State v. Luster

ORS 475.319(1) states, in relevant part, that a defendant may raise an affirmative defense to the criminal possession of marijuana if they have been diagnosed with a debilitating medical condition within 12 months of their arrest, and have been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms.

Defendant appealed convictions of stalking under ORS 163.732(2) and unlawful possession of marijuana under ORS 475.864(4). On appeal, Defendant asserted two assignments of error, but the first was not reviewed by the Court. The second assignment is that the trial court improperly barred Defendant from raising an affirmative defense under the Oregon Medical Marijuana Act (OMMA). Defendant argued that the diagnosis requirement of OMMA does not make clear who must make the diagnosis, and thus, Defendant was not required to seek a diagnosis from an attending physician but instead could get a diagnosis from a nurse practitioner. Defendant's second argument was that the advice requirement did not specify when advice must be given, and therefore could have been given prior to the 12 month requirement clearly placed on the diagnosis requirement. The Court did not rule on Defendant first argument finding that it was not required to do so. The Court looked at the intent behind OMMA to decide and found that OMMA sets forth two requirements: (1) there must be a diagnosis within 12 months and (2) advice from attending physician. The Court stated that because OMMA uses the conjunction “and” all elements must be met, and because Defendant failed to receive advice within 12 months he could not use the affirmative defense. The dissent argued that if there is prior advice from a physician it need not be within the 12-month timeframe, however, the Court stated this would be illogical because medical advice changes over time. Affirmed.