Legalization of Psychedelics: Criminal Charges

The Law Offices of Clifton Black, PC has been representing individuals and businesses in the marijuana industry before the inception of the regulated marijuana industry in 2010, advising clients of what was permitted under Colorado’s constitutional amendment allowing medical marijuana. The Law Offices of Clifton Black, PC is now representing people in Psychedelic law.

This article is not intended to be legal advice. Legal advice only occurs in an attorney/client relationship, generally occurring in private, usually in a law firm. Before anyone elects to be involved in Colorado’s laws allowing cannabis or psychedelics, they should seek the advice of an attorney who regularly practices in these areas.

The city and county of Denver, Colorado, voters approved Ordinance 301 in May 2019, making adult personal possession and use of psilocybin mushrooms the lowest law enforcement priority in the city and county of Denver, Colorado.

Oregon voters passed Measure 109 in Oregon in November 2020 to allow a regulated delivery system so people would have access to psilocybin mushrooms available for therapeutic purposes.

Colorado passed the Natural Medicine Health Act in November of 2022. The Natural Medicine Health Act, in its broadest sense, provides for the legalization, regulation, and use of Natural Medicines, consisting of Psilocybin or Psilocyn (magic mushrooms), Mescaline (excluding Peyote), Dimethyltryptamine (DMT), and Ibogaine (ibogaine now limited). These Natural Medicines are often referred to as psychedelics.

Psilocybin mushrooms and other psychedelics, often referred to as Natural Medicines, are on the fast track to becoming socially acceptable through efforts for decriminalization and legalization in several cities and states.

Although psychedelics reportedly have tremendous potential for treating various mental health conditions, healing, and spiritual growth, governmental authorities must also balance the health and safety risks for the public in addition to protecting against cultural harms legalization could pose to federally recognized American tribes and Indigenous people.

Federal Law: Psychedelics like magic mushrooms, psilocybin, mescaline, DMT, Ibogaine, and even marijuana remain illegal under federal law. Federal law supersedes state law which means regardless of what state law allows, the Federal government can still arrest and prosecute individuals for being involved in these substances.

Colorado Law: Colorado’s Natural Medicine Health Act provides protections to those who have a license, registration, permit, or certificate issued by the licensing authority for acts that are not an offense under Colorado State law or the laws of any city or county in Colorado. Likewise, a person allowing their property to be used pursuant to a license, registration, permit, or certificate provides the same protections. If acting in compliance with the Colorado Natural Medicine Health Act, those in compliance are not subject to a civil fine, penalty, or sanction, and would not be in jeopardy of being placed in detention, searched, or arrested. Also, if acting in compliance with this law, such acts would not amount to being denied any right or privilege or the basis to seize or forfeit assets under Colorado state law or the laws of any local jurisdiction.

Personal and Commercial Use: The Natural Medicine Health Act provides for both personal and commercial use.

Under the law now, individuals may be involved in certain activities related to the legalized psychedelics. Individuals 21 years of age or older may cultivate, possess, the legalized psychedelics for personal use and also cultivate and possess psychedelics for the personal use of others 21 years of age or older. However, an individual may not receive any remuneration for providing these legalized psychedelics to others 21 years of age or older.

Remuneration is defined as anything of value, including money, real property, tangible and intangible personal property, a contract right, a chose in action, a service, and any right of use of employment of promise or agreement connected therewith, a business promotion, or commercial activity.

Commercial businesses may not apply for licensing until December 31, 2024, and the state of Colorado then has 60 days to approve or deny a license. Commercial use will permit cultivation, possession, distribution, transportation, and use, provided the business is in compliance with the Natural Medicine Health Act and the rules that are being created and will be amended from time to time.

Since this article is geared towards the effect of legalization on criminal law, details about personal use and commercial use are limited.

Changes to Colorado’s Criminal Statutes:

Colorado’s criminal statutes prohibiting various activities involving drugs can carry significant consequences. Depending on the activity, criminal charges for these activities can range from misdemeanors to heavy felonies, resulting in lengthy and mandatory prison sentences and hefty fines.

The Colorado statutes relating to criminal activity involving the legalized psychedelics covered under Colorado’s Natural Medicine Health Act have been amended to exclude activities from criminal culpability if the activity is allowed under Colorado’s Natural Medicine Health Act. For example, the following statutes have been amended, providing an exception to criminal culpability if in compliance with Colorado’s Natural Medicine Health Act:

However, often, people erroneously believe that legalization in Colorado means that law enforcement can no longer charge people or that prosecutors can’t prosecute people for possessing, using, distributing, selling, manufacturing, dispensing, and providing property to conduct activities or selling materials related to the legalization of psychedelic or marijuana. Unfortunately, even with legalization, as a law firm that has represented clients in the regulated marijuana industry since 2009 and now advising clients in the psychedelic industry, we often see people get charged because they are not in compliance with the laws related to legalization. Legalization does not mean that people can conduct activities related to these substances outside of what the law allows. For example, although alcohol is legal, this does not mean that a person can open a liquor store or bar without proper licensing. Likewise, prescription narcotics are legal, provided the law is being followed, which would consist of a licensed pharmacy obtaining medicine from a drug manufacturer and only dispensing to those with a prescription from a licensed doctor.

Similar to Colorado’s cannabis laws, the Natural Medicine Health Act allows certain activities IN COMPLIANCE WITH THE LAW. As a cutting-edge law firm, we often represent people who erroneously believed that what they were doing was legal, only to get charged with serious offenses. Prior to participating in any activity involving psychedelics or marijuana, a person should seek legal advice from an attorney well-versed in these areas of law.

Professional License: Colorado law does have a statute against someone practicing a profession or occupation without an active license, certification, or registration issued by the governing body for a particular profession. Facilitating natural medicine services, as regulated in Colorado’s Natural Medicine Health Act is a class 2 misdemeanor criminal offense and is subject to up to 364 days in jail and a fine of up to $1,000. This would be a person who is operating as a business or holding themselves out as a licensed professional. This does not prevent a person from operating under the personal use provisions in compliance with the Natural Medicine Health Act.

Minor’s use: A person who is under the age of 21 and knowingly possesses or consumes natural medicines commits a drug petty offense and can be fined up to $100 and be required to perform up to 4 hours of substance use education or counseling for a first-time offense. For a second time offense, the juvenile would be required to perform 24 hours of useful public service in addition to the other penalties mentioned above.

Openly and publicly displays or Consumes. A person who openly displays or consumes natural medicine or natural medicine products commits a petty drug offense and is subject to a fine of not more than $100 and up to 24 hours of useful public service.

Personal Growing area limited: The initial law did not limit the amount of space a person could cultivate for personal use or for the personal use of others 21 years of age or older. The first amended to the law limited the growing space, not allowing the growing space to exceed an area of more than twelve feet wide by twelve feet long in one or more cultivation areas on private property or allowing a growing space to be more than twelve feet wide by twelve feet long on their private property. Violation of this law is subject to a petty offense and a fine of not more than $1,000. The local jurisdiction can increase the twelve-by-twelve space in their jurisdiction, provided it is on private property.

Closed Locked Space: Cultivation of natural medicines outside of a closed locked space is a petty offense and subject to a fine of not more than $1,000. If there is no one under 21 at a residential house, the outside locks will be deemed to make the cultivation a closed locked space. If someone under the age of 21 lives at the residence, then the cultivation must be in an enclosed locked space inside the residence and reasonably restricted for the duration of the person under 21 years of age’s presence in the private property.

Manufacturing Natural Medicine Products: It is unlawful for a person who is not licensed to manufacture natural medicine products using an inherently hazardous substance or to allow someone who is not licensed to manufacture natural medicine products on their property using an inherently hazardous substance. A violation of this provision is a class 2 drug felony, which is punishable by up to 8 years in prison.

Colorado Revised Statute 18-18-403.5. Unlawful possession of a controlled substance. Possession of a controlled substance is charged as a criminal offense either as a misdemeanor or felony, depending on the amount. This statute, prohibiting possession of a controlled substance, was amended to permit possession of the psychedelics permitted in Colorado’s Natural Medicine Health Act, provided such possession is authorized under the Natural Medicine Health Act and the statutes, rules, and regulations promulgated thereto from time to time.

Colorado Revised Statute 18-18-404 Unlawful use of a controlled substance. Use of a controlled substance is generally charged as a criminal offense as a misdemeanor since the amount in question is usually a low amount for personal use. This statute, prohibiting unlawful use of a controlled substance, was amended to permit possession of the psychedelics permitted in Colorado’s Natural Medicine Health Act, provided such use is authorized under the Natural Medicine Health Act and the statutes, rules, and regulations promulgated from thereto time-to-time.

Colorado Revised Statute 18-18-405. Unlawful distribution, manufacturing, dispensing, or sale (of a controlled substance). Unlawful distribution, manufacturing, dispensing, or sale is charged as a criminal offense as a felony if it involves the psychedelics that are now permitted under the Colorado Natural Medicine Health Act. Also, depending on the weight, amount of income received, and other factors, this statute can carry mandatory prison time. This statute, prohibiting possession of a controlled substance, was amended to permit possession of the psychedelics permitted in Colorado’s Natural Medicine Health Act, provided such distribution, manufacturing, dispensing, or sale is authorized under the Natural Medicine Health Act and the statutes, rules, and regulations promulgated from thereto time-to-time.

Colorado Revised Statute 18-18-411. Keeping, maintaining, controlling, renting, or making available property for the unlawful distribution or manufacture of controlled substance. This statute is the statute we often see landlords charged with for renting, leasing, or allowing a property to be used for unlawful distribution or manufacturing of controlled substances, including cultivation. Landlords now have protection for being charged with this statute for providing a property for distribution or manufacturing, including cultivation, of psychedelics now permitted in Colorado’s Natural Medicine Health Act, provided such use of the property is permitted under the Natural Medicine Health Act and the statutes, rules, and regulations promulgated thereto from time-to-time.

Colorado Revised Statute 18-18-412.7 Sale or distribution of materials to manufacture controlled substances. This statute, prohibiting a person from selling or providing materials to manufacture a controlled substance, is charged as a level 2 drug felony. This statute, prohibiting the sale or distribution of materials to manufacture a controlled substance, was amended to permit such sale or distribution of these materials under Colorado’s Natural Medicine Health Act, provided such sale and manufacturing are for psychedelics under Colorado’s Natural Medicine Health Act and the statutes, rules, and regulations promulgated thereto from time-to-time.

Colorado Revised Statute 18-18-430.5 Drug paraphernalia – exemption. This statute provides an exemption to violation of laws related to drug paraphernalia, allowing the use of equipment, products, or materials in compliance with Colorado’s Natural Medicine Health Act, provided such drug paraphernalia is being used for activities now authorized under the Natural Medicine Health Act and the statutes, rules, and regulations promulgated thereto from time-to-time.

Public Nuisance Laws:

Public Nuisance. Colorado statutes have public nuisance laws. Any store, shop, warehouse, residential building, building, boat, aircraft, or any place whatsoever that is frequented by controlled substance addicts for the unlawful use of a controlled substance or used for the storage, manufacturer, sale, or distribution of a controlled substance may be declared to be a public nuisance. If declared a public nuisance, any real or personal property that is seized or confiscated because of an action to reduce the public nuisance may be disposed of, i.e., confiscated and sold. However, operating in compliance with the Natural Medicine Health Act is deemed to not be a public nuisance.

By choosing the Law Offices of Clifton Black, you can benefit from our firm’s commitment to personalized attention and our dedication to protecting the rights and interests of our clients. Call today at (719) 328-1616 and navigate Colorado’s changing drug laws with confidence.

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For over 20 years we have represented clients in Colorado from a client-centered approach. We are experts within the areas of Cannabis Law, Criminal Defense, Family Law, and Business Law. We believe in protecting the rights of businesses and individuals with precision, exceeding client expectations with each case. Client satisfaction inspires us to strive for excellence in everything we do.

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