Bill Text: OR HB2674 | 2011 | Regular Session | Introduced

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Bill Title: Relating to possession of controlled substances; declaring an emergency.

Spectrum: Unknown

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2674 Detail]

Download: Oregon-2011-HB2674-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 303-1

                         House Bill 2674

Introduced and printed pursuant to House Rule 12.00. Presession
  filed (at the request of House Interim Committee on Judiciary)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Reduces possession of user quantity of controlled substance in
Schedules I and II to Class A misdemeanor. Punishes by maximum of
one year's imprisonment, $6,250 fine, or both. Defines 'user
quantity' as quantity of controlled substance that is less than
quantities listed in ORS 475.900 (2)(b) and possession of which
is not commercial drug offense.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to possession of controlled substances; amending ORS
  161.570, 475.005, 475.840, 475.854, 475.864, 475.874, 475.884
  and 475.894; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 475.840 is amended to read:
  475.840. (1) Except as authorized by ORS 475.005 to 475.285 and
475.840 to 475.980, it is unlawful for   { - any - }   { + a + }
person to manufacture or deliver a controlled substance.
 { - Any - }   { + A + } person who violates this subsection with
respect to:
  (a) A controlled substance in Schedule I, is guilty of a Class
A felony, except as otherwise provided in ORS   { - 475.860 - }
 { +  475.886 and 475.890 + }.
  (b) A controlled substance in Schedule II, is guilty of a Class
B felony, except as otherwise provided in ORS  { + 475.856,
475.858, 475.860, 475.862, + } 475.878, 475.880, 475.882,
475.888,
  { - 475.890, - }  475.892, 475.904 and 475.906.
  (c) A controlled substance in Schedule III, is guilty of a
Class C felony, except as otherwise provided in ORS 475.904 and
475.906.
  (d) A controlled substance in Schedule IV, is guilty of a Class
B misdemeanor.
  (e) A controlled substance in Schedule V, is guilty of a Class
C misdemeanor.
  (2) Except as authorized in ORS 475.005 to 475.285 and 475.840
to 475.980, it is unlawful for   { - any - }   { + a + } person
to create or deliver a counterfeit substance.   { - Any - }
 { + A + } person who violates this subsection with respect to:
  (a) A counterfeit substance in Schedule I, is guilty of a Class
A felony.
  (b) A counterfeit substance in Schedule II, is guilty of a
Class B felony.
  (c) A counterfeit substance in Schedule III, is guilty of a
Class C felony.
  (d) A counterfeit substance in Schedule IV, is guilty of a
Class B misdemeanor.
  (e) A counterfeit substance in Schedule V, is guilty of a Class
C misdemeanor.
  (3) It is unlawful for   { - any - }   { + a + } person
knowingly or intentionally to possess a controlled substance
unless the substance was obtained directly from, or pursuant to,
a valid prescription or order of a practitioner while acting in
the course of professional practice, or except as otherwise
authorized by ORS 475.005 to 475.285 and 475.840 to 475.980.
 { - Any - }   { + A + } person who violates this subsection with
respect to:
  (a) A controlled substance in Schedule I  { - , - }  { + :
  (A) + } Is guilty of a Class B felony, except as otherwise
provided in   { - ORS 475.864 - }  { +  subparagraph (B) of this
paragraph and ORS 475.894.
  (B) Is guilty of a Class A misdemeanor if the person possesses
a user quantity of the controlled substance + }.
  (b) A controlled substance in Schedule II  { - , - }  { + :
  (A) + } Is guilty of a Class C felony { + , except as otherwise
provided in subparagraph (B) of this paragraph and ORS 475.864.
  (B) Is guilty of a Class A misdemeanor if the person possesses
a user quantity of the controlled substance + }.
  (c) A controlled substance in Schedule III, is guilty of a
Class A misdemeanor.
  (d) A controlled substance in Schedule IV, is guilty of a Class
C misdemeanor.
  (e) A controlled substance in Schedule V, is guilty of a
violation.
  (4) In   { - any - }   { + a + } prosecution under this section
for manufacture, possession or delivery of that plant of the
genus Lophophora commonly known as peyote, it is an affirmative
defense that the peyote is being used or is intended for use:
  (a) In connection with the good faith practice of a religious
belief;
  (b) As directly associated with a religious practice; and
  (c) In a manner that is not dangerous to the health of the user
or others who are in the proximity of the user.
  (5) The affirmative defense created in subsection (4) of this
section is not available to   { - any - }   { + a + } person who
has possessed or delivered the peyote while incarcerated in a
correctional facility in this state.
  (6)(a) Notwithstanding subsection (1) of this section, a person
who  { + unlawfully + } manufactures or delivers a controlled
substance in Schedule IV and who thereby causes death to
 { - any - }  { + another + } person is guilty of a Class C
felony.
  (b) For purposes of this subsection, causation is established
when the controlled substance plays a substantial role in the
death of   { - any - }   { + the other + } person.
  SECTION 2. ORS 475.854 is amended to read:
  475.854. (1) It is unlawful for   { - any - }   { + a + }
person knowingly or intentionally to possess heroin.
  (2) { + (a) Except as provided in paragraph (b) of this
subsection, + } unlawful possession of heroin is a Class B
felony.
   { +  (b) Unlawful possession of heroin is a Class A
misdemeanor if the person possesses a user quantity of
heroin. + }
  SECTION 3. ORS 475.864 is amended to read:
  475.864. (1) It is unlawful for   { - any - }   { + a + }
person knowingly or intentionally to possess marijuana.
  (2) { + (a) Except as provided in paragraph (b) of this
subsection and subsections (3) and (4) of this section, + }
unlawful possession of marijuana is a Class B felony.
   { +  (b) Except as provided in subsections (3) and (4) of this
section, unlawful possession of marijuana is a Class A
misdemeanor if the person possesses a user quantity of
marijuana. + }
  (3)   { - Notwithstanding subsection (2) of this section, - }
Unlawful possession of marijuana is a violation if the amount
possessed is less than one avoirdupois ounce of the dried leaves,
stems and flowers of the plant Cannabis family Moraceae. A
violation under this subsection is punishable by a fine of not
less than $500 and not more than $1,000. Fines collected under
this subsection shall be forwarded to the Department of Revenue
for deposit in the Criminal Fine and Assessment Account
established under ORS 137.300.
  (4)   { - Notwithstanding subsections (2) and (3) of this
section, - }  Unlawful possession of marijuana is a Class C
misdemeanor if the amount possessed is less than one avoirdupois
ounce of the dried leaves, stems and flowers of the plant
Cannabis family Moraceae and the possession takes place in a
public place, as defined in ORS 161.015, that is within 1,000
feet of the real property comprising a public or private
elementary, secondary or career school attended primarily by
minors.
  SECTION 4. ORS 475.874 is amended to read:
  475.874. (1) It is unlawful for   { - any - }   { + a + }
person knowingly or intentionally to possess
3,4-methylenedioxymethamphetamine.
  (2) { + (a) Except as provided in paragraph (b) of this
subsection, + } unlawful possession of
3,4-methylenedioxymethamphetamine is a Class B felony.
   { +  (b) Unlawful possession of
3,4-methylenedioxymethamphetamine is a Class A misdemeanor if the
person possesses a user quantity of
3,4-methylenedioxymethamphetamine. + }
  SECTION 5. ORS 475.884 is amended to read:
  475.884. (1) It is unlawful for   { - any - }   { + a + }
person knowingly or intentionally to possess cocaine unless the
substance was obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while acting in the
course of professional practice, or except as otherwise
authorized by ORS 475.005 to 475.285 and 475.840 to 475.980.
  (2) { + (a) Except as provided in paragraph (b) of this
subsection, + } unlawful possession of cocaine is a Class C
felony.
   { +  (b) Unlawful possession of cocaine is a Class A
misdemeanor if the person possesses a user quantity of
cocaine. + }
  SECTION 6. ORS 475.894 is amended to read:
  475.894. (1) It is unlawful for   { - any - }   { + a + }
person knowingly or intentionally to possess methamphetamine
unless the substance was obtained directly from, or pursuant to,
a valid prescription or order of a practitioner while acting in
the course of professional practice, or except as otherwise
authorized by ORS 475.005 to 475.285 and 475.840 to 475.980.
  (2) { + (a) Except as provided in paragraph (b) of this
subsection, + } unlawful possession of methamphetamine is a Class
C felony.
   { +  (b) Unlawful possession of methamphetamine is a Class A
misdemeanor if the person possesses a user quantity of
methamphetamine. + }
  SECTION 7. ORS 475.005 is amended to read:
  475.005. As used in ORS 475.005 to 475.285 and 475.840 to
475.980, unless the context requires otherwise:

  (1) 'Abuse' means the repetitive excessive use of a drug short
of dependence, without legal or medical supervision, which may
have a detrimental effect on the individual or society.
  (2) 'Administer' means the direct application of a controlled
substance, whether by injection, inhalation, ingestion or any
other means, to the body of a patient or research subject by:
  (a) A practitioner or an authorized agent thereof; or
  (b) The patient or research subject at the direction of the
practitioner.
  (3) 'Administration' means the Drug Enforcement Administration
of the United States Department of Justice, or its successor
agency.
  (4) 'Agent' means an authorized person who acts on behalf of or
at the direction of a manufacturer, distributor or dispenser. It
does not include a common or contract carrier, public
warehouseman or employee of the carrier or warehouseman.
  (5) 'Board' means the State Board of Pharmacy.
  (6) 'Controlled substance':
  (a) Means a drug or its immediate precursor classified in
Schedules I through V under the federal Controlled Substances
Act, 21 U.S.C. 811 to 812, as modified under ORS 475.035. The use
of the term 'precursor' in this paragraph does not control and is
not controlled by the use of the term 'precursor' in ORS 475.840
to 475.980.
  (b) Does not mean industrial hemp, as defined in ORS 571.300,
or industrial hemp commodities or products.
  (7) 'Counterfeit substance' means a controlled substance or its
container or labeling, which, without authorization, bears the
trademark, trade name, or other identifying mark, imprint, number
or device, or any likeness thereof, of a manufacturer,
distributor or dispenser other than the person who in fact
manufactured, delivered or dispensed the substance.
  (8) 'Deliver' or 'delivery' means the actual, constructive or
attempted transfer, other than by administering or dispensing,
from one person to another of a controlled substance, whether or
not there is an agency relationship.
  (9) 'Device' means instruments, apparatus or contrivances,
including their components, parts or accessories, intended:
  (a) For use in the diagnosis, cure, mitigation, treatment or
prevention of disease in humans or animals; or
  (b) To affect the structure of any function of the body of
humans or animals.
  (10) 'Dispense' means to deliver a controlled substance to an
ultimate user or research subject by or pursuant to the lawful
order of a practitioner, and includes the prescribing,
administering, packaging, labeling or compounding necessary to
prepare the substance for that delivery.
  (11) 'Dispenser' means a practitioner who dispenses.
  (12) 'Distributor' means a person who delivers.
  (13) 'Drug' means:
  (a) Substances recognized as drugs in the official United
States Pharmacopoeia, official Homeopathic Pharmacopoeia of the
United States or official National Formulary, or any supplement
to any of them;
  (b) Substances intended for use in the diagnosis, cure,
mitigation, treatment or prevention of disease in humans or
animals;
  (c) Substances (other than food) intended to affect the
structure or any function of the body of humans or animals; and
  (d) Substances intended for use as a component of any article
specified in paragraph (a), (b) or (c) of this subsection;
however, the term does not include devices or their components,
parts or accessories.
  (14) 'Electronically transmitted' or 'electronic transmission'
means a communication sent or received through technological
apparatuses, including computer terminals or other equipment or
mechanisms linked by telephone or microwave relays, or any
similar apparatus having electrical, digital, magnetic, wireless,
optical, electromagnetic or similar capabilities.
  (15) 'Manufacture' means the production, preparation,
propagation, compounding, conversion or processing of a
controlled substance, either directly or indirectly by extraction
from substances of natural origin, or independently by means of
chemical synthesis, or by a combination of extraction and
chemical synthesis, and includes any packaging or repackaging of
the substance or labeling or relabeling of its container, except
that this term does not include the preparation or compounding of
a controlled substance:
  (a) By a practitioner as an incident to administering or
dispensing of a controlled substance in the course of
professional practice; or
  (b) By a practitioner, or by an authorized agent under the
practitioner's supervision, for the purpose of, or as an incident
to, research, teaching or chemical analysis and not for sale.
  (16) 'Marijuana':
  (a) Except as provided in this subsection, means all parts of
the plant Cannabis family Moraceae, whether growing or not; the
resin extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the
plant or its resin.
  (b) Does not mean the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative,
mixture, or preparation of the mature stalks (except the resin
extracted therefrom), fiber, oil, or cake, or the sterilized seed
of the plant which is incapable of germination.
  (c) Does not mean industrial hemp, as defined in ORS 571.300,
or industrial hemp commodities or products.
  (17) 'Person' includes a government subdivision or agency,
business trust, estate, trust or any other legal entity.
  (18) 'Practitioner' means physician, dentist, veterinarian,
scientific investigator, certified nurse practitioner, physician
assistant or other person licensed, registered or otherwise
permitted by law to dispense, conduct research with respect to or
to administer a controlled substance in the course of
professional practice or research in this state but does not
include a pharmacist or a pharmacy.
  (19) 'Prescription' means a written, oral or electronically
transmitted direction, given by a practitioner for the
preparation and use of a drug. When the context requires,
'prescription ' also means the drug prepared under such written,
oral or electronically transmitted direction. Any label affixed
to a drug prepared under written, oral or electronically
transmitted direction shall prominently display a warning that
the removal thereof is prohibited by law.
  (20) 'Production' includes the manufacture, planting,
cultivation, growing or harvesting of a controlled substance.
  (21) 'Research' means an activity conducted by the person
registered with the federal Drug Enforcement Administration
pursuant to a protocol approved by the United States Food and
Drug Administration.
  (22) 'Ultimate user' means a person who lawfully possesses a
controlled substance for the use of the person or for the use of
a member of the household of the person or for administering to
an animal owned by the person or by a member of the household of
the person.
   { +  (23) 'User quantity' means a quantity of a controlled
substance:
  (a) That is less than the quantities listed in ORS 475.900
(2)(b); and
  (b) The possession of which is not a commercial drug offense
within the meaning of ORS 475.900 (1)(b). + }
  SECTION 8. ORS 161.570 is amended to read:
  161.570. (1) As used in this section, 'nonperson felony ' has
the meaning given that term in the rules of the Oregon Criminal
Justice Commission.
  (2) A district attorney may elect to treat a Class C nonperson
felony or a   { - violation of - }   { + felony described in + }
ORS 475.840 (3)(a), 475.854, 475.864   { - (2) - }  or 475.874 as
a Class A misdemeanor. The election must be made by the district
attorney orally or in writing at the time of the first appearance
of the defendant. If a district attorney elects to treat a Class
C felony or a   { - violation of - }   { + felony described
in + } ORS 475.840 (3)(a), 475.854, 475.864   { - (2) - }  or
475.874 as a Class A misdemeanor under this subsection, the court
shall amend the accusatory instrument to reflect the charged
offense as a Class A misdemeanor.
  (3) If, at some time after the first appearance of a defendant
charged with a Class C nonperson felony or a   { - violation
of - }   { + felony described in + } ORS 475.840 (3)(a), 475.854,
475.864   { - (2) - } or 475.874, the district attorney and the
defendant agree to treat the charged offense as a Class A
misdemeanor, the court may allow the offense to be treated as a
Class A misdemeanor by stipulation of the parties.
  (4) If a Class C felony or a   { - violation of - }
 { + felony described in + } ORS 475.840 (3)(a), 475.854, 475.864
 { - (2) - }  or 475.874 is treated as a Class A misdemeanor
under this section, the court shall clearly denominate the
offense as a Class A misdemeanor in any judgment entered in the
matter.
  (5) If no election or stipulation is made under this section,
the case proceeds as a felony.
  (6) Before a district attorney may make an election under
subsection (2) of this section, the district attorney shall adopt
written guidelines for determining when and under what
circumstances the election may be made. The district attorney
shall apply the guidelines uniformly.
  (7) Notwithstanding ORS 161.635, the maximum fine that a court
may impose upon conviction of a misdemeanor under this section
may not exceed the amount provided in ORS 161.625 for the class
of felony receiving Class A misdemeanor treatment.
  SECTION 9.  { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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