemeanor offense of possession of a controlled substance.”

What does all that mean?  Put simply, if you are found guilty of certain felony drug offenses but complete a required program, your crime will be reduced to a misdemeanor.

So what felony drug crimes qualify as wobblers?

The wobbler statute applies to four circumstances:[4]

  • Possession of a controlled substance (but only when the quantity of the controlled substance is four grams or less of a schedule I or schedule II controlled substance, two grams or less of methamphetamine, heroin, ketamine, or cathinones, and four milligrams or less of flunitrazepam;
  • A level 4 drug felony for distribution, as long as the distribution was for the use of all of the controlled substance with another person near the time of the of the distribution (aka, “buddy distro”). Importantly, however, this section applies only if the distribution or transfer involves four grams or less of a schedule I or II controlled substance or two grams or less of methamphetamine, heroin, ketamine, or cathinones;
  • Possession of more than twelve ounces of marijuana or more than three ounces of marijuana concentrate;  or
  • Fraudulently acquiring prescriptions for controlled substances.

Who qualifies for a wobbler charge?

Not all defendants qualify for a wobbler charge.  For example, you are not eligible for the benefit of a wobbler if you:

  • Have two or more prior drug felonies (including any diversion, deferred prosecution, or deferred judgment and sentence for those felonies);
  • Have been convicted of a crime of violence;
  • Have been convicted of certain sex offenses; or
  • Are ineligible for probation.

As a criminal defense attorney, my goal is not only to defend you to the fullest, but to keep you informed of everything that could affect your case, including things like whether you are eligible to take advantage of the wobbler statute.  If you are seeking an experienced and zealous criminal defense counsel, give me a call.  All consultations are free of charge.

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[1] Legal Information Institute.

[2] C.R.S. 18-13-103.5.

[3] C.R.S. 18-13-103.5(3)(a)-(d).

[4] C.R.S. 18-13-103.5(a)


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