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Criminal Defense Law Firm in Tucson

Over one million prisoners were under federal and state jurisdiction at the end of 2016, and in 2013 alone, the Federal Bureau of Investigations (FBI) estimates that over 11 million arrests were made for offenses of all types. These statistics and others can capture the feeling of fear a person can have when faced with criminal charges. People feel like there is no way out or that no one can help them. These feelings are only intensified when an individual realises how much prison time they could be facing.

Penalties for Drug Crimes

Drug crimes are both state and federal crimes in most instances, but for crimes such as simple possession, the Federal Government will usually leave the prosecution to the states. Often, the penalties the offender will face depend upon who is prosecuting the case, the offender’s criminal history, and the circumstances of the crime.

Federal Drug Crimes

Federal law prohibits the possession of any controlled substance. Controlled substances are categorized by schedule, and pursuant to 21 U.S. Code § 802(6), a controlled substance is defined as “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” Some of the most common drugs and their respective schedules are as follows:

  • Schedule I: Heroin, Ecstasy, LSD, and Marijuana
  • Schedule II: Cocaine, Methamphetamine, Dilaudid, and OxyContin
  • Schedule III: Tylenol with Codeine, Ketamine, Testosterone
  • Schedule IV: Xanax, Soma, Valium, Ambien, Tramadol
  • Schedule V: Robitussin AC, Lyrica

As you can see, many prescription medications are controlled substances. As such, it is legal to possess certain controlled substances as long as the individual has a valid prescription from a doctor.

Most drug crimes at both the state and federal level have an enhancement statute or clause within a statute for repeat drug offenders. For example, according to 21 U.S. Code § 844(a), the penalty for simple possession is “a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both.” However, the same statute indicates that an offender with a previous drug conviction can be sentenced to “a term of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500.”

Enhancement statutes will usually have a maximum, which is demonstrated in the simple possession statute. The maximum enhanced punishment an offender with two or more drug charges could receive for a single charge of simple possession is a term of imprisonment for not less than 90 days, but not more than three years and a fine of $5,000.

The sentences for federal drug crimes can change drastically based on the amount of the controlled substance that an individual has in his or her possession, and whether or not the prosecution can prove that the offender intended to or did manufacture, distribute, or dispense a controlled substance. Proving one or more of these elements to a drug crime can potentially expose an offender to mandatory minimum sentences.

Arizona Drug Crimes

Arizona has extremely strict drugs laws when compared to other states. The Arizona Criminal Code makes several key distinctions between the types of drugs and the sentences imposed in connection with possession or distribution of those drugs. These elements of Arizona’s statutes have a large impact on the sentences imposed on first time and repeat offenders.

Arizona has extremely strict drugs laws when compared to other states. The Arizona Criminal Code makes several key distinctions between the types of drugs and the sentences imposed in connection with possession or distribution of those drugs. These elements of Arizona’s statutes have a large impact on the sentences imposed on first time and repeat offenders.

Arizona Felony Drug Possession

Generally, two of the largest classes of drugs under Arizona law are “dangerous drugs” and “narcotic drugs.” The drugs in each category are listed in A.R.S §13-3401. The most common types of controlled substances categorized as dangerous drugs and some of the most common dangerous drugs are listed below:

  • Certain types of amphetamines including methamphetamine
  • Certain types of anabolic steroids including testosterone
  • Certain types of hallucinogens including acid and mescaline

Possession of a dangerous drug is considered a class four felony. However, individuals charged with possession of a dangerous drug that do not have a past felony conviction may be eligible to have their conviction reduced to a class one misdemeanor, but if the dangerous drug was lysergic acid diethylamide (LSD), methamphetamine, amphetamine or phencyclidine, the offender is not eligible to have the conviction reduced. Moreover, first time offenders are also eligible for probation for possession of a dangerous drug.

Individuals convicted of possession of narcotics face similar sentences as those imposed on an offender who is convicted of possession of a dangerous drug. The crime is considered a class four felony and first time offenders are eligible for probation. However, first time offenders are not eligible to have their conviction reduced to a class one misdemeanor.

Similar to federal law, Arizona law imposes harsher sentences on a repeat offenders through enhancement statutes or clauses. For the crime of possession of narcotics or dangerous drugs, a past felony conviction will preclude the offender from qualifying for probation. This means that the offender will face a mandatory prison sentence if convicted. The presumptive sentence for a class four felony, which is given in most cases unless there are mitigating or aggravating factors to the crime, is two years and six months in prison.

The minimum sentences imposed on an offender intensify as the charges intensify. Charges of possession of a dangerous drug or narcotics for sale, for example, could potentially carry a three to twelve and a half year prison sentence.

Arizona Marijuana Crimes

Crimes involving only marijuana carry lighter sentences than those involving dangerous or narcotic drugs. In 2010, Arizona voters approved proposition 203 which made marijuana legal for medicinal purposes. Only individuals with certain diseases can qualify for a medicinal marijuana card, which permits the consumption and possession of marijuana for medicinal purposes. However, possession or consumption of cannabis for recreational purposes remains illegal

Possession of any amount of marijuana under two pounds for personal use is considered a class six felony under Arizona law and can lead to a term of imprisonment of four months to two years depending on the circumstances of the crime. Fortunately, first time offenders have many legal options available such as getting the charge reduced, entering a diversionary program, or probation.

As the amount of marijuana in someone’s possession increases, so does the possible sentence that individual will receive. For example, an offender that is found to have two to four pounds of marijuana in his or her possession for personal use is considered to have commited a class five felony that could result in a six month to two and a half year prison sentence.

Moreover, as with most drugs, the more of a drug an offender has in his or her possession, the harder it becomes to argue that the drugs are for personal use, which can lead to an implication that the drugs are for sale. This can unfortunately lead to a longer term of imprisonment in some cases.

Arizona Methamphetamine Crimes

Drug crimes involving methamphetamine carry some of the harshest sentences and are taken very seriously under Arizona law. Unlike possession of other dangerous drugs, first time possession of methamphetamine offenders cannot have their conviction reduced to a class one misdemeanor. Meaning, the charge will remain a class four felony. Although first time offenders can qualify for probation, the charge could carry with it a possible one to three and three quarter year prison sentence.

Additionally, if an individual is caught with over nine grams of methamphetamine, the amount of methamphetamines alone can imply that it is for sale, because the amount exceeds what would be considered for personal use only.

Due to these circumstances, the offender could face mandatory prison time, because possession of over nine grams of methamphetamine for sale can preclude the offender from being eligible for suspension of sentence, probation, pardon, or release from prison on any basis until the offender has served the imposed sentence.

Can You be Prosecuted for Drug Crimes Under Federal and State Law?

Generally, a crime will be prosecuted either at the state level or the federal level, but this is not an absolute standard. Drug crimes can be prosecuted by both the federal and state government at the same time for the same offense without violating the double jeopardy clause of the U.S. Constitution.

The fifth amendment of the Constitution states “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” In general, the double jeopardy clause protects citizens from prosecution after acquittal or conviction and against multiple punishments for the same offense

However, when one offense violates both state and federal law at the same time, the offender can be prosecuted by both entities under the Dual Sovereignty Doctrine. This is possible, because the both the state and federal government are viewed under the law as separate sovereign governments. So, one offense that violates both state and federal law is actually viewed as two separate offenses, one against the federal government and one against the state government

This concept captures the gravity of the sentences that could be imposed on an individual for certain crimes and why it is so important to obtain effective aggressive legal representation when charged with any criminal offense.

Defenses for Drug Crimes

Both state and federal laws are complex. When a person is facing any criminal charge(s), it is important that he or she obtains legal counsel. In the case of any drug charges, several defenses can be raised in connection with a drug crime.

When is an Unwarranted Search of My Vehicle Legal?

One thing to always consider in a case involving drugs of any kind is how the evidence the prosecution has was obtained. Often, drug crimes involve the search of a vehicle. There are a number of things that the government must prove for a warrantless search of a vehicle during a traffic stop to be legal.

First, the officer needs to have reasonable suspicion that the driver was involved in some type of criminal activity or commited a minor traffic violation to stop you. So, the state needs to prove that the traffic stop was warranted given the circumstances. If the state cannot prove this, the evidence obtained during the search can be suppressed.

Second, certain circumstances can make the unwarranted search of a vehicle unreasonable and thus, enable a defense attorney to have the evidence obtained during that search suppressed. However, every case is unique, and an in-depth legal analysis of the facts needs to be conducted to determine if a search is reasonable.

Lack of Physical Evidence

Often in cases involving possession of a small amount of a controlled substance, the prosecution lacks physical evidence, because only trace amounts of a drug were found in an individual’s home, car, or on his or her person. It is important to remember that a large portion of the prosecution’s case rests on the ability to prove, at the time of trial, than an offender had in his or her possession a dangerous or narcotic drug.

If that evidence is missing or if all trace amounts of the drug were used during a field test, the case lacks physical evidence, and an experienced defense attorney can move to have the case dismissed. This same defense can be used to argue against a charge of possession with intent to distribute that is merely based on the amount of a substance an offender has in his or her possession.

When an offender is caught with an amount of drugs that surpasses what would be considered personal use, prosecutors will often try to charge the offender with intent to distribute based on the amount of drugs alone, but this is subjective and debateable without any physical proof that the offender had the intent to sell such as large amounts of cash, bags, or packaging materials.

How Can a Defense Attorney Help With My Drug Crime?

Federal and state drug crimes both carry serious sentences regardless of the type of crime. Some charges require mandatory prison sentences. Repeat offenders can even face a sentence of life in prison depending on the circumstances of the crime, and the government will utilize every resource available to prosecute drug crimes to the fullest extent of the law.

The Law Office of Hernandez & Hamilton, PC is a national criminal defense law firm located in Phoenix and Tucson, AZ that accepts cases in the entire state of Arizona and the rest of the United States. If you or one of your loved ones is facing criminal charges, call or email our office today to find out what an experienced criminal defense attorney can do to help you with your case. Our attorneys have over 90 years of combined criminal defense experience. So, don’t risk your future and call today.

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