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Brandon M.
Brandon M., Counselor at Law
Category: Legal
Satisfied Customers: 12201
Experience:  Attorney experienced in numerous areas of law.
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Can a person arrested for marijuana possession have a cause

Resolved Question:

Can a person arrested for marijuana possession have a cause of action if the circumstance is as follows:
Sister was a Marijuana Medical User under Oregon statute
Her husband was Designated Care Giver but out of town for two weeks.
She asked her brother to transport some M plants to her ocean cabin so they would grow better.
Her husband always gone so she has the forms to assign her brother as DCG but not completed.
Brother driving and she in passenger seat
Brother speeding and pulled over.
Both arrested but sister showed her registry ID card

Does the brother have a cause of action based on circumstances? What are they?
What is the issue here?
Both arrested for possession of Marijuana as plants in car's back seat
Submitted: 9 months ago.
Category: Legal
Expert:  Brandon M. replied 9 months ago.

Brandon M. :

Hello there.

Brandon M. :

Thank you for your question. I just want to be sure that I understand the situation. You said that both the sister and the brother were arrested and showed her registry ID card. Although the sister was arrested, she is not facing criminal prosecution, correct? Only the brother is facing prosecution?

Customer:

Yes, only the brother arrested for possession. Would he have a cause of action?

Brandon M. :

Well, when transporting someone's medical marijuana, there are generally two questions. The first is whether there actually is possession, and, if so, the second is whether the possession is lawful...

Customer:

What constitutes possession? He was not the DCG. Under OMMA I cannot find that his possession was lawful..... He of course was not the DCG

Brandon M. :

The second question of whether possession is lawful is the easier one, so let's address that first. Under Oregon Revised Statute 475.309, someone can possess or deliver marijuana for medical purposes if:


(a) The person holds a registry

identification card issued

pursuant to this section, has

applied for a registry identific

ation card pursuant to subsection

(9) of this section, is the

designated primary caregiver of

the cardholder or applicant,

or is the person responsible

for a marijuana grow site that is producing

marijuana for the cardholder and is registered

under ORS 475.304; and

(b) The person who has a debilitating medical condition, the person’s primary

caregiver and the person res

ponsible for a marijuana grow

site that is producing

marijuana for the cardholder and is regi

stered under ORS 475.304 are collectively in

possession of, delivering or producing mar

ijuana for medical use in amounts allowed

under ORS 475.320.
Brandon M. :

Sorry for the formatting... it was a cut and paste. It should appear as follows:


(a) The person holds a registry identification card issued pursuant to this section, has applied for a registry identification card pursuant to subsection (9) of this section, is the designated primary caregiver of the cardholder or applicant, or is the person responsible for a marijuana grow site that is producing marijuana for the cardholder and is registered under ORS 475.304; and (b) The person who has a debilitating medical condition, the person’s primary caregiver and the person responsible for a marijuana grow site that is producing

marijuana for the cardholder and is registered under ORS 475.304 are collectively in possession of, delivering or producing marijuana for medical use in amounts allowed under ORS 475.320.
Customer:

Okay, but brother does not have registry card nor was a designated care giver at time of arrest.

Brandon M. :

To put it simply, it's lawful to possess if the person has a registry ID or is the designated primary caregiver, or has a grow site.

Brandon M. :

Ok, so if an exception doesn't qualify, the question is whether there was possession.

Brandon M. :

You said that the plants were in the back seat. What type of vehicle was it?

Customer:

passenger car

Brandon M. :

Did the brother know that the plants were there? Were they out in the open, for example, or in a sealed bag perhaps?

Customer:

out in open and he carried them to the car for his sister as she has back problems and severe pain with multiple operation

Brandon M. :

That could be tough, then. I should be clear that because the nuances of every case are different, this information should not be relied upon as complete or advice without consulting in person with counsel. That said, someone has "possession" under the law if they have dominion over the property and knowledge of its presence. It's not the same thing as ownership. If someone knows that there are drugs present and has access to them, that's possession. So the silver lining is that the court takes the circumstances of possession into consideration, and you're talking about someone who was transporting plants for the benefit of a person who had the plants in her lawful possession at the time and who simply did not have their designated care giver in the state to help. Any penalty would typically be absolutely minimal (unless the defendant was a repeat offender), and the court would likely even consider dismissing any given case like that in the interests of justice.

Brandon M. :

So I can't say that the person wouldn't be guilty under the law, and the reality is that the law needs to be respected with regard to use, delivery, and transportation, but all that said, the silver lining is that the court is going to be realistic about these things and any response should be very measured.

Brandon M. :

Does that make sense?

Customer:

Yes, but would he still be found guilty? What would be the broad issue at hand? Possession under Oregon statue? or OMMA statue? The Phelps case in Washington, he was convicted of possession and the appellant court affirmed the trial courts decision.

Customer:

This is great by the way......as you can tell, trying to understand this issue here

Brandon M. :

Well, the law of Oregon is the possession statute, but the OMMA creates an exception to the statute. So the law of possession applies unless an exception applies to the particular case.

Brandon M. :

Great, thanks for that feedback. It's good to know that this is the information you're trying to get.

Customer:

So if I were to give advice would it be that he most likely will NOT be convicted?

Customer:

Would you want to write an Office Of Memorandum for me?

Customer:

lol

Customer:

and then does the brother have a course of action? If so, what?

Customer:

Not sure course of action even applies here....there is no lawsuit.....(yet)

Brandon M. :

I wouldn't say that at all. If someone possesses Marijuana in Oregon, they are guilty of possession unless there is an exception. OMMA creates an exception, but it creates exceptions for those with a registry ID, their designated care givers, and certain people growing the plants. So if there is no exception, there is a violation of law. However, the court does consider the circumstances. The court and the district attorney have the power to dismiss a charge in the interests of justice, but even if there is a conviction, the punishment must be proportional to the circumstances surrounding the crime itself.

Customer:

So if found guilty, he then could appeal right? What would his cause of action be?

Brandon M. :

Well, what would be his basis for appeal?

Brandon M. :

An appeal is asking a higher court to overrule the finding of a lower court because the lower court did not follow the law.

Customer:

Hmmmmmm......that he was NOT in possession would not work would it? You are right, what WOULD he appeal?

Customer:

So for my Office of Memorandum....would the broad statement under discussion deal with possession or the OMMA statue that disallows DSG if paperwork not complete?

Brandon M. :

Well, every case is different so there may be something that isn't apparent from here. More importantly, the conviction hasn't actually happened yet, so (for example) there might be a procedural defect if he is convicted. So it's probably way too early to start thinking about an appeal anyway.

Customer:

So there is no current course of action for the defendant?

Brandon M. :

I can't say for certain because it's too early in the case... we haven't even seen the police report. But that said, do we know what statute specifically he is charged with violating?

Brandon M. :

Is is ORS 475.864 for example?

Customer:

yes, possession only.

Customer:

I don't have ORS 475.864, need to look up through West Law.

Brandon M. :

ORS 475.864 is unlawful possession, less than 1 oz. It is the least serious of the marijuana possession charges.

Customer:

Having trouble pulling out the exact issue here, and the governing rule, but it seems possession NOT OMMA....

Customer:

I have to write the umbrella, rule synthesis, case illustrations, and applications.....and just having a difficult time in isolating EXACTLY what the rule of law is here....

Customer:

after speaking with you, love it by the way, it would seem my focus for this OM should be on possession.

Customer:

Thoughts?

Brandon M. :

Well, if I was writing a neutral analysis, I would include the OMMA discussion.

Customer:

Would it be the broad or the specific?

Brandon M. :

If I was writing a persuasive analysis, I would probably touch on the OMMA issue for completeness, but I would concede that it would be difficult to find an exception.

Brandon M. :

I'm not sure that I understand your last question.

Customer:

Under the discussion section I have to include for Loyola Law School by the way, a broad umbrella statement and then rule synthesis and the case illustration that has a thesis, relevant facts, holding, and then reasoning.

Customer:

How I got you was I just could not figure out the governing rule and main issue....possession or

Customer:

circumstance leading to possession and really how to write it......

Brandon M. :

Ok. Well, in law school, they want you to identify every issue, which oftentimes means identifying the red herring issues and dismissing them. So a law school memo involving someone arrested in Oregon for possession when in the car with someone who had lawful possession would have to discuss the OMMA, even if the OMMA wasn't a winning argument.

Brandon M. :

How far into your studies are you?

Customer:

First year can't you tell? Love it, but still having real problem pulling out and writing what they want.....am a RN with MSN and MBA and now going back to law school.

Brandon M. :

Big mistake ;-)

Brandon M. :

But seriously now...

Customer:

LOLOLOLOLLO

Customer:

So.....for my heading "RE" ......would it be " defendant arrested for possession of marijuana with extenuating circumstances of OMMA and DSG?"

Customer:

see what I mean.....not sure what to say or how to say it....this online law program is really

Customer:

harder then attending class.

Brandon M. :

When answering a question in law school, the answer is never "yes" or "no"; it is always "probably", "most likely", or "most likely not". Things that might need to be discussed in this matter would be the defendant's access to the plants, whether the sister and the brother could both exert dominion over the same plant at the same time, whether the brother is exempt under the OMMA, and definitions of things like "possess", "transport", and "designated primary caregiver".

Customer:

Would you just write it? You are so good! Where did you go to law school?

Brandon M. :

As much as I'd like to, it wouldn't be permitted because it's beyond the scope of the website's service. Have they taught you IRAC and/or CRAC yet?

Customer:

Can I get a hold of you tomorrow? Right now just having trouble with the RE if you can imagine...

Customer:

yes know IRAC, but not sure how to apply it succinctly......

Brandon M. :

Well, I would be glad to review what you write and give you pointers. I think that would be permissible. When is this due?

Customer:

Sunday evening....

Brandon M. :

Ok, and today is Friday... hmm... well, here's what I can do. Our attorneys do not have designated hours through this website. What's nice about this work is that I can help customers whenever I find time without a schedule. I have a law practice and just do this on the side. So I can't promise when I will specifically be available for a "chat" like we are having right now. You can come back to the website and just roll the dice (our other attorneys are pretty good, too), or you can ask for me by name in a follow-up question. Just start it with something like "this question is for Brandon M. only". If I'm not immediately available when you return, you can post your question and I will post an answer as soon as I do become available. It won't be "live", but you can request and receive my analysis.

Brandon M. :

Unfortunately, that's probably the most I can promise within the scope of the service.

Brandon M. :

Naturally, I understand that might meet your needs, but I wanted to let you know the options.

Brandon M. :

*might not meet your needs...

Customer:

I so understand. I will write it tomorrow, the bulk and should I send an attachment or what?

Brandon M. :

An attachment works, but you can typically cut and paste the text directly into the question. I don't think that there is a character limit, but I could be wrong (I just answer the law... I don't know much about the technical side of how they run this website).

Brandon M. :

But an attachment would be perfectly acceptable.

Customer:

Do you know how to attach?

Brandon M. :

If you run into any technical issues, you can XXXXXXXX@XXXXXX.XXX

Brandon M. :

I only know that there is a way to do it. I don't know how it is actually done.

Customer:

okay will attach my OM and send to you right?

Brandon M. :

Yes, lead your question with "This question is for Brandon M."

Customer:

okay will do and I so thank you. You are very patient and I am really

Customer:

having difficulty with the "writing" legal style...

Brandon M. :

You'll get the hang of it. It just takes practice. :-) And you're only a 1L... this will be like ringing a bell by the time you're a 3L.

Customer:

If you say so.....am signing off and you are truly a real help.....speak to you tomorrow night (I hope)

Customer:

Sharon Fiola

Brandon M. :

It was my pleasure, Sharon. And please feel free to leave a positive rating once you are completely finished. Thanks.

Customer:

absolutely dear sir!

Brandon M., Counselor at Law
Category: Legal
Satisfied Customers: 12201
Experience: Attorney experienced in numerous areas of law.
Brandon M. and 4 other Legal Specialists are ready to help you
Expert:  Brandon M. replied 9 months ago.
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