Understanding the Attorney Generals guidelines

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Once the Oregon Medical Marijuana Act was passed, Hardy Myers, the state's Attorney General, assembled law-enforcement groups to formulate general guidelines for police. The effort yielded modest results. While the work-group did clearly recommend that officers investigate the circumstances of the situation before acting, they deferred to local authorities on most of the complicated issues. This lack of leadership had the potential to create the same vacuum of a lack of consistency that has plagued implementation of California Prop. 215. 1

The Attorney General's OMMA Guidelines state the obvious: patients registered through the Oregon Health Division are legally protected from prosecution for using Cannabis. Police should therefore investigate only to see if the situation in question falls outside the boundaries of the law. The Guidelines are quite clear and specific on this point. Unresolved issues center around a variety of situations police may encounter which do not fall into clear categories.

First, the Attorney General's Guidelines question the legality of transporting Cannabis on the interpretation that any possession of plants or Cannabis on public highways constitutes "public use" which is forbidden by the OMMA. But the Attorney General's claim that any transporting of Cannabis constitutes "public use" is a circular argument which only serves to cloud rather than clear interpretation of the OMMA. This interpretation also leaves open the possibility that local law-enforcement may prosecute patients for transporting Cannabis or plants. (There is no indication that this has yet occurred in Oregon.)

This should not be an issue. The OMMA intended that registrants would be permitted to transport Cannabis and plants on Oregon's highways. (In fact, the OMMA intended to allow any designated primary caregiver to transport plants and usable Cannabis to any registered patient. Also, any registered patient may transport Cannabis and plants to any other registered patient. A patient may also transport plants and Cannabis to any registered caregiver. Thus, anyone who is registered in the State Health Division's Medical Marijuana Program, may transport plants and usable Cannabis to any other registrant as long as quantity limits are not exceeded.)

Second, the Attorney General's Guidelines draw a hard line in interpreting complex situations involving more than one registered patient living at the same address.

The Guidelines question the legal right of patients to each possess up to seven plants. "Statutory Disqualification's" 7 (b) i states: Section 7 of the Act does not expressly state whether a different limit applies when several registrants are present at a single location where marijuana is being produced. The Act can be interpreted to limit the total amount of marijuana grown on that location to seven plants. This interpretation is premised on the assumption that each registrant at the location simultaneously possesses the same marijuana.

Alternately, the Act may be interpreted to permit seven growing plants for each registrant who is present at the growing site. In consultation with the appropriate prosecuting attorney, law enforcement agencies should adopt policies for officers to follow when multiple registrants are encountered at the same location.

This wording appears to ignore the implied allowances written into the OMMA—seven plants for each patient. The absence of wording to describe this scenario is construed by the Attorney General to mean that it may not be legal. Again, the intent of the OMMA was clear: any patient registered with the Oregon Health Division has the legal right to grow and possess seven plants. If two patients live at the same address they have the right to collectively possess up to 14 plants. By deferring to local law-enforcement agencies the interpretation of this question, patients in different parts of Oregon will be treated differently. (This local interpretation of state law is one reason why California has had monumental difficulty in implementing Prop. 215.)

In similar fashion the Guidelines muddle the issue of a designated primary caregiver who cares for multiple patients and who grows seven plants for each patient.

Section 7 of the Act does not expressly state whether a different limit applies when one person is the primary caregiver for multiple patients. Under one interpretation, a primary caregiver may not exceed the seven-plant limit on property under his or her control, regardless of the number of patients under his or her care. Accordingly, ifthe primary caregiver for three patients is growing three mature plants and four immature plants for one patient on property that is under the control of the primary caregiver, the marijuana for the other two patients must be grown on property that is under the control of the patients themselves. (II B (7) b ii.)

The Guidelines attempt to resolve this problem by suggesting that legislative intent is to allow a caregiver to grow Cannabis for more than one patient if several conditions are met. These include:

(a) The multiple sites consist of an address under the control of the primary caregiver and other addresses under the control of the patients, but not more than one address for any of these persons;

(b) Any address where marijuana is grown is registered with the Health Division;

(c) The presumptive limit regarding the quantity of plants and usable marijuana is not exceeded at any of these addresses; and

...the intent of the OMMA was clear: any patient registered with the Oregon Health Division has the legal right to grow and possess seven plants. If two patients live at the same address they have the right to collectively possess up to 14 plants.

By deferring to local law enforcement agencies the interpretation of this question, patients in different parts of Oregon will be treated differently.

...caregivers who intend to cultivate multiples of seven plants for more than one patient should first check with local law-enforcement agencies.

.the Attorney General's Guidelines suggest that police officers should conduct detailed interviews of patients in an effort to establish the legitimacy for their claim of medical use.

This interview.would thus occur without patients being informed of their right to refuse to answer questions (the Miranda warning).

(d) The person is not otherwise disqualified from the exception.

Although this language does not answer the question of whether the caregiver can grow more than seven plants, it does draw boundaries around it. Thus, caregivers who intend to cultivate multiples of seven plants for more than one patient should first check with local law-enforcement agencies. Some localities, like Benton County, promote a more flexible interpretation. 2

Third, the Attorney General's Guidelines suggest that police officers should conduct detailed interviews of patients in an effort to establish the legitimacy for their claim of medical use. These interviews are to include questions relating to medical diagnoses as well as other personal medical information. The Guidelines make no suggestion that the police officer should obtain a release of medical information. This interview (investigation) would thus occur without patients being informed of their right to refuse to answer questions (the Miranda warning). Additionally, "knock-and-talk" searches involve intimidating interviews in an attempt to coerce persons to voluntarily relinquish their privacy rights. The omission of clarifying language serves to increase legal burdens on sick people who have little rhetorical skill in a meeting with well-trained police officers.

There are also situations that are not adequately addressed by the Guidelines such as the legal right patients have to grow more than seven plants. Oregon Revised Statutes 475.319(c) allows patients to use the affirmative defense for a charge of possession or production of Cannabis if the patients:

Possess or produces marijuana only in the amount allowed in ORS 475.306 (1), 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 condition. (ORS475.319(c))

The only reference in the Guidelines is under Section III (B): "Seeking Evidence Regarding the Amount of Marijuana Grown or Possessed." It states:

If the amount of marijuana manufactured or possessed exceeds the presumptive limits established by the Act.the person cannot establish the affirmative defense unless the person proves by a preponderance 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.

This statement does tell officers that patients may possess greater amounts in certain circumstances. But it neglects to describe a process for officers to follow when they contact a patient with more than seven plants, other than that they may destroy the "extra" plants or arrest the patient. (Many patients find that seven plants are inadequate to produce a reliable supply of medicine. OMMA requires that they prove this greater medical need by a "preponderance" of evidence, that is to say, more than half.) Most officers are told to harvest plants above seven in number. Few patients seem to know that they could contest this limit with their physician's support, namely that more plants are indeed medically justified.

The Guidelines define "usable" marijuana as dried leaves and flowers, but make no mention of a patient or caregiver's legal protection when transporting or possessing uncured or fresh flowers. Since fresh flowers are around 75 % water by weight, patients and caregivers may transport up to three (3) ounces of fresh flowers, if not more. Registrants may transport and possess an amount of Cannabis which, when dried down, would equal up to one ounce. Registrants may also transport up to seven live Cannabis plants, but must ensure that the plants are "not exposed to public view" (must be covered) during transport.

In relatively simple situations the Guidelines clearly state the obvious. But in less-clear circumstances, they defer to local interpretation. Fortunately, some local law-enforcement agencies have assumed a flexible approach that acknowledges the social mandate of the OMMA, as well as law-enforcement priorities. The first Oregon locality to draft policies was Benton County. During the first half of 2000, Corvallis Police Chief Pam Roskowski and District Attorney Scott Heiser began a process of clarifying the circumstances that fell outside of the Guidelines. The policy was drafted in coordination with all county law-enforcement agencies. It demonstrated an important priority in quickly distinguishing medical Cannabis patients from others by suggesting that officers evaluate the patient's circumstances.

While acknowledging that obvious violations of the law—selling Cannabis—would be prosecuted, the Benton County Guidelines improve upon the Attorney General's Guidelines in one key way: It explicitly allows multiple registrants in a house to each grow up to seven plants. Although the number of situations this will occur is probably small, it acknowledges a more tolerant attitude on the part of Benton County law-enforcement. When officers encounter a "grow" with more than seven plants, they are expected to use reasonable judgement as to what the law allows. The Benton County policy recommends that: In cases where the grow does not substantially (emphasis added) exceed the 7 plants authorized (3 mature and 4 immature), the officer should simply harvest all plants in excess of the seven plants authorized, but should NOT seize the growing equipment. (1.3.2 (2))

This policy recommendation makes no mention of arresting the patient, only harvesting the excess plants. It also makes no mention of the possibility that the patient may be entitled to grow more than 7 plants. Although the policy is relatively new, Benton County law

Few patients seem to know that they could contest this [seven plant] limit with their physician's support, namely that more plants are indeed medically justified.

Registrants may also transport up to seven live Cannabis plants, but must ensure that the plants are "not exposed to public view"... during transport.

Benton County law-enforcement officials have clarified important issues of police scrutiny regarding medical Cannabis patients.

There are three specific defenses written into the OMMA for use by Cannabis-using patients. These legal strategies are each distinct.

Patients and caregivers should clearly understand that OMMA DOES NOT provide any legal protection against federal laws that prohibit use and cultivation of Cannabis.

The exception from criminal laws regarding Cannabis...offers... patients a defense from prosecution and is the essence of OMMA.

The exception permits the use, possession, cultivation and transport of Cannabis and plants to persons who are registered in Oregon's Medical Marijuana Program.

enforcement officials have clarified important issues of police scrutiny regarding medical Cannabis patients. This protects patients and prioritizes police resources into more important areas. As of 2000, no other Oregon locality had assumed responsibility to adapt the Attorney General's Guidelines for local use.

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