FEL: Possession of Marijuana2018-07-16T00:12:14+00:00

Possession of Marijuana

Drug crimes are common in Arizona.  We have seen hundreds of drug cases ranging from simple possession, sale of drugs, manufacturing of drugs, and transportation of drugs.  The most common being simple possession.  The ranges of sentencing can vary wildly depending on the drug and the felony charged.

What are Arizona’s Laws for Drugs?

The laws on drugs in Arizona has four separate categories that we see most often: Marijuana, Dangerous Drugs, Narcotic Drugs, and Prescription Drugs.

There are a few other categories but are not as common including Peyote, Nitric Oxide, Precursor Chemicals, and Vapor Releasing Toxic Substances.

However, crimes dealing with those classifications are not common.

What are the Charges for Marijuana?

Marijuana crimes are charged as possession or use; possession for sale; production of marijuana; and transportation of marijuana.  The state statute governing Marijuana is A.R.S. 13-3405.

What is Possession of Marijuana?

Arizona law says that a person cannot “knowingly possess or use marijuana.”  What this means is that if you are found with marijuana on your body, clothes, car, or elsewhere, you can be charged with possession of marijuana. 

What if Marijuana was found in my car but it did not belong to me?

In Arizona, with marijuana, this type of scenario can easily happen.  

You give your friends a ride and they drop some marijuana in your car before they leave.  

Or you are driving someone else’s car and they have marijuana stashed somewhere in the car.  

If charged with possession of marijuana under one of these circumstances, the state prosecutors would have to show you possessed marijuana by constructive possession.  

This is true if marijuana is found near you but not physically on your body.  This could be in a home, car, backpack, hotel room, or anywhere else you could store marijuana.

What are the penalties for Possession of Marijuana?

Possession of Marijuana has three different levels of classification.

Possession of marijuana is a Class 6 Felony if the amount charged is less than two pounds.

Possession of marijuana is a Class 5 Felony if the amount charged is between two pounds and four pounds. Possession of marijuana is a Class 4 Felony if the amount charged is greater than four pounds.

Penalties can include probation, drug treatment, jail, and prison.

These are wide ranging depending upon your background.

If you have never been convicted of a crime before and this is the first time you are being sentenced for a drug crime, you will be given probation, but you may also be eligible to participate in a diversion program.

The reason we know you will be given probation is because you are qualified for “Prop 200” or A.R.S. 13-901.01.

If you do not qualify for Prop 200 then you would be sentenced according to the sentencing guidelines in Arizona. The current Arizona sentencing guidelines can be found on this SENTENCING CHART but the relevant portion is:

A person would fall into category three repeat offender if they are not eligible for Prop 200 due to multiple prior felony convictions for drug offenses. This means a person with a simple possession of marijuana case could be facing up to 5.75 years in prison! You read that correctly 5.75 years for WEED!

If you are charged with possession of marijuana and the weight the charged marijuana is greater than two pounds you are looking at a more serious sentence. Above two pounds but below four pounds is a Class 5 felony and above four pounds is a class 4 felony. That chart can be seen here.

Possession of marijuana as a class 6 felony is also a felony that could be designated a misdemeanor at the time of sentencing.

For a class 1 misdemeanor you would still have the protections of Prop 200.

However, if you did not qualify for that you could be sentenced up to 6 months in jail.

For all cases sentenced to a misdemeanor a person would be required to attend eight hours of instruction on the nature and harmful effects of narcotic drugs, marijuana and other dangerous drugs on the human system.

What is “Prop 200” and how do I know if I qualify?

Proposition 200 or Prop 200 is a law that was passed to reduce the amount of jail and/or prison time a first time drug offender could face.

The reason behind the law was to try and highlight drug treatment rather than incarceration.

The intentions of the proposition was that drug addiction isn’t solve by incarceration. However, when you view the prison and jail population clearly that is not happening.

The law states that any “person conviction of 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.”

This means that any time you are charged and convicted of a drug crime for personal use or possession, it is mandatory that you receive probation and cannot be sent to prison.

A person is not qualified to be sentenced under this statute if they are charged and convicted with possession of drugs for sale, production, manufacturing, or transportation.

You cannot be sentenced under Prop 200 if you have ever been convicted of or indicted for a violent crime as defined in section A.R.S. 13-901.03. (We see this most with an assault conviction that resulted in an injury) You are not eligible to obtain the benefits of Prop 200 if you are charged with a possession case and any of the following apply:

  1. You have been convicted of personal possession of a controlled substance or drug paraphernalia more than two time. Third strike you are out.
  2. If you have refused drug treatment as part of the terms of probation.
  3. If you reject probation completely; essentially saying you would rather go to prison that to have probation.
  4. If the conviction of personal possession or use involves the drug methamphetamine.

Unfortunately, the legislature found methamphetamine to be such a problem in society that they excluded it from Prop 200. This a severe tragedy as so many people are addicted to methamphetamine.

You will also be required to participate in a “drug treatment or education program administered by a qualified agency or organization that provides such programs to persons who abuse controlled substances.”

What about a diversion program?

Many counties offer a diversion program the first time you are ever charged with a personal possession or use of a drug or paraphernalia.

The diversion program generally has two aspects: to ensure that you are not using drugs while on the program and to give you an educational class (or multiple classes) to help you battle your addiction.

In Maricopa County, that program is TASC. This program has two different programs: Marijuana program and everything else program.

For the marijuana program, you will be assigned an initial class which is usually scheduled about a month out from the date you are signing up.

The initial class is required in person at the TASC building located at 2302 North 7th Street, Phoenix, AZ 85006. This class lasts all morning.

You are required to bring your ID, paperwork, and a $150 money order. You will also take classes during this time. Some will be required one-on-one instruction as well as group classes.

You are required to have urine tests while on TASC. If you test positive for marijuana, drugs, or alcohol while on the program you will get rejected and run the risk of getting a conviction on your record.

The marijuana course is scheduled for 6 months. However, if you have clean tests and have paid all of the monies owed to TASC you can get done in 90 days.

Once you successfully complete TASC, your TASC manager will send the completion paperwork over to the Maricopa County Attorney’s Office (MCAO).

MCAO will then file a motion to dismiss with the Court and the charges will be dismissed. The total program costs with paying for instructions and the urine tests will set you back a little over $2,000.

What is the process when I am charged with Possession of Marijuana?

The process is started in one of two ways:

  1. You are arrested, taken to jail and given a court date; or
  2. You had police contact but either weren’t arrested or your court date did not happen and then you received a summons in the mail.

ARRAIGNMENT: The first court date you appear at is the Arraignment. At this hearing, a judge will read you the charges that are being filed against you, the range of penalties for those charges, your constitutional rights, and will enter a not guilty plea on your behalf. If it is charged as a misdemeanor the judge will give you the option of pleading guilty. SPEAK TO A LAWYER BEFORE PLEADING GUILTY! You will then be assigned another court date and be required to return to court. If you were arrested and taken to jail, this takes place while in jail. Generally, a first-time possession of marijuana charge will allow a person to get out of jail without posting a bail.

PRE-TRIAL CONFERENCE: Your next date is a pretrial conference, or status conference. Here, you will be given an opportunity to review the police reports and you or your attorney will be able to negotiate with the assigned County Attorney with regards to the outcome of your case. This is where you will see if you are eligible for the protections of Prop 200 or the diversion program. Usually there are two to three pre-trial conferences before there is a resolution.

CHANGE OF PLEA: If you have reached an agreement for resolution on your case, then your next Court date will be a change of plea date. If you entered into a diversion agreement, the judge will make sure you know that you are entering a deferred prosecution. If you are not entering a diversion program, you will enter your change of plea and be sentenced according to the guidelines discussed earlier.

TRIAL: If you do not reach a resolution with the State, then you will be headed towards trial. In our experience, on a Possession of Marijuana case, the State will motion the Court to designate the charge as a misdemeanor. They do this because you do not have a right to a jury trial if the charge is designated a misdemeanor. You will then have a trial where the judge makes the determination on the outcome.

SENTENCING: If you are found guilty at trial, or have entered into a plea agreement, your last court date will be for sentencing. At this phase the judge will determine what you will have to complete.