State v. Luster
Case # A153268
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A153268.pdf
A person can obtain an Oregon Medical Marijuana Program (OMMP) registration card by submitting documentation to the Department of Human Services showing 1) a diagnosis by an attending physician that the person had a debilitating medical condition and, 2) a statement by the physician that “marijuana used medically may mitigate the symptoms or effects of this patient’s condition.” ORS 475.309(2)(a). Defendant Luster was a participant in the OMMP and had a valid registry identification card that expired on September 8, 2010. Although a nurse practitioner diagnosed Luster with a debilitating medical condition in September of 2010, Luster never followed up with a physician and never renewed his OMMP registration. In May 2011, Police Officers searched Luster’s bedroom in conjunction with a stalking investigation. The search revealed marijuana, a marijuana pipe, and a set of digital scales. Consequently, Luster was charged with, among other things, Possession of Marijuana.
Before trial, Luster notified the State of his intent to use the affirmative defense provided by ORS 475.319(1), which allows: “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” when the person “(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 * * *.” The trial court prohibited Luster from using the defense because he had failed to provide written documentation signed by his attending physician reconfirming his debilitating medical condition and advising the use of medical marijuana. Luster was ultimately convicted of Possession of Marijuana, and he now appeals, contending that the trial court erred when it prohibited him from using the affirmative defense set forth in ORS 475.319(1). Specifically, Luster 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. He also 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.
The Court of Appeals interprets ORS 475.319(1)(a) as requiring 1) a diagnosis (the Court does not address who must give the diagnosis) and 2) advice from an attending physician to both occur within 12 months prior to arrest. Because Luster received no medical marijuana advice from an attending physician within 12 months prior to arrest, he failed to meet at least one of the requirements specified in ORS 475.319(1)(a) and therefore could not avail himself of the “medical marijuana” affirmative defense. Therefore, the trial court did not err, and Luster’s conviction is affirmed.