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S.B.772 page.
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MERCYs' public info on S.B.772 as well as any related Issues.

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NOTE: SB772 has become SB1085.  The new number for the medical marijuana bill in Sen Rules Committee is SB 1085.  Remember, this is identical to the SB 772 -4 amendments.   Schedule information for Senate Rules committee or others can be found at:  www.leg.state.or.us/05reg/agenda/webagendas.htm

Disposition on SB 772-4.  This is no longer a patient-friendly bill but has morphed into Frankenstein's monster.  To summarize:  It appears the dash 4's are OK to Law Enforcement and their lackeys in our community.  That means LE and their “activists” (a powerful duo as we found out last session) will get their law if it zips through Senator Brown's committee with a "do pass".  Sen. Brown doesn't want to talk about the bill - says it Senator M's.

One suggestion is we really make our opposition to the dash 4's known.  They must have hundreds and hundreds of pages of testimony but still don't seem to "get it".  Everyone write more letters to help educate these under-informed lawmakers.  There is no reason to pass a "bad bill" just so someone feels some sense of accomplishment - that would be ridiculous.  Our fear is the Senators are so busy that we are a very low priority (especially near the end of the session) and we are about to get reminded of it.   There is shock about how passionate and comprehensive our testimony was on the dash 3's and how it seemed to get ignored since the dash 4's were the worse of all the drafts.  It is time to table this bill until the session ends.  If you agree, then let Senator Brown and Senator Morrisette know.  They apparently don't think those who contacted them earlier are serious patient advocates so it may be time to light up their inboxes and telephone lines with nice letters and pleasant thoughts this week.


Notes and History

Summary: The bill is still in committee in the Senate with a Hearing scheduled this week (6/1).   On June 1, 2005 there is a worksession scheduled for SB 772.  It is important we get emails, calls and faxed letters to Senator Morisette and the others starting on Monday, 5/30.   -3 (dash three) amendments are available in PDF.   If anyone has other versions, please let us know and we’ll post.  

The work session on SB 772 will be this Wednesday (6/1) at 3 p.m. in Hearing Room C.  

It still has to move out of committee and pass out of the Senate to get to the House.   There is no guarantee that we are aware of that it will even get a hearing in the House.   Assuming a bill ultimatley emerges from the Legislature, unless it contains an emergency provision (allowing it to become the law upon signature by the governor) the law would not go into effect until at least 30 days after the end of the session, and, depending on how it is drafted, maybe not until 1/1/2006.

So, its hard to say how what is happening now will effect things this summer (if there will be any effect at all) except to say - get involved and stay informed and active.

This is about version 772-3.   See > Analysis, below.   For 772-2 notes, click here.   772-1 notes, click here. Here's the format from Rick Berkobien, the committee administrator:

The format for the hearing and work session on SB 772, the plan is that we will have three panels *invited* to respond to the amendments (not necessarily in this order):

  • Panel, OMMP proponents:
    Brian Michaels, attorney, N.L.C. (Eugene)
    blmichaels@hotmail.com and colleagues

    Lee Berger, attorney, N.L.C. (Portland)
    lelandberger@comcast.net and

    Dr. Rick Bayer, M.D., FACP
    ricbayer@comcast.net
  • the LEO (Law Enforcement Organizations) Panel:
    Craig Durbin, OSP Drugs and Vice and
    likely D.A. Steve Dingle
    or other DA/law enforcement
  • the "Ms. Ray of the Stormy Ray Foundation (and colleagues)" panel

(Should keep each panel to 2 or 3 people, and to around 15 minutes each is the suggestion)

Questions?  Comments?   Need some info?   Got some info?   Post your info, question or comment in the Bulletin Board or e-Mail us.

Status: Below find pasted the schedule for the Senate Human Services committee.

from Human Services
Office: 401A Phone: 503-986-1485
on Date: Wednesday-June 1
Time: 3:00 P.M.
Room: HR C

Public Hearing and Work Session

HB 2254 Modifies definition of child care facility for purposes of obtaining liability insurance coverage.

Work Session

SB 772 Modifies amount of medical marijuana authorized person or designated primary caregiver may possess under certain circumstances.

Staff respectfully requests that you submit 20 collated copies of written materials at the time of your testimony.

The following Senators serve on the Human Services Committee Committee:

Senator William E. Morrisette (D-OR 6th), Chair - (503) 986-1706 - email: sen.billmorrisette@state.or.us
Senator Jeff Kruse (R-OR 1st), Vice-Chair - (503) 986-1701 - email: sen.jeffkruse@state.or.us
Senator Rick Metsger (D-OR 26th) - (503) 986-1726 - email: sen.rickmetsgera@state.or.us
Senator Laurie Monnes Anderson (D-OR 25th) - (503) 986-1725 - email: sen.lauriemonnesanderson@state.or.us
Senator Charles Starr (R-OR 13th) - (503) 986-1713 - email: sen.charlesstarr@state.or.us

Other ACTION

Members of OGF, VP, MAMAs and others are rallying at the Capitol on HB5077 same day at 10 am, which will get more people to Salem, and, hopefully, they’ll be a positive influence as they politely observe the proceedings.

We encourage patients, caregivers and related who are able to effectively speak to the issues - just in case any unscheduled testimony is allowed or any who can be there in the flesh and testify just by their presence.

Details: The PDF version is here: SB772-3_Text.pdf, we'll post other versions as they become available.

some History

In August of 2003, Senator Morrisette asked Dr. Grant Higginson to convene a Legislative Advisory Committee (LAC) to see if there may be any consensus among OMMA proponents and opponents for a 2005 consensus bill. Since then there were meetings.  See more at: SB772_Hist.htm

WHAT IS “AD”?

A legally impaired troglodyte asks, “what is an affirmative defense and how does it differ from other defenses?”

The affirmative defense is covered in 475.306 (2) and basically says that if you exceed the limits you can still plead medical necessity as defense and the state must disprove that to win.  See more at: SB772_AD.htm

ANALYSIS

Many thanks to the Analysis contributors.  Have your notes added by entering them in the NotePad -or- emailing us.

There are perceived problems with the -3 amendments.  Here is one analysis to stimulate discussion on this web page and elsewhere and to otherwise prepare letter-writers and action-takers.

a.  In Section 1, the Annual growsite and Year-round growsite definitions are dropped because this whole concept is dropped.

b.  In Section 2, ORS 475.306, the affirmative defense for cardholders vanishes.

c.  In Section 11, ORS 475.319, the affirmative defense for noncardholders vanishes although choice of evils remains.

d.  In Section 9, (2)(c) or page 10, line 1 of the dash three amendments, there are only 4 patients per caregiver although there is no limit to garden size of patient-coops.

e.  In Section 9, (1) or page 9, line 18 of the dash three amendments, the possession is six *mature* plants and 60 oz. Is the word "mature" supposed to be in there or are we trying to discard immature/mature in favor of cuttings/plants?

It seems like "c." is the worst because it creates that unacceptable problem of someone who may be protected under the current OMMA can become "unprotected" under an amended OMMA.

To fix this, we need either to re-insert the AD or make it better such as if you can prove you would have qualified for the OMMA, then it is only a violation - never a crime (certainly never a felony).  Others may have more creative solutions but we can't let this part pass as written.  See Defense lawyers comments on the Choice of Evils as a really hard level of defense to meet, below.

The next worse is probably "b." because we have dropped the number of vegetating plants (previously called "immature"?) between 1 foot and the bud stage (from 4 to 3) while removing the AD.  This may work for experienced growers but not for novices who might need to vegetate several plants to keep most alive to the flowering stage.  This is also way too restrictive for outdoor growers or those who grow from seed and may not be able to determine plant sex until a plant is several feet tall.

This part might (?) be fixed by raising the total plant limit to 10 or 14.  Again, some outdoor growers say six is fine but they are experienced growers who expect all of their plants to live and give a fair yield.  The novice or "not so green thumb" person can be pushed over the limit and without an AD, any safety net is gone.

One idea:  live with mandatory removal of the AD from the cardholder if the plant limit was 14.  That would make it not necessary to get a 14 plant limit from a doctor (that you can only after you get busted anyway).  Also raising the plant level to 14 (or at least 10) might fix the problem for the outdoor grower so the "a." part wouldn't matter.  It would help the "grow from seed problem" because one could toss males but some sort of definition that male plants don't count may be the only way to really be 100% fair to seed growers.  Others?

"d." above is hard to figure.  Although there are 4 patients per caregiver, it does not limit total garden size of patient co-ops.  This may not be a big issue if each "growing patient" or caregiver can support four "non-growing patients".  This third party than also be a "care-grower" or whatever.  Is this "third person" sort of like a caregiver for a caregiver?  Is this third person grower protected?  Do we know this?

"e." needs clarification.  We need to recognize some of us are patients, some are caregivers, some grow inside, some grow outside, and some don't grow at all.  Some are experts and some don't anything about growing or just don't have the green thumb.  We need to be aware of everyone's needs so we don't make a bad decision. e will be easier if a - d come together.

4.  In this really confusing method of parliamentary amending may we presume that the other issues of the Ken Brown clause, 24/7, privacy, and the advisory committee workgroup are still part of SB 772?  It is also obvious some of the things previously discussed (protection from another HB 5077 raid, reciprocity, rescheduling, etc.) are not here.  We’re curious just where all the rest of 772 falls out and will pursue the matter, document and keep you posted.   Y'all do the same.

The -3 amendments amend the original 772.   For the most part this means that section 1 of the original 772 is deleted, although the others remain.   One suggestion is that you can obtain a copy of SB772 as introduced (from the leg website or other places) and then follow the directions in the 772-3 amendments re: “delete and add” and then, when you have done that, whatever is still on some page is 772 now.

What to do?  Write Senator Morrisette immediately.   Calmly and graciously express your gratitude to Senator Morrisette for all the hard work on SB 772, BUT make it clear we cannot support a situation where a group a persons who are now protected under the OMMA will become unprotected with the new SB.  The Choice of Evils by itself is too difficult and expensive to use successfully.  That means removing the AD for noncardholders is not acceptable until we make it no longer necessary.  This is a deal-breaker for some.

In addition, there is controversy regarding removal of AD for cardholders and some patients will accept this IF the plant limits were 10 to 14.  But only an expert grower could get by at 6 plants total so six is not acceptable.  We could either retain the AD for cardholders who are not expert growers or we need to raise the limit to 10 to 14 so novice growers can succeed.  Also since the "annual versus year-round" distinction is now gone one must allow for a greater number of plants in Section 2 to allow for the once per year outdoor grow.  A limit of 10 to 14 would help this greatly.  The smaller limits also do not allow for growing from seed because half the plants can be male plants - not suitable for medicine.  Perhaps a definition where male plants don't count would work and allow a slightly smaller number (10 instead of 14?).  Another option may be to allow DHS to make the possession limits by rule after public testimony.

There are ways to make the 4 patient per caregiver work if we have no limit to size of patient coops and that "third party".  And, we need to figure out whether we are still talking about mature and immature plants or define that the the word mature was either not meant to be there or was to distinguish a "plant" versus a "cutting or seedling or start".

Is this analysis correct about the big stuff like AD?   What about those big co-ops and outdoor growers and seed growers and others that grow differently than the indoor 2 room female clone model that some urban patients use?   Can the non-clone outdoor growers get by?  What about rookies and newbies?  Can anyone recall what is was like to start up?

Write Senator Morrisette, and maybe Senators Kruse, Prozanski, and Rep March ASAP.  Let's remember to thank them for their hard work, discuss problems with SB 772, and ask if input or testimony is possible Wednesday or the next meeting to fix those problems and come up with a better solution.  Try to stay positive or you may not be listened to by the lawmakers.  LE is going to "tinker" with OMMA (HB 3052 in 1999 for example) and the legislature is going to meet whether we like it or not.  We HAVE to participate if we want any say in stopping bad stuff or maybe getting a better OMMA.  It is better to engage and participate even with all of our imperfections rather than bury our collective head in the sand and let LE re-write the OMMA.  Once again thanks to everyone who makes the effort to make the OMMA work and improve.

Open to suggestions.   Others please comment and educate us. Thanks.


For example, one issue you may want to bring up at the worksession is that still the caregiver, and now site manager/grower as well, are unprotected should the patient/cardholder neglect to inform them of change in status.

People may (or may not) be shocked to learn that there have been instances where an unscrupulous patient has removed a caregiver/grower, not notified them, and continued to take medicine from them while also receiving from their new caregiver.

Some think this is a chance to get in there that OMMP has to be the notifying party as they are the record keepers.  Help Sen. M understand this.

There is a plan to phone Ron Prinslow on Monday and see if he is attending the worksession and if so, would he testify?  He reportedly was very impressed with how bad the consequences from the lack of notification can be after attending a trial in Oregon City a short while ago.


Those newer to the program and these lists might not recall that following the passage of the OMMA in 1998, administrative hearings were held for the OMMP to promulgate rules relating to the registry system.  The law passed November 3, 1998, but the first card didn't issue unitl May 1, 1999.

One thing which helped then was thinking and feeling so very lucky to be talking about the parameters of rules to protect patients from law enforcement's interference with their medically necessary use of therapeutic cannabis.  Its good, at times like this, to remember that even though 80% of the country supports MMJ, nearly 80% of the country is without *any* legal protections for patients and their medicine.

As an overview, the bill reads for what it is.  What it is are those suggested changes which each of the competing groups proposed for which Morisette could find a concensus. It is a "christmas tree" bill, where each group got something, and nobody got everything (or nothing).  We should be grateful (and proud) that several really bad ideas (including inspections and further limiting worker's rights to mmj) were not included.

The interest of this observer is, was, and will continue to be making sure that no patient is arrested and prosecuted for their medicinal use, and, for this reason, they are disappointed that it also leaves out what I believe to be essential changes relating to how patients are treated within the criminal justice system, including release pre-trial, while on DUII diversion, probation, parole and post-prison supervision.

Here's this analysis of the -3 amendments, read in conjunction with the original version of 772:

Section 1

Amends definition of delivery to exclude transfer for no consideration and creates a new term called 'marijuana grow site'.

Respectfully disagree with others concerning the effect of the amendment to the defininion of delivery.  Read in conjunction with 475.309(1) patients would be excepted from the criminal laws regarding delivery, including delivery for no consideration.  Viewpoint is that this is a legislative endorsement of sharing.

Section 2

Repeals the limits and defines a plant more or less consistly with the definition in Measure 33.  Instead of mature/immature we would, if this passes, have mature/seedling or start.  This section would allow an unlimited number of the latter.  Also repeals affirmative defense for cardholders.

This is a tremendous help and will likely speed forward work on determining which strains work best for which conditions.

By repealing the one ounce away from the garden language, when read in conjunction with Section 9(1), the new limit, regardless of the number of patients, would be 60 ounces.  (which solves the problem of transportation by caregivers for multiple patients like the case tried earlier this month)

Section 3

This section amends the registry provisions of 475.309 to create a third category ('person responsible for a marijuana grow site')

The reason for this is unclear, although it seems both that the committee knows that within health law, the term 'primary caregiver' is a term of art and that not all MMJ patient designated primary caregivers supply the patient with medicinal cannabis.

On balance, and even though it initially seems more complicated, this doesn't strike me as a bad thing

Section 4

Section 4 is Section 2 from the original 772.  The so-called Ken Brown provision, named for the late Measure 33 co-chief petitioner, was developed during the legislative advisory committee, including input from the Ore. Medical Assoc.

Section 5

Section 5 is Section 3 from the original 772, creating 24/7 verfication, also developed during the Legislative advisory committee

Section 6

is section 4 from the original 772, and is just about numbering

Section 7

is section 5 from the original 772, creating an Advisory Committee

Section 8

This section creates a registration system for marijuana grow sites and requires that the registration be posted at the site.  Only the patient can apply for a registration grow site card.

Section 9

This section Increases the limits to 6 mature plants (and, remember, an unlimited number of seedlings, clones or starts) and 60 ounces (3 pounds, 12 ounces)

Limits the person responsible for the grow site to 4 patient or caregiver the person responible is culivating 4.  No garden site which belongs to the 'person responsible' could have more than 24 mature plants and 240 ounces (15 pounds)

Requires the registration for each patient to be posted at the grow site

Requires the person responsible to deliver the medicine to the patient either at the patient's request or when finished cultivating

Although the 'person responsible for the grow site' is limited to 4 patients, there is no similar limitation for designated primary caregivers.   Unless the patient whose location was the multi-patient co-op registered as a 'person responsible' this wouldn't limit them either

The problem here is that there continues to be no requirement that either the patient or the program notify either the caregiver or the person responsible for the growsite of any change in this status.

Section 10

Adds attending to physician in a way which seems clerical

Section 11

Repeals affirmative defenses for non-cardholders, but retains choice of evils defense, as limited in 1999 legislature.

This is problematic in light of recent court of appeals decision in State v Miles ( http://www.publications.ojd.state.or.us/A116636.htm )  Click here for the relevant part of the opinion.

So, basically, this section is the tradeoff - the downside to increased limits is almost no defense if one has not registered.  Under current law, choice of evils is only available if the jury could infer from the evidence that there was no other choice.  It is reasonable to expect that this will hardly ever happen.

So, this section needs to be reworked to allow a defense for those who did not register to be able to explain why not and for medical necessity to be a defense.

Section 12

Amends the exceptions to the exemptions by deleting language relating to the affirmative defenses and by adding language regarding marijuana grow sites.


No LTEs at this time.


Questions?  Comments?   Need some info?   Got some info?   Post your info, question or comment in the Bulletin Board or e-Mail us.

Link Summary:

For reference, tools, etc.

  • Text of the Bill Text of the Bill, in Adobe PDF format.
  • Text of the Bill Text of the Bill, in WORD (doc) format.
  • Text of the Bill Text of the Bill, in HTML (web) format.
  • Information about HB5077 HB5077. SB772 severely effected by this Budget related bill.
  • History of SB772 History. In August of 2003, Senator Morrisette asked Dr. Grant Higginson to convene a Legislative Advisory Committee (LAC) to see if there may be any consensus among OMMA proponents and opponents for a 2005 consensus bill. Click on the link to read more.
  • The affirmative defense The AD. The affirmative defense is covered in 475.306 (2) and basically says that if you exceed the limits you can still plead medical necessity as defense and the state must disprove that to win. Click on the link to read more.
  • Legislation Station Index to Bills. Your Legislation Station.

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