An Oregon Supreme Court decision, stemming from a 2018 arrest in Tigard, is likely to prompt a second look from a legislative committee and initiative advocates about revising drug-law enforcement.

The justices, in a decision released Oct. 5, upheld a 2021 Court of Appeals opinion concluding that mere possession of a large amount of specified drugs is not sufficient to prove an “attempted transfer,” despite a 1977 state law based on the federal Uniform Controlled Substances Act and a 1988 interpretation by the Court of Appeals.

The high court said additional evidence was required to show “possession with intent to sell,” a phrase omitted from Oregon law, but included in the federal law and similar laws in other states.

The decision was released after the Sept. 29 announcement of a joint legislative committee to review drug treatment and enforcement efforts. It also came after the Sept. 19 filing of two proposed initiatives for the 2024 general election ballot — one of which would restore the legal standard for intent that existed for more than three decades before the Court of Appeals reversed that standard in September 2021.

When he and House Speaker Dan Rayfield announced the committee, Senate President Rob Wagner said members would consider the issue in the broader context of a ballot measure that Oregon voters approved in 2020 to connect people with treatment instead of criminal punishment for possession of low-level amounts of some drugs.

Wagner, a Democrat from Lake Oswego, said this in a statement:

“Oregonians are being harmed every day by this crisis and we all have a part to play in finding a path forward. It is a complex problem that demands a comprehensive solution and we are committed to working toward a solution this session and into the long term.”

The committee will be led by Senate Majority Leader Kate Lieber, D-Beaverton, and Rep. Jason Kropf, D-Bend, both of whom are lawyers.

One of two initiatives proposed to change the 2020 law, also known as Measure 110, contains language to restore the “possession with intent to sell” standard established through a 1988 decision by the Court of Appeals in Oregon v. Boyd. The standard had been sufficient to prove “attempt transfer.”

It is within the 30 pages filed as Initiative Petition 44, but not the 10-page Initiative Petition 45. Neither initiative has begun circulation yet for the 117,167 signatures required to qualify them for the general election Nov. 5, 2024. Filing deadline is in July.

The Oregon District Attorneys Association offered a similar proposal during the 2022 session, but the Legislature did not advance House Bill 4135 during the 35-day session.

Tigard arrest

The Supreme Court decision released Oct. 5 was in Oregon v. Hubbell.

It stemmed from the case of Brian Hubbell, who was arrested in 2018 after Tigard police responded to a report of three people who had overdosed. One of them told police that the drugs came from Hubbell, who was in Columbia County Jail at the time, but had a room at an extended-stay hotel elsewhere in Tigard.

According to the facts section of the Supreme Court decision, a search of Hubbell’s room turned up one package containing 23.78 grams, a second with .23 of a gram, several others each with .04 gram, and other plastic baggies with residue of white powder later confirmed to be fentanyl — a synthetic opioid that is far more potent than illegal heroin. The amount was sufficient for thousands of individual doses.

Judge Theodore Sims ruled in Washington County Circuit Court that the 1988 standard of possession with intent to sell had been met, and Hubbell was convicted of attempted transfer of a controlled substance.

But the Court of Appeals reversed that earlier decision in September 2021 — and the Supreme Court agreed in an opinion written by Justice Christopher Garrett. He and three other current justices participated, plus retired Justices Jack Landau and Martha Walters.

The Oregon Department of Justice argued for the earlier standard, and the Office of Public Defense Services against it. The justices also accepted outside arguments, known as friend-of-the-court briefs, from the Drug Policy Alliance, and the Oregon Justice Resource Center and Oregon Criminal Defense Lawyers Association.

The Supreme Court opinion by Garrett says:

“In light of the parties’ arguments and the facts of this case, it is sufficient for us to say what an ‘attempted transfer’ is not: It is not established by evidence that a person possessed a large quantity of a controlled substance and had a general intent to transfer it at an undetermined future time,” he wrote for the court. “Some additional evidence that the person made an effort to engage in the act of transferring is required. The question of what sort of additional evidence might be sufficient is one that we decline to address in the abstract, as we expect that courts will face it in a great variety of fact patterns.”

But in Hubbell’s case, the opinion added:

“In this case, the record is legally insufficient to prove that defendant made an effort to transfer fentanyl. The record shows that defendant possessed a nonuser amount of fentanyl and that some of the fentanyl was packaged in a manner consistent with an intent to deliver it. What the record lacks is evidence that defendant had taken additional steps to engage in conduct that would cause the fentanyl to change hands.”

The Supreme Court sent the Hubbell case back to Washington County Circuit Court, where prosecutors could present additional evidence.

Of those who did not participate, Justice Stephen Bushong had been a Multnomah County judge until he took his seat in January. Justices Roger DeHoog and Bronson James were on the Court of Appeals when it decided the Hubbell case in 2021. DeHoog went to the Supreme Court in January 2022. James, who went to the Supreme Court a year later, was on the Court of Appeals panel that decided the case, though the opinion was written by someone else.