What is Possession of Marijuana?
A.R.S. § 13-3405 makes it a crime to possess marijuana in Arizona, and the state can charge this crime as either a felony or a misdemeanor. Simple possession of marijuana for personal use is one of the most common crimes that defense attorneys see charged in court.Probation is usually an option for this type of charge, but even probation can come with jail time and fines. In some Arizona courts, people charged as first-time offenders may also be eligible for a diversion program, which would allow them to get their charges dismissed.
The state can also bring more serious charges under this law. Possession of marijuana for sale or even personal possession of large quantities of marijuana are felony crimes under ARS 13-3405 that carry harsh penalties including prison time.
No matter what type of crime you have been charged with, however, there are still a variety of defenses that we can use to fight your charges.
A.R.S. § 13-3405 Defined
Arizona’s possession of marijuana statute covers a variety of circumstances where it is illegal for a person to possess marijuana. The law covers not only simple possession of marijuana for personal or recreational use, but it also covers more serious offenses such as possession of marijuana for sale or the transportation of marijuana.
There are four different subsections to the Arizona marijuana statute. Each criminalize a specific kind of marijuana possession.
ARS 13-3405 states that a person shall not knowingly:
- ARS 13-3405(A)(1): Possess or use marijuana. Class 6, 5, or 4 felony.
- ARS 13-3405(A)(2): Possess marijuana for sale. Class 4, 3, or 2 felony.
- ARS 13-3405(A)(3): Produce marijuana. Class 5, 4, or 3 felony.
- ARS 13-3405(A)(4): Transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana. Class 3 or 2 felony.
Depending on how the prosecutor charges ARS 13-3405, the accused may be facing anything from a class 2 felony to a class 1 misdemeanor. All crimes are serious, with the potential to impact your life in many ways. But the severity of the charges depends on the subsection of the law under which you have been charged.
Does the Amount of Marijuana Matter?
Yes. While the possession of marijuana in any amount is illegal, the weight of the marijuana the police confiscate determines how the prosecutor can charge the crime. As the weight of the marijuana possessed increases, the level of felony increases as well. A class 6 felony is the least serious felony, whereas a class 2 felony is very severe.
The level of felony for simple possession of marijuana changes based on the weight as follows:
- Class 6 felony: Less than two pounds.
- Class 5 felony: Between two to four pounds.
- Class 4 felony: More than four pounds.
If the crime is charged as possession of marijuana for sale, the following weight determines the felony level:
- Class 4 felony: Less than two pounds.
- Class 3 felony: Between two to four pounds.
- Class 2 felony: More than four pounds.
Production of marijuana can be categorized based on these weight ranges:
- Class 5 felony: Less than two pounds.
- Class 4 felony: Between two to four pounds.
- Class 3 felony: Between more than four pounds.
Transportation of marijuana is fall under the following felony classifications:
- Class 3 felony: Less than two pounds
- Class 2 felony: Anything more than two pounds.
The simple possession of marijuana is considered the least serious type of crime associated with A.R.S. § 13-3405. Whereas, the transportation of marijuana carries especially harsh penalties. An arrest for the transportation of anything over two pounds of marijuana is classified as a class 2 felony, which is the highest-level felony except for very severe crimes like murder.
Arizona clearly takes transportation of marijuana charges very seriously as well as any drug trafficking charge.
Penalties for Possession of Marijuana
The penalties for a possession of marijuana charge differ depending on a number of factors.
The first factor is the type of felony that the prosecutor has charged. Simple possession of marijuana is usually charged as a class 6 felony or a misdemeanor. More serious marijuana offenses may be charged as higher-level felonies.
The second factor is the number of historical prior felonies convictions the accused has on his record. While a person charged with a first-time drug offense may be eligible for probation, a person with more prior felonies may be facing more serious prison time.
Each class of felony and misdemeanor carries a range of potential penalties. First-time felony offenders faces the following range of penalties:
- Class 2 felony: 2 to 12.5 years in prison.
- Class 3 felony: 2 to 8.75
- Class 4 felony: 1 to 3.75
- Class 5 felony: .5 to 2.5
- Class 6 felony: .33 to 2
Prison ranges for second-time felony offenders include:
- Class 2 felony: 4.5 to 23 years
- Class 3 felony: 3.25 to 16.25
- Class 4 felony: 2.25 to 7.5
- Class 5 felony: 1 to 3.75
- Class 6 felony: .75 to 2.75
For third-time felony offenders, the ranges increase further:
- Class 2 felony: 10.5 to 35 years
- Class 3 felony: 7.5 to 25
- Class 4 felony: 6 to 15
- Class 5 felony: 2.25 to 5.75
- Class 6 felony: 1 to 3.75
A simple possession of marijuana charge that involves less than two pounds may be charged as a class 1 misdemeanor. Here is the potential jail term for this crime:
- Class 1 misdemeanor: Up to 6 months in jail
For misdemeanor offenders and for first-time felony offenders, probation may also be an option. All the potential punishments can also come with fines and court surcharges, as well as the requirement to attend court-ordered treatment classes.
This is My First Offense: Can I Get Probation?
Yes, you may be eligible for probation.
Under what is known as “Prop 200” in Arizona’s drug laws, any person charged for any possession of marijuana offense is eligible for probation if this is their first or second simple possession charge. This includes simple possession, transportation, manufacturing, and sale.
If the charge is for simple possession of marijuana only, then the charge is probation eligible (i.e., you may be placed on probation rather than receive prison time) even if this is not your first felony offense.
If you have been convicted twice of simple possession for any drug, then you are not eligible for probation.
What is “Diversion”? Can I Get My Case Dismissed?
If you have been charged with simple possession of marijuana and this is your first offense, you may be eligible for what is called a “diversion” program. Diversion programs are offered by some counties and municipal courts in Arizona for first-time offenders. Essentially, diversion offers you the opportunity to complete certain court-ordered counseling classes in order to get your case dismissed.
There is no legal requirement that the prosecution offer diversion courses. However, many prosecutor’s offices have adopted diversion programs in order to focus on rehabilitating first-time offenders. Diversion is especially popular for simple drug possession charges because it is a victimless crime.
The Maricopa County Attorney’s Office (MCAO) uses a company called the Treatment Assessment Screening Center, TASC for short, for its drug diversion programs. There are a number of factors the County Attorney will look at to decide if a person is eligible for TASC.
Under MCAO’s charging policies released in 2020, a person arrested for possession of marijuana may also be eligible to have their charges dismissed, if the person obtains a valid medical marijuana card prior to a particular court hearing called the Initial Pretrial Conference (IPTC).
It may also be possible to have the prosecutor “turn down” the case (in other words not file charges at all even after they have been submitted by the police) if the person obtains their medical marijuana card before charges are filed. You will want to speak to a defense attorney that handles pre-charge investigations to help you pursue this defense strategy. We have successfully used this strategy with previous clients to help them avoid criminal charges entirely.
Defenses to Possession of Marijuana
- Medical Marijuana Card: The Arizona Medical Marijuana Act legalizes the use of marijuana if the possessor holds a valid medical marijuana card.
- Lack of Knowledge: A possession of marijuana charge requires that you “knowingly possess” marijuana. If the prosecution cannot prove beyond a reasonable doubt that you knew of the presence of marijuana, then you should be acquitted of the marijuana possession charge.
Example: If a friend gives you a package to hold, and you do not know what is inside the package, the you do not have the required criminal intent to “knowingly” possess the contents of the package–even if it later turns out that the package contains marijuana. The same is true if you are driving somebody else’s car and there are illegal drugs in the glove box. The drugs might be easily accessible so that you technically “possess” the marijuana; however you do not possess it “knowingly.”
- No “Possession”: In Arizona, the legal definition of “possession” means to have something in your “physical possession” (i.e., holding it in your hand or having it in your pocket) or that you have what is called “dominion or control” over the item. The state might try to prove that you possessed illegal drugs that have been found in your house or in your car because, even though you were not holding them at the time, you could easily have accessed them and thus exercised “control” over the drugs. However, there are circumstances where possession might be complicated to prove. This can occur when you don’t have the ability to access the drugs.
Example: You share an apartment with your roommate and each of you sleep in separate rooms. The roommate may possess marijuana and you know of its existence. However, the drugs are kept in a room that your roommate locks and you don’t have access to. Under these conditions, you don’t “possess” the marijuana because you don’t exercise “dominion or control” over it.
- Lack of evidence: The prosecution carries the burden of proving a criminal case “beyond a reasonable doubt.” In marijuana possession cases, a skilled defense attorney can challenge the state’s evidence through a variety of ways to fight your charges. The evidence can be attacked in a variety of ways, such as pointing out flaws in the police investigation, inconsistencies between the police report and body cam footage, or contradictory statements from witnesses.
- Constitutional violations: Under the US and Arizona Constitutions, everybody possesses certain fundamental rights to be free from unlawful searches and seizures as well as a right to speak to an attorney. If the police violate these rights, then the evidence they gathered because of this violation, such as the illegal drugs, may be tossed out and cannot be used against you. Also, if the police violated your right to counsel, your case may be eligible for complete dismissal.
How Salwin Law Group Can Help You
If you have been charged with possession of marijuana under ARS 13-3405, hiring an experienced drug crime lawyer can make the difference. There is no substitute for experience, and Stewart Salwin has handled hundreds of drug crimes cases as a prosecutor and defense attorney.
Don’t face criminal charges alone. We offer free consultations and can discuss your case with you today. Together we can help you get your life back.