It is against the law in Colorado for a previous offender to possess a firearm.[i] The law is commonly known by the acronym POWPO – possession of a weapon by a previous offender. Public policy dictates why the law prohibits this: individuals whose past conduct demonstrates an unfitness to be entrusted with such dangerous instrumentalities are prohibited from possessing guns.[ii]
The state’s law is written broadly to include many individuals who would fit within the definition of “previous offender.” A long list of felony convictions specified in § 24-4.1-302(1) and § 18-12-108(7) would subject a person to classification as a previous offender. Furthermore, the law classifies a person as a previous offender if he or she was convicted of a felony under any other state’s law as well.[iii]
There are obvious firearms that previous offender is not allowed to possess, including “any handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges.”[iv] The interesting and problematic issue for previous offenders is the law would even cover inoperable firearms, finding them to still be firearms.[v] Therefore, it is not a defense to a POWPO charge, for example, to say that a gun was missing a firing pin or was completely unloaded at the time it was recovered by police.
To find someone guilty of POWPO, the prosecution must prove the requisite mental intent, which is “knowingly.” Mere possession of a firearm is insufficient to convict a person of this crime. A scenario where an individual is searched by a law enforcement officer who discovers a gun tucked into his waistband or in a holster on one’s hip would lead a reasonable person to conclude that the suspect knowingly possessed a firearm. In contrast, a previous offender traveling in a friend’s car who had a weapon concealed in a glove box or within the trunk would have a very viable argument that he or she did not know the weapon was present.
Is each and every instance where a previous offender who is discovered with a firearm guilty of POWPO? The answer is no. The Colorado Supreme Court recognized that there are situations where an individual may need to use a weapon to defend him- or herself from a threat to life or to defend an individual’s home or property.[vi] In such situations a previous offender may use a firearm and assert a choice of evils defense to a POWPO charge – either break the law or face grave harm.[vii] In other words, self-defense may be a viable challenge to a POWPO charge.
A POWPO conviction can be either a class five or class six felony under Colorado’s sentencing statutes. The maximum sentence for POWPO as a class five offense is three years imprisonment and a fine of $100,000.
As the above information should highlight, facing a POWPO charge can be a highly technical matter. The details and small facts will have great influence in whether a person is found guilty of this crime or is acquitted. Contact Mile High Legal if you are facing this charge so our firm can help you get the best possible outcome for your case.
[i] § 18-12-108, C.R.S.
[ii] People v. Gallegos, 563 P.2d 937, 939 (1977)
[iii] § 18-12-108(1), C.R.S.
[iv] § 18-1-901(3)(h), C.R.S.
[v] People v. O’Neal, 228 P.3d 211, 213-14 (Colo. App. 2009); People v. Vigil, 758 P.2d 670, 673 (Colo. 2008)
[vi] People v. Blue, 190 Colo. 95, 103-04 (1975)
[vii] People v. Carbajal, 2014 CO 60, ¶ 12
