Watch this short video where David explains Possession Or Use Of A Dangerous Drug (ARS §13-3407) & Possession or use of a Narcotic Drug (ARS 13-3408) in Arizona:
ARS §13-3407 “Possession or Use of a Dangerous Drug” & “Possession or Use of a Narcotic Drug” (ARS 13-3408) prohibits a person from knowingly possessing or using a dangerous drug. A Dangerous Drug normally means any prescription narcotic or any other drug which is not marijuana. Most often these are drugs such as methamphetamine, cocaine, fentanyl, opium, mushrooms, or some type of prescription for either a pain killer or an antidepressant (without possession of a prescription).
Possible Punishment for Possession or Use of a Dangerous Drug or Possession or Use of a Narcotic Drug – Prop 200 Eligible
A violation of this section is a class four (4) felony. If the drug is not a methamphetamine or amphetamine, and the defendant has never been convicted of a felony, the judge has the option of classifying the crime as a class one (1) misdemeanor.
However, under Proposition 200, certain drugs qualify for “probation only” sentences for first and second nonviolent possession offenses. If the drug qualifies under Prop 200 (methamphetamines do not qualify), the defendant may not be sentenced to prison or jail until her third “possession only” conviction; the only possible sentence is a term of probation. However, if you fail on probation, you can be taken into custody and forced to sit from two to four (2-4) weeks until the judge reinstates your probation and releases you. Normally, we can resolve these charges by either pleading them down to a misdemeanor (which can carry up to six (6) months in jail if you violate probation), or to a “TASC” resolution.
TASC is an Adult Deferred Prosecution Program, and its length can be anywhere from one to two (1-2) years. It requires a minimum of six (6) months of group counseling (once per week); two (2) self-help meetings per week for six (6) months (usually AA or NA); one (1) three-hour drug and alcohol abuse education seminar held on a Saturday; a minimum of one (1) office visit per month; and adherence to a urine testing schedule. The payment and fees run anywhere from $2,000-$2,500. The TASC admissions people are very selective on whom they allow into these programs, and it is very important to have an experience attorney with you to help facilitate a “TASC offer”. At DM Cantor, our Arizona Drug Crimes Lawyers have dealt many times with the TASC admissions personnel and we can easily assist you from admission to completion of this program. Once it is complete, your record will reflect a total dismissal of the Possession or Use of a Dangerous Drug charge.
If a defendant has already undergone the TASC program, or they have been previously convicted of a drug charge, then they are deemed to be “TASC ineligible”. However, a person is still “Prop 200″ eligible if they only have one (1) prior low level drug conviction, or they have only done TASC one (1) prior time. A defendant is ineligible for “Prop 200″ probation only sentencing, and is susceptible to jail and or prison time if the prior drug conviction was for sale or transportation of drugs, promoting prison contraband, or driving while under the influence of drugs, or any methamphetamine drug related charges. Additionally, if the prosecutor does find that you have two prior felony drug convictions, regardless of the type, then they will not allow you to be Prop 200 eligible for a third offense.
Punishment for Drug Possession – Not Proposition 200 Eligible
If the defendant is not “Prop 200″ eligible, then the sentencing range on a first offense class four (4) felony conviction for a number of drugs that is below the statutory threshold could include the following sentences:
- Probation with zero (0) days in jail up to one (1) year in jail, or prison of one (1) year to three and three-quarters (3.75) years of incarceration.
- If a person has one (1) allegeable historical prior felony conviction, then the “prison only” range is two (2) years to seven and one half (7.5) years in prison.
- If the person has two (2) allegeable historical prior felony convictions, then the “prison only” range is six (6) years to fifteen (15) years in prison.
If the defendant is found to be possessing an amount of drugs that is at, or above the statutory “threshold” amount, they are ineligible for probation and a sentence requires a mandatory prison sentence even on a first offense. Some common threshold amounts are nine (9) grams for methamphetamine, nine (9) powdered grams of cocaine or three quarter (3/4) gram in rock (crack) form, one (1) gram of heroin, a half (1/2) millimeter of LSD or fifty (50) dosage units (blotter form) and four (4) grams or fifty (50) milliliters of PCP. In addition, if the defendant has the statutory threshold amount of the Dangerous Drug, it creates a presumption that the defendant has intent to sell the drugs, which bumps up the felony range and length of potential incarceration even further.
In addition, anyone convicted of Possession of a Dangerous Drug must pay a fine of $1,000 or three times the value of the dangerous drugs involved, whichever is greater. If the defendant is sentenced to probation, he must also perform at least 360 hours of community service / restitution in addition to any other requirements of probation.
Possible Defenses for Possession or Use of a Dangerous Drug or Possession or Use of a Narcotic Drug
The key to defending against any “possession” charge is showing that the defendant did not “knowingly” possess any drugs or paraphernalia (i.e., “Lack of Knowledge”). Many times we can demonstrate that what was found in a person’s vehicle or inside their house or apartment was left behind by somebody else like a roommate, friend, family member, or guest. The defendant was completely unaware that there were drugs in the area. When defending against allegations of the “use” of the drugs, we will need to challenge any claims by the officer of signs and symptoms of drug impairment and refute the claim that he could “smell” drugs in the air. This is accomplished by skillful cross-examination. Crucial to any possession or use charge is suppressing the drug evidence. Without this evidence, the prosecution’s case is very weak. It is also very important to thoroughly review the State’s chemical testing and laboratory procedures regarding the identification of the drug and the calculation of the amount of drug contained within the substance.
Additionally, because our law firm fights conviction from all angles, we would assert a wide range of defenses and challenges to constitutional violations that apply in all criminal cases. The possibilities are numerous and diverse. One of those we frequently assert is a “Miranda rights violation.” In Arizona, the standard of whether any incriminating statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, the “denial of right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their attorney, but is denied and questioning continues. Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case.
Depending on what else you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis/cloning hard drive procedures; forensic financial accounting reviews; etc.. Lastly, one of the most common defense tactics is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled Dangerous Drug lawyer to defend you who has knowledge of all the possible defenses to assert in your case.
Criminal Defense for Drug Charges
David Michael Cantor is an Arizona Drug Crimes Lawyer and a Certified Criminal Law Specialist, per the Arizona Board of Legal Specialization. In addition, the Firm and all of its lawyers are listed in the Bar Register of Preeminent Lawyers®. At DM Cantor, the majority of our Attorneys are ex-Prosecutors, and all of our Arizona Drug Crimes Lawyers know the system well. Contact DM Cantor if you have been charged with Possession or Use of a Dangerous Drug. Call any time, day or night 602-307-0808 for a Free Consultation. If you have another drug related charge or question, please contact us as we will be able to help.