ARS § 13-3408 is the Arizona statute that prohibits certain acts with regard to narcotic drugs. You violate this law if you possess, use, sell, make, and/or engage in the transportation of narcotics. Some examples of narcotic drugs include cocaine, codeine, and heroin. A violation of this code section can result in a Class 2 felony charge punishable by a prison sentence of over 12 years.

The language of ARS 13-3408 states that:

A person shall not knowingly:

1. Possess or use a narcotic drug.
2. Possess a narcotic drug for sale.
3. Possess equipment or chemicals, or both, for the purpose of manufacturing a narcotic drug.
4. Manufacture a narcotic drug.
5. Administer a narcotic drug to another person.
6. Obtain or procure the administration of a narcotic drug by fraud, deceit, misrepresentation, or subterfuge.
7. Transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.

Examples

• carrying a backpack with a bag of cocaine inside.
• injecting someone with heroin.
• a person driving into the State of Arizona with oxycodone in the trunk of the car.

Defenses

People facing a criminal charge regarding a narcotic drug can challenge it with a legal defense. A few common defenses include defendants showing that they:

• did not act knowingly,
• did not “possess” a drug,
• were the victim of an unlawful search and seizure, and/or
• were entrapped.

Penalties

Depending on the facts of a case, drug offenses under this statute are either a:

• Class 2 felony,
• Class 3 felony, or
• Class four felony.

A Class 2 felony is the most severe of the three charges and is punishable by imprisonment of up to twelve years and six months.

A Class four felony is the least severe charge and is punishable by a prison sentence of up to three years and nine months.

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 “the possession, use, or sale of narcotic drugs”?

People are guilty of a drug crime under this code section if they knowingly:

1. possess or use a narcotic drug,
2. possess a narcotic drug for sale,ⁱ
3. possess equipment or chemicals for the purpose of making a narcotic drug,
4. manufacture a narcotic drug,
5. administer a narcotic drug to another person,
6. obtain the administration of a narcotic drug by fraud or deceit, and/or
7. transport for sale, import into the state, sell, transfer, or offer for sale any narcotic drug.ⁱⁱ

ARS 13-3401(20) sets forth over 100 controlled substances that are classified as “narcotic drugs.” Some of the most commonly known narcotics include:

• cocaine,
• codeine,
• oxycodone,
• heroin,
• hydrocodone,
• morphine,
• fentanyl, and
• ⁱⁱⁱ

Note that Arizona classifies LSD and methamphetamine as “dangerous drugs” as opposed to narcotic drugs.

Under Arizona criminal law, the term “possession” means to:

• physically possess or hold something, or
• have dominion or control over the object (for example, a driver is said to have control over a narcotic drug when it is located in the car’s trunk).^iv

2. Are there defenses to ARS 13-3408 charges?

Criminal defense lawyers draw upon several legal strategies to challenge drug charges/criminal cases brought under this statute. Three common ones include lawyers showing that:

• the accused did not act knowingly.
• the accused was not in possession of narcotic drugs.
• law enforcement conducted an unlawful search and seizure.
• the defendant was entrapped.

2.1 No knowledge

People are only guilty under this statute if they act knowingly, or with an awareness of their criminal actions. This means it is always a defense for a person to say that he/she did not act with knowledge.^v

Consider, for example, criminal cases involving the possession of narcotics. If someone planted the drugs, a defendant could challenge a charge by saying he/she did not know they had narcotics.

2.2 No possession

Many charges under this statute involve possession charges. Recall that “possession” has a precise legal definition under Arizona law. Defendants, then, can contest possession charges by saying that they:

• were not physically carrying a drug, or
• did not have control over the drug.

2.3 Unlawful Search and Seizure

Police can only conduct a search or seizure with a valid search warrant. If no warrant, they must have a valid excuse for not having one.

Constitutional violations occur when police conduct a search and/or seizure without a warrant or a valid exception. In these cases, a judge can exclude any evidence in a case obtained from the constitutional violation. This can result in a reduction in charges or their outright dismissal.

2.4 Entrapment

People often raise this defense if they were arrested for a narcotic drug offense during an undercover sting. The defense is especially helpful when an arrest relates to the sale of a narcotic.

The defense asserts that a person only committed a crime because law enforcement lured them into doing so. Entrapment, therefore, applies to overbearing official conduct on the part of police officers, like pressure, harassment, fraud, flattery, or threats. Entrapment is an acceptable legal defense provided that the accused shows he/she only committed the crime because of the entrapment.

3. What are the penalties?

Drug convictions under ARS 13-3408 are felony offenses in Arizona (as opposed to misdemeanor crimes).

Depending on the facts of a case, a violation can get classified as a:

• Class 2 felony, punishable by up to 12 years and six months in state prison,
• Class 3 felony, punishable by up to eight years and nine months in state prison, or
• Class 4 felony, punishable by up to three years and nine months in state prison.^vi

Note that the above prison terms are for a first offense. A second or subsequent violation of this law will result in more severe penalties.

If a person commits a minor violation of this law, a judge may award the party with probation. If granted, the defendant would have to complete certain probation conditions (for example, perform a certain number of hours of community service).

4. Are there related offenses?

There are three crimes related to narcotic drug offenses. These are:

1. prescription-only drugs – ARS 13-3406,
2. drug paraphernalia – ARS 13-3415, and/or
3. DUI – ARS 28-1381A1.

4.1 Prescription-only drugs – ARS 13-3406

Under ARS 13-3406, people commit a crime if they possess or obtain the administration of a prescription-only drug without a lawful prescription.

Arizona law defines a prescription-only drug as either:

• a drug that must be used under medical supervision,
• a potentially harmful drug without proper labeling, or
• a drug required by federal law to read “Caution: Federal law prohibits dispensing without prescription” or “Rx only”.^vii

Violations of this statute are considered less severe than violations of ARS 13-3408. In some cases, a prescription drug case can result in a misdemeanor charge.

4.2 Drug paraphernalia – ARS 13-3415

Per ARS 13-3415, drug paraphernalia is the crime where people, in certain situations, possess, manufacture, deliver, or advertise drug paraphernalia.

Examples of “drug paraphernalia” include:

• baggies,
• syringes,
• scales,
• bongs, and
• roach clips.

Note that if a person is found with both drug paraphernalia and a narcotic drug, a prosecutor can charge the party with both:

• possession of drug paraphernalia under ARS 13-3415, and
• possession of a narcotic drug under ARS 13-3408.

4.3 DUI – ARS 28-1381A1

Per ARS 28-1381A1, DUI is the offense where people drive a vehicle while under the influence of:

• an intoxicating liquor,
• any drug,
• a vapor releasing substance containing a toxic substance, or
• any combination of liquor, drugs, or vapor.

A person can violate this statute while driving under the influence of a narcotic drug. If so, the driver can also be charged with unlawful use of the drug per ARS 13-3408.

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