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State v. Ellis

Court of Appeals of Oregon

December 18, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMES JONATHAN ELLIS, Defendant-Appellant.

Submitted on November 01, 2013.

Washington County Circuit Court, No. D103150T Suzanne Upton, Judge.

Leland R. Berger and Courtney N. Moran filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

PER CURIAM

Defendant, an Oregon Medical Marijuana Act (OMMA) cardholder, was acquitted of driving under the influence of intoxicants (DUII) and sought the return of hashish that had been seized from him when he was arrested for DUII. The trial court entered an order denying defendant's motion to return his hashish, and defendant appeals the court's order. Defendant contends that hashish constitutes "usable marijuana" and, therefore, that it must be returned upon a determination that defendant lawfully possessed it under the OMMA. See ORS 475.323(2).[1] The state concedes that hashish is usable marijuana under the OMMA and, therefore, that the trial court erred in denying defendant's motion. We agree.

The OMMA adopts the definition of marijuana contained in the Uniform Controlled Substances Act (CSA). ORS 475.302(6). In turn, the CSA defines marijuana to include "every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its resin." ORS 475.005(16)(a) (emphasis added). We have held that hashish is marijuana under that definition. State v. Ness, 54 Or.App. 530, 538, 635 P.2d 1025 (1981), aff'd, 294 Or 8, 653 P.2d 548 (1982). Similarly, "usable marijuana" under the OMMA is defined to include "any mixture or preparation" of the plant that is appropriate for medical use. ORS 475.302(11) (emphasis added). The state concedes that hashish falls within that definition, and the record supports the state's concession. Accordingly, we conclude that the court erred in denying defendant's motion for the return of the seized hashish.

Reversed and remanded.


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