475.235 Burden
of proof; status of analysis of controlled substance; notice of objection. (1) It is not necessary for the
state to negate any exemption or exception in ORS 475.005 to 475.285 and
475.752 to 475.980 in any complaint, information, indictment or other pleading
or in any trial, hearing or other proceeding under ORS 475.005 to 475.285 and
475.752 to 475.980. The burden of proof of any exemption or exception is upon
the person claiming it.
(2) In the
absence of proof that a person is the duly authorized holder of an appropriate
registration or order form issued under ORS 475.005 to 475.285 and 475.752 to
475.980, the person is presumed not to be the holder of the registration or
form. The burden of proof is upon the person to rebut the presumption.
(3)(a) When a
controlled substance is at issue in a criminal proceeding before a grand jury,
at a preliminary hearing, in a proceeding on a district attorney’s information
or for purposes of an early disposition program, it is prima facie evidence of
the identity of the controlled substance if:
(A) A sample of
the controlled substance is tested using a presumptive test for controlled
substances;
(B) The test is
conducted by a law enforcement officer trained to use the test or by a forensic
scientist; and
(C) The test is
positive for the particular controlled substance.
(b) When the
identity of a controlled substance is established using a presumptive test for
purposes of a criminal proceeding before a grand jury, a preliminary hearing, a
proceeding on a district attorney’s information or an early disposition
program, the defendant, upon notice to the district attorney, may request that
the controlled substance be sent to a state police forensic laboratory for
analysis.
(4)
Notwithstanding any other provision of law, in all prosecutions in which an
analysis of a controlled substance or sample was conducted, a certified copy of
the analytical report signed by the director of a state police forensic
laboratory or the analyst or forensic scientist conducting the analysis shall
be admitted as prima facie evidence of the results of the analytical findings
unless the defendant has provided notice of an objection in accordance with
subsection (5) of this section.
(5) If the
defendant intends to object at trial to the admission of a certified copy of an
analytical report as provided in subsection (4) of this section, not less than
15 days prior to trial the defendant shall file written notice of the objection
with the court and serve a copy on the district attorney.
(6) As used in
this section:
(a) “Analyst”
means a person employed by the Department of State Police to conduct analysis
in forensic laboratories established by the department under ORS 181A.150.
(b) “Presumptive
test” includes, but is not limited to, chemical tests using Marquis reagent,
Duquenois-Levine reagent, Scott reagent system or modified Chen’s reagent. [1977
c.745 §23; 1989 c.194 §1; 1995 c.440 §6; 1997 c.346 §1; 2001 c.870 §14; 2003
c.538 §1; 2007 c.636 §§1,2; 2009 c.610 §8; 2021 c.591 §42; 2024 c.70 §70]
475.237 [2021 c.591 §46; repealed by 2024
c.70 §72]
Notes of Decisions
Cited in
37
cases (
1 in the last 5 years), 1984–2024 · leading case:
State v. Hancock, 854 P.2d 926 (Or. 1993).
State v. Hancock, 854 P.2d 926 (Or. 1993).
· cites it 68× “The question in this case is whether defendant's state and federal confrontation rights were violated by the admission of a laboratory report pursuant to ORS 475.235. That statute provides in part: "(3) In all prosecutions under ORS 475.”
State v. Marroquin, 168 P.3d 1246 (Or. Ct. App. 2007).
· cites it 15× “Birchfield, 342 Or 624 , 157 P3d 216 (2007), which held that requiring a criminal defendant to subpoena the criminalist who prepared a laboratory report, pursuant to ORS 475.235 (set forth below), violated the defendant’s right to confrontation under Article I, section 11, of…”
State v. Birchfield, 157 P.3d 216 (Or. 2007).
· cites it 9× “Over defendant’s pretrial objection, the trial court, pursuant to ORS 475.235 and this court’s decision in State v.”
State v. Miller, 144 P.3d 1052 (Or. Ct. App. 2006).
· cites it 14× “” The trial court further concluded, parenthetically, that ORS 475.235, which permits evidence of such reports to be admitted without live testimony from the authors under certain circumstances, is unconstitutional.”
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
· cites it 2× “3d, at 220 (suggesting that a "typical notice requirement" would be lawful), see Ore.Rev. Stat. § 475.235 (2007) (defendant must give notice 15 days before trial).”
State v. Copeland, 306 P.3d 610 (Or. 2013).
· cites it 2× “At issue in Birchfield was whether the admission of a laboratory report at the defendant’s trial violated his confrontation right under Article I, section 11, where the trial court, pursuant to ORS 475.235 (2005), 3 had *826 allowed the state to introduce the laboratory report…”
State v. Thackaberry, 95 P.3d 1142 (Or. Ct. App. 2004).
· cites it 2× “As the Oregon Supreme Court has held, ORS 475.235 permits a defendant to subpoena at state expense the criminalist who prepares a laboratory report and thus effectively provides a procedure by which a defendant is entitled to “select the method by which the state will prove the…”
State v. Kinslow, 304 P.3d 801 (Or. Ct. App. 2013).
· cites it 8× “at 701 (holding that “ORS 475.235 is precisely the type of notice- and-demand statute of which the Court explicitly approved in Melendez-Diaz,” and that the defendant was “incorrect that its requirement that he raise his objection before trial violates the Confrontation Clause”).”
State v. Choin, 179 P.3d 743 (Or. Ct. App. 2008).
· cites it 4× “Birchfield, 342 Or 624, 631-32 , 157 P3d 216 (2007) (the requirement that a criminal defendant subpoena the criminalist who prepared a laboratory report, pursuant to ORS 475.235, violates the defendant’s right to confrontation under Article I, section 11, of the Oregon…”
State v. Hancock, 825 P.2d 648 (Or. Ct. App. 1992).
· cites it 5× “ORS 475.235(3) provides: “In all prosecutions under ORS 475.”
State v. Wells, 144 P.3d 1077 (Or. Ct. App. 2006).
· cites it 4× “Miller, 208 Or App 424, 434-38 , 144 P3d 1052 (2006), we held that lab reports such as those at issue here constitute “testimonial” evidence for purposes of Sixth Amendment protections, but that ORS 475.235, as interpreted by the Oregon Supreme Court in State v.”
State v. Ford, 185 P.3d 550 (Or. Ct. App. 2008).
· cites it 2× “On remand, defendant will be subject to the newly amended procedures set forth in ORS 475.235, which became effective on January 1, 2008.”
— Or. Rev. Stat. § 475.235(1) — 3 cases
— Or. Rev. Stat. § 475.235(3) — 5 cases
State v. Hancock, 854 P.2d 926 (Or. 1993).
“The question in this case is whether defendant's state and federal confrontation rights were violated by the admission of a laboratory report pursuant to ORS 475.235. That statute provides in part: "(3) In all prosecutions under ORS 475.”
State v. Hancock, 825 P.2d 648 (Or. Ct. App. 1992).
“ORS 475.235(3) provides: “In all prosecutions under ORS 475.”
— Or. Rev. Stat. § 475.235(4) — 9 cases
State v. Hancock, 854 P.2d 926 (Or. 1993).
“The question in this case is whether defendant's state and federal confrontation rights were violated by the admission of a laboratory report pursuant to ORS 475.235. That statute provides in part: "(3) In all prosecutions under ORS 475.”
State v. Kinslow, 304 P.3d 801 (Or. Ct. App. 2013).
“at 701 (holding that “ORS 475.235 is precisely the type of notice- and-demand statute of which the Court explicitly approved in Melendez-Diaz,” and that the defendant was “incorrect that its requirement that he raise his objection before trial violates the Confrontation Clause”).”
State v. Thackaberry, 95 P.3d 1142 (Or. Ct. App. 2004).
“As the Oregon Supreme Court has held, ORS 475.235 permits a defendant to subpoena at state expense the criminalist who prepares a laboratory report and thus effectively provides a procedure by which a defendant is entitled to “select the method by which the state will prove the…”
State v. Hancock, 825 P.2d 648 (Or. Ct. App. 1992).
“ORS 475.235(3) provides: “In all prosecutions under ORS 475.”
— Or. Rev. Stat. § 475.235(5) — 3 cases
State v. Marroquin, 168 P.3d 1246 (Or. Ct. App. 2007).
“Birchfield, 342 Or 624 , 157 P3d 216 (2007), which held that requiring a criminal defendant to subpoena the criminalist who prepared a laboratory report, pursuant to ORS 475.235 (set forth below), violated the defendant’s right to confrontation under Article I, section 11, of…”
State v. Kinslow, 304 P.3d 801 (Or. Ct. App. 2013).
“at 701 (holding that “ORS 475.235 is precisely the type of notice- and-demand statute of which the Court explicitly approved in Melendez-Diaz,” and that the defendant was “incorrect that its requirement that he raise his objection before trial violates the Confrontation Clause”).”
— Or. Rev. Stat. § 475.235(6) — 1 case
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