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State v. Luster

Court of Appeals of Oregon

May 28, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERT JAY LUSTER, Defendant-Appellant

Submitted December 23, 2014.

Union County Circuit Court. F18232. Brian Dretke, Judge.

Peter Gartlan, Chief Defender, and Daniel C. Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge. Hadlock, J., concurring in part, dissenting in part.

OPINION

[271 Or.App. 426] TOOKEY, J.

Defendant appeals a judgment of conviction for stalking, ORS 163.732(2), and unlawful possession of marijuana, ORS 475.864(4). In his first assignment of error, defendant contends that the trial court improperly denied his motion for judgment of acquittal on the stalking charge. We reject that assignment of error without discussion. In his second assignment of error, defendant contends that the trial court improperly barred him from using the " medical marijuana" affirmative defense set forth in ORS 475.319(1), which is part of the Oregon Medical Marijuana Act (the OMMA), ORS 475.300 to 475.346. " We review the record to determine whether defendant presented any evidence

Page 576

to support the defense[ ] he sought to assert and evaluate that evidence in the light most favorable to defendant." State v. Miles, 197 Or.App. 86, 88, 104 P.3d 604 (2005). We conclude that defendant may not avail himself of the " medical marijuana" affirmative defense set forth in ORS 475.319(1) because he did not meet at least one of the requirements specified in ORS 475.319(1)(a). Accordingly, we affirm.

We begin with a brief overview of the governing law. The OMMA was adopted by Oregon voters in the 1998 general election as Ballot Measure 67. OAR 333-008-0000. Under the OMMA, " a person engaged in * * * the medical use of marijuana is excepted from the criminal laws of the state for possession * * * of marijuana" if certain requirements are satisfied. ORS 475.309(1). As relevant here, a person wishing to be excepted from such criminal laws must apply for a " registry identification card," which, once obtained, expires if it is not renewed annually. See ORS 475.309 (setting forth the requirements for obtaining and renewing a medical marijuana " registry identification card" ). To obtain a registry identification card, a person is required to submit, among other things, " [v]alid, written documentation from the person's attending physician stating that the person has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects of the person's debilitating medical condition[.]" ORS 475.309(2)(a).

[271 Or.App. 427] In addition, and as a separate matter, a person charged with " possession or production of marijuana, or any other criminal offense in which possession or production of marijuana is an element," has " an affirmative defense" to those criminal charges under the OMMA if the person meets certain requirements, which are discussed below. ORS 475.319(1). It is that affirmative defense that is at issue in this case.

In 2007, defendant began participating in the Oregon Medical Marijuana Program (OMMP) by submitting documentation to the Department of Human Services, which monitors the OMMP. That documentation included (1) a diagnosis, made by an attending physician, that defendant had a debilitating medical condition and (2) a statement from that physician that " [m]arijuana used medically may mitigate the symptoms or effects of this patient's condition." Based on that documentation, defendant received a registry identification card, which was valid for one year. Defendant renewed his card in 2008 and 2009, each time after submitting an updated diagnosis from an attending physician and a statement from that physician that " [m]arijuana used medically may mitigate the symptoms or effects of this patient's condition." Defendant's medical marijuana card expired on September 8, 2010, and defendant did not renew it.[1]

On September 22, 2010, defendant went to the office of a certified nurse practitioner, " complaining of back pain and something wrong with his finger." The nurse practitioner diagnosed defendant with " a debilitating medical condition, namely, a back injury" and " advised [him] that the medical use of marijuana may mitigate the symptoms or effects of his back injury." The nurse practitioner then forwarded his " progress notes" to Mothers Against Misuse and Abuse (MAMA), a nonprofit organization that helps its " patients understand the [OMMP] registration process, get needed medical records and schedule appointments with doctors knowledgeable about cannabis therapeutics." Although MAMA reviewed defendant's records, defendant [271 Or.App. 428] never followed up with a MAMA clinic to see a physician " for a cannabis appointment."

In May 2011, law enforcement officers searched defendant's bedroom in conjunction with the stalking investigation, and they discovered marijuana, a marijuana pipe, and a set of digital scales. Defendant was subsequently charged with, among other things, possession of marijuana.

Before trial, defendant notified the state of his intent to use the affirmative defense set forth in ORS 475.319(1), which provides:

Page 577

" Except as provided in ORS 475.316 and 475.342, it 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 been advised by the person's 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 amounts permitted under ORS 475.320."

(Emphasis added.)

The state objected to that defense by way of a motion in limine, arguing that defendant did not meet the requirements set forth in ORS 475.319(1)(a) because he lacked a qualifying diagnosis--one that was made by an attending physician--and advice made by an attending physician within the 12-month period prior to arrest. At a hearing on the state's motion, the trial court concluded that defendant was prohibited from using the affirmative defense set forth in ORS 475.319(1), in part, because " defendant failed to provide written documentation, signed by the patient's attending physician within 12 months prior to arrest ** * reconfirming his debilitating medical condition and advising that the use of medical marijuana could perhaps mitigate his debilitating medical condition." After a bench trial, [271 Or.App. 429] defendant was convicted of possession of marijuana, as noted above, and defendant now appeals.

On appeal, defendant argues that the trial court erred when it prohibited him from using the affirmative defense set forth in ORS 475.319(1). First, defendant argues that the diagnosis requirement in ORS 475.319(1)(a) does not specify who must make the diagnosis, and, thus, does not require the diagnosis to be made by the person's attending physician. Accordingly, in defendant's view, he satisfied the diagnosis requirement by obtaining a diagnosis from a nurse practitioner within 12 months prior to his arrest. Second, defendant argues that the advice requirement in ORS 475.319(1)(a) does not specify when the advice must be given, and, thus, does not require that the advice must be given within 12 months prior to arrest. Accordingly, in defendant's view, he satisfied the advice requirement by obtaining advice from an attending physician, even though that advice was given more than 12 months prior to his arrest. The state responds that defendant may not use the affirmative defense because " the OMMA requires current diagnosis and advice from a patient's attending physician for the lawful use of medical marijuana." (Footnote omitted.)

Because the dispute in this case centers on whether defendant met the requirements of ORS 475.319(1)(a), which was passed by initiative, our task is to determine the intent of the voters, using the methods outlined in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), and State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). See PGE, 317 Or. at 612 n 4 (noting that the PGE methodology " applies, not only to statutes enacted by the legislature, but also to the interpretation of laws and constitutional amendments adopted by initiative" ); see also State v. Root, 202 Or.App. 491, 495, 123 P.3d 281 (2005) (using the PGE methodology as a " template" to construe ORS 475.319(1)). We thus examine the statutory text and context, and, where it is helpful, legislative history. Gaines, 346 Or. at 171-73.

As noted, the text of ORS 475.319(1)(a) requires that, in order to make use of the " medical marijuana" affirmative defense, a person must have been " diagnosed with a debilitating medical condition within 12 months prior to [271 Or.App. 430] arrest and been advised by the person's attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition[.]" (Emphasis added.) As can be seen from the plain text of the statute, ORS 475.319(1)(a) sets forth two requirements: a diagnosis within 12 months prior to arrest, as specified by the first clause, and advice from the person's attending physician, as specified by the second clause.

Page 578

We need not decide the question raised by defendant's first argument, relating to the diagnosis requirement, because, even assuming without deciding that a person other than an attending physician may make a diagnosis under the provisions of ORS 475.319(1)(a), and that defendant had such a qualifying diagnosis from his nurse practitioner in September 2010, we do not agree with defendant's second argument, that the advice requirement of ORS 475.319(1)(a) may be satisfied by advice that is based on a diagnosis that is made more than 12 months prior to arrest. Because defendant received no medical marijuana advice based on a diagnosis made within 12 months prior to arrest, he failed to meet at least one of the requirements specified in ORS 475.319(1)(a) and may not avail himself of the " medical marijuana" affirmative defense.

As an initial matter, we note that the two requirements, although set forth in two clauses, are connected by the word " and," which is conjunctive in nature. See Lommasson v. School Dist. No. 1, 201 Or. 71, 79, 261 P.2d 860 (1953), adh'd to in part on reh'g, 201 Or. 71, 267 P.2d 1105 (1954) (stating that, in general, when the word " and" is used in statutes, it is " strictly of a conjunctive ** * nature" ). We further note that the phrase " debilitating medical condition" appears twice in ORS 475.319(1)(a)--once in each clause. When the phrase " debilitating medical condition" appears in the second clause, it is preceded by the word " that," which functions as a demonstrative adjective. As a result, the phrase " that debilitating medical condition" in the second clause refers back to the " debilitating medical condition" in the first clause--the one that must be diagnosed " within 12 months prior to arrest." ORS 475.319(1)(a); see also Root, 202 Or.App. at 497 (concluding that, to use the affirmative defense of medical marijuana, the defendant's [271 Or.App. 431] " attending physician's advice regarding the use of medical marijuana had to occur before the incident for which he was arrested (emphasis added)). Accordingly, we conclude that the advice given by the attending physician must be based on a particular diagnosis of a " debilitating medical condition" --the diagnosis that is made within 12 months prior to arrest--and, thus, also must be given within 12 months prior to arrest.

The dissent's disagreement with our holding is based, in part, on its view that it is not " illogical" to apply the affirmative defense in a case where " a person may have been diagnosed with a particular debilitating medical condition within the 12 months preceding the person's arrest, yet have received medical marijuana advice[2] about that same condition only earlier, and not within the pertinent year." 271 Or.App. at 436 (Hadlock, J., concurring in part, dissenting in part). However, if the dissent were correct, a physician's advice, once given, would be valid indefinitely. As defense counsel argued to the trial court in this case, " so long as you have an active diagnosis of a debilitating medical condition[,]" the advice " could go on in perpetuity. Forever if you've been advised by your primary care physician that the marijuana may help that." Because medical conditions--and a physician's advice about those medical conditions--can change over time, we do not think that ORS 475.319 was intended to permit that result.

The dissent's disagreement is also based, in part, on inferences it draws from a different statutory provision--ORS 475.309--which, as noted above, sets forth the requirements for obtaining and renewing a medical marijuana registry identification card. 271 Or.App. at 437-38 (Hadlock, J., concurring in part, dissenting in part). To support its argument, the dissent reviews the legislative history of that provision, focusing particularly on the requirements for registry identification card renewal, and then infers, based on those requirements, that the affirmative defense in ORS 475.319(1) is available to a person who has received medical [271 Or.App. 432] marijuana advice " at some point that could be more than 12 months before arrest[.]" Id. at 9.

We do not find as much significance in the registry identification card renewal requirements as does ...


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