Dangerous Drugs

A.R.S. § 13-3407

What is the Definition?

Arizona divides crimes involving drugs into three different categories: (1) dangerous drugs, (2) narcotic drugs, and (3) marijuana in all forms. A dangerous drug is defined in the Arizona Revised Statutes section 13-3401 as any material, compound, mixture or preparation that contains any quantity of certain hallucinogenic substances. The list of hallucinogenic substances includes cocaine, methamphetamine, peyote, steroids, and PCP. This list is periodically updated to reflect new drugs identified by Federal Drug Enforcement Agency.

What Elements of the Crime Must Be Proven?

There are seven different statutory crimes that involve dangerous drugs. The most commonly prosecuted are: possession, possession for sale, obtaining by fraud, and transporting for sale. Each of these crimes requires a knowing mental state, which means that you cannot be convicted simply by the mere presence of the drug. Rather, the Maricopa District Attorney must prove that you were aware of the circumstances relating to the drug. In cases where the amount of drug confiscated is very minimal, the prosecutor may argue that it was a “usable amount” or “usable quantity” in order to prove your knowledge.

Possession: In order to find you guilty, the prosecutor must prove these two (2) elements of the crime:

1. You knowingly possessed or used a dangerous drug, and
2. The substance was in fact a dangerous drug listed in A.R.S. § 13-3401(6).

It’s important to note that possession can be actual, constructive or joint. See A.R.S. § 13-105(34). Actual possession is the most commonplace, where the drugs are found on your person such as in your hand, your pocket, or your backpack. Constructive means that drugs are in a place that you exercise dominion or control over, like your car. Joint means that the drug was shared amongst multiple people.

Possession for Sale: In order to find you guilty, the prosecutor must prove the same two (2) elements of the crime for possession as well as one additional element:

1. You knowingly possessed or used a dangerous drug, and
2. The substance was in fact a dangerous drug listed in A.R.S. § 13-3401(6),
3. Your purpose was to sell the drug or exchange it for anything of value.

Obtaining by Fraud: In order to find you guilty, the prosecutor must prove three (3) elements of the crime:

1. You knowingly obtained a dangerous drug,
2. The substance was in fact a dangerous drug listed in A.R.S. § 13-3401(6), and
3. You obtained the drug by fraud, deceit, or misrepresentation.

Transporting for Sale: In order to find you guilty, the prosecutor must prove two (2) elements of the crime:

1. You knowingly transported, imported, sold, or transferred dangerous drugs, and
2. The substance was in fact a dangerous drug listed in A.R.S. § 13-3401(6).

Can You Give Me an Example?

Terence sold two vials of cocaine to a customer outside of his building by handing them to him from the lobby door. Once the door closed and locked automatically, Terence heard the customer trying to open up the door. He got concerned that the customer was an undercover officer and ran to his apartment that he was renting in the building. He stayed in his house for one hour and then walked his dog down the stairs to go outside. When he was outside, there was a dark van that drove by, and he heard the officers confirm his ID. He was arrested and charged with possession of a dangerous drug for sale.

What Are the Defenses?

These are the possible defenses for possession of a dangerous drug, some of which may be applied to the other dangerous drug crimes as well:

• Lack of knowledge: It is not sufficient for the prosecutor to simply show evidence of the presence of drugs in your actual, constructive or joint possession. Rather, s/he must present evidence of your mental state- that you had knowledge of the presence of the drug.
• Drugs belong to another person: The drugs were not found on your person, or in a place where you exercise dominion or control. This defense may be applied where the theory of possession is based upon actual or joint possession.
• Problems with drug testing: The Maricopa District Attorney must prove as an element of the crime that the substance found is in fact a dangerous drug as defined in A.R.S. § 13-3401(6). However, perhaps the substance found is not a material, compound, mixture, or preparation of a hallucinogenic drug found on the comprehensive statutory list. Or, perhaps the lab technician testing the drug is not credible.
• Insufficient chain of custody: this defense focuses on how the alleged dangerous drug was transferred from the scene of the crime to the laboratory for testing. Each person who physically handles the substance, starting with the arresting officer, must take specific precautions to make sure the chain is not broken. For example, the arresting police officer must place the substance into a sealed envelope and sign it into evidence. If the chain broken, then doubt arises as to whether the evidence offered in the case and alleged to be a dangerous drug is the same substance that was discovered at the scene by the arresting officer.
• Fruit of the poisonous tree: According to this doctrine, any evidence of drugs should be thrown out as a result of an illegal search where the police committed a 4th Amendment violation. This defense arises after the defendant prevails in a motion to suppress hearing, which is held prior to the trial.

What Are the Penalties?

The penalties for dangerous drug crimes vary from Class 4 up to Class 2, depending on the conduct that is alleged.

Since there are seven different dangerous drug crimes carrying different penalties, we will go over the penalties for most common charge of Possession. Possession of a dangerous drug is a Class 4 felony, punishable up to 3.75 years in prison. However, if you are first time drug offender with no felony your record, then the law provides you with two special options to avoid a felony conviction.

First, the Judge may designate your crime as a Class 1 misdemeanor, which means you are only facing probation and a maximum of 6 months in jail. In the second scenario, referred to as an “undesignated class 6 felony” or a “6 open”, you will plead to a Class 6 felony. Once you successfully complete probation, the Judge will reduce your felony to a misdemeanor. In this case, the court will treat your crime as a felony for all purposes until an order is entered to designate as a misdemeanor. Both of these options are discretionary and only available where the Prosecutor makes a motion and the judge finds favorable circumstances in your case.

If you are a first time offender and facing a charge of possession, then your Lavy Lawyer in Phoenix will fight hard to get you into a diversion program called TASC. Unlike the two options discussed above for first time offenders, Class 1 Misdemeanor charge or an Undesignated Class 6 Felony, TASC drug diversion will keep your record clean because you do not have to take a plea to any charge. Rather, your case will be dismissed upon your successful completion of the program’s requirements- 12 months of counseling and testing, a 3 hour seminar, 48 hours of self-help meetings, 24 hours of substance abuse counseling, random drug tests, and monthly contact with case management. Your Lavy Lawyer will be by your side like a coach to help you stay on track and complete the program’s requirements. If you happen to be dismissed from the program for non-compliance such as a positive drug test, then you must return to Court and your charges will be reinstated.

On the other hand, the penalties for a possession charge can be more serious than a Class 4 felony where the drug alleged is methamphetamine, you have a prior felony, or you have a prior drug conviction. For example, if you are charged with possession of methamphetamine, then you will be facing up to fifteen (15) years in prison instead of 3.75 years. Even worse, if you have a prior methamphetamine conviction and pick up a new drug charge, you are facing up to twenty (20) years in prison.

In addition to jail or prison time, you will have to pay a fine in the amount of $1,000 or equal to three times the value of drug that is alleged, whichever is greater. Also, if you receive probation, then you are required to complete 360 hours of community restitution, which includes counseling, alcohol or drug treatment, and mandatory testing.

What Are the Immigration Consequences?

Unfortunately, drug convictions carry the worse consequences in Immigration Court. This is because you can be found inadmissible and denied entry or a green card for just one controlled substance conviction, even if it is a class 1 misdemeanor. In fact, even if you do not have a drug conviction, you can still be found inadmissible for admitting to all the elements of a controlled substance offense. Or, if you are already admitted to the United States, under 8 U.S.C. § 1227(a)(2), you can be charged with removability and deported based upon one controlled substance conviction involving a federally defined controlled substance. The immigration law does not distinguish between different criminal conduct (ie: possession vs. sale), substances (marijuana vs. meth), or quantity; rather it treats them all equally severe.

How Can We Help You?

If you want to win your drug case, Lavy Law is the best law firm to help you with your dangerous drug case in Phoenix. As a trial attorney who has tried drug possession, drug sales and drug DUI cases with every kind of defense, we know how to win your case before a judge or jury. As a former prosecutor who has worked on a multitude of drug cases, we have insider’s knowledge on how to get your charge reduced or dismissed. In fact, we have worked as a prosecutor in Stanislaus County- California, home of large-scale methamphetamine laboratories. As a counselor at law who has helped many drug addicts through connecting them with free community resources, we know how to empower you successfully complete a drug treatment program like a coach would during a game.

We encourage you to view our Recent Cases to see that we have won a drug case just like your own.

If you are being accused of a dangerous drug offense, Contact Us right away for a free consultation.

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