Proposition 205 Results for Legalization of Marijuana
In the November 2016 election, five states including Arizona, had legalization of recreational marijuana on the ballot for voters. Of those, it passed in four states. But Arizona was not one of them.
Proposition 205 gave Arizona voters the opportunity to legalize recreational use of marijuana for individuals 21 or older, failed in Arizona.
According to the Arizona Secretary of State, 1,061,378 voters (51.95 percent) voted no on Prop 205 while 981,509 voters (48.05 percent) supported the measure.
As a result of this vote, the possession, sale, or manufacture of cannabis remains illegal in Arizona. Only state are approved patients with qualifying conditions who have been issued medical marijuana cards can legally purchase, possess, or use marijuana in Arizona.
Some opponents of Proposition 205 were concerned that approved dispensaries might possibly have a monopoly on the marijuana market in Arizona. Others questioned how much of the money marijuana sales would actually go to the state’s school system, and other state agencies.
Opponents argued that marijuana legalization would increase driving under the influence (DUI) violations in the state.
While Prop 205 would have prohibited impaired driving due to marijuana use, lack of a statutory limit or the ability to accurately measure a driver’s impairment continues to be problematic for both users and the state in prosecuting marijuana DUI charges.
Some states that have legalized marijuana for both medical and recreational use, have a statutory limit which serves as the legal quantity of THC a person is allowed to have in their system. Depending on the state, the allowable amount is 2 to 5 nanograms (ng) of THC.
Arizona, however has no such statutory limit of measurement, even for drivers who are qualified under Arizona’s Medical Marijuana Act (AMMA).
Recent National Highway Traffic & Safety Administration (NHTSA) statistics show that marijuana DUI-related crashes have increased dramatically over the last decade.
Drugged Driving Increases in Arizona on a National Level
The most recent statistics reported by the Arizona Governor’s Office of Highway Safety indicate that Arizona’s DUI arrests have increased tenfold over the last decade.
Recent statistics reported by the National Highway Traffic Safety Administration indicate that the number of traffic deaths in which at least one driver tested positive for drugs has nearly doubled over the last 15 years.
According to USA Today, 6,612 of the 32,166 fatal crashes (or about 20.55 percent) in 2015 were drug-related as opposed to 1,716 of the 35,780 fatal crashes (or about 4.8 percent) in 1993.
Recent media reports noted that a separate NHTSA study that found 15.1 percent of 11,000 weekend, nighttime drivers who tested positive for illegal drugs in 2013 and 2014 was an increase from the 12.4 percent of drivers in 2007. Marijuana represented the largest increase in that study, as 12.6% tested positive in 2013 and 2014, up from 8.6% in 2007.
Not all experts agree, however, that driving under the influence of marijuana, particularly, can be identified as the cause of the crashes.
The National Institute on Drug Abuse noted that it is difficult to measure how many crashes are caused by drugged driving because:
- There is currently no effective roadside test for the drug levels of drivers;
- Police officers rarely test for drugs when alleged DUI offenders have a blood alcohol concentration (BAC) high enough to merit a DUI charge; and
- Several alleged offenders have both drugs and alcohol in their systems, making it difficult to ascertain which substance was the predominant cause of impairment.
Arizona Marijuana DUI Laws
Arizona Revised Statute § 28-1381 makes it illegal for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
- While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.
- If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.
- While there is any drug defined in Arizona Revised Statute § 13-3401 or its metabolite in the person’s body.
Cannabis is classified as a narcotic drug under Arizona Revised Statute § 13-3401. Tetrahydrocannabinol (THC) is the principal psychoactive chemical in marijuana, and it can appear in blood or urine tests several days after cannabis was originally consumed. A person who uses marijuana a single time can still test positive for the drug up to three days later, while chronic heavy users of cannabis may test positive up to one month after their last use.
If an alleged offender is convicted of marijuana DUI, his or sentence could possibly involve any of the following:
- First Offense — Class 1 misdemeanor punishable by minimum of 10 consecutive days up to six months in jail, driver’s license suspended for 90 days, and/or fines and fees of at least $1,250;
- Second Offense within 84 Months (Seven Years) — Class 1 misdemeanor punishable by minimum of 90 days (30 of which must be served consecutively) up to six months in jail, driver’s license revoked for one year, and/or fines and fees of at least $3,000;
- Third or Subsequent Offense — Class 4 felony punishable by minimum of four months up to 3.75 years in prison, driver’s license revoked for at least one year, and/or fines and fees of at least $4,000.
What to Do If You Are Arrested for Marijuana DUI
When police officers suspect that drivers might be under the influence of a controlled substance, authorities will frequently seek the assistance of a drug recognition expert (DRE). A DRE is a law enforcement officer who is trained to identify people whose ability to drive is impaired by controlled substances.
In order to be certified as a DRE, officers in Arizona must complete all three phases of the Arizona Drug Evaluation and Classification program. The first phase consists of a two-day (16-hour) preschool, the second phase is a seven-day (56-hour) classroom program, and the third phase is field certification that is conducted at periodic intervals for the next 60 to 90 days.
The International Association of Chiefs of Police (IACP) is the regulating and credentialing organization for the Drug Evaluation and Classification Program. The IACP established the following 12-step protocol that DREs use to determine whether an alleged offender is impaired by drugs and what category or combination of categories of drugs are the likely cause of the impairment:
- Breath alcohol test (typically performed by arresting officer before contacting DRE);
- DRE interview of the arresting officer;
- Divided attention psychophysical tests;
- Examination of vital signs;
- Examination for muscle tone;
- Examination for injection sites;
- Subject’s statements and other observations;
- Opinions of the evaluator; and
- Toxicological examination.
The major problem with these examinations is that by having DREs interview arresting officers before conducting any tests, the DRE is usually subject to a confirmation bias that deprives the proceedings of any objectivity. Furthermore, DREs are rarely—if ever—qualified to understand medical conditions, which means that they lack the knowledge to understand whether certain physical or mental symptoms that are interpreted to be impairment by controlled substances may be actually the result of completely unrelated factors.
When a person has been arrested for a marijuana-related DUI in Arizona, it is critical to immediately retain legal counsel. An experienced attorney can not only investigate whether there were any errors by police officers or DREs in the administration of these tests, but also challenge whether the alleged offender was actually under the influence of cannabis at the time of the arrest if that person tested positive for marijuana.
Criminal Defense Lawyer for Alleged Marijuana DUI Crimes in Tempe, AZ
If you were arrested for an alleged marijuana DUI offense in Arizona, it is in your best interest to seek legal representation as soon as possible. The Law Office of James E. Novak defends people accused of drug-related DUI crimes all over the greater Maricopa County area.
James E. Novak is a Tempe criminal defense attorney who has experience handling cannabis offenses on both sides of the aisle. He is a former prosecutor in Maricopa County who knows which types of evidence can be used to possibly get criminal charges reduced or dismissed.
The Law Office of James E. Novak represents clients in Phoenix, Gilbert, Scottsdale, Mesa, Chandler, Tempe, and several other surrounding communities in Maricopa County. Our lawyer will aggressively defend you against your DUI charges and work tirelessly to help you achieve the most favorable outcome that results in the fewest possible penalties.
James E. Novak will provide a free, confidential consultation that will allow him to review your case and discuss all of your legal options. Call (480) 413-1499 or submit an online contact form today to take advantage of your free consultation.
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Arizona’s Proposition 205 -Legalization of Marijuana
If Prop 205 passes, marijuana does not become instantly legal statewide. Sales of cannabis could begin as soon as March 1, 2018. The proposition establishes the creation of a Department of Marijuana Licenses and Control that would be responsible for licensing and regulating retail stores as well as entities involved in growing, manufacturing, distributing, and testing marijuana products. The governor would appoint the director as well as the seven members of the Marijuana Commission—four of whom would have no financial stake in a marijuana establishment and three with a “controlling” interest in a marijuana establishment.
Cannabis would only be sold at shops licensed by the state, and the number of licensed marijuana retail stores would be capped at 10 percent of the number of Series 9 liquor store licenses. Localities would have the power to impose limits on where and when marijuana businesses are allowed to operate. People could also give marijuana to other people, provided that the amount involved is not more than one ounce, there is no money exchanged, and the gift is not publicly advertised.
Prop 205 would also implement a 15 percent tax on retail marijuana sales. While tax revenue will go to the Department of Revenue to fund the implementation and enforcement of regulations, 80 percent of the additional revenue would be allocated for the Department of Education (half of which would be for school construction, maintenance, and operating costs, and the other half for full-day kindergarten programs) and 20 percent would be allocated to the Department of Health Services for public education efforts.
Arizona has seen aggressive campaigns both in support of and against Prop 205. The Marijuana Policy Project (MPP), a national marijuana policy reform organization, has been the primary funder for the legalization campaign while business groups like the Arizona Chamber of Commerce & Industry and other organizations have supported anti-Prop 205 campaigns.
Marijuana Arrests Under Current State Law in Arizona
If Prop 205 passes, it will not make marijuana usable in public. Passage would, however, presumably lead to a significant reduction in the number of cannabis-related arrests in Arizona. According to annual reports compiled by the Access Integrity Unit of the Arizona Department of Public Safety, thousands of people have been arrested for marijuana offenses every year over the past decade:
||Sale or Manufacturing of Marijuana
Legalizing recreational possession of up to one ounce of marijuana would help numerous people avoid what can be significant potential consequences under current state law. Right now, alleged offenders who are accused of certain crimes involving one ounce or less of cannabis can face the following charges under Arizona Revised Statute § 13-3405:
- Possession of Marijuana — Class 6 felony punishable by up to two years in prison;
- Production of Marijuana — Class 5 felony punishable by up to 2.5 years in prison; and
- Transportation or Importation of Marijuana for Sale — Class 3 felony punishable by up to 8.75 years in prison.
It is important to remember that despite its medicinal benefits for people suffering from certain ailments, marijuana is classified as a Schedule I controlled substance under the Controlled Substance Act (CSA). Schedule I controlled substances are supposedly drugs, substances, or chemicals that are defined “as drugs with no currently accepted medical use and a high potential for abuse.” People facing federal charges related to marijuana offenses in Arizona can be subject to even longer prison sentences and bigger fines.
Arizona Medical Marijuana Laws
Arizona is among the half of the states in the nation that have legalized cannabis for medical use. In 2010, voters approved Proposition 203, more commonly known as the Arizona Medical Marijuana Act (AMMA). Under AMMA, approved patients can purchase up to 2.5 ounces of marijuana from a state-licensed dispensary every two weeks and possess up to 2.5 ounces at any time. Certain approved patients are allowed to grow up to 12 marijuana plants or find a caregiver to grow the cannabis for them.
Medical conditions that qualify patients for medical marijuana include:
- Acquired Immune Deficiency Syndrome (AIDS);
- Agitation of Alzheimer’s disease;
- Amyotrophic Lateral Sclerosis (ALS);
- Human Immunodeficiency Virus (HIV); or
- A chronic or debilitating disease or medical condition or the treatment for a chronic or debilitating disease or medical condition that causes cachexia or wasting syndrome, severe and chronic pain, severe nausea, seizures (including those characteristic of epilepsy), or severe or persistent muscle spasms, including those characteristic of multiple sclerosis.
If Prop 205 passes on November 8, the medical marijuana program would continue as is. Responsibility for regulation of the program, however, would shift from the Arizona Department of Health Services to a new department in September 2017.
What to Do if You are Arrested for Marijuana in Arizona
If you are arrested for any kind of cannabis-related offense in Arizona after the Prop 205 vote, you should not say anything to authorities without legal representation. Many drug-related crimes involve violations of alleged offenders’ constitutional rights to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution.
Marijuana arrests may stem from routine traffic stops in which alleged offenders allow police officers to search their vehicles. The discovery of even a small amount of cannabis can lead to people facing felony charges. The amount in question plays an important role in determining the severity of the criminal charges.
Under state law in Arizona, the “threshold amount” for marijuana is two pounds. Any amount exceeding the threshold can be legally presumed to be intended for sale. When the element of an intent to sell marijuana is added to criminal charges, it not only leads to more serious criminal charges but also more aggressive prosecution.
Alleged offenders who have no previous convictions for drug-related offenses may be eligible for deferred prosecution in marijuana possession cases. With deferred prosecution, alleged offenders who successfully complete all terms of the probation they are placed on may be able to have the criminal charges dropped.
On the other hand, alleged offenders who have been previously convicted of drug-related offenses will typically face felony charges that carry steep consequences. In addition to possible prison sentences and orders to pay significant fines, felony convictions can carry lifelong consequences. People convicted of felony offenses can experience enormous difficulty obtaining employment, housing, or professional licenses.
Criminal Defense Lawyer for Alleged Marijuana Crimes in Mesa, AZ
It is in the best interest of any person arrested for an alleged marijuana crime to immediately retain legal counsel. The Law Office of James E. Novak aggressively defends clients throughout the greater Maricopa County area.
James Novak is an experienced criminal defense attorney in Mesa who has handled these types of cases on both sides of the aisle. As a former prosecutor in Maricopa County, he can identify the weaknesses in a prosecutor’s case and fight to possibly have criminal charges reduced or dismissed.
The Law Office of James E. Novak is committed to helping people charged with possession, sale, or cultivation of marijuana achieve the most favorable outcomes to their criminal cases. Our lawyer represents clients in Phoenix, Scottsdale, Tempe, Gilbert, Mesa, Chandler, and many surrounding areas of Maricopa County.
You can have our attorney provide an honest and thorough evaluation of your case as soon as you call (480) 413-1499 or complete an online contact form today to schedule a fee, confidential consultation.
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Understanding Arizona Affirmative Defenses
One of the best ways to understand the entrapment defense in Arizona is to read the standard jury instructions. Arizona Pattern Jury Instructions for criminal cases tracks the language of A.R.S. § 13-206 and provides:
The defendant has raised the affirmative defense of entrapment with respect to the charged offenses. In this case the defendant must prove the following by clear and convincing evidence:
- The idea of committing the offense[s] started with law enforcement officers or their agents rather than the defendant; and
- The law enforcement officers or their agents urged and induced the defendant to commit the offense[s], and
- The defendant was not predisposed to commit the type of offenses[s] charged before the law enforcement officers or their agents urged and induced the defendant to commit the offenses[s].
The defendant does not establish entrapment if he or she was predisposed to commit the crime.
It is not entrapment for law enforcement officers or their agents to use a ruse or to conceal their identity.
The conduct of law enforcement officers and their agents may be considered in determining if the defendant has proven entrapment.
If you find that the defendant has proven entrapment by clear and convincing evidence you must find the defendant not guilty of the offense[s].
In 1997, the legislature codified the entrapment defense in A.R.S. § 13-206. See State v. Preston, 197 Ariz. 461, 463–64, 4 P.3d 1004, 1006–07 (App. 2000).
The statute for the entrapment defense requires that the defendant admits the substantial elements of the offense[s] as a condition of raising the defense. 197 Ariz. at 464, 4 P.3d at 1007. Also, the statute now requires the defendant to prove entrapment by clear and convincing evidence. Id.
Subsection D of the statute required that the trial court instruct the jurors that the defendant had admitted the elements of the offense, and “that the only issue for their consideration is whether the defendant has proven the affirmative defense of entrapment by clear and convincing evidence.” A.R.S. § 13-206(D).
But in Preston, the Arizona Court of Appeals declared subsection D of the statute unconstitutional because it effectively denied a criminal defendant the presumption of innocence and the right to a jury determination of guilt. 197 Ariz. at 466–68, 4 P.3d at 1009–11.
Instead, the Preston Court held that subsection D was severable from the remainder of the statute. Id. at 468, 4 P.3d at 1011. The court upheld placing upon the defendant the burden of proving the affirmative defense of entrapment by “clear and convincing evidence.” Id. at 464–65, 4 P.3d at 1007–08.
Recent Court Ruling on Entrapment Defense in Arizona
A more recent case dealt with the constitutionality of requiring the Defendant to admit to the substantive elements of the offense. The Supreme Court of Arizona recently decided the case of State v. Gray, — P.3d ——, No. CR-15-0293-PR, 2016 WL 3390236 (Ariz. June 20, 2016).
In this case, the Defendant was charged with sale of narcotics for violating A.R.S. § 13–3408(A)(7), which provides that “[a] person shall not knowingly … transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.”
The Defendant gave incriminating statements to an undercover police officer in a recorded conversation. The Court found he did not affirmatively admit to the substantial elements of the crime charged, and thus could not assert entrapment defense, even though the defendant did not contest officer’s testimony explaining the events captured in the audio recording.
The Court found the defendant did not affirmatively admit the substantial elements of the offense, and although the officer asked the defendant to help him obtain some “hard,” which was a slang term for crack cocaine, the recorded conversation alone did not prove that defendant, in fact, provided the drugs to the officer. Ariz. Rev. Stat. Ann. §§ 13-206(A), 13-3408(A)(7).
The Defendant was convicted and sentenced to over nine years in jail for accepting an undercover officer’s invitation to obtain twenty dollars’ worth of crack for a fee of ten dollars. Because he was not allowed to present an entrapment defense without surrendering fundamental rights, the dissenting opinion pointed out that “we will never know whether the Defendant was a cunning drug courier awaiting precisely such an opportunity, or whether he was simply waiting for a bus.”
In the case, the Supreme Court held that the defendant was required to affirmatively admit, by testimony or other evidence, the substantial elements of the offense, to claim the entrapment defense. The requirement to affirmatively admit the elements of offense did not violate the Fifth Amendment privilege against self-incrimination.
Also, the Court found that the defendant, who gave incriminating statements to undercover police officer, did not affirmatively admit the substantial elements of the crime charged, and thus could not claim entrapment.
Arizona’s Entrapment Defense Under A.R.S. § 13–206(A)
The Court found that A.R.S. § 13–206(A) affords a defense of entrapment only when the defendant affirmatively admits the substantial elements of the charged offense. A defendant cannot invoke this affirmative defense merely by declining to challenge the state’s evidence, even when it includes incriminating statements made by the defendant to an undercover officer. The Court granted review because the application of the statutory entrapment defense presents a recurring issue of statewide importance.
The Court decided whether § 13–206 requires a defendant who requests a jury instruction on the entrapment defense to affirmatively admit the substantial elements of the offense and, if so, what qualifies as “other evidence” for such an admission.
By its terms, § 13–206 requires a defendant “to admit … the substantial elements of the offense charged.” The statute does not expressly address whether a defendant can “admit” the elements merely by not challenging the state’s evidence.
The defense argued that the Court should construe the statute as not requiring a defendant to affirmatively admit the elements. The defense pointed out that “silence can, in some contexts, be deemed an admission, and [that the Court] should deem his not offering evidence to contradict his recorded statements to be an “admission” for purposes of § 13–206.
After considering the history of the entrapment defense in Arizona, the Court held that the legislature in enacting § 13–206 generally codified the rule that in order to raise an entrapment defense, the accused “must affirmatively admit, by testimony or other evidence, the substantial elements of the offense….Such an admission cannot be accomplished merely by the defendant passively declining to challenge the state’s evidence.”
The defense also argued that requiring a defendant to affirmatively admit the elements of a crime before claiming entrapment conflicts with the Fifth Amendment’s guarantee that “no person shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Court ultimately decided that requiring a defendant who chooses to assert an entrapment defense to admit the elements of the charged offense does not “compel” self-incrimination.
The Court also found that limiting the entrapment defense to those who choose to admit the elements of the crime also does not implicate the “unconstitutional conditions” doctrine.
Finally, the Court decided that although the defendant made incriminating statements in his recorded conversation, he did not affirmatively admit the substantial elements of this offense.
A dissenting opinion was filed by Judge Bolick who pointed out that the State of Arizona has adopted a uniquely narrow—indeed, “draconian”—view of the entrapment defense.
The dissenting opinion reasoned that the Defendant should have been entitled to raise an entrapment defense. The dissenting opinion found that Arizona “is unique, unfortunately, is its statutory requirement that a criminal defendant must admit the substantial elements of the crime before raising an entrapment defense, a rule the majority today affirms.
Arizona’s outlier status in that regard is well-recognized but not well-regarded. The dissenting judge reasoned that by requiring a defendant to affirmatively admit the substantial elements of the crime, the statute (especially as construed in this decision) implicates the defendant’s right against self-incrimination, protected both by the Fifth Amendment (“No person … shall be compelled in any criminal case to be a witness against himself….”), and by article 2, section 10 of the Arizona Constitution (“No person shall be compelled in any criminal case to give evidence against himself….”).
Recognizing that the entrapment defense plays an important role not only in protecting the due process rights of criminal defendants by ensuring that they will be punished only for crimes for which they are genuinely culpable, it also is important because it constrains government conduct that is incompatible with a free society.
The dissenting opinion also recognized that although there is no recognized constitutional right to an entrapment defense, forcing defendants to choose between raising the defense and forfeiting precious constitutional rights presents an unconstitutional condition.
The doctrine of unconstitutional conditions prevents the government front granting a benefit on the condition that the beneficiary surrenders a constitutional right, even if the government may withhold that benefit altogether. Thus, the dissent reasoned that the A.R.S. § 13–206(A) affirmative admission requirement constitutes an unconstitutional condition and may not be required to assert an entrapment defense.
Additionally, the dissenting opinion found that the majority opinion exacerbates the problem by interpreting “other evidence” and “substantial elements” to prevent the Defendant in that case from raising an entrapment defense even though his words, entered into evidence by the State, were essentially an admission of the crime.
In State v. Gray, — P.3d ——, No. CR-15-0293-PR, 2016 WL 3390236 (Ariz. June 20, 2016), the Supreme Court of Arizona took a draconian view of the entrapment defense which, as a practical matter, might force the Defendant to take the stand and admit all elements of the offense before the jury instruction for entrapment can be read to the jury.
Criminal Defense Lawyer for Entrapment Cases in Mesa, AZ
When a person allegedly commits a crime that he or she would not have otherwise committed, it may be possible to invoke the affirmative defense of entrapment. It is critical in such cases to have experienced legal counsel for help achieving the most favorable outcome.
James Novak of The Law Office of James E. Novak is a former prosecutor in Maricopa County who understands the types of criminal charges that entrapment claims work best for. Even when entrapment might not be applicable for a certain case, he can identify many other affirmative defenses or other claims that could possibly result in criminal charges being reduced or dismissed.
The Law Office of James E. Novak represents clients charged with such crimes as drug charges, sexual offenses, property crimes, and firearm or weapon offenses. James Novak helps residents of and visitors to communities throughout Maricopa County, including Phoenix, Mesa, Tempe, Chandler, Scottsdale, and several other nearby areas.
Contact The Law Office of James Novak today at (480) 413-1499 or fill out an online contact form to take advantage of a free, confidential consultation that will let our attorney review your case and discuss all of your legal options.
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Arizona Cannabis Laws, Penalties, Criminal Defense
Police officers have long used the alleged scent of marijuana as an excuse to perform searches of alleged offenders’ motor vehicles when they refuse to consent to such searches. After the two divisions of the Arizona Court of Appeals came to different conclusions about the legality of the “plain smell doctrine”—the proposition that the smell of cannabis alone provides probable cause, the Arizona Supreme Court agreed to review of one of the cases.
The alleged offenders in both cases argued that the odor of marijuana no longer suffices to establish probable cause after the implementation of the Arizona Medical Marijuana Act (AMMA) in 2010. “We granted review because whether AMMA affects the determination of probable cause based on the odor of marijuana is a recurring issue of statewide importance,” the Arizona Supreme Court wrote in its decision in State Of Arizona v. Ronald James Sisco II, No. CR-15-0265-PR.
A magistrate issued a telephonic warrant in March 2013 that allowed Tucson police officers to search a storage warehouse where the officers were responding to a tip that “a strong odor of fresh marijuana” was emanating from one of the buildings in the complex. After the first unit the officers searched was vacant, the magistrate issued an amended warrant to search another unit where officers found “it was being used as a residence and a marijuana growing operation” with officers seizing “marijuana growing equipment, marijuana paraphernalia, and hundreds of marijuana plants.”
Sisco was charged with child abuse, possession of drug paraphernalia, possession of marijuana for sale, and production of marijuana, but he sought to have the evidence suppressed because, he argued, “the odor of marijuana no longer suffices to establish probable cause in light of AMMA.” The trial court denied this motion and Sisco was convicted of all charges.
On July 20, 2015, Division Two of the Arizona Court of Appeals reversed the trial court’s ruling on Sisco’s suppression motion and vacated his convictions and sentences. The majority ruled that AMMA “renders possession, cultivation, and use of marijuana lawful under some circumstances,” adding:
Accordingly, those circumstances—not the mere possession itself—now determine whether such activity is criminal or permitted under state law. For this reason, and for the reasons stated below, we hold that the scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant. We emphasize this holding is a limited one. Probable cause can arise when the scent of marijuana is coupled with additional, commonly evident facts or contextual information suggesting a marijuana-related offense. However, no such information was presented here. We, therefore, reverse the denial of Sisco’s suppression motion and remand the case to the trial court. Our disposition makes it unnecessary to address the evidence supporting his conviction of child abuse.
Nearly one year later on July 11, 2016, the Arizona Supreme Court affirmed the trial court’s ruling denying the motion to suppress and vacated the court of appeals’ opinion. The Supreme Court concluded:
The mere fact that AMMA authorizes use, possession, or cultivation of marijuana in certain circumstances does not dispel the probable cause established by the odor. Under AMMA, registered qualifying patients are generally authorized to possess up to two and one-half ounces of useable marijuana, while those patients that live more than twenty-five miles from the nearest dispensary may be authorized to cultivate up to twelve marijuana plants. § 36-2801(1)(a); § 36-2804.02(A)(3)(f). A designated caregiver may also cultivate up to sixty plants, but only if the caregiver cares for five patients, all five patients are authorized to cultivate marijuana, and each patient designates the caregiver to cultivate on their behalf. §§ 36-2801(1)(b)(ii), (5); § 36-2804.02(A)(3)(f). AMMA also authorizes dispensary cultivation sites in certain locations. See A.R.S. § 36-2804(B)(1)(b)(ii). Nothing suggests the police here had reason to believe they had detected marijuana authorized by any of these provisions.
In sum, under the totality of the circumstances presented here, the odor of marijuana established probable cause. We have no occasion to assess how, in other circumstances, probable cause might be dispelled by such facts as a person’s presentation of a valid registration card.
Arizona Medical Marijuana Act (AMMA) as Defense in Marijuana Cases
While Division Two emphasized that it’s holding in Sisco was a limited one, it did not take long for Division One of the Arizona Court of Appeals to issue a decision that essentially contradicted the ruling that the scent of cannabis could no longer be used as probable cause for a search warrant. A mere three days after Division Two decided Sisco, Division One ruled in the State of Arizona v. Ian Harvey Cheatham that AMMA did not eliminate Arizona’s plain smell doctrine.
In Cheatham, police officers searched the car of the alleged offender after one officer noticed a strong odor of burnt marijuana from inside the vehicle they pulled over for a dark windshield that appeared to violate state law. An officer found an empty prescription bottle that smelled of unburnt marijuana, an empty cigar package, and a small amount of unburnt marijuana.
Like Sisco, Cheatham filed a motion to suppress, arguing the automobile exception to the search warrant requirement no longer authorizes searches based on the plain smell of marijuana after the enactment of AMMA. The superior court rejected the motion, and Cheatham was found guilty of the Class 1 misdemeanor offense of possession or use of marijuana and was placed on supervised probation for one year.
Division One concluded that the police officer satisfied the three prongs of the plain smell doctrine:
Cheatham argues the superior court abused its discretion by denying his motion to suppress because the only evidence supporting probable cause for the warrantless search of his car was the smell of marijuana. Under the plain smell doctrine, a police officer may conduct a warrantless search and seizure of contraband if: (1) the “officer [is] lawfully ․ in a position to [smell] the object;” (2) “its incriminating character [is] immediately apparent;” and (3) “the officer [has] a lawful right of access to the object.” State v. Baggett, 232 Ariz. 424, 428 ¶ 16, 306 P.3d 81, 85 (App.2013) (citations omitted). There is no dispute that the officer was lawfully in a position to smell the marijuana and had a lawful right of access. Moreover, in this case, the odor of marijuana provided sufficient probable cause that marijuana was present and that a crime was being or had been committed. See Harrison, 111 Ariz. at 509, 533 P.2d at 1144; Baggett, 232 Ariz. at 428 ¶ 20, 306 P.3d at 85. Accordingly, the record at the suppression hearing was sufficient to support a finding that all three requirements of the plain smell doctrine were met. Thus, the superior court did not err in denying Cheatham’s motion to suppress.
Arizona Cannabis Possession Laws
Under AMMA, qualifying patients registered with the Arizona Department of Health Services (ADHS) are able to purchase and possess up to 2.5 ounces of usable marijuana every two weeks. Arizona Revised Statute § 36-2811 establishes that there is a presumption that a qualifying patient or designated caregiver is engaged in the medical use of marijuana if the qualifying patient or designated caregiver is in possession of a registry identification card and in possession of an amount of marijuana that does not exceed the allowable amount of marijuana.
For all unlicensed individuals, marijuana possession in Arizona remains a felony offense. Under Arizona Revised Statute § 13-3405, possession of less than two pounds of cannabis is a class 6 felony, at least two pounds but less than four pounds is a class 5 felony, and four pounds or more is a class 4 felony.
Voters in Arizona may be able to legalize recreational on Election Day this coming November 8, however. Proposition 205 would legalize marijuana in the state and allow individuals 21 years of age or older to use cannabis products out of public sight.
Even if the initiative is voted into law, it still would not take effect until September 1, 2018. In the meantime, police officers throughout the state will still be able to use the plain smell doctrine as probable cause to search the motor vehicles of alleged offenders.
What to Do After a Marijuana Arrest
If you are stopped by police in Arizona and police claim to smell the scent of cannabis in your vehicle, it can be difficult to prevent a search of your automobile—even when you believe that an officer may be lying. Alleged offenders should do their best to remain calm and take the same steps to exercise their rights that they would in any encounter with law enforcement.
Remember that the right to remain silent under the Fifth Amendment to the United States Constitution means that you do not have to answer any questions. Also remember that the Fourth Amendment guarantees your right to be free from unreasonable searches and seizures.
If a police officer searches your vehicle despite your refusal to consent to any searches and finds marijuana in your car, you may still be able to challenge the legality of the search. When an officer claims that he or she smelled cannabis in your vehicle, it can be a very difficult assertion to disprove but courts may still consider the totality of the circumstances involved if you attempt to suppress the evidence in a criminal case.
The validity of the search is not the only legal defense in marijuana possession cases. An alleged offender may be able to claim that the cannabis belonged to someone else or that he or she was not aware the marijuana was in his or her vehicle.
First-time offenders accused of cannabis possession in Arizona may be eligible for deferred prosecution in which they are placed on probation. If the alleged offenders successfully complete the terms of their probation, the criminal charges are dropped.
Criminal Defense Attorney for Cannabis-Related Charges in Mesa, AZ
As felony offenses, marijuana possession convictions carry severe penalties with many long-term consequences. In addition possible prison time and fines, alleged offenders can face a lifetime of difficulty obtaining employment or housing because of their criminal records.
When a person has been arrested for allegedly possessing any amount of cannabis in Arizona, it is critical to immediately retain legal counsel for help attempting to get the criminal charges reduced or dismissed. The Law Office of James E. Novak helps clients achieve the most favorable outcomes to marijuana possession cases.
James Novak has experience handling these types of cases on both sides of the aisle as a former prosecutor in Maricopa County. He understands the most effective defenses that can be raised when alleged offenders have been accused of any marijuana-related offense.
The Law Office of James E. Novak defends people who have been charged with possession, sale, or cultivation of marijuana. James Novak represents clients throughout the greater Maricopa County area, including Phoenix, Gilbert, Mesa, Scottsdale, Tempe, Chandler, and many surrounding communities.
Call (480) 413-1499 or fill out an online contact form today to take advantage of a fee, confidential consultation that will let our criminal defense lawyer review your case and discuss your legal options.
Additional Articles of Interest
Arizona Domestic Violence Laws, Penalties, Criminal Defense
The Lautenberg Amendment in Title 18 U.S. Code § 922(g)(9) prohibits shipment, transport, ownership and use of guns or ammunition by individuals who were convicted of a misdemeanor domestic violence offense or are under a protection order (commonly referred to as a restraining order) for domestic violence. The amendment was enacted in 1996 and has been the subject of numerous court challenges.
On June 27, 2016, the United States Supreme Court further clarified that even convictions for reckless domestic assault can be construed as domestic violence offenses that prohibit firearm possession. The 6-2 decision resolved lingering questions about the nature of misdemeanor domestic violence convictions than can lead to loss of firearm rights.
Voisine v. United States involved two cases being linked in one certiorari petition. Both of the men involved pled guilty to misdemeanor assault offenses in Maine, one in 2004 and the other in 2008. Both men were later found in possession of guns were federally prosecuted under 18 U.S.C. § 922(g).
The two men alleged that their convictions did not qualify as crimes of domestic violence for the purposes of the Lautenberg Amendment because the state laws they were convicted under were the results of reckless conduct, not intentional. In writing for the majority, Justice Elena Kagan noted:
In sum, Congress’s definition of a “misdemeanor crime of violence” contains no exclusion for convictions based on reckless behavior. A person who assaults another recklessly “use[s]” force, no less than one who carries out that same action knowingly or intentionally. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms.
The Court agreed to hear this case specifically to resolve the “reckless conduct” question that was left unanswered following the 9-0 decision in United States v. Castleman that a conviction for misdemeanor domestic assault in state court qualified as a misdemeanor crime of domestic violence under federal law, and thereby prohibited offenders him from having guns. The Court declined to answer whether the ban on firearm possession by individuals convicted of domestic violence violated their rights under the Second Amendment, although Justice Clarence Thomas wrote in his dissent that “a single conviction under a state assault statute for recklessly causing an injury to a family member—such as by texting while driving—can now trigger a lifetime ban on gun ownership” and “this decision leaves the right to keep and bear arms up to the discretion of federal, state, and local prosecutors.”
Domestic Violence and Firearm Rights in Arizona
Individuals convicted of domestic violence in Arizona had already effectively lost their firearm rights under the Supreme Court’s Castleman ruling, but the Voisine case did involve some Arizona case law. Before the case reached the Supreme Court, the United States Court of Appeals for the First Circuit affirmed the judgments of guilt.
In its dissent, however, the minority on the First Circuit cited the 2006 United States Court of Appeals for the Ninth Circuit case of Fernández–Ruiz v. Gonzales. In that case, “the Ninth Circuit held that a prior Arizona assault conviction did not constitute a crime of violence under § 16(a) because that federal statute ‘covers only those crimes involving intentional conduct,’ and thus the merely reckless use of force (as covered by the Arizona statute) was insufficient to establish a violation.”
Voisine focused on the definition of the “use … of physical force,” with the two men arguing that their conduct having been committed recklessly—not knowingly or intentionally—did not constitute crimes of domestic violence as defined under the Lautenberg Amendment. The Supreme Court, however, distinguished between acts of negligence in which it would be difficult to describe injuries caused as “active employment” of force and “reckless behavior—acts undertaken with awareness of their substantial risk of causing injury.”
According to the FBI, more than half of the victims of domestic violence homicides in Arizona between 2003 and 2012—61.1 percent—were killed with guns. In addition to federal prohibitions on purchases and possession of firearms for people convicted of domestic violence offenses in Arizona, officers are also allowed to temporarily seize firearms found at the scene of domestic violence incidents.
Arizona Domestic Violence Laws
Domestic violence is defined under Arizona Revised Statute § 13-3601 as any act that is a dangerous crime against children or an enumerated violent offense in which any of the following applies:
- The relationship between the alleged victim and the alleged offender is one of marriage or former marriage or of persons residing or having resided in the same household;
- The alleged victim and the alleged offender have a child in common;
- The alleged victim or the alleged offender is pregnant by the other party;
- The alleged victim is related to the alleged offender or the alleged offender’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law;
- The alleged victim is a child who resides or has resided in the same household as the alleged offender and is related by blood to a former spouse of the alleged offender or to a person who resides or who has resided in the same household as the alleged offender; or
- The relationship between the alleged victim and the alleged offender is currently or was previously a romantic or sexual relationship.
When determining whether the relationship between an alleged victim and the alleged offender is currently or was previously a romantic or sexual relationship, the following factors may be considered:
- The type of relationship;
- The length of the relationship;
- The frequency of the interaction between the victim and the defendant; and
- If the relationship has terminated, the length of time since the termination.
Many crimes of domestic violence are classified as felony offenses, but one of the most common misdemeanor charges is domestic assault. If an alleged offender commits assault against a child or family or household member, the crime becomes domestic assault.
Under Arizona Revised Statute § 13- 1203, a person can be charged with domestic assault if he or she commits any of the following against a child or family or household member:
- Intentionally or knowingly causing any physical injury to another person is a class 1 misdemeanor;
- Recklessly causing any physical injury to another person is a class 2 misdemeanor;
- Intentionally placing another person in reasonable apprehension of imminent physical injury is a class 2 misdemeanor; or
- Knowingly touching another person with the intent to injure, insult or provoke such person is a class 3 misdemeanor.
Convictions for domestic assault can result in jail time, fines, domestic violence classes, and loss of the right to possess a firearm.
What to Do After a Domestic Violence Arrest
When police officers respond to a call relating to a domestic violence matter, chances are high that one person will usually be placed under arrest. Alleged offenders in these instances should absolutely refuse to say anything to authorities until they have legal counsel.
It is not uncommon for the alleged victims in domestic violence arrests to express a desire to want to “drop the charges.” Alleged offenders should not interpret these wishes as meaning that the incidents will simply be forgotten about.
A prosecutor is the only party that has the power to drop criminal charges. Even if an alleged victim does not want to cooperate, the prosecutor can still pursue a case against an alleged offender when he or she feels there is enough evidence to support the charges.
Anybody who has been arrested for a domestic violence offense in Arizona should immediately contact an experienced Mesa criminal defense lawyer. An attorney will not only advise the alleged offender on how to answer certain questions, but can also begin negotiating a plea agreement that can help secure a favorable outcome with the fewest possible penalties.
An alleged offender who has been arrested for domestic violence will not only have to appear in court to answer criminal charges, but he or she could also have to appear in court if the alleged victim has sought an order of protection. In such cases, judges often err on the side of caution and prefer to keep orders of protection in effect if they will keep alleged victims safe.
Orders of protection can result in several consequences in addition to criminal penalties, such as possible loss of child custody or access to a shared home. When people are accused of any kind of domestic violence in Arizona, it is critical to understand that judges will not accept a claim that an alleged victim’s accusations are exaggerated or fabricated without evidence to support the belief.
Criminal Defense Attorney for Domestic Violence Charges in Mesa, AZ
A conviction for any crime of domestic violence can have serious and long-lasting consequences for an alleged offender. Individuals with these offenses on their criminal records not only face harsh immediate penalties in the forms of incarceration and fines, but possibly also several years or even a lifetime of struggles obtaining employment, housing , or professional licensing.
Anybody charged with a domestic violence offense will want to be sure to seek aggressive and experienced legal representation for help exploring all possible defenses. An alleged offender may have a valid self-defense claim, or perhaps the prosecution does not have enough evidence to support the criminal charges.
As a former prosecutor in Maricopa County, James Novak of The Law Office of James E. Novak understands how these cases are handled. He has a thorough understanding of the best possible defenses against domestic violence and can use his experience to fight to get the criminal charges reduced or dismissed.
The Law Office of James E. Novak represents clients who have been accused of domestic assault, aggravated domestic violence, child abuse, child endangerment, stalking, and many other domestic violence offenses. James Novak works tirelessly to achieve the most favorable outcomes for clients all over Maricopa County, including Phoenix, Tempe, Scottsdale, Chandler, Mesa, and many other surrounding communities.
You can receive an honest and thorough evaluation of your case as soon as you call The Law Office of James Novak at (480) 413-1499 or complete an online contact form to schedule a free, confidential consultation.
Additional Articles of Interest
DEA danger warnings; Arizona Laws, Facts, Trends, and Criminal Defense
The National Centers for Disease Control (CDC) reported this year that the USA is facing drug overdose deaths in epidemic proportions.
In the data collected by the CDC, it was concluded that overdoses increased 137 percent over the last decade.
This included a 200 percent increase in overdoses that involved pain relievers and opioids fentanyl and heroin.
Last year the United States Drug Enforcement Administration (DEA) issued a nationwide alert about the dangers of fentanyl and fentanyl analogues or compounds after the anesthesia drug was being increasingly laced in heroin.
The DEA Administrator recently reported that fentanyl and fentanyl analogues were up to 100 times more powerful than morphine and 30-50 times more powerful than heroin.
Fentanyl is a powerful opioid analgesic typically used to treat patients with severe pain or, manage pain after surgery, or treat people with chronic pain.
The National Institute on Drug Abuse defines heroin is a highly addictive opioid drug. It is an abstract of morphine.
When the two are combined the dose becomes lethal, with one dose sufficient enough to cause death.
The Glaring Questions
In light of the inherent dangers and reports of rising death tolls, begs the questions: Why are people still using? Why are people still buying? And why are dealers selling a drug so dangerous, they dare not use themselves?
When it comes to illegal drug manufacturing and sales, it can be difficult to remember that for dealers it is a business.
Like any other business that sells goods or products the seller is looking to make a profit. So they need to buy low, fulfill a market demand, sell it for a competitive price, and make it accessible.
Fentanyl is far less expensive than heroin to buy, and so if mixed with the heroin can reap a greater profit.
The deadly combination only costs about $10.00 or less on the street, making it easier to sell and buy.
The dealer can buy low, sell low, and still make a lucrative profit.
Due to competition on the street and market demand for a stronger drug by those who suffer from addiction more potent drugs and dangerous drugs like fentanyl laced heroin are being sold.
According to the Drug Enforcement Administration, fentanyl laced opioids are abused for their intense euphoric effects, as it can serve as a direct substitute for heroin in opioid dependent individuals.
In cases where a chronic user has developed a tolerance to heroin and no longer gain the high they did in the past, they may seek to find something that will, regardless of the risks.
Those looking for more potent and dangerous drug often seek drugs that are responsible for death and overdose, somehow feel they can tolerate such a dangerous drug.
Those suffering from addiction to the drug will seek out such deadly drugs, under the premise that they feel they can handle its potency, where others could not.
But not all users are aware of its dangers, or even that the heroin itself is laced with fentanyl.
In either case, the potential for comma or death is imminent, even in the smallest of doses.
Arizona Narcotic Drug Laws and Criminal Penalties
The dangerous consequences involving fentanyl based opioids or heroin go far beyond the health risks.
Unfortunately many do not seek treatment in their battle with opioid addiction, until it is too late.
But if a dependent user can obtain successful treatment in time, they may be reduce or eliminate
their risk of overdose, fatality, or serving years in prison.
Felony drug offenses carry some of the most serious penalties under Arizona Law.
Arizona Revised Statute 13-3401 classifies fentanyl as a narcotic drug—the same classification for heroin under this statute.
Those charged with possession of heroin or illegal use of fentanyl in Arizona face serious penalties.
Under Arizona Revised Statute 13-3408, criminal charges relating to fentanyl or heroin can include:
- Possession or use of a narcotic drug is a class 4 felony punishable by a presumptive sentence of 2.5 years in prison;
- Possession of a narcotic drug for sale is a class 2 felony punishable by a presumptive sentence of 5 years in prison;
- Possession of equipment, chemicals, or both, for the purpose of manufacturing a narcotic drug is a class 3 felony punishable by a presumptive sentence of 3.5 years in prison;
- Manufacture of a narcotic drug is a class 2 felony punishable by a presumptive sentence of 5 years in prison;
- Administration of a narcotic drug to another person is a class 2 felony punishable by a presumptive sentence of 5 years in prison;
- Obtaining or procuring the administration of a narcotic drug by fraud, deceit, misrepresentation or subterfuge is a class 3 felony punishable by a presumptive sentence of 3.5 years in prison; and
- Transport for sale, import into Arizona, offer to transport for sale or import into Arizona, sell, transfer or offer to sell or transfer a narcotic drug is a class 2 felony punishable by a presumptive sentence of 5 years in prison.
All heroin offenses are classified as felonies, which call for prison sentences. If the quantity of heroin found in a person’s possession exceeds 1 gram, longer term prison sentences will apply.
In general, the higher the quantity found, the more harsh the prison sentencing if the defendant is convicted.
Criminal Defense for Heroin and Fentanyl Charges in Maricopa County
“Prepared to Defend”
– James Novak, Law Office of James Novak, PLLC
Any drug charge in Arizona relating to heroin or fentanyl in Arizona is a felony offense. A conviction for a felony can lead to the loss of the rights to vote, hold public office, serve as a juror, and possess a gun or firearm.
Some alleged offenders accused of heroin or fentanyl offense may be eligible for the Maricopa County Drug Court Program. Drug court allows alleged offenders to have felony charges reduced to misdemeanors upon successful completion of the year-long drug court program.
Participants in this program must submit to random drug tests, maintain a full-time job, and complete a treatment program. Alleged offenders must also regularly report to probation officers and attend sober support group meetings.
Not everybody is eligible to participate in the drug court, but this does not mean that a conviction is automatic. Unknowing possession of illegal drugs, illegal search and seizure violations, or legal possession of a prescription medication can all be defenses that can result in heroin or fentanyl charges being significantly reduced or completely dismissed.
James Novak is a former prosecutor for Maricopa County who has handled these types of cases on both sides of the aisle. This unique perspective allows him to identify the most effective defenses for clients that help them secure the most favorable outcomes to their cases. If you were arrested for a heroin or fentanyl drug offense, contact an experienced criminal defense lawyer at the Law Office of James Novak today for a free, confidential consultation.
Other Articles of Interest:
One of least understood and most commonly charged crimes in Arizona is “Failure to Comply with a Lawful Order” in violation of Arizona Revised Statutes (ARS) section 28-622(A). The crime is classified as a class 2 misdemeanor. The statute provides:
28-622. Failure to comply with police officer…
- A person shall not wilfully fail or refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic. (“Willful” and its variations are spelled “wilful” in the statute, an accepted but archaic spelling in American English.)
But the question remains, how do you assert your rights during a traffic stop without running the risk of being arrested with “Failure to Comply” under ARS Section 28-622(A)?
First, it is important to remember that an officer can either ask you to do something or order you to do something. If the officer is merely inviting you to do something on a voluntary basis without ordering you to do it, then you are free to decline the invitation.
On the other hand, if the officer gives you an order that is “lawful” when it is issued, then you should comply in order to avoid an arrest and prosecution for ARS 28-622(A). Making such a decision in the heat of the moment at the scene creates problems for the officer and the person being detained.
A Recent Challenge to the Constitutionality of ARS 28-622(A)
A recent decision from the Court of Appeals of Arizona, issued on October 8, 2015, sheds light on the nature of the charge and the vagueness of its terms. Although many criminal defense attorneys consider the charge a “catch-all” provision that allows an officer to make an arrest even when no other crime was committed, the Courts have upheld its constitutionality after a recent challenge.
The decision shows the tremendous and nearly unlimited discretion officers have to make an arrest for merely failing to company with an order of the law enforcement officer. At trial, the job of the criminal defense attorney is to show reasonable doubt about one of the elements of the offense, including whether:
- The defendant acted willfully;
- The defendant failed or refused to comply with an order or direction of a police officer;
- The order or direction was a lawful order at the time it was issued; and
- The police officer was invested by law with authority to direct, control or regulate traffic.
In State v. Burke, (No. 1 CA-CR 14-0438. Court of Appeals of Arizona, Division One. October 8, 2015), the Court recently examined the constitutionality of the statute after a prosecution by the Scottsdale City Prosecutor’s Office. The bench trial took place in the Scottsdale Municipal Court. After the conviction, the defendant appealed to the Maricopa County Superior Court arguing, among other things, that the A.R.S. § 28-622(A) is unconstitutionally vague and over broad.
The Court briefly recounted the facts of the case as follows:
“This case arises out of a routine traffic stop. After Burke allegedly failed to stop at a stop sign, a police officer pulled Burke over, asked him for his license and registration, and directed him not to move his vehicle. Burke disobeyed the instructions, drove his vehicle to the side of the roadway, called 911, and eventually exited his vehicle after additional officers arrived on the scene. Burke was arrested after exiting his vehicle.”
On appeal the Court held that the statute was not vague because “the statute does not punish individuals for a mere failure to obey; instead, it requires a willful, or knowing refusal or failure to comply, which is tantamount to an affirmative act of rejection.”
Therefore, the Court found that the terms “wilful” and “wilfully fail,” as used in the statute, are not so indefinite as to be considered constitutionally invalid.
Burke also argued that the phrase “lawful order or direction” in A.R.S. § 28-622(A) lacks sufficient definiteness such that it is unconstitutionally vague. The Court recognized that the term “lawful order” was not defined by the Arizona Legislature in the statutory scheme.
The Court, however, looked at the ordinary meaning of that phrase and found it required “the individual to comply with a police officer’s instructions that are, at the time they are issued, authorized by law.” The Court noted that because “many police orders can be deemed lawful (e.g.: “step out of the car with your hands up,” or to the person exiting the vehicle, “put down your weapon”), the facial attack here must fail.”
The Court also argued that A.R.S. § 28-622(A) was not unconstitutionally vague because did not fail to establish minimal guidelines for enforcement or open up the possibility of discriminatory and arbitrary enforcement.
Recent Decision on on the Constitutionality of ARS 28-622 — Visit the portals of Azcourts.gov, the website for the Arizona Judicial Branch, to find recent court decisions from the Court of Appeals in the State v. Burke case. Also find recent decisions issued by the Arizona Supreme Court, as well as publications and reports, licensing and regulations, a self help center, and information from the Administrative Office of the Courts (AOC).
ARS 28-622 — Failure to Comply with a Police Officer — Visit the website of the Arizona Legislature to read the complete statutory language of the Failure to Comply with a Police Officer statute under ARS 28-622.
Finding an Attorney in Arizona for “Failure to Comply” Cases
If you were charged with willfully refusing or failing to comply with a lawful order or direction of a police officer in violation of Arizona Revised Statutes (“A.R.S.”) section 28-622(A), then contact James Novak, an experienced criminal defense attorney in Tempe, AZ.
James Novak represents clients on misdemeanor and felony charges throughout the greater Phoenix area and the surrounding East Valley Cities including Scottsdale, Tempe, Chandler, and Gilbert, Arizona.
James Novak also represents clients on related charges including Disorderly Conduct under ARS 13-2904, Resisting Arrest under ARS 13-2508, and Unlawful Flight from a Pursuing Law Enforcement Vehicle under ARS 28-622.01.
On November 20, 2015, the Supreme Court of Arizona decided Dobson v. McClennen (P.3d, 2015 WL 7353847, Arizona Supreme Court 2015). The decision has important implications for individuals that use medical marijuana and might have THC or its metabolite in their system but drive at a time when they are not impaired. Jokingly called the “Driving While a Habitual User of Marijuana,” these prosecutions are no joke.
Although the responsible use of cannabis for medical purposes has largely been decriminalized in Arizona, prior to this decision the DUI laws effectively made it a crime to drive as a medical marijuana patient (even after the impairing effects faded and disappeared). In other words, using medical marijuana should not automatically be a DUI when there was no actual impairment at the time of driving.
The decision in Dobson v. McClennen didn’t make either side happy. The defense wanted a ruling that Medical Marijuana Patients were immune from the “per se” version of DUI under § 28–1381(A)(3). On the other hand, the prosecution wanted a ruling that a positive blood test meant an automatic “per se” DUI conviction under § 28–1381(A)(3). The Court rejected both positions and came up with a middle ground that leaves many of the complicated issues surrounding driving after consuming medical marijuana unresolved.
In these cases, the main evidence is usually a blood test revealing THC and/or its impairing metabolite, hydroxy-THC. But this evidence alone doesn’t necessary mean that the driver was actually impaired by marijuana at the time of driving. THC and its metabolite stay in a driver’s system long after the impairing effects have disappeared.
In these cases, the presence of THC or its metabolite hydroxy-THC is largely irrelevant to impairment. In other words, the presence of THC or the metabolite hydroxy-THC often has little correlation with actual impairment. Now if the defense raises this new affirmative defense at trial, the issue is left up to the fact-finder to decide.
Under this recent decision, the driver must present some evidence to raise the affirmative Arizona Medical Marijuana Act (AMMA) Marijuana DUI defense. Raising the affirmative defense would require a showing by the defendant, by a preponderance of the evidence, of the following:
- That the driver was covered by the AMMA as a registered qualifying patient (or held an equivalent out-of-state-issued medical marijuana registry identification cards which could be shown by admitting the card into evidence or presenting other evidence of its existence); and
- Showing that the concentration of marijuana or its impairing metabolite in their bodies was insufficient to cause actual impairment at the time of driving.
How would the second showing be made? In many of these trials, expert witness testimony could establish that the concentration was insufficient to cause impairment at the time the driving occurred.
The expert witness could be the same witness called by the prosecutor when the blood test and its result are admitted into evidence. Additionally, the defense could call its own expert to testify about this point. In many of these cases, the expert will be able to testify that although the blood test might reveal THC and/or its impairing metabolite hydroxy-THC, based on the driver’s testimony about the timeline of consumption, the amount would not cause actual impairment at the time of driving. Even the experts will have a hard time explaining it to the jury because, unlike for alcohol, there is no accepted threshold for marijuana impairment. Even according to the National Highway Traffic Safety Administration, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.”
Other admissible evidence might come from the driver testifying that he or she did not feel impaired. The defense would also be able to argue that other evidence showed a lack of impairment including a safe driving pattern and good performance on field sobriety exercises.
Ultimately, the driver’s DUI convictions in these cases were upheld. But the decision provides an important road map for other people in a similar situations. At the very least, this decision makes a prosecution for driving while impaired by marijuana much more difficult under § 28–1381(A)(3) alone.
The Defendants were convicted in the Maricopa County Municipal Court of driving with an impermissible drug or its metabolite in a person’s body. After the conviction, the Defendants appealed the conviction to the Maricopa County Superior Court. The Superior Court affirmed the conviction.
The Defendants then sought special action review in the court of appeals, which accepted jurisdiction but denied relief finding that “neither A.R.S. § 36–2811(B) nor § 36–2802(D) provides immunity for defendants facing charges for driving with an impermissible drug or impairing metabolite in their bodies under A.R.S. § 28–1381(A)(3).”
Then the Defendants sought relief from the Arizona Supreme Court. The Supreme Court granted review because whether the AMMA immunizes a medical marijuana cardholder from DUI prosecution under § 28–1381(A)(3) presents a recurring issue of statewide importance.
The Supreme Court of the State of Arizona held, as a matter of first impression, that an affirmative defense to the charge could have been made by showing that a qualifying patient’s use of marijuana was authorized by the AMMA and was in a concentration insufficient to cause impairment. The Court also found that under the facts of the case any error in excluding evidence of defendants’ registry cards under the AMMA was harmless.
The Chief Assistant City Prosecutor for the Mesa City Prosecutor’s Office represented the State in the appeal. An amicus brief was filed by Thomas W. Dean, Phoenix, Attorney for Amicus Curiae National Organization for the Reform of Marijuana Laws (NORML).
Arizona’s laws generally make it a crime for a person to drive with any amount of certain drugs, including marijuana or its impairing metabolite, in the person’s body. (A.R.S. § 28–1381(A)(3)). In the case, the Arizona Supreme Court held for the first time that “the AMMA does not immunize a medical marijuana cardholder from prosecution under § 28–1381(A)(3), but instead affords an affirmative defense if the cardholder shows that the marijuana or its metabolite was in a concentration insufficient to cause impairment.”
Facts of the Case
The facts of the case showed that two drivers were each charged with two counts of driving under the influence (“DUI”). Count one alleged a violation of A.R.S. § 28–1381(A)(1), which prohibits a person from driving a vehicle in Arizona “[w]hile under the influence of … any drug … if the person is impaired to the slightest degree.” Count two alleged a violation of § 28–1381(A)(3), which prohibits driving a vehicle “[w]hile there is any drug defined in § 13–3401 or its metabolite in the person’s body.” Cannabis (marijuana) is a drug defined in A.R.S. § 13–3401(4).
In each case the driver submitted to a blood test that showed the driver had marijuana and its impairing metabolite in his or her body. The drivers also stipulated to the fact that they “had marijuana in their bodies while driving (blood tests revealed both THC and its impairing metabolite hydroxy-THC) and their failure to offer any evidence that the concentrations were insufficient to cause impairment.” Instead, the only evidence they offered was their respective registry identification cards into evidence.
Before trial, the municipal court in Maricopa County denied the driver’s motion to present evidence at trial that the driver held an out-of-state-issued medical marijuana card. The Court also granted the State’s motion in limine to preclude evidence that the driver held an out-of-state-issued medical marijuana card.
Neither driver tried to introduce at trial any evidence other than their respective medical marijuana cards.
Each was convicted of the § 28–1381(A)(3) charge, which prohibits driving a vehicle “[w]hile there is any drug defined in § 13–3401 or its metabolite in the person’s body.”
History of the Arizona Medical Marijuana Act (AMMA)
The Arizona Medical Marijuana Act (AMMA) was passed by voters in Arizona in 2010. The provisions of the AMMA were codified as A.R.S. §§ 36–2801–2819 which allows a person who has been diagnosed by a physician as having a debilitating medical condition to apply for a card identifying the holder as a registered qualifying patient. After becoming a registered qualifying patient, the person may possess and use limited amounts of marijuana for medical reasons.
The AMMA broadly immunizes the patient from prosecution for using medical marijuana consistent with the Act. The AMMA broadly immunizes registered qualifying patients for their medical use of marijuana, providing:
A registered qualifying patient … is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau: (1) For the registered qualifying patient’s medical use of marijuana pursuant to this chapter, if the registered qualifying patient does not possess more than the allowable amount of marijuana. (A.R.S. § 36–2811(B)(1)).
The Court noted that the grant of immunity is not absolute. The Court noted that the AMMA does not prohibit prosecutions for operating a motor vehicle or water vessel while under the influence of marijuana under A.R.S. § 36–2802(D). However, in those cases, “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”
On the other hand, Arizona’s DUI laws identify “separate offenses for driving while a person is under the influence of marijuana and ‘impaired to the slightest degree,’ A.R.S. § 28–1381(A)(1), and driving while there is marijuana or its metabolite ‘in the person’s body.’ § 28–1381(A)(3).”
Therefore, an § 28–1381(A)(3) violation, unlike an (A)(1) violation, does not require the state to prove that the defendant was in fact impaired while driving or in control of a vehicle.
The Court also noted that (A)(1) and (A)(3) offenses for DUI also differ with respect to possible defenses. The Court noted that this was the first case in which the Supreme Court was called upon to resolve how the AMMA affects (A)(3) prosecutions.
The court noted that “Section 36–2802(D) does not say that registered qualifying patients cannot be prosecuted for (A)(3) violations. Instead, it provides that such patients, who use marijuana ‘as authorized’ by the AMMA, id. § 36–2802(E), cannot “be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” Id. § 36–2802(D) (emphasis added).”
The Affirmative Marijuana AMMA Defense in a DUI Case
In setting forth the parameters of the Affirmative Marijuana AMMA Defense in a DUI Case the court noted that:
Section 36–2802(D), rather than § 28–1381(D), defines the affirmative defense available to a registered qualifying patient to an (A)(3) charge. If their use of marijuana is authorized by § 36–2802(D), such patients cannot be deemed to be under the influence—and thus cannot be convicted under (A)(3)—based solely on concentrations of marijuana or its metabolite insufficient to cause impairment.
Possession of a registry card creates a presumption that a qualifying patient is engaged in the use of marijuana pursuant to the AMMA, so long as the patient does not possess more than the permitted quantity of marijuana. A.R.S. § 36–2811(A)(1). That presumption is subject to rebuttal as provided under § 36–2811(2).
A qualifying patient may be convicted of an (A)(3) violation if the state proves beyond a reasonable doubt that the patient, while driving or in control of a vehicle, had marijuana or its impairing metabolite in the patient’s body. The patient may establish an affirmative defense to such a charge by showing that his or her use was authorized by the AMMA—which is subject to the rebuttable presumption under § 36–2811(2)—and that the marijuana or its metabolite was in a concentration insufficient to cause impairment.
The patient bears the burden of proof on the latter point by a preponderance of the evidence, as with other affirmative defenses. See A.R.S. § 13–205 (“[A] defendant shall prove any affirmative defense raised by a preponderance of the evidence.”).
Problems with Assigning the Patient the Burden of Showing Lack of Impairment
By limiting the defense to an affirmative defense, the Court essentially assigned to qualifying patients “the burden of showing that they did not have marijuana concentrations sufficient to cause impairment….” As a practical matter, this is a difficult task because there is no commonly accepted threshold for identifying marijuana concentrations sufficient to cause impairment. In fact, the courts in Arizona have previously explained that there are “no generally applicable concentration that can be identified as an indicator of impairment for illegal drugs.” Cf. State ex rel. Montgomery v. Harris (Shilgevorkyan), 234 Ariz. 343, 347 ¶ 24, 322 P.3d 160, 164 (2014).
The Court, nevertheless, decided that the “risk of uncertainty in this regard should fall on the patients, who generally know or should know if they are impaired and can control when they drive, rather than on the members of the public whom they encounter on our streets.”
The Court ultimately noted that the drivers in the case before them had made no effort to show that the marijuana in their bodies was in an insufficient concentration to cause impairment. Instead, they argued that the AMMA categorically barred the (A)(3) charge. As such, the only evidence they offered was their respective registry identification cards into evidence. The court noted that evidence of possession of a registry card would generally be admissible in an (A)(3) prosecution to invoke the presumption that the patient was using marijuana pursuant to the AMMA, but it does not suffice to establish the § 36–2802(D) affirmative defense. Therefore, any error by the trial court in excluding evidence of the registry cards was harmless under the particular facts of that case.
The Court found that instead of “shielding registered qualifying patients from any prosecution under A.R.S. § 28–1381(A)(3), the AMMA affords an affirmative defense for those patients who can show, by a preponderance of the evidence, that the concentration of marijuana or its impairing metabolite in their bodies was insufficient to cause impairment.”
Ultimately, the drivers’ convictions were upheld. But the decision at least provides a road map to other people in a similar position to have their Arizona or out-of-state-issued medical marijuana registry identification cards into evidence or prove other evidence of its existence. The decision would also allow the driver to present the affirmative defense of showing, by a preponderance of the evidence, that the concentration of marijuana or its impairing metabolite in their bodies was insufficient to cause impairment.
Arizona Supreme Court Rules on Medical Marijuana in DUI Cases — Visit The Arizona Republic to find an article by Michael Kiefer and Yvonne Wingett Sanchez which was published on November 20, 2015. The article discusses the new affirmative defense announced by the Arizona Supreme Court on Friday.
Legally Speaking: Change in Arizona DUI law gives medical marijuana holders fair shake — Article published by Monica Lindstrom on November 20, 2015 about the Supreme Court’s recent decision to add an affirmative defense to Arizona’s DUI laws on Friday for qualified card holder under the Arizona Medical Marijuana Act.
Arizona Drugged Driving DUI — Visit the website for the National Organization for the Reform of Marijuana Laws to learn more about the so-called drugged driving laws in Arizona including affirmative defenses, implied consent, penalties, sobriety checkpoints, per se drugged driving laws and case law.
If you were charged with DUI involving a blood test showing the presence of THC and/or its impairing metabolite hydroxy-THC, then contact an experienced criminal defense attorney at the Law Office of James Novak. Call us today to discuss your case and the best ways to present the Affirmative Marijuana AMMA Defense in your case.