Articles Posted in Marijuana Offenses

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criminal lawRecently, an Arizona appellate court issued a written opinion in a case involving the defendant’s possession of a small amount of hashish, requiring the court to determine if the defendant was protected under the Arizona Medical Marijuana Act (AMMA). Ultimately, the court concluded that the AMMA – which does not specifically mention hashish – does not afford protection to qualifying patients found in possession of the substance.

The Facts

The defendant was a “qualified patient” under the AMMA, meaning that he was able to obtain and use marijuana for medical purposes. In March 2013, the defendant was found in possession of .05 ounces of hashish oil. The defendant sought dismissal of the charges based on the fact that he was a qualifying patient under the AMMA, but the court rejected the defendant’s motion. The defendant then proceeded to trial in front of a judge alone, where he was found guilty and sentenced to 2.5 years’ incarceration for the hashish and a concurrent term of one year incarceration for possession of drug paraphernalia (the jar containing the hashish).

The defendant appealed his conviction, making the same arguments on appeal. However, the court affirmed his conviction. The court began with an explanation that, when it comes to voter-enacted laws such as the AMMA, it a court’s job to “give effect to the intent of the electorate.”

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Earlier this month, an appellate court issued an opinion in an Arizona marijuana case resulting from an arrest of a California citizen who was stopped in Arizona with marijuana. The case is the latest in a line of many cases dealing with the relatively new laws across the country legalizing and decriminalizing marijuana possession.

Legal News GavelThe Facts of the Case

The defendant, a California resident, was stopped by an officer with Arizona Public Safety for failing to have functioning headlights. When the officers stopped the defendant’s car, they reported a smell of marijuana coming from the car. As they peered inside the car, they saw a white pipe with black residue near the defendant.

The police officers removed the defendant, and he admitted that the pipe was his and also that he had medical-grade marijuana as well as THC wax in the vehicle. The officers then asked the defendant if he had an Arizona medical marijuana card. The defendant responded that he did not but that he did have a recommendation letter from a California doctor stating that he would “significantly benefit from the use of medical marijuana,” and the doctor “approved the use of cannabis as medicine.”

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Legal News GavelIn a recent Arizona marijuana case, the defendant appealed after being convicted of selling marijuana and weapons misconduct. The case arose when two detectives had a confidential informant conduct a controlled buy. The detective searched the informant to make sure he didn’t have money, drugs, or paraphernalia. The detectives photographed a set of $20 bills to be used to purchase drugs and set up the informant with a recording device.

They followed the informant in cars to the target’s home. After going in, the informant returned to his car, accompanied by the target and a woman. The three went to the gas station, and the detectives followed. The target got out and went up to a white car that was parked at the gas station. He got inside and then went back to the informant’s car. They returned to the home, followed by the police. The informant dropped off the target and passenger. He met the detectives to be debriefed and searched. The detectives found a plastic baggie containing marijuana.

Meanwhile, a detective asked a patrol officer to follow the white car and stop it if there was any traffic violation. The patrol officer followed the car after it left the gas station and pulled him over for speeding. The patrol officer saw there was a handgun on the seat, and it was in a firing position. He asked the driver for the gun, which the driver gave him. He also smelled marijuana, and the driver admitted she had marijuana in a paper bag. She consented to a search. Inside, there were bags of marijuana and brownies and a set of $20 bills. She had a medical marijuana card, so the officer determined there was no basis to believe she’d broken a drug law. The officer photographed the money and drugs before letting her leave.

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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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Proposition 205 Results for Legalization of Marijuana 

Marijuana Plant
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.

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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.

Additional Resources

Additional Articles of Interest

 

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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.

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Medical Marijuana and PrescriptionsOn 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.

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Qualified Medical Marijuana Users Remain at Risk of DUI Prosecution.

MarijuanaAuthorized Medical Marijuana users in Arizona have legal authorization to use the substance, but could still be charged with DUI if considered driving under the influence of drugs, according to a recent Arizona Court of Appeals ruling.

The court ruled Tuesday in the case of Darrah v. Hon. McClennen/City of Mesa, that Arizona Medical Marijuana Act does not protect users from prosecution if there is an active marijuana metabolite or chemical compound in the body when the users get behind the wheel.

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A Comprehensive Overview: Arizona Marijuana laws, Mandatory Minimum Drug Sentencing, and Impacts on Society. 

Marijuana LawsDrug Conviction Results in Sentencing Typically Reserved for Murder

John was accused of a first-time, non-violent drug offense.  He had no prior criminal record, no evidence of drug abuse, and no prior drug convictions.

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