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Possession Versus Possession for Sale

In Arizona law and criminal procedure, there is a huge difference between the simple possession of drugs, and the possession of drugs for sale (for possession with intent to sell). In fact, in most cases of simple possession, jail or prison is not even an option due to Arizona's Proposition 200 that was passed in the late 1990s.

However, in many cases of possession of drugs for sale, prison may be the only option. In light of this difference – no possible jail v. mandatory prison, the purpose of this article is to consider a few of the factors that police and prosecutors look for in determining whether to charge someone with a possession for sale as opposed to a simple possession of drugs. Here are a few of the factors they look at.

Quantity – if a person possesses a quantity or amount of drugs that it is clearly in excess of the amount that could reasonably be considered for "personal use," the police and prosecutors will automatically assume that the suspect possesses the drugs for the purpose of selling to others. The concept of generosity, e.g., "I bought these for me and my friends," is rarely an accepted excuse when the quantity is high.

Cash on hand – Drug deals run on cash, not credit, and the police know this. Thus, if a person is possesses not only drugs, but also a substantial amount of cash, the police and prosecutors will assume that the cash is used for the purpose in of dealing in drugs and that the suspect is a dealer rather than a mere possessor.

Packaging materials – if the person is in possession of drugs and packaging materials, e.g., baggies, foil, or other packaging paraphernalia; or if the drugs themselves are separated into smaller packages at the time of possession, this is a sure to the authorities of the intention to sell. The police and prosecutors will automatically assume that the drugs with packaging or prepackaged units are possessed for sale.

Scales and other indicia of drug transactions – Drug deals don't run on trust, the parties come ready to be cheated. If the person is in possession of weight appropriate scales, or other materials that might accompany the sale of drugs (such as a firearm) the police or prosecutors will automatically assume that the person is getting ready to deal in drugs.

The job of the defense is often to meet this difficult facts head-on.