A.R.S. § 13-3405: Possession, Use, Production, Sale or Transportation of Marijuana

Marijuana has been a hot-topic dispute in the United States for many decades now. As of late 2020, only 11 states allow the use of recreational and medicinal marijuana, whereas an additional 22 states allow the use of only medicinal marijuana. Arizona is one of the 22 states that only allows medical marijuana use, which was legalized in Arizona by way of Proposition 203 in 2010. Recreational use of marijuana is still not legalized in Arizona. The initiative that sought for recreational marijuana use in 2016, Proposition 205, failed with 48.7% of the vote. 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.

Unlawful Possession of Marijuana

Unlawful possession of marijuana is governed by Arizona Statute § 13-3405. This statute lists what different types of marijuana possession and transportation 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.

Possession vs. Sale or Transport

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. For marijuana, the presumptive amount is 2 pounds. If an individual is carrying 2 pounds or more of marijuana, it is presumed that the person possessing the marijuana for sale. 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 additional factors are present, an individual can be charged with transportation of marijuana for sale. If the presumptive amount of 2 pounds is found and the individual is traveling from out of state or on highways used primarily for interstate travel, the State will most likely prosecute for transportation of marijuana. The driver does not need specific intent to transport marijuana or a definite starting point and ending destination to be found guilty and the State does not need to establish great distance or change in locality. Because law enforcement agencies know the roadways most used for marijuana transportation, any sizeable amount found in the vehicle of a traveler on these roadways will result in a transportation of marijuana charge.

What is HIDTA?

The High Intensity Drug Trafficking Areas (HIDTA) program was established by Congress in the Anti-Drug Abuse Act in 1988. This program provides assistance and funding to 33 areas of the United States that are deemed areas of high volume of drug trafficking. Arizona is recognized as its own high intensity drug trafficking area and 9 of the 15 Arizona counties receive funding for their anti-drug trafficking efforts. These Arizona counties are: Cochise, La Paz, Maricopa, Mohave, Navajo, Pima, Pinal, Santa Cruz, and Yuma.

The Counter Narcotics Alliance

Federal, state, tribal, and local agencies participate in the efforts to combat drug trafficking in Arizona. The Counter Narcotics Alliance (CNA) is the HIDTA initiative in Pima County. The CNA website details the task force’s five objectives:

• to reduce the rate of crime associated with drug trafficking and drug use
• to implement strategies to interdict the availability and flow of illicit drugs and the profits from these activities
• to employ investigative techniques that target offenders, locations, and organizations involved in illicit narcotics activities
• to utilize intelligence-driven law enforcement planning to coordinate and maximize the collaborative resources available
•  to work towards the reduction in demand, availability, and chronic use of drugs

The CNA is made up of members from the Pima County Sheriff’s Office, Pima County Attorney’s Office, Tucson Police Department, Marana Police Department, Oro Valley Police Department, and the University of Arizona Police Department. Pima is the Arizona County with most land bordering the Mexico border and the majority of drug trafficking in Arizona that comes from Mexico will cross through Pima County. The high intensity of this area requires collaboration amongst various agencies to help complete their tasks and objectives. These agencies have dedicated teams that provide surveillance and monitoring of individuals suspected of transporting drugs and then make stops along highways in their respective areas. An incident reported in a Washington Post article that occurred at the end of 2019 shows how much time these agencies spend in surveillance and how they work together. In November 2019, 11 individuals were arrested for attempted transportation of marijuana through the United Parcel Service (UPS). Four of the 11 individuals were employees of UPS and used an exploit to ship thousands of pounds of marijuana from Tucson to various destinations. The Tucson Police Department had been in surveillance since 2009, but was not able to start building a legitimate case against the drug ring until 2017. The Tucson Police Department worked with ICE and Homeland Security to finally bring the charges and the Arizona Attorney General’s Office will prosecute the case. There are many different ways police officers can arrest someone for transportation of marijuana. Police officers know what to look for and will identify any possible signs that a driver has drugs in the vehicle. Officers will look at the attitude of the driver, conduct of any passengers, whether the vehicle is a rental or has out of state plates, or any other questionable factors. Once an officer has suspicion, he will most likely follow the vehicle until he observes any traffic violation to perform a traffic stop. Even the smallest violations such as improper license plate display, speeding, not using a signal to change lanes, or lack of seatbelt can result in the officer pulling the driver over. Once pulled over, the officer knows what to look for and will start building probable cause to arrest the driver for transportation of marijuana. Whether it is challenging the reason for the stop, any of the evidence obtained, or how the evidence was obtained, a dedicated attorney will be attentive to these details.

Let Us Help

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