2015 ORS 475.752¹
Prohibited acts generally
  • penalties
  • exceptions
  • affirmative defense for certain peyote uses
  • causing death by Schedule IV substance

Caution-flag-2-25x25
This section is amended
Effective March 3, 2016
Relating to cannabis; creating new provisions; amending ORS 90.396, 305.620, 316.680, 419C.239, 419C.420, 419C.443, 471.001, 471.775, 475.245, 475.752, 475.856, 475.858, 475.860, 475.862, 475.864, 475.898, 475B.015, 475B.063, 475B.070, 475B.075, 475B.090, 475B.100, 475B.110, 475B.150, 475B.160, 475B.185, 475B.218, 475B.235, 475B.245, 475B.250, 475B.255, 475B.340, 475B.375, 475B.415, 475B.420, 475B.428, 475B.435, 475B.443, 475B.450, 475B.705, 475B.710, 475B.760, 475B.800, 809.265 and 813.215 and section 3, chapter 20, Oregon Laws 2015; repealing ORS 475B.120, 475B.285 and 811.481 and sections 173 and 175b, chapter 614, Oregon Laws 2015; and declaring an emergency.

(1) Except for licensees and licensee representatives, as those terms are defined in ORS 475B.015 (Definitions for ORS 475B.010 to 475B.395), that are engaged in lawful activities, and except for a person acting within the scope of and in compliance with ORS 475B.245 (Applicability of licensing provisions to homegrown marijuana and homemade cannabinoid products and concentrates), and except as authorized by ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980) to 475.285 (Short title) and 475.752 (Prohibited acts generally) to 475.980 (Affirmative defense to ORS 475.969, 475.971, 475.975 (1) and 475.976 (1)), it is unlawful for any person to manufacture or deliver a controlled substance. Any person who violates this subsection with respect to:

(a) A controlled substance in Schedule I, is guilty of a Class A felony, except as otherwise provided in ORS 475.886 (Unlawful manufacture of methamphetamine) and 475.890 (Unlawful delivery of methamphetamine).

(b) A controlled substance in Schedule II, is guilty of a Class B felony, except as otherwise provided in ORS 475.858 (Unlawful manufacture of marijuana within 1,000 feet of school), 475.860 (Unlawful delivery of marijuana), 475.862 (Unlawful delivery of marijuana within 1,000 feet of school), 475.878 (Unlawful manufacture of cocaine within 1,000 feet of school), 475.880 (Unlawful delivery of cocaine), 475.882 (Unlawful delivery of cocaine within 1,000 feet of school), 475.904 (Unlawful manufacture or delivery of controlled substance within 1,000 feet of school) and 475.906 (Penalties for unlawful delivery to minors).

(c) A controlled substance in Schedule III, is guilty of a Class C felony, except as otherwise provided in ORS 475.904 (Unlawful manufacture or delivery of controlled substance within 1,000 feet of school) and 475.906 (Penalties for unlawful delivery to minors).

(d) A controlled substance in Schedule IV, is guilty of a Class B misdemeanor.

(e) A controlled substance in Schedule V, is guilty of a Class C misdemeanor.

(2) Except as authorized in ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980) to 475.285 (Short title) and 475.752 (Prohibited acts generally) to 475.980 (Affirmative defense to ORS 475.969, 475.971, 475.975 (1) and 475.976 (1)), it is unlawful for any person to create or deliver a counterfeit substance. Any person who violates this subsection with respect to:

(a) A counterfeit substance in Schedule I, is guilty of a Class A felony.

(b) A counterfeit substance in Schedule II, is guilty of a Class B felony.

(c) A counterfeit substance in Schedule III, is guilty of a Class C felony.

(d) A counterfeit substance in Schedule IV, is guilty of a Class B misdemeanor.

(e) A counterfeit substance in Schedule V, is guilty of a Class C misdemeanor.

(3) It is unlawful for any person knowingly or intentionally to possess a controlled substance, other than marijuana, unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of professional practice, or except as otherwise authorized by ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980) to 475.285 (Short title) and 475.752 (Prohibited acts generally) to 475.980 (Affirmative defense to ORS 475.969, 475.971, 475.975 (1) and 475.976 (1)). Any person who violates this subsection with respect to:

(a) A controlled substance in Schedule I, is guilty of a Class B felony, except as otherwise provided in ORS 475.894 (Unlawful possession of methamphetamine).

(b) A controlled substance in Schedule II, is guilty of a Class C felony, except as otherwise provided in ORS 475.864 (Unlawful possession of marijuana or marijuana product).

(c) A controlled substance in Schedule III, is guilty of a Class A misdemeanor.

(d) A controlled substance in Schedule IV, is guilty of a Class C misdemeanor.

(e) A controlled substance in Schedule V, is guilty of a violation.

(4) In any prosecution under this section for manufacture, possession or delivery of that plant of the genus Lophophora commonly known as peyote, it is an affirmative defense that the peyote is being used or is intended for use:

(a) In connection with the good faith practice of a religious belief;

(b) As directly associated with a religious practice; and

(c) In a manner that is not dangerous to the health of the user or others who are in the proximity of the user.

(5) The affirmative defense created in subsection (4) of this section is not available to any person who has possessed or delivered the peyote while incarcerated in a correctional facility in this state.

(6)(a) Notwithstanding subsection (1) of this section, a person who unlawfully manufactures or delivers a controlled substance in Schedule IV and who thereby causes death to another person is guilty of a Class C felony.

(b) For purposes of this subsection, causation is established when the controlled substance plays a substantial role in the death of the other person. [Formerly 475.840; 2013 c.591 §3; 2015 c.1 §76; 2015 c.614 §124]

(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 per­sons 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 defendants 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), affd 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 (Burglary in the first degree)) 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 (Criminal penalties) 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 Oregons 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 jurys 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 per­sons 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 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980), 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), affd 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), affd 344 Or 541, 185 P3d 453 (2008)

Law Review Cita­tions

In General

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

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/­ors475.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 475, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano475.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.