Marijuana Possession & Paraphernalia
One of the most common crimes we see here, especially for students and young professionals, is marijuana possession coupled with a “ drug paraphernalia” charge. Although both are technically felonies in Arizona (A.R.S. § 13-3405(A)(1) &(B)(1) [class six felony if under “two pounds” (A.R.S. § 13-3415;], police often charge them jointly as misdemeanors. The University of Arizona routinely kicks students out of the dorm for these violations, and sometimes books students into the County jail. A variety of licensed or regulated professionals, and low-level workers can lose or be ineligible for many jobs.
Possession of Marijuana Drug Paraphernalia
We see a plethora of cases where the “baggy” or the “tin foil” is the only “paraphernalia” charged. That’s because literally anything used to “store” or “ingest” marijuana can qualify as “paraphernalia” in Arizona (“chillums” are specifically prohibited [See ARS § 13-3418(F)(2)(xi)] along with “bongs” “roach clips” “blenders” and “electric pipes”.) The police like to issue “paraphernalia” as an extra add-on charge to give the prosecutor leverage. And it’s sometimes the paraphernalia charge, not the marijuana that causes the problem down the line, as you will see below.
Consequence of Marijuana Possession in Arizona
In Arizona, thousands and thousands of educational, childcare, nursing home and healthcare workers, students and volunteers, all hold mandatory Arizona “fingerprint clearance” cards. This also includes many unwitting college students enrolled in clinical programs such as nursing. What is surprising is how easy it is to lose a fingerprint clearance card.
In Arizona, a misdemeanor marijuana arrest results in automatic suspension of both Level 1 Fingerprint Clearance (ARS §41-1758.07) and Standard Clearance (ARS §41-1758.03). Even if you’re not taken to jail, the ticket you received counts as an “arrest.” What’s more a conviction for simple misdemeanor marijuana possession results in revocation of fingerprint clearance cards. Thus, even a ticket for misdemeanor marijuana possession can, by itself, result in loss of a fingerprint clearance card, even if you win your criminal case.
In Arizona, licensed health care providers include not just doctors and nurses; dentists and podiatrists; marriage counselors and opticians; but also a myriad of other workers ranging from athletic trainers to veterinary technicians. See ARS § 32-3208 & 3201. The first thing to understand is if you or your son or daughter works in or plans to work in a covered Arizona licensed health care profession.
In Arizona, all licensed healthcare professionals are required to report within “10 working days” any arrest (including a citation or ticket) for any misdemeanor involving conduct “that may affect patient safety.” See ARS § 32-3208. Failure to timely report is a separate ground for discipline or denial of application for a health care license. See Id.
Marijuana vs. Paraphernalia Charges & Health Care Boards
While most individual Arizona healthcare boards do not provide a specific list of reportable misdemeanors on their websites or in their rules, the ones that do seem to explicitly and uniformly provide that drug paraphernalia charges are reportable, although they do not explicitly list misdemeanor marijuana possession. See e.g. Arizona Board of Medical Examiners “Reportable Misdemeanors” web page. But we counsel caution in purposely failing to report any misdemeanor offense, including marijuana possession.
Conviction & Suspension of Health Care License
Although we have never seen anyone yet lose a health care license solely for a single isolated misdemeanor marijuana conviction, most individual Boards uniformly consider “use” of marijuana or any drug “in violation of any federal state criminal law,” a sanctionable and suspendable offense. See e.g., Arizona Arizona Administrative Code R4-19-404 (Board of Nursing); see also our Arizona Health Care Licensing Boards Reportable Misdemeanors Chart; and our Arizona Health Care Licensing Boards Criminal Convictions Suspension Chart . Thus, in our view you must assume that Arizona Health Care licensing boards expect you to report, and will investigate and impose some form of sanction for misdemeanor paraphernalia and simple marijuana possession charges.
We’ve had many many cases lately where University of Arizona students are caught in their dorm rooms with marijuana and various paraphernalia. The University police investigate and charge aggressively, part of a so-called “Zero Tolerance” policy, often conducting intrusive room searches, and then booking students into the County Jail, and of course referring the matter to the Dean of Students for eviction and discipline, as well charging them criminally. What seems like typical youthful a faux pas can create unforeseen problems.
Out-of-state parents who have paid considerable tuition, only to find their son or daughter calling them from the Pima County jail, call us often. And we spend a lot of time explaining to them the procedures, both at criminal court and at the Dean of Students office. Many times these cases wind up in a diversion program.
What is Diversion?
For many first time misdemeanor marijuana possession charges, especially students, the prosecutors offer a seemingly simple way to get the case dismissed: if the defendant is willing to take some prescribed drug or alcohol education classes, upon successful completion the prosecutor will move to dismiss the case with prejudice. This is a method of “diverting” the defendant from the criminal justice system. And it is generally a good thing, but diversion is fraught with hidden traps.
First, most court diversion programs require a “conditional guilty plea” at the outset. This is like jumping off a small cliff with a parachute. It means you have to actually plead guilty in open court; and the judge figuratively puts the plea in her file. If you successfully complete the diversion program, the judge figuratively tears the plea up, and literally enters a dismissal order.
If, however you fail to complete the diversion program to the prosecutor’s liking—i.e., you miss a class or fail a drug test, the judge simply sentences you as if you had straight up pled guilty. And note that prosecutors, not judges, control those programs. We’ve had too many clients who wash out of these seemingly good diversion programs and wind up with permanent criminal records.
Second, for some people the “conditional guilty plea” is the same as a conviction. This applies especially to immigrants, and to those who an admission on the record to the crime can be used against them later. See below.
Immigration law makes any drug conviction, including misdemeanor marijuana, a deportable offense. Although a single misdemeanor marijuana possessory conviction for under 30 grams may not result in deportation because a special “waiver” is available (See INA §212(a)(2)(A)(I)(II) & (h) I, this is not guaranteed. There are several important things to consider.
First, it is important to understand that for immigrants post-plea diversion is tantamount to a conviction. This is because the immigration code broadly defines “conviction”: it includes any admission to the material elements of the offense coupled with some form of punishment. It particularly includes all diversion programs that require a conditional guilty plea, even if the case is dismissed.
Second, while a person may not be deported for a small amount of marijuana, they may be unable, nevertheless to become a citizen, obtain a visa or green card, or reenter the United States after they physically leave. Again, although a special “waiver” should be available for a first offense, it creates problems down the line far beyond deportation.
Third, while §212(h) “waivers” are also available for paraphernalia convictions, if “related to” simple possession marijuana of 30 grams or less, paraphernalia creates problems. In some cases, unfortunately, a plea, or diversion agreement for paraphernalia, as opposed to marijuana, is no help at all. In our experience, it can be ironically the “baggy” that gets you deported, not the “bud.”