A.R.S. 13-3406(A)(1) – Possession of Prescription Only Drug in Arizona

Under A.R.S. 13-3406(A)(1), it’s unlawful to knowingly possess a prescription-only drug without a valid prescription from a licensed medical practitioner.

Unfortunately, this law can be strict and unforgiving. Even if it’s a friend or family member’s prescription drug, you can still be charged with unlawful possession. Whether the state can prove your guilt depends on the specific facts and circumstances of your case.

What must the prosecutor prove?

The prosecutor must prove, beyond a reasonable doubt, that you were in knowing possession of a prescription-only drug. It also must be shown that you knew the drug was prescribed.

Possession of Prescription Only Drug in Arizona

What is “knowing” possession under Arizona law?

Under A.R.S. 13-105, knowing means that a person is aware of the conduct and circumstances. As such, you must know where the prescription drug is located and that it’s a prescription-only drug.

Possession can be actual or constructive. Actual possession is where you’re found with drugs on your person, clothing, bag, or purse. Constructive possession is where they’re in a place that you had control over; this might be a car, house, or bedroom. Constructive possession is harder to prove because there are several plausible explanations for not knowing about drugs.

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What’s a Prescription-Only Drug in Arizona?

A prescription drug can only be obtained using a valid medical prescription. Arizona law provides a more exact definition in A.R.S. § 13-3401(28). It defines a prescription-only drug as any of the following: 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”.

What are the penalties for Possession of Prescription Only Drugs in Arizona?

Pursuant to A.R.S. 13-3406(B)(3), unlawful possession of a prescription-only drug is a class 1 misdemeanor. As a class one misdemeanor, it carries up to 6 months in jail, $4575 in fines and surcharges, and 3 years of probation. Counseling treatment, classes, and community service are often ordered. Under A.R.S. 13-3406(C), there’s a mandatory minimum fine for 13-3406(A)(1), which after surcharges, comes to $1,830.

What is Proposition 200 as it applies to Prescription-Only Drug Possession?

Arizona’s proposition 200 prohibits a judge from sentencing jail to first or second time drug offenders. To get jail, you must have a prior violent conviction or two previous drug convictions. If Proposition 200 applies, the judge can only order probation, fines, community service, and drug treatment.

Drug Diversion Programs for Prescription-Only Drug Possession

For most Defendants, diversion and deferred prosecution programs are favored over a plea agreement. That’s because they avoid a criminal conviction. In addition, these programs can often be completed in a few months. Upon successful completion of a diversionary program, drug charges are dismissed and there’s no criminal conviction.

Most of Arizona’s city and justice courts have diversionary programs for those with minimal criminal history. Diversion provides defendants the opportunity to avoid a criminal conviction, so long as they successfully complete the court-sanctioned program. The prosecutor has the sole discretion in allowing you to participate in diversion. Your criminal attorney in Mesa can advocate for diversion admission.

Common Defenses to Possession of Prescription-Only Drugs

Constitutional Violations: The constitution provides protections against unlawful government conduct and guarantees due process. A constitutional violation can result in the suppression of evidence and the dismissal of charges. Common constitutional issues include lack or probable cause or reasonable suspicion; illegal warrants; entrapment; Miranda violations, denial of the right to counsel; and coerced confessions. Due to the nature of drug cases, constitutional violations are common.
Fruit of the Poisonous Tree: Evidence obtained from unconstitutional police conduct must be suppressed, including any testimony, physical evidence, and admissions.
The Prescription Drugs Belong to Another Person: When others are present in a drug investigation, or others have access to where drugs are found, it creates reasonable doubts in the State’s case.
Insufficient Evidence of Knowing Possession: The prosecutor must prove that you knew about the prescription drug. Unless the State can prove you were aware of the of the drug and that you exercised control over it, they cannot meet their burden. Thus, if someone were to leave their drugs in your car, home, or belongings, without your knowledge, you’re not guilty. There’s many explanations you might not know about drugs in your car, home, or belongings.
The Substance Recovered is not a Prescription-Only Drug: The recovered pill must be tested by a criminalist at a crime lab. Thereafter, the scientist must testify, with a reasonable degree of scientific certainty, that the substance is a prescription-only drug.
Mere Presence among a Prescription-Only Drug: Presence alone, where drugs are found, isn’t sufficient to prove possession. State v. Valenzuela (Ariz. 1979). Possession also cannot be solely based on being with someone else who has drugs; there must be additional evidence of knowledge and an exercise of dominion and control over the drugs. State v. Hunt (Ariz. 1962). Being in a room with drugs is not enough to prove possession. State v. Curtis (Ariz. App. 1977). Being in a car with drugs, without more evidence, isn’t enough to prove possession. State v. Miramon (Ariz. App. 1976).
No Chain of Custody: The State must prove, that the drug tested by the lab, is the same one recovered at the crime scene. In other words, everyone who handled the drug must accurately testify to proper handling of evidence. This is needed to establish that there was no mishandling or tampering. If there’s a break in the chain of custody, the charge can be dismissed.
Valid Prescription: If you had a valid prescription, the charges can be dismissed before trial. You cannot get the prescription after you’re charged. The prescription must be current and valid on the date of the alleged possession.

Free Consultations on Prescription Drug Charges

Case evaluations are always free, friendly, and confidential. Mr. Tobin doesn’t do a sales pitch; he only provides you with advice, guidance, and options. He’s glad to give you as much information as he can to help you understand your rights and options.

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