Introduction to Controlled Substance Criminal Defense

introduction to controlled substance criminal defenseAlthough controlled substances are classified under Federal law, most states also have their own standards for legality and punishment.  For instance, although marijuana is illegal under Federal law, several states have legalized it for recreational or medical use, and even more have decriminalized it substantially.  For this reason, this article will breakdown the possession laws in Arizona specifically for the various classes of controlled substances, as well as outlining possible defenses if you are charged with a possession offense.

Classes of Controlled Substances:

Arizona has six different classes of controlled substance.  They range in punishment from a Class 4 felony to a Class 1 misdemeanor.

Peyote-

Peyote is the first class of controlled substance under Arizona law.  Peyote is a spineless cactus primarily grown in Northern Mexico and even the Southern United States.  Peyote is concentrated with psychoactive alkaloids, most notoriously mescaline, and produces an incredibly euphoric high.  Possession of peyote is considered a Class 6 felony, and has a punishment range of anywhere from four months to two years in prison.  The punishment can also be a fine of up to 150,000 dollars.  Although peyote is an illicit substance, there are defensible provisions practically built into the legacy of the drug.  This is because peyote has been used for hundreds and even thousands of years religiously by Native American tribes.  Under the first amendment of the United States, one could feasibly claim that  possession of peyote is for religious purposes, and thus its seizure a breach of religious freedom.

Substances that emit toxic vapors-

Substances that emit toxic vapors include things like aerosol sprays and glues.  Of course, mere possession of these substances is not illegal, since they are sold for non-abuse functions.  However, if a police officer has evidence that you inhaled one of these substances, the punishment can range from a Class 5 felony to a Class 1 misdemeanor.  A Class 5 felony holds a punishment range of six months to two and a half years, with a possible fine of 150,000 dollars.  A Class 1 misdemeanor holds up to a six month sentence and a fine of up to 2500 dollars.

Possession of Marijuana-

Although marijuana punishments have become more lenient in recent years along with the adoption of medical programs, fines and even jail time can still be assigned for non medical marijuana patients.  The punishments are determined based on a weight criteria.  For less than two pounds, possession of marijuana is a Class 6 felony, carrying with it a sentencing range of four months to two years as well as a possible 150,000 dollar fine.  If you are found with between two and four pounds of marijuana, you will be charged with a Class 5 felony, which has a sentencing range between six months and two and a half years and the same possible 150,000 dollar fine.  Possession of more than four pounds is a Class 4 felony, and has a sentencing range from one year to 3 ¾ years.  Find out the penalties for marijuana possession from Norml.

Prescription only drugs-

Possession of prescription drugs (without said prescription) is a Class 1 misdemeanor, and carries with it a possible six month jail term and a 1000 dollar fine.

judge at trial for controlled substance criminal defenseDangerous Drugs-

Under Arizona law, dangerous drugs constitute a wide array of substances, but are primarily associated with hallucinogens, stimulants, depressants, and steroids- prescription or not.  The “dangerous drug” designation differs itself from prescription-only drugs in both its addiction potential and potential for immediate danger to the individual.  Possession of a dangerous drug carries with it a Class 4 felony charge, with a sentencing range between one and 3 ¾ years in prison and a possible 150,000 dollar charge.

Narcotic Drugs-

Narcotics are those drugs which are derived from opium or a compound of opium, like morphine or heroine.  These drugs have intense pain-relieving properties, which is why they are commonly used medically.  However, for personal use, narcotics can and usually are incredibly addictive, and thus, are illicit under Arizona law.  Possession of narcotics is a Class 4 felony, and holds with it a sentencing range from one to 3 ¾ years.

Near Schools-

Although punishments are laid out for possession of each of the six types of controlled substances, there are cases where those punishments can be increased beyond that rate.  If you are caught with a controlled substance in a drug-free school zone, any jail sentence that was determined will be increased by one year.  Additionally, any monetary fine will increase three-fold with a minimum of 2000 dollars.  Possessing illicit substances around children is an incredibly serious offense, and will likely weaken your defense substantially.

Repeat Offenders-

As with all charges, repeat offenders are assigned harsher punishments.  The list of Arizona standards for repeat offenders are as follows:

Category 1 repetitive offender:

  • A Class 4 felony is punishable by 1.1 to 3.75 years.
  • A Class 5 felony is punishable by six months to 2.5 years.
  • A Class 6 felony is punishable by .3 to 1.8 years.

Category 2 repetitive offender:

  • A Class 4 felony is punishable by 2.25 to 7.5 years.
  • A Class 5 felony is punishable by one to 3.75 years.
  • A Class 6 felony is punishable by .75 to 2.75 years.

Category 3 repetitive offender.

  • A Class 4 felony is punishable by six to 15 years.
  • A Class 5 felony is punishable by three to 7.5 years.
  • A Class 6 felony is punishable by 2.25 to 5.75 years.

Possible Defenses:

controlled substance criminal defense strategyThe possible defenses for a drug possession charge are numerous and varied, but like most cases, require an aggressive and knowledgeable defense attorney.  Because the burden of proof is with the prosecution, they must prove “beyond a reasonable doubt” that the defendant knowingly possessed the alleged substance.  Beyond a reasonable doubt is the highest burden of proof in the criminal justice system, which means that a successful defense is very much possible!  The following is a list of possible defenses for a controlled substance possession charge.

Insufficient Evidence-

This defense is fairly straightforward.  It posits that the prosecution simply does not have enough evidence to convince the judge and jury beyond a reasonable doubt.  Types of evidence required for conviction will be explained below.

Unlawful Search and Seizure-

This defense posits that the police officer who discovered the controlled substance did so under illegal means.  In the State of Arizona, a police officer must have probable cause to pull over a vehicle or enter a residence.  If the officer found the alleged substance without acquiring a warrant and without probable cause, this defense may protect the defendant by proving that their rights were violated.

Police Entrapment-

Police entrapment is a common defense, largely based on the judge’s discretion.  It can be employed when an officer used coercion, harassment, fraud, or flattery to convince someone to commit a crime.  However, the standards for formal entrapment are fairly strict.  Even if an officer asks you to commit a crime, a judge will expect the defendant to resist an ordinary temptation.  The officer can even lie to achieve this.  For instance, say there is an undercover cop at a concert who asks if you have any marijuana.  Even if you directly ask them: “are you a police officer” and they say no, you can still be convicted for possessing the marijuana.

On the other hand, if the officer pleads to buy marijuana, claiming that he/she will have a medical problem without it, you may justifiably use the entrapment defense.  A successful entrapment defense is predicated on the judge’s determination of whether the defendant was truly “trapped” versus whether he/she was taking advantage of an exposed opportunity.  This is based on both the officer’s behavior and the defendant’s reactions to that behavior.

Knowledge Defense-

Under A.R.S. 34 13-3401, the defendant must have knowledge of possession.  This could be spun to accommodate several different defenses.  The first controlled substance criminal defense in the courtroompossible defense is outright denial that you knew about the substance.  Although this seems rare and difficult to prove, it is certainly possible.  For instance, a not so nice friend may want you to hold their cocaine for safe keeping, claiming that it is detergent or flour.  If you have chat logs proving that you did not know a substance was that substance, this defense may work.

However, a more reliable and believable defense can be used in cases with shared residences or vehicles.  The defendant could claim that they had no knowledge of the substance because it belonged to a family member or roommate.  Because the formal legal definition of possess is to voluntarily exercise dominion over something, the knowledge clause is incredibly valuable because it requires volition- something difficult to prove when possessions are shared.  Moreover, if the car or residence is shared by more than two people, it will be nearly impossible for the courts to assign “knowledge” to any one person.

Possible Relief:

controlled substance criminal defense sometimes results in tasc diversionIf you are a controlled substance offender, there are legal relief options outside of court proceedings.  Through the Maricopa County Attorney’s Office, offenders are eligible for the Treatment Assessment Screening Center (TASC), which defers prosecution for up to two years.  TASC requires offenders to attend weekly counseling or support sessions for six months during a probationary period.  Those who are accepted must pay the program’s costs of 2500 dollars in full.  TASC is fairly selective, and is only available to first time offenders.  To be eligible, you cannot contest your guilt in court.

Through Arizona Proposition 200, many non-violent possession offenses are punishable solely by probation.  This probation includes drug counseling and regular drug testing.  However, if probation is violated, you can still be thrown in jail.  It should also be noted that any charge of methamphetamine possession is not included under Proposition 200.

If you have been charged:

If you have been charged with a possession violation, contact an experienced defense attorney immediately.  Drug violations are one of the most common charges, making police malpractice a very real possibility.  Possession of controlled substances without intent to distribute, which is what this article addresses, is unique in that it only causes harm to the user of the substance.  Moreover, rampant drug addiction in this country has led scientists to study the base reasons for addiction, and most agree that addiction is a medical condition- something which should be treated instead of exacerbated through punishment.  Because of this, a judge is more likely to rule favorably and sympathetically toward a drug possession charge than an abuse charge for example, where an outside party suffered.  Prosecutions on drug possession still fill American prisons with non-violent offenders more than any other country, but hopefully as American institutions become more enlightened, we can shift from punishment to rehabilitation as so many European countries have already done.

Interested in learning more about controlled substance possession law in the state of Arizona?  We’d love to hear from you!  Comment below or reach out to us on our social media channels.  If you need criminal defense help for controlled substance possession in the state of Arizona, contact an experienced Phoenix defense attorney today.