State v. Bowden

ORS 137.540(2) allows the imposition of special conditions “that are supplementary to the general conditions available under ORS 137.540(1)” and it is not intended as a way to override a general condition. State v. Schwab, 95 Or App 593 (1989)

Defendant appealed his conviction for driving under the influence of intoxicants. Defendant assigned error to the court imposing five conditions to his probation. On appeal, Defendant argued that the first condition directly conflicted with ORS 137.542 and that the remaining four were overbroad because they limited his ability to “use, possess, or obtain medical marijuana as directed by his physician. In response, the State concedes that the conditions were invalid as asserted. However, the State contends that the court has the authority to impose special conditions of probation under ORS 137.540(2). ORS 137.540(2) allows the imposition of special conditions “that are supplementary to the general conditions available under ORS 137.540(1),” and it is not intended as a way to override a general condition. State v. Schwab, 95 Or App 593 (1989). The Court held that the conditions were against ORS 137.540(1) because it was not consistent with the statutory restriction set out by the legislature and that the court abused its discretion. Remanded for resentencing.