Drug possession charges often carry stiff penalties. Even being in possession of another person’s prescription drugs can result in felony charges. In Arizona, the penalty for drug possession depends on the type and amount of the drug found on a person as well as the individuals past criminal history. An experienced criminal defense attorney can mount several defenses to Below are some common charges that can result from being in possession of prescription drugs:
Potential charges relating to possession of a prescription-only drug in Arizona
Unlawful possession of a prescription-only drug
Individuals may be convicted of unlawful possession of a prescription-only drug when they knowingly possess prescription-only drugs belonging to another person, including friends and family members. In order to be convicted of unlawful drug possession, the state must prove both that the accused knowingly possessed the drug and that the accused knew that the drug was a prescription-only drug.
The penalties for possessing a prescription-only drug are relatively mild compared to other drug charges. Unlawfully possessing a prescription-only drug is a misdemeanor and carries with it a sentence up to six months in jail, potentially up to $4,575 in fines and penalties, and three years on probation.
Possession or use of a dangerous drug
“Dangerous drugs” are defined as any narcotic other than marijuana and include certain prescription drugs, such as Oxycontin, Percocet, Vicodin and benzodiazapines. Although the elements of the crime are similar to the unlawful prescription-only drugs, possession or use of a dangerous drug carries with it a much more stringent penalty. The crime is a class 4 felony and is punishable by up to fifteen years in prison, depending on the defendant’s prior criminal history.
Judges have the authority to sentence defendants convicted of dangerous drug possession as a class 1 misdemeanor. Further, pursuant to Proposition 200, defendants who are first or second-time drug offenders can only be sentenced to probation, in a addition to drug treatment, community service and fines. Although defendants may be sentenced for short jail stays for up to 2 weeks for probation violations, the judge must reinstate probation upon completion of jail time.
Drug trafficking: Possession of Drugs for Sale/Transportation of Drugs for Sale
Possession and transportation of drugs for sale are among the most serious drug charges and are class 2 felonies. Defendants who are caught selling prescription drugs may be charged with possession or transportation of drugs for sales. Defendants who are found to have a certain amount of prescription drugs will be presumed to have been selling the drugs.
Defendants convicted of drug trafficking charges are not eligible for parole and may be sentenced to up to 12.5 years in prison for first offenders and up to 35 years in prison for repeat offenders. First-time offenders who were in possession of amounts of the drug below the threshold of presumption of sale are eligible for a 240-day parole sentence. All other offenders must serve jail time for drug trafficking.
Defenses Against Charged with Another Person’s Prescription Drug
Criminal defense attorneys attack prescription drug charges by demonstrating that 1) the defendant did not knowingly possess the prescription drug; 2) the drug found on the defendant was not actually a prescription drug; and 3) raising various constitutional violations.
Issues relating to possession
In order to obtain a conviction on a prescription drug related offense, the prosecution must prove both that the defendant knew he or she was in possession of the prescription drug and that the drug found on the defendant was in fact a prescription drug. The most straightforward way for the prosecution to prove the defendant had knowledge of the drugs is if it can prove that the defendant had actual possession of the drug, meaning the prescription drug was found on the defendant’s person.
Another way the prosecution can demonstrate that the defendant had knowledge of the prescription drugs if the defendant had constructive possession of prescription drugs, meaning that the drugs were found in places that were in the control of the defendant, such as in the defendant’s car or residence. However, it is much easier for a defense attorney to attack the prosecution’s contention that the defendant had knowledge of the prescription drugs in cases involving constructive possession since the prosecution must prove that another person did not place the drugs in the defendant’s home or car.
Issues relating to confirming the drug is a prescription drug
The prosecution commonly needs to provide evidence of testing of the drug found in the defendant’s possession confirming the drug was in fact a prescription drug. In order to accomplish this, the prosecution must establish an unbroken chain of custody from the time the drug was seized from the defendant to the time the drug was tested. Additionally, the procedures the laboratory used to test the drugs will also likely come under scrutiny during the defense attorney’s cross-examination.
A defense attorney may raise a variety of constitutional violations in defense against prescription drug and trafficking charges. These may include issues such as
- Miranda rights violations:
These attacks relate to the improper recitation of the defendant’s Miranda rights.
- Involuntary confessions:
If police coerce a defendant into admitting to the commission of a crime by force, intimidation, trickery or other means, then the defendant’s Fifth Amendment right against self-incrimination may have been violated.
- Illegal searches and seizures:
If police lack probable cause to search a defendant’s home, car or person, then all of the evidence retrieved as a result of that search may be thrown out, potentially making prosecution of the defendant impossible or extremely difficult.
- Denial of right of counsel:
If police deny a defendant access to counsel upon request before questioning or fail to advise the defendant of the right to counsel, any information obtained from the defendant during the question may be excluded from evidence.
Hypothetical Prescription Drug Charge Scenarios
- Hypothetical #1:
A police officer stops a defendant after a routine traffic stop. The defendant is driving a car owned by a family member. The officer observes signs the defendant is under the influence and reasonably suspects the defendant may be in possession of illegal prescription drugs. Officers search the car and find a large quantity of prescription drugs in a secret compartment in the trunk belonging to various people. The defendant is charged with Sale and Transportation of Drugs for Sale. The defendant argues that she had no knowledge of the drugs in the trunk and that someone else placed them there. The prosecution is unable to rebut the defendant’s assertion, and the defendant is acquitted by the jury after trial.
- Hypothetical #2:
A defendant has obtained a large quantity of drugs and is storing them in his home. One night, a police officer knocks on the door and demands to search the defendant’s residence. The defendant refuses to allow the officer to search his home. The officer has no warrant but proceeds to search the residence anyway and finds the drugs. The defendant is charged with Possession of Dangerous Drugs for Sale. The defendant argues that the search was illegal and files a motion in limine to exclude all of the evidence found by the officer. Finding that the officer had no probable cause or warrant to search the defendant’s residence, the judge grants the defendant’s motion and the charges against him are dismissed.