COURT SAYS NO JAIL FOR DRUG PARAPHERNALIA

The tug-of-war between Prop 200 advocates who object to criminalizing
small-scale drug use and local prosecutors who see smoking a joint as the
road to ruin got hotter recently when the Arizona Supreme Court exempted
drug paraphernalia from jail time.

Previously, first-time users of marijuana, meth, cocaine or other drugs
could not be sentenced to jail, but faced only probation and a fine --
because of Prop 200. However, some prosecutors in the state sought to tack
on county jail time by getting a drug paraphernalia conviction, arguing
that paraphernalia is not mentioned in Prop 200.

That prosecution tool has now gone up in smoke.

The Nov. 15, 2001, decision in Arizona vs. Estrada held that "paraphernalia
that is or could have been charged is Prop 200 eligible," said Greenlee
County Attorney Derek Rapier.

"If you're caught with a pipe and your meth, you don't go to jail. If
you're caught with a pipe alone, you can go to jail. They came up with an
absurd result," Rapier said.

Graham County Attorney Kenneth Angle cautioned the state supreme court's
decision applies only to first-time drug use offenders, does not apply to
persons with violent felony convictions and does not apply to persons 18 or
younger.

"Prop 200 does not apply to juvenile cases. Juveniles can be locked up if
they're caught with meth, cocaine, marijuana and paraphernalia," he said,
citing a decision of the Arizona Court of Appeals.

Angle said the high court's decision would impact drug crime prosecutions
in Graham County.

"It delays us in being able to put a hammer over their head for people with
a simple possession case. Eventually, we'll get them because drugs are
addictive," he said.

Angle said the new court decision will affect about 50 first-time drug use
possession cases per year in Graham County

"If you're caught with paraphernalia, it's a first time offense, and (if)
you have marijuana or another drug, you cannot be put into jail. If it's a
second offense, you can be put into county jail. A third offense, you could
go to state prison. Most of the people we're dealing with now are facing
second drug offense cases," he said.

Greenlee's Rapier said the new ruling will have a limited effect in
Greenlee County.

"I don't think it's going to have any difference in how officers approach a
search. They're still felonies. But it will affect how we deal with them in
prosecution," he said.

Rapier was not happy with the loss of a tool he, as a prosecutor, felt was
necessary to fight the war on drugs.

"Now, a whole new class of crime is now Prop 200 eligible," he said.

One piece of good news is that Prop 200 does not apply to the drug sale
cases nor does the new decision apply to meth lab equipment.

"I'd like to see Graham County become a drug-free county," Angle said. "I
think it's a terrible scourge on society," he said.

Angle said small-scale drug use leads people into burglaries and thefts to
obtain money to buy drugs, it harms children, it harms marriages and it
harms lives when someone ends up with a felony conviction on their record.

"But we want them to straighten up, to be clean and not to use drugs. I
would love to see people just stop using drugs and voluntarily get
themselves sent to rehab," he said.

Angle admitted that in Graham County, the only way to get into rehab is to
break the law by being arrested for smoking pot, snorting meth or injecting
heroin. "If they're not on probation, then the state can't help them. There
aren't any services available from Graham County (for voluntary quitters),"
he said.

He urged users who wish to stop using drugs to attend meetings of
Alcoholics Anonymous or Narcotics Anonymous.

The Arizona Supreme Court decision resolves a dispute between courts in
Division 1, as in Tucson, which held Prop 200 applied to paraphernalia, and
courts in Division 2, which includes Greenlee and Graham counties, which
had found jail time could be sought for simple first-time possession of
drug paraphernalia.

Now, the statewide rule is no jail time for first-time simple possession of
drug paraphernalia so long as the paraphernalia occurs along with
first-time possession of drugs such as marijuana.