Possession for Sale Defense
A possession for sale charge turns a drug case into a far more serious felony, often based on what police believe a scale, cash or packaging suggests. The State still has to prove you intended to sell, and that question deserves a careful look.
We can help. Nova Law Group was built by a former Maricopa County Attorney’s Office felony prosecutor. We prepare every case as if it is going to trial, and we take a meticulous, aggressive approach, fighting from every angle, because the report is only one side of the story.
Talk to us before you talk to anyone else. Call (480) 405-6767. Consultations are free and confidential, and the earlier we are involved, the more we can do.
At a glance
- The law: It is a crime to knowingly possess marijuana (A.R.S. § 13-3405(A)(2)), a dangerous drug (A.R.S. § 13-3407(A)(2)) or a narcotic drug (A.R.S. § 13-3408(A)(2)) for sale.
- How it is classified: A class 2 felony for dangerous and narcotic drugs. For marijuana, a class 4, 3 or 2 felony depending on weight.
- Possible sentence (first offense): For a class 2 felony, 3 to 12.5 years in prison under A.R.S. § 13-702(D), with no probation at or above the threshold amount.
- Where the case is heard: Maricopa County Superior Court in the downtown Phoenix criminal court complex. Confirm the building on your current notice.
- What to do now: Do not explain the cash, scale, packaging or phone messages to police. Talk with a defense lawyer before you discuss the case with anyone.
What the law says
To convict you, the State has to prove two things beyond a reasonable doubt:
- You knowingly possessed the drug.
- You possessed it for sale.
Arizona defines "sale" as "an exchange for anything of value or advantage, present or prospective" (A.R.S. § 13-3401(32)). The drug category matters. Narcotic drugs include fentanyl, heroin and cocaine. Dangerous drugs include methamphetamine. Marijuana has its own statute, with classes based on weight.
The threshold amount is not a presumption
Section 13-3401(36) sets a "threshold amount" for each drug. Prosecutors often point to it, but nothing in § 13-3401, § 13-3407 or § 13-3408 says that reaching the threshold creates a presumption that you intended to sell. The threshold matters mainly at sentencing, as explained below. Intent to sell still has to be proven with evidence.
| Drug | Threshold amount, § 13-3401(36) |
|---|---|
| Heroin | 1 gram |
| Cocaine | 9 grams |
| Fentanyl or fentanyl mimetic substances | 9 grams |
| Methamphetamine or amphetamine | 9 grams |
| PCP | 4 grams or 50 milliliters |
| LSD | One-half milliliter, or 50 blotter dosage units |
| Marijuana | 2 pounds |
| Any other unlawful substance | A value of at least $1,000 |
What the State points to
Few people announce an intent to sell, so the State usually relies on circumstantial evidence. Common examples are the amount, scales, baggies or other packaging, cash, notes or ledgers, and phone messages. Each of these can have an innocent explanation. Scales and packaging can also lead to a separate paraphernalia count under A.R.S. § 13-3415.
How it is classified
| Drug and amount | Statute | Class |
|---|---|---|
| Marijuana, less than 2 pounds | § 13-3405(B)(4) | Class 4 felony |
| Marijuana, at least 2 but not more than 4 pounds | § 13-3405(B)(5) | Class 3 felony |
| Marijuana, more than 4 pounds | § 13-3405(B)(6) | Class 2 felony |
| Dangerous drug, such as methamphetamine | § 13-3407(B)(2) | Class 2 felony |
| Narcotic drug, such as fentanyl, heroin or cocaine | § 13-3408(B)(2) | Class 2 felony |
Possession for sale is not covered by Prop 200. Personal possession under A.R.S. § 13-901.01(C) "shall not include possession for sale." Whether a case is charged as simple possession or possession for sale can change the whole sentencing picture. See personal possession and Prop 200.
Possible penalties
For a first felony offense, § 13-702(D) sets these prison ranges:
| Class | Range (mitigated to aggravated) | Presumptive |
|---|---|---|
| Class 2 | 3 to 12.5 years | 5 years |
| Class 3 | 2 to 8.75 years | 3.5 years |
| Class 4 | 1 to 3.75 years | 2.5 years |
- At or above the threshold: If the total amount in one offense, or in all offenses consolidated for trial, meets or exceeds the threshold, you are "not eligible for suspension of sentence, probation, pardon or release from confinement on any basis" until the sentence is served, apart from narrow release or commutation rules (§ 13-3407(D); § 13-3408(D)). For marijuana, the same rule applies to the 2 pound and higher tiers (§ 13-3405(C)).
- Methamphetamine: A first offense carries 5 to 15 calendar years, with 10 presumptive, or 10 to 20 with a qualifying prior (§ 13-3407(E)). Probation is not available (§ 13-3407(F)).
- Fentanyl, 100 grams or more: If the case involves the sale of at least 100 grams of fentanyl, or possession of at least 100 grams in a motor vehicle, the range is 5 to 15 calendar years, with 10 presumptive (§ 13-3408(F), (H)).
- Mandatory fines: The greater of $750 or three times the value for marijuana (§ 13-3405(D)), $1,000 or three times the value for dangerous drugs (§ 13-3407(H)), and $2,000 or three times the value for narcotic drugs (§ 13-3408(J)). A judge cannot suspend these fines.
- If probation is granted: At least 360 hours of community restitution for dangerous or narcotic drugs (§ 13-3407(J); § 13-3408(L)), or 240 hours for marijuana below the threshold (§ 13-3405(F)), plus drug testing.
Consequences beyond the sentence
- Your record: A felony conviction appears on background checks. Depending on the conviction and sentence, you may later be able to ask for a set-aside, which sets aside the judgment of guilt, or for record sealing. See record sealing and set-asides.
- Firearms: A person convicted of a felony whose rights have not been restored, or who is on felony probation, is a prohibited possessor under A.R.S. § 13-3101(A)(7)(b), (d). Federal law also bars possession after a conviction for a crime punishable by more than one year (18 U.S.C. § 922(g)(1)).
- Immigration: A conviction relating to a controlled substance can make a non-citizen deportable (8 U.S.C. § 1227(a)(2)(B)(i)). If you are not a U.S. citizen, talk to an immigration lawyer before you accept any plea.
- Work, housing and licenses: A drug sale allegation can raise questions with employers, landlords and licensing boards.
Avoiding jail is not the same as avoiding a conviction. Even a probation outcome on a possession for sale charge leaves a felony conviction unless the case is resolved another way.
How we defend possession for sale cases
- Intent to sell: The amount, cash or a scale does not prove intent on its own. People buy in bulk, carry cash from work and own scales for lawful reasons. We look at whether the evidence fits personal use instead.
- Knowledge and possession: Drugs found in a shared car, home or bag may not be yours, and the State must prove you knew they were there.
- The search: Traffic stops, home entries, consent and phone searches each have legal limits. If evidence was obtained unlawfully, a motion to suppress may keep it out.
- Weight and lab testing: Weight drives the marijuana class and the threshold for every drug. We review how the substance was weighed, what the weight included, and how the lab identified it.
- Charge and resolution: In some cases the evidence supports only simple possession, which can bring Prop 200 into play. Treatment, work history and family support can also matter in negotiation and at sentencing.
Why Nova Law Group
Nova Law Group was built by Ryan Tait, a former Maricopa County Attorney’s Office felony prosecutor. The practice is criminal defense first. We keep caseloads deliberately low, which means the lawyers on your case have time to actually watch the video and read the reports line by line. We take cases to trial when trial is the right pressure. Overcharging happens, and a case that is genuinely prepared for trial changes the conversation with the prosecutor. Most criminal cases are quoted as a flat fee. Consultations are free and confidential.
Common questions
No. Nothing in § 13-3401, § 13-3407 or § 13-3408 creates a presumption of intent to sell based on the threshold. The threshold mainly affects whether probation is available after a conviction. The State still has to prove intent to sell with evidence.
It depends on the drug and the amount. At or above the threshold, and in any methamphetamine case, the statutes bar probation. Below the threshold, probation may be possible, with mandatory community restitution and fines.
Possession for sale is about holding drugs intending to sell them. Transportation for sale, importing, selling and transferring are covered by a separate paragraph of each statute. See drug sale and transportation.
Most state felonies in Maricopa County are prosecuted by the Maricopa County Attorney's Office. Certain cases are prosecuted by the Arizona Attorney General's Office, often where conduct crosses county lines, a state agency investigated, or the county attorney referred it. Some drug cases are charged in federal court instead. See federal drug charges.
Sources
Arizona statutes link to the official text on azleg.gov, the Arizona State Legislature’s website. Federal law and general legal references link to Cornell Law School’s Legal Information Institute (LII). Laws change, so the version in effect on the date of your case controls.
Arizona law (azleg.gov)
- A.R.S. § 13-3405: Possession, use, production, sale or transportation of marijuana; classification; exceptions
- A.R.S. § 13-3407: Possession, use, administration, acquisition, sale, manufacture or transportation of dangerous drugs; classification
- A.R.S. § 13-3408: Possession, use, administration, acquisition, sale, manufacture or transportation of narcotic drugs; classification
- A.R.S. § 13-702: First time felony offenders; sentencing; definition
- A.R.S. § 13-3401: Definitions
- A.R.S. § 13-3415: Possession, manufacture, delivery and advertisement of drug paraphernalia; classification; civil forfeiture; factors; definitions
- A.R.S. § 13-901.01: Probation for persons convicted of possession or use of controlled substances or drug paraphernalia; treatment; prevention; education
- A.R.S. § 13-3101: Definitions
Cornell Legal Information Institute
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