Oregon Criminal Defense Blog

Oregon Marijuana Charges vs. Federal Marijuana Charges

Tweet

 

It is not something most of think about on a daily basis, but it is fascinating (and terrifying) that every Oregon citizen is subject to at least two completely different sets of criminal laws: (1) the criminal laws passed by the Oregon State Legislature and (2) the criminal laws passed by the United States Federal Government. Some things that are not criminal under Oregon laws may very well be criminal under Federal law, and vice versa. Perhaps the most notable conflict between Oregon criminal law and Federal Criminal law involves the Oregon Medical Marijuana Act (OMMA).

Under boths sets of criminal laws, marijuana possession, distribution, and manufacture are criminal acts. However, under Oregon law, a registered OMMA card holder has a defense to certain Oregon marijuana charges. So, if a police officer arrests an Oregon medical marijuana patient for unlawful possession of marijuana, and the prosecutor brings charges in an Oregon court, the patient can use his or her medical marijuana card as a shield against prosecution.  Unfortunately, the Federal criminal law does not recognize the validity of medical marijuana. Therefore, if marijuana charges are brought against you in a Federal court under the Federal marijuana laws, an Oregon medical marijuana card is no defense. 

Generally speaking, most marijuana offenses in Oregon are charged in Oregon courts. However, if you are arrested for unlawful possession of marijuana or unlawful manufacture of marijuana by a federal agency like the FBI, you could be looking at marijuana charges in a Federal court where your status as a medical marijuana patient will not do you any good. Sometimes cases involving large quantities of marijuana can start in Oregon court and get transferred to Federal court. Also, if you are caught using marijuana in a national park, forest, or recreation area, you are likely to be charged in Federal court. 

Fortunately, the Federal prosecutors have been pretty good about not harassing legitimate OMMA patients in Oregon. In a memorandum known as the "Ogden Memorandum" sent out to the top federal prosecutors in the states that allow some form of medical marijuana, the Department of Justice stated the following:

"As a general matter, [federal prosecutors] should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources."

Nonetheless, while the Ogden Memorandum may provide some assurances to small scale medical marijuana users, large commercial operations are still under the gun. A recent statement by Department of Justice warned:

"The Odgen Memorandum was never intended to shield [private commercial production] from federal enforcement action and prosecution, ever where those activities purport to comply with state law. Persons who are in the business of cultivating. selling, or distributing marijuana, and those who knowing facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with the resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financing laws."

But I digress. A discussion and analysis of the Federal government's policies towards medical marijuana and marijuana use in general is beyond the scope of this post. The point of this post is that marijuana users in Oregon are subject to Oregon criminal laws and  Federal criminal laws regarding marijuana possession, distribution, and manufacture. This means you face different penalties for Oregon marijuana charges than you do for Federal marijuana charges. The Federal penalties for marijuana charges are more harsh than those in place for Oregon marijuana charges. Significantly, the Federal criminal law provides for mandatory minimum sentences for some marijuana offenses. This means that if you are convicted of a Federal marijuana crime that carries a mandatory minimum, the judge has no choice but to impose the mandatory minimum no matter what. Another major difference is that under Federal law, the penalties for growing marijuana increase according to the number of plants involved. Under Oregon criminal law, unlawful manufacture of marijuana is a class A felony with a crime seriousness ranking of 4 if it involves less than 150 grams and a crime seriousness level of 8 if it involves more than 150 grams.

The tables below give an overview of the penalties for Oregon marijuana charges and Federal marijuana charges. However, it is important to remember that the maximum penalties for Oregon marijuana charges provided by law are misleading. Your actual sentence will be calculated under the Oregon Sentencing Guidelines. Despite the statutory maximums listed below, your sentence will be calculated based on the crime seriousness ranking of your particular Oregon marijuana charge and your criminal history. Unlawful possession of more than 1 ounce of marijuana but less than 150 grams has a crime seriousness ranking of 1 on a scale from 1 to 11. On the other hand, unlawful delivery of less than 150 grams of marijuana, for money, has a crime seriousness ranking of 4. With a crime seriousness ranking of 1, even if you have the worst possible criminal history, you are probably looking at a maximum of 30 days jail under the guidelines. With a crime seriousness ranking of 4, you are probably looking at a maximum between 60  days jail and a maximum of 11 months prison depending on your criminal history. Also, various factors can affect the crime seriousness ranking and the statutory maximums for Oregon marijuana charges. The following factors could affect an Oregon marijuana charge: (1) whether the offense took place within 1000 feet of a school; (2) whether you gave the marijuana away or sold it; (3) whether you gave marijuana to a minor; and (4) whether more than 150 grams of marijuana was at issue. You can learn more about Oregon marijuana charges, penalties, and how felony drug sentences are calculated in Oregon HERE.  

Similar to Oregon, Federal law also relies on Sentencing Guidelines to calculate sentences, and many different factors come into play in calculating individual sentences. Also similar to Oregon marijuana law, there are increased penalties if the offense took place in a school zone or involved a minor. Even when a mandatory minimum sentence applies to a federal marijuana charge, a provision called the "Safety Valve" could apply to prevent imposition of the mandatory minimum.