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Arizona Recreational Marijuana Laws for 2021

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Arizona Marijuana Laws for Recreational Use in 2021

When Arizona voters approved recreational marijuana by passing Proposition 207 in Nov. 2020, they created a sea-change in the state. With the legalization of recreational marijuana, some essential changes to the state’s criminal laws for marijuana possession occurred.

However, even with marijuana legalization, it is still possible for people to be charged with marijuana offenses when they do not comply with the law. The attorneys at Colburn Hintze Maletta can help you to understand what is allowed and what to avoid under the new Arizona marijuana laws for 2021.

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Arizona’s Marijuana Laws for 2021

How Proposition 207 Affected Arizona Marijuana Laws in 2021

The passing of Proposition 207 made several significant changes to the Arizona marijuana laws impacting possession. Before this law was passed, possessing under two pounds of marijuana in Arizona was a class 6 felony under ARS 13-3405.

People who are 21 or older can now legally possess up to one ounce of marijuana, five grams of concentrated marijuana, or six plants under ARS 36-2852.

The following amount restrictions apply:

  • If you possess between one and 2.5 ounces of marijuana as a first offense, it is a civil offense under ARS 36-2853 that is punishable by a $100 fine.
  • A second offense is a petty offense for which you could be ordered to attend eight hours of drug education.
  • Finally, a third offense is a class 1 misdemeanor.
  • The rules are more relaxed for medical marijuana.

Under Proposition 207’s marijuana legalization rules, you still cannot smoke marijuana in public places. If you legally grow marijuana, you must keep them in an enclosed, locked area out of the public’s view. If there is more than one adult over age 21 in a home, they can grow a maximum of 12 plants inside.

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Dismissal of Pending Marijuana Charges Following Marijuana Legalization

As of early 2021, the Maricopa County Attorney’s Office has been dismissing all pending cases involving marijuana charges that fall under Proposition 207. Prosecutors have been instructed to dismiss pending cases covered by the new law.

If you are currently facing a criminal charge for possessing marijuana under the amounts listed in ARS 36-2852, you might be eligible to have your possession of marijuana dismissed. Under ARS 36-2862(G), if you file a motion with the court requesting the dismissal of marijuana possession charges for conduct that occurred before Proposition 207 was passed that would be legal under current law, the court must dismiss your case with prejudice. This means that the prosecutor cannot refile the charges.

However, the prosecutor can still pursue other charges from the same incident that do not relate to marijuana.

Legalizing Possession of Marijuana Paraphernalia

Under these new Arizona marijuana laws, Proposition 207 also legalized the possession of marijuana paraphernalia. Drug paraphernalia is defined broadly in ARS 13-3415 to include nearly anything you might use for marijuana.

Previously, you could be charged with a crime for possessing marijuana paraphernalia, including growing equipment, pipes, baggies, bongs, and other similar tools, unless you had a card allowing the use of medical marijuana.

If marijuana paraphernalia had not been legalized, it would not be possible to use or possess legal marijuana without also committing a crime. While marijuana paraphernalia is now legal to possess, it is still a crime to possess paraphernalia to use other types of drugs.

You can give marijuana or plants to another adult, but you cannot sell marijuana as an individual. Licensed marijuana providers are the only allowed entities that can sell marijuana. If you are caught selling marijuana, you can be charged with a crime, such as possession of marijuana with the intent to sell, which can range from a Class 6 felony to a Class 2 felony depending on the weight of the marijuana.

Where can Marijuana Legally be Used?

As mentioned above, you cannot smoke marijuana in open spaces or in public, such as a bar, restaurant, or public park. This prohibition also includes using a vape pen. If you smoke marijuana in public, it will be a petty offense punishable by a fine. However, you will not face jail time.

Under ARS 36-601.01, which is the law that banned smoking tobacco in public, a public place includes nearly all business places, parks, and walkways. Proposition 207 uses the same definition of a public place. The new proposition does not include some of the exceptions found in the Smoke-Free Arizona Act, including the ability to smoke in smoking-allowed hotel rooms.

Marijuana smoking is banned anywhere that tobacco smoking is prohibited. However, tobacco smokers can smoke in more places than marijuana smokers are allowed to smoke.

While you cannot smoke marijuana in public, it is not a crime to be under the influence of marijuana in public. However, you cannot drive a vehicle while you are impaired by marijuana without risking a marijuana DUI charge. Consuming marijuana in any form while in a running boat or car is illegal. Marijuana DUI charges are strictly prosecuted, so you should never smoke or ingest marijuana while in actual physical control of your vehicle.

Finally, even though recreational marijuana is legal in Arizona, employers can still require drug-free workplaces. Most Arizona employees work at will. While you might not face criminal charges for possessing marijuana at work, your employer could still terminate employment for possessing marijuana or coming to work while under the influence.

 

Changes to Reasonable Suspicion and Probable Cause

Before an officer can detain you to investigate a crime, he or she must have a reasonable suspicion that you have committed a crime or another violation. Officers must also have probable cause before they can search you or your car.

Prior to Proposition 207 passing, officers could base stops and searches on the odor of marijuana. This resulted in prolonged detentions and many vehicle searches. At that time, it was hard to dispute allegations that an officer smelled marijuana. However, this standard has shifted and has become more complex, with distinctions drawn between burnt and raw marijuana and carve-outs for medical marijuana cards.

Proposition 207 changed the legal standards for reasonable suspicion and probable cause based solely on the odor of marijuana.

Under the new law, possessing marijuana in legal amounts cannot be used as the basis to support detentions, arrests, or searches.

The law also explicitly states that the odor of marijuana alone does not constitute reasonable suspicion.

However, there are some exceptions. If you are stopped for suspicion of DUI and have the odor of marijuana emanating from your car, that might be used by the officer to justify a search of your vehicle. The officer might also detain you at the scene while figuring out other reasons to justify a search of your car. You should immediately talk to a marijuana attorney at Colburn Hintze Maletta to determine whether the police used the DUI exception fairly when searching your vehicle.

While the odor of marijuana will not constitute reasonable suspicion by itself, it can still be a relevant factor when police officers determine whether they have reasonable suspicion of a crime. This is because officers are allowed to consider the totality of the circumstances, which means that they can rely on multiple observations which might individually be innocent but allow an officer to draw a conclusion that a further investigation is warranted.

Marijuana Set Aside / Expungement of Drug Charges

Under ARS 36-2862, expungementwill be available for certain criminal convictions for marijuana possession. Previously, the only remedy for a marijuana conviction was to apply for a “set aside.” However, you can now petition for expungement of your record starting on July 12, 2021, if you have convictions for the following offenses:

  • Possessing, transporting, or using 2.5 ounces or less of marijuana or 12.5 ounces or less of concentrate
  • Possessing or cultivating six or fewer marijuana plants in your home
  • Possessing, transporting, or using marijuana paraphernalia

If your record has been sealed and expunged, employers will no longer be able to see your past marijuana conviction. This is a significant milestone since thousands of people have been arrested each year in Arizona for marijuana possession offenses.

Having a marijuana conviction on your record can make it challenging to find a job or housing, so the ability to petition the court for expungement could provide you with a fresh start. If your marijuana expungement petition was denied for improper reasons, you can also appeal the court’s decision.

 

Other Impacts on the Criminal Justice System in Arizona

Arizona has long targeted drug offenses, including those involving marijuana. Before Proposition 207 was passed, even possessing a small amount of marijuana for personal use was a felony. Felony convictions have ongoing impacts on the lives of Arizonans whenever they have to undergo background checks for employment, housing, or credit.

People who had marijuana convictions were frequently turned down for benefits, housing assistance, and federal financial aid to attend college.

Legalizing recreational marijuana and allowing people to petition for expungement of minor marijuana offenses may provide many Arizonans with an opportunity to start fresh.

Get Help from a Possession of Marijuana Attorney

While Proposition 207 has brought many changes to the marijuana laws 2021, it is still critical to understand that you can still be charged with marijuana offenses if you possess more than the legal amount, traffic marijuana, or possess it with the intent to sell.

For these types of offenses, retaining an experienced marijuana attorney is critical. You should also consider retaining an attorney if you have prior marijuana offenses on your record to learn about expungement.

Contact Colburn Hintze Maletta today by calling (602) 825-2500 to schedule a confidential consultation.

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Before I hired Darin I went through a total of 3 different attorneys in two different states fighting a jurisdiction battle, when my daughter was taken to a different state. It was a very difficult decision to switch attorneys at one of the most difficult, time sensitive and important times in my case, but I’m very glad I did. Upon receiving my file from previous attorneys Darin came very familiar with my case quickly. Like other people have explained he took the time to lay everything out and explain how the process was going to proceed and what to expect and continued to do this as new issues arrived. He is also very quick at responding to emails and phone calls. My case was getting close to trial as told by my previous attorneys, I did not want to go to trial as I know this is very costly (most attorneys will convince you that you need to.) Darin knew my situation, fought for what was right and got the results I wanted while avoiding a costly trial. He is extremely knowledgeable in the Child Support Guidelines as well. Because of Darin I got my daughter back. I would highly recommend him and would hire again for any future issues. Thanks Darin!

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