Possession or Use of Marijuana Arizona (A.R.S. § 13-3405 )
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Watch this short video where David explains Possession or Use of Marijuana in Arizona, then read about the Possible Punishments and Defenses for Possession of Marijuana.
Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §13-3405(A)(1), “a person shall not knowingly possess or use marijuana.”
This section of the statute is best understood as criminalizing the personal consumption of marijuana. In other words, any Possession or Use of Marijuana in Arizona is considered illegal. This includes the possession of marijuana flowers (or buds), wax, THC concentrates, and marijuana edibles.
A person will usually be charged with violating this section when the amount of marijuana they are found to be possessing or using is less than the “threshold” amount of two (2) pounds of marijuana. Meaning, if you are arrested with marijuana that is two pounds or above, you will face a higher penalty because at that amount the government presumes you are selling marijuana, and not just personally consuming it. It is an uphill battle trying to prove that you were not intending to sell when you are caught with an amount that is above the threshold amount. However, it can be done.
Punishment for Possession or Use of Marijuana – Prop 200 Eligible
Under the Arizona legislation Proposition 200 (i.e. “Arizona Prop 200″), judges are prohibited from sending first or second time nonviolent drug offenders to prison until their third conviction, even if convicted on felony drug violations. The judge may only sentence the defendant to a term of probation and mandatory drug treatment. 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 a “TASC” resolution.
TASC is an Adult Deferred Prosecution Program which takes three to six (3-6) months to complete. It is a program that if successfully completed, the charges against you will be dismissed. It will involve one (1) random urine test per month, one (1) three-hour drug and alcohol abuse education seminar held on a Saturday, and fees of anywhere from $300-$700. 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 Marijuana 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 completed, your record will reflect a total dismissal of the Marijuana possession charges in Arizona. 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 probation eligible under Prop 200.
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.
Punishments for non-Prop 200 eligible convictions
Marijuana less than two (2) pounds: Class six (6) felony ranges from the following:
- Probation with zero (0) days in jail to one (1) year in jail, or four (4) months in prison to two (2) years of incarceration.
- If the person has one (1) historical allegeable prior felony conviction, then the “prison only” range is nine (9) months to two and three quarters (2.75) years in prison.
- If the person has two (2) historical allegeable prior felony convictions, then the “prison only” range is two and one quarter (2.25) to five and three quarters (5.75) years of incarceration.
Marijuana two (2) or more pounds, but less than four (4) pounds: class five (5) felony rages from the following:
- Mandatory prison from six (6) months to two and one half (2.5) years of incarceration.
- If the defendant has one (1) allegeable historical prior felony conviction, then a second offense felony would require prison of anywhere from one (1) year to three and three quarters (3.75) years of incarceration.
- If the defendant has two (2) allegeable historical prior felony convictions, then a third offense felony would require prison anywhere from three (3) years to seven and one half (7.5) years of incarceration.
Marijuana four (4) pounds or more is a class four (4) felony.
- First offense of this nature carries mandatory prison of anywhere from one (1) year to three and three quarters (3.75) years incarceration.
- If the defendant has one (1) allegeable historical prior conviction, then a second offense felony would require two and one quarter (2.25) years to seven and one half (7.5) years in prison.
- If the defendant has two (2) allegeable historical prior felony convictions, then a third offense felony would require anywhere from six (6) years to fifteen (15) years in prison.
In addition, the defendant will have to pay a fine of $750.00 or three times the value of the marijuana, which ever amount is greater. If granted probation, the defendant must perform at least twenty-four (24) hours of community restitution.
If a person is granted probation for a misdemeanor violation of this section, he must attend eight hours of drug classes or perform twenty-four hours of community restitution.
Beware: Even if you received probation for your previous two felony Marijuana Possession Charges, they still count as prior historical felonies, and upon your third conviction, you will face a very high prison range sentence.
Defenses for Possession or Use of Marijuana
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 marijuana 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 you 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; 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 Marijuana lawyer to defend you who has knowledge of all the possible defenses to assert in your case.
Why Hire an Attorney for Possession of Marijuana
It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®). Also David Michael Cantor is an Arizona Marijuana 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 Marijuana Lawyers know the system well. For a Free Initial Consultation, call us at 602-307-0808.
Contact DM Cantor and speak to an Arizona Marijuana Lawyer. We will assist you with your Use or Possession of Marijuana case.