- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 01-27-2021
- Case #: A168177
- Judge(s)/Court Below: Tookey, J. for the Court; Armstrong, P.J.; & Aoyagi, J.
- Full Text Opinion
Defendant violated a condition of his probation and new conditions of probation and a probation-violation fee were imposed. Defendant assigned error to the trial court’s determination that Defendant’s use of marijuana while on probation violated ORS 137.540(1)(b) - which prohibits, while on probation, the use or possession of controlled substances except for a medical prescription. On appeal, Defendant argued that marijuana is not included in the phrase “controlled substances” in ORS 137.540(1)(b). In response, the State argued that the definition of controlled substances that excludes marijuana expressly applied only to some statutes in ORS chapter 475, but not more broadly to include ORS chapter 137. Enacting SB 302 shows the legislature’s intent that the phrase “controlled substances” generally would not include cannabis, and that they made the purposeful decision to either amend or not amend statutes which previously referenced “controlled substances” but did not reference cannabis. The Court held that the legislature did not intend to have marijuana included in the phrase “controlled substances” under ORS 137.540(1)(b). The Court reasoned that the legislature’s decision to include “cannabis” to ORS 137.540(1)(c) but not to include it in ORS 137.540(1)(b) was purposeful, and that the legislature would have amended that subsection to prohibit the possession and use of marijuana it it had intended to do so. Reversed.