Recreational Arizona Marijuana Laws

The passage of Proposition 207 by voters in Arizona in the Nov. 2020 general election changed how the recreational use of marijuana by adults is treated. Legalizing recreational marijuana has resulted in major changes in some Arizona marijuana laws for marijuana and paraphernalia possession offenses.

While possessing and using small amounts of marijuana by adults who are 21 or older is now legal, you can still face criminal charges if you do not follow the law. To help you understand the new recreational marijuana laws in 2021, Gurion Legal has written this guide.

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Proposition 207 and Changes to the 2021 Arizona Marijuana Laws

Proposition 207 significantly changed the marijuana laws in Arizona surrounding possession. Before the law was passed, you could be convicted of a Class 6 felony for possessing less than two pounds of marijuana per ARS 13-3405.

Proposition 207 added Chapter 28.2 to Title 36 of the Arizona Revised Statutes. This chapter, known as the responsible adult use of marijuana, includes a number of statutes that affect the rights of people to use marijuana recreationally.

Under ARS 36-2852, adults ages 21 and older can legally possess one ounce or less of marijuana, six or fewer plants, or five grams or less of marijuana concentrate. Violating the law by possessing more than the allowed amount will result in the following penalties:

  • A first offense of possessing from one to two-and-one-half ounces – Civil offense carrying a fine of $100 per ARS 36-2853
  • A second offense of possessing between one and two-and-one-half ounces- Petty offense with the potential being order to attend eight hours of drug classes
  • Third offense of possessing between one and 2.5 ounces – Class one misdemeanor with the potential of up to six months in jail and a maximum fine of up to $2,500

You are prohibited from smoking marijuana in any public place. You are legally allowed to grow up to six plants per person in your residence or a maximum of 12 plants for two or more adults. However, the plants must be kept in a locked, enclosed area away from public view.

What Happens to Pending Marijuana Charges?

Following the legalization of recreational marijuana, the Maricopa County Attorney’s Office started dismissing pending cases that involve marijuana offenses covered by Proposition 207.

If you have a pending marijuana possession charge for an amount that is less than what appears in the statute, you can file a motion with the court under ARS 36-2862(G) to ask for the possession charge(s) to be dismissed for offenses occurring before the new law was passed.

Arizona courts are required to dismiss the case with prejudice if the amount you were charged with qualifies. A dismissal with prejudice means that the prosecutor cannot try to prosecute you for the same offense again.

However, if you were charged with other offenses unrelated to marijuana simultaneously, the prosecutor can still prosecute you for those separate offenses.

Possessing Marijuana Paraphernalia

The new laws also legalized the possession of paraphernalia used to consume or cultivate marijuana. Under ARS 13-3415, drug paraphernalia has a broad definition and includes almost anything that might be used for marijuana.

Before Proposition 207 was passed, the police could charge you with a crime if you possessed any type of marijuana paraphernalia, including pipes, bongs, baggies, or growing equipment, unless you had a medical marijuana card. While you can now possess marijuana paraphernalia, you can still be charged with an offense if you are caught with other types of paraphernalia for other illegal drugs.

The new marijuana laws allow you to gift marijuana plants or marijuana to another person who is at least 21. However, you are prohibited from drug sales of marijuana. Only licensed providers are allowed to sell cannabis.

If you sell marijuana, the police can charge you with possessing marijuana with the intent to sell it. This offense can be charged as a Class 6 to a Class 2 felony based on the marijuana’s weight.

Where Marijuana Can Be Used Legally

Smoking or vaping marijuana in public or open areas is prohibited, including places like parks, restaurants, and bars. If you are charged with publicly using marijuana, you will face a petty offense and a fine but no jail sentence.

Public places are defined in ARS 36-601.01 as including most businesses, walkways, and parks. While this law was passed to ban the public use of tobacco, Proposition 207 adopted the same definition for marijuana use. Unlike the Smoke-Free Arizona Act, Proposition 207 does not allow you to smoke marijuana in hotel rooms, including those that allow smoking.

People who smoke tobacco are allowed to smoke cigarettes in a greater number of places than people who smoke marijuana. However, it is not a crime to walk in public while under the influence of marijuana as long as you don’t smoke it in public.

You cannot get behind the wheel of a vehicle and drive when you are under the influence of marijuana without potentially being charged for a marijuana DUI charge. It is illegal to ingest marijuana while operating a boat or motor vehicle, and DUIs involving marijuana are frequently prosecuted.

While it is legal for adults to use marijuana recreationally in Arizona, employers in the state are allowed to require their workplaces remain drug-free. If you are caught with marijuana in the workplace, you could be terminated by your employer.

Reasonable Suspicion/Probable Cause Under the New Marijuana Laws

Police officers must have reasonable suspicion that you have committed a violation or criminal offense before stopping and detaining you to investigate. Before an officer can search you or your vehicle, they must have probable cause to believe that you have committed a crime.

Before Proposition 207, police officers could use the smell of marijuana as a basis for stops and searches, and it was difficult for people to disprove that officers detected the odor of marijuana. The standard has changed and is now more complex. Distinctions are now drawn between raw and burnt marijuana, and there are also exceptions for people with medical marijuana cards.

Police cannot use the fact that a person possessed marijuana in a legal amount as the reason to support the person’s arrest, search, or detention. The smell of marijuana by itself no longer amounts to reasonable suspicion, with some exceptions.

If an officer stops you for a suspected DUI and smells marijuana from your car, the officer might use that odor as a reason to search your vehicle. They can also detain you while determining other reasons to justify searching your vehicle.

A marijuana attorney at Gurion Legal can review what happened and explain whether or not the DUI exception was properly used when the officer searched your vehicle.

Officers can consider an odor of marijuana under the totality of the circumstances to determine reasonable suspicion. This means that they can consider several observations which together combine to allow the officers to reach a conclusion to investigate further.

Marijuana Expungement – What has Changed in Arizona?

Under ARS 36-2862, people in Arizona who have certain marijuana possession convictions on their records can petition the court for an expungement as of July 12, 2021.

Expungement removes the conviction and arrest record from your criminal record, and employers and others will no longer be able to see this information. The following convictions are eligible for expungement:

  • Transportation, use, or possession of up to 2.5 ounces of marijuana or 12.5 ounces of marijuana concentrate
  • Cultivation or possession of up to six marijuana plants in your house
  • Transportation, use, or possession of marijuana paraphernalia

The ability to have your record expunged is important. Previously, the only thing you could apply for is a set-aside. Records that are set aside still appear on your record but are designated as set-asides. By contrast, expungement will remove these convictions from your record and potentially provide you with a new start.

Other Effects of Proposition 207

Law enforcement agencies in Arizona have targeted drug offenses for years. Before recreational marijuana was legalized, you could face a felony for possessing a small amount of marijuana. People who have felony convictions on their records have trouble finding jobs, housing, and credit.

Marijuana convictions also can prevent people from receiving housing assistance, financial aid for college, and public benefits. Being able to expunge a marijuana conviction from your record might open all of these areas back up to you.

Talk to an Experienced Marijuana Possession Lawyer

Even though recreational marijuana is now legal, you can still face charges if you sell marijuana or transport or possess more than what is legal. You can also be charged with a DUI if you drive while impaired by marijuana.

If you are facing any type of marijuana charge, you should talk to an experienced defense lawyer as soon as possible. It is also a good idea for you to get help if you have a past conviction and want to petition for an expungement. Contact the experienced marijuana defense lawyers at Gurion Legal today for help.

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