Understanding and using the affirmative defense

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The exception from criminal laws provides a safety net over Cannabis-using patients and caregivers who grow Cannabis for these patients. Some patients refuse to participate in the Medical Marijuana Program for various reasons. These include fear and distrust of government, philosophical objections to intrusive drug laws or inability to pay the fee ($150 in 2000.) The "affirmative defense" was written to include these people. Essentially, the affirmative defense has two parts. The first allows patients to escape criminal conviction if they meet all of the Medical Marijuana Program provisions, but are not registered. This defense still requires that a physician has previously diagnosed the patient as having a medical condition that qualifies under OMMA and has also advised the patient that "marijuana may help".

The second, as stated by House Bill 3052, allows patients to grow more than seven plants if they have their physician's written support.

These affirmative defense provisions were expanded to state:

...[I]t 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 has been advised by his or her 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 the amounts allowed in Section 7 (1) chapter 4, Oregon Laws 1999, or in excess of those amounts if the person proves by a preponderance of the evidence that the greater amount is medically necessary as determined by the person's attending physician to mitigate the symptoms or effects of the person's debilitating medical condition. (ORS 475.319)

Nineteen ninety-nine legislative changes carried the legal requirements for asserting the affirmative defense one step further by stating: Any defendant proposing to use the affirmative defense provided for by this section in a criminal action shall, not less than 5 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 shall not be permitted to assert the affirmative defense at the trial of cause unless the court for good cause orders otherwise. (ORS 475.319 (4))

In plain English, the rules governing the affirmative defense are as follows:

1. The person must be diagnosed within the past year with a "debilitating medical condition," and be under the care of an Oregon physician;

2. The patient must be advised by the physician that using Cannabis may help. (The patient does not have to have this recommendation in writing but the physician will probably have to state this in court. If the patient cannot get the physician to provide this recommendation, or if the patient has no physician then the patient may have to resort to the "choice of evils" defense.) For this reason it is critical that

.(the affirmative defense) still requires that a physician has previously diagnosed the patient as having a medical condition that qualifies under OMMA and has also advised the patient that marijuana may help.

The affirmative defense provisions of OMMA were changed in HB 3052—the rewrite of OMMA by the 1999 Oregon Legislature.

The patient or patient's attorney must submit papers to the district attorney...stating that the patient intends to use the affirmative defense.

As its name implies [the choice of evils defense] is a "desperation defense for use when other defenses are not available.

patients discuss their use of Cannabis with the physician before legal troubles arise and request that documentation be made in the medical chart describing this use;

3. The patient must be using Cannabis.

4. The patient must be in compliance with the legal possession limits. (There is a provision for possession of greater amounts but the physician will have to verify that the greater amount is justified. Physicians will likely be nervous about the entire proceeding. If an additional complication, like more than seven plants, is added to the situation, physicians will probably be less supportive.)

5. The patient may grow more than seven (7) plants if he/she has written physician support that the larger number is medically necessary, on file with the Health Division.

6. The patient, or patient's attorney must submit papers to the district attorney, not less than 5 days before trial, stating that the patient intends to use the affirmative defense. The patient must also write out the reasons why they are using it and the "factual basis" for it. The factual basis could be met by referring to research, which demonstrates Cannabis' value at treating the condition. The reasons for use could be contained in detailed descriptions of how the patient is helped by using Cannabis. (An Affirmative Defense Notification Form is included in Appendix D)

7. The patient should not be already registered in the Medical Marijuana Program run by the Oregon Health Division.

Simple or not, these legalisms give many non-registered patients the tools to avoid conviction by understanding and using the affirmative defense. Unfortunately, this does assume that the patient will have to hire an attorney and possibly go to court. Preparing for and appearing in court is stressful and expensive. This defense also requires the participation of the physician to affirm that Cannabis is helping the patient. Since so many physicians are squeamish about providing documentation into the registry card program, it is hard to believe they would go to court and testify in the patient's behalf. This fact may disqualify many patients from being able to use the affirmative defense.

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