74th OREGON LEGISLATIVE ASSEMBLY--2007 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 3255
House Bill 3299
Sponsored by Representative SHIELDS (at the request of Lee
Berger)
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.
Modifies definitions related to use of medical marijuana.
Establishes penalties for failure to possess registry
identification card when transporting medical marijuana or
medical marijuana plants and for failing to post marijuana grow
site registration card at medical marijuana grow site. Punishes
by maximum 30 days' imprisonment, $1,250 fine, or both.
Authorizes certain persons under control of court to use or
assist in use of medical marijuana if qualified to do so.
Restricts basis for seizing medical marijuana or medical
marijuana plants.
Clarifies availability of choice of evils defense. Imposes
penalties on law enforcement agency for willful violation of
Act. Requires suppression of evidence seized as result of willful
violation.
Authorizes person who is enrolled in medical marijuana program
in another state to participate in Oregon Medical Marijuana
Program under certain circumstances.
Requires Department of Human Services to conduct scientific
research about medical marijuana.
A BILL FOR AN ACT
Relating to medical marijuana; creating new provisions; and
amending ORS 475.302, 475.304, 475.306, 475.309, 475.312,
475.319, 475.324 and 475.331.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 475.302 is amended to read:
475.302. As used in ORS 475.300 to 475.346:
(1) 'Attending physician' means a physician licensed under ORS
chapter 677 who has primary responsibility for the care and
treatment of a person diagnosed with a debilitating medical
condition.
(2) 'Debilitating medical condition' means:
(a) Cancer, glaucoma, positive status for human
immunodeficiency virus or acquired immune deficiency syndrome, or
treatment for these conditions;
(b) A medical condition or treatment for a medical condition
that produces, for a specific patient, one or more of the
following:
(A) Cachexia;
(B) Severe pain;
(C) Severe nausea;
(D) Seizures, including but not limited to seizures caused by
epilepsy; or
(E) Persistent muscle spasms, including but not limited to
spasms caused by multiple sclerosis; or
(c) Any other medical condition or treatment for a medical
condition adopted by the department by rule or approved by the
department pursuant to a petition submitted pursuant to ORS
475.334.
(3) 'Delivery' has the meaning given that term in ORS 475.005.
'Delivery' does not include transfer of marijuana by a registry
identification cardholder to another registry identification
cardholder if no consideration is paid for the transfer.
(4) 'Department' means the Department of Human Services.
(5) 'Designated primary caregiver' means an individual 18 years
of age or older who has significant responsibility for managing
the well-being of a person who has been diagnosed with a
debilitating medical condition and who is designated as such on
that person's application for a registry identification card or
in other written notification to the department. 'Designated
primary caregiver' does not include the person's attending
physician. { + Providing medical marijuana constitutes
significant responsibility for managing the well-being of a
person who has been diagnosed with a debilitating medical
condition. + }
(6) 'Marijuana' has the meaning given that term in ORS 475.005.
(7) 'Marijuana grow site' means a location where marijuana is
produced for use by a registry identification cardholder and that
is registered under the provisions of ORS 475.304.
(8) 'Medical use of marijuana' means the production,
possession, delivery, or administration of marijuana, or
paraphernalia used to administer marijuana, as necessary for the
exclusive benefit of a person to mitigate the symptoms or effects
of the person's debilitating medical condition.
(9) 'Production' has the meaning given that term in ORS
475.005.
(10) 'Registry identification card' means a document issued by
the department that identifies a person authorized to engage in
the medical use of marijuana and the person's designated primary
caregiver, if any.
(11) 'Usable marijuana' means the dried leaves and flowers of
the plant Cannabis family Moraceae, and any mixture or
preparation thereof, that are appropriate for medical use as
allowed in ORS 475.300 to 475.346. 'Usable marijuana' does not
include the seeds, stalks and roots of the plant { + or
harvested marijuana plants that are not dried + }.
(12) 'Written documentation' means a statement signed by the
attending physician of a person diagnosed with a debilitating
medical condition or copies of the person's relevant medical
records.
SECTION 2. ORS 475.304 is amended to read:
475.304. (1) The Department of Human Services shall establish
by rule a marijuana grow site registration system to authorize
production of marijuana by a registry identification cardholder,
a designated primary caregiver who grows marijuana for the
cardholder or a person who is responsible for a marijuana grow
site. The marijuana grow site registration system adopted must
require a registry identification cardholder to submit an
application to the department that includes:
(a) The name of the person responsible for the marijuana grow
site;
(b) The address of the marijuana grow site;
(c) The registry identification card number of the registry
cardholder for whom the marijuana is being produced; and
(d) Any other information the department considers necessary.
(2) The department shall issue a marijuana grow site
registration card to a registry identification cardholder who has
met the requirements of subsection (1) of this section.
(3) A person who has been issued a marijuana grow site
registration card under this section must display the
registration card at the marijuana grow site at all times when
marijuana is being produced.
(4) { + (a) + } A marijuana grow site registration card must be
obtained and posted for each registry identification cardholder
for whom marijuana is being produced at a marijuana grow site.
{ + (b) Failure to post a marijuana grow site registration
card is a Class C misdemeanor.
(c) Failure to post a marijuana grow site registration card is
not a basis for seizing medical marijuana or medical marijuana
plants. + }
(5) All usable marijuana, plants, seedlings and seeds
associated with the production of marijuana for a registry
identification cardholder by a person responsible for a marijuana
grow site are the property of the registry identification
cardholder and must be provided to the registry identification
cardholder upon request.
(6)(a) The department shall restrict a marijuana grow site
registration card issued to a registry identification cardholder
who has been convicted of violating ORS 475.840 (1)(a) or (b) to
prohibit for a period of five years from the date of conviction
the production of marijuana otherwise authorized by this section
at a location where the registry identification cardholder is
present.
(b) A registry identification cardholder who has been convicted
of violating ORS 475.840 (1)(a) or (b) may not be issued a
marijuana grow site registration card within five years of the
date of the conviction for violating ORS 475.840 (1)(a) or (b) if
the conviction was for a first offense to prohibit for a period
of five years from the date of conviction the production of
marijuana otherwise authorized by this section at a location
where the registry identification cardholder is present.
(c) A person other than a registry identification cardholder
who has been convicted of violating ORS 475.840 (1)(a) or (b) may
not produce marijuana for a registry identification cardholder
within five years of the date of the conviction for violating ORS
475.840 (1)(a) or (b) if the conviction was for a first offense.
(d) A person convicted more than once of violating ORS 475.840
(1)(a) or (b) may not be issued a marijuana grow site
registration card or produce marijuana for a registry
identification cardholder.
(7) A registry identification cardholder or the designated
primary caregiver of the cardholder may reimburse the person
responsible for a marijuana grow site for the costs of supplies
and utilities associated with the production of marijuana for the
registry identification cardholder. No other costs associated
with the production of marijuana for the registry identification
cardholder, including the cost of labor, may be reimbursed.
SECTION 3. ORS 475.306 is amended to read:
475.306. (1) A person who possesses a registry identification
card issued pursuant to ORS 475.309 may engage in, and a
designated primary caregiver of such a person may assist in, the
medical use of marijuana only as justified to mitigate the
symptoms or effects of the person's debilitating medical
condition.
(2) { + (a) + } A person who is a registry identification
cardholder must possess the registry identification card when
using { - or transporting - } marijuana in a location other
than the residence of the cardholder { + or transporting medical
marijuana or medical marijuana plants + }.
{ + (b) Failure to possess a registry identification card
while transporting medical marijuana or medical marijuana plants
is a Class C misdemeanor.
(c) Failure to possess a registry identification card while
transporting medical marijuana or medical marijuana plants is not
a basis for seizing medical marijuana or medical marijuana
plants. + }
(3) The Department of Human Services shall define by rule when
a marijuana plant is mature and when it is immature. The rule
shall provide that a plant that has no flowers { - and that is
less than 12 inches in height and less than 12 inches in
diameter - } is a seedling or a start and is not a mature plant.
SECTION 4. ORS 475.309 is amended to read:
475.309. (1) Except as provided in ORS 475.316, 475.320 and
475.342, a person engaged in or assisting in the medical use of
marijuana is excepted from the criminal laws of the state for
possession, delivery or production of marijuana, aiding and
abetting another in the possession, delivery or production of
marijuana or any other criminal offense in which possession,
delivery or production of marijuana is an element if the
following conditions have been satisfied:
(a) The person holds a registry identification card issued
pursuant to this section, has applied for a registry
identification card pursuant to subsection (9) of this section,
is the designated primary caregiver of the cardholder or
applicant, or is the person responsible for a marijuana grow site
that is producing marijuana for the cardholder and is registered
under ORS 475.304; and
(b) The person who has a debilitating medical condition, the
person's primary caregiver and the person responsible for a
marijuana grow site that is producing marijuana for the
cardholder and is registered under ORS 475.304 are collectively
in possession of, delivering or producing marijuana for medical
use in amounts allowed under ORS 475.320.
(2) The Department of Human Services shall establish and
maintain a program for the issuance of registry identification
cards to persons who meet the requirements of this section.
Except as provided in subsection (3) of this section, the
department shall issue a registry identification card to any
person who pays a fee in the amount established by the department
and provides the following:
(a) Valid, written documentation from the person's attending
physician stating that the person has been diagnosed with a
debilitating medical condition and that the medical use of
marijuana may mitigate the symptoms or effects of the person's
debilitating medical condition;
(b) The name, address and date of birth of the person;
(c) The name, address and telephone number of the person's
attending physician;
(d) The name and address of the person's designated primary
caregiver, if the person has designated a primary caregiver at
the time of application; and
(e) A written statement that indicates whether the marijuana
used by the cardholder will be produced at a location where the
cardholder or designated primary caregiver is present or at
another location.
(3) The department shall issue a registry identification card
to a person who is under 18 years of age if the person submits
the materials required under subsection (2) of this section, and
the custodial parent or legal guardian with responsibility for
health care decisions for the person under 18 years of age signs
a written statement that:
(a) The attending physician of the person under 18 years of age
has explained to that person and to the custodial parent or legal
guardian with responsibility for health care decisions for the
person under 18 years of age the possible risks and benefits of
the medical use of marijuana;
(b) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
consents to the use of marijuana by the person under 18 years of
age for medical purposes;
(c) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
agrees to serve as the designated primary caregiver for the
person under 18 years of age; and
(d) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
agrees to control the acquisition of marijuana and the dosage and
frequency of use by the person under 18 years of age.
(4) A person applying for a registry identification card
pursuant to this section may submit the information required in
this section to a county health department for transmittal to the
Department of Human Services. A county health department that
receives the information pursuant to this subsection shall
transmit the information to the Department of Human Services
within five days of receipt of the information. Information
received by a county health department pursuant to this
subsection shall be confidential and not subject to disclosure,
except as required to transmit the information to the Department
of Human Services.
(5) The department shall verify the information contained in an
application submitted pursuant to this section and shall approve
or deny an application within thirty days of receipt of the
application.
(a) The department may deny an application only for the
following reasons:
(A) The applicant did not provide the information required
pursuant to this section to establish the applicant's
debilitating medical condition and to document the applicant's
consultation with an attending physician regarding the medical
use of marijuana in connection with such condition, as provided
in subsections (2) and (3) of this section; or
(B) The department determines that the information provided was
falsified.
(b) Denial of a registry identification card shall be
considered a final department action, subject to judicial review.
Only the person whose application has been denied, or, in the
case of a person under the age of 18 years of age whose
application has been denied, the person's parent or legal
guardian, shall have standing to contest the department's action.
(c) Any person whose application has been denied may not
reapply for six months from the date of the denial, unless so
authorized by the department or a court of competent
jurisdiction.
(6)(a) If the department has verified the information submitted
pursuant to subsections (2) and (3) of this section and none of
the reasons for denial listed in subsection (5)(a) of this
section is applicable, the department shall issue a serially
numbered registry identification card within five days of
verification of the information. The registry identification card
shall state:
(A) The cardholder's name, address and date of birth;
(B) The date of issuance and expiration date of the registry
identification card;
(C) The name and address of the person's designated primary
caregiver, if any;
(D) Whether the marijuana used by the cardholder will be
produced at a location where the cardholder or designated primary
caregiver is present or at another location; and
(E) Any other information that the department may specify by
rule.
(b) When the person to whom the department has issued a
registry identification card pursuant to this section has
specified a designated primary caregiver, the department shall
issue an identification card to the designated primary caregiver.
The primary caregiver's registry identification card shall
contain the information provided in paragraph (a) of this
subsection.
(7)(a) A person who possesses a registry identification card
shall:
(A) Notify the department of any change in the person's name,
address, attending physician or designated primary caregiver; and
(B) Annually submit to the department:
(i) Updated written documentation of the person's debilitating
medical condition; and
(ii) The name of the person's designated primary caregiver if a
primary caregiver has been designated for the upcoming year.
(b) If a person who possesses a registry identification card
fails to comply with this subsection, the card shall be deemed
expired. If a registry identification card expires, the
identification card of any designated primary caregiver of the
cardholder shall also expire.
(8) A person who possesses a registry identification card
pursuant to this section and who has been diagnosed by the
person's attending physician as no longer having a debilitating
medical condition shall return the registry identification card
to the department within seven calendar days of notification of
the diagnosis. Any designated primary caregiver shall return the
caregiver's identification card within the same period of time.
(9) A person who has applied for a registry identification card
pursuant to this section but whose application has not yet been
approved or denied, and who is contacted by any law enforcement
officer in connection with the person's administration,
possession, delivery or production of marijuana for medical use
may provide to the law enforcement officer a copy of the written
documentation submitted to the department pursuant to subsections
(2) or (3) of this section and proof of the date of mailing or
other transmission of the documentation to the department. This
documentation shall have the same legal effect as a registry
identification card until such time as the person receives
notification that the application has been approved or denied.
{ + (10) Except as provided in ORS 475.316, 475.320 and
475.342, a person who is on pretrial release as provided by ORS
chapter 135, in diversion as provided by ORS chapter 813, under
post-prison supervision as provided by ORS chapter 144 or on
probation as provided by ORS chapter 137 and who is engaged in or
assisting in the medical use of marijuana is excepted from the
criminal laws of the state for possession, delivery or production
of marijuana, aiding and abetting another in the possession,
delivery or production of marijuana or any other criminal offense
in which possession, delivery or production of marijuana is an
element if the following conditions have been satisfied:
(a) The person holds a registry identification card issued
pursuant to this section, has applied for a registry
identification card pursuant to subsection (9) of this section,
is the designated primary caregiver of the cardholder or
applicant or is the person responsible for a marijuana grow site
that is producing marijuana for the cardholder and is registered
under ORS 475.304; and
(b) The person who has a debilitating medical condition, the
person's primary caregiver and the person responsible for a
marijuana grow site that is producing marijuana for the
cardholder and is registered under ORS 475.304 are collectively
in possession of, delivering or producing marijuana for medical
use in amounts allowed under ORS 475.320. + }
SECTION 5. ORS 475.312 is amended to read:
475.312. (1) If a person who possesses a registry
identification card issued pursuant to ORS 475.309 chooses to
have a designated primary caregiver, the person must designate
the primary caregiver by including the primary caregiver's name
and address:
(a) On the person's application for a registry identification
card;
(b) In the annual updated information required under ORS
475.309; or
(c) In a written, signed statement submitted to the Department
of Human Services.
(2) A person described in this section may have only one
designated primary caregiver at any given time.
{ + (3) Delivering usable medical marijuana or medical
marijuana plants to a registry identification cardholder does not
make the person delivering the marijuana or marijuana plants to
the cardholder a designated primary caregiver. + }
SECTION 6. ORS 475.319 is amended to read:
475.319. (1) Except as provided in ORS 475.316 and 475.342, it
is an affirmative defense to a criminal charge of possession or
production of marijuana, or any other criminal offense in which
possession or production of marijuana is an element, that the
person charged with the offense is a person who:
(a) Has been diagnosed with a debilitating medical condition
within 12 months prior to arrest and been advised by the person's
attending physician that the medical use of marijuana may
mitigate the symptoms or effects of that debilitating medical
condition;
(b) Is engaged in the medical use of marijuana; and
(c) Possesses or produces marijuana only in amounts permitted
under ORS 475.320.
(2) It is not necessary for a person asserting an affirmative
defense pursuant to this section to have received a registry
identification card in order to assert the affirmative defense
established in this section.
(3) No person engaged in the medical use of marijuana who
claims that marijuana provides medically necessary benefits and
who is charged with a crime pertaining to such use of marijuana
shall be precluded from presenting a defense of choice of evils,
as set forth in ORS 161.200, or from presenting evidence
supporting the necessity of marijuana for treatment of a specific
disease or medical condition, provided that the amount of
marijuana at issue is no greater than permitted under ORS 475.320
and the patient has taken a substantial step to comply with the
provisions of ORS 475.300 to 475.346. { + The defense available
to a person meeting the criteria established in this subsection
is available to any person meeting those criteria even if the
person has not been issued a registry identification card. + }
(4) Any defendant proposing to use the affirmative defense
provided for by this section in a criminal action shall, not less
than five days before the trial of the cause, file and serve upon
the district attorney a written notice of the intention to offer
such a defense that specifically states the reasons why the
defendant is entitled to assert and the factual basis for such
affirmative defense. If the defendant fails to file and serve
such notice, the defendant is not permitted to assert the
affirmative defense at the trial of the cause unless the court
for good cause orders otherwise.
SECTION 7. ORS 475.324 is amended to read:
475.324. { + (1) + } A law enforcement officer who determines
that a registry identification cardholder is in possession of
amounts of usable marijuana or numbers of marijuana plants in
excess of the amount or number authorized by ORS 475.320 may
confiscate only any usable marijuana or plants that are in excess
of the amount or number authorized.
{ + (2) Willful violation of this section by a member of a
law enforcement agency shall subject the agency to damages for
the violation and shall result in suppression of any evidence
present that was obtained as a result of the violation. + }
SECTION 8. ORS 475.331 is amended to read:
475.331. (1)(a) The Department of Human Services shall create
and maintain a list of the persons to whom the department has
issued registry identification cards, the names of any designated
primary caregivers and the addresses of authorized marijuana grow
sites. Except as provided in subsection (2) of this section, the
list shall be confidential and not subject to public disclosure.
{ + Failure to attempt to obtain verification under this
subsection prior to a request for a search warrant shall result
in suppression of any evidence obtained as a result of the
search. + }
(b) The department shall develop a system by which authorized
employees of state and local law enforcement agencies may verify
at all times that a person is a lawful possessor of a registry
identification card or the designated primary caregiver of a
lawful possessor of a registry identification card or that a
location is an authorized marijuana grow site.
(2) Names and other identifying information from the list
established pursuant to subsection (1) of this section may be
released to:
(a) Authorized employees of the department as necessary to
perform official duties of the department; and
(b) Authorized employees of state or local law enforcement
agencies, only as necessary to verify that a person is a lawful
possessor of a registry identification card or the designated
primary caregiver of a lawful possessor of a registry
identification card or that a location is an authorized marijuana
grow site. Prior to being provided identifying information from
the list, authorized employees of state or local law enforcement
agencies shall provide to the department adequate identification,
such as a badge number or similar authentication of authority.
(3) { + (a) + } Authorized employees of state or local law
enforcement agencies that obtain identifying information from the
list as authorized under this section may not release or use the
information for any purpose other than verification that a person
is a lawful possessor of a registry identification card or the
designated primary caregiver of a lawful possessor of a registry
identification card or that a location is an authorized marijuana
grow site.
{ + (b) Willful violation of this section shall result in the
dismissal of any charges initiated as a result of the violation
and shall subject the law enforcement agency employing the
officer who committed the violation to liquidated damages of
$10,000.
SECTION 9. Sections 10 and 11 of this 2007 Act are added to and
made a part of ORS 475.300 to 475.346.
SECTION 10. Any person who is enrolled in the medical marijuana
program of another state and presents documentation of enrollment
in the program shall be provided the same rights and privileges
as a registry identification cardholder of the Oregon Medical
Marijuana Program. + }
SECTION 11. { + (1) The Department of Human Services shall
conduct scientific research into the efficacy and safety of
medical marijuana used by registry identification cardholders of
the Oregon Medical Marijuana Program. The purpose of the research
is to assist physicians and patients in evaluating the risks and
benefits of using medical marijuana.
(2) The department shall report the results of the research
required under subsection (1) of this section to the Advisory
Committee on Medical Marijuana established under ORS 475.303. + }
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