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Drugs and Guns and Laws.. Oh My!

A good thing to know, especially if you are a gun carrying Arkansan, is that if you have a felony amount of narcotics and a firearm that you are subject to Arkansas Code Annotated 5-74-106. Simultaneous Possession of Drugs and Firearms (herein referred to as “Simultaneous”), a Class Y felony in the State of Arkansas punishable by 10-40 years in prison or Life without the possibility of parole, and/or up to a $25,000.00 fine. Now this law has a few different facets, however with the recent changes to Arkansas law regarding marijuana I have decided to discuss what I would call the “iron circle of simultaneous possession”. Let me explain:
 
In this hypothetical we have a person with an ounce (approx. 28 grams) of marijuana, a schedule VI controlled substance, no prior convictions for possessing a schedule VI substance, and that person also has a gun on his/her person.  Now looking at the statutes listed below, specifically 5-64-419, that is a misdemeanor possession. According to the law regarding Simultaneous, you cannot be convicted of Simultaneous with a misdemeanor amount of a controlled substance. So one would think that possessing that amount of marijuana and a gun would not lead to a Simultaneous charge, but… look at 5-64-436. That law states that if you have more than 14 grams with the purpose to deliver that substance then it is a Class D felony charge, meaning that if a person has the ounce of marijuana as described in this hypothetical and it is with purpose to deliver than it is subject to Simultaneous. Now one would ask, “what makes it purpose to deliver”? In response to that question we look at the statute and we notice 5-64-436 (a)(4), which state that purpose to deliver can be shown if the person in possession of the schedule VI substance also possesses a firearm that is in the immediate physical control of the person at the time of the possession of the Schedule VI controlled substance, meaning that the gun makes the drugs a felony and the felony drugs and guns lead to Simultaneous, this snowball effect is the iron circle that I referred to earlier. Having the gun makes the drugs a felony (without it that amount of drugs might not be a felony), and having a felony amount of drugs makes the crime Simultaneous. Moral of the story is two-fold, 1) things snowball quickly in these situations and an amount of marijuana that might lead to a ticket is now a felony punishable by life in prison, and 2) do not have more than 14 grams of marijuana and a gun or you will likely get charged with Simultaneous.
 
All of the relevant law is listed below:
 
 
5-74-106. Simultaneous possession of drugs and firearms.
(a)  A person shall not unlawfully commit a felony violation of §§ 5-64-419 -- 5-64-442 or unlawfully attempt, solicit, or conspire to commit a felony violation of §§ 5-64-419 -- 5-64-442 while in possession of:
(1)  A firearm; or
(2)  Any implement or weapon that may be used to inflict serious physical injury or death, and that under the circumstances serves no apparent lawful purpose.
(b)  Any person who violates this section is guilty of a Class Y felony.
(c)  This section does not apply to a misdemeanor drug offense.
(d)  It is a defense to this section that the defendant was in his or her home and the firearm or other implement or weapon was not readily accessible for use.
 
5-64-419. Possession of a controlled substance.
(a)  Except as provided by this chapter, it is unlawful for a person to possess a controlled substance.
(b)  A person who violates this section with respect to:
(5)  A Schedule VI controlled substance with an aggregate weight, including an adulterant or diluent, of:
(A)  Less than four ounces (4 oz.) upon conviction is guilty of a Class A misdemeanor;
(B)  One ounce (1 oz.) or more but less than four ounces (4 oz.) and the person has four (4) previous convictions under this section or the former § 5-64-401(c) upon conviction is guilty of a Class D felony;
(C)  Four ounces (4 oz.) or more but less than ten pounds (10 lbs.) upon conviction is guilty of a Class D felony;
(D)  Ten pounds (10 lbs.) or more but less than twenty-five pounds (25 lbs.) upon conviction is guilty of a Class C felony;
(E)  Twenty-five pounds (25 lbs.) or more but less than one hundred pounds (100 lbs.) upon conviction is guilty of a Class B felony; or
(F)  One hundred pounds (100 lbs.) or more but less than five hundred pounds (500 lbs.) upon conviction is guilty of a Class A felony.
 
5-64-436. Possession of a Schedule VI controlled substance with the purpose to deliver.
(a)  Except as provided by this chapter, it is unlawful if a person possesses a Schedule VI controlled substance with the purpose to deliver the Schedule VI controlled substance. Purpose to deliver may be shown by any of the following factors:
(1)  The person possesses the means to weigh and separate a Schedule VI controlled substance;
(2)  The person possesses a record indicating a drug-related transaction;
(3)  The Schedule VI controlled substance is separated and packaged in a manner to facilitate delivery;
(4)  The person possesses a firearm that is in the immediate physical control of the person at the time of the possession of the Schedule VI controlled substance;
(5)  The person possesses at least two (2) other controlled substances in any amount; or
(6)  Other relevant and admissible evidence that contributes to the proof that a person's purpose was to deliver a Schedule VI controlled substance.
(b)  A person who violates this section upon conviction is guilty of a:
(1)  Class A misdemeanor if the person possessed by aggregate weight, including an adulterant or diluent, fourteen grams (14g) or less of a Schedule VI controlled substance;
(2)  Class D felony if the person possessed more than fourteen grams (14g) but less than four ounces (4 oz.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance;
(3)  Class C felony if the person possessed four ounces (4 oz.) or more but less than twenty-five pounds (25 lbs.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance;
(4)  Class B felony if the person possessed twenty-five pounds (25 lbs.) or more but less than one hundred pounds (100 lbs.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance; or
(5)  Class A felony if the person possessed one hundred pounds (100 lbs.) or more but less than five hundred pounds (500 lbs.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance.
 

*Disclaimer: This blog is not legal advice, but a general explanation of the law that is not specific to your case, if you have one. If you have questions concerning your rights, a recent police interaction or any other legal issue please contact either General Practice Law Firm or another attorney for a proper application of the law to your case.

1 Comment to Drugs and Guns and Laws.. Oh My!:

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annonymous on Thursday, June 14, 2018 4:53 AM
good
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