In the electronic world an “alligator clip” is for making a temporary connection for testing a circuit, but it’s paraphernalia in Arizona drug cases, often as a lesser included offense.
Many tangible things related to the manufacture and use of drugs are defined in Arizona Revised Statute §13-3415(F)(2)
as paraphernalia so a common kitchen spoon and even the kitchen sink can become paraphernalia tools for a Class 6 felony.
This law makes bowls and containers along with plastic kitchen bags, scales, pipes, balloons, bongs, mailing envelopes, shovels and testing devices and equipment used to determine the strength and purity of a drug among other things listed in the law.
The legal definition under this statute broadly specifies drug paraphernalia as:
… “all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a drug…”
Consequences of a Class 6 felony conviction
The maximum sentence is two years in state prison for this entry into the felony classes, harsh fines in at least four figures, a term of probation that comes with a list of restrictions and attending regular meetings with a parole officer.
A felony conviction places many limits on your way of life and will remain on your record all of your life. You’ll no longer have the right to own or even possess a firearm and you’ll lose the right to vote in elections. It can cost you your job and make getting a job, and even a place to live, a lot harder. College administrators can refuse your application or if you’re already taking classes you can be expelled.
If you hold a professional license or certification as do teachers, financial advisors, professional truckers and many others, the bestowing organization can suspend or revoke it, ending a career.
Avoiding a felony paraphernalia conviction
In some cases it may be possible to avoid a felony paraphernalia conviction by one of two methods.
First, in 1989 Maricopa County, and seven other Arizona counties, began a Treatment Assessment Screening Center (TASC)
diversion program for those who would benefit by completing a drug treatment program. Defendants who qualify for the program and successfully complete it can have the felony charge dismissed with prejudice, meaning the state can’t charge you again for this offense.
Failing or refusing to enter a drug treatment program, the prosecution may continue with prosecution against you.
With this program, the state avoids the financial expense of imprisoning first-time drug defendants. Almost 4,000 drug cases use this program each year, with 77.2 percent of them marijuana offenses.
Today, TASC is no longer used. The diversion program now falls under the control of SAGE. It involves counseling and drug testing.
To ensure that you qualify for diversion, it’s best to have an experienced criminal defense attorney who knows this program help you navigate the system.
Second is Arizona Revised Statute 13-901.01
, authorized by the 1996 Proposition 200, passed by more than 65 percent of the electorate. The program is known as “Prop 200.”
Generally speaking, Prop 200 is like three strikes and you are out. What this means is that for a first-time non-methamphetamine personal possession drug offense a convicted person must be sentenced to probation. By law, you cannot go to jail. One qualification an accused must have to benefit from Prop 200 is a non-violent criminal history.
A second offense Prop 200 conviction is still mandatory probation, but could land you in jail for up to one year.
Finally, a third strike can end up with the maximum punishment as allowed by law – this includes prison.
Possession of paraphernalia defenses
Arizona law allows several defenses to this charge and the facts of the case go a long way in building a defense. At the outset most drug paraphernalia cases involve the search of a person, vehicle, or residence.
Searches are legal in three ways. The strongest is by a search warrant issued by a judge. Next is that an officer had probable cause that an offense is being committed or has been committed. The weakest is that the officer had a reasonable suspicion to perform a search.
The Supreme Court in 1968 held that a reasonable suspicion isn’t an officer’s “hunch” that something is amiss, but instead must be “to the specific reasonable inferences which (the officer) is entitled to draw from the facts in light of his experience.”
However, if the drug paraphernalia was in plain sight, a search warrant isn’t necessary. An arrest happens and the paraphernalia is confiscated as evidence.
Officers may have violated your Constitutional right to avoid self-incrimination under the Fifth Amendment or the Sixth Amendment, requiring an attorney to be present during questioning to protect your Constitutional rights. These are known as Miranda Rights stemming from an Arizona case and officers need to recite them to you.
It may be argued that you didn’t know the item in question was drug paraphernalia in that you had no idea it was being used that way. You had no intent to commit a crime. It may be that your fingerprints weren’t on the item.
In rare instances entrapment by authorities happens and that’s a defense. Entrapment occurs when law enforcement uses threats or deceptions that causes you to possess the paraphernalia which you wouldn’t have done if left on your own.
The defense also will work to develop mitigating evidence to reduce the charge to a Class 1 misdemeanor.
Free, confidential legal consultation for your drug paraphernalia charge
If you or a family member is facing a drug charge, don’t speculate about your situation. Take advantage of my free legal assessment of the case against you and the possible defense theories during my free, no obligation consultation. Call 480-729-1683 to schedule your appointment. The line is always open and I’ll promptly respond unless I’m in court. Or use the contact form on my website.
I can also review any documents you may have by text and email and we can meet online using FaceTime. The courts are functioning despite the Corona virus but are adhering to the guidelines the Centers for Disease Control (CDC) issued.
I defend drug paraphernalia charges in Arizona’s justice, municipal, county, state, and federal courts serving Maricopa and adjacent counties.
Contact Phoenix, AZ Criminal Defense Attorney Aaron Black
, or call (480) 729-1683 at any time, day or night, weekends and holidays, for an appointment.