Green Light Law Group: Does the Fifth Amendment Apply in OLCC Marijuana Compliance Investigations? Parts 1 & 2

Green Light Law Group: Does the Fifth Amendment Apply in OLCC Marijuana Compliance Investigations? Parts 1 & 2

Last year, in a presentation to a gathering of Oregon cannabis lawyers, representatives from the Oregon Liquor Control Commission (“OLCC”) and the Oregon Department of Justice (“DOJ”) took the position that there are “No 5th Amendment rights in the regulatory realm,” that “What you don’t say COULD be held against you,” and that “Remaining silent = non-cooperation.”

BY KEVIN JACOBY, GREEN LIGHT LAW GROUP —

PART 1

Is it true that the Fifth Amendment’s protection against being compelled by the state from making statements that may tend to expose yourself to criminal liability (and the related right under Article I, Section 12 of the Oregon constitution) is inapplicable in the marijuana regulatory context? Is the unconditional surrendering of your constitutional rights a condition of holding an OLCC marijuana license or worker permit? As argued below, OLCC does not have the authority to suspend the US Constitution or the Oregon constitution.

The privilege against self-incrimination is probably something that you are aware of even if you don’t know it by name. If you’ve watched any courtroom drama you have seen someone respond “I plead the fifth” when asked an incriminating question. Here is how a treatise on self-incrimination in Oregon breaks it down:

The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself [or herself].” The Fifth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Dickerson v. United States, 530 US 428, 434, 120 S Ct 2326, 147 L Ed 2d 405 (2000) (citing Malloy v. Hogan, 378 US 1, 6–11, 84 S Ct 1489, 12 L Ed 2d 653 (1964)).

Article I, section 12, of the Oregon Constitution similarly protects the right of a person to remain silent and provides that “[n]o person shall be . . . compelled in any criminal prosecution to testify against himself [or herself].” In addition to constitutional protections, certain Oregon statutes protect a defendant’s right against compelled self-incrimination and place limits on the uses that can be made of a defendant’s statements.

Criminal Law (OSB Legal Pubs 2013) §16.2-1,

The United States Supreme Court has explained the policy underlying the privilege against compelled self-incrimination as follows:

By its very nature, the privilege is an intimate and personal one. It respects a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation. Historically, the privilege sprang from an abhorrence of governmental assault against the single individual accused of crime and the temptation on the part of the State to resort to the expedient of compelling incriminating evidence from one’s own mouth.

Couch v. United States, 409 US 322, 327, 93 S Ct 611, 34 L Ed 2d 548 (1973).

While both the US Constitution and the Oregon constitution’s provisions against self-incrimination by their terms appear to only speak to criminal proceedings, Federal and state case law have uniformly held that the privilege can be raised in any proceeding, whether civil, criminal or administrative, where testimony is compelled by law, which seems to run counter to the statements made by OLCC and DOJ representatives last year. Just take a look at how the Oregon Supreme Court presented this issue in Empire Wholesale Lumber v. Meyers, 192 Or App 221, 225-226, 85 P3d 339 (2004):

The United States Supreme Court has held that the privilege to be free from state-compelled self-incrimination may be asserted in “any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; [to] protect[ ] against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”

(Citations Omitted).

Under Oregon law, the privilege to refrain from incriminating yourself is recognized as an evidentiary privilege in civil and criminal courts. See Oregon Evidence Code (“OEC”) Rule 514 (reserving privileges created by the Oregon constitution); John Deere Co. v. Epstein, 307 Or 348, 356 n8, 769 P2d 766, 770 (1989) (“OEC 514 refers only to state privileges; however, the Fifth Amendment is applicable to state court proceedings”). Similarly, OEC 513 prohibits a trier-of-fact from drawing a negative inference for a person’s invocation of their privilege against self-incrimination. John Deere Co., 307 Or at 354.

Oregon law makes the evidentiary privileges acknowledged by Rules 503 to 514 of the Oregon Evidence Code equally applicable in administrative proceedings. ORS 183.450(1) (“Agencies and hearing officers shall give effect to the rules of privilege recognized by law”); Oregon Attorney General’s Administrative Law Manual (2008 edition), p. 147 (“Agencies and presiding officers must give effect to the rules of privilege recognized by law… Those privileges are found in Rules 503 to 514 of the Oregon Evidence Code”). Having established that the right against self-incrimination exists in Oregon as privilege recognized under OEC 514 and subject to the limitations on negative inferences in OEC 513, there can be no question that the privilege against self-incrimination guaranteed by the Fifth Amendment to the US Constitution and Article I, Section 12 to the Oregon constitution applies to administrative proceedings, including those conducted by OLCC’s marijuana program.

In my next post I will examine how the privilege against self-incrimination applies specifically to OLCC marijuana licensees.

You can contact Kevin Jacoby at info@gl-lg.com or (503) 488-5424.

Part 2: Does the Fifth Amendment Apply in OLCC Marijuana Compliance Investigations?

This is the second post in a two-part series on whether the Fifth Amendment protection against self-incrimination applies in the context of regulatory hearings with the Oregon Liquor Control Commission (“OLCC”). The first post is available here.

BY KEVIN JACOBY, GREEN LIGHT LAW GROUP —

In order for the Fifth Amendment’s privilege against self-incrimination to apply, there must be a substantial and not trifling or imaginary risk that the answer could form a link in a chain of evidence needed to prosecute a crime. In other words, you cannot just “plead the fifth” to avoid answering any question. You have to have some skin in the game in order to invoke the privilege.

A marijuana license issued by state regulators is not, as a legal matter, a defense to a prosecution under federal law, where marijuana cultivation, distribution and sale remains strictly prohibited. The license allows these activities under state law, not federal law. In that sense, it’s likely inarguable that an individual can be reasonably apprehensive that being compelled to provide evidence in relation to an OLCC investigation could aid a future federal prosecution for trafficking a marijuana, which remains a controlled substance.

Under Oregon law, a marijuana licensee or worker permittee may be subjected to criminal prosecution by Oregon prosecutors if it is established that the licensee or worker permittee was not in compliance with statutes and rules applicable to the regulated adult-use marijuana market. See, e.g., ORS 475B.065; ORS 475B.251 (“A license issued under ORS 475B.010 to 475B.545… Serves the purpose of exempting the person that holds the license from the criminal laws of this state for possession, delivery or manufacture of marijuana items, provided that the person complies with all state laws and rules applicable to licensees.”) (emphasis added).

OLCC and Oregon Department of Justice (“DOJ”) have pointed to OAR 845-025-8540(4)(c) as justification for their position that the Fifth Amendment does not apply in a regulatory setting. That rule provides that a licensee or worker permittee may not “[r]efuse to give, or fail to promptly give, a Commission regulatory specialist or law enforcement officer evidence when lawfully requested to do so.” This rule on its face presents a rather straightforward self-incrimination problem: in order to keep a license or worker permit in good standing, a licensee or worker permittee must waive their privilege against self-incrimination, which undoubtedly applies as argued above.

Indeed, by virtue of OEC 513, which prohibits a trier-of-fact from drawing a negative inference for a person’s invocation of their privilege against self-incrimination, a licensee or worker permittee who exercises their right against self-incrimination by refusing to provide evidence to an OLCC investigator that might be used to establish a violation by the licensee or worker permittee, OLCC is prohibited from making an adverse inference as a result of the licensee’s or worker permittee’s invocation of their right to remain silent. Accordingly, it could be argued that OAR 845-025-8540(4)(c) is unconstitutional in that situation. However, because there are situations in which the rule could be applied so as not to implicate the self-incrimination privilege (such as, by offering immunity for the disclosure, or only seeking evidence that could implicate others), the rule is probably not susceptible to a facial challenge.

Thus, the OLCC and DOJ are flatly incorrect when they contend that the Fifth Amendment (and, by implication, Article I, Section 12 of the Oregon constitution) does not apply in the regulatory context. To the contrary, the privilege against self-incrimination is strongly indicated in the marijuana industry so long as the threat of federal prosecution remains feasible, and in any event is directly indicated when OLCC seeks admissions by licensees or worker permittees that they have violated a law or rule under OLCC’s jurisdiction.

Obviously, the best way to invoke this right is to do so with the aid of experienced counsel, but those situations rarely present themselves in real world applications. Thus, in order to ensure any defenses to a charge of non-cooperation are not waived, licensees and worker permittees should calmly and politely explain that they are exercising their right to remain silent under both the US and Oregon constitutions, and then promptly seek qualified counsel who can then follow up with the investigator. A clear invocation of your constitutional rights, followed by prompt action and follow up by counsel will provide a strong record of active cooperation without compromising your constitutional rights.

You can contact Kevin Jacoby at info@gl-lg.com or (503) 488-5424.

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Cannabis Law Journal – Editorial Board Members

Editor – Sean Hocking

Author Bios

Canada
Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Nicaragua
Elvin Rodríguez Fabilena

USA

General
Julie Godard
Carl L Rowley -Thompson Coburn LLP

Arizona
Jerry Chesler – Chesler Consulting

California
Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Colorado
Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Florida
Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

Illinois
William Bogot – Fox Rothschild

Massachusetts
Valerio Romano, Attorney – VGR Law Firm, PC

Nevada
Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Oregon
Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Pennsylvania
Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild