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Using Deadly Weapons While Committing a Drug Felony in Arizona

drugsIn a recent Arizona appellate case, the court considered whether using multiple deadly weapons while committing a drug felony was a single offense, among other things. The case arose when an officer parked in the median of I-17 saw the defendant slow down as he passed him. The officer followed him and saw him hit the brakes for no reason and swerve across a white line. He pulled him over, and after hearing inconsistent statements from the defendant and his passenger, he asked for a drug canine unit.

The dog alerted, and two handguns, heroin, meth, and a used syringe were found. The defendant admitted he’d used heroin earlier and gave a urine sample of his own volition. The sample had metabolites of marijuana, meth, and heroin in it. He was indicted for multiple counts, including transportation of meth, a dangerous drug, and misconduct involving weapons. His passenger was also indicted.

The defendant was acquitted of certain offenses but found guilty of a DUI charge, transportation of a dangerous drug for sale, misconduct involving weapons, and other charges. The codefendant was also found guilty, and the fact that there was an accomplice was an aggravating factor. The defendant was sentenced to concurrent aggravated prison terms. The longest term imposed was 14 years. The defendant appealed.

On appeal, he argued that it was an error not to suppress the drugs and guns because there was no reasonable suspicion to stop him in the first place. The officer had testified he was worried the driver was impaired. The appellate court found that the weaving and unnecessary braking were enough to give the officer a reasonable suspicion that the driver might be impaired. The defendant argued this was a pretext, but the appellate court explained that as long as the stop wasn’t a result of prohibited racial profiling, it didn’t violate the Fourth Amendment.

The appellate court explained that the stop in this case was based on the totality of the circumstances, which showed a reasonable likelihood the driver might be impaired. The stop wasn’t for swerving over the fog line a single time or for violating A.R.S. § 28-729(1). The appellate court affirmed the legality of the stop.

The defendant also argued that it was an error for the trial court to deny his motion to sever his trial from his codefendant’s trial. The appellate court explained that codefendants’ cases can be joined for trial if each defendant is charged with the same offense, if the multiple offenses are so closely connected it would be hard to separate proof of one from the other, or if each offense is part of a larger scheme. However, the court is supposed to grant a motion to sever if it’s necessary to promote a fair determination of the guilt or innocence of either defendant with regard to any of the offenses.

The defendant argued his codefendant and he had defenses that were antagonistic to the other. The appellate court explained that when arguing for severance based on antagonistic defenses, a defendant had to show these defenses were so antagonistic that the defenses were mutually exclusive.

In this case, the defendant and the codefendant each claimed they didn’t possess the drugs and guns, and they pointed to the other as the owner. The appellate court explained that the jury didn’t need to decide that only one of the defendants possessed the guns and drugs. Therefore, the defenses were not mutually exclusive.

The defendant also argued his convictions violated double jeopardy. He claimed that A.R.S. § 13-3102(A)(8) is a single offense, no matter how many weapons are used to commit the crime, and that its language was ambiguous. The appellate court disagreed, noting that the statute was written in the singular, so the prosecutor could charge a count for each deadly weapon that was used while committing a felony drug offense. For these and other reasons, the conviction was affirmed.

If you are facing drug crime charges involving a weapon in Tempe, Chandler, Gilbert, or Scottsdale, consult criminal defense attorney James E. Novak. As a former Maricopa County Prosecutor, he’ll use insights obtained as a prosecutor to evaluate whether any of your constitutional rights was violated and develop an approach to your defense. He offers a free initial consultation for people facing active criminal charges in his area. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.

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