Vague As-Applied

This wikilog article is a draft, it was not published yet.

by: Ryan • February 23, 2011 • no comments

ORS 163.575 makes it a crime to knowingly permit a minor to remain at a place where controlled substances are "maintained or conducted." The phrase "maintained or conducted" is not defined by any administrative rule.

Occasionally, the state will charge this crime even when the only evidence is that the defendant possessed a controlled substance (including less than an ounce of marijuana) in the residence where minors could also be found.

I've attached a memo challenging that interpretation of the law via a motion in arrest of judgment, but it should also be raised earlier in the proceedings.

Also, the memo is a good example of how to challenge statutes on a vagueness as-applied theory. My rule of thumb is this: if your client's guilt hinges on whether the jury applies your definition of a word or phrase or the prosecutor's, and that word or phrase is not defined anywhere in the statutes or case law, then you've got an as-applied vagueness problem. This comes up quite a bit actually in all sorts of contexts.

Here is the motion and memo: [MIAJ ENDANGERING].