ARIZONA MARIJUANA CHARGE DEFENSE LAWYER

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Marijuana is a serious criminal offense in Arizona that carries significant penalties including jail time, fines, and a permanent record. Contact Matthew Lopez Law for a free consultation to discuss your defense options.

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What Are Marijuana Charges Under Arizona Law?

Arizona legalized recreational marijuana in 2020. A lot of people stopped paying attention after that headline. But here is the reality: you can still catch a felony for marijuana in this state.

ARS 13-3405 is the criminal statute that defines marijuana offenses in Arizona, and Proposition 207 did not repeal it. The two laws now operate side by side, creating a layered system where the line between legal possession and a serious felony charge is thinner than most people realize.

The amount you have, what you are doing with it, and whether you are over 21 all determine whether your situation is perfectly legal, a petty offense, or a Class 2 felony carrying years in prison.

Quick Reference: ARS 13-3405 Marijuana Offenses

What Proposition 207 Changed (and What It Did Not)

Before breaking down the criminal statute, you need to understand what Proposition 207 actually legalized.

The Smart and Safe Arizona Act (ARS 36-2852) made the following activities lawful for adults 21 and older:

• Possessing, consuming, purchasing, or transporting one ounce or less of marijuana, of which no more than five grams can be marijuana concentrate
• Cultivating up to six marijuana plants at your residence in an enclosed, locked area not visible to public view (maximum 12 plants per residence if two or more adults 21+ live there)
• Transferring one ounce or less (no more than five grams of concentrate) to another adult 21+ without payment and without advertising
• Possessing, using, purchasing, or transporting marijuana paraphernalia related to consumption or cultivation

What Prop 207 did not change:

• Selling marijuana without a license is still illegal
• Possessing more than the legal limit is still a crime
• Any marijuana activity by someone under 21 is still illegal
• Smoking or vaping marijuana in public places or open spaces is still illegal
• Driving under the influence of marijuana is still a DUI under ARS 28-1381
• Federal law still classifies marijuana as a Schedule I controlled substance

One major change worth noting: under ARS 36-2852(C), the odor of marijuana or burnt marijuana alone does not constitute reasonable articulable suspicion of a crime.

This has significant Fourth Amendment implications for traffic stops and searches.

The Gray Zone Between Legal and Felony

Prop 207 created a middle ground that did not exist before. Between the legal possession limit and the felony threshold under ARS 13-3405, there are now tiered penalties under ARS 36-2853:

• Adults 21 and over possessing more than one ounce but not more than 2.5 ounces (with no more than 12.5 grams of concentrate): petty offense. No jail, fine only.
• Adults under 21 possessing, consuming, transporting, or transferring one ounce or less (up to five grams of concentrate) or marijuana paraphernalia:
  • First violation: civil penalty up to $100 plus possible drug education (up to 4 hours)
  • Second violation: petty offense plus possible drug education (up to 8 hours)
  • Third or subsequent violation: Class 1 misdemeanor (up to 6 months in jail, up to $2,500 fine)
• Possessing more than 2.5 ounces of marijuana: this is where ARS 13-3405 takes over and the charges become felonies.

Breaking Down ARS 13-3405

The statute prohibits four categories of conduct involving marijuana. Each category has its own felony classifications based on weight.

Under ARS 13-3405(A), a person shall not knowingly:

• Possess or use marijuana
• Possess marijuana for sale
• Produce marijuana
• Transport for sale, import into the state, sell, transfer, or offer to sell or transfer marijuana

All of these are subject to the exceptions in ARS 36-2852 (Prop 207 legal activities) and ARS 36-2853 (tiered penalties for amounts between the legal limit and the felony threshold).

Personal Possession (Not for Sale)

Under ARS 13-3405(B)(1)-(3):

A Class 6 felony is a “wobbler” in Arizona, meaning the court may designate it as a Class 1 misdemeanor under ARS 13-604 if the defendant has no prior felony convictions and the circumstances warrant it.

Possession for Sale

Under ARS 13-3405(B)(4)-(6):

Production

Under ARS 13-3405(B)(7)-(9):

Remember that Prop 207 allows cultivation of up to six plants for personal use. Production charges under ARS 13-3405 come into play when the number of plants exceeds six (or 12 per household), when the grow is not in an enclosed and locked area, or when the total yield exceeds the legal possession limits.

Transportation, Sale, or Import

Under ARS 13-3405(B)(10)-(11):

Transportation for sale carries some of the harshest penalties under this statute. Even amounts under two pounds result in a Class 3 felony if the intent is to sell, import, or transfer for value.

The Threshold Amount and Mandatory Prison

The statutory threshold amount for marijuana is two pounds under ARS 13-3401(36)(g).

Under ARS 13-3405(C), if the aggregate amount of marijuana equals or exceeds the threshold amount (two pounds), a person sentenced under subsection B paragraphs 5, 6, 8, 9, or 11 is not eligible for suspended sentence, probation, pardon, or release from confinement on any basis until the sentence is served, the person qualifies for earned release under ARS 41-1604.07, or the sentence is commuted.

In practical terms, this means mandatory prison for above-threshold convictions involving:

• Possession for sale of 2+ pounds (Class 3, paragraph 5)
• Possession for sale of 4+ pounds (Class 2, paragraph 6)
• Production of 2 to 4 pounds (Class 4, paragraph 8)
• Production of 4+ pounds (Class 3, paragraph 9)
• Transportation/sale/import of 2+ pounds (Class 2, paragraph 11)

Note that personal possession (paragraphs 1, 2, and 3) and below-threshold possession for sale (paragraph 4), production (paragraph 7), and transportation (paragraph 10) are not listed in subsection C. This means probation remains a possibility for those offenses even at higher amounts.

Mandatory Fines

Under ARS 13-3405(D), every marijuana conviction carries a mandatory fine of at least $750 or three times the value of the marijuana involved, whichever is greater.

This fine cannot be suspended by the judge under any circumstances.

Community Restitution Requirements

ARS 13-3405 imposes different community restitution requirements depending on the offense:

• Personal possession convictions (subsection G): Minimum 24 hours of community restitution with a drug treatment, victim services, or similar organization as a condition of probation.
• Below-threshold sale, production, or transportation convictions (subsection F): Minimum 240 hours of community restitution with similar organizations as a condition of probation.
• Misdemeanor marijuana convictions (subsection H): 8 hours of drug education instruction on the nature and harmful effects of narcotic drugs, marijuana, and dangerous drugs, or 24 hours of community restitution.

How About Marijuana Concentrates?

This is where many people get tripped up. Marijuana in plant form (flower, bud, leaves) is charged under ARS 13-3405.

But marijuana concentrates (hash oil, wax, shatter, dabs, vape cartridges above the legal limit) fall under a completely different statute and carry significantly harsher penalties.

Under ARS 13-3401(4), “cannabis” is defined as the resin extracted from any part of a cannabis plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such resin or tetrahydrocannabinol.

Under ARS 13-3401(20)(x), cannabis is classified as a narcotic drug. That means marijuana concentrates above the legal Prop 207 limit (five grams for recreational users, 12.5 grams for medical patients) are charged under ARS 13-3408 as narcotic drug offenses, not under the marijuana statute.

Possession of a narcotic drug is a Class 4 felony. Possession for sale is a Class 2 felony with potential mandatory prison time.

A person carrying a vape cartridge with six grams of THC concentrate is technically in possession of a narcotic drug under Arizona law, not simply in possession of “marijuana.” The penalties are dramatically different.

Proposition 200 and Marijuana Charges

Proposition 200 (ARS 13-901.01) provides mandatory probation (instead of prison) for first and second-time personal possession convictions. Unlike methamphetamine, marijuana personal possession charges are eligible for Prop 200 protections.

For a qualifying first offense, the court must place you on probation and cannot impose incarceration unless you violate probation by committing a drug offense or violating a drug treatment order (ARS 13-901.01(E)).

For a second qualifying offense, the court may add conditions including jail time, intensive probation, or home arrest (ARS 13-901.01(F)).

Prop 200 does not apply to possession for sale, production, manufacturing, or transportation charges (ARS 13-901.01(C)).

Expungement of Prior Marijuana Convictions

Proposition 207 created an expungement process under ARS 36-2862 for certain prior marijuana offenses.

If your conviction involved conduct that is now legal, you may be eligible to have your record sealed.

Qualifying offenses include:

• Possessing, consuming, or transporting 2.5 ounces or less of marijuana (12.5 grams or less of concentrate)
• Possessing, transporting, cultivating, or processing six or fewer marijuana plants at your residence
• Possessing, using, or transporting marijuana paraphernalia related to cultivation, processing, or consumption

This applies to conduct that occurred before November 30, 2020 (the effective date of Prop 207). Courts are required to dismiss pending cases with prejudice if the underlying conduct would now be legal under the Act.

Defense Strategies for Marijuana Charges

Prop 207 compliance.

If you are 21 or older and your possession falls within Prop 207 limits (one ounce or less, five grams or less of concentrate, six or fewer plants in a locked enclosure), you have not committed a crime. Charges should be dismissed.

Challenging the weight.

Under ARS 13-3401(39), weight includes the entire weight of any mixture or substance containing marijuana. If the marijuana was mixed with other materials, the weight calculation can push you into a higher penalty tier. A defense expert can challenge the reported weight and argue that the actual marijuana content is significantly less.

Challenging the search.

Many marijuana cases originate from traffic stops or vehicle searches. Under Prop 207, the odor of marijuana alone is no longer reasonable suspicion for a search (ARS 36-2852(C)). If law enforcement used the smell of marijuana as the sole basis for a search, any evidence obtained may be suppressed.

Challenging intent to sell.

The difference between personal possession and possession for sale can be multiple felony classes. Prosecutors often rely on circumstantial evidence like packaging, scales, large amounts of cash, or text messages. If the evidence is ambiguous, a strong defense can argue that the marijuana was for personal use, resulting in a lower charge.

Challenging constructive possession.

Under ARS 13-105, possession includes constructive possession. If marijuana was found in a shared vehicle, a common area of a residence, or property accessible to multiple people, the prosecution must prove you knew it was there and had control over it.

Medical marijuana defense.

If you hold a valid medical marijuana card under ARS 36-2801 et seq., you can legally possess up to 2.5 ounces of marijuana (including up to 12.5 grams of concentrate). Medical patients can also cultivate up to 12 plants if they live more than 25 miles from a dispensary.

Related Charges

Got Marijuana Charges in Arizona?

Despite legalization, marijuana charges in Arizona are still common and still serious. The line between legal activity and a felony depends on weight, age, intent, and how the marijuana is processed. Whether your case involves a few grams over the legal limit or a large-scale trafficking allegation, the penalties range from a fine to years in prison, and the defense strategy is different at every level.

At Matthew Lopez Law, our attorneys understand how ARS 13-3405 and Proposition 207 interact, where the gray areas are, and how to build a defense that fits the specific facts of your case. We fight marijuana charges across Arizona.

Call us 24/7 for a free consultation. We will review your situation and explain what you are actually facing.

References

1. ARS 13-3405 [defining prohibited conduct involving marijuana: possession, possession for sale, production, transportation/sale/import; felony classifications by weight under subsection B].
2. ARS 36-2852 [Proposition 207: legalizing possession of one ounce or less of marijuana (five grams concentrate) for adults 21+; cultivation of up to six plants; transfer without remuneration; paraphernalia].
3. ARS 36-2853 [tiered penalties for marijuana amounts between legal limit and felony threshold: petty offense for over one ounce but not more than 2.5 ounces; civil penalties for under-21 first offense; Class 1 misdemeanor for under-21 third offense].
4. ARS 36-2852(C) [odor of marijuana or burnt marijuana does not by itself constitute reasonable articulable suspicion of a crime].
5. ARS 13-3401(36)(g) [statutory threshold amount for marijuana: two pounds].
6. ARS 13-3405(C) [mandatory prison for above-threshold convictions under subsection B paragraphs 5, 6, 8, 9, or 11; ineligible for suspended sentence, probation, pardon, or release].
7. ARS 13-3405(D) [mandatory fine of $750 or three times the value of marijuana involved, whichever is greater; fine may not be suspended].
8. ARS 13-3405(F) [minimum 240 hours community restitution for below-threshold sale/production/transportation convictions granted probation].
9. ARS 13-3405(G) [minimum 24 hours community restitution for personal possession convictions granted probation].
10. ARS 13-3401(4) [defining “cannabis” as resin extracted from cannabis plants and preparations of tetrahydrocannabinol].
11. ARS 13-3401(20)(x) [classifying cannabis as a narcotic drug].
12. ARS 13-3408 [narcotic drug offenses: marijuana concentrates above Prop 207 limits charged as narcotic drug possession].
13. ARS 13-901.01 [Proposition 200: mandatory probation for first and second personal possession offenses; marijuana eligible; methamphetamine excluded].
14. ARS 36-2862 [Proposition 207 expungement: eligible offenses include possession of 2.5 ounces or less, six or fewer plants, and marijuana paraphernalia for conduct before November 30, 2020].
15. ARS 13-3401(39) [weight includes entire weight of any mixture containing a detectable amount of marijuana].
16. ARS 13-105 [defining possession to include actual and constructive possession].
17. ARS 13-3409 [furnishing marijuana to a minor: Class 2 felony].

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