Marijuana Charges in Arizona

The Smart and Safe Arizona Act, approved by voters as Proposition 207, made some marijuana activity lawful. Under § 36-2852(A), a person who is at least 21 may:

• Possess, use or transport one ounce or less, with no more than five grams as concentrate.
• Grow up to six plants at their primary residence for personal use (no more than 12 per residence), in a locked, enclosed area not visible from public view.
• Give away one ounce or less, or up to six plants, to another adult, with no payment and no advertising.
• Possess and use marijuana paraphernalia.

Outside those limits, § 13-3405(A) makes it a crime to knowingly possess or use marijuana, possess it for sale, produce it, or sell, transfer, import or transport it for sale. "Knowingly" matters: the State has to prove you knew about the marijuana, not only that it was nearby.

Some conduct falls under § 36-2853 instead:

• More than the legal amount but not more than 2.5 ounces (no more than 12.5 grams of concentrate) is a petty offense (§ 36-2853(A)).
• Smoking in a public place or open space is a petty offense (§ 36-2853(C)).
• Growing plants in public view, or outside a locked, enclosed area, is a petty offense the first time and a class 3 misdemeanor after that (§ 36-2853(D)).
• Under 21, with one ounce or less: a civil penalty of up to $100 the first time, a petty offense the second time, and a class 1 misdemeanor after that (§ 36-2853(B)).

Definitions in A.R.S. § 13-3401 also matter. "Marijuana" is the plant material, while "cannabis" is the extracted resin, and cannabis appears on the narcotic drug list. If concentrate above the legal limits is involved, ask which statute the State is using. Medical marijuana has separate rules in chapter 28.1 of Title 36.

For a first felony offense, A.R.S. § 13-702(D) sets these ranges, mitigated to aggravated: class 6, .33 to 2 years; class 5, .5 to 2.5 years; class 4, 1 to 3.75 years; class 3, 2 to 8.75 years; class 2, 3 to 12.5 years.

Under A.R.S. § 13-901.01(A), a person convicted of personal possession or use is generally placed on probation, though that rule does not cover possession for sale, production or transportation for sale (§ 13-901.01(C)). A class 6 felony that is not a dangerous offense can sometimes be designated a class 1 misdemeanor if the judge finds a felony sentence "unduly harsh" and you have fewer than two prior felonies (A.R.S. § 13-604(A)).

• Fine: At least $750 or three times the value of the marijuana, whichever is greater, and it cannot be suspended (§ 13-3405(D)).
• Threshold: The threshold amount is two pounds (§ 13-3401(36)(g)). At or above it, the higher sale, possession for sale and production tiers carry no probation (§ 13-3405(C)).
• Probation terms: Community restitution of at least 24 hours for felony possession, or 240 hours for the lowest sale-type tiers, plus drug testing (§ 13-3405(E) to (G)).

A petty offense carries a fine of up to $300 (A.R.S. § 13-802(D)). A class 1 misdemeanor carries up to six months in jail (A.R.S. § 13-707(A)) and up to $2,500 (§ 13-802(A)).

First, was this a crime at all? We look at how the marijuana was weighed, whether packaging or mature stalks (which the definition excludes) were counted, and what the lab testing shows.

We also look at the search. Under § 36-2852(C), the odor of marijuana or burnt marijuana does not by itself give reasonable articulable suspicion of a crime. If a stop, search or consent was not lawful, your lawyer can ask the court to suppress the evidence.

For possession for sale, the State must prove intent to sell, and cash, scales or messages can have other explanations. Knowledge can be disputed when a car or home is shared. When the evidence is strong, the focus may shift to probation, a misdemeanor designation or a diversion program where one is offered.

Most state felonies in Maricopa County are prosecuted by the Maricopa County Attorney's Office, and certain cases by the Arizona Attorney General's Office, often where conduct crosses county lines or a state agency investigated. We handle these matters whichever office brought the charge.