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Posted by Shawn B. Hamp | Apr 18, 2016 | 0 Comments

Marijuana Laws That Can Impact You If Arrested For Personal Possession.

Arizona is part of a growing list of states that decriminalized Marijuana in the past few years. Arizona approved the Medical Marijuana Act in 2010 by referendum allowing qualified patients to use medical marijuana for debilitating conditions. In 2016 it is anticipated that voters will go again to the polls to decide if Marijuana will be legalized for recreational use.

Despite the nationwide trend and momentum in Arizona to decriminalize marijuana use, personal possession of marijuana remains illegal in the state. Law enforcement continues to prioritize profiling and prosecuting users of marijuana. With this in mind, there are 5 facts about marijuana laws you should know about in Arizona.

1. No Jail Time For First Time Offenders.

Even before the Medical Marijuana Act was approved by voters in 2010, Arizona approved a referendum known as “Proposition 200” in 1996. Prop 200 basically guaranteed that first time drug offenders could not go to Prison or get jail time for first time drug offenses.

There were exceptions for violent offenders, and the legislature later went back and criminalized methamphetamine users but Prop 200 was one of the hallmark pieces of legislation in Arizona that reduced penalties for possession of marijuana.

Even though most Marijuana offenders get cited and released if they are charged with misdemeanors, an offender can still be arrested for personal possession of marijuana and be held in jail until release conditions are set by a judge. But a first time offender can never be sentenced to jail for a first time offense.

Because of the reduced penalties for personal possession of marijuana prosecutions became less frequent and less severe. Diversions became much more common and prosecutions used more discretion in prosecuting marijuana cases which brings us to the next fact . . .

2. Possession of Marijuana Can Be Charged As A Felony Or A Misdemeanor.

Personal possession of marijuana (less than 2lbs) is a Class 6 Felony under A.R.S. 13-3405. While a Class 6 Felony is the least severe class of felony, it is nevertheless a criminal conviction that could have severe collateral consequences.

Because of the previously mentioned Prop 200 laws that severely restricted the penalties for personal possession many prosecuting agencies exercise their discretion in how they charge marijuana offenses.

Under A.R.S. 13-604 Judges or prosecutor have the discretion to designate class 6 Felony offenses as felonies or misdemeanors. It is not uncommon for many prosecuting agencies, including the Mohave County Attorney’s Office to therefore charge personal possession of marijuana cases as a Class 1 Misdemeanor instead of a felony. Under direction by local prosecutors law enforcement may also charge such offenses as misdemeanors.

Not all prosecuting agencies are the same. Designation of a marijuana offense as a felony or a misdemeanor may vary from county to county.

3. Personal Possession Of Marijuana Has Mandatory Sentencing.

If you are arrested for personal possession of marijuana, you may not be facing jail time, but there are some mandatory sentencing provisions you could face.

If convicted of personal possession of marijuana charge, you could face a mandatory fine of $750 or three times the street value of any drug (whichever is greater) plus a 83% surcharge. At a minimum you could be fined $1,372.50 (a class 1 misdemeanor is $2,500 without surcharges).

If convicted of a felony personal possession of marijuana charge a person on probation must be ordered to perform 25 hours of community work service with a drug rehabilitation or treatment facility.

If you are convicted of a misdemeanor personal possession of marijuana charge a person on probation must be ordered to complete 8 hours of “instruction on the nature and harmful effects of narcotic drugs” or must be ordered to perform 25 hours of community work service. A.R.S. 13-3405(H).

In many marijuana criminal cases the prosecution may offer to have a defendant plea guilty to possession of drug paraphernalia in exchange for dismissing a possession of marijuana charge. Such a reduction could avoid the mandatory minimum fines and community work service. It could also avoid some of the collateral consequences discussed in the next fact.

4. A Personal Marijuana Conviction Can Have Collateral Consequence For Employment or School.

If you are convicted of any drug offense, you may be ineligible for federal financial aid or pell grants. This includes possession of marijuana offenses.

Your eligibility for student loans and pell grants might be suspended if a drug offense occurred while you were receiving federal student aid (grants, loans, or work-study).

If your eligibility for federal student aid is suspended due to a drug conviction, you can only regain eligibility early by successfully completing an approved drug rehabilitation program or by passing two unannounced drug tests administered by an approved drug rehabilitation program.

If you are convicted of a drug-related offense after you submit an application for financial aid, you might lose eligibility for federal student aid, and you might be liable for returning any financial aid you received during a period of ineligibility. The Office of Federal Student Aid – U.S. Department of Education.

Being convicted of a drug offense like possession of marijuana could make you ineligible for many occupations in Arizona that require fingerprint clearance under A.R.S. 41-1758.03. Occupations like teachers, nurses, day care workers, or real estate brokers can loose their professional license for a marijuana offense. Unless you obtain a special waiver or get your conviction set aside you will continue to be ineligible for employment for this security type clearance occupations.

5. Medical Marijuana Is An Absolute Defense, But Not After The Fact.

A qualifying patient under the Arizona Medical Marijuana Act is a person who has been diagnosed by a physician as having a debilitating condition. A visiting qualifying patient is a non-resident of Arizona or someone who has resided in Arizona less than thirty days.

A registered qualifying patient or a visiting qualifying patient is not subject to arrest, prosecution or penalty in any manner for simple possession of marijuana.

There is a presumption that a qualifying patient is engaged in using medical marijuana if he or she is in possession of a registry identification card and an amount of marijuana that does not exceed the allowable amount by law at the time of the offense. A marijuana patient in possession of a registry identification card at the time of the offense cannot be legally arrested.

Many defendants who get arrested for possession of marijuana who don’t have a medical marijuana card believe that if they obtain a medical marijuana card after the fact that they can get the charges dismissed. This is not true.

Sometimes getting a medical marijuana card might be a mitigating fact at sentencing, but it is not a defense or a legal reason for the charges to be dismissed in a criminal prosecution.

To prevent being prosecuted for possession of marijuana, a person must prove they were diagnosed with a debilitating medical condition before they were arrested for possession of marijuana. Getting a doctor’s recommendation after the fact won’t change legal culpability.

Legal News Posted by Shawn B. Hamp | Apr 18, 2016 | 0 Comments Marijuana Laws That Can Impact You If Arrested For Personal Possession. Arizona is part of a growing list of states that

Marijuana Possession & Paraphernalia

One of the most common crimes we see here, especially for students and young professionals, is marijuana possession coupled with a “ drug paraphernalia” charge. Although both are technically felonies in Arizona (A.R.S. § 13-3405(A)(1) &(B)(1) [class six felony if under “two pounds” (A.R.S. § 13-3415;], police often charge them jointly as misdemeanors. The University of Arizona routinely kicks students out of the dorm for these violations, and sometimes books students into the County jail. A variety of licensed or regulated professionals, and low-level workers can lose or be ineligible for many jobs.

Possession of Marijuana Drug Paraphernalia
(A.R.S. 13-3415)

We see a plethora of cases where the “baggy” or the “tin foil” is the only “paraphernalia” charged. That’s because literally anything used to “store” or “ingest” marijuana can qualify as “paraphernalia” in Arizona (“chillums” are specifically prohibited [See ARS § 13-3418(F)(2)(xi)] along with “bongs” “roach clips” “blenders” and “electric pipes”.) The police like to issue “paraphernalia” as an extra add-on charge to give the prosecutor leverage. And it’s sometimes the paraphernalia charge, not the marijuana that causes the problem down the line, as you will see below.

Consequence of Marijuana Possession in Arizona

  • Fingerprint Clearance Card Holders
  • Licensed Healthcare Professionals
  • Students
  • Immigrants

Marijuana Arrests & Fingerprint Clearance Card Holders

In Arizona, thousands and thousands of educational, childcare, nursing home and healthcare workers, students and volunteers, all hold mandatory Arizona “fingerprint clearance” cards. This also includes many unwitting college students enrolled in clinical programs such as nursing. What is surprising is how easy it is to lose a fingerprint clearance card.

In Arizona, a misdemeanor marijuana arrest results in automatic suspension of both Level 1 Fingerprint Clearance (ARS §41-1758.07) and Standard Clearance (ARS §41-1758.03). Even if you’re not taken to jail, the ticket you received counts as an “arrest.” What’s more a conviction for simple misdemeanor marijuana possession results in revocation of fingerprint clearance cards. Thus, even a ticket for misdemeanor marijuana possession can, by itself, result in loss of a fingerprint clearance card, even if you win your criminal case.

Marijuana Possession & Licensed Healthcare Professionals

In Arizona, licensed health care providers include not just doctors and nurses; dentists and podiatrists; marriage counselors and opticians; but also a myriad of other workers ranging from athletic trainers to veterinary technicians. See ARS § 32-3208 & 3201. The first thing to understand is if you or your son or daughter works in or plans to work in a covered Arizona licensed health care profession.

Reporting Requirement

In Arizona, all licensed healthcare professionals are required to report within “10 working days” any arrest (including a citation or ticket) for any misdemeanor involving conduct “that may affect patient safety.” See ARS § 32-3208. Failure to timely report is a separate ground for discipline or denial of application for a health care license. See Id.

Marijuana vs. Paraphernalia Charges & Health Care Boards

While most individual Arizona healthcare boards do not provide a specific list of reportable misdemeanors on their websites or in their rules, the ones that do seem to explicitly and uniformly provide that drug paraphernalia charges are reportable, although they do not explicitly list misdemeanor marijuana possession. See e.g. Arizona Board of Medical Examiners “Reportable Misdemeanors” web page. But we counsel caution in purposely failing to report any misdemeanor offense, including marijuana possession.

Conviction & Suspension of Health Care License

Although we have never seen anyone yet lose a health care license solely for a single isolated misdemeanor marijuana conviction, most individual Boards uniformly consider “use” of marijuana or any drug “in violation of any federal state criminal law,” a sanctionable and suspendable offense. See e.g., Arizona Arizona Administrative Code R4-19-404 (Board of Nursing); see also our Arizona Health Care Licensing Boards Reportable Misdemeanors Chart; and our Arizona Health Care Licensing Boards Criminal Convictions Suspension Chart . Thus, in our view you must assume that Arizona Health Care licensing boards expect you to report, and will investigate and impose some form of sanction for misdemeanor paraphernalia and simple marijuana possession charges.

Marijuana Possession and Students
School Discipline & Enforcement Policies

We’ve had many many cases lately where University of Arizona students are caught in their dorm rooms with marijuana and various paraphernalia. The University police investigate and charge aggressively, part of a so-called “Zero Tolerance” policy, often conducting intrusive room searches, and then booking students into the County Jail, and of course referring the matter to the Dean of Students for eviction and discipline, as well charging them criminally. What seems like typical youthful a faux pas can create unforeseen problems.

Out-of-state parents who have paid considerable tuition, only to find their son or daughter calling them from the Pima County jail, call us often. And we spend a lot of time explaining to them the procedures, both at criminal court and at the Dean of Students office. Many times these cases wind up in a diversion program.

What is Diversion?

For many first time misdemeanor marijuana possession charges, especially students, the prosecutors offer a seemingly simple way to get the case dismissed: if the defendant is willing to take some prescribed drug or alcohol education classes, upon successful completion the prosecutor will move to dismiss the case with prejudice. This is a method of “diverting” the defendant from the criminal justice system. And it is generally a good thing, but diversion is fraught with hidden traps.

First, most court diversion programs require a “conditional guilty plea” at the outset. This is like jumping off a small cliff with a parachute. It means you have to actually plead guilty in open court; and the judge figuratively puts the plea in her file. If you successfully complete the diversion program, the judge figuratively tears the plea up, and literally enters a dismissal order.

If, however you fail to complete the diversion program to the prosecutor’s liking—i.e., you miss a class or fail a drug test, the judge simply sentences you as if you had straight up pled guilty. And note that prosecutors, not judges, control those programs. We’ve had too many clients who wash out of these seemingly good diversion programs and wind up with permanent criminal records.

Second, for some people the “conditional guilty plea” is the same as a conviction. This applies especially to immigrants, and to those who an admission on the record to the crime can be used against them later. See below.

Immigration & Misdemeanor Marijuana Conviction

Immigration law makes any drug conviction, including misdemeanor marijuana, a deportable offense. Although a single misdemeanor marijuana possessory conviction for under 30 grams may not result in deportation because a special “waiver” is available (See INA §212(a)(2)(A)(I)(II) & (h) I, this is not guaranteed. There are several important things to consider.

First, it is important to understand that for immigrants post-plea diversion is tantamount to a conviction. This is because the immigration code broadly defines “conviction”: it includes any admission to the material elements of the offense coupled with some form of punishment. It particularly includes all diversion programs that require a conditional guilty plea, even if the case is dismissed.

Second, while a person may not be deported for a small amount of marijuana, they may be unable, nevertheless to become a citizen, obtain a visa or green card, or reenter the United States after they physically leave. Again, although a special “waiver” should be available for a first offense, it creates problems down the line far beyond deportation.

Third, while §212(h) “waivers” are also available for paraphernalia convictions, if “related to” simple possession marijuana of 30 grams or less, paraphernalia creates problems. In some cases, unfortunately, a plea, or diversion agreement for paraphernalia, as opposed to marijuana, is no help at all. In our experience, it can be ironically the “baggy” that gets you deported, not the “bud.”

An arrest for marijuana possession can have severe consequences for your future or career. Find out what consequences will effect you the most and find an experienced attorney.