Chapter 475 -- 1999 EDITION
OREGON MEDICAL MARIJUANA ACT
475.300 Findings
475.302 Definitions for ORS 475.300 to 475.346
475.306 Medical use of marijuana; limits on amount possessed, delivered
or produced
475.309 Registry identification card; issuance; eligibility; duties of
cardholder
475.312 Designated primary caregiver
475.316 Limitations on cardholder's immunity from criminal laws
involving marijuana
475.319 Affirmative defense to certain criminal laws involving
marijuana available to cardholder
475.323 Effect of possession of registry identification card or
designated primary caregiver card on search and seizure rights
475.326 Attending physician; limitation on civil liability and
professional discipline
475.328 Limits on professional licensing board's authority to sanction
licensee for medical use of marijuana
475.331 List of persons issued registry identification cards and
designated primary caregivers; disclosure
475.334 Adding diseases or conditions that qualify as debilitating
medical conditions
475.338 Rulemaking
475.340 Limitations on reimbursement of costs and employer
accommodation
475.342 Limitations on protection from criminal liability
475.346 Short title
OREGON MEDICAL MARIJUANA ACT
475.300 Findings. The people of the state of Oregon hereby find
that:
(1) Patients and doctors have found marijuana to be an effective
treatment for suffering caused by debilitating medical conditions, and
therefore, marijuana should be treated like other medicines;
(2)
Oregonians suffering from debilitating medical conditions should be
allowed to use small amounts of marijuana without fear of civil or
criminal penalties when their doctors advise that such use may provide a
medical benefit to them and when other reasonable restrictions are met
regarding that use;
(3) ORS 475.300 to 475.346 are intended to allow
Oregonians with debilitating medical conditions who may benefit from the
medical use of marijuana to be able to discuss freely with their doctors
the possible risks and benefits of medical marijuana use and to have the
benefit of their doctor's professional advice; and
(4) ORS 475.300 to
475.346 are intended to make only those changes to existing Oregon laws
that are necessary to protect patients and their doctors from criminal and
civil penalties, and are not intended to change current civil and criminal
laws governing the use of marijuana for nonmedical purposes. [1999 c.4
s.2]
Note: 475.300 to 475.346 were adopted by the people by initiative
petition but were not added to or made a part of ORS chapter 475 or any
series therein. See Preface to Oregon Revised Statutes for further
explanation.
475.302 Definitions for ORS 475.300 to 475.346. 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:
(i) Cachexia;
(ii)
Severe pain;
(iii) Severe nausea;
(iv) Seizures, including but not
limited to seizures caused by epilepsy; or
(v) 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 division by rule or approved by the division pursuant to a
petition submitted pursuant to ORS 475.334.
(3) "Delivery" has the
meaning given that term in ORS 475.005.
(4) "Designated primary
caregiver" means an individual eighteen 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 division. "Designated primary
caregiver" does not include the person's attending physician.
(5)
"Division" means the Health Services of the Oregon Department of Human
Services.
(6) "Marijuana" has the meaning given that term in ORS
475.005.
(7) "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 his or her debilitating
medical condition.
(8) "Production" has the same meaning given that
term in ORS 475.005.
(9) "Registry identification card" means a
document issued by the division that identifies a person authorized to
engage in the medical use of marijuana and the person's designated primary
caregiver, if any.
(10) "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.
(11) "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. [1999 c.4 s.3]
Note: See note under 475.300.
475.305 [1977 c.636 s.1; 1979 c.674 s.1; repealed by 1993 c.571
s.30]
475.306 Medical use of marijuana; limits on amount possessed, delivered
or produced.
(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. Except as allowed in subsection
(2) of
this section, a registry identification cardholder and that person's
designated primary caregiver may not collectively possess, deliver or
produce more than the following:
(a) If the person is present at a
location at which marijuana is not produced, including any residence
associated with that location, one ounce of usable marijuana; and
(b)
If the person is present at a location at which marijuana is produced,
including any residence associated with that location, three mature
marijuana plants, four immature marijuana plants and one ounce of usable
marijuana per each mature plant.
(2) If the individuals described in
subsection (1) of this section possess, deliver or produce marijuana in
excess of the amounts allowed in subsection (1) of this section, such
individuals are not excepted from the criminal laws of the state but may
establish an affirmative defense to such charges, by a preponderance of
the evidence, that the greater amount is medically necessary to mitigate
the symptoms or effects of the person's debilitating medical
condition.
(3) The Health Services shall define by rule when a
marijuana plant is mature and when it is immature for purposes of this
section. [1999 c.4 s.7]
Note: See note under 475.300.
475.309 Registry identification card;
issuance; eligibility; duties of cardholder.
(1) Except as provided in
ORS 475.316 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, or is the designated primary
caregiver of a cardholder or applicant; and
(b) The person who has a
debilitating medical condition and his or her primary caregiver are
collectively in possession of, delivering or producing marijuana for
medical use in the amounts allowed in ORS 475.306.
(2) The division
shall establish and maintain a program for the issuance of registry
identification cards to person who meet the requirements of this section.
Except as provided in subsection
(3) of this section, the division
shall issue a registry identification card to any person who pays a fee in
the amount established by the division 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; and
(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.
(3) The
division 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 division. A
county health department that receives the information pursuant to this
subsection shall transmit the information to the division 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 division.
(5) The division 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 division may deny an application only for the
following reasons:
(i) The applicant did not provide the information
required pursuant to this section to establish his or her debilitating
medical condition and to document his or her 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
(ii) The division determines that the information provided
was falsified.
(b) Denial of a registry identification card shall be
considered a final division 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
division'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 division or a court of competent jurisdiction.
(6)(a)
If the division 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 division
shall issue a serially numbered registry identification card within five
days of verification of the information. The registry identification card
shall state:
(i) The cardholder's name, address and date of
birth;
(ii) The date of issuance and expiration date of the registry
identification card;
(iii) The name and address of the person's
designated primary caregiver, if any; and
(iv) Such other information
as the division may specify by rule.
(b) When the person to whom the
division has issued a registry identification card pursuant to this
section has specified a designated primary caregiver, the division 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:
(i) Notify
the division of any change in the person's name, address, attending
physician or designated primary caregiver; and
(ii) Annually submit to
the division:
(A) Updated written documentation of the person's
debilitating medical condition; and
(B) 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 division within seven
calendar days of notification of the diagnosis. Any designated primary
caregiver shall return his or her 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 his or her 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
division pursuant to subsections (2) or (3) of this section and proof of
the date of mailing or other transmission of the documentation to the
division. 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. [1999 c.4
s.4; 1999 c.825 s.2]
Note: See note under 475.300.
475.312 Designated primary caregiver.
(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 division.
(2) A person described in this section may
have only one designated primary caregiver at any given time. [1999 c.4
s.13]
Note: See note under 475.300.
475.315 [1977 c.636 s.2; 1979 c.674 s.2; repealed by 1993 c.571
s.30]
475.316 Limitations on cardholder's immunity from criminal laws
involving marijuana.
(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)
Drives under the influence of marijuana as provided in ORS 813.010;
(b)
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) Delivers marijuana to any individual who the person
knows is not in possession of a registry identification card;
(d)
Delivers marijuana for consideration to any individual, even if the
individual is in possession of a registry identification card;
(e)
Manufactures or produces marijuana at a place other than one address for
property under the control of the patient and one address for property
under the control of the primary caregiver of the patient that have been
provided to the Health Services; or
(f) Manufactures or produces
marijuana at more than one address.
(2) In addition to any other
penalty allowed by law, a person who the division 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 division. [1999 c.4 s.5;
1999 c.825 s.3]
Note: See note under 475.300.
475.319 Affirmative defense to certain
criminal laws involving marijuana available to cardholder. (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 his or her attending physician 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 the amounts
allowed in ORS 475.306 (1), or in excess of those amounts if the person
proves by a preponderance of the evidence that the greater amount is
medically necessary as determined by the person's attending physician to
mitigate the symptoms or effects of the person's debilitating medical
condition.
(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 475.306 and the patient has taken a substantial step
to comply with the provisions of ORS 475.300 to 475.346.
(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 shall not be permitted to assert the
affirmative defense at the trial of the cause unless the court for good
cause orders otherwise. [1999 c.4 s.6; 1999 c.825 s.4]
Note: See note under 475.300.
475.323 Effect of possession of
registry identification card or designated primary caregiver card on
search and seizure rights. (1) Possession of a registry identification
card or designated primary caregiver identification card pursuant to ORS
475.309 shall 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 shall 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 his or her 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. Such
determination may be evidenced, for example, be a decision not to
prosecute, the dismissal of charges, or acquittal. [1999 c.4 s.8; 1999
c.825 s.5]
Note: See note under 475.300.
475.325 [1977 c.636 s.3; 1979 c.674 s.3; repealed by 1993 c.571
s.30]
475.326 Attending physician; limitation on civil liability and
professional discipline. No attending physician may be subjected to civil
penalty or discipline by the Board of Medical Examiners for:
(1)
Advising a person whom the attending physician has diagnosed as having a
debilitating medical condition, or a person who the attending physician
knows has been so diagnosed by another physician licensed under ORS
chapter 677, about the risks and benefits of medical use of marijuana or
that the medical use of marijuana may mitigate the symptoms or effects of
the person's debilitating medical condition, provided the advice is based
on the attending physician's personal assessment of the person's medical
history and current medical condition; or
(2) Providing the written
documentation necessary for issuance of a registry identification card
under ORS 475.309, if the documentation is based on the attending
physician's personal assessment of the applicant's medical history and
current medical condition and the physician has discussed the potential
medical risks and benefits of the medical use of marijuana with the
applicant. [1999 c.4 s.9]
Note: See note under 475.300.
475.328 Limits on professional licensing board's authority to sanction
licensee for medical use of marijuana. No professional licensing board may
impose a civil penalty or take other disciplinary action against a
licensee based on the licensee's medical use of marijuana in accordance
with the provisions of ORS 475.300 to 475.346 or actions taken by the
licensee that are necessary to carry out the licensee's role as a
designated primary caregiver to a person who possesses a lawful registry
identification card issued pursuant to ORS 475.309. [1999 c.4 s.10]
Note: See note under 475.300.
475.331 List of persons issued
registry identification cards and designated primary caregivers;
disclosure. (1) The division shall create and maintain a list of the
persons to whom the division has issued registry identification cards
pursuant to ORS 475.309 and the names of any designated primary
caregivers. Except as provided in subsection (2) of this section, the list
shall be confidential and not subject to public disclosure.
(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 division as necessary to perform official duties of the
division; 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 that a person is the
designated primary caregiver of such a person. [1999 c.4 s.12]
Note: See note under 475.300.
475.334 Adding diseases or conditions that qualify as debilitating
medical conditions. Any person may submit a petition to the division
requesting that a particular disease or condition be included among the
diseases and conditions that qualify as debilitating medical conditions
under ORS 475.302. The division shall adopt rules establishing the manner
in which the division will evaluate petitions submitted under this
section. Any rules adopted pursuant to this section shall require the
division to approve or deny a petition within 180 days of receipt of the
petition by the division. Denial of a petition shall be considered a final
division action subject to judicial review. [1999 c.4 s.14]
Note: See note under 475.300.
475.335 [1977 c.636 s.4; 1979 c.674 s.4; repealed by 1993 c.571
s.30]
475.338 Rulemaking. The division shall adopt all rules necessary for
the implementation and administration of ORS 475.300 to 475.346. [1999 c.4
s.15]
Note: See note under 475.300.
475.340 Limitations on reimbursement
of costs and employer accommodation. Nothing in ORS 475.300 to 475.346
shall be construed to require:
(1) A government medical assistance
program or private health insurer to reimburse a person for costs
associated with the medical use of marijuana; or
(2) An employer to
accommodate the medical use of marijuana in any workplace. [1999 c.4
s.16]
Note: See note under 475.300.
475.342 Limitations on protection from criminal liability. Nothing in
ORS 475.300 to 475.346 shall protect a person from a criminal cause of
action based on possession, production, or delivery of marijuana that is
not authorized by ORS 475.300 to 475.346. [1999 c.4 s.11]
Note: See note under 475.300.
475.345 [1977 c.636 s.5; 1979 c.674 s.5; repealed by 1993 c.571
s.30]
475.346 Short title. ORS 475.300 to 475.346 shall be known as the
Oregon Medical Marijuana Act. [1999 c.4 s.1]
Note: See note under 475.300.