Judge Rules MMJ Patient didn't have enough MJ

From Judge William Snouffer Circuit Court Judge Multnomah County Courthouse Portland, OR 97204

Ms. Erin Olson Deputy District Attorney Multnomah County Courthouse Portland, OR 97204

Mr. Andrew Kohlmetz Attorney at Law 140 S. W. Yamhill, Suite 200 Portland, OR 97204

This case was before me on September 17 and October 6, 2001, to consider the state's Motion in Limine. The state seeks to bar defendant's evidence of medical necessity under ORS 475.319, and also to bar evidence of the "choice of evils" defense.

On October 5, 2001, I granted the state's motion with respect to the medical necessity defense, finding that defendant's "attending physician" had not advised defendant that "the medical use of marijuana may mitigate the symptoms" of defendant's medical condition. ORS 475.319(1)(a). To the contrary, defendant's attending physician had advised against such use of marijuana.

The use of the "choice of evils" defense is a bit more Complicated. Based on a further study of the statutes and case law, however, I conclude that the "choice of evils" defense is not available factually to defendant in this case, so I will also grant the state's motion barring that defense in this case.

The choice of evils defense is codified in ORS 161.200. It provides that conduct that otherwise would be criminal is justifiable and not criminal when the conduct "is necessary as an emergency measure to avoid an imminent public or private injury."(There are other qualifications on the defense that are not pertinent here.)

The choice of evils defense is not available in this case. Defendant cannot establish that his possession and growing of marijuana was "an emergency measure" that he took in order "to avoid an imminent public or private injury." His evidence was that he engaged in that conduct in order, purportedly, to treat a chronic and longstanding medical condition. There was no evidence that his medical condition was about to take an acute turn for the worse. Thus there was no "emergency" that necessitated defendant's conduct in order "to avoid an imminent...private injury."

Defendant argues nevertheless that the Oregon Medical Marijuana Act gives him the right to present the choice of evils defense. ORS 475.319(3) provides:

"No person engaged in the medical use of marijuana who claims that marijuana provides medically necessary benefits and who is cHarged with a crime pertaining to such use or marijuana shall be precluded from presenting a defense of choice of evils, as set forth in ORS 161.200..."

Defendant asserts that this statutory language grants him the authority to present the defense despite what he says is a conflict with the language of ORS 161.200. But there really is no conflict. ORS 475.319(3) allows the choice of evils defense "as set forth in ORS 161.200." There may well be sets of facts or circumstances or types of cases in which the defense could be used "as set forth in ORS 161.200." However this defendant's particular set of factual circumstances is not one of those sets of cases, as discussed in the preceding paragraph.

There is another reason why this defendant does not qualify under ORS 475.319(3) to present the choice of evils defense. The statute allows the defense only to a person "engaged in the medical use of marijuana..." There are limits upon the "medical use" of marijuana. ORS 475.319(3) allows the defense "provided that the amount of marijuana at issue is no greater than permitted under ORS 475.306..." That latter statute limits the amount of marijuana present at the location involved to "three mature marijuana plants, four immature marijuana plants and one ounce of useable marijuana per each mature plant." Defendant cannot meet those threshold limits. The amount he possessed exceeded those limits. According to the testimony, and Exhibits 6 and 8, defendant possessed three small, indeed tiny, plants and 15.4 grams of "vegetable material" that tested positive for marijuana. Although that amount is less than one ounce (an ounce equals 28.349 grams), the statute only permits the possession of "one ounce of useable marijuana Per each mature plant." (emphasis added) Defendant possessed no mature plants. So his possession of any amount of useable marijuana exceeded ORS 475.306. Thus he is disqualified from presenting the defense.

Because of these rulings it is not necessary to decide the state's preemption argument. But an advisory comment or two might be useful. If an appellate court were to disagree with my rulings and conclude that this defendant is entitled statutorily to raise the choice of evils defense then the trial court would be faced with the state's preemption argument. The state asserts that federal law preempts and overrides the language of ORS 475.319(3) which purports to grant a choice of evils defense. For purposes of this case, I disagree. Preemption occurs if there is a clear conflict between federal and state law. See, State v. Rodriguez, 317 Or 27, 35-36 (1993). That does not exist here. 21 U.S.C. sec. 903 says that there is "an intent on the part of Congress to occupy the field...(when) there is a positive conflict between (a) provision of this title and (a) state law so that the two cannot consistently stand together." There is no federal statute that says that states may not allow a choice of evils defense. Thus there is no "positive conflict" and no preemption.

Ms. Olson should prepare an appropriate order granting both prongs of the state's motion.

Thank you both for presenting an interesting and well researched and written set of issues.

Please coordinate your calendars and arrange for a mutually agreeable time for further proceedings and a court trial on the merits at your earliest convenience.

It appears that in Oregon, medical marijuana patients can be denied statute based defenses because they don't have "ENOUGH" marijuana. Pretty strange reasoning. It also turns out this patient was not seeing the doctor the judge deemed to be the "attending physician". He was seeing another doctor who did recommend the marijuana. This is what our tax dollars are going for. Judges nit-picking words to put cancer patients in jail.

It sure looks like the intent of the legislators was not to create this kind of Alice in Wonderland situation, where the person had to have mature plants to "cover" other medpot. Whatever one thinks of the wisdom of medpot, this stinks.

Yep, there isn't a more dangerous person than a person with cancer wanting to use Maryjane.

They make the Bin Runnin' and Bin Hidin' families look like regular church goers.

Judge showed a lot of courage the way he ruled. A regular hero.

It looks like one who wishes to technically get under the medical-mj wire in Oregon needs to be sure that the prescribing physician is in fact his primary care physician (even if means less or no coverage from a health insurance plan), and that he grows the stuff from scratch not destroying the main plants. However, I doubt that three plants can even generate enough mj to be continuously used at the levels that medical-mj advocates recommend, not even with Miracle-Gro.

Cancer patient? Where's it say that? And if his oncologist and primary physician didn't say he needed marijuana, and if he's using it for more than controlling nausea from chemo (and legal THC is available for this) I suspect he's using it to get high. Marijuana is a lousy pain killer, as articles reviewing it's use in the British literature shows.

>>I suspect he's using it to get high. <<

So what? Even if he is, how is that harming you or society in any way? Is this where we have arrived? Society gets to decide we must suffer our cancer without even a few hours of distraction. You are a real gem.

It appears that in Oregon, medical marijuana patients can be denied statute based defenses because they don't have "ENOUGH" marijuana.

But the judge didn't use that as the main reason(s) for barring the defendants "greater evils" defense.

Who gives a rats butt what you suspect?

Are you this guys doctor? Have you evaluated his disease or his treatment personally?

If not, your opinion isn't grounded in anything other than sheer conjecture. Not that that has ever stopped you from spouting inanities before.

I'd like to see a lawyer rewrite the "Dick and Jane" book series. These glib sonuvaguns could stretch "See Dick run" into 37 pages. As long as lawyers are making the laws, nobody except lawyers will understand laws.

If the proponents of Doper Nation weren't using medical marijuana as a stalking horse to legitimize all marijuana use, then terminally ill people who wanted to use it for pleasure would have a much better chance of doing it without getting caught or prosecuted.

If not, your opinion isn't grounded in anything other than sheer conjecture. Not that that has ever stopped you from spouting inanities before.

LadyDoc did state openly in her post that her opinion was based on information in the judge's letter, medical literature, and conjecture.

I realize this was not the main reason for denial. But the main reason was that the Judge did not view this man's pain as an emergency. Well, from what I have heard, chronic pain can be a strange thing. Some people can learn to ignore it, while with other people it can drive them completely nuts. Who is the Judge to decide if and when the relief of chronic pain is or is not an emergency?

I find the Judges reasoning heartless, and sad. It is a sad day when Judges are called upon to decide if an old man with cancer is having too much fun trying to calm his pain.

>>If the proponents of Doper Nation weren't using medical marijuana as a stalking horse to legitimize all marijuana use, then terminally ill people who wanted to use it for pleasure would have a much better chance of doing it without getting caught or prosecuted.<<

If the christians who are trying to save the jews would just shut up and be quiet, Hitler's gestapo would never be able to find them.

Sorry, but the analogy just seemed too apt to me.

When the government is imprisoning sick people for seeking medicine for their pain, it is always best for the rest of us just to shut up and be quiet. Does that summarize your argument?

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.