Have You been Arrested on a Marijuana Charge?
Many people assume that possession of marijuana, especially small amounts, is a relatively minor offense. While it is true that in some states the legislatures have “de-criminalized” the use and possession of small quantities of marijuana, and treat it as a violation (less serious than a misdemeanor), that is absolutely not the case in Arizona. The marijuana laws in Arizona, and the penalties that may result from a conviction, are some of the harshest in the United States. In fact, illegal possession of any amount of marijuana is a felony in this state, which is exactly why you need a marijuana defense lawyer
At The Feldman Law Firm, we represent clients charged with marijuana and other drug offenses on a regular basis. Marijuana defense lawyer, Adam Feldman, founder of the firm, has years of experience as a criminal defense attorney, as well as being a former prosecutor in the Maricopa County Attorney’s Office. His skills as a trial attorney are second to none, and he is dedicated to providing the best possible defense to his clients, no matter what the charges against them.
What About the Medical Marijuana Act?
You may be aware that, with the passage of Proposition 203 (the Arizona Medical Marijuana Act) in 2010, Arizona became one of more than a dozen states to legalize marijuana for medical use under certain very specific conditions. That law, however, has no effect upon the non-prescription possession or use, or, except in the case of a licensed dispensary, the possession for sale, sale or manufacture or distribution of marijuana. Moreover, marijuana remains a Schedule I drug under the federal Controlled Substances Act (21 U.S.C. § 812), which means that marijuana, according to the laws of the United States, has a high potential for abuse, has no currently accepted medical treatment value, and there is no accepted safety level or standard for its use under medical supervision.
You may find these facts to be incongruous, and they certainly appear to be. However, if you are charged with a marijuana offense in Arizona, theoretical arguments concerning alternative views on the drug will not get you very far. You need to understand precisely what you’re up against, and that requires that you retain the services of a highly skilled marijuana defense attorney with experience defending these types of cases.
Call or email us today for a free consultation.
Remember that the Medical Marijuana Act provides, on the state level, that although marijuana can be possessed in small quantities, the circumstances under which the act applies are narrow. In order to qualify for medical cannabis use, you need to possess a medical marijuana registry identification card, receive a valid medical prescription, and obtain the substance from licensed medical marijuana clinics or dispensaries. In order to obtain a registry card, you must suffer from one or more of a number of debilitating medical conditions, including cancer, glaucoma, HIV, hepatitis C, ALS, Crohn’s disease, Alzheimer’s disease, chronic pain, severe nausea, epilepsy or other seizure disorder, severe muscle spasms, or other condition specified in the regulations adopted pursuant to the act. In addition, you may be entitled to possess marijuana if you are a designated caregiver or a nonprofit medical marijuana dispensary agent who has been issued a valid registry identification card.
What is the Definition of Marijuana under Arizona Law?
Under A.R.S. 13-3401, marijuana is defined as follows:
“all parts of any plant of the genus cannabis, from which the resin has not been extracted, whether growing or not, and the seeds of such plant. Marijuana does not include the mature stalks of such plant or the sterilized seed of such plant which is incapable of germination.”
Cannabis, in turn means the resin from the cannabis plant, and any compound, manufacture, salt, derivative, mixture or preparation of the plant. It also includes tetrahydrocannabinol (THC). Marijuana is also defined under the Arizona Uniform Controlled Substances Act, A.R.S. 36-2501.
What are the Penalties for Illegal Marijuana Use, Possession, Sale and Trafficking?
The following are the basic criminal laws in Arizona regarding marijuana. The penalties listed are for first time offenders, and do not include aggravating factors that may lengthen the possible sentence.
A.R.S. 13-3405 provides that the following are criminal acts in Arizona, if done knowingly:
- Possession or use of marijuana;
- Possession of marijuana for sale;
- Production of marijuana; and
- Transportation for sale, importation into Arizona, offering to transport for sale or import into Arizona, selling, transferring or offering to sell or transfer marijuana.
As noted above, the penalties for a conviction even for a first time offender can be substantial. The level of the offense is largely a function of the particular marijuana threshold set forth in the statute:
- Use or possession (under two pounds). This is a class 6 felony carrying a maximum sentence of 1.5 years in prison.
- Use or possession (two pounds to under four pounds). As a class 5 felony, the prison sentence may be up to 2 years.
- Use or possession (four pounds or more). Class 4 felony, with a potential prison sentence of up to 3 years.
- Possession of marijuana for sale (under two pounds). Class 4 felony. Up to 3 years in prison.
- Possession of marijuana for sale (two pounds to under four pounds). Class 3 felony. Up to 7 years in prison.
- Possession of marijuana for sale (over four pounds). Class 2 felony. Up to 10 years in prison.
- Production (cultivation) of marijuana (less than two pounds). Class 5 felony. Up to 2 years in prison.
- Production (cultivation) of marijuana (two pounds to under four pounds). Class 4 felony. Up to 3 years in prison.
- Production (cultivation) of marijuana (over four pounds). Class 3 felony. Up to 7 years in prison.
- Trafficking in marijuana (under two pounds). Class 3 felony. Up to 7 years in prison.
- Trafficking in marijuana (two pounds or more). Class 2 felony. Up to 10 years in prison.
In addition to possible prison time, the marijuana law subjects a defendant convicted of a marijuana crime will be assessed a fine of not less than $750 or three times the value of the marijuana involved in the case, whichever is greater. This fine may not be suspended by the judge in the case.
Certain factors may increase the classification level of the offense, including possession, use, sale or production of marijuana in a drug-free school zone. In that case, the presumptive, minimum and maximum sentences otherwise applicable to the offense are increased by one year. In addition, the minimum fine increases to $2,000.
Are There Alternatives to Incarceration?
There are alternatives to prison sentences that are available in Arizona. The first is probation, which is authorized under A.R.S. 13-901.01:
“Notwithstanding any law to the contrary, any person who is convicted of the personal possession or use of a controlled substance or drug paraphernalia is eligible for probation. The court shall suspend the imposition or execution of sentence and place the person on probation.”
While the law is encouraging for those convicted of personal possession or use of marijuana, there are certain limits on its applicability. The first such limit is that anyone convicted of, or under indictment for, a violent crime is not eligible for probation. Violent crime is defined as any crime resulting in death or physical injury, as well as any crime involving the use of a deadly weapon or dangerous instrument. Second, the probation statute only applies to personal use and possession – it does not apply to possession for sale, production, manufacturing or transportation of marijuana. Finally, you are not eligible for probation under this section:
- If you have been convicted three times of personal possession of a controlled dangerous substance (CDS) or drug paraphernalia;
- If you refused drug treatment as a term of your probation;
- If you previously rejected probation; or
- If you have been convicted of personal possession or use of a CDS, and the offense involved methamphetamine.
Another possibility is the Treatment Assessment Screening Center (TASC) diversionary program. TASC is a non-profit organization that provides drug testing, drug education and counseling. This program offers first-time drug offenders involving a small amount of marijuana an opportunity to participate in a deferred prosecution program. In order to qualify, you must be screened by TASC as a condition of your eligibility and permitted to enter the program. Acceptance is not automatic. If you fail to complete the program, your order of conviction will be reinstated, and you will be sentenced accordingly. Upon successful completion of the TASC program, upon recommendation of TASC and with the concurrence of the court, your marijuana charge can be dismissed.
What Defenses Can Be Raised to a Marijuana Charge?
There are numerous defenses that can be raised in a marijuana case in Arizona. Some of the possible responses to a marijuana charge are:
- Illegal search and/or detention. Under the Fourth Amendment, we have the right to be free from illegal searches and seizures. Since in most marijuana cases the evidence includes marijuana seized from the defendant, the circumstances leading up to the search and/or seizure are always relevant. If you are stopped on the street, or in your vehicle, for example, and the stop was pretextual and not based upon reasonable suspicion, the use of any evidence obtained as a result of the stop can be attacked. Similarly, if your stop was the result of racial profiling or other discriminatory factors, the fruits of the search can be excluded by the judge as evidence in your case.
- Invalid search warrant. The fact that a search warrant was issued in your case does not necessarily mean that the warrant was valid or that the search conducted pursuant to the warrant was legal. If the warrant was issued without probable cause; or the information provided to obtain the warrant was false; or the information provided to obtain the warrant was obtained from unreliable “confidential informants”; or the search went beyond the scope of the warrant; or the warrant was not executed within a reasonable period after it was issued (a “stale” warrant), then the warrant can be attacked, and, if the attack is successful, any evidence obtained from its execution will be inadmissible.
- The marijuana was not in your possession. In some situations, a defendant can be charged with possession of marijuana when it was found not on his person, but, for example, in his vicinity. This can occur in a car, in a home, or even on the street. But mere proximity to the marijuana, without more, does not prove possession.
- You did not knowingly possess marijuana. There are numerous circumstances under which you can possess marijuana, but be unaware of that fact. If, for example, you are driving in a vehicle and another occupant places marijuana in your purse or jacket pocket during a traffic stop, your possession is not knowing, and therefore does not constitute a violation of the marijuana possession laws.
- Under the Arizona Medical Marijuana Act, if you meet the requirements, and are lawfully in possession of marijuana, it is not illegal to possess, and, in the case of a qualifying patient, to use marijuana. However, as we noted above, the medical marijuana laws are very specific, and in order to possess and/or use the drug legally, you must meet all the conditions set forth in the statute. This means that you must be legally entitled to possess or use marijuana, and that it was obtained from a licensed facility. In addition, the “allowable amount” that can be legally possessed is two and one-half ounces, and possessing or using marijuana in public, on school grounds or in a correctional facility, and smoking marijuana in any public place or on public transportation, are crimes even if you otherwise qualify for possession and use under the Medical Marijuana Act. Finally, remember that while the Arizona medical marijuana statute may be a defense under state law, possession of marijuana nevertheless continues to be a crime under federal law.
- Entrapment. Marijuana charges are sometimes the result of a sting or reverse-sting investigation or operation involving undercover marijuana sales, in which the illegal conduct of a defendant may have been the result of prompting by law enforcement. In order to succeed with a police entrapment defense, you must be able to show that (a) it was law enforcement personnel, and not you, who conceived of the idea to commit the crime; (b) prior to the prompting or encouragement of the police, you were not inclined to commit the illegal act; and (c) the police actually encouraged or coerced you into committing the offense.
Can Marijuana Lead to a DUI Charge?
The short answer to this question is yes. Marijuana can lead to a charge of driving under the influence (DUI). A.R.S. 28-1381 provides as follows:
“A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
- While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree. . . .
- While there is any drug defined in section 13-3401 or its metabolite in the person’s body.”
If you are impaired as a result of the use of marijuana, or even if you are not impaired but have marijuana in your system, you can be found guilty of DUI. Use of prescription marijuana under the Medical Marijuana Act is a defense under subsection 3 above, but does not provide a defense if you are found to have been impaired to even the slightest degree while driving a vehicle.
If you have been charged with an offense relating to marijuana, remember that even though many people do not consider the use or possession of marijuana to be a serious matter, the State of Arizona treats marijuana in most instances like hard drugs such as heroin and cocaine. Even possession of a small amount of marijuana is a felony.
At The Feldman Law Firm, we represent clients charged with drug crimes, including possession, use, possession for sale, transportation and trafficking. We are experts in the laws concerning marijuana, as well as defenses to marijuana charges, including marijuana DUI offenses. And we are fully familiar with the Medical Marijuana Act and its implications. As a former prosecutor, Adam Feldman understands that while marijuana charges are treated harshly under Arizona law, there is substantial room for negotiating with the state on marijuana charges, and there are alternatives to incarceration even in the event of a guilty plea. Mr. Feldman has years of trial experience, and he will proceed to trial where it is in the best interests of his client.
No matter what the particular marijuana offense is involved in your particular case, trust an experienced marijuana defense attorney. Remember that you future and your freedom are at stake. Contact us today for a free consultation.