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 3149
Senate Bill 959
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 provisions of Oregon Medical Marijuana Act.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to compliance with the Oregon Medical Marijuana Act;
creating new provisions; amending ORS 475.304, 475.306,
475.309, 475.316, 475.320, 475.323 and 475.324; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 475.304 is amended to read:
475.304. { - (1) - } { + (1)(a) + } 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) - } { + (A) + } The name of the person responsible
for the marijuana grow site;
{ - (b) - } { + (B) + } The address of the marijuana grow
site;
{ - (c) - } { + (C) + } The registry identification card
number of the registry cardholder for whom the marijuana is being
produced; and
{ - (d) - } { + (D) + } Any other information the
department considers necessary.
{ + (b) A marijuana grow site may not be operated at an
address that is within 1,000 feet of a school in violation of ORS
475.858. + }
(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) A person responsible for a marijuana grow site must
possess a true copy of the person's marijuana grow site
registration card if the person possesses marijuana at a location
other than the grow site, including the residence of the registry
identification cardholder or designated primary caregiver, if the
grow site is not located at the residence. + }
{ - (5) - } { + (6) + } 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) - } { + (7)(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 { + in any jurisdiction + } { - under ORS 475.840 to
475.920 - } for the { + possession, + } manufacture or
delivery of a controlled substance in Schedule I or Schedule
II { + + }may not be issued a marijuana grow site registration
card { + , be a designated primary caregiver + } 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 { + in any jurisdiction + } { - under ORS
475.840 to 475.920 - } { + + }for the { + possession, + }
manufacture or delivery of a controlled substance in Schedule I
or Schedule II may not be issued a marijuana grow site
registration card { + , be a designated primary caregiver + } 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 2. { + For the purposes of ORS 475.300 to 475.346, the
district attorney of each county shall provide the Department of
Human Services with identifying information for each person
convicted of the possession, manufacture or delivery of a
controlled substance in Schedule I or Schedule II. + }
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 - } { + possessing + } marijuana in a
location other than the residence of the cardholder { + or the
marijuana grow site + }.
{ + (b) A person who is a designated primary caregiver must
possess a designated primary caregiver identification card when
assisting in the use of or possessing marijuana in a location
other than the residence of the cardholder or the marijuana grow
site. + }
(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 { + only + }
for medical use { + and only + } 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)(a) 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.
(b) In addition to the authority granted to the department
under ORS 475.316 to deny an application, the department may deny
an application 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;
(B) The department determines that the information provided was
falsified; or
(C) The applicant has been prohibited by a court order from
obtaining a registry identification card.
(c) 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.
(d) 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)(b) 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.
(B) If applicable, notify the designated primary caregiver of
the cardholder and the person responsible for the marijuana grow
site that produces marijuana for the cardholder of any change in
status including, but not limited to:
(i) The assignment of another individual as the designated
primary caregiver of the cardholder;
(ii) The assignment of another individual as the person
responsible for a marijuana grow site producing marijuana for the
cardholder; or
(iii) The end of the eligibility of the cardholder to hold a
valid registry identification card.
(C) Annually submit to the department:
(i) Updated written documentation from the cardholder's
attending physician of the person's debilitating medical
condition and that the medical use of marijuana may mitigate the
symptoms or effects 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) 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 or whose attending physician has determined
that the medical use of marijuana is contraindicated for the
person's debilitating medical condition shall return the registry
identification card and any other associated Oregon Medical
Marijuana Program cards to the department within 30 calendar days
of notification of the diagnosis or notification of the
contraindication.
(b) If, due to circumstances beyond the control of the registry
identification cardholder, a cardholder is unable to obtain a
second medical opinion about the cardholder's continuing
eligibility to use medical marijuana before the 30-day period
specified in paragraph (a) of this subsection has expired, the
department may grant the cardholder additional time to obtain a
second opinion before requiring the cardholder to return the
registry identification card and any associated cards.
{ - (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 subsection (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) - } { + (9) + } A registry identification
cardholder has the primary responsibility of notifying the
primary caregiver and person responsible for the marijuana grow
site that produces marijuana for the cardholder of any change in
status of the cardholder. If the department is notified by the
cardholder that a primary caregiver or person responsible for a
marijuana grow site has changed, the department shall notify the
primary caregiver or the person responsible for the marijuana
grow site by mail at the address of record confirming the change
in status and informing the caregiver or person that their card
is no longer valid and must be returned to the department.
{ - (11) - } { + (10) + } The department shall revoke the
registry identification card of a cardholder if a court has
issued an order that prohibits the cardholder from participating
in the medical use of marijuana or otherwise participating in the
Oregon Medical Marijuana Program under ORS 475.300 to 475.346.
The cardholder shall return the registry identification card to
the department within seven calendar days of notification of the
revocation. If the cardholder is a patient, the patient shall
return the patient's card and all other associated Oregon Medical
Marijuana Program cards.
{ - (12) - } { + (11) + } The department and employees and
agents of the department acting within the course and scope of
their employment are immune from any civil liability that might
be incurred or imposed for the performance of or failure to
perform duties required by this section.
SECTION 5. ORS 475.316 is amended to read:
475.316. (1) No person authorized to possess, deliver or
produce marijuana for medical use pursuant to ORS 475.300 to
475.346 shall be excepted from the criminal laws of this state or
shall be deemed to have established an affirmative defense to
criminal charges of which possession, delivery or production of
marijuana is an element if the person, in connection with the
facts giving rise to such charges:
{ + (a) Fails to comply with the provisions of ORS 475.300 to
475.346; + }
{ - (a) - } { + (b) + } Drives under the influence of
marijuana as provided in ORS 813.010;
{ - (b) - } { + (c) + } Engages in the medical use of
marijuana in a public place as that term is defined in ORS
161.015, or in public view or in a correctional facility as
defined in ORS 162.135 (2) or youth correction facility as
defined in ORS 162.135 (6);
{ - (c) - } { + (d) + } Delivers marijuana to any
individual who the person knows is not in possession of a
registry identification card;
{ - (d) - } { + (e) + } Delivers marijuana for
consideration to any individual, even if the individual is in
possession of a registry identification card;
{ - (e) - } { + (f) + } Manufactures or produces marijuana
at a place other than a marijuana grow site authorized under ORS
475.304; { - or - }
{ - (f) - } { + (g) + } Manufactures or produces marijuana
at more than one address { - . - } { + ;
(h) Possesses a controlled substance in Schedule I, other than
marijuana;
(i) Possesses a controlled substance in Schedule II or III,
without a valid prescription; or
(j) Uses marijuana and is not a registry identification
cardholder. + }
(2) In addition to any other penalty allowed by law, a person
who the Department of Human Services finds has willfully violated
the provisions of ORS 475.300 to 475.346, or rules adopted under
ORS 475.300 to 475.346, may be precluded from obtaining or using
a registry identification card for the medical use of marijuana
for a period of up to six months, at the discretion of the
department.
SECTION 6. 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.
(b) Notwithstanding paragraph (a) of this subsection, if a
registry identification cardholder has been convicted of a
{ - Class A or Class B - } felony { + in any jurisdiction + }
{ - under ORS 475.840 to 475.920 - } for the { +
possession, + } 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 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 plants and up to 24 ounces of
usable marijuana 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 plants and 24 ounces of usable marijuana for that
registry identification cardholder.
(4)(a) A registry identification cardholder and the designated
primary caregiver of the cardholder 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 7. 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 { + or
pursuant to a civil forfeiture proceeding under ORS chapter
475A + }. 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 8. 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 - } { + the + } usable marijuana { - or - }
{ + and + } plants { - that are in excess of the amount or
number authorized - } .
SECTION 9. { + 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. + }
----------