ORS 475C.889
Affirmative defense


(1)

Except as provided in ORS 475C.886 (Exceptions to exemption from criminal liability), a person has an affirmative defense to a criminal charge of possession, delivery or manufacture of marijuana, or any other criminal offense in which possession, delivery or manufacture of marijuana is an element, if the person charged with the offense:

(a)

Was diagnosed with a debilitating medical condition within 12 months of the date on which the person was arrested and was advised by the person’s attending provider 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, delivers or manufactures marijuana only in quantities permitted under ORS 475C.806 (Possession limits for plants).

(2)

A person does not need to lawfully possess a registry identification card to assert the affirmative defense established in this section.

(3)

A 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 the use of marijuana is not 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:

(a)

The person possesses, delivers or manufactures marijuana only as permitted under ORS 475C.806 (Possession limits for plants) (1); and

(b)

The person has taken a substantial step toward complying with the provisions of ORS 475C.770 (Findings) to 475C.919 (Authority to adopt rules for ORS 475C.770 to 475C.919).

(4)

A defendant proposing to use the affirmative defense established in 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 assert the affirmative defense. The notice must specifically state the reasons why the defendant is entitled to assert the affirmative defense and the factual basis for the affirmative defense. If the defendant fails to file and serve the notice, the defendant is not permitted to assert the affirmative defense at the trial of the cause unless the court orders, for good cause, otherwise. [Formerly 475B.913]

Source: Section 475C.889 — Affirmative defense, https://www.­oregonlegislature.­gov/bills_laws/ors/ors475C.­html.

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

For defendant to assert “medical marijuana” affirmative defense under this section, advice given by attending physician must be based on particular diagnosis of “debilitating medical condition,” diagnosis of which is made within 12 months prior to arrest and also must be given within 12 months prior to arrest. State v. Luster, 271 Or App 425, 350 P3d 575 (2015), Sup Ct review denied

475C.001
Purposes of ORS 475C.005 to 475C.525
475C.005
Short title
475C.009
Definitions for ORS 475C.005 to 475C.525
475C.013
Construction of ORS 475C.005 to 475C.525
475C.017
General powers and duties
475C.021
Authority to purchase, possess, seize, transfer to licensee or dispose of marijuana items
475C.025
Powers related to decedents and insolvent or bankrupt persons
475C.029
Authority to limit quantity of marijuana items transferred to individual
475C.033
Application process for all licensees
475C.037
Grounds for refusing to issue license or issuing restricted license
475C.041
Authority to require fingerprints of applicants and other individuals
475C.045
Properties of license
475C.049
Duties of Oregon Liquor and Cannabis Commission with respect to issuing licenses
475C.053
Duty to request land use compatibility statement
475C.057
Lawful production, delivery and possession of marijuana items
475C.061
Authority to hold multiple licenses
475C.065
Production license
475C.069
Exemption from requirement to obtain land use compatibility statement
475C.073
Marijuana production as nonconforming land use
475C.077
Marijuana plant grow canopies
475C.081
Permissible delivery and receipt by marijuana producer and marijuana processor
475C.085
Processor license
475C.089
Cannabinoid concentrate
475C.093
Wholesale license
475C.097
Retail license
475C.101
Proximity of marijuana retailer to school
475C.105
Establishment of school after issuance of license
475C.109
Requirement to verify person’s age
475C.113
Ordinance allowing delivery of marijuana items to consumers
475C.117
Delivery of marijuana items to consumer
475C.121
Exclusively medical licensee designation for marijuana producer
475C.125
Exclusively medical licensee designation for marijuana processor
475C.129
Exclusively medical licensee designation for marijuana wholesaler
475C.133
Exclusively medical licensee designation for marijuana retailer
475C.137
Production for medical purposes
475C.141
Processing for medical purposes
475C.145
Wholesale selling for medical purposes
475C.149
Retail selling for medical purposes
475C.153
Oregon Health Authority rule requirement
475C.157
Authority to inspect books and premises
475C.161
Authority to require segregation of premises
475C.165
Authority to require general liability insurance
475C.169
Duty to develop procedures to transfer from registration to license
475C.173
Authority to establish merit-based criteria for licensure or renewal of licensure
475C.177
Duty to develop and maintain system for tracking transfer of marijuana items
475C.181
Authority to prevent diversion of marijuana
475C.185
Authority to discipline for unregulated commerce
475C.189
Authority to require financial disclosure from licensee
475C.193
Authority to investigate, discipline licensees
475C.197
Authority to investigate, discipline permit holder
475C.201
Authority to delegate certain duties, functions and powers
475C.205
Restrictions on delivery or receipt
475C.209
Transport of marijuana item by licensee
475C.213
Prohibition against selling or delivering marijuana items to persons under 21 years of age
475C.217
Identification requirement
475C.221
Identification for purchasing
475C.225
Prohibition against employing persons under 21 years of age
475C.229
Prohibition against importing or exporting marijuana items
475C.233
Prohibition against obfuscating mark or label or using mark or label to deceive
475C.237
Requirement that marijuana items comply with minimum standards
475C.241
Prohibition against certain licensees possessing mature marijuana plants
475C.245
Other prohibitions
475C.249
Purpose of license issued under ORS 475C.005 to 475C.525
475C.253
Labeling of industrial hemp commodity or product
475C.257
Prohibition against sale of certain marijuana items
475C.261
Schedule of violations
475C.265
Grounds for revocation, suspension or restriction of license or permit
475C.269
Permit required to perform work for or on behalf of marijuana retailer
475C.273
Issuing, renewing permits
475C.277
Authority to require fingerprints of individuals listed on application
475C.281
Right of employees to organize
475C.285
Whistleblower protection for employees
475C.289
Certification of cannabis researchers
475C.293
Authority to require fingerprints of applicants and other individuals
475C.297
Marijuana Control and Regulation Fund
475C.301
Enforcement authority of regulatory specialist
475C.305
Applicability of provisions to homegrown plants, homemade cannabinoid products and concentrates, specified possession and delivery
475C.309
Prohibition against producing, processing, possessing or storing homegrown marijuana or homemade cannabinoid products, extracts
475C.313
Prohibition against producing, processing or storing homemade cannabinoid extracts, industrial hemp extracts
475C.317
Prohibition against person under 21 years of age possessing, attempting to purchase or purchasing marijuana item
475C.321
Prohibition against producing identification that falsely indicates age
475C.325
Requirements for assessment and treatment under ORS 475C.317
475C.329
Prohibition regarding person who is visibly intoxicated
475C.333
Prohibition against giving marijuana item as prize
475C.337
Unlawful possession by person 21 years of age or older
475C.341
Unlawful possession by person under 21 years of age
475C.345
Unlawful delivery of marijuana item
475C.349
Unlawful manufacture of marijuana item
475C.353
Classification of felony under ORS 475C.337, 475C.341, 475C.345 and 475C.349
475C.357
Arson incident to manufacture of cannabinoid extract in first degree
475C.361
Arson incident to manufacture of cannabinoid extract in second degree
475C.365
Causing another person to ingest marijuana
475C.369
Administration to another person under 18 years of age
475C.373
Unlawful sale or delivery of marijuana paraphernalia
475C.377
Prohibition against using marijuana item in public place
475C.381
Immunity for person making report of violation
475C.385
Effect of crime under federal law or law of another state
475C.389
Protection for person obtaining assistance for cannabis-related overdose
475C.393
Affirmative defense
475C.397
Order setting aside qualifying marijuana conviction
475C.401
Authority to issue subpoenas
475C.405
Civil penalty for violating ORS 475C.005 to 475C.525
475C.409
Forfeiture of building or premises for violating ORS 475C.005 to 475C.525
475C.413
Authority of law enforcement to enforce ORS 475C.005 to 475C.525
475C.417
Seizure of marijuana items by law enforcement personnel
475C.421
Duty to notify Oregon Liquor and Cannabis Commission of conviction of licensee
475C.425
Penalty for violating ORS 475C.005 to 475C.525
475C.429
Preemption of municipal charter amendments and local ordinances
475C.433
Prohibition against operation of premises for which license issued
475C.437
Effective date of prohibition against operation of licensed premises
475C.441
Ordinance prohibiting possession
475C.445
Right to possess marijuana items for personal use
475C.449
Local time, place and manner regulations
475C.453
Local tax or fee
475C.457
Repeal of city, county ordinance that prohibits certain establishments
475C.461
Duty of Oregon Health Authority to assist
475C.465
Duty of State Department of Agriculture to assist
475C.469
Authority of State Department of Agriculture
475C.473
Prohibition against refusing to perform duties on basis that certain conduct is prohibited by federal law
475C.477
Immunity for state agencies, officers and employees in performance of duties
475C.481
Authority to purchase, possess, seize or dispose of marijuana items
475C.485
Authority of Governor to suspend license, certificate or permit without notice
475C.489
Marijuana as crop
475C.493
Regulation of marijuana items as food or other commodity subject to regulation by State Department of Agriculture
475C.497
Exceptions from applicability of ORS 475C.005 to 475C.525
475C.501
Violation of laws of this state as nuisance
475C.505
Enforceability of contracts
475C.509
Oregon Liquor and Cannabis Commission hotline for verification of license
475C.513
Transport of marijuana items to trade show
475C.517
Certain information related to licensure exempt from disclosure
475C.521
Governor agreements with Indian tribes
475C.525
Severability of ORS 475C.005 to 475C.525
475C.529
Duty to report to Legislative Assembly
475C.540
Definitions for ORS 475C.540 to 475C.586
475C.544
Testing standards and processes
475C.548
Laboratory licensure
475C.552
Authority to require fingerprints of applicants and other individuals
475C.556
Statement of applicant for license under ORS 475C.548
475C.560
Laboratory accreditation
475C.564
Applicability of ORS 475C.540 to 475C.586
475C.568
Authority of Oregon Liquor and Cannabis Commission to discipline licensees of commission
475C.572
Authority of Oregon Liquor and Cannabis Commission over certain persons, license actions
475C.574
Authority of Oregon Health Authority to discipline registrants of authority
475C.578
Civil penalty for violating ORS 475C.540 to 475C.586
475C.582
Authority of State Department of Agriculture, Oregon Liquor and Cannabis Commission for certain violations of ORS 475C.540 to 475C.586
475C.586
Exemption from criminal liability
475C.590
Advisory committee on standards for testing potency of marijuana and marijuana items
475C.600
Definitions for ORS 475C.600 to 475C.648
475C.604
Labeling requirements
475C.608
Authority to require preapproval of labels
475C.612
Packaging requirements
475C.616
Authority to require preapproval of packaging
475C.620
Concentration and servings limits
475C.624
Applicability of ORS 475C.600 to 475C.648
475C.628
Authority of Oregon Liquor and Cannabis Commission to inspect
475C.632
Authority of Oregon Health Authority to inspect
475C.636
Authority of Oregon Liquor and Cannabis Commission to discipline licensees of commission
475C.640
Authority of Oregon Health Authority to discipline registrants of authority
475C.644
Civil penalty for violating ORS 475C.600 to 475C.648
475C.648
Authority of State Department of Agriculture, Oregon Liquor and Cannabis Commission for certain violations of ORS 475C.600 to 475C.648
475C.670
Definitions for ORS 475C.670 to 475C.734
475C.674
Imposition of tax on retail sale of marijuana items
475C.678
Exemption from tax on retail sale of marijuana items
475C.682
Collection of tax
475C.684
Marijuana revenue estimate
475C.688
Enforcement
475C.692
Duty to keep receipts, invoices and other records
475C.694
Authority to require production of books, papers, accounts and other information
475C.698
Disclosure of information
475C.702
Right to appeal determination of tax liability
475C.706
Duty to return excess tax collected
475C.710
Authority to retain portion of tax to pay expenses incurred
475C.714
Duties and powers of Department of Revenue
475C.718
Department of Revenue tax rebate agreement with qualified Indian tribe
475C.722
Applicability of tax laws to ORS 475C.670 to 475C.734
475C.726
Oregon Marijuana Account
475C.730
Requirement to establish county cannabis advisory panel prior to adoption of certain local ordinance
475C.734
Suspense account
475C.738
Definitions for ORS 475C.738 to 475C.758
475C.742
Financial institution exempt from certain criminal laws
475C.746
Required disclosure by Oregon Liquor and Cannabis Commission
475C.750
Required disclosure by Oregon Health Authority
475C.754
Required disclosure by Department of Revenue
475C.758
Confidentiality of information
475C.770
Findings
475C.773
Short title
475C.777
Definitions for ORS 475C.770 to 475C.919
475C.780
Construction of ORS 475C.770 to 475C.919
475C.783
Registry identification cardholders
475C.786
Assistance from designated primary caregiver
475C.789
Designated primary caregivers
475C.791
Registry identification cardholder ability to designate certain entities as additional caregivers
475C.792
Marijuana grow site registration system
475C.794
Address of marijuana grow site
475C.795
Duty to submit production data to Oregon Health Authority
475C.797
Delegation of duty to submit production data
475C.798
Personal agreements
475C.800
Transfer of usable marijuana
475C.803
Marijuana grow site security systems
475C.806
Possession limits for plants
475C.809
Possession limits for usable marijuana
475C.812
Duty to carry card when at location other than address on file with Oregon Health Authority
475C.815
Marijuana processing site registration system
475C.818
Authority to require fingerprints of applicants and other individuals
475C.821
Duty to submit processing data to Oregon Health Authority
475C.824
Public health and safety standards for medical cannabinoid products, concentrates and extracts
475C.827
Prohibition against transferring medical cannabinoid products, concentrates and extracts to certain persons
475C.830
Exception to registration requirement
475C.833
Medical marijuana dispensary registration system
475C.837
Authority to require fingerprints of applicants and other individuals
475C.840
Medical marijuana dispensary located within 1,000 feet of school
475C.843
Duty to submit dispensing data to Oregon Health Authority
475C.847
Establishment of school after registration
475C.850
Receipt of marijuana by nonprofit dispensary
475C.853
Oregon Health Authority telephone hotline
475C.856
Database of information related to production, processing and dispensing
475C.859
Database of information related to cardholders
475C.862
Confidentiality of personally identifiable information
475C.865
Disclosure of personally identifiable information upon revocation or suspension of registration
475C.868
Oregon Health Authority electronic system
475C.871
Use of Oregon Liquor and Cannabis Commission tracking system
475C.874
Authority to designate responsibility for site or dispensary to another person
475C.877
Authority to assign responsibility for site or dispensary to another person
475C.880
Rights of secured parties
475C.883
Exemptions from criminal liability
475C.886
Exceptions to exemption from criminal liability
475C.889
Affirmative defense
475C.891
Prohibition against taking disciplinary action against attending provider
475C.892
Prohibition against taking disciplinary action against professional licensee
475C.894
Authority to investigate
475C.895
Civil penalty for violating ORS 475C.770 to 475C.919
475C.897
Local time, place and manner regulations
475C.898
Duty of State Department of Agriculture and Oregon Liquor and Cannabis Commission to assist
475C.900
Immunity for state agencies, officers, employees and agents in performance of duties
475C.903
Authority to possess, seize or dispose of marijuana and marijuana-derived products
475C.907
Cannabis seeds as propagant of nursery stock
475C.910
Applicability of ORS 475C.770 to 475C.919 to criminal causes of action
475C.913
Petitioning for disease or condition to be included as debilitating medical condition
475C.916
Authority of nurse to discuss medical use of marijuana
475C.919
Authority to adopt rules for ORS 475C.770 to 475C.919
475C.930
Oregon Cannabis Commission
475C.933
Commission leadership
475C.936
Staff support for commission
475C.939
Duties of commission
475C.945
City, county ordinances regarding medical marijuana
475C.950
Adoption of ordinances
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