STATE v. RICKETTS (2020)

Defendant was convicted after jury trial of driving under the influence of intoxicants (DUII), ORS 813.010, and resisting arrest, ORS 162.315. On appeal, she challenges the sufficiency of the evidence supporting the DUII conviction, and also argues that the trial court erred in imposing several conditions of probation. We reject without discussion defendant's challenge to her DUII conviction. With respect to the conditions of probation, the state concedes that the trial court erred in imposing conditions that effectively prohibited defendant from participating in the state's medical marijuana program. We accept the state's concession. Special conditions of probation concerning marijuana must contain an exception for marijuana use that complies with the state's medical marijuana laws. See State v. Bowden, 292 Or. App. 815, 818-19, 425 P.3d 475 (2018) (court does not have discretion to a impose special condition of probation that “runs counter to ORS 137.540(1)(b) and ORS 137.542”).

The parties agree that the appropriate disposition in the current circumstance is to remand for resentencing. See, e.g., State v. Miller, 299 Or. App. 515, 517, 450 P.3d 578 (2019), rev. den., 366 Or. 97, 455 P.3d 930 (2020) (explaining need for remand in such circumstances); State v. Kilgore, 295 Or. App. 602, 604-05, 435 P.3d 817 (2019) (same).

Remanded for resentencing; otherwise affirmed.

PER CURIAM