72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1706
Senate Bill 342
Sponsored by COMMITTEE ON JUDICIARY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Provides that for purposes of crime of possession of controlled
substance person possesses controlled substance if person
intentionally consumes controlled substance and certain other
circumstances are present.
A BILL FOR AN ACT
Relating to controlled substances; amending ORS 105.555, 135.907,
135.909, 135.911, 135.913, 135.915, 135.917, 135.919, 419C.239,
419C.420, 419C.443 and 475.992.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 475.992 is amended to read:
475.992. (1) Except as authorized by ORS 475.005 to 475.285 and
475.940 to 475.999, it is unlawful for any person to manufacture
or deliver a controlled substance. Any person who violates this
subsection with respect to:
(a) A controlled substance in Schedule I, is guilty of a Class
A felony.
(b) A controlled substance in Schedule II, is guilty of a Class
B felony.
(c) A controlled substance in Schedule III, is guilty of a
Class C felony.
(d) A controlled substance in Schedule IV, is guilty of a Class
B misdemeanor.
(e) A controlled substance in Schedule V, is guilty of a Class
C misdemeanor.
(2) Notwithstanding the placement of marijuana in a schedule of
controlled substances under ORS 475.005 to 475.285 and 475.940 to
475.999:
(a) Any person who delivers marijuana for consideration is
guilty of a Class B felony.
(b) Any person who delivers, for no consideration, less than
one avoirdupois ounce of the dried leaves, stems and flowers of
the plant Cannabis family Moraceae is guilty of a Class A
misdemeanor, except that any person who delivers, for no
consideration, less than five grams of the dried leaves, stems
and flowers of the plant Cannabis family Moraceae is guilty of a
violation, punishable by a fine of not less than $500 and not
more than $1,000. Fines collected under this paragraph shall be
forwarded to the Department of Revenue for deposit in the
Criminal Fine and Assessment Account established in ORS 137.300.
(3) Except as authorized in ORS 475.005 to 475.285 and 475.940
to 475.999, it is unlawful for any person to create or deliver a
counterfeit substance. Any person who violates this subsection
with respect to:
(a) A counterfeit substance in Schedule I, is guilty of a Class
A felony.
(b) A counterfeit substance in Schedule II, is guilty of a
Class B felony.
(c) A counterfeit substance in Schedule III, is guilty of a
Class C felony.
(d) A counterfeit substance in Schedule IV, is guilty of a
Class B misdemeanor.
(e) A counterfeit substance in Schedule V, is guilty of a Class
C misdemeanor.
(4) It is unlawful for any person knowingly or intentionally to
possess a controlled substance unless the substance was obtained
directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of professional practice,
or except as otherwise authorized by ORS 475.005 to 475.285 and
475.940 to 475.999. Any person who violates this subsection with
respect to:
(a) A controlled substance in Schedule I, is guilty of a Class
B felony.
(b) A controlled substance in Schedule II, is guilty of a Class
C felony.
(c) A controlled substance in Schedule III, is guilty of a
Class A misdemeanor.
(d) A controlled substance in Schedule IV, is guilty of a Class
C misdemeanor.
(e) A controlled substance in Schedule V, is guilty of a
violation.
(f) Notwithstanding the placement of marijuana in a schedule of
controlled substances under ORS 475.005 to 475.285 and 475.940 to
475.999, any person who knowingly or intentionally is in unlawful
possession of less than one avoirdupois ounce of the dried
leaves, stems and flowers of the plant Cannabis family Moraceae
is guilty of a violation, punishable by a fine of not less than
$500 and not more than $1,000. Fines collected under this
paragraph shall be forwarded to the Department of Revenue for
deposit in the Criminal Fine and Assessment Account established
under ORS 137.300.
{ + (5)(a) For purposes of subsection (4) of this section, a
person possesses a controlled substance if the person:
(A) Is under 21 years of age;
(B) Has intentionally consumed a controlled substance; and
(C) Is under the influence of the controlled substance.
(b) As used in this subsection 'consume' includes inhaling
marijuana smoke.
(c) Notwithstanding subsection (4) of this section, a person
who unlawfully possesses a controlled substance by consuming the
controlled substance commits a Class A violation. + }
{ - (5) - } { + (6) + } In any prosecution under this
section for manufacture, possession or delivery of that plant of
the genus Lophophora commonly known as peyote, it is an
affirmative defense that the peyote is being used or is intended
for use:
(a) In connection with the good faith practice of a religious
belief;
(b) As directly associated with a religious practice; and
(c) In a manner that is not dangerous to the health of the user
or others who are in the proximity of the user.
{ - (6) - } { + (7) + } The affirmative defense created in
subsection { - (5) - } { + (6) + } of this section is not
available to any person who has possessed or delivered the peyote
while incarcerated in a correctional facility in this state.
SECTION 2. ORS 419C.239 is amended to read:
419C.239. (1) A formal accountability agreement shall:
(a) Be completed within a period of time not to exceed one
year;
(b) Be voluntarily entered into by all parties;
(c) Be revocable by the youth at any time by a written
revocation;
(d) Be revocable by the juvenile department in the event the
department has reasonable cause to believe the youth has failed
to carry out the terms of the formal accountability agreement or
has committed a subsequent offense;
(e) Not be used as evidence against the youth at any
adjudicatory hearing;
(f) Be executed in writing and expressed in language
understandable to the persons involved;
(g) Be signed by the juvenile department, the youth, the
youth's parent or parents or legal guardian, and the youth's
counsel, if any;
(h) Become part of the youth's juvenile department record; and
(i) When the youth has been charged with having committed the
youth's first violation of a provision under ORS 475.992
prohibiting delivery for no consideration of less than five grams
of marijuana { + , + } { - or - } prohibiting possession of
less than one ounce of marijuana { + or prohibiting possession
of marijuana by consumption + } and unless the juvenile
department determines that it would be inappropriate in the
particular case:
(A) Require the youth to participate in a diagnostic assessment
and an information or treatment program as recommended by the
assessment. The agencies or organizations providing assessment or
programs of information or treatment must be the same as those
designated by the court under ORS 419C.443 (1) and must meet the
standards set by the Director of Human Services. The parent of
the youth shall pay the cost of the youth's participation in the
program based upon the ability of the parent to pay.
(B) Monitor the youth's progress in the program which shall be
the responsibility of the diagnostic assessment agency or
organization. It shall make a report to the juvenile department
stating the youth's successful completion or failure to complete
all or any part of the program specified by the diagnostic
assessment. The form of the report shall be determined by
agreement between the juvenile department and the diagnostic
assessment agency or organization. The juvenile department shall
make the report a part of the record of the case.
(2) Notwithstanding any other provision of law, the following
information contained in a formal accountability agreement under
ORS 419C.230 is not confidential and is not exempt from
disclosure:
(a) The name and date of birth of the youth;
(b) The act alleged; and
(c) The portion of the agreement providing for the disposition
of the youth.
SECTION 3. ORS 419C.420 is amended to read:
419C.420. If a youth is cited or summoned for a violation under
ORS 471.430 or 475.992 (2)(b) { + , + } { - or - } (4)(f)
{ + or (5) + } and fails to appear, the court may adjudicate the
citation or petition and enter a disposition without a hearing.
SECTION 4. ORS 419C.443 is amended to read:
419C.443. (1) Except when otherwise provided in subsection (3)
of this section, when a youth is found to be within the
jurisdiction of the court under ORS 419C.005 for a first
violation of the provisions under ORS 475.992 prohibiting
delivery for no consideration of less than five grams of
marijuana { + , + } { - or - } prohibiting possession of less
than one ounce of marijuana { + or prohibiting possession of
marijuana by consumption + }, the court shall order an evaluation
and designate agencies or organizations to perform diagnostic
assessment and provide programs of information and treatment. The
designated agencies or organizations must meet the standards set
by the Director of Human Services. Whenever possible, the court
shall designate agencies or organizations to perform the
diagnostic assessment that are separate from those that may be
designated to carry out a program of information or treatment.
The parent of the youth shall pay the cost of the youth's
participation in the program based upon the ability of the parent
to pay. The petition shall be dismissed by the court upon written
certification of the youth's successful completion of the program
from the designated agency or organization providing the
information and treatment.
(2) Monitoring the youth's progress in the program shall be the
responsibility of the diagnostic assessment agency or
organization. It shall make a report to the court stating the
youth's successful completion or failure to complete all or any
part of the program specified by the diagnostic assessment. The
form of the report shall be determined by agreement between the
court and the diagnostic assessment agency or organization. The
court shall make the report a part of the record of the case.
(3) The court is not required to make the disposition required
by subsection (1) of this section if the court determines that
the disposition is inappropriate in the case or if the court
finds that the youth has previously entered into a formal
accountability agreement under ORS 419C.239 (1)(i).
SECTION 5. ORS 135.907 is amended to read:
135.907. (1) The court shall inform at arraignment a defendant
charged with the offense of possession of less than one ounce of
marijuana { + or of possession of marijuana by consumption + }
{ - , - } that a diversion agreement may be available if the
offense for which the defendant is before the court is the
defendant's first offense of possession of less than one ounce of
marijuana { + or of possession of marijuana by consumption + }
and files with the court a petition for a possession of marijuana
diversion agreement.
(2) The petition form for a possession of marijuana diversion
agreement shall be available to a defendant at the court.
(3) The form of the petition for a possession of marijuana
diversion agreement and the information and blanks contained
therein shall be determined by the Supreme Court under ORS 1.525.
The petition form made available to a defendant by any state
court shall conform to the requirements adopted by the Supreme
Court.
(4) In addition to any other information required by the
Supreme Court to be contained in a petition for a possession of
marijuana diversion agreement, the petition shall include:
(a) A waiver by the defendant of the right to speedy trial or
sentencing in any subsequent action upon the charge;
(b) An agreement by the defendant to complete at an agency or
organization designated by the state court a diagnostic
assessment to determine the possible existence and degree of a
drug abuse problem;
(c) An agreement by the defendant to complete, at defendant's
own expense based on defendant's ability to pay, the program of
treatment indicated as necessary by the diagnostic assessment;
(d) An agreement by the defendant to comply fully with the laws
of this state regarding controlled substances;
(e) A notice to the defendant that the diversion agreement will
be considered to be violated if the court receives notice that
the defendant at any time during the diversion period committed a
violation of the controlled substances laws of this state;
(f) An agreement by the defendant to keep the court advised of
the defendant's current mailing address at all times during the
diversion period; and
(g) A waiver by the defendant of any former jeopardy rights
under the federal and state constitutions and ORS 131.505 to
131.525 in any subsequent action upon the charge or any other
offenses based upon the same criminal episode.
SECTION 6. ORS 135.909 is amended to read:
135.909. (1) After an accusatory instrument has been filed
charging the defendant with the offense of possession of less
than one ounce of marijuana { + or of possession of marijuana by
consumption + }, a defendant may file with the court a petition
for a possession of marijuana diversion agreement described in
ORS 135.907. The petition:
(a) Must be filed within 30 days after the date of the
defendant's first appearance on the summons, unless a later
filing date is allowed by the court upon a showing of good cause.
(b) Notwithstanding paragraph (a) of this subsection, may not
be filed after entry of a guilty plea or a no contest plea or
after commencement of any trial on the charge whether or not a
new trial or retrial is ordered for any reason.
(2) The defendant shall pay to the court, at the time of filing
a petition for a possession of marijuana diversion agreement, a
filing fee as specified in ORS 135.921. The court may make
provision for payment of the filing fee by the defendant on an
installment basis. The court may waive all or part of the filing
fee in cases involving indigent defendants. The filing fee paid
to the court under this subsection shall be retained by the court
if the petition is allowed. The filing fee shall be distributed
as provided in ORS 135.921.
(3) The defendant shall pay to the agency or organization
providing the diagnostic assessment, at the time the petition is
allowed, the fee required by ORS 135.921 (3).
(4) The defendant shall cause a copy of the petition for a
possession of marijuana diversion agreement to be served upon the
district attorney or city attorney. The district attorney may
file with the court, within 15 days after the date of service, a
written objection to the petition and a request for a hearing.
SECTION 7. ORS 135.911 is amended to read:
135.911. After the time for requesting a hearing under ORS
135.909 has expired with no request for a hearing, or after a
hearing requested under ORS 135.909, the court shall allow the
petition for a possession of marijuana diversion agreement if the
court finds that the offense for which the defendant is before
the court is the defendant's first offense of possession of less
than one ounce of marijuana { + or of possession of marijuana by
consumption + }.
SECTION 8. ORS 135.913 is amended to read:
135.913. (1) When the court allows a petition for a possession
of marijuana diversion agreement filed as provided in ORS
135.909, the judge taking that action shall sign the petition and
indicate thereon the date of allowance of the diversion period,
the length of the diversion period and the date upon which the
possession { - of less than one ounce - } of marijuana offense
occurred. The petition when signed and dated becomes the
diversion agreement between the defendant and the court. The
court shall make the agreement a part of the record of the case.
(2) A possession of marijuana diversion agreement shall be for
a period of one year after the date the court allows the
petition. During the diversion period the court shall stay the
possession { - of less than one ounce - } of marijuana offense
proceeding pending completion of the diversion agreement or its
termination.
(3) When the court denies a petition for a possession of
marijuana diversion agreement, it shall continue the offense
proceeding against the defendant.
SECTION 9. ORS 135.915 is amended to read:
135.915. (1) At any time after the conclusion of the period of
a possession of marijuana diversion agreement described in ORS
135.913, a defendant who has fully complied with and performed
the conditions of the diversion agreement may apply by motion to
the court wherein the diversion agreement was entered for an
order dismissing the charge with prejudice.
(2) The defendant shall cause to be served on the district
attorney a copy of the motion for entry of an order dismissing
with prejudice the charge of possession of less than one ounce of
marijuana { + or of possession of marijuana by consumption + }.
The motion shall be served on the district attorney at the time
it is filed with the court. The district attorney may contest the
motion.
(3) If the defendant does not appear as provided by subsection
(1) of this section within six months after the conclusion of the
diversion period, and if the court finds that the defendant fully
complied with and performed the conditions of the diversion
agreement, and if it gives notice of that finding to the district
attorney, the court may on its own motion enter an order
dismissing { + with prejudice + } the charge of possession of
less than one ounce of marijuana { + or of possession of
marijuana by consumption + } { - with prejudice - } .
(4) { - No - } { + A + } statement made by the defendant
about the offense with which the defendant is charged
{ - shall - } { + may not + } be offered or received in
evidence in any criminal or civil action or proceeding arising
out of the same conduct { - which - } { + that + } is the
basis of the charge of possession of less than one ounce of
marijuana { + or of possession of marijuana by consumption + },
if the statement was made during the course of the diagnostic
assessment or the rehabilitation program and to a person employed
by the program.
SECTION 10. ORS 135.917 is amended to read:
135.917. (1) Courts having jurisdiction over the offense of
possession of less than one ounce of marijuana { + or of
possession of marijuana by consumption + } shall designate
agencies or organizations to perform the diagnostic assessment
and treatment required under possession of marijuana diversion
agreements described in ORS 135.907. The designated agencies or
organizations must meet the standards set by the Department of
Human Services to perform the diagnostic assessment and treatment
of drug dependency and must be certified by the Department of
Human Services. Wherever possible, a court shall designate
agencies or organizations to perform the diagnostic assessment
that are separate from those that may be designated to carry out
a program of treatment for drug dependency.
(2) Monitoring of a defendant's progress under a diversion
agreement shall be the responsibility of the diagnostic
assessment agency or organization. It shall make a report to the
court stating the defendant's successful completion or failure to
complete all or any part of the treatment program specified by
the diagnostic assessment. The form of the report shall be
determined by agreement between the court and the diagnostic
assessment agency or organization. The court shall make the
report of the diagnostic assessment agency or organization that
is required by this subsection a part of the record of the case.
SECTION 11. ORS 135.919 is amended to read:
135.919. (1) At any time before the court dismisses with
prejudice the charge of possession of less than one ounce of
marijuana { + or of possession of marijuana by consumption + },
the court on its own motion or on the motion of the district
attorney may issue an order requiring the defendant to appear and
show cause why the court should not terminate the diversion
agreement. The order to show cause shall state the reasons for
the proposed termination and shall set an appearance date.
(2) The order to show cause shall be served on the defendant
and on the defendant's attorney, if any. Service may be made by
first class mail, postage paid, addressed to the defendant at the
mailing address shown on the diversion petition and agreement or
at any other address that the defendant provides in writing to
the court.
(3) The court shall terminate the diversion agreement and
continue the offense proceeding if:
(a) At the hearing on the order to show cause, the court finds
by a preponderance of the evidence that any of the reasons for
termination described in this section exist; or
(b) The defendant fails to appear at the hearing on the order
to show cause.
(4) If the court terminates the diversion agreement and
continues the offense proceeding, the court:
(a) On the defendant's motion and for good cause shown, may
reinstate the diversion agreement at any time before conviction,
acquittal or dismissal with prejudice.
(b) If the defendant is convicted, may take into account at
time of sentencing any partial fulfillment by the defendant of
the terms of the diversion agreement.
(5) The court shall terminate a diversion agreement under this
subsection for any of the following reasons:
(a) If the defendant has failed to fulfill the terms of the
diversion agreement.
(b) If the defendant did not qualify for the diversion
agreement.
SECTION 12. ORS 105.555 is amended to read:
105.555. (1) The following are declared to be nuisances and
shall be enjoined and abated as provided in ORS 105.550 to
105.600:
(a) Any place that, as a regular course of business, is used
for the purpose of prostitution and any place where acts of
prostitution occur;
(b) Any place which is used and maintained for profit and for
the purpose of gambling or a lottery, as defined in ORS 167.117,
by any person, partnership or corporation organized for profit
and wherein take place any of the acts or wherein are kept,
stored or located any of the games, devices or things which are
forbidden by or made punishable by ORS 167.108 to 167.164; and
(c) Any place where activity involving the unauthorized
delivery, manufacture or possession of a controlled substance, as
defined in ORS 475.005, occurs or any place wherein are kept,
stored or located any of the devices, equipment, things or
substances used for unauthorized delivery, manufacture or
possession of a controlled substance. As used in this subsection
' devices, equipment and things' does not include hypodermic
syringes or needles. This subsection { - shall - } { +
does + } not apply to acts { - which - } { + that + }
constitute violations under ORS 475.992 (2)(b)
{ - and - } { + , + } (4)(f) { + or (5) + }.
(2) Nothing in ORS 105.550 to 105.600, 166.715 and 167.158
applies to property to the extent that the devices, equipment,
things or substances that are used for delivery, manufacture or
possession of a controlled substance are kept, stored or located
in or on the property for the purpose of lawful sale or use of
these items.
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