The 411 on 420
by Sam Parrish
Most people know that to cultivate or possess certain parts of the several strains of the
plant genus Cannabis, commonly called “marijuana,” is illegal under federal law. At the same
time many states, including Oregon, have enacted laws that allow cultivation, possession and
use, within defined limits for medical purposes. In Emerald Steel v. BOLI, Oregon’s Supreme
Court heard the case of an employer in Oregon that fired a worker who admitted that his use of
medical cannabis, as authorized under state law, would keep him from “passing” a drug test.
Relying on state law, the Oregon Bureau of Labor and Industries and the Oregon Court of
Appeals took the side of the employee. Relying on federal law, the Oregon Supreme Court
disagreed and upheld the employer’s termination of the employee for medical marijuana use.
This article explores the interrelationship of the often-conflicting state and federal laws in light
of the ruling in Emerald Steel.
What are the limits?
ORS 475.300--475.346, known collectively as the “Oregon Medical Marijuana Act”
(OMMA), sets the boundaries for medical use of cannabis in Oregon. It defines who can
recommend cannabis for which kinds of conditions, requires that patients carry an official stateissued card identifying them as officially registered medical users, and limits how many plants
and/or how much “usable marijuana” patients may possess. The statute, however, does not
“legalize pot.” While holders of valid medical cannabis cards may have a complete defense to
criminal prosecution, there are still many risks and potential collateral consequences associated
with growing and possessing cannabis under these circumstances.
What are the risks?
Medical Cannabis at School
Of course a medical card won’t allow you to burn one down in the Park Blocks. What
about discreet, private, medically-indicated use in the dorms? Still, NO WAY. The Oregon
University System (OUS) receives funding from the federal government, and is subject to federal
laws, including the Drug Free Schools and Campuses Act, which still prohibit cannabis in any
form for any purpose. Accordingly, PSU’s Housing Code of Conduct 1.02(1)(a) reads:
PSU Housing is unable to accommodate Medical Marijuana usage in our facilities
regardless of the possession of appropriate medical marijuana authorization.
So being caught with medical cannabis in student housing will still expose you to the same
penalties, spelled out in the Student Code of Conduct, faced by recreational users who don’t
comply with OMMA.
Medical Cannabis at Work
Does a “debilitating medical condition,” as defined in ORS 475.302(3), qualify as a
“disability” under state or federal anti-discrimination laws, requiring employers to accommodate
workers’ need for medical treatment? Even if it did, that may not matter. In Emerald Steel v.
BOLI, the Oregon Supreme Court ruled that because cannabis remains illegal under federal law,
Oregon’s employment discrimination laws do not require employers to accommodate
employees’ use of cannabis to treat even a protected disability. This means that your employer
can fire you for using or possessing cannabis on or off the job, regardless of your status under
OMMA.
Parenting & Custody Rights
In addition to employment, there are other areas in which cannabis use can work against
you, and OMMA may not help. For parents under DHS scrutiny for any reason, cannabis use can
be seen as a negative, and OMMA cards do not mitigate that effect. DHS might find that parents’
use impairs their ability to care for their child(ren), even when authorized under OMMA. It’s
hard to predict how medically-indicated cannabis use may affect an OMMA card holder’s
custody of children in divorce cases, but it is very clear that drug use (even legally permissible
drug use) is a factor in family and juvenile courts.
How does the defense work?
In order to use your qualifying status under OMMA to avoid prosecution or conviction
for a crime involving cannabis, you must admit that you did use or possess the cannabis in
question, while asserting an affirmative defense that OMMA allows you to do so. In an Oregon
trial, this means that if you convince the jury that you have properly complied with OMMA, you
are home free and cannot be convicted. If, however, the jury doesn’t believe that you qualify
under OMMA, or that OMMA covers your use or possession that gave rise to the charge(s), you
have given them all the necessary facts to convict you.
This “affirmative defense of medical necessity” only works in states with medical
cannabis laws, and only to the extent specified in the laws themselves. As of 2004, four states –
Maine, Montana, Michigan, and Rhode Island—recognize valid medical cards from other states,
and offer the protection of their own medical cannabis laws to out-of-state cardholders who
comply with their limits on amounts and/or qualifying conditions. The other ten states with
medical cannabis laws—Alaska, California, Colorado, Hawaii, Nevada, New Jersey, New
Mexico, Oregon, Vermont, Washington—do not recognize medical cannabis authorization from
any other state. For example, an Oregon medical cardholder cannot make an affirmative defense
of medical necessity against cannabis charges in California or Washington.
There is no affirmative defense to federal cannabis charges, and your OMMA status is
inadmissible in federal court; that is, a federal jury is not allowed to consider or even know about
your OMMA status.
What can happen if you are convicted?
The consequences of a criminal conviction depend on the amount of cannabis in question.
In Oregon, possession of less than one ounce is a violation, similar to a traffic ticket. To possess
a full ounce or more is a Class B felony, the second most serious level of criminal offense
possible under Oregon law, which carries substantially more severe penalties, including prison
time and/or huge fines. Even though the penalties for a violation are relatively mild, you can
expect a variety of consequences in other aspects of your life. Just as one traffic ticket can affect
your insurance premium or your ability to qualify for jobs that require driving, a cannabis
violation will impact your eligibility for most financial aid loans, grants, and scholarships.
What can I do?
When confronted with criminal charges involving cannabis, or any legal issue at all that
doesn’t involve PSU (including Campus Public Safety Office), contact Student Legal Services at
503-725-4556 or slms@pdx.edu. We may be able to handle your case if you have been charged
with a violation or a misdemeanor. We do not handle felony matters. If we can’t help, we may
be able to refer you to someone who can.