The AD – Affirmative Defense

MERCYs' public info on the S.B.772 related issue of Affirmative Defense (AD), as well as any related Issues.




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.


For purposes of OMMA, the Oregon Medical Marijuana Act, an affirmative defense (AD) is the third level of protection for patients and caregivers.  It differs from general defenses because the accused has to put on some evidence in support of it.  In a general defense (self-defense, for example) an accused can simply rely on the state's evidence.


There are 3 affirmative defenses in the OMMA.  (1) If you have a card but have too much you can show it was medically necessary as an affirmative defense.  Whether you have a card or not,  (2) if you were diagnosed within one year prior to arrest and in the opinion of your attending physician it is medically necessary, and (3) a choice of evils defense which is available if you made some effort to comply with the OMMA and are either within the limits or can show the excess to be medically necessary.


Put another way:


Case #1. OMMA offers AD for non-cardholders if they can show they would have qualified as a patient if they had chosen to register.  Let's call that AD1.


Case #2. OMMA offers AD for cardholders to have more than the base possession limits if they can prove they need more medicine.  Let's call that AD2.


SB 772 keeps AD1 but allows cardholders to choose to sign a document to actively decline AD2 if the patient wants higher possession limits.  In other words, with SB 772, a cardholder would have to make an active contract to limit any AD.  Otherwise AD stays the same as the original OMMA.


Some of the times an AD would have been found to be used can be covered with elimination of the maturity factor, the raised plant numbers and weight for outdoor annual grows - these correct problems of people being prosecuted because of the strictness and unclarity of the present law.   The plant definition clarification eliminates the problem of convincing a court of horticultural realities just to grow a garden in a realistically reliable manner.


Witness the recent case of Scott Greggerson that John Sajo of Voter Power testified in where they tried to decide whether this nub of something was a root and whether therefore the material was a plant.  Lack of clarity and gray areas do result in a selective enforcement atmosphere where something entirely other than the supposed crime determines if the patient has a problem or not.


for WORD version, click here.  For PDF, click here.