77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1292

                         House Bill 2204

Sponsored by Representative GILLIAM, Senator JOHNSON (at the
  request of John S. Foote, Clackamas County District Attorney)
  (Presession filed.)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Requires crimes related to oxycodone, hydrocodone or methadone
that involve substantial quantity or that constitute commercial
drug offense to be classified as crime category 8 of sentencing
guideline grid.
  Specifies sentencing guidelines for unlawful manufacture,
delivery or possession of varying amounts of marijuana.
  Specifies sentencing guidelines for unlawful delivery or
manufacture of oxycodone or heroin if person who uses heroin or
oxycodone dies or sustains serious physical injury as result of
that use.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to controlled substances; creating new provisions;
  amending ORS 475.900, 475.924 and 475.925; and declaring an
  emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 475.900 is amended to read:
  475.900. (1)  { + Except as provided in subsections (3) and (4)
of this section, + } a violation of ORS 475.752, 475.806 to
475.894, 475.904 or 475.906 shall be classified as crime category
8 of the sentencing guidelines grid of the Oregon Criminal
Justice Commission if:
  (a) The violation constitutes delivery or manufacture of a
controlled substance and involves substantial quantities of a
controlled substance. For purposes of this paragraph, the
following amounts constitute substantial quantities of the
following controlled substances:
  (A) Five grams or more of a mixture or substance containing a
detectable amount of heroin;
  (B) Ten grams or more of a mixture or substance containing a
detectable amount of cocaine;
  (C) Ten grams or more of a mixture or substance containing a
detectable amount of methamphetamine, its salts, isomers or salts
of its isomers;
    { - (D) One hundred grams or more of a mixture or substance
containing a detectable amount of hashish; - }
    { - (E) One hundred and fifty grams or more of a mixture or
substance containing a detectable amount of marijuana; - }
    { - (F) - }   { + (D) + } Two hundred or more user units of a
mixture or substance containing a detectable amount of lysergic
acid diethylamide;
    { - (G) - }   { + (E) + } Sixty grams or more of a mixture or
substance containing a detectable amount of psilocybin or
psilocin;   { - or - }
    { - (H) - }   { + (F) + } Five grams or more or 25 or more
pills, tablets or capsules of a mixture or substance containing a
detectable amount of:
  (i) 3,4-methylenedioxyamphetamine;
  (ii) 3,4-methylenedioxymethamphetamine; or
  (iii) 3,4-methylenedioxy-N-ethylamphetamine  { - . - }  { + ;
or
  (G) ___ grams or more or ___ or more pills, tablets or capsules
of a mixture or substance containing a detectable amount of
oxycodone, hydrocodone or methadone. + }
  (b) The violation constitutes possession, delivery or
manufacture of a controlled substance and the possession,
delivery or manufacture is a commercial drug offense. A
possession, delivery or manufacture is a commercial drug offense
for purposes of this subsection if it is accompanied by at least
three of the following factors:
  (A) The delivery was of heroin, cocaine, hashish, marijuana,
methamphetamine, lysergic acid diethylamide, psilocybin
 { - or - }  { + , + } psilocin { + , oxycodone, hydrocodone or
methadone + } and was for consideration;
  (B) The offender was in possession of $300 or more in cash;
  (C) The offender was unlawfully in possession of a firearm or
other weapon as described in ORS 166.270 (2), or the offender
used, attempted to use or threatened to use a deadly or dangerous
weapon as defined in ORS 161.015, or the offender was in
possession of a firearm or other deadly or dangerous weapon as
defined in ORS 161.015 for the purpose of using it in connection
with a controlled substance offense;
  (D) The offender was in possession of materials being used for
the packaging of controlled substances such as scales, wrapping
or foil, other than the material being used to contain the
substance that is the subject of the offense;
  (E) The offender was in possession of drug transaction records
or customer lists;
  (F) The offender was in possession of stolen property;
  (G) Modification of structures by painting, wiring, plumbing or
lighting to facilitate a controlled substance offense;
  (H) The offender was in possession of manufacturing
paraphernalia, including recipes, precursor chemicals, laboratory
equipment, lighting, ventilating or power generating equipment;
  (I) The offender was using public lands for the manufacture of
controlled substances;
  (J) The offender had constructed fortifications or had taken
security measures with the potential of injuring persons; or
  (K) The offender was in possession of controlled substances in
an amount greater than:
  (i) Three grams or more of a mixture or substance containing a
detectable amount of heroin;
  (ii) Eight grams or more of a mixture or substance containing a
detectable amount of cocaine;
  (iii) Eight grams or more of a mixture or substance containing
a detectable amount of methamphetamine;
  (iv) Eight grams or more of a mixture or substance containing a
detectable amount of hashish;
  (v) One hundred ten grams or more of a mixture or substance
containing a detectable amount of marijuana;
  (vi) Twenty or more user units of a mixture or substance
containing a detectable amount of lysergic acid diethylamide;
  (vii) Ten grams or more of a mixture or substance containing a
detectable amount of psilocybin or psilocin;   { - or - }
  (viii) Four grams or more or 20 or more pills, tablets or
capsules of a mixture or substance containing a detectable amount
of:
  (I) 3,4-methylenedioxyamphetamine;
  (II) 3,4-methylenedioxymethamphetamine; or
  (III) 3,4-methylenedioxy-N-ethylamphetamine  { - . - }  { + ;
or
  (ix) ___ grams or more or ___ or more pills, tablets or
capsules of a mixture or substance containing a detectable amount
of oxycodone, hydrocodone or methadone. + }
  (c) The violation constitutes a violation of ORS 475.848,
475.852, 475.858, 475.862, 475.868, 475.872, 475.878, 475.882,
475.888, 475.892 or 475.904.
  (d) The violation constitutes manufacturing methamphetamine and
the manufacturing consists of:
  (A) A chemical reaction involving one or more precursor
substances for the purpose of manufacturing methamphetamine; or
  (B) Grinding, soaking or otherwise breaking down a precursor
substance for the purpose of manufacturing methamphetamine.
  (e) The violation constitutes a violation of ORS 475.860 (4)(a)
or 475.906 (1) or (2).
  (2)  { + Except as provided in subsections (3) and (4) of this
section, + } a violation of ORS 475.752 or 475.806 to 475.894
shall be classified as crime category 6 of the sentencing
guidelines grid of the Oregon Criminal Justice Commission if:
  (a) The violation constitutes delivery of heroin, cocaine,
methamphetamine or 3,4-methylenedioxyamphetamine,
3,4-methylenedioxymethamphetamine or
3,4-methylenedioxy-N-ethylamphetamine and is for consideration.
  (b) The violation constitutes possession of:
  (A) Five grams or more of a mixture or substance containing a
detectable amount of heroin;
  (B) Ten grams or more of a mixture or substance containing a
detectable amount of cocaine;
  (C) Ten grams or more of a mixture or substance containing a
detectable amount of methamphetamine;
    { - (D) One hundred grams or more of a mixture or substance
containing a detectable amount of hashish; - }
    { - (E) One hundred fifty grams or more of a mixture or
substance containing a detectable amount of marijuana; - }
    { - (F) - }   { + (D) + } Two hundred or more user units of a
mixture or substance containing a detectable amount of lysergic
acid diethylamide;
    { - (G) - }   { + (E) + } Sixty grams or more of a mixture or
substance containing a detectable amount of psilocybin or
psilocin;   { - or - }
    { - (H) - }   { + (F) + } Five grams or more or 25 or more
pills, tablets or capsules of a mixture or substance containing a
detectable amount of:
  (i) 3,4-methylenedioxyamphetamine;
  (ii) 3,4-methylenedioxymethamphetamine; or
  (iii) 3,4-methylenedioxy-N-ethylamphetamine  { - . - }  { + ;
or
  (G) ___ grams or more or ___ or more pills, tablets or capsules
of a mixture or substance containing a detectable amount of
oxycodone, hydrocodone or methadone.
  (3) Any felony violation of ORS 475.856, 475.860 or 475.864
shall be classified as:
  (a) Crime category 10 of the sentencing guidelines grid if the
violation involves:
  (A) More than 50,000 grams of a substance or mixture containing
a detectable amount of marijuana; or
  (B) More than 500 mature marijuana plants, seedlings or starts;
  (b) Crime category 9 of the sentencing guidelines grid if the
violation involves:

  (A) More than 20,000 grams, and not more than 50,000 grams, of
a substance or mixture containing a detectable amount of
marijuana; or
  (B) More than 200, but not more than 500, mature marijuana
plants, seedlings or starts;
  (c) Crime category 8 of the sentencing guidelines grid if the
violation involves:
  (A) More than 5,000 grams, and not more than 20,000 grams, of a
substance or mixture containing a detectable amount of marijuana;
or
  (B) More than 50, but not more than 200, mature marijuana
plants, seedlings or starts;
  (d) Crime category 6 of the sentencing guidelines grid if the
violation involves:
  (A) More than 1,000 grams, and not more than 5,000 grams, of a
substance or mixture containing a detectable amount of marijuana;
or
  (B) More than 10, but not more than 50, mature marijuana
plants, seedlings or starts; or
  (e) Crime category 4 of the sentencing guidelines grid if the
violation involves:
  (A) One thousand grams or less of a substance or mixture
containing a detectable amount of marijuana; or
  (B) Ten or fewer mature marijuana plants, seedlings or
starts. + }
    { - (3) - }   { + (4) + } Any felony violation of ORS 475.752
or 475.806 to 475.894 not contained in subsection (1)
 { - or - }  { + , + } (2)  { + or (3) + } of this section shall
be classified as:
  (a) Crime category 4 of the sentencing guidelines grid of the
Oregon Criminal Justice Commission if the violation involves
delivery or manufacture of a controlled substance; or
  (b) Crime category 1 of the sentencing guidelines grid of the
Oregon Criminal Justice Commission if the violation involves
possession of a controlled substance.
    { - (4) - }   { + (5) + } In order to prove a commercial drug
offense, the state shall plead in the accusatory instrument
sufficient factors of a commercial drug offense under subsections
(1) and (2) of this section. The state has the burden of proving
each factor beyond a reasonable doubt.
    { - (5) - }   { + (6) + } As used in this section, 'mixture
or substance ' means any mixture or substance, whether or not the
mixture or substance is in an ingestible or marketable form at
the time of the offense.
  SECTION 2. ORS 475.924 is amended to read:
  475.924. As used in ORS 164.061, 475.907, 475.924 and 475.925:
  (1) 'Controlled substance' means:
  (a) Cocaine;
  (b) Methamphetamine;
  (c) Heroin;   { - or - }
   { +  (d) Oxycodone; or + }
    { - (d) - }   { + (e) + } Ecstasy.
  (2) 'Ecstasy' means:
  (a) 3,4-methylenedioxymethamphetamine;
  (b) 3,4-methylenedioxyamphetamine; or
  (c) 3,4-methylenedioxy-N-ethylamphetamine.
  (3) 'Mixture or substance' means any mixture or substance,
whether or not the mixture or substance is in an ingestible or
marketable form at the time of the offense.
   { +  (4) 'Serious physical injury' has the meaning given that
term in ORS 161.015. + }
  SECTION 3. ORS 475.925 is amended to read:
  475.925. When a person is convicted of the unlawful delivery or
manufacture of a controlled substance, the court shall sentence
the person to a term of incarceration ranging from:

  (1) 58 months to 130 months, depending on the person's criminal
history, if { + :
  (a) + } The delivery or manufacture involves:
    { - (a) - }   { + (A) + } 500 grams or more of a mixture or
substance containing a detectable amount of cocaine;
    { - (b) - }   { + (B) + } 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, its
salts, isomers or salts of its isomers;
    { - (c) - }   { + (C) + } 100 grams or more of a mixture or
substance containing a detectable amount of heroin; or
    { - (d) - }   { + (D) + } 100 grams or more or 500 or more
pills, tablets or capsules of a mixture or substance containing a
detectable amount of ecstasy  { - . - }  { + ; or
  (b) The controlled substance delivered or manufactured is
heroin or oxycodone and a person who uses the heroin or oxycodone
dies as a result of that use. + }
  (2) 34 months to 72 months, depending on the person's criminal
history, if { + :
  (a) + } The delivery or manufacture involves:
    { - (a) - }   { + (A) + } 100 grams or more of a mixture or
substance containing a detectable amount of cocaine;
    { - (b) - }   { + (B) + } 100 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, its
salts, isomers or salts of its isomers;
    { - (c) - }   { + (C) + } 50 grams or more of a mixture or
substance containing a detectable amount of heroin; or
    { - (d) - }   { + (D) + } 50 grams or more or 250 or more
pills, tablets or capsules of a mixture or substance containing a
detectable amount of ecstasy  { - . - }  { + ; or
  (b) The controlled substance delivered or manufactured is
heroin or oxycodone and a person who uses the heroin or oxycodone
sustains a serious physical injury as a result of that use. + }
  SECTION 4.  { + The amendments to ORS 475.900, 475.924 and
475.925 by sections 1 to 3 of this 2013 Act apply to conduct
occurring on or after the effective date of this 2013 Act. + }
  SECTION 5.  { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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