Oregon Medical Marijuana Act: Federal vs. State Law

Where Does Your Department Stand?

by Wendy Svaren, Lake Oswego PD

The Oregon Medical Marijuana Act creates a cause for concern for Oregon Law Enforcement Agencies when they find themselves in possession of marijuana from a registrant of the OMMA program.

The conflict comes when an agency is asked by the registrant or their attorney to return the marijuana. Under Oregon Law, ORS 475.323 "usable marijuana and paraphernalia used to administer marijuana that was seized by any law enforcement office shall be returned immediately upon a determination by the district attorney in whose county the property was seized, or his or her designee, that the person from whom the marijuana or paraphernalia, used to administer marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346". This portion of the statute also requires marijuana in the possession of a law enforcement agency under these circumstances "not be harmed, neglected, injured or destroyed while in the possession of any law enforcement agency". While we are not required to maintain live plants we are required by this statute not to destroy the marijuana and at times to return it.

This puts departments at crossroads between state and federal law. While we are required by state law to return marijuana in certain situations, we still do not have authority or a waiver, to return marijuana under federal law. This of course places agencies in a situation where we just can't seem to win. Administrators will have to decide which road your department will take on this issue. Most departments that I spoke with have stated that they will abide by federal law and not distribute marijuana or paraphernalia under any circumstances. This may result in "tort" claims against the department for failure to return marijuana but that is a risk they are willing to take until federal law gives us guidance one way or another. Great care needs to be taken before seizing marijuana from registrants or applicants. Sometimes it is out of our hands as far as making a decision whether or not seize. This is true when arresting someone who has a warrant and the individual has his or her "medicine" on board. The jails will not accept it so property rooms are often left holding the marijuana. Departments should have clear guidelines for officers that come across situations involving a person in possession of marijuana that either has valid, current registry as a patient, primary caregiver or anyone who claims medical use. There should also be a decision made on how to handle marijuana once it does come into police custody.

It is important to mention that just because a person is a valid registrant of the OMMA program this does not give them a "carte blanche" to possess and use however and whenever they deem it necessary. Under ORS 475.316 the criminal law "exception" does not apply if:

Driving under the influence of marijuana

• Using marijuana in a public place, in public view, or in an adult or youth correction facility; "Using" includes merely possessing marijuana. (Section 3 (7) of the Act). Literal application of this definition would prohibit a patient or primary caregiver from transporting marijuana from place to place, even though the person is properly registered and the quantity being transported is within the permissible limit. Therefore in consultation with the appropriate prosecuting attorney, law enforcement agencies should adopt policies for officers to follow when a registrant is contacted in this situation. (taken from Attorney General Recommendation for Implementation)
• There are additional disqualifying acts related to delivery, manufacture and exceeding the amounts to possess that are not outlined here.

Under these circumstances the Attorney General's office recommends law enforcement agencies consult with the appropriate prosecuting attorney on how to proceed.

Below are several websites that may assist your department with drafting a policy and/or training bulletin regarding the OMMA.

Recommendations for the Implementation of the Oregon Medical Marijuana Act www.doj.state.or.us/medmar.htm

Human Services Hotline for verification of registrant (503) 731-4833

Human services will not speak to any federal agents, ORS 475.331 (2) b

You will be required to give your first and last name, department and badge number when making inquires.

DHS will only verify information. They will not give out any information you don't already have.

www.dhs.state.or.us/publichealth/mm/index.cfm

Submitted by Wendy Svaren Oregon Association of Property & Evidence Officers Svaren@ci.oswego.or.us