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.
|As a first offense, possession of a weapon by a previous offender||Class 6 felony|| |
|Possession of a weapon by a previous offender||Class 5 felony|| |
|Possession of a weapon by a previous offender with a previous POWPO charge||Class 4 felony|| |
|(Colo. Rev. Stat. 18-12-108)|
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:
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.
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.
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.
(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).
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.
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The process begins with either an arrest or a summons. The accused is either arrested or served with paperwork summoning them to appear in court. During an arrest, Miranda rights may or may not be read to you. Officers are only required to recite your rights if they intend to question you about potentially incriminating things.
In most cases, you're entitled to have a reasonable bond set after you've been arrested. In situations involving domestic violence, the police will request input from the victim before setting a bond. Bonds are set to ensure that a person appears in court at their court dates. If they don’t show up, they forfeit the money that was paid for the bond.
Whether you are arrested or given a summons to appear, the court must make sure you understand what crimes you are being accused of committing. This is called advisement of charges. The District Attorney will detail the specific charges against you, and the Judge has to make sure you understand what possible penalties are associated with that charge in the state.
A preliminary hearing is a way for your defense attorney to challenge the District Attorney’s right to bring charges against you by making them prove that there is reason to believe you committed a crime. The Judge is not deciding your guilt or innocence, but rather whether or not there is probable cause to charge you with the crime in question.
This court date comes after your attorney has reviewed all of the reports and evidence in your case. Here’s where your attorney will engage in plea negotiations with the DA. If they can reach an agreement on the case, you may be able to take a plea bargain. If they cannot reach a resolution, your case will be set for an arraignment or trial date.
An arraignment is the final date for you to decide how you choose to plea. Guilty or not guilty. If you plead guilty, then the case is set for a sentencing date. If you plead not guilty, you and your attorney will then set the case for trial.
A motion hearing is when an attorney makes a request that requires a decision from the judge. For example, motions to suppress evidence or statements. These motions can limit the information that goes before a jury if it benefits your case, and there are legal grounds for doing so.
A pretrial readiness conference is held at some point before trial. It usually is held about a week to a month before the date trial is set to begin. This court date ensures everyone is ready to go to trial on the set date. It is also a time for lawyers to bring up any issues they may have to be addressed before the day of trial.
After a jury is selected for trial, the District Attorney’s responsibility is to present the case to the jury. The DA must prove beyond a reasonable doubt that you are guilty of the crime. Otherwise, the jury must find you innocent. Your attorney will be able to cross-examine all of the witnesses, present evidence, and ultimately help you navigate this process.
At sentencing, the Judge must decide the appropriate legal penalty for the crime you plead guilty. The Judge’s decision is based on the listed penalties for the specific charge, recommendations from the presentence investigation, your criminal history, as well as statements made at the sentencing by the District Attorney, your attorney, you, and any named victims of the crime.
Some common examples of Colorado criminal mischief include:
If you’ve been arrested for criminal mischief, the most important thing you can do is hire a Colorado Springs Criminal Defense Attorney. Be sure to request that your lawyer be present before any police questioning occurs.
Criminal defense attorneys benefit you in several ways after a criminal mischief arrest. A lawyer will be an expert in Colorado criminal law and be able to achieve the best possible outcome for your case. They’ll advocate for your rights and may even be able to negotiate a lesser sentence or get the charges dismissed altogether, depending on the case.