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State v. Bowden

Court of Appeals of Oregon

July 18, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ERIC DWAYNE BOWDEN, Defendant-Appellant.

          Submitted December 1, 2017.

          Clackamas County Circuit Court 16CR26217; Heather L. Karabeika, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Brett J. Allin, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Defendant was convicted of driving under the influence of intoxicants, ORS 813.010-specifically, marijuana-and driving while suspended, ORS 811.182. Defendant argues on appeal that the sentencing court erred by imposing five special conditions of probation related to marijuana use that he asserts run counter to ORS 137.542(2), which provides that, for those holding a marijuana registry card, conditions of probation related to marijuana use must be imposed in the same manner as probation conditions related to prescription drugs under ORS 137.540(1)(b). Held: The sentencing court erred by imposing special conditions that do not conform to the limits of the general condition set out in ORS 137.540(1)(b) and are thus contrary to ORS 137.542(2).

         Remanded for resentencing; otherwise affirmed.

         [292 Or.App. 816] ORTEGA, P. J.

         In this case, defendant was convicted of driving under the influence of intoxicants, ORS 813.010- specifically, marijuana-and driving while suspended, ORS 811.182. On appeal, defendant argues that the sentencing court erred by imposing five conditions of probation that he asserts run counter to ORS 137.542(2). The state concedes that the conditions as currently imposed are invalid, but urges that they might be valid with additional findings that could potentially be made on remand. We reject the state's argument and conclude that the sentencing court does not have discretion to impose the conditions it did. Accordingly, we remand for resentencing and otherwise affirm.

         The relevant facts are procedural. Defendant holds a medical marijuana registry card, which the state concedes amounts to a medical prescription for marijuana for purposes of probation. ORS 137.540(1)(b) provides that probation can include the general condition to "[n]ot use or possess controlled substances except pursuant to a medical prescription." ORS 137.542(2) then provides:

"Notwithstanding ORS 137.540, the conditions of supervision of a person who holds a registry identification card and is sentenced to probation related to the use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of supervision of a person sentenced to probation related to prescription drugs."

         The conditions imposed in this case provide that defendant (1) "shall not possess, apply for, or obtain a medical marijuana card, or act as a caregiver"; (2) must not "use or possess * * * illegal drugs or narcotics"; (3) must not "possess any narcotics paraphernalia, including smoking devices, and shall not associate with any person known to use, sell or possess illegal drugs or narcotics"; (4) must "obtain a substance abuse evaluation as directed by the probation officer and follow through with any treatment recommendations"; and (5) must not "frequent places where narcotics are used, sold, or kept." Defendant argues that all of these conditions violate ORS 137.540(1)(b) and ORS 137.542. As to the first condition, defendant asserts that it directly conflicts with [292 Or.App. 817] ORS 137.542, and, as to the remaining four conditions, defendant contends that they are overbroad because they limit defendant's ability to use, possess, or obtain medical marijuana as directed by his physician. Defendant asks us to reverse the challenged probation conditions to the extent necessary to comply with ORS 137.542.

         The state concedes that the probation conditions are invalid as currently assessed, but asserts that, under ORS 137.540(2), the court may, if it makes the required factual findings, impose a special condition of probation that prohibits defendant from obtaining or possessing a medical marijuana card. Consistent with that view, the state urges us to remand for the trial court "to determine whether the circumstances of this case support the challenged conditions under ORS 137.540(2), and if not, to modify those conditions to create an express exception for medical marijuana use under a valid medical marijuana card or otherwise conforming with ORS 475B.[913] (creating an affirmative defense to crimes based on marijuana possession or use for medical purposes)."

         As noted above, ORS 137.540(1)(b) sets forth one of the statutorily provided general conditions of probation that a sentencing court may impose-prohibiting use or possession of controlled substances "except pursuant to ...


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