This case challenges a marijuana diversion program operated by the Maricopa County Attorney’s Office (MACO). Arizona is the only state in the country where possession of any amount of marijuana can be charged as a felony. To avoid criminal prosecution, defendants in Maricopa County are offered a diversion program where they are required to pay $950 or $1000 and $15- $17 per test for drug and alcohol testing up to three times a week. People who can afford to pay finish the program in 3 months. Those who can’t pay must stay in the program for at least six months or until they pay the fees owed, even if they have satisfied every program requirement other than payment. They must continue to be drug tested as often as three times a week and continue to pay the fees imposed for those tests. If they fail to pay for the required testing, defendants face felony prosecution. As a matter of policy and practice, the diversion program fee is never waived regardless of financial circumstances. Although the drug testing fee can be reduced from $15 to $7 per test, according to an employee with the program, those fee reductions are granted only when a person’s income is “basically zero.” Between 2006-2016, MACO collected nearly $15 million in revenue by diverting threatened prosecutions to the diversion program.
Plaintiffs allege that the diversion program violates both equal protection and due process under the Fourteenth Amendment and constitutes an unreasonable search and seizure in violation of the Fourth Amendment.
Case pending before the Arizona District Court.