This is the second publish in a two-part collection on whether or not the Fifth Amendment safety towards self-incrimination applies in the context of regulatory hearings with the Oregon Liquor Control Commission (“OLCC”). The first publish is on the market right here.


In order for the Fifth Amendment’s privilege towards self-incrimination to use, there should be a considerable and never trifling or imaginary threat that the reply might kind a hyperlink in a series of proof wanted to prosecute against the law. In different phrases, you can not simply “plead the fifth” to keep away from answering any query. You should have some pores and skin in the sport in order to invoke the privilege.

A marijuana license issued by state regulators is just not, as a authorized matter, a protection to a prosecution underneath federal regulation, the place marijuana cultivation, distribution and sale stays strictly prohibited. The license permits these actions underneath state regulation, not federal regulation. In that sense, it’s probably inarguable that a person can be moderately apprehensive that being compelled to offer proof in relation to an OLCC investigation might support a future federal prosecution for trafficking a marijuana, which stays a managed substance.

Under Oregon regulation, a marijuana licensee or employee permittee could also be subjected to prison prosecution by Oregon prosecutors whether it is established that the licensee or employee permittee was not in compliance with statutes and guidelines relevant 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 his or her place that the Fifth Amendment doesn’t apply in a regulatory setting. That rule supplies {that a} licensee or employee permittee might 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 relatively easy self-incrimination downside: in order to maintain a license or employee allow in good standing, a licensee or employee permittee should waive their privilege towards self-incrimination, which undoubtedly applies as argued above.

Indeed, by advantage of OEC 513, which prohibits a trier-of-fact from drawing a unfavorable inference for an individual’s invocation of their privilege towards self-incrimination, a licensee or employee permittee who workouts their proper towards self-incrimination by refusing to offer proof to an OLCC investigator that is likely to be used to determine a violation by the licensee or employee permittee, OLCC is prohibited from making an hostile inference because of the licensee’s or employee permittee’s invocation of their proper to stay silent. Accordingly, it could possibly be argued that OAR 845-025-8540(4)(c) is unconstitutional in that state of affairs. However, as a result of there are conditions in which the rule could possibly be utilized in order to not implicate the self-incrimination privilege (equivalent to, by providing immunity for the disclosure, or solely looking for proof that might implicate others), the rule might be not vulnerable to a facial problem.

Thus, the OLCC and DOJ are flatly incorrect after they contend that the Fifth Amendment (and, by implication, Article I, Section 12 of the Oregon structure) doesn’t apply in the regulatory context. To the opposite, the privilege towards self-incrimination is strongly indicated in the marijuana trade as long as the menace of federal prosecution stays possible, and in any occasion is instantly indicated when OLCC seeks admissions by licensees or employee permittees that they’ve violated a regulation or rule underneath OLCC’s jurisdiction.

Obviously, the finest technique to invoke this proper is to take action with the support of skilled counsel, however these conditions not often current themselves in actual world purposes. Thus, in order to make sure any defenses to a cost of non-cooperation will not be waived, licensees and employee permittees ought to calmly and politely clarify that they’re exercising their proper to stay silent underneath each the US and Oregon constitutions, after which promptly search certified counsel who can then observe up with the investigator. A transparent invocation of your constitutional rights, adopted by immediate motion and observe up by counsel will present a robust file of energetic cooperation with out compromising your constitutional rights.

You can contact Kevin Jacoby at or (503) 488-5424.

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