Oregon Appellate Ct - May 28, 2015
by: Abassos, Kit Taylor, Tyler Williams and Jillian Kenchel • May 28, 2015 • no comments
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*Med Marijuana - Affirmative Defense - Medical Marijuana Advice Must be Given Within 12 Months Prior to Arrest. | *Med Marijuana - Affirmative Defense - Medical Marijuana Advice Must be Given Within 12 Months Prior to Arrest. | ||
| − | *Reasonable Suspicion - Possession of Drugs | + | *Reasonable Suspicion - Possession of Drugs - {drug history + drug use + indexing + exiting vehicle quickly} |
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'''Med Marijuana - Affirmative Defense - Medical Marijuana Advice Must be Given Within 12 Months Prior to Arrest.''' | '''Med Marijuana - Affirmative Defense - Medical Marijuana Advice Must be Given Within 12 Months Prior to Arrest.''' | ||
| − | To use the Oregon Medical Marijuana Act affirmative defense under ORS 475.319, defendant must, within the 12 months before arrest, receive both (1) a diagnosis of a debilitating condition and (2) advice from a physician that marijuana would mitigate the symptoms or effects of the condition. Here, defendant argued that the 12 month requirement only applies to the diagnosis. The court | + | To use the Oregon Medical Marijuana Act affirmative defense under ORS 475.319, defendant must, within the 12 months before arrest, receive both (1) a diagnosis of a debilitating condition and (2) advice from a physician that marijuana would mitigate the symptoms or effects of the condition. Here, defendant argued that the 12 month requirement only applies to the diagnosis. The court, reasoning from both the grammatical structure of the statute and general logic, finds that the affirmative defense does not apply if advice regarding medical marijuana was not given in the 12 months prior to arrest. |
| − | Judge Hadlock, concurring in part and dissenting in part, would only apply a bright line rule to the | + | Judge Hadlock, concurring in part and dissenting in part, would only apply a bright line rule to the diagnosis requirement, not the advice. |
[http://www.publications.ojd.state.or.us/docs/A153268.pdf State v Luster], 271 Or App 425 (2015). | [http://www.publications.ojd.state.or.us/docs/A153268.pdf State v Luster], 271 Or App 425 (2015). | ||
| − | '''Reasonable Suspicion - Possession of Drugs ''' | + | '''Reasonable Suspicion - Possession of Drugs - {drug history + drug use + indexing + exiting vehicle quickly}''' |
The following facts amounted to reasonable suspicion to believe that defendant, a passenger in a vehicle pulled over for a traffic stop, was in possession of methamphetamine: | The following facts amounted to reasonable suspicion to believe that defendant, a passenger in a vehicle pulled over for a traffic stop, was in possession of methamphetamine: | ||
Latest revision as of 09:22, May 30, 2015
Med Marijuana - Affirmative Defense - Medical Marijuana Advice Must be Given Within 12 Months Prior to Arrest.
To use the Oregon Medical Marijuana Act affirmative defense under ORS 475.319, defendant must, within the 12 months before arrest, receive both (1) a diagnosis of a debilitating condition and (2) advice from a physician that marijuana would mitigate the symptoms or effects of the condition. Here, defendant argued that the 12 month requirement only applies to the diagnosis. The court, reasoning from both the grammatical structure of the statute and general logic, finds that the affirmative defense does not apply if advice regarding medical marijuana was not given in the 12 months prior to arrest. Judge Hadlock, concurring in part and dissenting in part, would only apply a bright line rule to the diagnosis requirement, not the advice. State v Luster, 271 Or App 425 (2015).
Reasonable Suspicion - Possession of Drugs - {drug history + drug use + indexing + exiting vehicle quickly}
The following facts amounted to reasonable suspicion to believe that defendant, a passenger in a vehicle pulled over for a traffic stop, was in possession of methamphetamine:
- (1) the driver was a known methamphetamine user;
- (2) both occupants immediately exited the vehicle after being stopped to apparently distance themselves from the contents of the vehicle;
- (3) defendant admitted to having previously been arrested for meth possession;
- (4) both defendant and the driver appeared extremely nervous;
- (5) the officer observed defendant repeatedly putting his hand in his pocket and “indexing” to verify the location of his drugs;
- (6) when retrieving his identification, defendant used exaggerated movements that indicated to the officer that the defendant was under the influence.
According to the court:
- "taken together, defendant’s unusual behavior in leaving the vehicle when it was stopped, his past association with methamphetamine as well as the driver’s drug history, defendant’s symptoms of recent drug use, and his “indexing” behavior constitute specific and articulable facts that support a reasonable inference of illegal activity."
State v. McHaffie, 238 Or App Ct 379 (2015)
