ARS § 13-3407 – Possession, Use, or Sale of a Dangerous Drug – Arizona Law & Penalties

ARS § 13-3407 is the Arizona statute that makes it a crime to perform certain acts in relation to a dangerous drug (for example, possess one, use one, or make one). Common “dangerous drugs” include methamphetamine, mescaline, and MMDA.

A violation of this code section can result in a Class 2 felony punishable by prison time of up to 15 years.

The language of ARS 13-3407 sets forth a number of specific ways that people can commit a crime with a dangerous drug. Some of these include when people knowingly:

1. possess or use a dangerous drug,
2. possess equipment or chemicals for the purpose of making a dangerous drug, and/or
3. administer a dangerous drug to another.

Examples

• carrying 20 pounds of meth in a duffel bag.
• carrying the equipment required to make mescaline in a car’s trunk.
• using MMDA while at a concert.

Defenses

Criminal defense lawyers draw upon several legal strategies to help defendants contest drug charges under this statute. Some of these include showing that:

• an accused did not act knowingly,
• a defendant did not have possession of a dangerous drug, and/or
• law enforcement conducted an unlawful search and seizure.

Penalties

While a violation of ARS 13-3407 typically results in a felony offense (as opposed to a misdemeanor), the specific penalty depends on the facts of a particular case. Possible outcomes include a:

• Class 2 felony charge, punishable by a prison sentence of up to 12 and a half years,
• Class 3 felony charge, punishable by up to nine years in prison, and
• Class 4 felony charge, punishable by up to four years in prison.

These prison terms will increase if the dangerous drug in the case was methamphetamine.

In this article, our criminal defense attorneys will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.

1. How does Arizona law define “dangerous drug offenses”?

ARS 13-3407 sets forth seven specific acts, in relation to a dangerous drug, that can lead to criminal charges. These are the:

1. possession of a dangerous drug or the use of a dangerous drug,ⁱ
2. possession of dangerous drugs for sale, or the possession of a dangerous drug for sale,ⁱⁱ
3. possession of the equipment or chemicals that are used for the manufacturing of a dangerous drug,
4. manufacturing of a dangerous drug,
5. administration of a dangerous drug to another person,
6. receiving of the administration of a dangerous drug by fraud, deceit, or misrepresentation, and
7. transportation of dangerous drugs for sale, or the transportation of a dangerous drug for sale, or the importing of such a drug into Arizona.ⁱⁱⁱ

Note that a person is only guilty under this statute if he/she performs one of the above acts and does so “knowingly.’ “Knowingly” means that an accused must have known of the presence of a prohibited drug.

For purposes of this drug crime, “dangerous drugs” are controlled substances that have “a potential for abuse associated with a stimulant effect on the central nervous system.”^iv

Under Arizona law, there are over 200 types of drugs that are labeled “dangerous.”^v Some examples include:

• methamphetamine,
• mescaline,
• amphetamines,
• anabolic steroids,
• MMDA,
• MDA,
• Phencyclidine (PCP),
• Lysergic acid diethylamide (LSD),
• alprazolam or Xanax,
• diazepam or valium.^vi

Note that “possession” is defined under the law as either:

• physically possessing something, or
• having dominion or control over it.^vii

To “sell” or “sale” is defined as an exchange of anything of value or benefit, presently or in the future.^viii

2. Are there defenses to ARS 13-3407?

Defendants have the right to challenge drug charges under this safety code with a legal defense. Three common defenses include accused people showing that:

1. they did not act knowingly.
2. they did not have possession of a drug.
3. the police conducted an unlawful search and seizure.

2.1 No Knowledge

Recall that people are only guilty of criminal charges under this law if they act knowingly. This means defendants can always raise the defense that they did not know of the presence of a dangerous drug.

Consider, for example, a person who borrows a friend’s car and does not realize that the friend has a large supply of PCP stored in the car’s trunk. Here, if police later pull the car over and find the drugs in a search, the person can challenge any later charge with the assertion that he did not know of the presence of the drugs.

2.2 No possession

Most charges under this criminal law relate to drug possession, and “possession” carries a specific legal definition under the state’s criminal laws. A defense is for an accused to show that he/she never possessed a prohibited drug.

2.3 Unlawful search and seizure

If law enforcement obtains evidence from an unreasonable or unlawful search and seizure, that evidence can be excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed.

3. What are the penalties?

Arizona treats violations of this law as serious charges/serious crimes.

While most violations are felony crimes, specific charges and penalties will often depend on whether:

1. the defendant has any prior felony convictions, and
2. the drug involved in the case was meth.

For first-time offenders, or a first offense that does not involve methamphetamine, then the possible outcomes are a:

• Class 2 felony, punishable by to 12 and a half years in prison (as opposed to jail time),
• Class 3 felony, punishable by up to nine years in prison, and
• Class 4 felony, punishable by up to four years in prison.

Second-time felony convictions under ARS 13-3407 can lead to prison sentences of almost double those above.

In addition, if a person violates this law and does so with meth, the party could face a prison term of up to 15 years.

Note that in some instances, an accused could face enhanced penalties if the quantity of dangerous drug exceeded a certain amount. This “certain amount” is known as a “statutory threshold.”

4. What is drug court in Arizona?

Drug court is an alternative sentencing scheme for people facing drug charges in Arizona.

Defendants who have been accused of committing a non-violent drug offense and who do not have a serious criminal background are eligible.

There are several types of drug courts in Arizona:

• family drug court,
• juvenile drug court,
• drug courts that provide adult probation, and
• drug courts for driving under the influence (DUI).

If a person pursues entry into a drug court, he/she must plead guilty to any charges filed and the person then gets assigned to probation with the applicable drug court. The latter opens up several opportunities for drug treatment programs.

The terms of probation are determined by the county attorney, the defense attorney, and the drug court judge. This drug court team will come up with treatment services that are meant to prevent recidivism, especially for those with a high risk of a subsequent drug-related crime.

Upon successfully completing the terms of his or her probation, the defendant’s charges can be dismissed, or their sentence can be reduced or set aside.^ix If the defendant fails to complete probation or violates a program term, he or she will be found guilty and their case will proceed to sentencing.^x

5. Does a conviction have any immigration consequences?

A conviction under this law does carry serious immigration consequences.

As a general rule, any controlled substance offense in Arizona, including an offense involving a dangerous drug, renders an alien deportable and inadmissible.^xi

6. Are there related offenses?

There are three crimes related to a dangerous drug crime. These are:

1. endangerment – ARS 13-1201,
2. manslaughter – ARS 13-1103, and
3. aggravated assault – ARS-13-1204.

6.1 Endangerment – ARS 13-1201

Per ARS 13-1201, endangerment is a crime if a person recklessly puts someone at risk of imminent death or physical injury.

If a defendant is guilty of administering a dangerous drug to a person, then it is possible that he/she could be charged with both:

1. ARS 13-3407, administering a dangerous drug, and
2. ARS 13-1201, endangerment.

6.2 Manslaughter – ARS 13-1103

Per Arizona’s manslaughter statute, ARS 13-1103, people commit the offense of manslaughter when they cause someone else’s death under certain circumstances (for instance, by acting recklessly).

Note that as with ARS 13-3407, many violations under this statute require that a defendant act with a certain degree of knowledge (for instance, acting while knowing that such actions could result in the death of another).

Further, there are times when a defendant can be charged with both a dangerous drug charge and a manslaughter charge. Consider, for example, the situation where a person administers a dangerous drug to someone, and the other person dies of an overdose. Here, both charges are appropriate.

6.3 Aggravated assault – ARS-13-1204

Per ARS 13-1204, aggravated assault is the crime people commit when they assault another person and do so by means of certain aggravating factors (such as assault with a deadly weapon or assaulting someone and causing serious physical injury).

As with a dangerous drug crime, an aggravated assault offense is a felony in Arizona.

Sometimes an aggravated assault charge may be coupled with a dangerous drug charge when a certain transaction or dangerous drug act goes bad.

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