Possession of Dangerous Drugs in Arizona: ARS 13-3407

What is Possession of Dangerous Drugs?

A.R.S. § 13-3407 criminalizes the possession of dangerous drugs in Arizona. Methamphetamine, MDA, PCP, and anabolic steroids are all classified as dangerous drugs in Arizona. A person convicted for possession of dangerous drugs may face either probation or prison time depending on whether they have prior felony or drug convictions.

Some prosecutor’s offices offer a diversion program for people charged with simple possession of dangerous drugs. This allows first-time offenders the opportunity to get their charges dismissed if they attend certain drug education classes.

In addition to simple possession of dangerous drugs, ARS 13-3407 also criminalizes possession of dangerous drugs for sale and the transportation of dangerous drugs. While possession of dangerous drugs is a class 4 felony, possession for sale or transportation are both class 2 felonies which can have serious consequences even for first-time offenders.

If you have been charged with any crime under ARS 13-3407 for possession of dangerous drugs, the Salwin Law Group can help. We provide free consultation and can develop defense strategies that we can use to fight your charges.

A.R.S. § 13-3407 Defined

ARS 13-3407 makes the possession of dangerous drugs illegal under a variety of circumstances. Depending on the situation under which a person possesses dangerous drugs, different subsections of the statute come into effect, each with their own level of penalty. For example, simple possession of dangerous drugs for personal use is the most standard charge that defense attorneys in Arizona see when the state alleges a violation of ARS 13-3407.

However, there are also specific sections of the law that make it illegal to possess dangerous drugs for sale or for transportation. These are considered to be much more serious crimes under the law, and they carry harsher punishment.

Arizona’s dangerous drug statute has 7 different classifications of crimes that are described below.

ARS 13-3407 states that a person “shall not knowingly”:

• ARS 13-3407(A)(1): Possess or use a dangerous drug. Class 4 felony.
• ARS 13-3407(A)(2): Possess a dangerous drug for sale. Class 2 felony.
• ARS 13-3407(A)(3): Possess equipment or chemicals for the purposes of manufacturing a dangerous drug. Class 3 felony.
• ARS 13-3407(A)(4): Manufacture a dangerous drug. Class 2 felony.
• ARS 13-3407(A)(5): Administer a dangerous drug to another person. Class 2 felony.
• ARS 13-3407(A)(6): Obtain a dangerous drug by fraud, deceit, or misrepresentation. Class 3 felony.
• ARS 13-3407(A)(7): Transport or sell a dangerous drug. Class 2 felony.

What is a “Dangerous Drug”?

What is included in the definition of “dangerous drugs” in Arizona? As it turns out, there is a very long list of drugs defined as “dangerous” by statute.

ARS 13-3401(6) provides a list of over 200 different drugs that are classified as “dangerous”.

Some of the most common dangerous drugs in Arizona include:

• Methamphetamine
• Mescaline
• MMDA
• MDA
• PCP
• Amphetamine
• Anabolic steroids

Penalties for Possession of Dangerous Drugs

A defendant who is charged and convicted under ARS 13-3408, faces different penalties depending on 1) the level of felony of the crime 2) how many previous felony convictions they have; and 3) whether the drug involved was methamphetamine.

There are much harsher penalties for methamphetamine charges than those in which another dangerous drug was involved.

Each class of felony carries a prison range. Here is the range for first-time felony offenses for non-methamphetamine charges:

• Class 2 felony: 2 to 12.5 years in prison.
• Class 3 felony: 2 to 8.75
• Class 4 felony: 1 to 3.75

Second-time felony convictions for non-methamphetamine charges:

• Class 2 felony: 4.5 to 23 years
• Class 3 felony: 3.25 to 16.25
• Class 4 felony: 2.25 to 7.5

Third-time felony convictions for any dangerous drug:

• Class 2 felony: 10.5 to 35 years
• Class 3 felony: 7.5 to 25
• Class 4 felony: 6 to 15

If the defendant is eligible for and receives probation for a violation of ARS 13-3407, they will receive the following mandatory penalties:

• Not less than $1000 or three times the value of the narcotic drugs seized in the case.
• 360 hours of community restitution (i.e., community service).

If the defendant is a first-time offender and has violated ARS 13-3407(a)(2), (3), (4), or (7) and the drug involved is methamphetamine they face the following prison term:

• 5 to 15 years

If the defendant is a second-time offender and has violated ARS 13-3407(a)(2), (3), (4), or (7) and the drug involved is methamphetamine they face the following prison term:

• 10 to 20 years

What is the “Statutory Threshold” for Possession of Dangerous Drugs?

If a person is charged for violating ARS 13-3407 under subsection 2 (possession of dangerous drugs for sale), subsection 5 (administering dangerous drugs), or subsection 7 (transportation of dangerous drugs), then they face enhanced penalties if the quantity of drugs exceeds a certain amount. This amount is known as the “statutory threshold,” and the exact quantity of drugs that is takes to reach this amount is defined by Arizona law.

There are different statutory thresholds for each type of dangerous drug:

• Methamphetamine: 9 grams
• Amphetamine: 9 grams
• Lysergic acid diethylamide: 1/2 milliliter
• PCP: 4 grams of 50 milliliters
• Any other dangerous drug: Any weight having a value of over $1000

If the prosecution is able to prove that the drugs possessed by an individual exceed the statutory threshold, then a person convicted under ARS 13-3407 will have to serve the full sentence of their prison term or probationary period, and they will not be eligible for pardon or release. This can significantly increase the actual prison time a person may be facing.

This is My First Offense, is Probation an Option?

Yes. If you are facing charges for simple possession of dangerous drugs (i.e., not possession for sale or transportation), then you may be eligible for probation.

An Arizona drug law known as “Prop 200” was passed by a voter initiative in 1996 and says that a person charged with simple drug possession must receive probation for a first-time drug offense. This is true even if it is not the person’s first felony offense.

Regardless of the type of drug involved, a person with two prior convictions for drug possession, is not eligible for probation under Prop 200.

However, there are some exceptions to this law for dangerous drugs. Specifically, possession of methamphetamine is not covered under Prop 200. Because of the rise in methamphetamine use in Arizona, in 2006 Arizona voters passed Prop 301, making methamphetamine users ineligible for the automatic probation provided for other simple drug possession charges under ARS 901.01.

Furthermore, possession of methamphetamine for any other purpose but personal use (such as possession for sale or transportation) is not eligible for probation. There are special prison ranges for violations of ARS 13-3407(a)(2), (3), (4), and (7). A person convicted under any of these subsections for a first-time offense, must be sentenced to a prison term between 5 to 15 years. Second-time offenders must be sentenced for a term of prison between 10 and 20 years. And third-time offenders can receive even higher prison sentences under Arizona’s repeat-offender sentencing statutes. State v. Diaz, 224 Ariz. 322 (Ariz. 2010).

What is “Diversion”? Can I Get My Case Dismissed?

In Arizona, “diversion” is the name for a program which allows a person charged with a crime to get their case dismissed if they complete certain classes. Not all prosecutor’s offices throughout Arizona have a diversion program, and each agency has its own policies for when it will give diversion as an option.

Maricopa County has a diversion program for first-time drug offenders known as “TASC.” TASC stands for “Treatment Assessment Screening Center,” which is the company that Maricopa County contracts with to run the diversion program. There is a TASC program offered for possession of dangerous drugs.

The benefit of enrolling in a diversion program such as TASC is that is allows a defendant to deal with the criminal charges and get them dismissed without a conviction of any kind going onto the person’s criminal record.

The prosecutor’s office determines who is eligible for diversion, and there is no legal requirement that a defendant receive diversion as a plea offer.

Facing Criminal Charges in Arizona?

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Defenses to Possession of Dangerous Drugs

• Lack of Knowledge: In order to be convicted of possession of dangerous drugs in Arizona, the prosecution needs to prove that the defendant “knowingly” possessed the drugs. In other words, the state must prove beyond a reasonable doubt that the person arrested for possession of dangerous drugs knew of their existence.

Example: A passenger is riding in a friend’s car. The driver is pulled over by the police and the car is searched. Inside the center console, the police find a baggy containing methamphetamine. The state cannot convict the passenger for possession of the methamphetamine unless the prosecutor can prove beyond a reasonable doubt that the passenger knew about the drugs in the center console. In State v. Miramon, 27 Ariz. App. 451 (1976), the Arizona Court of Appeals held that “mere presence” in a car where drugs are found is not enough to convict a passenger for possession of illegal drugs.

• No “Possession”: Sometimes a person might have knowledge that drugs exist, but hat person does not possess the drugs. “Possession,” as defined by Arizona law, means to either physically have something or to have “dominion or control” over that item. Having dominion or control means that you exercise “absolute ownership” or “power over” the thing in question. State v. Salinas, No. 1 CA-CR 15-0581 (Ariz. Ct. App. Jul. 19, 2016).

Example: Let’s assume that two people live in the same apartment. There is a common area where both of them share a space, like a living room and a kitchen. But each person also has their own bedroom. A person might know that their roommate uses meth and has some in their bedroom; however, they do not have meth in their own bedroom and no meth is found in the common spaces they share. The state has a weak case if they try to assert that the person possesses the meth in the roommate’s bedroom, even though they might know about its existence because the roommate does not exercise “dominion or control” over the items in the roommate’s bedroom.

• Insufficient evidence: The state must prove each criminal case “beyond a reasonable doubt.” When it comes to charges for possession of dangerous drugs, a defense attorney can review the evidence presented by the state for weaknesses in the facts. There might be errors made the police during their investigation, or the witnesses for the state could be unreliable. With the advent of readily available body cam footage that records the exact details of an arrest, sometimes we see that the police report does not describe the facts of the case accurately or it leaves out important details that could be vital for a person’s defense.
• Constitutional violations: Every person arrested has the right to an attorney and the right to be free from unreasonable searches and seizures. Unfortunately, these constitutional rights are sometimes violated by the police before or after an arrest. When this is the case, a defense attorney can file a motion with the court to get the evidence in the case suppressed so that it cannot be used by the prosecutor in court. Sometimes, especially in the case of violations of the right to counsel, the case might even be eligible for a dismissal.

How Salwin Law Group Can Help You

Charges for possession of dangerous drugs under ARS 13-3407 are serious felony offenses. If you have been arrested or charged with possession of dangerous drugs, a skilled drug crime attorney can help you. Stewart Salwin is a former felony drug prosecutor and graduated cum laude from Harvard Law School. He has experience handling drug cases both as a prosecutor and a defense attorney, and he knows the system inside and out.

When you receive serious charges, you deserve an elite defense. We offer free consultation and can discuss your case with you today. Together we can help you get your life back.