State v. Durham

Possession of less than one ounce of marijuana within 1000 feet of a school constitutes two separate offenses and thus is not eligible for a marijuana diversion program.

Defendant pled guilty to possession of less than one ounce of marijuana within 1000 feet of a school, after the court ruled that he was not eligible for a marijuana diversion program. On appeal, defendant argued that the trial court erred in determining that he was not eligible for the diversion program. By statute, diversion is only available if the offense is the defendant’s first offense regarding possession of less than one ounce of marijuana. The state argued that ORS 475.864(3) and (4) constitute two separate offenses and that the marijuana diversion program is only allowed for the first of the offenses. Defendant argued that these constitute only one offense and thus he should be eligible for the diversion program. Evaluating the statutory construction, the Court of Appeals determined that the statutes constitute two separate offenses. The Court looked at the legislative history and determined that the legislature did not intend that the diversion program would apply to the new crime of possession within 1000 feet of a school. Affirmed.