Marijuana has a long and complicated history in the U.S. It is still categorized as a Schedule 1 drug under federal law. Marijuana also remains illegal under Arizona law, even though a handful of other states have legalized marijuana for recreational use. Arizona is one of almost half of the states that have approved marijuana for medical use. Medical marijuana was legalized under the Arizona Medical Marijuana Act, which went into effect in 2010.
Medical marijuana patients can legally possess marijuana if they are qualifying patients, with a qualifying medical condition that has been diagnosed by a doctor. They then have to obtain an Arizona Medical Marijuana Registry ID card. After that, medical marijuana patients can possess up to 2.5 ounces of marijuana and can grow up to 12 marijuana plants. If the defendant is not a certified medical marijuana patient, dispensary agent, or caregiver, they can face criminal charges.
Under ARS 13-3405, the possession, use, possession for sale, production and transportation of marijuana is against the law. The criminal penalties depend on the amount of marijuana involved, and what the defendant was doing with the marijuana.
Simple possession is the lowest level offense. If the defendant possessed less than 2 pounds of marijuana, they may be charged with a class 6 felony. Possession of 2 pounds or more can carry greater penalties. In some cases, prosecutors may grant the defendant probation for a misdemeanor violation. The defendant may have to attend a drug education class, and perform community service.
Possession of marijuana for sale is a class 2, 3, or 4 felony. Marijuana production is a class 3, 4, or 5 felony. Transport for sale, import into Arizona, or offering to transport marijuana can be charged as a class 2 or 3 felony. The class of felony is based on the amount of marijuana involved. In some cases, the defendant can receive probation for a felony marijuana charge.
Under ARS 13-3402, “a person who knowingly possesses, sells, transfers or offers to sell or transfer peyote is guilty of a class 6 felony.” However, Arizona provides a defense for some people to use peyote as part of their religion. However, proving that the peyote is intended for religious use can be complicated. The defendant has to show that peyote is for use in connection with the bona fide practice of a religious belief, as an integral part of a religious exercise, and in a manner not dangerous to public health, safety or morals.
Under ARS 13-3406, possession of a prescription-only drug without a valid prescription is a criminal offense. Possession is a class 1 misdemeanor. Possession for sale is a class 6 felony. Some prescription drugs can also be categorized under Arizona law as dangerous drugs, which can carry more serious penalties.
Under ARS 13-3403, it is against the law to breathe, inhale, sell, or offer to sell a vapor-releasing substance. Businesses who sell these chemicals also have restrictions on who they can sell to, and have to follow specific rules when carrying these chemicals. This includes certain glues, aerosol spray, acetone, benzene, alcohols, and other chemicals. Also known as huffing, inhaling vapor often involves individuals spraying or pouring a chemical into a rag or bag to inhale. Vapor-releasing drug offenses are a class 5 felony. In some cases, defendants may receive probation
Under ARS 13-3407, the possession, use, possession for sale, manufacture, possession of equipment or chemicals to manufacture, or transportation of dangerous drugs is a criminal offense. Drugs are classified as dangerous depending on their chemical composition. Under Arizona law, LSD, MDMA, GHB, methamphetamines, and PCP are considered dangerous drugs. Possession of dangerous drugs is a class 4 felony. Sale, manufacture, and transportation of dangerous drugs can be charged as a class 2 felony. Subsequent drug offense convictions can result in a longer prison sentence.
Under ARS 13-3408, the possession, use, possession for sale, manufacture, possession of equipment or chemicals to manufacture, or transportation of narcotic drugs is a criminal offense. Under Arizona law drugs such as OxyContin, Percocet, heroin, and cocaine are classified as narcotic drugs. Simple possession of narcotic drugs is a class 4 felony. Sale, manufacture, and transportation of narcotic drugs can be charged as a class 2 felony, with subsequent drug offenses leading to increased prison time.
Federal Drug Charges
Drug crimes can be charged as state or federal offenses. Generally, if federal law enforcement officers are involved, the defendant will be charged with a federal drug crime. Here in southern Arizona, a number of individuals are arrested by federal agents for drug charges and face federal criminal prosecution. Federal drug offenses have serious consequences, with prison time to be served in a federal penitentiary.
The specific penalties for federal drug charges will depend on the what schedule drug is involved. The federal government regulates drugs under the Controlled Substance Act (CSA). Drugs are separated into five schedules based on their perceived potential for abuse, medical uses, and how safe they are perceived to be.
These drugs are categorized as having a high potential for abuse, with no accepted medical value in the U.S. Marijuana is still included on this list as a Schedule 1 drug, despite it having been legalized for medical use in almost half the states, including Arizona. Marijuana is still treated as a Schedule 1 drug, along with heroin, MDMA, mescaline, LSD and GHB.
Schedule 2 drugs have a high level risk of abuse, but also have a currently accepted medical value. This includes drugs methamphetamines, OxyContin, Percocet, fentanyl, morphine, and codeine.
These drugs are considered to have a currently accepted medical use, but still have some potential for abuse. Schedule 3 drugs include some appetite suppressants, depressants, and steroids.
Schedule IV and V
Schedule 4 and 5 drugs have a lower potential for abuse than Schedule 3 drugs. These include a number of commonly prescribed drugs such as prescription cough medicine, Xanax, Klonopin, Lunesta, Valium, Zantyl, Ambien and Ativan.
The manufacture, distribution, or possession with the intent to distribute drugs can result in a minimum 5-year sentence for smaller amounts of drugs, or a minimum 10-year sentence for a greater quantity. An individual can face 10 years in prison if the offense involves:
- 10 g or more of LSD;
- 1 kg or more of heroin;
- 5 kg or more of cocaine;
- 100 g or more of pure PCP;
- 280 g or more of crack;
- 50 g or more of methamphetamines; or
- 1000 kg or more of marijuana.
A second federal drug offense can result in a 20-year minimum sentence, with a third offense carrying the possibility of life in prison. Other factors can increase the sentence, including whether someone was injured in the commission of the drug crime. Attempted drug trafficking or conspiracy to traffick in drugs can be treated the same as if the defendant had committed the crime themselves.
Defenses to Drug Crimes
There may be a number of defenses available if you are charged with a drug crime. Police and law enforcement are required to abide by search and seizure procedures; however, sometimes they bend the rules. When the police violate a person's constitutional rights against unreasonable search or seizure, the evidence gathered can be thrown out of court, leaving the prosecutor with no case. If your constitutional rights were violated by the police, your experienced criminal defense attorney can fight to have the charges against you dropped.
The defenses available will depend on your specific case. Your attorney will be able to identify the possible defenses in your case. An arrest does not have to lead to a conviction. You don't have to plead guilty just because the prosecutor says you have no case. An experienced criminal defense attorney will fight for you, to keep you out of jail.