Are you a medical marijuana patient facing state charges in Oregon?

If you are arrested for a marijuana offense and the prosecutor files charges, you will first face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.

Oregon's Measure 67, a statutory ballot initiative, originally passed with 55% of the vote on November 3, 1998, and was then modified by the Oregon legislature with the passage of H.B. 3052, effective July 21, 1999, and S.B. 1085 in 2005, effective January 1, 2006. Oregon's current medical marijuana law can be found in Oregon Rev. Stat. 475.300 -- ORS 475.346. Additionally, here are the current Administrative Rules. Additionally, the Oregon legislature flirted with passing H.B. 2693 in 2005 and S.B. 465 in 2007, which would have actively allowed employers to discriminate against patients who use their medicine on their off-hours, but thankfully, both died in committee. In 2004, Ballot Measure 33 would have expanded the law, and allowed the creation of nonprofit state-licensed marijuana dispensaries which could sell marijuana to patients, and would have increased to 6 lbs. (6 pounds) the limit of marijuana that the patient may possess, but was rejected by voters, 57.2%-42.8%. Oregon Voter Power has launched Initiative 28 for the 2010 election in order to create state-licensed dispensaries.

Oregon law allows a patient with written documentation (also known as a recommendation) and a designated primary caregiver to collectively possess 24 oz. of processed bud, 6 mature plants, and 18 seedlings (S.B. 1085 raised the limits from 3 oz., 3 mature plants, 4 seedlings). After S.B. 1085 passed, a patient no longer has the ability to raise a medical necessity affirmative defense (or even a Choice of Evils defense) at trial to argue that amounts exceeding these limits are medically necessary. Also, any mature plants or seedlings must be at only 1 registered (according to ORS § 475.304) marijuana grow site. A person responsible for a marijuana grow site (which cannot be someone convicted of certain felonies) can cultivate for up to four patients, displaying their marijuana grow site registration cards, for a aggregate total of 96 oz. (6 lbs.) of processed bud, 24 mature plants, and 72 seedlings. A mature plant has begun to flower, and 12 inches or more in height and diameter. Finally, S.B. 1085 added protections from unreasonable seizures, and directed law enforcement law enforcement to only confiscate any bud or plants that are in excess of the limits.

The Oregon Department of Human Services, Public Health Division registry identification card is not mandatory in order to assert a medical marijuana affirmative defense in state court, and a patient may assert the affirmative defense with only written documentation, as long as the patient has not exceeded the limits, and the patient files a written notice with the district attorney, five or more days before trial. Additionally, the choice of evils defense remains available for patients who have not exceeded the limits but do not even have written documentation, as long as they have made a substantial step to comply with the medical marijuana law (ASA has received reports of the success of this defense in action).

Valid written documentation must note that the patient was examined by a physician "who has primary responsibility for the care and treatment" of a patient who has been diagnosed with a "debilitating medical condition" within 12 months prior to arrest, and that the physician "advised" the patient "that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition".

A medical marijuana patient may have 1 designated primary caregiver (a person "who has significant responsibility for managing the well-being of a person who has been diagnosed with a debilitating medical condition") who may serve multiple patients at a time. In Oregon, a "debilitating medical condition" is:

  • Cancer,
  • Glaucoma,
  • HIV/AIDS,
  • Agitation due to Alzheimer's disease (added by the Oregon Board of Health),
  • Any medical condition which produces cachexia, severe pain, severe nausea, seizures (such as from Epilepsy), or persistent muscle spasms (such as from Multiple Sclerosis), or
  • Treatment for any of these conditions.

An Oregon patient does not have any protection from the medical marijuana law when driving under the influence of marijuana; engaging in the medical use of marijuana in a public place, in public view, in a correctional facility, or a youth correction facility. Medical use of marijuana does not have to be accommodated by an employer in any workplace. A patient or designated primary caregiver may reimburse the person responsible for a marijuana grow site ONLY for the costs of supplies and utilities associated with the production of marijuana. No other costs associated with the production of marijuana for the registry identification cardholder, including the cost of labor, may be reimbursed. No one may deliver marijuana even to a qualified patient in return for "consideration."

Another important resource is the Oregon Department of Human Services, Public Health Division website, which includes and the Application Packet, FAQ, Basic Facts, Advisory Committee Handbook, and Oregon State Police information.

Additional resources can be found at OR NORML, which has its own handbook, OR Voter Power, Mothers Against Misuse and Abuse, Oregon GreenFree, Oregon Medical Marijuana Coalition, and Rick Bayer's website, Oregonians for Medical Rights.

Oregon has precedential caselaw that supports returning marijuana to a patient if there is a lack of probable cause, which will assist an Oregon patient in getting his or her legal amount of medicine back from law enforcement if it was wrongfully seized and the criminal case has not been prosecuted or has been dismissed. People v. Kama is as strong a case as Garden Grove v. Superior Court, which supports Return of Property in California.

Additionally, Oregon's statute mandates that: "Any property interest possessed, owned or used in connection with the medical use of marijuana or acts incidental to the medical use of marijuana that has been seized by state or local law enforcement officers may not be harmed, neglected, injured or destroyed while in the possession of any law enforcement agency. A law enforcement agency has no responsibility to maintain live marijuana plants lawfully seized. No such property interest may be forfeited under any provision of law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense. Usable marijuana and paraphernalia used to administer marijuana that was seized by any law enforcement office shall be returned immediately upon a determination by the district attorney in whose county the property was seized, or the district attorney's designee, that the person from whom the marijuana or paraphernalia used to administer marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346. The determination may be evidenced, for example, by a decision not to prosecute, the dismissal of charges or acquittal." ORS § 475.323.

Therefore, patients are encouraged to demand their property back if it is wrongfully seized. For more information on how this type of process works in California, take a look at our Return of Property page. You and your Public Defender or private attorney can research whether your state has a Return of Property process and special proceedings in Criminal Court, and you can attempt to apply the reasoning of the California Motion for Return of Property, and create a similar Oregon motion. For more information on filing this motion, contact ASA's Legal Services Coordinator.

Another interesting note in Oregon's law is that it allows a licensed health care professional to administer medical marijuana to a patient residing in a licensed health care facility if the administration of pharmaceuticals is within the professional's scope of practice. The provision even allows for smoking of the marijuana, as long as adequate ventilation exists.

Make sure you give all of this information to your Public Defender or private attorney and discuss it with her or him, and also that you and your lawyer continue to research whether there is any new caselaw in your state regarding medical marijuana. For information about how to find a lawyer familiar with medical marijuana law in your state, contact local activists to see if they have any information at Local Resources. Also, here is a link to possible lawyers from NORML's website.