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2012 Oregon Attorney General Reports and Opinions 1 (2012)

handle is hein.sag/sagor0031 and id is 1 raw text is: JOHN R. KROGER MARY H. WILLIAMS Attorney General Deputy Attorney General DEPARTMENT OF JUSTICE GENERAL COUNSEL DIVISION January 19, 2012 Captain Steve Duvall Oregon State Police 255 Capitol St. NE 4th Floor Salem, OR 97310 Re: Opinion Request OP-2012-1 Dear Captain Duvall: The Oregon Medical Marijuana Act authorizes the provision and possession of marijuana for medical use and requires law enforcement officers to return seized marijuana to persons who are entitled to the protections of the Act. ORS 475.304, 475.320, 475.323(2). The federal Controlled Substances Act, on the other hand, prohibits the distribution and possession of all marijuana, including marijuana that state law permits to be used for medical purposes. 21 USC § 841, 844; United States v. Oakland Cannabis Buyers' Cooperative et al, 532 US 483, 486, 494, 121 S Ct 1711, 149 LEd2d 722 (2001), Gonzales v. Raich, 545 US 1, 14, 125 S Ct 2195, 162 LEd2d 1 (2005). In Emerald Steel Fabricators, Inc. v. BOLI, 348 Or 159, 230 P3d 518 (2010), the Oregon Supreme Court held that the Oregon Medical Marijuana Act is preempted by the federal Controlled Substances Act to the extent that it affirmatively authorizes medical marijuana use, An Oregon federal district court subsequently relied on Emerald Steel to deny claims arising from a law enforcement officer's refusal to return medical marijuana to those entitled to possess it under the Oregon Medical Marijuana Act. Butler v. Douglas County, Civil No. 07-6241-H (D Or August 10, 2010). In light of those recent opinions, you ask the following questions. QUESTIONS AND SHORT ANSWERS Question 1: Does the federal Controlled Substances Act preempt the direction in ORS 475.323(2) to Oregon state and local law enforcement officers that they must return seized marijuana in certain circumstances? 1162 Court Street NE, Salem, OR 97301-4096 Telephone: (503) 947-4540 Fax: (503) 378-3784 TTY: (800) 735-2900 www.doj.state.or.us

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