77th OREGON LEGISLATIVE ASSEMBLY--2013 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 190
Senate Bill 40
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate 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 unlawful manufacture of marijuana to Class B felony.
Punishes by maximum of 10 years' imprisonment, $250,000 fine, or
both.
Reduces unlawful possession of marijuana to Class C felony.
Punishes by maximum of five years' imprisonment, $125,000 fine,
or both.
Amends exceptions to classification of Schedule I and Schedule
II controlled substances to reflect rescheduling of
methamphetamine and marijuana.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to classification of controlled substance offenses;
creating new provisions; amending ORS 161.570, 161.705,
475.752, 475.856 and 475.864; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 475.856 is amended to read:
475.856. (1) It is unlawful for any person to manufacture
marijuana.
(2) Unlawful manufacture of marijuana is a { - Class A - }
{ + Class B + } felony.
SECTION 2. ORS 475.864 is amended to read:
475.864. (1) It is unlawful for any person knowingly or
intentionally to possess marijuana.
(2) Unlawful possession of marijuana is a { - Class B - }
{ + Class C + } felony.
(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 a specific fine violation. The presumptive
fine for a violation under this subsection is $650.
(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 3. ORS 475.752 is amended to read:
475.752. (1) Except as authorized by ORS 475.005 to 475.285 and
475.752 to 475.980, it is unlawful for any person to manufacture
or deliver a controlled substance. Any 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 { + 475.858,
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 475.752
to 475.980, it is unlawful for any person to create or deliver a
counterfeit substance. Any 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 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 475.752 to 475.980. Any person who
violates this subsection with respect to:
(a) A controlled substance in Schedule I, is guilty of a Class
B felony, except as otherwise provided in ORS { - 475.864 - }
{ + 475.894 + }.
(b) A controlled substance in Schedule II, is guilty of a Class
C felony { + , except as otherwise provided in ORS 475.864 + }.
(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 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 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 4. 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 ORS 475.752 (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 ORS 475.752 (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 ORS
475.752 (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 ORS 475.752 (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 fine that a court may
impose upon conviction of a misdemeanor under this section may
not:
(a) Be less than the minimum fine established by ORS 137.286
for a felony; or
(b) Exceed the amount provided in ORS 161.625 for the class of
felony receiving Class A misdemeanor treatment.
SECTION 5. ORS 161.705 is amended to read:
161.705. Notwithstanding ORS 161.525, the court may enter
judgment of conviction for a Class A misdemeanor and make
disposition accordingly when:
(1)(a) A person is convicted of any Class C felony;
(b) A person is convicted of a Class B felony pursuant to ORS
475.860 (2)(a); { + or + }
{ - (c) A person is convicted of the Class B felony of
possession of marijuana pursuant to ORS 475.864 (2); or - }
{ - (d) - } { + (c) + } A person convicted of { - any of
the felonies described in paragraphs (a) to (c) - } { + a
felony described in paragraph (a) or (b) + } of this subsection,
or of a Class A felony pursuant to ORS 166.720, has successfully
completed a sentence of probation; and
(2) The court, considering the nature and circumstances of the
crime and the history and character of the defendant, believes
that it would be unduly harsh to sentence the defendant for a
felony.
SECTION 6. { + The amendments to ORS 475.752, 475.856 and
475.864 by sections 1 to 3 of this 2013 Act apply to conduct
occurring on or after the effective date of this 2013 Act. + }
SECTION 7. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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