75th OREGON LEGISLATIVE ASSEMBLY--2009 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 3150
Senate Bill 956
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon
Association Chiefs of Police, Oregon State Sheriffs'
Association, Oregon District Attorneys Association, Oregon
Narcotics Enforcement Association and Oregon Partnership)
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 marijuana for purposes of
certain criminal laws.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to marijuana; amending ORS 167.222, 475.005, 475.302,
475.304, 475.306, 475.320, 475.323, 475.324, 475.860 and
475.864; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 475.005 is amended to read:
475.005. As used in ORS 475.005 to 475.285 and 475.840 to
475.980, unless the context requires otherwise:
(1) 'Abuse' means the repetitive excessive use of a drug short
of dependence, without legal or medical supervision, which may
have a detrimental effect on the individual or society.
(2) 'Administer' means the direct application of a controlled
substance, whether by injection, inhalation, ingestion or any
other means, to the body of a patient or research subject by:
(a) A practitioner or an authorized agent thereof; or
(b) The patient or research subject at the direction of the
practitioner.
(3) 'Administration' means the Drug Enforcement Administration
of the United States Department of Justice, or its successor
agency.
(4) 'Agent' means an authorized person who acts on behalf of or
at the direction of a manufacturer, distributor or dispenser. It
does not include a common or contract carrier, public
warehouseman or employee of the carrier or warehouseman.
(5) 'Board' means the State Board of Pharmacy.
(6) 'Controlled substance' means a drug or its immediate
precursor classified in Schedules I through V under the federal
Controlled Substances Act, 21 U.S.C. 811 to 812, as modified
under ORS 475.035. The use of the term 'precursor' in this
subsection does not control and is not controlled by the use of
the term ' precursor' in ORS 475.840 to 475.980.
(7) 'Counterfeit substance' means a controlled substance or its
container or labeling, which, without authorization, bears the
trademark, trade name, or other identifying mark, imprint, number
or device, or any likeness thereof, of a manufacturer,
distributor or dispenser other than the person who in fact
manufactured, delivered or dispensed the substance.
(8) 'Deliver' or 'delivery' means the actual, constructive or
attempted transfer, other than by administering or dispensing,
from one person to another of a controlled substance, whether or
not there is an agency relationship.
(9) 'Device' means instruments, apparatus or contrivances,
including their components, parts or accessories, intended:
(a) For use in the diagnosis, cure, mitigation, treatment or
prevention of disease in humans or animals; or
(b) To affect the structure of any function of the body of
humans or animals.
(10) 'Dispense' means to deliver a controlled substance to an
ultimate user or research subject by or pursuant to the lawful
order of a practitioner, and includes the prescribing,
administering, packaging, labeling or compounding necessary to
prepare the substance for that delivery.
(11) 'Dispenser' means a practitioner who dispenses.
(12) 'Distributor' means a person who delivers.
(13) 'Drug' means:
(a) Substances recognized as drugs in the official United
States Pharmacopoeia, official Homeopathic Pharmacopoeia of the
United States or official National Formulary, or any supplement
to any of them;
(b) Substances intended for use in the diagnosis, cure,
mitigation, treatment or prevention of disease in humans or
animals;
(c) Substances (other than food) intended to affect the
structure or any function of the body of humans or animals; and
(d) Substances intended for use as a component of any article
specified in paragraph (a), (b) or (c) of this subsection;
however, the term does not include devices or their components,
parts or accessories.
(14) 'Electronically transmitted' or 'electronic transmission'
means a communication sent or received through technological
apparatuses, including computer terminals or other equipment or
mechanisms linked by telephone or microwave relays, or any
similar apparatus having electrical, digital, magnetic, wireless,
optical, electromagnetic or similar capabilities.
{ + (15) 'Hashish' means:
(a) Resin that contains tetrahydrocannabinol and is extracted
from any part of the Cannabis plant; or
(b) Any compound, manufacture, derivative, mixture or
preparation made from the resin described in paragraph (a) of
this subsection. + }
{ - (15) - } { + (16) + } 'Manufacture' means the
production, preparation, propagation, compounding, conversion or
processing of a controlled substance, either directly or
indirectly by extraction from substances of natural origin, or
independently by means of chemical synthesis, or by a combination
of extraction and chemical synthesis, and includes any packaging
or repackaging of the substance or labeling or relabeling of its
container, except that this term does not include the preparation
or compounding of a controlled substance:
(a) By a practitioner as an incident to administering or
dispensing of a controlled substance in the course of
professional practice; or
(b) By a practitioner, or by an authorized agent under the
practitioner's supervision, for the purpose of, or as an incident
to, research, teaching or chemical analysis and not for sale.
{ - (16) - } { + (17) + } 'Marijuana' means all parts of
the { - plant - } Cannabis { + plant + } { - family
Moraceae - } , whether growing or not { - ; the resin extracted
from any part of the plant; - } and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant { - or
its resin. It - } { + . 'Marijuana' + } does not include the
mature stalks of the plant, fiber produced from the stalks, oil
or cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture, or preparation of the
mature stalks { - (except the resin extracted therefrom) - } ,
fiber, oil { - , - } or cake, { - or - } the sterilized seed
of the plant { - which - } { + that + } is incapable of
germination { + or hashish + }.
{ - (17) - } { + (18) + } 'Person' includes a government
subdivision or agency, business trust, estate, trust or any other
legal entity.
{ - (18) - } { + (19) + } 'Practitioner' means physician,
dentist, veterinarian, scientific investigator, certified nurse
practitioner, physician assistant or other person licensed,
registered or otherwise permitted by law to dispense, conduct
research with respect to or to administer a controlled substance
in the course of professional practice or research in this state
but does not include a pharmacist or a pharmacy.
{ - (19) - } { + (20) + } 'Prescription' means a written,
oral or electronically transmitted direction, given by a
practitioner for the preparation and use of a drug. When the
context requires, ' prescription' also means the drug prepared
under such written, oral or electronically transmitted direction.
Any label affixed to a drug prepared under written, oral or
electronically transmitted direction shall prominently display a
warning that the removal thereof is prohibited by law.
{ - (20) - } { + (21) + } 'Production' includes the
manufacture, planting, cultivation, growing or harvesting of a
controlled substance.
{ - (21) - } { + (22) + } 'Research' means an activity
conducted by the person registered with the federal Drug
Enforcement Administration pursuant to a protocol approved by the
United States Food and Drug Administration.
{ - (22) - } { + (23) + } 'Ultimate user' means a person
who lawfully possesses a controlled substance for the use of the
person or for the use of a member of the household of the person
or for administering to an animal owned by the person or by a
member of the household of the person.
SECTION 2. 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, agitation due to Alzheimer's disease,
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.
(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) 'Mature marijuana plant' means a marijuana plant that
is not a seedling or start. 'Mature marijuana plant' includes
plants that have been harvested and are in the process of
drying. + }
{ - (8) - } { + (9) + } '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) - } { + (10) + } 'Production' has the meaning given
that term in ORS 475.005.
{ - (10) - } { + (11) + } '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. - }
{ + (12) 'Seedling or start' means a marijuana plant that has
no flowers and that is less than 12 inches in height and less
than 12 inches in diameter. + }
{ - (12) - } { + (13) + } '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 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 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.
{ - (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 475.320 is amended to read:
475.320. (1)(a) A registry identification cardholder or the
designated primary caregiver of the cardholder may possess up to
six mature marijuana plants and 24 ounces of { - usable
marijuana - } { + the dried leaves, stems and flowers of the
Cannabis plant + }.
(b) Notwithstanding paragraph (a) of this subsection, if a
registry identification cardholder has been convicted of a Class
A or Class B felony under ORS 475.840 to 475.920 for the
manufacture or delivery of a controlled substance in Schedule I
or Schedule II, the registry identification cardholder or the
designated primary caregiver of the cardholder may possess one
ounce of
{ - usable marijuana - } { + the dried leaves, stems and
flowers of the Cannabis plant + } at any given time for a period
of five years from the date of the conviction.
(2) A person authorized under ORS 475.304 to produce marijuana
at a marijuana grow site:
(a) May produce marijuana for and provide marijuana to a
registry identification cardholder or that person's designated
primary caregiver as authorized under this section.
(b) May possess up to six mature { + marijuana + } plants and
up to 24 ounces of { - usable marijuana - } { + the dried
leaves, stems and flowers of the Cannabis plant + } for each
cardholder or caregiver for whom marijuana is being produced.
(c) May produce marijuana for no more than four registry
identification cardholders or designated primary caregivers
concurrently.
(d) Must obtain and display a marijuana grow site registration
card issued under ORS 475.304 for each registry identification
cardholder or designated primary caregiver for whom marijuana is
being produced.
(e) Must provide all marijuana produced for a registry
identification cardholder or designated primary caregiver to the
cardholder or caregiver at the time the person responsible for a
marijuana grow site ceases producing marijuana for the cardholder
or caregiver.
(f) Must return the marijuana grow site registration card to
the registry identification cardholder to whom the card was
issued when requested to do so by the cardholder or when the
person responsible for a marijuana grow site ceases producing
marijuana for the cardholder or caregiver.
(3) Except as provided in subsections (1) and (2) of this
section, a registry identification cardholder, the designated
primary caregiver of the cardholder and the person responsible
for a marijuana grow site producing marijuana for the registry
identification cardholder may possess a combined total of up to
six mature { + marijuana + } plants and 24 ounces of
{ - usable marijuana - } { + the dried leaves, stems and
flowers of the Cannabis plant + } for that registry
identification cardholder.
(4)(a) A registry identification cardholder { + , + }
{ - and - } the designated primary caregiver of the
cardholder { + and the person responsible for a marijuana grow
site + } may possess a combined total of up to 18 marijuana
seedlings or starts { - as defined by rule of the Department of
Human Services - } .
(b) A person responsible for a marijuana grow site may possess
up to 18 marijuana seedlings or starts { - as defined by rule
of the department - } for each registry identification
cardholder for whom the person responsible for the marijuana grow
site is producing marijuana.
SECTION 5. 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 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.
(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 conduct a criminal records check
under ORS 181.534 of any person whose name is submitted as a
person responsible for a marijuana grow site.
(b) A person convicted of a Class A or Class B felony under ORS
475.840 to 475.920 for the manufacture or delivery of a
controlled substance in Schedule I or Schedule II may not be
issued a marijuana grow site registration card or produce
marijuana for a registry identification cardholder for five years
from the date of conviction.
(c) A person convicted more than once of a Class A or Class B
felony under ORS 475.840 to 475.920 for the manufacture or
delivery of a controlled substance in Schedule I or Schedule II
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 6. ORS 475.323 is amended to read:
475.323. (1) Possession of a registry identification card or
designated primary caregiver identification card pursuant to ORS
475.309 does not alone constitute probable cause to search the
person or property of the cardholder or otherwise subject the
person or property of the cardholder to inspection by any
governmental agency.
(2) 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.
SECTION 7. ORS 475.324 is amended to read:
475.324. 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 { + marijuana + } plants that are
in excess of the amount or number authorized.
SECTION 8. ORS 167.222 is amended to read:
167.222. (1) A person commits the offense of frequenting a
place where controlled substances are used if the person keeps,
maintains, frequents, or remains at a place, while knowingly
permitting persons to use controlled substances in such place or
to keep or sell them in violation of ORS 475.005 to 475.285 and
475.840 to 475.980.
(2) Frequenting a place where controlled substances are used is
a Class A misdemeanor.
(3) Notwithstanding subsection (2) of this section, if the
conviction is for knowingly maintaining, frequenting or remaining
at a place where less than one avoirdupois ounce of the dried
leaves, stems, and flowers of the { - plant - } Cannabis { +
plant + } { - family Moraceae - } is found at the time of the
offense under this section, frequenting a place where controlled
substances are used is a Class D violation.
(4) As used in this section, 'frequents' means repeatedly or
habitually visits, goes to or resorts to.
SECTION 9. ORS 475.860 is amended to read:
475.860. (1) It is unlawful for any person to deliver
marijuana.
(2) Unlawful delivery of marijuana is a Class B felony if the
delivery is for consideration.
(3) Notwithstanding subsection (2) of this section, unlawful
delivery of marijuana is a:
(a) Class A misdemeanor, if the delivery is for no
consideration and consists of less than one avoirdupois ounce of
the dried leaves, stems and flowers of the { - plant - }
Cannabis { + plant + }
{ - family Moraceae - } ; or
(b) Violation, if the delivery is for no consideration and
consists of less than five grams of the dried leaves, stems and
flowers of the { - plant - } Cannabis { + plant + }
{ - family Moraceae - } . A violation under this paragraph is
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.
(4) Notwithstanding subsections (2) and (3) of this section,
unlawful delivery of marijuana is a:
(a) Class A felony, if the delivery is to a person under 18
years of age and the defendant is at least 18 years of age and is
at least three years older than the person to whom the marijuana
is delivered; or
(b) Class C misdemeanor, if the delivery:
(A) Is for no consideration;
(B) Consists of less than five grams of the dried leaves, stems
and flowers of the { - plant - } Cannabis { + plant + }
{ - family Moraceae - } ;
(C) Takes place in a public place, as defined in ORS 161.015,
that is within 1,000 feet of the real property comprising a
public or private elementary, secondary or career school attended
primarily by minors; and
(D) Is to a person who is 18 years of age or older.
SECTION 10. ORS 475.864 is amended to read:
475.864. (1) It is unlawful for any person knowingly or
intentionally to possess marijuana.
(2) Unlawful possession of marijuana is a Class B felony.
(3) Notwithstanding subsection (2) of this section, unlawful
possession of marijuana is a violation if the amount possessed is
less than one avoirdupois ounce of the dried leaves, stems and
flowers of the { - plant - } Cannabis { + plant + }
{ - family Moraceae - } . A violation under this subsection is
punishable by a fine of not less than $500 and not more than
$1,000. Fines collected under this subsection shall be forwarded
to the Department of Revenue for deposit in the Criminal Fine and
Assessment Account established under ORS 137.300.
(4) Notwithstanding subsections (2) and (3) of this section,
unlawful possession of marijuana is a Class C misdemeanor if the
amount possessed is less than one avoirdupois ounce of the dried
leaves, stems and flowers of the { - plant - } Cannabis { +
plant + } { - family Moraceae - } and the possession takes
place in a public place, as defined in ORS 161.015, that is
within 1,000 feet of the real property comprising a public or
private elementary, secondary or career school attended primarily
by minors.
SECTION 11. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
----------