Updated: February 21, 2022
In some jurisdictions, a person charged with simple possession of narcotic drugs may be able to have their charges dismissed after completing a diversion program if they qualify for the program based on their past criminal record.
In addition to simple possession of narcotic drugs, ARS 13-3408 also criminalizes possession of narcotic drugs for sale and the transportation of narcotic drugs. While simple possession of narcotic drugs is a class 4 felony, possession for sale or transportation are both class 2 felonies and can lead to prison time even for first-time offenders.
If you have been charged with any crime under ARS 13-3408 for possession of narcotic drugs, it is important to protect your future and your freedom. Call the Salwin Law Group at 480-702-1789. Our drug crime defense lawyers can provide you with a free consultation and discuss defenses we have used to successfully fight these charges.
A.R.S. § 13-3408 Defined
Arizona law criminalizes the possession of narcotic drugs in a variety of situations. The most commonly charged crime under this statute is simple possession of narcotic drugs for personal use, which is classified as a class 4 felony. The statute penalizes the sale and transportation of narcotic drugs even more harshly, both of which are class 2 felonies.
There are seven different crimes that are classified under Arizona’s narcotic statute.
ARS 13-3408 states that a person “shall not knowingly”:
- ARS 13-3408(A)(1): Possess or use a narcotic drug. Class 4 felony.
- ARS 13-3408(A)(2): Possess a narcotic drug for sale. Class 2 felony.
- ARS 13-3408(A)(3): Possess equipment or chemicals for the purposes of manufacturing a narcotic drug. Class 3 felony.
- ARS 13-3408(A)(4): Manufacture a narcotic drug. Class 2 felony.
- ARS 13-3408(A)(5): Administer a narcotic drug to another person. Class 2 felony.
- ARS 13-3408(A)(6): Obtain a narcotic drug by fraud, deceit, or misrepresentation. Class 3 felony.
- ARS 13-3408(A)(7): Transport or sell a narcotic drug. Class 2 felony.
What is a “Narcotic Drug”?
So, what exactly qualifies a narcotic drug under Arizona law? Under Arizona law, there is a wide variety.
ARS 13-3401(20) provides a list of over 100 different drugs that are classified as “narcotics”.
Some of the most common narcotic drugs in Arizona include:
Penalties for Possession of Narcotic Drugs
If a person is convicted of violating ARS 13-3408, the penalties they face depend on 1) the level of felony of the crime and 2) the number of prior felony convictions on their record.
Each class of felony carries a range of potential penalties. Here is the range of potential penalties for a first-time offense:
- Class 2 felony: 2 to 12.5 years in prison.
- Class 3 felony: 2 to 8.75
- Class 4 felony: 1 to 3.75
If this is a second historic prior felony, the potential prison ranges are:
- Class 2 felony: 4.5 to 23 years
- Class 3 felony: 3.25 to 16.25
- Class 4 felony: 2.25 to 7.5
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
For those who receive probation for a violation of ARS 13-3408, they will receive the following mandatory penalties:
- Not less than $2000 or three times the value of the narcotic drugs seized in the case.
- 360 hours of community service.
What is the “Statutory Threshold” and Why Does It Matter?
If you have been charged with violating ARS 13-3401 under subsection 2 (possession for sale), 5 (administering drugs to another), or 7 (transportation of narcotic drugs), then you face enhanced penalties if the amount of drugs the police seize exceeds what is known as the “statutory threshold.”
In Arizona, the statutory threshold is an amount of drugs that is defined by law.
There are different statutory thresholds for each type of narcotic drug. For example:
- Heroin: 1 gram
- Cocaine: 9 grams
- Hydrolyzed cocaine or cocaine base: 750 milligrams
- Any other narcotic: Any weight having a value of over $1000
When the amount of the drugs exceeds the statutory threshold, then a person convicted under ARS 13-3408 will not be eligible for a suspension of their prison sentence, probation, pardon, or release until the person has served the full sentence imposed by the court.
Is Probation an Option?
Yes. If you’ve been charged with simple possession of narcotics (i.e., not possession for sale or transportation), then you may be eligible for probation.
An Arizona law known as “Prop 200” provides that, if you have been charged with simple possession of narcotic drugs, you must receive probation as long as this is not your third drug conviction.
If you are convicted for narcotic possession under Prop 200, you will receive probation even if this is not your first felony offense (usually prior felonies will result in mandatory prison time under Arizona’s sentencing laws). But if you have two or more prior convictions for drug possession, you can be sentenced to prison.
What is “Diversion”? Can I Get My Case Dismissed?
If this is your first time you’ve been charged with a crime and you are charged with possession of narcotic drugs, you may be allowed to participate in a “diversion” program. Some city courts and counties allow first-time offenders to participate in drug classes and then will dismiss the charges. This has the benefit of keeping a conviction off of your criminal record entirely.
A diversion program can keep a drug conviction off your record.
This makes a diversion program an even better outcome than a probation sentence under “Prop 200.” While Prop 200 keeps you out of having to go to prison, you will still get a felony drug conviction on your record. Employers or whoever decides to conduct a search of your record will see the criminal conviction. But successfully completing a diversion program will result in dismissal of the charges. This is as good a result as going to trial and winning a not guilty verdict.
The prosecutor is entirely in control of whether a diversion program is offered. There is no legal requirement for a prosecuting agency to offer this program, and it is not something that the judge can order. However, many cities and counties have authorized the use of these types of programs, and they can offer a good option for somebody who has been charged with possession of narcotic drugs.
Defenses to Possession of Narcotic Drugs
- Lack of Knowledge: A requirement of the law is that the state must prove you “knowingly” possess narcotic drugs beyond a reasonable doubt. In other words, it’s not enough for the state to show that narcotic drugs were present, but also that you knew about it.
Example: Let’s say that your roommate gives you a sealed package that he wants you to drop off at somebody’s house. While en route, you are pulled over during a routine traffic stop, and the police ask if they can search your car. You consent. During the search, a drug dog alters to the package your roommate gave you, and it contains cocaine. The prosecution needs to prove that you either knew or had reason to know that the sealed package contained cocaine. If they cannot do so, then you should be acquitted of the charge even though you technically had cocaine in your possession.
- No “Possession”: The second fundamental part of the statute that the state must prove that you had the narcotic drugs in your possession. Under Arizona law, “possession” means to physically have something or to exercise “dominion or control” over it. Dominion or control means that you might not actually be holding something or have it in your pocket, but you “absolute ownership” and have “power over” the item. State v. Salinas, No. 1 CA-CR 15-0581 (Ariz. Ct. App. Jul. 19, 2016).
Example: In the case of State v. Miramon, 27 Ariz. App. 451 (1976), Fred Miramon was a passenger in a car that was pulled over by officers from the Globe Police Department. During a search of the car, the police discovered a brown paper sack underneath the passenger seat that contained fourteen baggies of marijuana. Miramon was not the driver of the car nor the owner of the car, and the drugs were not located under his seat. The Court of Appeals reversed Miramon’s conviction, holding that his “mere presence” in the vehicle where drugs were found was not enough to prove that he exercised “dominion or control” over the drugs. There needs to more than just physical proximity to an item for the state to show that a person possesses that item.
- Insufficient evidence: In each criminal case that is prosecuted, the State has the burden of proving a defendant’s guilt beyond a reasonable doubt. In a case based on narcotic possession charges, a criminal defense attorney can analyze the evidence presented by the prosecution to determine weaknesses in their case. There can be flaws in the police investigation, inconsistencies in the police report, contradictions between the police report and the dashcam or body cam footage, or other holes in the evidence.
- Constitutional violations: Both the Arizona and the United States Constitution provide every criminal defendant with rights to be free from unlawful searches and seizures and the right to counsel. If the state violates these rights by, for example, not allowing you the opportunity to speak with an attorney or not giving you Miranda warnings, then you may be eligible to have either the evidence against you suppressed or your case dismissed entirely.
How Salwin Law Group Can Help You
Charges for narcotic drug possession under any subsection of ARS 13-3408 are serious felony offenses. If you have been arrested or charged with possession of narcotic drugs, you should immediately speak with an experienced drug crime attorney. Stewart Salwin is a former felony drug prosecutor and graduated cum laude from Harvard Law School. He knows how the prosecution deals with drug cases and can provide you the best possible defense.
This is your life. You deserve an elite defense. We offer free consultation and can discuss your case with you today. Together we can help you get your life back.