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bulletsIn a recent unpublished Arizona appellate opinion, the defendant appealed a conviction for aggravated assault, for which he was sentenced to a term of 8 1/2 years imprisonment. The case arose when the defendant’s brother rode a bike to their mom’s house, where his brother lived with the mom. The brother had previously had fights with the defendant. When he came up to the gate, he found it was locked. He realized his mother wasn’t going to come out, so he started to ride off on his bike. His brother fired a gun at him twice, hitting him in the right leg.

The weapon wasn’t located, but police found a bullet in the defendant’s pocket and a bullet in a bag he was carrying right after the shooting. A detective met with the victim in his hospital room and saw a circular wound that looked like a gunshot wound on the victim’s leg. He also observed an x-ray that showed a bullet inside his leg. The victim told the detective that “Cotton” shot him—Cotton was the defendant’s nickname. The defendant was charged with aggravated assault with a deadly weapon, which is considered a dangerous offense.

In jail, the defendant called six family members, asking to make sure his brother wouldn’t come to trial to testify against him. He told his mother, sister, niece, and brother the date of the trial and said that if his brother didn’t show up, he wouldn’t be convicted. He also asked his mother to schedule a family meeting with the brother so that she could remind him that if he testified, the defendant would miss family Christmases. He also asked his niece to tell his brother that he would be disowned if he testified. His sister told the defendant that she talked to the victim, and the victim wasn’t going to be a problem. The defendant made many other efforts to get the victim not to show up at trial.

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a-crack-in-the-ground-1630956-1-e1485294664299In the unpublished opinion State of Arizona v. Scott, an Arizona appellate court considered the defendant’s conviction for disorderly conduct with a deadly weapon. The case arose when the victim and the defendant, who were married, got into a physical altercation. The husband was indicted for two counts of misconduct involving weapons and two counts of domestic-related aggravated assault.

The husband admitted that his wife was hurt and that he used a firearm during the incident. The wife suffered from paranoid schizophrenia and was medicated for it. She admitted on the stand that she’d been previously arrested for aggravated assault against her husband, that she’d previously been committed to a mental institution, and that she was susceptible to memory loss.

The husband alleged she attacked him, and he was simply defending himself. He was allowed to testify about his wife’s prior attacks and descriptions of having violent content of voices in her head, as well as his knowledge of her mental health diagnosis and medications.

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carYou should be aware that allowing your vehicle or license registration to expire may provide police officers with a reasonable suspicion to stop you while driving in Arizona. Under A.R.S. section 28-2153, you cannot operate a motor vehicle that has not been registered with the department.

In the unpublished opinion of State v. Avalos, the defendant appealed after being convicted of aggravated DUI and aggravated driving with a blood alcohol content of .08 or more while his license was restricted, revoked, or suspended. He had been sentenced to concurrent terms of 10 years in prison.

A Tucson officer stopped the defendant after the officer checked the records and found the registration for the defendant’s car had expired eight days before. The officer approached the car, and the defendant got out and handed him his keys, saying he knew that the officer would tow the car. The officer took him back to the car and saw open beer bottles on the floor of the car at the driver’s seat.

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Tempe criminal defense lawyerArizona Among Highest Increases in Fatal Alcohol-Related Accidents

The good news would be that the East Valley Tribune reported on January 8 that driving under the influence (DUI) arrests in Arizona decreased 14 percent from 2014 to 2016. The bad news, however, is that CBS News reported on December 26, 2016, that 2016 could go down as one of the worst years for drunk driving deaths.

The 10,265 people killed in alcohol-impaired crashes in 2015 was an increase of nearly 300 from 2014, and 2016 was shaping up to be even deadlier. Mark Rosekind of the National Highway Traffic Safety Administration (NHTSA) told CBS News that the agency was seeing increases it had not seen in 50 years.

According to NHTSA, the 272 Arizona alcohol-impaired driving fatalities in Arizona in 2015 were a 36 percent increase from the 200 such deaths in 2014. While other states had higher fatality totals and larger percentages of drunk driving deaths, Arizona was among the five highest alcohol-impaired driving fatality increases.

In 2014, NHTSA reported that 64 percent of the 9,967 total fatalities in alcohol-impaired driving crashes were drivers with a blood alcohol concentration (BAC) of 0.08 or higher. Another 15 percent were passengers with BACs of 0.08 or higher, and the remaining 20 percent were occupants of other vehicles or nonoccupants such as pedestrians, bicyclists, and others.

In November 2016, Mothers Against Drunk Driving (MADD) released its 2016 Report to the Nation. In the report, Arizona was one of only five states to score four-and-a-half stars out of five for drunk driving countermeasures such as ignition interlock devices (IIDs), sobriety checkpoints, administrative license revocation (ALR), child endangerment, and refusal to submit to alcohol breath tests.

CBS News reported last month that NHTSA is hoping that new technology, such as sensors that would measure a driver’s BAC and prevent an automobile from starting if it is too high, will reduce drunk driving deaths. Such technology, however, could still be some time away and authorities in the meantime will be more likely to actively seek out and arrest alleged offenders with prosecutors more aggressively seeking harsh punishments for alleged DUI offenders who have high BACs and/or cause accidents that injure or kill other people.

Extreme and Super Extreme DUI Penalties in Arizona

Many traditional DUI arrests involve alleged offenders being charged with offenses under Arizona Revised Statute § 28-1381, which criminalizes driving or being in actual physical control of a vehicle when a person has a BAC of 0.08. If an alleged offender, however, has a BAC of 0.15 or more but less than 0.20, he or she may be charged with driving or actual physical control while under the extreme influence of intoxicating liquor (also known as extreme DUI) under Arizona Revised Statute § 28-1382. If the alleged offender had a BAC of 0.20 or higher, then that person could face super extreme DUI charges.

While all first DUI offenses are classified as class 1 misdemeanors that can result in a 90-day suspension of a driver’s license, the BAC level of the alleged offender can drastically impact the severity of the other possible penalties if convicted:

Non-Extreme DUI (0.08-0.149) Extreme DUI (0.15-0.199) Super Extreme DUI (0.20 or higher)
Minimum Jail Sentence One day 30 days 45 days
Fines
  • $250 fine + 80 percent surcharge$500 prison assessment
  • $500 Department of Public Safety (DPS) assessment
  • Jail costs
  • Evaluation costs
  • Treatment costs
  • Probation fees
  • $250 fine + 80 percent surcharge$1,000 prison assessment
  • $1,000 DPS assessment
  • $250 abatement fee
  • Jail costs
  • Evaluation costs
  • Treatment costs
  • Probation fees
  • Approximately $3,500 in fines and costs
  • Approximately $3,000 in jail costs
Minimum IID installation period 12 months 18 months 18 months

If an alleged offender is arrested for a second offense, the crime remains a class 1 misdemeanors but driver’s licenses may be revoked for one year and other penalties again increase for extreme or super extreme DUI offenses:

Non-Extreme DUI (0.08-0.149) Extreme DUI (0.15-0.199) Super Extreme DUI (0.20 or higher)
Minimum Jail Sentence 30 days 120 days 180 days
Fines
  • $250 fine + 80 percent surcharge$1,250 prison assessment
  • $250 abatement fee
  • Jail costs
  • Evaluation costs
  • Treatment costs
  • Probation fees
  • $250 fine + 80 percent surcharge$1,250 prison assessment
  • $1,250 DPS assessment
  • $250 abatement fee
  • Jail costs
  • Evaluation costs
  • Treatment costs
  • Probation fees
  • Approximately $4,500 in fines and costs
  • Approximately $12,500 in jail costs
Minimum IID installation period 12 months 24 months 24 months

A third DUI offense within a period of 84 months (seven years) constitutes aggravated DUI under Arizona Revised Statute § 28-1383. Aggravated DUI is a class 4 felony that can carry a minimum of four months in prison plus a fine of up to $150,000 plus an 80 percent surcharge, a $1,500 prison assessment, a $250 abatement fee, evaluation costs, treatment costs, and probation fees as well as a three-year revocation of the alleged offender’s driver’s license.

Arizona DUI accidentCriminal Charges Following DUI-Related Crashes

Arizona does not have a specific statute set aside for DUI crimes that result in death or bodily injury, but alleged offenders may be charged with enhanced DUI offenses or other crimes. Even first-time DUI offenders can face aggravated DUI charges if they are accused of causing an accident that results in another party suffering bodily injury.

In some cases, alleged offenders who were allegedly intoxicated when causing a crash that resulted in serious bodily injuries may be charged with aggravated assault. Under Arizona Revised Statute § 13-1204, an alleged offender commits aggravated assault if he or she commits assault (intentionally, knowingly or recklessly causes any physical injury to another person) that either causes serious physical injury to another person or involved the use of a deadly weapon or dangerous instrument.

A motor vehicle can be considered a deadly weapon or dangerous instrument in Arizona, and operating a motor vehicle while under the influence of alcohol can be considered reckless behavior. Aggravated assault is classified as a class 3 felony offense, which means a conviction is punishable by a minimum of two-and-a-half years up to seven years in prison as well as many of the fines associated with the underlying DUI offense.

If another person dies as the result of an accident allegedly caused by a drunk driver, the alleged offender may be charged with a homicide offense under Title 13, Chapter 11 of the Arizona Revised Code. The criminal charge that an alleged offender faces will depend on the culpable mental state of that person. Arizona Revised Statute § 13-105.10 provides the following definitions for culpable mental states:

  • Intentionally means, with respect to a result or to conduct described by a statute defining an offense, that a person’s objective is to cause that result or to engage in that conduct;
  • Knowingly means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person’s conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission;
  • Recklessly means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk; and
  • Criminal negligence means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

When an alleged DUI offender causes the death of another person, that individual could be charged with one of the following homicide offenses:

  • Negligent Homicide, Arizona Revised Statute § 13-1102 — An alleged offender with criminal negligence causes the death of another person, including an unborn child. This is a class 4 felony, and the use of a deadly weapon or dangerous instrument (such as a vehicle) can make a conviction punishable by up to eight years in prison;
  • Manslaughter, Arizona Revised Statute § 13-1103 — An alleged offender recklessly causes the death of another person, or knowingly or recklessly causing the death of an unborn child by any physical injury to the mother. This is a class 2 felony, and alleged non-extreme DUI offenders may be sentenced to up to 10 years in prison. Extreme or super extreme DUI cases, however, can result in sentences of up to 21 years in prison;
  • Second Degree Murder, Arizona Revised Statute § 13-1104 — An alleged offender commits second degree murder if without premeditation the person intentionally causes the death of another person, including an unborn child or, as a result of intentionally causing the death of another person, causes the death of an unborn child; knowing that the person’s conduct will cause death or serious physical injury, the person causes the death of another person, including an unborn child or, as a result of knowingly causing the death of another person, causes the death of an unborn child; or under circumstances manifesting extreme indifference to human life, the person recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person, including an unborn child or, as a result of recklessly causing the death of another person, causes the death of an unborn child. Second degree murder is a class 1 felony is punishable by up to 22 years in prison.

The level of an alleged DUI offender’s intoxication can play an important role in determining the criminal charges that he or she faces after an accident resulting in the death of another person. Second degree murder charges are rare because of the alleged intent to kill, but people charged with super extreme DUI may be more likely to face the second degree murder charges.

What You Should Do If Arrested for DUI After a Car Accident

When a person is arrested for any kind of drunk driving offense in Arizona, there is always an immediate fear about the possible consequences of being convicted of the crime. Many people who assume that they do not have any way to overcome the allegations after submitting to alcohol breath testing become even more hopeless about the possibility of getting criminal charges reduced or dismissed when they have caused accidents resulting in death or injuries.

The truth is that many of the same defenses applicable to basic DUI charges can be utilized for alleged offenders accused of extreme or super DUI crimes following crashes. Possible errors in the administration of any BAC tests can be used to prevent the results from being submitted into evidence in such cases.

Additionally, a criminal defense attorney may also be able to raise the issue of the alleged offender’s culpable mental state. Whereas a prosecutor may argue that an alleged offender knowingly or intentionally caused another party’s injuries or death, the defense lawyer may be able to get the charges reduced by proving that the accused individual actually acted with criminal negligence.

Another important factor that often needs to be explored in these cases is how the alleged victim sustained their serious or fatal injuries. Accident reconstruction experts may be able to uncover behaviors by the alleged victim or flaws with their vehicle that contributed to—or even caused—the collisions.

Car accident cases are extremely complex and one driver allegedly being intoxicated often provides an easy way for the initial investigators to assign fault to one party. The truth, however, is that it is not uncommon for the person initially perceived to be the alleged victim in such cases to actually have been the party who directly caused the cash.

When any person is arrested in Arizona for any kind of DUI offense following a motor vehicle collision, it is always in his or her best interest to not say anything to authorities until that individual has legal representation. You should avoid answering any questions or providing any statements until you retain legal counsel.

Criminal Defense Attorney for Extreme and Super Extreme DUI Arrests in Tempe, AZ

Tempe criminal defense attorneyThe Law Office of James E. Novak represents individuals all over Maricopa County who have been charged with DUI or related offenses. James E. Novak is an experienced criminal defense lawyer in Tempe who understands the most effective ways to approach these types of cases because of his prior experience on the other side of the aisle as a former prosecutor in Maricopa County.

When you have been charged with any kind of crime relating to an alleged DUI offense, it is critical for you to immediately seek the help of a knowledgeable attorney who can examine every aspect of your arrest. The Law Office of James E. Novak will review everything from how police administered your breath tests to how an accident occurred in order to determine all of the possible defenses that may be raised against your criminal charges.

James E. Novak aggressively defends clients in Phoenix, Chandler, Mesa, Tempe, Scottsdale, Gilbert, and several other surrounding areas in Maricopa County. The Law Office of James E. Novak utilizes investigators and forensic experts to challenge the prosecution’s evidence and fight for criminal charges being reduced or dismissed.

You can have our lawyer review your case and help you understand all of your legal options as soon as you call (480) 413-1499 or submit an online contact form to take advantage of a free, confidential consultation.

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How High is Too High to Drive?

Marijuana DUIIn November 2016, Arizona voters rejected a measure to legalize recreational marijuana, with many people citing concerns about a possible increase in driving under the influence (DUI) violations as being the reason behind their opposition. Appellate courts in Arizona, however, have made a number of decisions in marijuana DUI cases that make it more difficult for prosecutors to convict registered qualifying patients under the Arizona Medical Marijuana Act (AMMA).

The most such recent decision came from Division One of the Arizona Court of Appeals. On December 22, 2016, the Court of Appeals vacated the conviction of man charged with driving while marijuana or its metabolite was in his body.

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“Public Health Crisis of Historic Proportions”

800px-Heroin

On December 6, 2016, United States Drug Enforcement Administration (DEA) Acting Administrator Chuck Rosenberg announced results from the 2016 National Drug Threat Assessment (NDTA), the comprehensive annual assessment providing “a national-level perspective of the illicit and remarkably dangerous drug threats facing the United States.” In a DEA press release, Rosenberg said that the report reconfirmed that opioids such as heroin and fentanyl are killing people in the country at “a horrifying rate.” Rosenberg said the country faces “a public health crisis of historic proportions.”

According to the NDTA, heroin overdose deaths more than tripled between 2010 and 2014. The 2016 NDTA found that Mexican transnational criminal organizations (TCOs) continue to act as the biggest criminal drug threat to the United States and are the primary suppliers of heroin as well as cocaine and methamphetamine.

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Proposition 205 Results for Legalization of Marijuana 

Marijuana PlantIn 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.

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Arizona’s Proposition 205 -Legalization of Marijuana 

Arizona-Marijuana-Laws-1-300x201If 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:

Year Marijuana Possession Sale or Manufacturing of Marijuana
2015 15,291 1,071
2014 16,177 1,416
2013 16,656 1,580
2012 15,001 1,499
2011 16,416 1,756
2010 18,076 1,659
2009 20,378 1,608
2008 18,689 1,413
2007 17,887 1,645
2006 16,767 1,476

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

Medical-Marijuana-300x200Arizona 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);
  • Cancer;
  • Crohn’s Disease;
  • Glaucoma;
  • Hepatitis C;
  • 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 

handcuffs-Arrest-Mesa-AZ1-294x300If 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

James-Novak-Criminal-Defense-Attorney-Mesa-AZ-300x236It 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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Entrapment Defense in ArizonaUnderstanding 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:

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Marijuana Odor Establishes Probable CauseArizona 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.