POSSESSION OF DRUGS


The Arizona criminal justice system treats crimes involving the possession of drugs for personal use differently than crimes involving the production, sale, or transportation of drugs. Where the offense involves possession for personal use, the emphasis of the justice system is on treatment and rehabilitation. In the case of the production, sale, or transportation of drugs, the emphasis will be on punishment.

The following offenses involve possession for personal use. Scroll down the page or click on the links to find out the details on each:




Possession of Marijuana (A.R.S. § 13-3405(A)(1))

If you have been charged with a violation of A.R.S. § 13-3405(A)(1), in order to obtain a conviction, the State must prove that you knowingly possessed or used marijuana. A conviction under this statute is a class 4 felony if the amount of marijuana is more than four pounds, a class 5 felony if the amount is between two pounds and four pounds, and a class 6 felony if the amount is less than two pounds. If the amount of marijuana is less than two pounds, in some cases, the offense may be charged as a misdemeanor or reduced to a misdemeanor via plea agreement or order of the judge.

A charge under this statute may be eligible for TASC Diversion or may be sentenced pursuant to Proposition 200 if it is a first or second offense. See TASC Diversion and Proposition 200 below. However, a third or subsequent offense will not be eligible for Proposition 200 sentencing, and incarceration is possible upon conviction.

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Possession of Dangerous Drugs (A.R.S. § 13-3407(A)(1))

Possession or use of a “dangerous drug” not for sale is a class 4 felony offense in Arizona. The term “dangerous drug” is defined under A.R.S. § 13-3401(6), and includes essentially all street drugs other than marijuana. Offenses under this statute may be eligible for TASC Diversion, which is discussed below.

If the offense is a first offense and the defendant has no prior felony convictions, the conviction may be designated as a misdemeanor unless the drug involved is LSD, methamphetamine, amphetamine, or PCP. Similarly, if the offense is a first or second offense, and the drug involved is not methamphetamine, a person convicted of this offense may be eligible for sentencing under Proposition 200, which is discussed below. However, a third or subsequent offense, or an offense involving methamphetamine will be ineligible for Proposition 200 sentencing, and incarceration is possible upon conviction.

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Possession of Drug Paraphernalia (A.R.S. § 13-3415)

Possession with the intent to use drug paraphernalia is a class 6 felony offense. In order to determine if an object is “drug paraphernalia,” a court may consider all relevant factors, including, but not limited to, statements by the object’s owner, prior drug convictions of the object’s owner, the proximity of the object to drugs, the existence of drug residue on the object, instructions provided with the object concerning its use, advertising concerning it s use, the existence of legitimate uses for the object in the community, and expert testimony concerning its use.

Under certain circumstances, a charge for possession of drug paraphernalia may be charged as a misdemeanor or reduced to a misdemeanor upon conviction. Similarly, a charge under this statute may be eligible for TASC Diversion or may be sentenced pursuant to Proposition 200 if it is a first or second offense. See TASC Diversion and Proposition 200 below. However, a third or subsequent offense will not be eligible for Proposition 200 sentencing, and incarceration is possible upon conviction.

Drug Case Sentencing Alternatives

In Arizona, there are significant educational and/or treatment alternatives available to help people cope with a substance abuse problem and avoid spending time in jail or prison. These alternatives include TASC Diversion, Early Disposition Court, Drug Court, and Proposition 200.

TASC DIVERSION

In possession of drugs for personal use prosecutions, the prosecutor sometimes agrees to and/or offers the accused an opportunity to complete a substance abuse education and treatment program, typically offered by TASC, as an alternative to the criminal prosecution. The prosecutor may make such an offer either prior to or after filing charges. Upon successful completion of the program, pre-file cases will be dropped and post-file cases will be dismissed. This is known as a TASC diversion program.

To participate in a diversion program, the accused must meet several eligibility requirements. To name a few, the accused must not: have prior felony convictions or pending felony charges (with the exception of possession of drug paraphernalia); currently be on probation or parole; have previously participated in a felony diversion program; have been convicted of a misdemeanor drug charge within the last two years; or be a member of a gang. In addition, there are other eligibility requirements concerning the accused’s use of drugs as well as the type and quantity of drugs found in the present offense.

EARLY DISPOSITION COURT (EDC)

The focus of EDC is to expedite first-time drug cases and other “victimless” felonies through to conclusion. Prior to filing a complaint, the prosecutor screens drug cases for diversion. Within ten (10) days of the Initial Appearance, the case is set for a preliminary hearing. The plea, drug treatment screening, and sentencing are consolidated into one hearing.

DRUG COURT

The Maricopa County Superior Court's Drug Court focuses on facilitating treatment for nonviolent first- and second-time offenders through an extensive supervision and treatment program. Drug court is a post-judgment assignment, and in many respects, is similar to supervised probation.

The Court has developed two separate tracks to implement a system of graduated sanctions and incentives. Track 1 is designated for second-time Proposition 200 offenders. Track 2 is designated for first-time Proposition 200 offenders. The primary distinction between the tracks is that jail is available as a sanction in Track 1.

PROPOSITION 200

Proposition 200, the Drug Medicalization, Prevention, and Control Act of 1996, was an initiative proposal which made changes to Arizona’s law as it pertained to persons convicted of personal possession or use of a controlled substance. Codified as A.R.S. § 13-901.01, the law requires courts to suspend sentencing and impose probation for offenders convicted of a first or second drug offense of personal possession or use, and as a condition of probation, offenders must participate in an appropriate drug treatment or education program.

Arizona is one of the first states to mandate treatment for first- and second-time drug offenders. Application of Proposition 200 is limited; it does not apply to possession of methamphetamine or to drug-related offenses for other than personal use, and is unavailable to persons convicted of violent crimes. Distinctions between those eligible for the protections of Proposition 200 are slowly evolving. The following synopses of decisions from Arizona courts is not intended to be an exhaustive compilation of cases, but, is hopefully an insightful guideline to the parameters of Proposition 200.

Eligible Convictions

• Foster v. Irwin, 196 Ariz. 230, 995 P.2d 272 (2000) (Conviction for possession of drugs qualify for Proposition 200).
• Possession of Drug Paraphernalia - State v. Estrada/State v. Hatton, 201 Ariz. 247, 34 P.3d 356 (2001) (Resolving the conflict between Divisions 1 and 2 of the Arizona Court of Appeals, the court ruled that Proposition 200 applies to convictions for the possession of drug paraphernalia associated solely with personal use by individuals also charged, or who could have been charged with personal use or possession of drugs, overruling State v. Holm, 195 Ariz. 42, 985 P.2d 527 (App. 1998)).
• Conspiracy to Possess Drug - State v. Guillory, 199 Ariz. 462, 18 P.3d 1261 (App. 2001) (Conspiracy to possess is a drug-related prior under A.R.S. § 13-901.01(G) because it is the same degree of crime as the substantive offense).
• Possession of Drugs Within Drug-free School Zone - State v. Pereyra, 199 Ariz. 352, 18 P.3d 146 (App. 2001) (Conviction for possession of drugs within a drug-free school zone qualifies for Proposition 200).

Ineligible Convictions

• Promoting Prison Contraband - State v. Roman, 200 Ariz. 594, 30 P.3d 661 (App. Div. 1, 2001)(Conviction for promoting prison contraband involving possession of drugs does not qualify for mandatory probation under Proposition 200).
• Sale of Drugs - State v. Smith, 198 Ariz. 568, 12 P.3d 243 (App. Div. 1, 2000) (Conviction for sale of drugs does not qualify for Proposition 200).
• Driving While Drug or Metabolite in Body - Wozniak v. Galati, 200 Ariz. 550, 30 P.3d 131 (App. Div. 1, 2001) (Conviction of driving while one has a drug or its metabolite in his body does not qualify for Proposition 200).

Attempted Possession of Drugs

Division One and Division Two of the Arizona Court of Appeals appear to be in conflict on this particular issue.

• Attempted Possession of Drugs - Stubblefield v. Trombino ex rel. County of Maricopa, 197 Ariz. 382, 4 P.3d 437 (App. 2000) (Person convicted of attempted possession is eligible for Proposition 200). See also Raney v. Lindberg, 206 Ariz. 193, 76 P.3d 867 (App. 2003) (declined to follow Ossana).
• Attempted Possession of Drugs - State v. Ossana, 199 Ariz. 459, 18 P.3d 1258 (App. 2001) (Conviction for attempted possession does not count as drug-related prior under Proposition 200.

Eligibility Applies Only to Offenses Committed After Effective Date of Proposition 200

• Baker v. Superior Court In and For County of Maricopa, 190 Ariz. 336, 947 P.2d 910 (App. 1997) (Eligibility for Proposition 200 probation does not apply to defendants who committed offenses before the Act's effective date.

 

Prior Convictions Affecting Eligibility

• Non-drug-related and Non-violent - Foster v. Irwin, 196 Ariz. 230, 995 P.2d 272 (2000); Gray v. Irwin, 195 Ariz. 273, 987 P.2d 759 (App. 1999) (Prior convictions that are non-drug-related and non-violent do not count as priors precluding eligibility for probation under Proposition 200).
• Juvenile Adjudications - In re Fernando C., 195 Ariz. 233, 986 P.2d 901 (App. 1999) (Proposition 200 only applies to convictions and, therefore, does not apply to juvenile adjudications).
• Possession of Drugs for Sale - Goddard v. Superior Court In and For County of Maricopa, 191 Ariz. 402, 956 P.2d 529 (App. 1998) (Conviction for possession of drugs for sale can render person ineligible for Proposition 200 under subsection (G).

 

No Jail Time Can be Imposed on First Proposition 200 Offense

• Calik v. Kongable, 195 Ariz. 496, 990 P.2d 1055 (1999) (Trial court is prohibited from imposing jail time as a condition of probation for a person convicted of first-offense personal possession or use of drugs.



Court Must Impose Additional Conditions Upon Finding Violation of Probation

• State v. Elmer Elwood Hylton, 202 Ariz. 325, 44 P.3d 1005 (App. 2002) (Having found defendant to be in violation, A.R.S. § 13-901.01(E) requires the court continue defendant on probation and impose new and additional conditions).


Probation Cannot be Terminated as Unsuccessful

• State v. Hensley, 201 Ariz. 74, 31 P.3d 848 (App. 2001) (Trial court cannot terminate Proposition 200 probation as unsuccessful).


Court Must Determine Validity of Prior Drug Convictions in Order to Find Defendant Ineligible
(A.RS. § 13-901.01(G)(Three Strikes))

• State v. Rodriguez, 200 Ariz. 105, 23 P.3d 100 (App. 2001) (Proof of priors insufficient because trial court did not make finding on record concerning priors and priors not listed in presentence report).
• Also held Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), not applicable; court and not jury can determine validity of prior convictions because such a finding does not increase the statutory maximum punishment for the offense.

 

State Must Allege and Prove Prior Violent Convictions in Order to Object to Defendant's Eligibility
(A.R.S. § 13-901.01(B))

• State v. Benak, 199 Ariz. 333, 18 P.3d 127 (App. 2001) (State is required to provide pretrial notice to defendant of its objection to Proposition 200 eligibility because the defendant had a prior conviction for a violent crime; A.R.S. § 13-604.04 requirements (allegation and proof of priors) apply to Proposition 200).
• Impliedly overruled holding in Bolton v. Superior Court In and For County of Yuma, 190 Ariz. 201, 945 P.2d 1332 (App. 1997).
• State v. Hensley, 201 Ariz. 74, 31 P.3d 848 (App. 2001) (Followed Benak, mandatory probation required even though defendant had prior convictions for violent crimes because state failed to allege and prove priors).

 

Ninth Circuit Holds Proposition 200 Conviction is not a "Felony" for Purposes of Enhancement Under Federal Sentencing Guidelines

• United States v. Robles Rodriquez, 281 F.3d 900 (9th Cir. 2002) (Court concluded that Arizona drug possession offense for which the maximum authorized punishment is probation is neither an "aggravated felony" nor a "felony offense" for the purposes of federal sentencing guidelines).


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