Unlike some states in recent years, Arizona has not legalized personal possession of marijuana. Pursuant to Arizona Law A.R.S section 13-3405, the knowing possession of marijuana is a criminal offense.
When a person is arrested and charged with possession of marijuana, a Phoenix criminal lawyer may raise several defenses to the charge. Each of these defenses, if successfully established, could lead to dismissal of the charges or a not guilty verdict.
No reasonable articulable suspicion to stop. Most possession of marijuana charges occur when a driver is stopped, searched, and marijuana is discovered in the vehicle.
Before an officer can lawfully stop a vehicle, the officer must have a reasonable articulable suspicion that the driver has violated the law. Ordinarily, in most cases this means that the driver committed a moving violation such as a failure to stop, failure to yield, failure to signal, or speeding. In any such case, the defense attorney will carefully examine the reason for the stop.
In those jurisdictions in Arizona where law enforcement agencies have dash and or body cams, the defense attorney will request the video to actually see the stop and determine whether the stop was valid.
If the defense attorney can prove that the stop was unlawful and no law was violated, any evidence obtained during the stop maybe inadmissible at trial, and the charges against the accused maybe dismissed.
Unlawful search and seizure. Under the Fourth Amendment to the United States Constitution, citizens have the right to privacy from governmental officials; an unlawful search violates those rights. Therefore, officers are required to follow certain protocol before searching someone, their vehicle, or their home, and confiscating their property.
Before conducting a search, an officer must have probable cause. Probable cause requires facts or evidence that would lead a reasonable person to believe that a suspect has committed a crime.
The most common evidence discovered in a possession of marijuana case, used to establish probable cause, is an odor of marijuana. Although, it has been determined that odor of marijuana is no longer evidence of probable cause under the Arizona Medical Marijuana Act (AMMA), the smell of marijuana smoke in public places or from a vehicle may still give rise to probable cause and reasonable suspicion, depending on a reasonable evaluation of the circumstances.
The defense attorney will carefully examine the facts surrounding the search to determine whether the officer followed protocol while conducting the search.
If it is determined that the search was unlawful, the evidence seized maybe held inadmissible and the charges against the accused dropped.
Lack of knowledge. Pursuant to Arizona Law A.R.S section 13-3405, the state has the burden of proving that the accused “knowingly” possessed marijuana. Therefore, the state must establish that the accused knew that he or she was in possession of marijuana and that the substance was in fact marijuana.
The defense attorney may be able to refute the state’s allegation that the accused was knowingly in possession of marijuana and establish reasonable doubt by demonstrating that the marijuana found in the accused’s vehicle or living space was left by someone else who may have had the marijuana, a passenger, roommate, friend, family member, or guest.
The defense attorney may further refute the state’s allegation that the accused was knowingly in possession of marijuana and establish reasonable doubt, by introducing evidence that the accused did not understand or know the substance was marijuana. For example, where an older person gives marijuana to the younger accused and the accused is led to believe that the substance is something other than marijuana.
The defense attorney may also establish reasonable doubt based on a language barrier. For example, the accused receives a substance from someone who speaks a different language without fully comprehending what the substance is.
If the defense attorney is successful in establishing reasonable doubt that the accused was “knowingly” in possession of marijuana it may lead to a dismissal of the charges.
Insufficient proof of possession. Pursuant to Arizona Law A.R.S section 13-3405 the prosecution is required to prove beyond a reasonable doubt the elements of possession.
There are two types of possession actual and constructive.
Proof of actual possession occurs when the state establishes that the accused had marijuana on his or her person during a lawful search.
Constructive possession, which is difficult to prove, is established when the state shows that the accused was aware of the presence of marijuana and exercised dominion and control over it. Essentially, the state must prove that the accused knew the substance was there and that the accused actually knew what it was. Such a task is very difficult without a statement made by the accused, or anyone else, against the accused’s interest.
The state’s failure to prove beyond a reasonable doubt either actual or constructive possession of marijuana by the accused may lead to the dismissal of the charges.
Finally, because each case has its own unique set of facts and circumstances, the competent attorney will assess and anticipate which defenses outlined above and any others, discovered through due diligence, can be used to vigorously set forth an aggressive defense that will prove most beneficial to the interest of the accused.
If you have been charged with possession of marijuana or any other drug, call Phoenix criminal lawyer Howard A. Snader at 602-899-0590.