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AZ Supreme Court to settle question of probation or jail for some drug crimes

Arizona Supreme Court building. (Dillon Rosenblatt/Arizona Capitol Times)

Arizona Supreme Court building. (Dillon Rosenblatt/Arizona Capitol Times)

The Arizona Supreme Court has agreed to hear a case involving which drug related crimes can prevent people from receiving probation instead of jail time under Arizona law.

The case relates to proposition 200 – the Drug, Medicalization, Prevention, and Control act – which was approved by voters in 1996. The law states that “any person who is convicted of the personal possession or use of a controlled substance or drug paraphernalia is eligible for probation.”

The law intended to free up space in jail by allowing non-violent drug possession offenders to serve their time through probation instead of taking up space in jail that could go to violent criminals.

But the state argues there are some contradictions in the law that have lead to “absurd results or results contrary to voters’ intent,” according to its petition to the court.

The law excludes people who have been convicted of violent crimes and others who have reached a “three-strike” limit of possessing paraphernalia or drugs, but it does not specify whether solicitation to sell a drug counts as “personal possession.”

The case dates back to 2016, when David Green was parked in Tucson’s Fort Lowell Park after hours. When police approached his truck to see why he was in the park, they noticed he had a pipe on his center console. After searching the rest of the vehicle and finding no evidence of drugs, the officer cited Green for possession of drug paraphernalia and for trespassing, according to court documents.  

The officer then, according to the case, was going to release him, but returned Green to his patrol car so he could check his citizenship status under SB1070. After he was deemed a citizen he was allowed to leave the car, but when he stood up, drugs fell out of his lap.

Green argued the citizenship check caused an “unreasonably prolonged” detention, and he therefore should only be charged for trespassing in the park and possession of the pipe. But, a jury disagreed, and found him guilty on all charges.

Before Green reached his sentencing, he filed a motion arguing he was eligible for probation because he had not been previously convicted for personal possession or possession of drug paraphernalia, and was therefore eligible for probation under the law.

Despite Green’s efforts, the court ruled that a previous conviction of solicitation to sell a narcotic counted as a “strike” and the combination of the crimes made him ineligible for probation.

He appealed, and the Arizona division two court of appeals ruled part in the state’s favor and part in Green’s. The appeals court ruled that Green was not detained for too long, but also ruled that he was eligible for probation because there was not enough precedent to uphold the ruling.

The state argued in their petition to the Supreme Court that the language in the law is vague and can be misleading.

The appeals court ruled that “personal possession” does not encompass solicitation to sell a narcotic drug, the crime Green committed, but the state points to previous appeals court rulings in their petition to the Arizona Supreme Court.

In one case, Goddard V. Superior Court, an appeals court ruled “we decline to interpret the statute in a manner so contrary to common sense,” and included drugs for sale as personal possession, and therefore did not grant probation.

The state is asking the Supreme Court to decide “whether sales-related offenses, or inchoate offenses, or both, count as strikes” under the law and make someone ineligible for probation.

“This Court should grant review because the court of appeals opinion is in direct conflict with four other published court of appeals opinion,” the state wrote in its petition to the court. “Given the direct conflicts now present, trial courts need guidance in applying the non-discretionary sentencing provisions.”

Green filed his own cross-petition to the Supreme Court, continuing his argument that he was held unjustly by the police officer that night. He argued that the length of time he was held, and the officers clear intent to release him, is a violation of the fourth amendment.

The court did not buy Green’s argument, and rejected that petition without comment.

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