Controlled Substances

ORS 475.752
Prohibited acts generally

  • penalties
  • exceptions
  • affirmative defense for certain peyote uses
  • causing death by Schedule IV substance


(1)

Except as authorized by ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980) to 475.285 (Short title) and 475.752 (Prohibited acts generally) to 475.980 (Affirmative defense to ORS 475.969, 475.971, 475.975 (1) and 475.976 (1)), it is unlawful for any person to manufacture or deliver a controlled substance. Any person who violates this subsection with respect to:

(a)

A controlled substance in Schedule I, is guilty of a Class A felony, except as otherwise provided in ORS 475.886 (Unlawful manufacture of methamphetamine) and 475.890 (Unlawful delivery of methamphetamine).

(b)

A controlled substance in Schedule II, is guilty of a Class B felony, except as otherwise provided in ORS 475.878 (Unlawful manufacture of cocaine within 1,000 feet of school), 475.880 (Unlawful delivery of cocaine), 475.882 (Unlawful delivery of cocaine within 1,000 feet of school), 475.904 (Unlawful manufacture or delivery of controlled substance within 1,000 feet of school) and 475.906 (Penalties for unlawful delivery to minors).

(c)

A controlled substance in Schedule III, is guilty of a Class C felony, except as otherwise provided in ORS 475.904 (Unlawful manufacture or delivery of controlled substance within 1,000 feet of school) and 475.906 (Penalties for unlawful delivery to minors).

(d)

A controlled substance in Schedule IV, is guilty of a Class B misdemeanor.

(e)

A controlled substance in Schedule V, is guilty of a Class C misdemeanor.

(2)

Except as authorized in ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980) to 475.285 (Short title) and 475.752 (Prohibited acts generally) to 475.980 (Affirmative defense to ORS 475.969, 475.971, 475.975 (1) and 475.976 (1)), it is unlawful for any person to create or deliver a counterfeit substance. Any person who violates this subsection with respect to:

(a)

A counterfeit substance in Schedule I, is guilty of a Class A felony.

(b)

A counterfeit substance in Schedule II, is guilty of a Class B felony.

(c)

A counterfeit substance in Schedule III, is guilty of a Class C felony.

(d)

A counterfeit substance in Schedule IV, is guilty of a Class B misdemeanor.

(e)

A counterfeit substance in Schedule V, is guilty of a Class C misdemeanor.

(3)

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of professional practice, or except as otherwise authorized by ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980) to 475.285 (Short title) and 475.752 (Prohibited acts generally) to 475.980 (Affirmative defense to ORS 475.969, 475.971, 475.975 (1) and 475.976 (1)). Any person who violates this subsection with respect to:

(a)

A controlled substance in Schedule I, is guilty of a Class A misdemeanor, except as otherwise provided in ORS 475.854 (Unlawful possession of heroin), 475.874 (Unlawful possession of 3,4-methylenedioxymethamphetamine) and 475.894 (Unlawful possession of methamphetamine) and subsection (7) of this section.

(b)

A controlled substance in Schedule II, is guilty of a Class A misdemeanor, except as otherwise provided in ORS 475.824 (Unlawful possession of methadone), 475.834 (Unlawful possession of oxycodone) or 475.884 (Unlawful possession of cocaine) or subsection (8) of this section.

(c)

A controlled substance in Schedule III, is guilty of a Class A misdemeanor.

(d)

A controlled substance in Schedule IV, is guilty of a Class C misdemeanor.

(e)

A controlled substance in Schedule V, is guilty of a violation.

(4)

In any prosecution under this section for manufacture, possession or delivery of that plant of the genus Lophophora commonly known as peyote, it is an affirmative defense that the peyote is being used or is intended for use:

(a)

In connection with the good faith practice of a religious belief;

(b)

As directly associated with a religious practice; and

(c)

In a manner that is not dangerous to the health of the user or others who are in the proximity of the user.

(5)

The affirmative defense created in subsection (4) of this section is not available to any person who has possessed or delivered the peyote while incarcerated in a correctional facility in this state.

(6)

(a) Notwithstanding subsection (1) of this section, a person who unlawfully manufactures or delivers a controlled substance in Schedule IV and who thereby causes death to another person is guilty of a Class C felony.

(b)

For purposes of this subsection, causation is established when the controlled substance plays a substantial role in the death of the other person.

(7)

Notwithstanding subsection (3)(a) of this section, unlawful possession of a controlled substance in Schedule I is a Class B felony if:

(a)

The person possesses a usable quantity of the controlled substance and:

(A)

At the time of the possession, the person has a prior felony conviction;

(B)

At the time of the possession, the person has two or more prior convictions for unlawful possession of a usable quantity of a controlled substance; or

(C)

The possession is a commercial drug offense under ORS 475.900 (Crime category classification) (1)(b); or

(b)

The person possesses:

(A)

Forty or more user units of a mixture or substance containing a detectable amount of lysergic acid diethylamide; or

(B)

Twelve grams or more of a mixture or substance containing a detectable amount of psilocybin or psilocin.

(8)

Notwithstanding subsection (3)(b) of this section, unlawful possession of a controlled substance in Schedule II is a Class C felony if the person possesses a usable quantity of the controlled substance and:

(a)

At the time of the possession, the person has a prior felony conviction;

(b)

At the time of the possession, the person has two or more prior convictions for unlawful possession of a usable quantity of a controlled substance; or

(c)

The possession is a commercial drug offense under ORS 475.900 (Crime category classification) (1)(b). [Formerly 475.840; 2013 c.591 §3; 2015 c.1 §76; 2015 c.614 §124; 2016 c.24 §59; 2017 c.21 §26; 2017 c.706 §9]

(formerly 475.992, then 475.840)

Notes of Decisions

Under Former Similar Statute

State must prove defendant had actual knowledge of nature of drugs defendant is charged with possessing. State v. Neel, 8 Or App 142, 493 P2d 740 (1972)

To prove constructive possession of dangerous drug or narcotic, state must show defendant knowingly exercised control of or right to control unlawful substance. State v. Moore, 14 Or App 268, 511 P2d 880 (1973); State v. Krohn, 15 Or App 63, 514 P2d 1359 (1973), Sup Ct review denied

State cannot carve up amount of drugs in person's possession for purpose of prosecuting separate violations. State v. Anderson, 15 Or App 650, 517 P2d 321 (1973), Sup Ct review denied

Only one sentence should have been imposed for the simultaneous possession of three drugs. State v. Gill, 24 Or App 863, 547 P2d 166 (1976)

Amount of drug possessed need not be usable amount. State v. Forrester, 29 Or App 409, 564 P2d 289 (1977), Sup Ct review denied

Where controlled substance was injected into defendant's body, defendant was not able to exercise dominion and control over substance and therefore did not possess drug. State v. Downes, 31 Or App 1183, 572 P2d 1328 (1977)

In General

Although generally accepted scientific view is that marijuana is properly classified as Cannibis family Cannabaceae, legislative definition of marijuana as Cannibis family Moraceae is not sufficient to render statute ineffective. State v. Bailey, 41 Or App 375, 597 P2d 1312 (1979)

Fact that experts may disagree as to what is "stalk" or "stem" of marijuana plant after plant has been cut up, or whether seeds are sterile and whether material is dry when weighed does not render this section void for vagueness. State v. Mellinger, 52 Or App 21, 627 P2d 897 (1981)

Simultaneous possession of different forms of same controlled substance constituted single act or transaction so convictions on three different counts for possession of marijuana, hashish and hashish oil should have been merged for sentencing purposes. State v. Ness, 54 Or App 530, 635 P2d 1025 (1981), aff'd on other grounds, 294 Or 8, 653 P2d 548 (1982)

Where defendant committed burglary and in course of burglary stole marijuana from premises, it was proper to convict for burglary (ORS 164.225) and possession of controlled substance. State v. Shaw, 56 Or App 473, 642 P2d 335 (1982)

Examination of original legislation and history shows that codified version of ORS 689.995 was incorrect in its inclusion of this section as misdemeanor. State v. Rothman, 69 Or App 614, 687 P2d 798 (1984), Sup Ct review denied

Violation of gratuitous delivery of marijuana is necessarily included in statutory definition of felony of delivery of marijuana for consideration. State v. Graves, 73 Or App 172, 697 P2d 1384 (1985)

Under Oregon's Controlled Substances Act, which is substantial adoption of Uniform Controlled Substances Act, but which did not adopt crime of possession of controlled substance with intent to transfer, attempted transfer is punishable as completed transfer. State v. Boyd, 92 Or App 51, 756 P2d 1276 (1988), Sup Ct review denied

Charge of conspiracy to deliver cannot apply to recipient of transfer. State v. Frederickson, 92 Or App 223, 757 P2d 1366 (1988); State v. Deptuch, 95 Or App 54, 767 P2d 471 (1989), modified 96 Or App 228, 772 P2d 442 (1989); State v. Moore, 139 Or App 27, 910 P2d 1163 (1996)

Frequenting place where controlled substances are used is not lesser included offense of unlawful possession of controlled substance. State v. Martz, 103 Or App 105, 795 P2d 616 (1990)

On remand from United States Supreme Court, state may, consistent with Free Exercise Clause of United States Constitution, deny unemployment compensation to former employees dismissed for use of peyote for religious purposes in Native American Church, where ingestion of peyote is prohibited by state law. Smith v. Employment Division, 310 Or 376, 799 P2d 148 (1990)

Where defendant when arrested was in possession of six individually wrapped bundles of cocaine, a razor blade and a substantial amount of cash in small bills and gave conflicting testimony regarding such items and drug usage, evidence was sufficient to find defendant guilty of delivery. State v. Fulmer, 105 Or App 334, 804 P2d 515 (1991)

Possession of controlled substance is not lesser included offense to delivery of controlled substance. State v. Sargent, 110 Or App 194, 822 P2d 726 (1991)

Person may possess drug by having dominion or control over it and physical possession is not only means to possess it. State v. Anaya, 111 Or App 204, 826 P2d 27 (1992); State v. Garcia, 120 Or App 485, 852 P2d 946 (1993)

In prosecution for delivery of controlled substance, instruction to jury on lesser included offense of possession of less than one ounce of marijuana, which disclosed penalty for violation as punishable by fine only without jail sentence, could have influenced jury's evaluation of testimony and was prejudicial error. State v. Hardt, 113 Or App 616, 833 P2d 1316 (1992)

Proof that quantity of methamphetamine possessed would have stimulant effect on person's central nervous system is not element of crime of possession of controlled substance. State v. Henry, 116 Or App 138, 840 P2d 1335 (1992)

Amount of controlled substance inconsistent with personal use and possession of items used to traffic controlled substance was sufficient substantial step to establish delivery. State v. Garcia, 120 Or App 485, 852 P2d 946 (1993)

Reference to one ounce of "dried leaves, stems and flowers" does not apply to undried marijuana, regardless of amount. State v. Schwirse, 147 Or App 683, 938 P2d 227 (1997)

Absent proof of criminal conspiracy, where more than one person is present, mere proximity to controlled substance is insufficient to establish constructive possession. State v. Sosa-Vasquez, 158 Or App 445, 974 P2d 701 (1999)

Indictment need not specify particular controlled substance possessed. State v. Hansz, 167 Or App 147, 5 P3d 1109 (2000), Sup Ct review denied

Mere removal of individual portion from larger quantity of controlled substance does not constitute "packaging or repackaging" under ORS 475.005, and thus is not "manufacture" of controlled substance. State v. Tellez, 170 Or App 745, 14 P3d 78 (2000)

Presence of controlled substance in bloodstream does not provide person with dominion or control over substance necessary to constitute possession. State v. Daline, 175 Or App 625, 30 P3d 426 (2001)

Offer to sell controlled substance is substantial step constituting attempt to deliver substance. State v. Pollock, 189 Or App 38, 73 P3d 297 (2003), aff'd on other grounds, 337 Or 618, 102 P3d 684 (2004)

Felony conviction under this section qualifies as predicate offense under federal career offender sentencing guideline. U.S. v. Shumate, 329 F3d 1026 (9th Cir. 2003)

Ultimate user for whom medical use of marijuana is prescribed may not confer immunity on person other than designated primary caregiver to possess marijuana on behalf of ultimate user. State v. Fries, 212 Or App 220, 158 P3d 10 (2007), aff'd 344 Or 541, 185 P3d 453 (2008)

This section is indivisible because "solicitation" is means of accomplishing delivery; therefore, defendant's conviction for delivery of controlled substance under this section does not constitute generic attempted delivery under federal law and thus does not qualify as aggravated felony. Sandoval v. Yates, 847 F3d 697 (9th Cir. 2017)

This section is not categorically qualifying predicate offense requiring mandatory minimum sentence under Armed Career Criminals Act. Ernst v. United States, 293 F. Supp. 3d 1242 (D. Or. 2017)

Law Review Citations

In General

26 WLR 462 (1990); 27 WLR 173, 327 (1991)

Chapter 475

Law Review Citations

51 OLR 561 (1972); 69 OLR 171 (1990)


Source

Last accessed
Jun. 26, 2021