With multiple interstates corridors and a border with Mexico, Arizona is home to a broad range of drug trafficking and drug smuggling operations. In an attempt to curb drug trafficking in Arizona, strict drug sale laws were established that forbid transporting, selling or possessing drugs for sale. While the law in Arizona is clear on that point, the facts, and their interpretation, are often in dispute.
Drug Trafficking Definition
The elements of the crime of possession with intent to distribute or drug trafficking are:
- The exercise of control over the controlled substance;
- Knowledge that the substance was present;
- Knowledge that the substance was a narcotic drug, dangerous drug, prescription-only or other illegal drug; and
- That the drug was possessed for purpose of a sale.
It is the final one of these elements that distinguishes possession for sale of a drug from mere possession.
Simple Drug Possession vs Drug Trafficking
It is important to remember that the State has the burden to prove that you were in possession of a certain drug and that you sold or intended to sell that drug. Many times, proving felony drug possession is fairly easy but the intent to distribute is where the drug trafficking case becomes difficult for the State to prove.
When a case lacks direct evidence of an actual drug transaction occurring, the State will often rely on expert testimony. These experts will attempt to establish that in addition to the drugs found there is other evidence or there are signs of drug trafficking. This evidence is commonly referred to as indicia of sale. Examples of indicia of sale include:
- Large amounts of a particular drug;
- Volume of people coming in and out of a house;
- Witness testimony of drug sales.
In drug trafficking cases, if the State is unable to prove that you not only possessed a drug but that you sold or intended to sell that drug, then you are only guilty of a lesser offense of felony possession of drugs.
Punishments for Possession with Intent to Distribute First Offense
The consequences of drug trafficking can be severe under Arizona law, even for a first offense. Prior drug sale convictions or prior felonies can increase possible punishments. That said, drug trafficking of narcotic drugs, dangerous drugs and marijuana is a class 2 felony. The maximum and minimum punishment that you can expect after a conviction for a class 2 felony is:
- Probation (only if under threshold – see below); or
- Between 3 and a maximum of 12.5 years in prison.
Possession with Intent to Distribute Sentence (4 Factors)
1. The amount of the drug seized;
2. The type of drug for sale;
3. Any additional charges to the drug trafficking offense; and
4. Any prior criminal history.
1. Arizona Statutory Threshold Amount. If a person caught with an amount of a specific drug for sale that is over the Arizona statutory threshold amount, they are not eligible for probation and must be sentenced to prison. Under ARS 13-3401(36), the Arizona statutory threshold amounts are as follows:
- Heroin – 1 gram
- Cocaine – 9 grams
- Crack Cocaine – 750 milligrams
- PCP – 4 grams
- Methamphetamine – 9 grams
- Amphetamine – 9 grams
- LSD – .5 milliliter or 50 dosage units
- Marijuana – 2 pounds
Put simply, if you are caught selling drugs in an amount over the Arizona statutory threshold amount, you must be sentenced to prison rather than probation.
2. Type of Drug Seized. Arizona differentiates drugs and punishes some drugs more harshly than others. Listed below are drugs that fall outside of the standard drug trafficking sentencing structure:
- Possession with Intent to Distribute Methamphetamine (ARS 13-3407) – Drug trafficking of methamphetamine has a special sentencing structure. If convicted of possession with intent to distribute methamphetamine and the amount is over the Arizona statutory threshold amount, a person is not eligible for probation and must be sentenced to prison. Punishment for a class 2 felony sale of methamphetamine is:
- Between 5 and a maximum of 15 years in prison;
- Early release (parole) is not available and the person must serve 100% of their prison sentence, even for a first offense.
- Possession with Intent to Distribute Marijuana Concentrates (ARS 13-3408) – Sale of marijuana concentrates in Arizona is not considered possession with intent to distribute marijuana under ARS 13-3405 but is instead considered possession with intent to distribute narcotic drugs, a class 2 felony. Because the THC has been extracted and processed, Arizona law considers concentrates to be a narcotic drug rather than marijuana. Punishment for a class 2 felony sale of narcotic drugs is:
- Probation (only if under threshold); or
- Between 3 and a maximum of 12.5 years in prison.
- Possession with Intent to Distribute Prescription-only Drugs (ARS 13-3406) – Sale of prescription-only drugs is a class 4 felony, unless the prescription drug is not also a narcotic or dangerous drug in which case the offense is a class 2 felony. Punishment for a class 4 felony is:
- Probation (only if under threshold);
- Between 1 and a maximum of 3.75 years in prison.
- Possession with Intent to Distribute Vapor Releasing Substances (ARS 13-3403) – Sale of vapor releasing substances is a 5 felony. Punishment for a class 5 felony is:
- Probation (only if under threshold);
- Between .5 and a maximum of 2.5 years in prison.
3. Additional Charges. It is fairly uncommon to be charged with drug trafficking alone as the nature of drug operations inherently give rise to additional charges. Other common crimes charged in addition to charges of drug trafficking include:
SIDE NOTE: When money, cars, homes, businesses, weapons and other property are seized in connection to a drug trafficking charge, criminal forfeiture proceedings should be expected. These proceedings are separate from any criminal charges.
4. Prior Criminal History. Prison is a mandatory sentence for many drug trafficking charges under Arizona law, even for a first offense. However, if a person has prior criminal history, the potential consequences of drug trafficking convictions increases dramatically.
Drug Trafficking Defenses
While drug trafficking charges are serious charges, there are defenses that can be raised, and raised successfully. Some of the more common drug trafficking defenses and strategies include:
- Attacking Witness Credibility. Many possession with intent to distribute cases involve sting operations or use of a confidential informant. More often than not, these informants are being paid or working off their own drug charges. Establishing and eroding the credibility of a confidential informant’s testimony is an essential a part of an effective defense.
- Establishing Entrapment Defense. Other drug trafficking cases involve reverse sting operations with law enforcement or sale to an undercover officer which gives rise to a defense of entrapment.
- Uncovering Wiretap Issues. With the shere number of drug sale cases that arise out of government wiretaps, it is absolutely necessary to examine the wiretap warrant requirements to ensure that proper procedures were followed. When strict procedures are not followed, entire cases can be thrown out of court.
- Challenging Indicia of Sale. The State has the burden of proving that the drugs found were actually for sale and not just for personal consumption. By challenging the indicia of sale evidence obtained by law enforcement it possible to argue for a lesser possession offense rather than a more harshly punished drug trafficking charge.
- Contesting Physical Evidence Findings. The primary evidence in many drug cases consists of the drugs themselves. The scientific testing methods and procedures for weighing the drugs, therefore become paramount to the case. Challenging the methodology and results of the State’s physical evidence is crucial.
- Evaluating Search and Seizure Violations. The manner in which drugs, supplies and cell phone evidence are discovered and seized often raises issues of illegal search and seizure. In some cases, a motion to preclude such evidence as having been unconstitutionally obtained in violation of the Fourth Amendment, may successfully bar the evidence from being introduced at trial, and this, in and of itself, can in many cases lead to a dismissal for lack of evidence.
- Examining Other Constitutional Violations. In addition to seizure related Constitutional challenges, many drug cases involve the potential for Miranda violations, right to counsel violations and due process violations.
Drug Trafficking Lawyer
The skilled drug trafficking lawyers at Feldman & Royle, represent clients charged with all manner of drug crimes in the greater Phoenix area. Defending drug trafficking charges is a specialized field and we have the experience and knowledge required to mount an aggressive defense of your case.
Developing and mounting a strong defense strategy is what the drug trafficking lawyers at Feldman & Royle have been doing for years. In an effort to explain Arizona’s complex drug laws, we offer a free confidential consultation to discuss Arizona drug trafficking charges and how a drug trafficking lawyer impact your specific case.
Frequently Asked Questions (FAQs)
What is drug trafficking?
- Drug trafficking involves transportation, hand-to-hand sale and felony possession for sale of narcotic, dangerous and prescription drugs.
How to beat a drug trafficking charge?
- Beating drug trafficking charges can take many forms based on the facts of a specific case. That said, the most common defenses include Constitutional challenges to evidence, discrediting of State witnesses and uncovering wiretap issues, where applicable.
What determines intent to distribute?
- Evidence of a person’s intent to distribute is often called indicia of sale. Examples of indicia of sale include: scales, baggies, large amounts of cash, ledges, sizable amounts of a particular drug, people coming in and out of a house and witness testimony of drug sales.
What is the sentence for possession with intent to distribute?
- The possible sentence for possession with the intent to distribute depends on four main factors: 1) Whether the amount of the drugs seized was over the Arizona statutory threshold amount; 2) The type of drug that was allegedly being sold; 3) Whether any criminal charges in addition to the drug trafficking charges are being alleged; and 4) Whether the person has any prior criminal history.
How much is bail for drug trafficking?
- Bail in drug trafficking cases is extremely case specific. How much bail is being requested for drug trafficking charges depends on: the judge, the amount of a specific drug seized, the defendant’s prior criminal history, the defendant’s history reporting for previous court dates and the defendant’s connection to Arizona. That said, low-level, first-time offenders can often expect an own recognizance (OR) release where more serious drug trafficking cases have bonds in the $100,000 range.
What is the Arizona statutory threshold amounts?
- The Arizona statutory threshold amounts are as follows: Heroin – 1 gram; Cocaine – 9 grams; Crack Cocaine – 750 milligrams; PCP – 4 grams; Methamphetamine – 9 grams; Amphetamine – 9 grams; LSD – .5 milliliter or 50 dosage units; and Marijuana – 2 pounds.