Chapter 475

 

      Chapter 475

 

LAW REVIEW CITATIONS: 51 OLR 561 (1972); 69 OLR 171 (1990)

 

      475.005

 

NOTES OF DECISIONS

 

In general

 

      Although generally accepted scientific view is that marijuana is properly classified as Cannabis family Cannabaceae, legislative definition of marijuana as Cannabis family Moraceae is not sufficient to render statute ineffective. State v. Bailey, 41 Or App 375, 597 P2d 1312 (1979)

 

      Fact that experts may disagree as to what is “stalk” or “stem” of marijuana plant after plant has been cut up, or whether seeds are sterile and whether material is dry when weighed does not render this section void for vagueness. State v. Mellinger, 52 Or App 21, 627 P2d 897 (1981)

 

      Although controlled substance is defined by reference to federal act, 21 U.S.C. 811 to 812, statute does not adopt federal scheduling criteria, and Oregon has chosen not to exclude marijuana as Schedule I controlled substance, even though under [former] ORS 475.515 marijuana may be used for medicinal purposes. State v. Eells, 72 Or App 492, 696 P2d 564 (1985), Sup Ct review denied

 

      Under Oregon’s Controlled Substances Act, which is substantial adoption of Uniform Controlled Substances Act, but which did not adopt crime of possession of controlled substance with intent to transfer, attempted transfer is punishable as completed transfer. State v. Boyd, 92 Or App 51, 756 P2d 1276 (1988), Sup Ct review denied

 

      Delivery does not include acceptance of transfer. State v. Frederickson, 92 Or App 223, 757 P2d 1366 (1988)

 

      Where defendant was convicted for delivery of controlled substances, possession of quantity of methamphetamine and heroin consistent with trafficking in controlled substances and possession of items associated with drug trafficking, evidence existed that defendant had taken substantial step toward commission of that crime. State v. Aguilar, 96 Or App 506, 773 P2d 17 (1989), Sup Ct review denied

 

      Defendant’s possession of precursor chemicals, laboratory equipment, formulas and other materials necessary to produce methamphetamine constituted preparation and thus, manufacture under this section. State v. Brown, 109 Or App 636, 820 P2d 878 (1991), Sup Ct review denied

 

      Mere removal of individual portion from larger quantity of controlled substance does not constitute “packaging or repackaging,” and thus is not “manufacture” of controlled substance. State v. Tellez, 170 Or App 745, 14 P3d 78 (2000)

 

      Offer to sell controlled substance is substantial step toward commission of “delivery” by attempted transfer. State v. Pollock, 189 Or App 38, 73 P3d 297 (2003), aff’d on other grounds, 337 Or 618, 102 P3d 684 (2004)

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 474.010)

      51 OLR 561 (1972)

 

In general

      87 OLR 783 (2008)

 

      475.010

 

      See annotations under ORS 475.035.

 

      475.035

 

NOTES OF DECISIONS

 

Under former similar statute

 

      It was not intention of legislature that Drug Advisory Council also give public notice of hearing prior to determination that drug is dangerous. State v. Alexander, 6 Or App 526, 487 P2d 1151 (1971)

 

In general

 

      Board of Pharmacy was not prohibited from classifying precursor of ingredient as subject to control where factors other than being precursor warrant classification. State v. Kast, 120 Or App 74, 852 P2d 242 (1993)

 

      Power of Board of Pharmacy to identify controlled substances was sufficiently circumscribed to withstand challenge of unconstitutional delegation of legislative power. State v. Kast, 120 Or App 74, 852 P2d 242 (1993)

 

ATTY. GEN. OPINIONS

 

In general

 

      Effect of US Drug Enforcement Administration’s reclassifying substance before Oregon Controlled Substances Committee prepares schedules, (1978) Vol 39, p 376; Federal preemption of controlled substance classifications, (1980) Vol 40, p 253

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 475.010)

      51 OLR 561, 696-715 (1972)

 

      475.055

 

NOTES OF DECISIONS

 

      Under this section and [former] ORS 475.015, where Committee on Controlled Substances failed to promulgate new Oregon schedules for controlled substances by August 1, 1978, federal schedules remained in effect. State v. Bishop, 46 Or App 607, 612 P2d 744 (1980), Sup Ct review denied

 

      475.125

 

NOTES OF DECISIONS

 

      Definition of ultimate user includes lawful possession. State v. Venet, 103 Or App 363, 797 P2d 1055 (1990), Sup Ct review denied

 

LAW REVIEW CITATIONS: 27 WLR 327 (1991)

 

      475.185

 

ATTY. GEN. OPINIONS: Filling controlled substance prescriptions from out-of-state physicians, (1980) Vol 40, p 197

 

      475.235

 

NOTES OF DECISIONS

 

      Where information charged defendant with possession of marijuana, but did not specify amount, it was error for court to construe it as charging only violation because state is not required to negate statutory exceptions in charging instrument. State v. Wadekamper, 68 Or App 750, 683 P2d 168 (1984)

 

      Relieving state of burden of calling criminalist who prepared report deprives defendant of due process right to require that state prove all elements of crime charged. Wigglesworth v. State of Oregon, 49 F3d 578 (9th Cir. 1995)

 

      Laboratory report prepared at request of police for use in prosecuting specific defendant is testimonial evidence. State v. Miller, 208 Or App 424, 144 P3d 1052 (2006), on reconsideration210 Or App 176, 149 P3d 1251 (2006)

 

      Requiring defendant to subpoena criminalist who prepared laboratory report introduced by state violates defendant’s right to confront witnesses. State v. Birchfield, 342 Or 624, 157 P3d 216 (2007)

 

      475.245

 

NOTES OF DECISIONS

 

      Conditional discharge is not subject to appeal because it is not a final court disposition. State v. Spencer/Fenner, 130 Or App 158, 881 P2d 154 (1994)

 

      Under 2013 version of this section, legislature intended probation pursuant to this section to mirror probation under ORS chapter 137; therefore, precedents pertaining to requisite timing of revocation or extension proceedings in general probationary context are controlling. State v. Granberry, 260 Or App 15, 316 P3d 363 (2013)

 

      475.300 to 475.346

 

      See annotations under ORS 475B.785 to 475B.949.

 

      475.306

 

      See annotations under ORS 475B.837.

 

      475.319

 

      See annotations under ORS 475B.913.

 

      475.323

 

      See annotations under ORS 475B.922.

 

      475.525

 

NOTES OF DECISIONS

 

      Selling or delivering drug paraphernalia is civil violation, not crime. Jackson County v. Roark, 124 Or App 505, 863 P2d 491 (1993), Sup Ct review denied

 

      475.565

 

NOTES OF DECISIONS

 

      Civil penalty assessed on commercial activity may greatly exceed amount that would be punitive against individual without making proceeding criminal in nature. Jackson County v. Roark, 124 Or App 505, 863 P2d 491 (1993), Sup Ct review denied

 

      Intoxication, alone, does not indicate that patron or guest did not “voluntarily” consume alcoholic beverages. Schutz v. La Costita III, Inc., 256 Or App 573, 302 P3d 460 (2013), Sup Ct review denied

 

      475.752

(formerly 475.992, then 475.840)

 

NOTES OF DECISIONS

 

Under former similar statute

 

      State must prove defendant had actual knowledge of nature of drugs defendant is charged with possessing. State v. Neel, 8 Or App 142, 493 P2d 740 (1972)

 

      To prove constructive possession of dangerous drug or narcotic, state must show defendant knowingly exercised control of or right to control unlawful substance. State v. Moore, 14 Or App 268, 511 P2d 880 (1973); State v. Krohn, 15 Or App 63, 514 P2d 1359 (1973), Sup Ct review denied

 

      State cannot carve up amount of drugs in person’s possession for purpose of prosecuting separate violations. State v. Anderson, 15 Or App 650, 517 P2d 321 (1973), Sup Ct review denied

 

      Only one sentence should have been imposed for the simultaneous possession of three drugs. State v. Gill, 24 Or App 863, 547 P2d 166 (1976)

 

      Amount of drug possessed need not be usable amount. State v. Forrester, 29 Or App 409, 564 P2d 289 (1977), Sup Ct review denied

 

      Where controlled substance was injected into defendant’s body, defendant was not able to exercise dominion and control over substance and therefore did not possess drug. State v. Downes, 31 Or App 1183, 572 P2d 1328 (1977)

 

In general

 

      Although generally accepted scientific view is that marijuana is properly classified as Cannibis family Cannabaceae, legislative definition of marijuana as Cannibis family Moraceae is not sufficient to render statute ineffective. State v. Bailey, 41 Or App 375, 597 P2d 1312 (1979)

 

      Fact that experts may disagree as to what is “stalk” or “stem” of marijuana plant after plant has been cut up, or whether seeds are sterile and whether material is dry when weighed does not render this section void for vagueness. State v. Mellinger, 52 Or App 21, 627 P2d 897 (1981)

 

      Simultaneous possession of different forms of same controlled substance constituted single act or transaction so convictions on three different counts for possession of marijuana, hashish and hashish oil should have been merged for sentencing purposes. State v. Ness, 54 Or App 530, 635 P2d 1025 (1981), aff’d on other grounds, 294 Or 8, 653 P2d 548 (1982)

 

      Where defendant committed burglary and in course of burglary stole marijuana from premises, it was proper to convict for burglary (ORS 164.225) and possession of controlled substance. State v. Shaw, 56 Or App 473, 642 P2d 335 (1982)

 

      Examination of original legislation and history shows that codified version of ORS 689.995 was incorrect in its inclusion of this section as misdemeanor. State v. Rothman, 69 Or App 614, 687 P2d 798 (1984), Sup Ct review denied

 

      Violation of gratuitous delivery of marijuana is necessarily included in statutory definition of felony of delivery of marijuana for consideration. State v. Graves, 73 Or App 172, 697 P2d 1384 (1985)

 

      Under Oregon’s Controlled Substances Act, which is substantial adoption of Uniform Controlled Substances Act, but which did not adopt crime of possession of controlled substance with intent to transfer, attempted transfer is punishable as completed transfer. State v. Boyd, 92 Or App 51, 756 P2d 1276 (1988), Sup Ct review denied

 

      Charge of conspiracy to deliver cannot apply to recipient of transfer. State v. Frederickson, 92 Or App 223, 757 P2d 1366 (1988); State v. Deptuch, 95 Or App 54, 767 P2d 471 (1989), modified 96 Or App 228, 772 P2d 442 (1989); State v. Moore, 139 Or App 27, 910 P2d 1163 (1996)

 

      Frequenting place where controlled substances are used is not lesser included offense of unlawful possession of controlled substance. State v. Martz, 103 Or App 105, 795 P2d 616 (1990)

 

      On remand from United States Supreme Court, state may, consistent with Free Exercise Clause of United States Constitution, deny unemployment compensation to former employees dismissed for use of peyote for religious purposes in Native American Church, where ingestion of peyote is prohibited by state law. Smith v. Employment Division, 310 Or 376, 799 P2d 148 (1990)

 

      Where defendant when arrested was in possession of six individually wrapped bundles of cocaine, a razor blade and a substantial amount of cash in small bills and gave conflicting testimony regarding such items and drug usage, evidence was sufficient to find defendant guilty of delivery. State v. Fulmer, 105 Or App 334, 804 P2d 515 (1991)

 

      Possession of controlled substance is not lesser included offense to delivery of controlled substance. State v. Sargent, 110 Or App 194, 822 P2d 726 (1991)

 

      Person may possess drug by having dominion or control over it and physical possession is not only means to possess it. State v. Anaya, 111 Or App 204, 826 P2d 27 (1992); State v. Garcia, 120 Or App 485, 852 P2d 946 (1993)

 

      In prosecution for delivery of controlled substance, instruction to jury on lesser included offense of possession of less than one ounce of marijuana, which disclosed penalty for violation as punishable by fine only without jail sentence, could have influenced jury’s evaluation of testimony and was prejudicial error. State v. Hardt, 113 Or App 616, 833 P2d 1316 (1992)

 

      Proof that quantity of methamphetamine possessed would have stimulant effect on person’s central nervous system is not element of crime of possession of controlled substance. State v. Henry, 116 Or App 138, 840 P2d 1335 (1992)

 

      Amount of controlled substance inconsistent with personal use and possession of items used to traffic controlled substance was sufficient substantial step to establish delivery. State v. Garcia, 120 Or App 485, 852 P2d 946 (1993)

 

      Reference to one ounce of “dried leaves, stems and flowers” does not apply to undried marijuana, regardless of amount. State v. Schwirse, 147 Or App 683, 938 P2d 227 (1997)

 

      Absent proof of criminal conspiracy, where more than one person is present, mere proximity to controlled substance is insufficient to establish constructive possession. State v. Sosa-Vasquez, 158 Or App 445, 974 P2d 701 (1999)

 

      Indictment need not specify particular controlled substance possessed. State v. Hansz, 167 Or App 147, 5 P3d 1109 (2000), Sup Ct review denied

 

      Mere removal of individual portion from larger quantity of controlled substance does not constitute “packaging or repackaging” under ORS 475.005, and thus is not “manufacture” of controlled substance. State v. Tellez, 170 Or App 745, 14 P3d 78 (2000)

 

      Presence of controlled substance in bloodstream does not provide person with dominion or control over substance necessary to constitute possession. State v. Daline, 175 Or App 625, 30 P3d 426 (2001)

 

      Offer to sell controlled substance is substantial step constituting attempt to deliver substance. State v. Pollock, 189 Or App 38, 73 P3d 297 (2003), aff’d on other grounds, 337 Or 618, 102 P3d 684 (2004)

 

      Felony conviction under this section qualifies as predicate offense under federal career offender sentencing guideline. U.S. v. Shumate, 329 F3d 1026 (9th Cir. 2003)

 

      Ultimate user for whom medical use of marijuana is prescribed may not confer immunity on person other than designated primary caregiver to possess marijuana on behalf of ultimate user. State v. Fries, 212 Or App 220, 158 P3d 10 (2007), aff’d 344 Or 541, 185 P3d 453 (2008)

 

      This section is indivisible because “solicitation” is means of accomplishing delivery; therefore, defendant’s conviction for delivery of controlled substance under this section does not constitute generic attempted delivery under federal law and thus does not qualify as aggravated felony. Sandoval v. Yates, 847 F3d 697 (9th Cir. 2017)

 

      This section is not categorically qualifying predicate offense requiring mandatory minimum sentence under Armed Career Criminals Act. Ernst v. United States, 293 F. Supp. 3d 1242 (D. Or. 2017)

 

LAW REVIEW CITATIONS

 

In general

 

      26 WLR 462 (1990); 27 WLR 173, 327 (1991)

 

      475.840

(formerly 475.992)

 

      See annotations under ORS 475.752.

 

      475.860

 

NOTE: Repealed as of April 21, 2017

 

NOTES OF DECISIONS

 

      Express imposition of Class A felony liability for delivery of marijuana to persons under 18 years of age does not preclude use of other provision to impose Class A felony liability for delivery of marijuana where person is liable under both provisions. State v. Brown, 232 Or App 472, 223 P3d 1056 (2009)

 

      475.864

 

NOTE: Repealed as of April 21, 2017

 

NOTES OF DECISIONS

 

      Statute sets forth three separate offenses: (1) unlawful possession of marijuana, (2) unlawful possession of less than one ounce of marijuana and (3) unlawful possession, in public place, of less than one ounce of marijuana within 1,000 feet of school. State v. Durham, 245 Or App 58, 263 P3d 1030 (2011)

 

      475.900

(formerly 475.996)

 

NOTES OF DECISIONS

 

      Where defendant was indicted under unconstitutionally vague crime category statute, then reindicted under clarified statute, ex post facto clause did not prohibit conviction. State v. Perez, 119 Or App 436, 851 P2d 617 (1993), Sup Ct review denied

 

      Use of term “substantial quantity” in both count for delivery and count for possession did not serve notice on defendant that quantity alleged in possession count exceeded enhanced category threshold for possession. State v. Griffen, 131 Or App 79, 883 P2d 1315 (1994), Sup Ct review denied

 

      “Public lands” refers to land owned by any unit of government. State v. Holloway, 138 Or App 260, 908 P2d 324 (1995)

 

      Violation of multiple offense subcategories in committing same act does not create multiple offenses. State v. Wright, 150 Or App 159, 945 P2d 1083 (1997), Sup Ct review denied

 

      Proof that delivery or manufacture of controlled substance “involves” substantial quantities of controlled substance is not established by merely showing that person involved in delivery or manufacture also possesses substantial quantities of controlled substance. State v. Paetehr, 169 Or App 157, 7 P3d 708 (2000)

 

      Defendant took “security measures with potential of injuring persons” when defendant set up electronic surveillance system and utilized armed guard. State v. Moore, 172 Or App 371, 19 P3d 911 (2001), Sup Ct review denied

 

      For purposes of sentence enhancement, threshold quantity of “mixture or substance” containing detectable amount of methamphetamine must be in marketable form. State v. Slovik, 188 Or App 263, 71 P3d 159 (2003)

 

      Possession of any controlled substance listed in statute in quantity specified in statute serves as enhancement factor for any possession offense. State v. Cam, 255 Or App 1, 296 P3d 578 (2013), Sup Ct review denied

 

      As used in this section, “drug transaction records” refers to intentionally retained notations of events; therefore, defendant’s text messages alone, without evidence to support finding that defendant retained text messages for record-keeping purposes, are not drug transaction records. State v. Rankins, 280 Or App 673, 382 P3d 530 (2016)

 

      Where state did not show that defendant had entered into agreement for sale of methamphetamine in his possession or that defendant had otherwise received payment or promise of payment, state failed to prove that delivery “was for consideration” as used in subsection (1)(b)(A) of this section. State v. Villagomez, 281 Or App 29, 380 P3d 1150 (2016), aff’d 362 Or 390, 412 P3d 183 (2018)

 

      Where defendant mentioned needing to make money, attempted to solicit sexual favors from third party in exchange for methamphetamine and separated methamphetamine into multiple bags, but did not sell or agree to sell methamphetamine, defendant did not merit enhanced sentence because proof that delivery “is for consideration” requires evidence that defendant entered into agreement to sell, or completed sale of, methamphetamine. State v. Stewart, 362 Or 638, 413 P3d 959 (2018)

 

      475.904

(formerly 475.999)

 

NOTES OF DECISIONS

 

      Although lack of consideration is one element of reducing delivery to misdemeanor, existence of consideration is not element of manufacture or delivery charged as felony. State ex rel Juvenile Dept. v. Flath, 158 Or App 249, 974 P2d 254 (1999)

 

      State is not required to show that defendant intended drug activity to take place near school. State v. Rodriguez-Barrera, 213 Or App 56, 159 P3d 1201 (2007), Sup Ct review denied

 

      Under 1999 version of statute, culpable mental state is not element of offense of delivering controlled substance within 1,000 feet of school property. State v. Rutley, 343 Or 368, 171 P3d 361 (2007)

 

      475.906

(formerly 475.995)

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Absent evidence that defendant had knowledge that person to whom he supplied drugs was under 18 and at least three years younger than defendant, defendant could not be convicted of furnishing marijuana to minor. State v. Blanton, 31 Or App 327, 570 P2d 411 (1977), aff’d 284 Or 591, 588 P2d 28 (1978)

 

In general

 

      2001 version of this provision did not require culpable mental state with respect to age of recipient of controlled substance. State v. Jimenez-Correo, 248 Or App 200, 273 P3d 232 (2012)

 

      475.940

 

LAW REVIEW CITATIONS: 27 WLR 3 (1991)

 

      475.950

 

LAW REVIEW CITATIONS: 27 WLR 346 (1991)

 

      475.955

 

LAW REVIEW CITATIONS: 27 WLR 346 (1991)

 

      475.992

 

      See annotations under ORS 475.752.

 

      475.995

 

      See annotations under ORS 475.906.

 

      475.996

 

      See annotations under ORS 475.900.

 

      475.999

 

      See annotations under ORS 475.904.