Colorado § 18-18-428 - Possession of drug paraphernalia - penalty - exceptions.

§ 18-18-428. Possession of drug paraphernalia - penalty - exceptions.

(1) (a) Except as described in section 18-1-711 and paragraph (b) of this subsection (1), a person commits possession of drug paraphernalia if he or she possesses drug paraphernalia and knows or reasonably should know that the drug paraphernalia could be used under circumstances in violation of the laws of this state.

(b) (I) Prior to searching a person, a person's premises, or a person's vehicle, a peace officer may ask the person whether the person is in possession of a hypodermic needle or syringe that may cut or puncture the officer or whether such a hypodermic needle or syringe is on the premises or in the vehicle to be searched. If a hypodermic needle or syringe is on the person, on the person's premises, or in the person's vehicle and the person, either in response to the officer's question or voluntarily, alerts the officer of that fact prior to the search, assessment, or treatment, the peace officer shall not arrest or cite the person pursuant to this section for the hypodermic needle or syringe or section 18-18-403.5 for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe, and the district attorney shall not charge or prosecute the person pursuant to this section for the hypodermic needle or syringe or section 18-18-403.5 for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe. The circumstances described in this paragraph (b) may be used as a factor in a probable cause or reasonable suspicion determination of any criminal offense if the original stop or search was lawful.

(II) Prior to assessing or treating a person, an emergency medical service provider, as defined in section 18-3-201 (1.3), or other first responder may ask the person whether the person is in possession of a hypodermic needle or syringe that may cut or puncture the technician or first responder. If a hypodermic needle or syringe is on the person, and the person, either in response to the question or voluntarily, alerts the emergency medical service provider or first responder of that fact, a peace officer shall not arrest or cite the person pursuant to this section for the hypodermic needle or syringe or section 18-18-403.5 for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe, and the district attorney shall not charge or prosecute the person pursuant to this section for the hypodermic needle or syringe or section 18-18-403.5 for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe.

(III) This section does not apply to the possession of drug paraphernalia that a person received from an approved syringe exchange program created pursuant to section 25-1-520 or a program carried out by a harm reduction organization, as defined in section 12-30-110 (7), while participating in the program.

(2) Any person who commits possession of drug paraphernalia commits a drug petty offense and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars.

Source: L. 92: Entire article R&RE, p. 378, § 1, effective July 1. L. 2012: (1) amended, (SB 12-020), ch. 225, p. 989, § 7, effective May 29. L. 2013: (2) amended, (SB 13-250), ch. 333, p. 1924, § 28, effective October 1. L. 2015: (1) amended, (SB 15-116), ch. 76, p. 200, § 1, effective July 1. L. 2018: (1)(b)(II) amended, (HB 18-1375), ch. 274, p. 1703, § 30, effective May 29. L. 2024: (1)(b)(III) added, (HB 24-1037), ch. 458, p. 3164, § 5, effective June 6.

Editor's note: This section is similar to former § 12-22-504 as it existed prior to 1992.

Cross references: For the legislative declaration in the 2012 act amending subsection (1), see section 1 of chapter 225, Session Laws of Colorado 2012.

ANNOTATION

Annotator's note. Since § 18-18-428 is similar to § 12-22-504 as it existed prior to its repeal in 1992, relevant cases construing that provision have been included in the annotations to this section.

Constitutionality of Drug Paraphernalia Act upheld against challenge based on assertion that use of the terms "reasonably should know" and "could" were unconstitutionally vague and overbroad as used in this section. Lee v. Smith, 772 P.2d 82 (Colo. 1989).

Overbreadth analysis not applicable. Since an overbreadth analysis is appropriately employed where the legislation at issue affects constitutionally protected conduct, and since no constitutionally protected conduct was raised in challenge to Drug Paraphernalia Act, law will not be invalidated as overbroad or vague. Lee v. Smith, 772 P.2d 85 (Colo. 1989).

Knowingly. This section will be construed to require that the defendant acted "knowingly", that is, with knowledge that the object is practically certain to be put to an illegal use in connection with a controlled substance. Lee v. Smith, 772 P.2d 82 (Colo. 1989).

Applied in Wakabayashi v. Tooley, 648 P.2d 655 (Colo. 1982).