In a historic vote this past Election Day, Arizona became the 13th state to legalize recreational marijuana use, passing Proposition 207 with 60% of the vote. Many of our clients have asked us what Prop 207 means for them, either for past or ongoing cases or for future use of marijuana. Although the legal framework is a little bit more complicated than the simple headline, hopefully, this blog will clarify what Prop 207 means for the average Arizonan.
Formally titled the Smart and Safe Arizona Act, Prop 207 legalizes the responsible use of marijuana for adults over twenty-one years old and imposes restrictions and regulations on its use. As a ballot measure, Prop 207 was created and passed by Arizona citizens, rather than the legislature. It will go into effect as soon as the election results are certified. That could occur as soon as November 30, 2020, but the process may take longer. Once the results are certified, the governor will officially announce that the measure has become law.
Until that time, recreational marijuana remains technically illegal, so we advise that you wait patiently for Prop 207 to become officially Arizona law before possessing or consuming marijuana.
Although we believe most agencies will not be filing new charges for acts that are about to become legal, it is best not to rely on prosecutors' discretion. Keep your actions legal and wait for the ballots to be certified. If you do obtain new charges, speak with your lawyer about getting those charges dropped once the law takes effect, if not before.
Possessing marijuana and marijuana paraphernalia will become legal, with restrictions
Under Prop 207, the new Arizona Revised Statutes § 36-2852 will legalize possessing or consuming marijuana. This new law comes with significant restrictions, so make sure that you comply with the whole law.
Only people aged 21 and over may purchase, possess, or consume marijuana, and providing marijuana to people under 21 will still be illegal. Each individual may only possess one ounce of marijuana at a time, and only up to five grams of that may be in the form of “concentrate,” referring to processed marijuana including wax or oil. (One ounce is about 28.35 grams). Note that this limit is less than the two and a half ounces allowed to medical marijuana patients, so be careful about letting your medical marijuana card expire.
Marijuana paraphernalia will be legal to possess. A.R.S. § 13-3415 defines drug paraphernalia broadly, so almost anything used in association with marijuana was previously criminal to possess. This included equipment for growing, pipes for smoking, and even bags for storing marijuana. Without legalizing marijuana paraphernalia, it would have been impossible to possess or use legal marijuana without committing a criminal offense, so Prop 207 specifically legalized paraphernalia as well. Of course, paraphernalia for other drugs remains illegal.
Cultivation at home will be allowed. Each adult over 21 is allowed to possess up to six plants, and there can be no more than 12 in one residence. Again, this is more strict than the regulations for medical marijuana cardholders. Marijuana plants must be kept secure and out of sight, not visible to the public or accessible by minors. They must be grown somewhere that can be closed and is equipped with a lock or other security device.
Growers can give plants to other adults but cannot sell them—the sales of marijuana will be heavily regulated. Note that mechanical processing of marijuana is allowed but chemical extraction or synthesis is not.
Violations of the restrictions on marijuana possession and cultivation will still result in penalties, which will be laid out in A.R.S. 36-2853 and include civil fines, petty offenses, and misdemeanors.
Where to consume marijuana legally
Marijuana may not be smoked in public or open spaces, and under the Prop 207 definition of “smoke,” this includes vape pens. Smoking in public will be considered a petty offense, a criminal charge that is punishable by fines but not jail.
“Public place” is defined broadly and with the same terms as the Smoke-Free Arizona Act, the law banning tobacco smoking in public (A.R.S. § 36-601.01), so almost any place of business, as well as public parks or walkways, are off-limits. Although the definition of “public place” is specifically the same as that act, Prop 207 does not specifically state that the exceptions found later in the Smoke-Free Arizona Act such as for smoking hotel rooms would apply. Anywhere that tobacco smoking is banned, marijuana smoking is also banned, but tobacco is allowed in places where marijuana is not. Again, be careful, respectful, and compliant with the statute when smoking, or else you may still face marijuana charges.
Edibles, however, are legal in public. Being under the influence of marijuana publicly is not a crime, but as with alcohol, any criminal activity committed while your judgment is impaired is still a crime. Voluntary intoxication is not a defense, so again, consume responsibly.
Consumption in any form while in a running car or boat is illegal, even in a passenger seat, so smoking in your car can still be a criminal offense. Marijuana DUI remains illegal and strictly prosecuted, so cars are off-limits, even for passengers, and even if the car is not moving.
Be aware that even though recreational marijuana will be legal in Arizona, Prop 207 still allows employers to require a drug-free workplace. Even though marijuana possession will not be a criminal offense, it could still be grounds to be fired from your job.
Prop 207 eliminates reasonable suspicion and probable cause from the odor of marijuana
Police need reasonable suspicion of a crime in order to detain a person for an investigation and probable cause in order to search a person or vehicle. In the past, the alleged odor of marijuana alone has been used to meet these standards, resulting in countless vehicle searches and prolonged detentions. Fighting allegations of the odor of marijuana has been difficult—how can a defendant dispute a claim that his car had a smell? In recent years in Arizona and elsewhere, the legal standard has shifted and become more complicated, drawing distinctions between the odors of raw and burnt marijuana and carving out allowances for medical marijuana cards.
Prop 207 clarifies the issue and changes the legal standard; once it becomes law, the new statutes will supersede previous court interpretations. Not only does it state that marijuana possession in accordance with the new law cannot “constitute the basis for detention, search or arrest,” it later specifically states that “the odor of marijuana or burnt marijuana does not by itself constitute reasonable articulable suspicion.”
There are exceptions. The odor of marijuana in a DUI investigation would still be just as suspicious as ever. There may be cases where law enforcement attempts to detain a person ostensibly for a DUI investigation so that they can prolong an encounter to try to find other justifications to search a vehicle. Speak with your attorney to determine if you can challenge whether the DUI investigation exception was fairly used.
Additionally, although the odor of marijuana alone does not constitute reasonable suspicion, Prop 207 does not state that the odor of marijuana cannot be a relevant factor for law enforcement to consider when determining whether reasonable suspicion exists. Officers look at the “totality of the circumstances,” meaning that they draw conclusions from numerous observations, which on their own may be totally innocent. We expect to have many arguments in court about how and whether the odor of marijuana contributed to reasonable suspicion and probable cause.
Driving under the influence of marijuana is still illegal, but Prop 207 changes marijuana DUI law
Driving while impaired to the slightest degree by marijuana remains illegal. Driving while high is dangerous behavior that is not legalized by Prop 207, and neither the proponents of the ballot measure nor our own staff condones driving while under the influence of marijuana.
However, Prop 207 makes a critical, common-sense change to marijuana DUI law.
Previously, driving or being in actual physical control of a motor vehicle with any measurable quantity of THC (tetrahydrocannabinol, the active metabolite of marijuana) present in your blood. THC differs from alcohol in numerous ways. With alcohol, there is a scientific consensus backed by numerous studies that all people are impaired to operate a motor vehicle at a blood alcohol concentration (BAC) of 0.08 or higher.
Although alcohol affects different people differently, including different drinkers have their BAC levels rise and fall at different rates. However, the variation from person to person is far greater for THC.
There is no scientific consensus about a level of THC that signifies impairment, so a level that would be significantly impairing for one person might have no effect on another. An individual who uses THC daily, as many medical marijuana patients do, might always have a measurable quantity of THC in their blood, even long after any impairment has worn off. By criminalizing driving with any amount of THC, the previous statute essentially meant that regular marijuana users could never drive without committing DUI.
Medical marijuana cardholders previously were at least allowed to present an affirmative defense that the THC in the blood was “in insufficient concentration to cause impairment.” A.R.S. § 36-2802(D). This language from the Arizona Medical Marijuana Act has been interpreted by the courts as creating an affirmative defense to a DUI charge for driving with any drug or metabolite; that means that medical marijuana cardholders could still be prosecuted for DUI, and instead of the State having to prove impairment beyond a reasonable doubt, the defendant would have to prove non-impairment.
Prop 207 changes this standard. The new language says that “a person with metabolites or components of marijuana in the person's body is guilty of violating section 28-1381, subsection a, paragraph 3 [DUI with any drug in the body] only if the person is also impaired to the slightest degree.” We expect that there will be new cases and new court decisions interpreting this language, but we believe that the law now clearly requires the state to prove impairment by marijuana and not merely the presence of marijuana.
Interestingly, A.R.S. § 28-1381 had two different relevant subsections under which a person could be convicted for a marijuana DUI: 1381(a)(1), which required proof of impairment, and 1381(a)(3), which required only the presence of a drug. Now that marijuana DUI charges under 1381(a)(3) also require proof of impairment, the two subsections are effectively the same, with only slightly different language. It will be interesting to see how courts interpret the new language. For now, it is especially important to have an effective attorney to argue the new language to judge and jury.
Whatever the courts decide, the new standard is clearly more favorable, especially for those without medical marijuana cards. However, the state will continue to be allowed to present evidence alleging impairment in order to pursue DUI convictions.
Prop 207's adjustments to marijuana DUIs are welcome and necessary, providing room for scientifically correct arguments about whether a person is under the influence merely because of the presence of THC. What the new law does not and should not do is legalize driving while under the influence of marijuana.
Prop 207 requires the dismissal of qualifying ongoing cases
If you currently have a criminal case for conduct that would now be legal under Prop 207, you may be eligible to have that case immediately dismissed. The new A.R.S. § 36-2862(G) will state that “the court shall dismiss with prejudice any pending complaint… arising out of conduct occurring before the effective date of this chapter.” This will apply to charges for possession of 2.5 ounces or less of marijuana (with 12.5 grams or less of concentrate), possessing up to six marijuana plants, and possessing marijuana paraphernalia. Once Prop 207 becomes official, it will no longer be up to prosecutors or judges to decide whether to proceed with such cases; the law will require these cases to be dismissed.
This will not prevent the state from pursuing other counts unrelated to marijuana arising out of the same incident or from pursuing cases that do not meet the specifications in § 36-2862(A).
Soon, Prop 207 will start allowing the expungement of qualifying prior convictions
Additionally, starting on July 12, 2021, prior convictions for those offenses will become eligible for expungement. Arrest records and charges will also be expunged and will not be able to be used against a person for any reason. Once an expungement is requested, the burden will be on the State to prove why a case is not eligible for expungement, and without that proof, then the matter must be expunged. This is a far more expansive relief than has ever been available in Arizona before.
The Arizona Supreme Court is authorized to adopt new rules and procedures for expungement under Prop 207, so the exact mechanisms of how to have your record expunged may change before July 12, 2021. Our attorneys are excited and prepared to help people clear their marijuana records as soon as possible.
If you have a recent conviction and are still on probation, consider filing a petition for early termination of probation. Judges may be willing to grant such motions liberally if a conviction will be vacated and expunged shortly.
Prop 207 may change the way that prosecutors pursue other marijuana charges
We do not yet know the full extent of how Prop 207 will benefit defendants charged with marijuana or drug-related offenses. Prosecuting agencies may adopt new policies lowering or dropping more serious marijuana-related felonies, or they may resist Prop 207 and challenge its tenets in court. It will be important in your specific case for your attorney to assess whether Prop 207's passage can secure you a better outcome.