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CRS 18-12-108

Colorado Possession of Weapons by Previous Offenders

When a convicted criminal knowingly owns, uses, or carries a firearm or other restricted weapon, it is considered “possession of a weapon by a previous offender” (POWPO). This charge is a Class 5 felony under C.R.S. 18-12-108, punishable by up to $100,000 or a jail sentence of up to three years.

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Penalties for Possession of Weapons by a Previous Offender in Colorado

Charge Classification Penalty
As a first offense, possession of a weapon by a previous offender Class 6 felony
  • 12 – 18 months in prison (with one-year mandatory parole) and
  • a fine of $1,000 to $100,000
Possession of a weapon by a previous offender Class 5 felony
  • Up to 3 years in prison and/or
  • A fine of up to $100,000
Possession of a weapon by a previous offender with a previous POWPO charge Class 4 felony
  • 2-6 years in prison (with three years mandatory parole) and/or
  • A fine of $2,000 to $500,000
(Colo. Rev. Stat. 18-12-108)

Elements of Possession of Weapons by a Previous Offender

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To convict you of a crime, the prosecution must prove your charges beyond a reasonable doubt.

To do so, they will have to prove each of the following elements:

  1. You had possession of a weapon – Possession takes two forms. When you have complete physical control over the weapon, you have “actual possession.” When you can manage a firearm but not have actual custody of it, this is known as “constructive possession” of the weapon. You can be found to have possession of a weapon just be it being within the main passenger compartment of a car that you are in.
  2. You acted “knowingly” –  A person acts “knowingly” when he is aware of the nature of his behavior and appreciates the potential outcome of such activity
  3. You were found guilty of a previous offense – The statute specifically applies if the individual has been found guilty of a previous criminal violation described in C.R.S. 24-4.1-302 (1)

Possible Defenses for Possession of Weapons by a Previous Offender in Colorado

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You Didn’t Know You Had the Weapon

Possessing a dangerous or prohibited weapon “knowingly” is against the law in Colorado. There are several situations where a defendant may have been discovered to possess a weapon but was unaware.

The Weapon Was Not Under Your Control

If you did not have possession or control of the weapon at the appointed time, this should eliminate a necessary element of the offense. For example, perhaps the weapon belonged to an entirely different person and they had it under their seat, not yours.

You Had It for Self Defense

The offense of possessing a firearm by a prior offender is one for which the Colorado Courts have recognized exists an “affirmative defense.” The foundation for this defense is the right to keep and carry weapons for personal protection. It results from Colorado’s constitutionally protected right to keep and carry weapons, enshrined in Article II, Section 13 of the Colorado Constitution. Put simply, if a previous offender uses a weapon to defend themselves or their property from a threat of harm, they may be acquitted of the charge. This is a tricky defense to the charge because it involves admitting that you did illegally possess a weapon, but if done properly, this defense can be quite effective.

Colorado Revised Statutes, 18-12-108:

(1) A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as defined in section 18-1-901 (3)(h) or any other weapon that is subject to the provisions of this article 12 subsequent to the person’s conviction for a felony crime as defined in section 24-4.1-302 (1) or listed in subsection (7) of this section, or subsequent to the person’s conviction for attempt or conspiracy to commit a crime as defined in section 24-4.1-302 (1) that is a felony, pursuant to Colorado or any other state’s law or pursuant to federal law.

(2) A person commits a class 5 felony if the person violates subsection (1) or (3) of this section. A person who violates subsection (1) or (3) of this section and used or threatened the use of the firearm in the commission of another crime is not eligible for probation or any other alternative sentence and shall be sentenced to the department of corrections.

(3) (a) A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as defined in section 18-1-901 (3)(h) or any other weapon that is subject to the provisions of this article 12 subsequent to the person’s adjudication for an act which, if committed by an adult, would constitute a felony crime as defined in section 24-4.1-302 (1) or listed in subsection (7) of this section, or subsequent to the person’s adjudication for attempt or conspiracy to commit a crime as defined in section 24-4.1-302 (1) that is a felony, pursuant to Colorado or any other state’s law or pursuant to federal law in the previous ten years from the completion of the person’s sentence for the adjudication of a felony crime as defined in section 24-4.1-302 (1).

(b) If a person completes a sentence for the adjudication of a felony crime as defined in section 24-4.1-302 (1) or listed in subsection (7) of this section, or subsequent to the person’s adjudication for attempt or conspiracy to commit a crime as defined in section 24-4.1-302 (1) or listed in subsection (7) of this section that is a felony pursuant to Colorado or any other state’s law or under federal law, and the person has good cause for possessing, using, or carrying a firearm as defined in section 18-1-901 (3)(h) or any other weapon that is subject to this article 12, the person may petition the court for an order determining that subsection (3)(a) of this section does not apply to the person if the person otherwise legally possesses, uses, or carries upon his or her person a firearm as defined in section 18-1-901 (3)(h) or any other weapon that is subject to this article 12. A court shall enter an order determining that subsection (3)(a) of this section does not apply to the person if the court finds, upon request of the person and by a preponderance of the evidence, there is good cause for the person to possess, use, or carry a firearm as defined in section 18-1-901 (3)(h) or any other weapon that is subject to this article 12.

(4) and (5) (Deleted by amendment, L. 2021.)

(6) (a) Upon the discharge of any inmate from the custody of the department of corrections, the department shall provide a written advisement to such inmate of the prohibited acts and penalties specified in this section. The written advisement, at a minimum, shall include the written statement specified in subsection (6)(c) of this section.

(b) Any written stipulation for deferred judgment and sentence entered into by a defendant pursuant to section 18-1.3-102 shall contain a written advisement of the prohibited acts and penalties specified in this section. The written advisement, at a minimum, shall include the written statement specified in subsection (6)(c) of this section.

(c) The written statement shall provide that:

(I) (A) A person commits the crime of possession of a weapon by a previous offender in violation of this section if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901 (3)(h), or any other weapon that is subject to the provisions of this title subsequent to the person’s conviction for a felony, or subsequent to the person’s conviction for attempt or conspiracy to commit a felony, or subsequent to the person’s conviction for a misdemeanor crime of domestic violence as defined in 18 U.S.C. sec. 921 (a)(33)(A), or subsequent to the person’s conviction for attempt or conspiracy to commit such misdemeanor crime of domestic violence; and

(B) As used in this subsection (6)(c), “felony” means any felony under Colorado law, federal law, or the laws of any other state; and

(II) A violation of this section may result in a sentence of imprisonment or fine, or both.

(d) The act of providing the written advisement described in this subsection (6) or the failure to provide such advisement may not be used as a defense to any crime charged and may not provide any basis for collateral attack on, or for appellate relief concerning, any conviction.

(7) In addition to a conviction for felony crime as defined in section 24-4.1-302 (1), a felony conviction or adjudication for one of the following felonies prohibits a person from possessing, using, or carrying upon his or her person a firearm as defined in section 18-1-901 (3)(h) or any other weapon that is subject to this article 12 pursuant to subsection (1) or (3) of this section:

(a) An offense subject to sentencing pursuant to section 18-1.3-1004;

(b) First degree murder of a peace officer, firefighter, or emergency medical service provider in violation of section 18-3-107;

(c) Criminal extortion in violation of section 18-3-207;

(d) False imprisonment in violation of section 18-3-303;

(e) Enticement of a child in violation of section 18-3-305;

(f) Internet luring of a child in violation of section 18-3-306;

(g) Internet sexual exploitation of a child in violation of section 18-3-405.4;

(h) Unlawful sexual conduct by a peace officer in violation of section 18-3-405.7;

(i) Unlawful termination of a pregnancy in the first degree in violation of section 18-3.5-103;

(j) Unlawful termination of a pregnancy in the second degree in violation of section 18-3.5-104;

(k) First degree arson in violation of section 18-4-102;

(l) Second degree arson in violation of section 18-4-103;

(m) Third degree arson in violation of section 18-4-104;

(n) Fourth degree arson in violation of section 18-4-105;

(o) Habitual child abuse in violation of section 18-6-401.2;

(p) Contributing to the delinquency of a minor in violation of section 18-6-701;

(q) Pandering in violation of section 18-7-203;

(r) Pimping in violation of section 18-7-206;

(s) Pandering of a child in violation of section 18-7-403;

(t) Procurement of a child in violation of section 18-7-403.5;

(u) Keeping a place of child prostitution in violation of section 18-7-404;

(v) Impersonating a peace officer in violation of section 18-8-112;

(w) Disarming a peace officer in violation of section 18-8-116;

(x) Aiding escape from an institution for the care and treatment of persons with behavioral or mental health disorders in violation of section 18-8-201.1;

(y) Assault during escape in violation of section 18-8-206;

(z) Holding hostages in violation of section 18-8-207;

(aa) Escape in violation of section 18-8-208;

(bb) Attempt to escape in violation of section 18-8-208.1;

(cc) Participation in a riot in detention facilities in violation of section 18-8-211;

(dd) Intimidating a juror in violation of section 18-8-608;

(ee) Inciting a riot in violation of section 18-9-102;

(ff) Arming a rioter in violation of section 18-9-103;

(gg) Engaging in a riot in violation of section 18-9-104;

(hh) Vehicular eluding in violation of section 18-9-116.5;

(ii) Firearms, explosives, or incendiary devices in facilities of public transportation in violation of section 18-9-118;

(jj) Failure or refusal to leave premises or property upon request of a peace officer in violation of section 18-9-119;

(kk) Terrorist training activities in violation of section 18-9-120;

(ll) Aggravated cruelty to animals in violation of section 18-9-202;

(mm) Treason in violation of section 18-11-101;

(nn) Insurrection in violation of section 18-11-102;

(oo) Advocating the overthrow of the government in violation of section 18-11-201;

(pp) Inciting destruction of life or property in violation of section 18-11-202;

(qq) Membership in anarchist and seditious associations in violation of section 18-11-203;

(rr) Possessing a dangerous or illegal weapon in violation of section 18-12-102;

(ss) Unlawfully carrying a weapon in violation of section 18-12-105.5;

(tt) Use of a stun gun in violation of section 18-12-106.5;

(uu) Illegal discharge of a firearm in violation of section 18-12-107.5;

(vv) Possession of a weapon by a previous offender in violation of section 18-12-108 if committed on or after March 1, 2022;

(ww) Possession of a handgun by a juvenile in violation of section 18-12-108.5;

(xx) Unlawfully providing or permitting a juvenile to possess a handgun in violation of section 18-12-108.7;

(yy) Possession, use, or removal of explosives or incendiary devices in violation of section 18-12-109;

(zz) Unlawful purchase of a firearm in violation of section 18-12-111;

(aaa) Possessing a large-capacity magazine during the commission of a crime of violence in violation of section 18-12-302 (1)(c);

(bbb) Dueling in violation of section 18-13-104;

(ccc) Intentionally setting a wildfire in violation of section 18-13-109.5;

(ddd) Unlawful administration of ketamine in violation of section 18-13-123;

(eee) Smuggling of a human in violation of section 18-13-128;

(fff) Organized crime in violation of section 18-17-104;

(ggg) A special offender in violation of section 18-18-407 (1)(d)(II); and

(hhh) A criminal attempt, complicity, or conspiracy to commit any of the offenses listed in this subsection (7).

Have You Been Charged With Possession of Weapons as a Previous Offender in Colorado Springs?

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Selecting an experienced defense counsel is critical to the success of your case. Defendants need a lawyer who has handled weapons charges before and can employ a successful defense strategy. Perhaps you were unaware that you had the weapon, had no constructive possession of it, or it belonged to someone else entirely. If this is your reality, make an appointment with our law office for a private, free consultation today. We will carefully examine your case and provide recommendations for the next stages in your defense. At Right Law Group, we are incredibly knowledgeable in this area of law. We know how to work within the intricate legal framework and provide strong evidence to a judge or jury. Please call our offices today if you are in Colorado Springs or El Paso County.

FAQ: Colorado Possession of Weapons by Previous Offenders

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What are the aggravating factors for a Colorado possession of weapons by previous offenders charge?

The amount of time since the defendant’s last felony conviction and the kind of weapon used are important considerations in classifying your charges. For example, having a machine gun, ballistic knife, or firearm silencer in your possession might enhance your charge from a Class 5 felony to a Class 4 felony.

What if I purchase a firearm but don't use it?

If someone buys a gun with the knowledge that they are not allowed to acquire one (C.R.S. 18-12-111), they may be charged with unlawful firearm acquisition. Examples of those who are prohibited from owning firearms include fugitives, drug abusers, and convicted felons. It is a Class 4 crime, punishable by up to $500k in fines or two to six years in prison(with a three-year obligatory parole period).

What is a dangerous weapon in Colorado?

As used in Colorado Revised Statutes 18-12-108, a “dangerous weapon” is any of the following:

  • Firearm silencer
  • Machine gun
  • Short shotgun with a barrel shorter than 18 inches and an overall length of fewer than 26 inches
  • Short rifle with a barrel shorter than 16 inches and an overall length of fewer than 26 inches
  • Handgun
  • Ballistic knife
  • Metallic Knuckles
  • Switchblade knife
  • Gravity knife

 

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