Colorado § 18-18-406.5 - Unlawful use of marijuana in a detention facility.

§ 18-18-406.5. Unlawful use of marijuana in a detention facility.

(1) A person confined in a detention facility in this state who possesses or uses marijuana commits a level 1 drug misdemeanor.

(2) Repealed.

(3) For purposes of this section, "detention facility" means any building, structure, enclosure, vehicle, institution, or place, whether permanent or temporary, fixed or mobile, where persons are or may be lawfully held in custody or confinement under the authority of the state of Colorado or any political subdivision of the state of Colorado.

Source: L. 99: Entire section added, p. 798, § 16, effective July 1. L. 2010: (1) and (2) amended, (HB 10-1352), ch. 259, p. 1174, § 19, effective August 11. L. 2013: (1) amended, (SB 13-250), ch. 333, p. 1917, § 14, effective October 1. L. 2014: (1) amended and (2) repealed, (SB 14-163), ch. 391, p. 1979, § 24, effective June 6.

ANNOTATION

This section does not violate the equal protection clause of the Colorado or U.S. Constitution by failing to provide the treatment option available under § 18-18-404. This section presents a classification that is neither arbitrary nor irrational. People v. Goodale, 78 P.3d 1103 (Colo. 2003).

By intentionally omitting marihuana from the treatment option available under § 18-18-404, the legislature explicitly chose to offer the treatment option only to those addicted to other substances. Such a classification has a rational basis based upon real in fact differences between the substances. People v. Goodale, 78 P.3d 1103 (Colo. 2003).

This section is directly related to the legislature's purpose of punishing those who use marihuana in a detention facility. Section 18-18-404 is clear and unambiguous in exempting this section from its provisions, including the treatment option. The legislature explicitly intended that marihuana users not be given the treatment option provided for in § 18-18-404. People v. Goodale, 78 P.3d 1103 (Colo. 2003).

Defendant's argument rests on the misleading presumption that, because use of a schedule I or II controlled substance is a more serious crime than the use of marihuana in a detention facility, any opportunity given those charged with the more serious crime must also be given to those charged with the less serious crime. Such symmetry of punishment, however, is not required by the constitution where valid classifications, based on varieties of evils, exist. People v. Goodale, 78 P.3d 1103 (Colo. 2003).