2007 ORS 475.319¹
Affirmative defense to certain criminal laws involving marijuana
  • notice

(1) Except as provided in ORS 475.316 (Limitations on cardholder's immunity from criminal laws involving marijuana) and 475.342 (Limitations on protection from criminal liability), it is an affirmative defense to a criminal charge of possession or production of marijuana, or any other criminal offense in which possession or production of marijuana is an element, that the person charged with the offense is a person who:

(a) Has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition;

(b) Is engaged in the medical use of marijuana; and

(c) Possesses or produces marijuana only in amounts permitted under ORS 475.320 (Limits on amounts possessed).

(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 (Choice of evils), or from presenting evidence supporting the necessity of marijuana for treatment of a specific disease or medical condition, provided that the amount of marijuana at issue is no greater than permitted under ORS 475.320 (Limits on amounts possessed) and the patient has taken a substantial step to comply with the provisions of ORS 475.300 (Findings) to 475.346 (Short title).

(4) Any defendant proposing to use the affirmative defense provided for by this section in a criminal action shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of the intention to offer such a defense that specifically states the reasons why the defendant is entitled to assert and the factual basis for such affirmative defense. If the defendant fails to file and serve such notice, the defendant is not permitted to assert the affirmative defense at the trial of the cause unless the court for good cause orders otherwise. [1999 c.4 §6; 1999 c.825 §4; 2005 c.22 §347; 2005 c.822 §12]

Note: See note under 475.300 (Findings).

Notes of Decisions

For defendant to assert medical marijuana af­firm­a­tive de­fense, physician advice re­gard­ing use of medical marijuana must occur before incident for which defendant is arrested. State v. Root, 202 Or App 491, 123 P3d 281 (2005), Sup Ct review denied

Notes of Decisions

Registry identifica­tion cardholder may not confer immunity on per­son other than designated primary caregiver to possess medical marijuana on behalf of cardholder. State v. Fries, 212 Or App 220, 158 P3d 10 (2007)

Chapter 475

Law Review Cita­tions

51 OLR 561 (1972); 69 OLR 171 (1990)

1 Legislative Counsel Committee, CHAPTER 475—Controlled Substances; Illegal Drug Cleanup; Paraphernalia; Precursors, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­475.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 475, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­475ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.