A.R.S. §36-2802: Arizona Medical Marijuana Act
A.R.S. § 13-3405: Possession, Use, Production, Sale or Transportation of Marijuana

The topic of marijuana in the United States has been an issue of debate for a long time. Near the end of the 1990’s states started to push for legalization of marijuana. Now, many states have followed the rush and a mix of states have full recreational and medical use of marijuana while others have only allowed medical use. And still, some states do not allow marijuana at all in any form. As of late 2020, 11 states have legalized recreational and medical marijuana use while 22 additional states only allow medical marijuana use. While 33 states allow some form of marijuana use, 17 states completely disallow it.

Marijuana in Arizona

Arizona is one of the 22 states that only allows medical marijuana use. Recreational use of marijuana is still not legalized in Arizona. Medical marijuana was legalized by way of Proposition 203 in 2010. The initiative that sought for recreational marijuana use in 2016, Proposition 205, failed with 48.7% of the vote.

Currently, a push has been made to include recreational marijuana use on the November 2020 ballot. The Smart and Safe Act has garnered much attention and has received over 420,000 signatures to include it on the 2020 ballot. The act would allow possession of one ounce of marijuana and up to 6 plants per adult and 12 plants per household with multiple adults. It is proposed that the sale would produce $3 billion in revenue during the first 10 years and would fund community colleges, public safety, public health programs, and roads and highways. It also would allow for individuals who were convicted of low-level marijuana charges to have their records marijuana records expunged. The passing of the act would require the recreational marijuana regulations to be establish before April 6, 2021.

Arizona Medical Marijuana Card

After the passing of Proposition 203, the Arizona Department of Health Services was made responsible for the regulation of medical marijuana. The ADHS website has all the information for anyone to know if they qualify for the Medical Marijuana Card and how to apply. It is also regulated in Arizona Statute and lists the conditions that qualify and the quantities one can carry. Under Arizona Statue § 36-2801, the allowable quantity a medical marijuana card holder can carry is two and one-half ounces of usable marijuana. If the card holder is authorized to cultivate marijuana then the limit is 12 marijuana plants.

The statute defines debilitating medical condition as any of the following conditions: cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, or treatment for these conditions.

Also included are symptoms that come from any chronic or debilitating disease or medical condition or its treatment that produces cachexia or wasting syndrome, severe and chronic pain, severe nausea, seizures like those cause from epilepsy, and severe and persistent muscle spasms like those from multiple sclerosis. Additionally, an individual can petition for their condition or disease to be included or to be approved for a Medical Marijuana Card.

Any violation of the Medical Marijuana Act, including possessing more than the allotted amount or selling to giving marijuana to an individual that does not have authorization for medical marijuana, can result in the suspension or revocation of the license and can incur civil fines.

Unlawful Possession of Marijuana

If an individual does not have a valid Medical Marijuana Card and is in possession of marijuana then they will be charged with criminal possession of marijuana. This charge, found in A.R.S. § 13-3405, lists what is punished and the felony classification for each charge:

A. A person shall not knowingly:

1. Possess or use marijuana, a class 6 felony if less than two pounds, a class 5 felony if between 2-4 pounds, and a class 4 felony if more than 4 pounds.
2. Possess marijuana for sale, a class 4 felony if less than two pounds, a class 3 felony if between 2-4 pounds, and a class 2 felony if more than 4 pounds.
3. Produce marijuana, a class 5 felony if less than two pounds, a class 4 felony if between 2-4 pounds, and a class 3 felony if more than 4 pounds.
4. Transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana, a class 3 felony if less than two pounds, and a class 2 felony if more than 2 pounds.

The judge will give jury instructions at trial to help them decide on the guilt of an individual. For possession, the judge will state, “the crime of possession or use of marijuana requires proof that: (1) the defendant knowingly possessed or used marijuana; and (2) the substance was in fact marijuana. This possession does not have to be physical but can be constructive as well that can be shown by constructive evidence. The State will most likely use evidence at trial such as the location of the marijuana in relation to the person and any admissions the person makes during questioning and interviews. Many times, possession of marijuana charges, especially for first-time offenders, plead out before trial through diversion agreements. If the person completes a drug program the State will dismiss all charges against him. It is necessary to have an experienced attorney that has negotiated these pleas and knows how to challenge any potential evidence presented.

Possession vs. Sale or Trafficking

Unbeknownst to most, you can be charged as a drug dealer or trafficker without ever making or intending to sell or traffic the drugs. Listed in A.R.S. § 13-3401 (36), every drug has a certain quantity amount—its threshold amount—that if met or exceeded, creates a presumption of sale. In layman’s terms, this means that if you possess a defined weight or monetary amount of that defined drug, then the state presumes that you intended to sell or traffic the drug rather than personally use it. This presumption means that the state no longer carries the burden of proving you intended to sell or traffic the drug in your possession. Instead, it is up to you to show that your intentions with the drug were something entirely different. This presents a tremendous problem for defendants and results in harsh consequences that are far greater than a regular drug possession charge.

If you are found in possession of drugs above its threshold amount and you are unable to rebut the trafficking presumption, then you would be looking at mandatory prison time, regardless of your prior criminal history. Therefore, it is vital that you have an experienced attorney who understands the intricacies of the law and ensures your protection.

Let Us Help

Drug possession can result in a very serious felony offense that can carry a sentence of incarceration. Fighting a drug possession charge requires a team of highly experienced drug possession lawyers to ensure you receive the best result possible. Let Tempe Criminal Lawyer’s criminal lawyers and their knowledge of Arizona’s drug possession law guide you through the process. The legal battle ahead will be led by strong representation and diligence.