Possession of a Weapon by Previous Offender (POWPO) in Colorado
The attorneys at Rights & Liberties Law Firm are experienced criminal defense attorneys in Colorado who defend people charged with possession of a weapon by previous offender offenses.
Possession of a weapon by a previous offender is defined in C.R.S. 18-12-108 which defines the offense as follows:
C.R.S. 18-12-108, Colorado’s Possession of Weapons by Previous Offenders Statute
In Colorado a person commits possession of weapons by previous offenders defined as:
(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) Intentionally left blank —Ed.
(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) Intentionally left blank —Ed.
(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 the 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 if committed on or before October 1, 2023;
(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) Repealed.
(fff) Organized crime in violation of section 18-17-104;
(ggg) A special offender in violation of section 18-18-407 (1)(d)(II);
(hhh) A criminal attempt, complicity, or conspiracy to commit any of the offenses listed in this subsection (7); and
(iii) Unlawful conduct involving an unserialized firearm, frame, or receiver, as described in section 18-12-111.5.
Possible Penalties for Possession of Weapons by Previous Offenders in Colorado
Possession of Weapons by Previous Offenders
C.R.S. 18-12-108(2)
Class 5 Felony
- 1-3 years in Colorado State Prison or Community Corrections followed by 2 years of mandatory parole; or
- Probation; and/or
- $1,000 – $100,000 fine;
- Restitution
Defenses to Possession of Weapons by Previous Offenders in Colorado
General Denial
The accused will be acquitted if the prosecution cannot prove every element of the offense beyond a reasonable doubt. When the accused raises a general denial defense, the accused denies that the criminal elements of the offense exist. General denial is related to the failure of proof defense. The failure of proof defense arises when the accused pokes holes in the prosecution’s case and argues that the prosecution failed to prove each and every element of the offense beyond a reasonable doubt.
Mistaken Identity
Mistaken identity is a general denial defense that attacks the element of who committed the alleged offense. As the prosecution is required not only to prove that the offense happened, but that the person charged committed the offense, the mistaken identity defense can be an effective way to challenge the prosecution on the element of who committed the crime. In the context of a possession of weapons by previous offenders case, mistaken identity defenses usually arise when the accused is arrested and charged with disobedience to public safety orders in riot conditions after the alleged offense happened or when the accused is identified after a chaotic situation where eyewitness accounts are not trustworthy. Mistaken identity cases often involve witness misidentification issues, poor witness perception issues, inaccurate, improper, or biased police identification procedures, grainy surveillance videos, and mistaken eyewitness accounts.
Alternate Suspect
The alternate suspect defense occasionally arises in possession of weapons by previous offenders cases. When the accused raises the alternate suspect defense, he or she does so to cast doubt on the identity element of the offense. In other words, the alternate suspect defense is used to cast doubt on the prosecution’s evidence that the accused committed the crime. By raising the alternate suspect defense, the accused casts doubt on the identity element of offense by raising the possibility that another person committed the offense rather than the accused. In Colorado possession of weapons by previous offenders trials the admissibility of alternate suspect evidence will depend on “the strength of the connection between the alternate suspect and the charged crime. If there is a non-speculative connection or nexus between the alternate suspect and the crime charged, the evidence will be admissible.”
If the defense introduces “alternate suspect” evidence, the judge must “look to whether all the similar acts and circumstances, taken together, support a finding that the same person was probably involved in both the other act and the charged crime.” If the judge finds that the accused has presented evidence sufficient to support a finding that an alternate suspect committed the crime, the accused can have the jury consider this evidence in their deliberations. While the alternate suspect defense is seldom used in possession of weapons by previous offenders cases, certain circumstances will give rise to the availability of this defense.
Duress
Under Colorado’s duress statute C.R.S. 18-1-708, a person may not be convicted of an offense, other than a class 1 felony, based upon conduct in which he engaged at the direction of another person because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist. This defense is not available when a person intentionally or recklessly places himself in a situation in which it is foreseeable that he will be subjected to such force or threatened use thereof. The choice of evils defense, provided in section 18-1-702, shall not be available to a defendant in addition to the defense of duress provided under this section unless separate facts exist which warrant its application.
Entrapment
Under Colorado’s entrapment statute, C.R.S. 18-1-709, the commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender’s fear of detection are used.
Choice of Evils
Under Colorado’s choice of evils statute, C.R.S. 18-1-702 (1) conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.
Statute of Limitations for Possession of Weapons by Previous Offenders in Colorado
In Colorado the statute of limitations for commencing criminal charges against a person is governed by C.R.S. Section 16-5-401. The statute of limitations for commencing criminal charges for possession of weapons by previous offenders in Colorado is as follows:
- Felony possession of weapons by previous offenders charges must be filed within 3 years. C.R.S. 16-5-401(1)(a.5)
Legal References
- C.R.S. 18-12-108 https://colorado.public.law/statutes/crs_18-12-108
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