When the accusatory instrument has been
filed, and if the defendant has been arrested, or as soon thereafter as
the defendant may be arrested, the defendant shall be arraigned thereon
as provided in ORS 135.030 before the court in which it is found. Except
for good cause shown or at the request of the defendant, if the defendant
is in custody, the arraignment shall be held during the first 36 hours of
custody, excluding holidays, Saturdays and Sundays. In all other cases,
except as provided for in ORS 133.060, the arraignment shall be held
within 96 hours after the arrest. [Amended by 1973 c.836 §130; 1983 c.344
§1; 1983 c.661 §12] The arraignment shall be made by the
court, or by the clerk or the district attorney under its direction, as
provided in ORS 135.030. The arraignment consists of reading the
accusatory instrument to the defendant, causing delivery to the defendant
of a copy thereof and indorsements thereon, including the list of
witnesses indorsed on it or appended thereto if the accusatory instrument
is an indictment, asking the defendant how the defendant pleads to the
charge. [Amended by 1973 c.836 §131; 1983 c.344 §2](1) When the accusatory instrument charges a crime punishable as
a felony, the defendant shall appear in person at the arraignment.
(2) When the accusatory instrument charges a crime punishable as a
misdemeanor, the defendant may appear in person or by counsel.
(3) The court may require a defendant to appear at the arraignment
by simultaneous electronic transmission as provided in ORS 131.045
without the agreement of the state or defendant if the type of
simultaneous electronic transmission available allows the defendant to
observe the court and the court to observe the defendant. [Formerly
135.110; 1983 c.344 §3; 2005 c.566 §5]
When an accusatory instrument is filed in court, if the defendant has not
been arrested and held to answer the charge, unless the defendant
voluntarily appears for arraignment, the court shall issue a warrant of
arrest as provided in ORS 133.110. [Formerly 135.140](1) At any time after the filing of the accusatory
instrument in circuit court and before the commencement of trial thereon,
the court upon motion of any party shall, and upon its own motion may,
order an omnibus hearing.
(2) The purpose of an omnibus hearing shall be to rule on all
pretrial motions and requests, including but not limited to the following
issues:
(a) Suppression of evidence;
(b) Challenges to identification procedures used by the prosecution;
(c) Challenges to voluntariness of admissions or confession;
(d) Challenges to the accusatory instrument.
(3) The court, at the time of the omnibus hearing, may also
consider any matters which will facilitate trial by avoiding unnecessary
proof or by simplifying the issues to be tried, or which are otherwise
appropriate under the circumstances to facilitate disposition of the
proceeding.
(4) At the conclusion of the hearing and prior to trial the court
shall prepare and file an order setting forth all rulings of the court on
issues raised under subsection (2) of this section. The court shall
further prepare and file a memorandum of other matters agreed upon at the
hearing. Except in a prosecution of the defendant for perjury or false
swearing, or impeachment of the defendant, no admissions made by the
defendant or the attorney of the defendant at the hearing shall be used
against the defendant unless the admissions are reduced to writing and
signed by the defendant and the attorney.
(5) This section shall not be applied in any proceeding or at any
stage of any proceeding where the defendant is not represented by
counsel. [1973 c.550 §2](Counsel; Name Used) If the defendant appears for arraignment
without counsel, the defendant shall be informed by the court that it is
the right of the defendant to have counsel before being arraigned and
shall be asked if the defendant desires the aid of counsel. [Formerly
135.310](1)(a) If the defendant in a criminal
action appears without counsel at arraignment or thereafter, the court
shall determine whether the defendant wishes to be represented by counsel.
(b) If the defendant does wish to be represented by counsel, the
court, in accordance with ORS 135.050, shall appoint counsel to represent
the defendant.
(c) If the defendant wishes to waive counsel, the court shall
determine whether the defendant has made a knowing and voluntary waiver
of counsel. The court shall accept the waiver of counsel if the defendant
is not charged with a capital offense. The court may decline to accept
the waiver of counsel if the defendant is charged with a capital offense.
(d) If the court accepts a defendant’s waiver of counsel, the court
may allow an attorney to serve as the defendant’s legal advisor and may,
in accordance with ORS 135.050, appoint an attorney as the defendant’s
legal advisor.
(2) Appointment of counsel, including a legal advisor, under this
section is subject to ORS 135.050, 135.055 and 151.485 to 151.497.
[Formerly 135.320; 1987 c.803 §13; 1989 c.171 §16; 1989 c.1053 §1a; 1991
c.790 §11; 2001 c.472 §1; 2001 c.962 §24](1) Suitable counsel for a
defendant shall be appointed by a municipal, county or justice court if:
(a) The defendant is before a court on a matter described in
subsection (5) of this section;
(b) The defendant requests aid of counsel;
(c) The defendant provides to the court a written and verified
financial statement; and
(d) It appears to the court that the defendant is financially
unable to retain adequate representation without substantial hardship in
providing basic economic necessities to the defendant or the defendant’s
dependent family.
(2) Suitable counsel for a defendant shall be appointed by a
circuit court if:
(a) The defendant is before the court on a matter described in
subsection (5) of this section;
(b) The defendant requests aid of counsel;
(c) The defendant provides to the court a written and verified
financial statement; and
(d)(A) The defendant is determined to be financially eligible under
ORS 151.485 and the standards established by the Public Defense Services
Commission under ORS 151.216; or
(B) The court finds, on the record, substantial and compelling
reasons why the defendant is financially unable to retain adequate
representation without substantial hardship in providing basic economic
necessities to the defendant or the defendant’s dependent family despite
the fact that the defendant does not meet the financial eligibility
standards established by the commission.
(3) Appointed counsel may not be denied to any defendant merely
because the defendant’s friends or relatives have resources adequate to
retain counsel or because the defendant has deposited or is capable of
depositing security for release. However, appointed counsel may be denied
to a defendant if the defendant’s spouse has adequate resources which the
court determines should be made available to retain counsel.
(4) The defendant’s financial statement under subsection (1) or (2)
of this section shall include, but not be limited to:
(a) A list of bank accounts in the name of defendant or defendant’s
spouse, and the balance in each;
(b) A list of defendant’s interests in real property and those of
defendant’s spouse;
(c) A list of automobiles and other personal property of
significant value belonging to defendant or defendant’s spouse;
(d) A list of debts in the name of defendant or defendant’s spouse,
and the total of each; and
(e) A record of earnings and other sources of income in the name of
defendant or defendant’s spouse, and the total of each.
(5) Counsel must be appointed for a defendant who meets the
requirements of subsection (1) or (2) of this section and who is before a
court on any of the following matters:
(a) Charged with a crime.
(b) For a hearing to determine whether an enhanced sentence should
be imposed when such proceedings may result in the imposition of a felony
sentence.
(c) For extradition proceedings under the provisions of the Uniform
Criminal Extradition Act.
(d) For any proceeding concerning an order of probation, including
but not limited to the revoking or amending thereof.
(6) Unless otherwise ordered by the court, the appointment of
counsel under this section shall continue during all criminal proceedings
resulting from the defendant’s arrest through acquittal or the imposition
of punishment. The court having jurisdiction of the case may not
substitute one appointed counsel for another except pursuant to the
policies, procedures, standards and guidelines of the Public Defense
Services Commission under ORS 151.216.
(7) If, at any time after the appointment of counsel, the court
having jurisdiction of the case finds that the defendant is financially
able to obtain counsel, the court may terminate the appointment of
counsel. If, at any time during criminal proceedings, the court having
jurisdiction of the case finds that the defendant is financially unable
to pay counsel whom the defendant has retained, the court may appoint
counsel as provided in this section.
(8) The court may order the defendant in a circuit court to pay to
the Public Defense Services Account in the General Fund, through the
clerk of the court, in full or in part the administrative costs of
determining the eligibility of the defendant for appointed counsel and
the costs of the legal and other services that are related to the
provision of appointed counsel under ORS 151.487, 151.505 or 161.665.
(9) In addition to any criminal prosecution, a civil proceeding may
be initiated by any public body which has expended moneys for the
defendant’s legal assistance within two years of judgment if the
defendant was not qualified in accordance with subsection (1) or (2) of
this section for legal assistance.
(10) The civil proceeding shall be subject to the exemptions from
execution as provided for by law.
(11) As used in this section unless the context requires otherwise,
“counsel” includes a legal advisor appointed under ORS 135.045. [Formerly
133.625; 1981 c.3 §118; 1985 c.710 §1; 1989 c.1053 §1b; 1997 c.761 §8;
2001 c.472 §4; 2001 c.962 §25; 2003 c.449 §49] (1) Counsel
appointed pursuant to ORS 135.045 or 135.050 shall be paid fair
compensation for representation in the case:
(a) By the county, subject to the approval of the governing body of
the county, in a proceeding in a county or justice court.
(b) By the public defense services executive director from funds
available for the purpose, in a proceeding in a circuit court.
(2) Except for counsel appointed pursuant to contracts or counsel
employed by the public defense services executive director, compensation
payable to appointed counsel under subsection (1) of this section:
(a) In a proceeding in a county or justice court may not be less
than $30 per hour.
(b) In a proceeding in a circuit court is subject to the applicable
compensation established under ORS 151.216.
(3)(a) A person determined to be eligible for appointed counsel is
entitled to necessary and reasonable fees and expenses for investigation,
preparation and presentation of the case for trial, negotiation and
sentencing. The person or the counsel for the person shall upon written
request secure preauthorization to incur fees and expenses that are not
routine to representation but are necessary and reasonable in the
investigation, preparation and presentation of the case, including but
not limited to nonroutine travel, photocopying or other reproduction of
nonroutine documents, necessary costs associated with obtaining the
attendance of witnesses for the defense, investigator fees and expenses,
expert witness fees and expenses and fees for interpreters and assistive
communication devices necessary for the purpose of communication between
counsel and a client or witness in the case. Preauthorization to incur a
fee or expense does not guarantee that a fee or expense incurred pursuant
to the preauthorization will be determined to be necessary or reasonable
when the fee or expense is submitted for payment.
(b) In a county or justice court, the request must be in the form
of a motion to the court. The motion must be accompanied by a supporting
affidavit that sets out in detail the purpose of the requested
expenditure, the name of the service provider or other recipient of the
funds, the dollar amount of the requested expenditure that may not be
exceeded without additional authorization and the date or dates during
which the service will be rendered or events will occur for which the
expenditure is requested.
(c) In a circuit court, the request must be in the form and contain
the information that is required by the policies, procedures, standards
and guidelines of the Public Defense Services Commission. If the public
defense services executive director denies a request for preauthorization
to incur nonroutine fees and expenses, the person making the request may
appeal the decision to the presiding judge of the circuit court. The
presiding judge has final authority to preauthorize incurring nonroutine
fees and expenses under this paragraph.
(d) Entitlement under subsection (7) of this section to payment for
fees and expenses in circuit court is subject to the policies,
procedures, standards and guidelines adopted under ORS 151.216.
Entitlement to payment of nonroutine fees and expenses is dependent upon
obtaining preauthorization from the court, if the case is in county or
justice court, or from the public defense services executive director, if
the case is in circuit court, except as otherwise provided in paragraph
(c) of this subsection and in the policies, procedures, standards and
guidelines adopted under ORS 151.216. Fees and expenses shall be paid:
(A) By the county, in respect to a proceeding in a county or
justice court.
(B) By the public defense services executive director from funds
available for the purpose, in respect to a proceeding in a circuit court.
(C) By the city, in respect to a proceeding in municipal court.
(4) Upon completion of all services by the counsel of a person
determined to be eligible for appointed counsel, the counsel shall submit
a statement of all necessary and reasonable fees and expenses of
investigation, preparation and presentation and, if counsel was appointed
by the court, a statement of all necessary and reasonable fees and
expenses for legal representation, supported by appropriate receipts or
vouchers and certified by the counsel to be true and accurate.
(5) In a county or justice court, the total fees and expenses
payable under this section must be submitted to the court by counsel or
other providers and are subject to the review of the court. The court
shall certify that such amount is fair reimbursement for fees and
expenses for representation in the case as provided in subsection (6) of
this section. Upon certification and any verification as provided under
subsection (6) of this section, the amount of the fees and expenses
approved by the court and not already paid shall be paid by the county.
(6) In a county or justice court, the court shall certify to the
administrative authority responsible for paying fees and expenses under
this section that the amount for payment is reasonable and that the
amount is properly payable out of public funds.
(7) In a circuit court, the total fees and expenses payable under
this section must be submitted to and are subject to review by the public
defense services executive director. The public defense services
executive director shall determine whether the amount is necessary,
reasonable and properly payable from public funds for fees and expenses
for representation in the case as provided by the policies, procedures,
standards and guidelines of the Public Defense Services Commission. The
public defense services executive director shall pay the amount of the
fees and expenses determined necessary, reasonable and properly payable
out of public funds. The court shall provide any information identified
and requested by the public defense services executive director as needed
for audit, statistical or any other purpose pertinent to ensure the
proper disbursement of state funds or pertinent to the provision of
appointed counsel compensated at state expense.
(8) If the public defense services executive director denies, in
whole or in part, fees and expenses submitted for review and payment, the
person who submitted the payment request may appeal the decision to the
presiding judge of the circuit court. The presiding judge or the designee
of the presiding judge shall review the public defense services executive
director’s decision for abuse of discretion. The decision of the
presiding judge or the designee of the presiding judge is final.
(9) The following may not be disclosed to the district attorney
prior to the conclusion of a case:
(a) Requests and administrative or court orders for
preauthorization to incur nonroutine fees and expenses in the
investigation, preparation and presentation of the case; and
(b) Billings for such fees and expenses submitted by counsel or
other providers.
(10) Notwithstanding subsection (9) of this section, the total
amount of moneys determined to be necessary and reasonable for nonroutine
fees and expenses may be disclosed to the district attorney at the
conclusion of the trial in the circuit court.
(11) As used in this section unless the context requires otherwise,
“counsel” includes a legal advisor appointed under ORS 135.045. [Formerly
135.330; 1979 c.867 §1; 1981 s.s. c.3 §§122,123; 1985 c.502 §19; 1985
c.710 §2; 1987 c.606 §4; 1987 c.803 §§14,14a; 1989 c.1053 §2; 1991 c.724
§25; 1991 c.750 §8; 1993 c.33 §297; 1995 c.677 §1; 1995 c.781 §39; 1997
c.761 §9; 1999 c.163 §8; 1999 c.583 §1; 2001 c.962 §§26,107; 2003 c.449
§§5,43](1) When
the defendant is arraigned, the defendant shall be informed that:
(a) If the name by which the defendant is charged in the accusatory
instrument is not the true name of the defendant the defendant must then
declare the true name; and
(b) If the defendant does not declare the true name as required by
paragraph (a) of this subsection, the defendant is ineligible for any
form of release other than a security release under ORS 135.265.
(2) The defendant or the attorney for the defendant may acknowledge
the true name of the defendant at arraignment and the acknowledgment may
not be used against the defendant at trial on the underlying charge or
any other criminal charge or fugitive complaint except that:
(a) The use of different names can be used in determining the
defendant’s release status if the defendant has used different names in
different proceedings; and
(b) A defendant who intentionally falsifies the defendant’s name
under this section or ORS 135.065 while under oath or affirmation is
subject to prosecution under ORS 162.065.
(3) As used in this section and ORS 135.065, “true name” means:
(a) The name on the defendant’s birth certificate;
(b) The defendant’s birth name; or
(c) If the defendant’s name has been changed by court order or by
operation of law, the name as changed by court order or operation of law.
[Formerly 135.340; 2003 c.645 §4](1) If the defendant gives no other name, the court may proceed
against the defendant by the name in the accusatory instrument. If the
defendant is charged by indictment or information and alleges that
another name is the true name of the defendant, the court shall direct an
entry thereof to be made in its register, and the subsequent proceedings
on the accusatory instrument may be had against the defendant by that
name, referring also to the name by which the defendant is charged.
Before proceeding against the defendant as provided in this subsection,
the court shall attempt to determine the true name of the defendant. If a
birth certificate for the defendant was never created, the court shall
ask the defendant, under oath or affirmation, to give the defendant’s
true name. The court shall proceed under the name given unless the court
is persuaded by a preponderance of the evidence that the name is not the
defendant’s true name.
(2) Upon motion of the defendant, all names, other than the true
name of the defendant, shall be stricken from any accusatory instrument
read or submitted to the jury.
(3)(a) The following may file a motion requesting that a false name
used by a defendant be stricken from an accusatory instrument, warrant of
arrest or judgment and that the defendant’s true name, if known, be
substituted:
(A) The district attorney; or
(B) A person whose name is the same as the false name used by the
defendant.
(b) Before the court may grant a motion filed under paragraph
(a)(B) of this subsection, the court must provide the district attorney
with notice of the motion and an opportunity to respond.
(c) If the court grants a motion under this subsection, the court
shall order that the false name be stricken from the accusatory
instrument, warrant of arrest or judgment and that the defendant’s true
name be substituted. In addition, the court shall order that any warrant
of arrest of the defendant reflect that the defendant uses a name other
than the defendant’s true name. [Formerly 135.350; 1985 c.540 §31; 2003
c.645 §5]If a defendant, on or after August 12, 2003,
fails to provide the defendant’s true name under ORS 135.060 or 135.065
and is on personal recognizance, conditional release or security release
having deposited less than the full security amount set by the
magistrate, the magistrate who released the defendant, upon a motion
filed by the district attorney and supported by probable cause, shall
cause the defendant to be brought before the magistrate. The magistrate
shall conduct a hearing to establish release according to ORS 135.245.
[2003 c.645 §7]Note: 135.067 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 135 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.PRELIMINARY HEARING(Generally)When the defendant against whom an information
has been filed in a preliminary proceeding appears before a magistrate on
a charge of having committed a crime punishable as a felony, before any
further proceedings are had the magistrate shall read to the defendant
the information and shall inform the defendant:
(1) Of the defendant’s right to the aid of counsel, that the
defendant is not required to make a statement and that any statement made
by the defendant may be used against the defendant.
(2) That the defendant is entitled to a preliminary hearing and of
the nature of a preliminary hearing. If a preliminary hearing is
requested, it shall be held as soon as practicable but in any event
within five days if the defendant is in custody or within 30 days if the
defendant is not in custody. The time may be extended for good cause
shown.
(3) That if the defendant is on parole, evidence received and the
order of the court at the preliminary hearing may be used by the State
Board of Parole and Post-Prison Supervision to establish that probable
cause exists to believe that a violation of a condition of parole has
occurred; and further, that should the defendant waive the defendant’s
right to a preliminary hearing, such waiver shall also constitute a
waiver of a hearing by the board to determine whether there is probable
cause to believe that a violation of one or more of the conditions of
parole has occurred. [Formerly 133.610; 1981 c.644 §2; 1997 c.823 §1] Evidence
obtained directly or indirectly as a result of failure of a magistrate to
comply with ORS 135.070 shall not be admissible before the grand jury.
[1973 c.836 §61] The magistrate shall allow the defendant
a reasonable time to obtain counsel and shall adjourn the proceeding for
that purpose. A defendant who is committed pending examination shall be
given a reasonable opportunity to obtain counsel, including but not
limited to a reasonable use of the telephone. As used in this section,
“counsel” includes a legal advisor appointed under ORS 135.045. [Formerly
133.620; 2001 c.472 §6] (1) The magistrate shall issue
subpoenas for any witness within the state when requested by the district
attorney or the defendant for the preliminary hearing.
(2) If either party desires to subpoena more than five witnesses,
application therefor shall be made in the manner provided in ORS 136.570.
[Formerly 133.660; 1987 c.606 §1] The witnesses shall be
examined in the presence of the defendant and may be cross-examined in
behalf of the defendant or against the defendant. [Formerly 133.670]
When the examination of the witnesses on the part of the state is closed,
the magistrate shall inform the defendant that it is the right of the
defendant to make a statement in relation to the charge against the
defendant; that the statement is designed to enable the defendant, if the
defendant sees fit, to answer the charge and explain the facts alleged
against the defendant; that the defendant is at liberty to waive making a
statement; and that the waiver of the defendant cannot be used against
the defendant on the trial. [Formerly 133.680] If the defendant chooses to make a
statement, the magistrate shall take it in a recorded proceeding without
oath, and shall put to the defendant the following questions only:
(1) What is your name and age?
(2) Where were you born?
(3) Where do you reside and how long have you resided there?
(4) What is your business or occupation?
(5) Give any explanation you think proper of the circumstances
appearing in the testimony against you and state any facts which you
think will tend to your exculpation. [Formerly 133.690; 1991 c.790 §12] The
statement of the defendant is competent testimony to be laid before the
grand jury and may be given in evidence at the trial. [Formerly 133.700] If the defendant waives
the right of the defendant to make a statement, the fact of the waiver of
the defendant cannot be used against the defendant on the trial.
[Formerly 133.710; 1991 c.790 §13] After the waiver of
the defendant to make a statement or after the defendant has made it, the
witnesses of the defendant, if the defendant produces any, shall be sworn
and examined. [Formerly 133.720] The
magistrate may exclude the witnesses who have not been examined during
the examination of the defendant or of a witness for the state or the
defendant. [Formerly 133.730](1) When a person has been charged with a crime in
which it appears from the nature of the charge that the transmission of
body fluids from one person to another may have been involved, the
district attorney, upon the request of the victim or the parent or
guardian of a minor or incapacitated victim, shall seek the consent of
the person charged to submit to a test for HIV and any other communicable
disease. In the absence of such consent or failure to submit to the test,
the district attorney may petition the court for an order requiring the
person charged to submit to a test for HIV and any other communicable
disease.
(2)(a) At the time of an appearance before a circuit court judge on
a criminal charge, the judge shall inform every person arrested and
charged with a crime, in which it appears from the nature of the charge
that the transmission of body fluids from one person to another may have
been involved, of the availability of testing for HIV and other
communicable diseases and shall cause the alleged victim of such a crime,
if any, or a parent or guardian of the victim, if any, to be notified
that testing for HIV and other communicable diseases is available. The
judge shall inform the person arrested and charged and the victim, or
parent or guardian of the victim, of the availability of counseling under
the circumstances described in subsection (7) of this section.
(b) Notwithstanding the provisions of ORS 433.045, if the district
attorney files a petition under subsection (1) of this section, the court
shall order the person charged to submit to testing if the court
determines there is probable cause to believe that:
(A) The person charged committed the crime; and
(B) The victim has received a substantial exposure, as defined by
rule of the Department of Human Services.
(3) Notwithstanding the provisions of ORS 433.045, upon conviction
of a person for any crime in which the court determines from the facts
that the transmission of body fluids from one person to another was
involved and if the person has not been tested pursuant to subsection (2)
of this section, the court shall seek the consent of the convicted person
to submit to a test for HIV and other communicable diseases. In the
absence of such consent or failure to submit to the test, the court shall
order the convicted person to submit to the test if the victim of the
crime, or a parent or guardian of the victim, requests the court to make
such order.
(4) When a test is ordered under subsection (2) or (3) of this
section, the victim of the crime or a parent or guardian of the victim,
shall designate an attending physician to receive such information on
behalf of the victim.
(5) If an HIV test results in a negative reaction, the court may
order the person to submit to another HIV test six months after the first
test was administered.
(6) The result of any test ordered under this section is not a
public record and shall be available only to:
(a) The victim.
(b) The parent or guardian of a minor or incapacitated victim.
(c) The attending physician who is licensed to practice medicine.
(d) The Department of Human Services.
(e) The person tested.
(7) If an HIV test ordered under this section results in a positive
reaction, the individual subject to the test shall receive post-test
counseling as required by the Department of Human Services, by rule. The
results of HIV tests ordered under this section shall be reported to the
Department of Human Services. Counseling and referral for appropriate
health care, testing and support services as directed by the Director of
Human Services shall be provided to the victim or victims at the request
of the victim or victims, or the parent or guardian of a minor or
incapacitated victim.
(8) The costs of testing and counseling provided under subsections
(2), (3) and (7) of this section shall be paid through the compensation
for crime victims program authorized by ORS 147.005 to 147.367 from
amounts appropriated for such purposes. Restitution to the state for
payment of the costs of any counseling provided under this section and
for payment of the costs of any test ordered under this section shall be
included by the court in any order requiring the convicted person to pay
restitution.
(9) When a court orders a convicted person to submit to a test
under this section, the withdrawal of blood may be performed only by a
physician licensed to practice medicine or by a licensed health care
provider acting within the provider’s licensed scope of practice or
acting under the supervision of a physician licensed to practice medicine.
(10) No person authorized by subsection (9) of this section to
withdraw blood, no person assisting in the performance of the test nor
any medical care facility where blood is withdrawn or tested that has
been ordered by the court to withdraw or test blood shall be liable in
any civil or criminal action when the act is performed in a reasonable
manner according to generally accepted medical practices.
(11) The results of tests or reports, or information therein,
obtained under this section shall be confidential and shall not be
divulged to any person not authorized by this section to receive the
information. Any violation of this subsection is a Class C misdemeanor.
(12) As used in this section:
(a) “HIV test” means a test as defined in ORS 433.045.
(b) “Parent or guardian of the victim” means a custodial parent or
legal guardian of a victim who is a minor or incapacitated person.
(c) “Positive reaction” means a positive HIV test with a positive
confirmatory test result as specified by the Department of Human Services.
(d) “Transmission of body fluids” means the transfer of blood,
semen, vaginal secretions or other body fluids identified by rule of the
Department of Human Services, from the perpetrator of a crime to the
mucous membranes or potentially broken skin of the victim.
(e) “Victim” means the person or persons to whom transmission of
body fluids from the perpetrator of the crime occurred or was likely to
have occurred in the course of the crime. [1989 c.568 §1; 1993 c.331 §1;
1999 c.967 §1]Note: 135.139 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 135 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. The testimony of the witnesses in a
preliminary hearing shall be recorded. [Formerly 133.740; 1991 c.790 §14]The magistrate shall keep the record of the preliminary
hearing and the statement of the defendant, if any, until the record is
returned to the proper court and shall not permit the record to be
inspected by any person, except the district attorney of the county or
the attorney who acts for the district attorney and the defendant and the
counsel of the defendant. [Formerly 133.750; 1991 c.790 §15] The complainant
may employ counsel to appear against the defendant in every stage of the
preliminary hearing; but the district attorney for the county, either in
person or by some attorney authorized to act for the district attorney,
is entitled to appear on behalf of the state and control and direct the
prosecution. [Formerly 133.760]The Oregon Evidence Code shall apply in any preliminary
hearing under this chapter, except that hearsay may be admitted if the
court determines that it would impose an unreasonable hardship on one of
the parties or on a witness to require that the primary source of the
evidence be produced at the hearing, and if the witness furnishes
information bearing on the informant’s reliability and, as far as
possible, the means by which the information was obtained. [1981 c.892
§88b](Discharge or Commitment) After hearing the evidence and the statement of
the defendant, if the defendant has made one, unless there is a showing
of probable cause that a crime has been committed and that the defendant
committed it, the magistrate shall dismiss the information and order the
defendant to be discharged. [Formerly 133.810] If it
appears from the preliminary hearing that there is probable cause to
believe that a crime has been committed and that the defendant committed
it, the magistrate shall make a written order holding the defendant for
further proceedings on the charge. When hearsay evidence was admitted at
the preliminary hearing, the magistrate, in determining the existence of
probable cause, shall consider (a) the extent to which the hearsay
quality of the evidence affects the weight it should be given, and (b)
the likelihood of evidence other than hearsay being available at trial to
provide the information furnished by hearsay at the preliminary hearing.
[Formerly 133.820; 1981 c.892 §88c] If the magistrate orders the defendant to be
held to answer, the magistrate shall make out a commitment, signed by the
magistrate with the name of office of the magistrate, and deliver it with
the defendant to the officer to whom the defendant is committed or, if
that officer is not present, to any peace officer, who shall immediately
deliver the defendant into the proper custody, together with the
commitment. [Formerly 133.830] When the magistrate delivers
the defendant to a peace officer other than the one to whom the defendant
is committed, the magistrate shall first make an indorsement on the
commitment directing the officer to deliver the defendant and the
commitment to the custody of the appropriate sheriff. [Formerly 133.840] The
commitment shall be directed to the sheriff of the county in which the
magistrate is sitting. Such sheriff shall receive and detain the
defendant, as thereby commanded, in a jail located in the county of the
sheriff or, if there is no sufficient jail in the county, by such means
as may be necessary and proper therefor or by confining the defendant in
the jail of an adjoining county within or without the state. [Formerly
133.850; 1987 c.550 §2] When the magistrate has
held the defendant to answer, the magistrate shall at once forward to the
court in which the defendant would be triable:
(1) The warrant, if any;
(2) The information;
(3) The statement of the defendant, if the defendant made one;
(4) The memoranda mentioned in ORS 135.115 and 135.145;
(5) The release agreement or security release of the defendant; and
(6) If applicable, any security taken for the appearance of
witnesses. [Formerly 133.860; 2005 c.22 §108]RELEASE OF DEFENDANT As used in ORS
135.230 to 135.290, unless the context requires otherwise:
(1) “Abuse” means:
(a) Attempting to cause or intentionally, knowingly or recklessly
causing physical injury;
(b) Intentionally, knowingly or recklessly placing another in fear
of imminent serious physical injury; or
(c) Committing sexual abuse in any degree as defined in ORS
163.415, 163.425 and 163.427.
(2) “Conditional release” means a nonsecurity release which imposes
regulations on the activities and associations of the defendant.
(3) “Domestic violence” means abuse between family or household
members.
(4) “Family or household members” means any of the following:
(a) Spouses.
(b) Former spouses.
(c) Adult persons related by blood or marriage.
(d) Persons cohabiting with each other.
(e) Persons who have cohabited with each other or who have been
involved in a sexually intimate relationship.
(f) Unmarried parents of a minor child.
(5) “Magistrate” has the meaning provided for this term in ORS
133.030.
(6) “Personal recognizance” means the release of a defendant upon
the promise of the defendant to appear in court at all appropriate times.
(7) “Primary release criteria” includes the following:
(a) The reasonable protection of the victim or public;
(b) The nature of the current charge;
(c) The defendant’s prior criminal record, if any, and, if the
defendant previously has been released pending trial, whether the
defendant appeared as required;
(d) Any facts indicating the possibility of violations of law if
the defendant is released without regulations; and
(e) Any other facts tending to indicate that the defendant is
likely to appear.
(8) “Release” means temporary or partial freedom of a defendant
from lawful custody before judgment of conviction or after judgment of
conviction if defendant has appealed.
(9) “Release agreement” means a sworn writing by the defendant
stating the terms of the release and, if applicable, the amount of
security.
(10) “Release decision” means a determination by a magistrate,
using primary and secondary release criteria, which establishes the form
of the release most likely to ensure the safety of the public and the
victim, the defendant’s court appearance and that the defendant does not
engage in domestic violence while on release.
(11) “Secondary release criteria” includes the following:
(a) The defendant’s employment status and history and financial
condition;
(b) The nature and extent of the family relationships of the
defendant;
(c) The past and present residences of the defendant;
(d) Names of persons who agree to assist the defendant in attending
court at the proper time; and
(e) Any facts tending to indicate that the defendant has strong
ties to the community.
(12) “Security release” means a release conditioned on a promise to
appear in court at all appropriate times which is secured by cash,
stocks, bonds or real property.
(13) “Surety” is one who executes a security release and binds
oneself to pay the security amount if the defendant fails to comply with
the release agreement. [1973 c.836 §146; 1993 c.731 §4; 1997 c.313 §18] (1) If
directed by the presiding judge for a judicial district, a release
assistance officer, and release assistance deputies who shall be
responsible to the release assistance officer, shall be appointed under a
personnel plan established by the Chief Justice of the Supreme Court.
(2) The release assistance officer shall, except when
impracticable, interview every person detained pursuant to law and
charged with an offense.
(3) The release assistance officer shall verify release criteria
information and may either:
(a) Timely submit a written report to the magistrate containing,
but not limited to, an evaluation of the release criteria and a
recommendation for the form of release; or
(b) If delegated release authority by the presiding judge for the
judicial district, make the release decision. [1973 c.836 §147; 1981 s.s.
c.3 §37; 1995 c.781 §40] (1) Except as provided in subsections
(2), (4) and (5) of this section, a defendant shall be released in
accordance with ORS 135.230 to 135.290.
(2)(a) When the defendant is charged with murder, aggravated murder
or treason, release shall be denied when the proof is evident or the
presumption strong that the person is guilty.
(b) When the defendant is charged with murder or aggravated murder
and the proof is not evident nor the presumption strong that the
defendant is guilty, the court shall determine the issue of release as
provided in subsection (4) of this section. In determining the issue of
release under subsection (4) of this section, the court may consider any
evidence used in making the determination required by this subsection.
(3) The magistrate may conduct such hearing as the magistrate
considers necessary to determine whether, under subsection (2) of this
section, the proof is evident or the presumption strong that the person
is guilty.
(4)(a) Except as otherwise provided in subsection (5) of this
section, when the defendant is charged with a crime listed in ORS 137.700
or 137.707, other than attempt or conspiracy to commit murder or attempt
or conspiracy to commit aggravated murder, release shall be denied unless
the court determines by clear and convincing evidence that the defendant
will not commit new criminal offenses while on release.
(b) If the defendant wants to have a hearing on the issue of
release, the defendant must request the hearing at the time of
arraignment in circuit court. If the defendant requests a release
hearing, the court must hold the hearing within five days of the request.
(c) At the release hearing, unless the state stipulates to the
setting of security or release, the court shall determine whether
probable cause exists to believe the defendant has committed an offense
listed in ORS 137.700 or 137.707, other than attempt or conspiracy to
commit murder or attempt or conspiracy to commit aggravated murder, and,
if so, whether the defendant would commit new crimes while on release.
The state has the burden of producing evidence at the release hearing
subject to ORS 40.015 (4).
(d) The defendant may be represented by counsel and may present
evidence on any relevant issue. However, the hearing may not be used for
purposes of discovery.
(e) If the court determines that the defendant will not commit new
crimes while on release, the court shall set security or other
appropriate conditions of release. If the court does not determine that
the defendant will not commit new crimes while on release, the court
shall deny release.
(f) When a defendant who has been released violates a condition of
release and the violation:
(A) Constitutes a new criminal offense, the court shall cause the
defendant to be taken back into custody and shall order the defendant
held pending trial without release.
(B) Does not constitute a new criminal offense, the court may order
the defendant to be taken back into custody, may order the defendant held
pending trial and may set a security amount of not less than $250,000.
(5) If the United States Constitution or the Oregon Constitution
prohibits application of subsection (4) of this section, then
notwithstanding any other provision of law, the court shall set a
security amount of not less than $50,000 for a defendant charged with an
offense listed in ORS 137.700 or 137.707 and may not release the
defendant on any form of release other than a security release. In
addition to the security amount, the court may impose any supervisory
conditions deemed necessary for the protection of the victim and the
community. When a defendant who has been released violates a condition of
release and the violation:
(a) Constitutes a new criminal offense, the court shall cause the
defendant to be taken back into custody, shall order the defendant held
pending trial and shall set a security amount of not less than $250,000.
(b) Does not constitute a new criminal offense, the court may order
the defendant to be taken back into custody, may order the defendant held
pending trial and may set a security amount of not less than $250,000.
[1973 c.836 §148; 1997 c.313 §19; 2001 c.104 §45](1) Except as provided in ORS 135.240, a
person in custody has the right to immediate security release or to be
taken before a magistrate without undue delay. If the person is not
released under ORS 135.270, or otherwise released before arraignment, the
magistrate shall advise the person of the right of the person to a
security release as provided in ORS 135.265.
(2) If a person in custody does not request a security release at
the time of arraignment, the magistrate shall make a release decision
regarding the person within 48 hours after the arraignment.
(3) If the magistrate, having given priority to the primary release
criteria, decides to release a defendant or to set security, the
magistrate shall impose the least onerous condition reasonably likely to
ensure the safety of the public and the victim and the person’s later
appearance and, if the person is charged with an offense involving
domestic violence, ensure that the person does not engage in domestic
violence while on release. A person in custody, otherwise having a right
to release, shall be released upon the personal recognizance unless:
(a) Release criteria show to the satisfaction of the magistrate
that such a release is unwarranted; or
(b) Subsection (6) of this section applies to the person.
(4) Upon a finding that release of the person on personal
recognizance is unwarranted, the magistrate shall impose either
conditional release or security release.
(5)(a) At the release hearing:
(A) The district attorney has a right to be heard in relation to
issues relevant to the release decision; and
(B) The victim has the right:
(i) Upon request made within the time period prescribed in the
notice required by ORS 147.417, to be notified by the district attorney
of the release hearing;
(ii) To appear personally at the hearing; and
(iii) If present, to reasonably express any views relevant to the
issues before the magistrate.
(b) Failure of the district attorney to notify the victim under
paragraph (a) of this subsection or failure of the victim to appear at
the hearing does not affect the validity of the proceeding.
(6) If a person refuses to provide a true name under the
circumstances described in ORS 135.060 and 135.065, the magistrate may
not release the person on personal recognizance or on conditional
release. The magistrate may release the person on security release under
ORS 135.265 except that the magistrate shall require the person to
deposit the full security amount set by the magistrate.
(7) This section shall be liberally construed to carry out the
purpose of relying upon criminal sanctions instead of financial loss to
assure the appearance of the defendant. [1973 c.836 §149; 1993 c.731 §5;
1997 c.313 §20; 2003 c.645 §6] (1) If a defendant
is released before judgment, the conditions of the release agreement
shall be that the defendant will:
(a) Appear to answer the charge in the court having jurisdiction on
a day certain and thereafter as ordered by the court until the defendant
is discharged or the judgment is entered;
(b) Submit to the orders and process of the court;
(c) Not depart this state without leave of the court; and
(d) Comply with such other conditions as the court may impose.
(2)(a) In addition to the conditions listed in subsection (1) of
this section, if the defendant is charged with an offense that also
constitutes domestic violence, the court shall include as a condition of
the release agreement that the defendant not contact the victim of the
violence.
(b) Notwithstanding paragraph (a) of this subsection, the court may
enter an order waiving the condition that the defendant have no contact
with the victim if:
(A) The victim petitions the court for a waiver; and
(B) The court finds, after a hearing on the petition, that waiving
the condition is in the best interests of the parties and the community.
(c) If the defendant was provided notice and an opportunity to be
heard, the court shall also include in the agreement, when appropriate,
terms and findings sufficient under 18 U.S.C. 922 (d)(8) and (g)(8) to
affect the defendant’s ability to possess firearms and ammunition or
engage in activities involving firearms.
(d) ORS 107.720 applies to release agreements executed by
defendants charged with an offense that constitutes domestic violence,
except that proof of service of the release agreement is not required and
the agreement may not be terminated at the request of the victim without
a hearing.
(3) If the defendant is released after judgment of conviction, the
conditions of the release agreement shall be that the defendant will:
(a) Duly prosecute the appeal of the defendant as required by ORS
138.005 to 138.500;
(b) Appear at such time and place as the court may direct;
(c) Not depart this state without leave of the court;
(d) Comply with such other conditions as the court may impose; and
(e) If the judgment is affirmed or the judgment is reversed and the
cause remanded for a new trial, immediately appear as required by the
trial court. [1973 c.836 §150; 1991 c.111 §10; 1993 c.731 §6; 1999 c.617
§3] (1) The defendant shall not be released
from custody unless the defendant files with the clerk of the court in
which the magistrate is presiding a release agreement duly executed by
the defendant containing the conditions ordered by the releasing
magistrate or deposits security in the amount specified by the magistrate
in accordance with ORS 135.230 to 135.290.
(2) A failure to appear as required by the release agreement shall
be punishable as provided in ORS 162.195 or 162.205.
(3) “Custody” for purposes of a release agreement does not include
temporary custody under the citation procedures of ORS 133.055 to
133.076. [1973 c.836 §151] (1) Conditional release may include
one or more of the following conditions:
(a) Release of the defendant into the care of a qualified person or
organization responsible for supervising the defendant and assisting the
defendant in appearing in court. The supervisor shall not be required to
be financially responsible for the defendant, nor to forfeit money in the
event the defendant fails to appear in court. The supervisor, however,
shall notify the court immediately in the event that the defendant
breaches the conditional release.
(b) Reasonable regulations on the activities, movements,
associations and residences of the defendant, including, if the court
finds it appropriate, restriction of the defendant to the defendant’s own
residence or to the premises thereof.
(c) Release of the defendant from custody during working hours.
(d) Any other reasonable restriction designed to assure the
defendant’s appearance.
(2) Except as otherwise provided in ORS 135.250 (2)(b), conditional
release shall include a prohibition against contacting the victim if the
defendant is charged with an offense that also constitutes domestic
violence. [1973 c.836 §152; 1985 c.818 §1; 1993 c.731 §7] (1) If the defendant is not released on
personal recognizance under ORS 135.255, or granted conditional release
under ORS 135.260, or fails to agree to the provisions of the conditional
release, the magistrate shall set a security amount that will reasonably
assure the defendant’s appearance. The defendant shall execute the
security release in the amount set by the magistrate.
(2) The defendant shall execute a release agreement and deposit
with the clerk of the court before which the proceeding is pending a sum
of money equal to 10 percent of the security amount, but in no event
shall such deposit be less than $25. The clerk shall issue a receipt for
the sum deposited. Upon depositing this sum the defendant shall be
released from custody subject to the condition that the defendant appear
to answer the charge in the court having jurisdiction on a day certain
and thereafter as ordered by the court until discharged or final order of
the court. Once security has been given and a charge is pending or is
thereafter filed in or transferred to a court of competent jurisdiction
the latter court shall continue the original security in that court
subject to ORS 135.280 and 135.285. When conditions of the release
agreement have been performed and the defendant has been discharged from
all obligations in the cause, the clerk of the court shall return to the
person shown by the receipt to have made the deposit, unless the court
orders otherwise, 85 percent of the sum which has been deposited and
shall retain as security release costs 15 percent, but not less than $5
nor more than $200, of the amount deposited. The interest that has
accrued on the full amount deposited shall also be retained by the clerk.
The amount retained by the clerk of a circuit court shall be paid over as
directed by the State Court Administrator for deposit in the Criminal
Fine and Assessment Account created under ORS 137.300. The amount
retained by a justice of the peace shall be deposited in the county
treasury. The amount retained by the clerk of a municipal court shall be
deposited in the municipal corporation treasury. At the request of the
defendant the court may order whatever amount is repayable to defendant
from such security amount to be paid to defendant’s attorney of record.
(3) Instead of the security deposit provided for in subsection (2)
of this section the defendant may deposit with the clerk of the court an
amount equal to the security amount in cash, stocks, bonds, or real or
personal property situated in this state with equity not exempt owned by
the defendant or sureties worth double the amount of security set by the
magistrate. The stocks, bonds, real or personal property shall in all
cases be justified by affidavit. The magistrate may further examine the
sufficiency of the security as the magistrate considers necessary. [1973
c.836 §153; 1979 c.878 §1; 1981 c.837 §1; 1981 s.s. c.3 §112; 1983 c.763
§44; 1987 c.905 §14] When a security amount has been set by
a magistrate for a particular offense or for a defendant’s release, any
person designated by the magistrate may take the security and release the
defendant to appear in accordance with the conditions of the release
agreement. The person designated by the magistrate shall give a receipt
to the defendant for the security so taken and within a reasonable time
deposit the security with the clerk of the court having jurisdiction of
the offense. [1973 c.836 §154] (1) Upon failure of a person to
comply with any condition of a release agreement or personal
recognizance, the court having jurisdiction may, in addition to any other
action provided by law, issue a warrant for the arrest of the person at
liberty upon a personal recognizance, conditional or security release.
(2) A warrant issued under subsection (1) of this section by a
municipal judge may be executed by any peace officer authorized to
execute arrest warrants.
(3) If the defendant does not comply with the conditions of the
release agreement, the court having jurisdiction shall enter an order
declaring the entire security amount to be forfeited. Notice of the order
of forfeiture shall be given forthwith by personal service, by mail or by
such other means as are reasonably calculated to bring to the attention
of the defendant and, if applicable, of the sureties the order of
forfeiture. If, within 30 days after the court declares the forfeiture,
the defendant does not appear or satisfy the court having jurisdiction
that appearance and surrender by the defendant was, or still is,
impossible and without fault of the defendant, the court shall enter
judgment for the state, or appropriate political subdivision thereof,
against the defendant and, if applicable, the sureties for the entire
security amount set under ORS 135.265 and the costs of the proceedings.
At any time before or after entry of the judgment, the defendant or the
sureties may apply to the court for a remission of the forfeiture or to
modify or set aside the judgment. The court, upon good cause shown, may
remit the forfeiture or any part thereof or may modify or set aside the
judgment as in other criminal cases, except the portion of the security
amount that the court ordered to be applied to child support under
subsection (4) of this section, as the court considers reasonable under
the circumstances of the case. The court shall adopt procedures to ensure
that the amount deposited under ORS 135.265 is available for a reasonable
period of time for disposition under subsection (4) of this section.
(4) After entry of a judgment for the state, the court, upon a
motion filed under ORS 25.715, may order that a portion of the security
amount be applied to any unsatisfied child support award owed by the
defendant and to provide security for child support payments in
accordance with ORS 25.230. The portion of the security amount that may
be applied to the child support award:
(a) Is limited to the amount deposited under ORS 135.265;
(b) May not exceed the percentage of the amount designated for
distribution to the General Fund had the deposit been transferred to the
Criminal Fine and Assessment Account as provided in subsection (5) of
this section; and
(c) Does not reduce the money award in the judgment entered under
subsection (3) of this section that is owed to the state.
(5) When judgment is entered in favor of the state, or any
political subdivision of the state, on any security given for a release,
the judgment may be enforced as a judgment in a civil action. If entered
in circuit court, the judgment shall be entered in the register, and the
clerk of the court shall note in the register that the judgment creates a
judgment lien. The district attorney, county counsel or city attorney may
have execution issued on the judgment and deliver same to the sheriff to
be executed by levy on the deposit or security amount made in accordance
with ORS 135.265, or may collect the judgment as otherwise provided by
law. The proceeds of any execution or collection shall be used to satisfy
the judgment and costs and paid into the treasury of the municipal
corporation wherein the security was taken if the offense was defined by
an ordinance of a political subdivision of this state, or paid into the
treasury of the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered by a
justice court, or paid over as directed by the State Court Administrator
for deposit in the Criminal Fine and Assessment Account created under ORS
137.300, if the offense was defined by a statute of this state and the
judgment was entered by a circuit court. The provisions of this section
shall not apply to base fine amounts deposited upon appearance under ORS
153.061.
(6) When the judgment of forfeiture is entered, the security
deposit or deposit with the clerk is, by virtue of the judgment alone and
without requiring further execution, forfeited to and may be kept by the
state or its appropriate political subdivision. Except as provided in
subsection (4) of this section, the clerk shall reduce, by the value of
the deposit so forfeited, the debt remaining on the judgment and shall
cause the amount on deposit to be transferred to the revenue account of
the state or political subdivision thereof entitled to receive the
proceeds of execution under this section.
(7) The stocks, bonds, personal property and real property shall be
sold in the same manner as in execution sales in civil actions and the
proceeds of such sale shall be used to satisfy all court costs, prior
encumbrances, if any, and from the balance a sufficient amount to satisfy
the judgment shall be paid into the treasury of the municipal corporation
wherein the security was taken if the offense was defined by an ordinance
of a political subdivision of this state, or paid into the treasury of
the county wherein the security was taken if the offense was defined by a
statute of this state and the judgment was entered by a justice court, or
deposited in the General Fund available for general governmental expenses
if the offense was defined by a statute of this state and the judgment
was entered by a circuit court. The balance shall be returned to the
owner. The real property sold may be redeemed in the same manner as real
estate may be redeemed after judicial or execution sales in civil
actions. [1973 c.836 §155; 1981 s.s. c.3 §113; 1983 c.763 §45; 1987 c.710
§1; 1987 c.905 §15; 1995 c.658 §74; 1997 c.801 §64; 1999 c.1051 §250;
2001 c.705 §2; 2001 c.829 §10b; 2003 c.576 §161]Note: The amendments to 135.280 by section 5, chapter 700, Oregon
Laws 2005, take effect July 1, 2007. See section 10, chapter 700, Oregon
Laws 2005. The text that is effective on and after July 1, 2007, is set
forth for the user’s convenience.
135.280. (1) Upon failure of a person to comply with any condition
of a release agreement or personal recognizance, the court having
jurisdiction may, in addition to any other action provided by law, issue
a warrant for the arrest of the person at liberty upon a personal
recognizance, conditional or security release.
(2) A warrant issued under subsection (1) of this section by a
municipal judge may be executed by any peace officer authorized to
execute arrest warrants.
(3) If the defendant does not comply with the conditions of the
release agreement, the court having jurisdiction shall enter an order
declaring the entire security amount to be forfeited. Notice of the order
of forfeiture shall be given forthwith by personal service, by mail or by
such other means as are reasonably calculated to bring to the attention
of the defendant and, if applicable, of the sureties the order of
forfeiture. If, within 30 days after the court declares the forfeiture,
the defendant does not appear or satisfy the court having jurisdiction
that appearance and surrender by the defendant was, or still is,
impossible and without fault of the defendant, the court shall enter
judgment for the state, or appropriate political subdivision thereof,
against the defendant and, if applicable, the sureties for the entire
security amount set under ORS 135.265 and the costs of the proceedings.
At any time before or after entry of the judgment, the defendant or the
sureties may apply to the court for a remission of the forfeiture or to
modify or set aside the judgment. The court, upon good cause shown, may
remit the forfeiture or any part thereof or may modify or set aside the
judgment as in other criminal cases, except the portion of the security
amount that the court ordered to be applied to child support under
subsection (4) of this section, as the court considers reasonable under
the circumstances of the case. The court shall adopt procedures to ensure
that the amount deposited under ORS 135.265 is available for a reasonable
period of time for disposition under subsection (4) of this section.
(4) After entry of a judgment for the state, the court, upon a
motion filed under ORS 25.715, may order that a portion of the security
amount be applied to any unsatisfied child support award owed by the
defendant and to provide security for child support payments in
accordance with ORS 25.230. The portion of the security amount that may
be applied to the child support award:
(a) Is limited to the amount deposited under ORS 135.265;
(b) May not exceed 66 percent of the entire security amount set
under ORS 135.265; and
(c) Does not reduce the money award in the judgment entered under
subsection (3) of this section that is owed to the state.
(5) When judgment is entered in favor of the state, or any
political subdivision of the state, on any security given for a release,
the judgment may be enforced as a judgment in a civil action. If entered
in circuit court, the judgment shall be entered in the register, and the
clerk of the court shall note in the register that the judgment creates a
judgment lien. The district attorney, county counsel or city attorney may
have execution issued on the judgment and deliver same to the sheriff to
be executed by levy on the deposit or security amount made in accordance
with ORS 135.265, or may collect the judgment as otherwise provided by
law. The proceeds of any execution or collection shall be used to satisfy
the judgment and costs and paid into the treasury of the municipal
corporation wherein the security was taken if the offense was defined by
an ordinance of a political subdivision of this state, or paid into the
treasury of the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered by a
justice court, or paid over as directed by the State Court Administrator
for deposit in the Criminal Fine and Assessment Account created under ORS
137.300, if the offense was defined by a statute of this state and the
judgment was entered by a circuit court. The provisions of this section
shall not apply to base fine amounts deposited upon appearance under ORS
153.061.
(6) When the judgment of forfeiture is entered, the security
deposit or deposit with the clerk is, by virtue of the judgment alone and
without requiring further execution, forfeited to and may be kept by the
state or its appropriate political subdivision. Except as provided in
subsection (4) of this section, the clerk shall reduce, by the value of
the deposit so forfeited, the debt remaining on the judgment and shall
cause the amount on deposit to be transferred to the revenue account of
the state or political subdivision thereof entitled to receive the
proceeds of execution under this section.
(7) The stocks, bonds, personal property and real property shall be
sold in the same manner as in execution sales in civil actions and the
proceeds of such sale shall be used to satisfy all court costs, prior
encumbrances, if any, and from the balance a sufficient amount to satisfy
the judgment shall be paid into the treasury of the municipal corporation
wherein the security was taken if the offense was defined by an ordinance
of a political subdivision of this state, or paid into the treasury of
the county wherein the security was taken if the offense was defined by a
statute of this state and the judgment was entered by a justice court, or
deposited in the General Fund available for general governmental expenses
if the offense was defined by a statute of this state and the judgment
was entered by a circuit court. The balance shall be returned to the
owner. The real property sold may be redeemed in the same manner as real
estate may be redeemed after judicial or execution sales in civil actions. (1)
If circumstances concerning the defendant’s release change, the court, on
its own motion or upon request by the district attorney or defendant, may
modify the release agreement or the security release.
(2) After judgment of conviction in municipal or justice court, the
court shall order the original release agreement, and if applicable, the
security, to stand pending appeal, or deny, increase or reduce the
release agreement and the security. If a defendant appeals after judgment
of conviction in circuit court for any crime other than murder or
treason, release shall be discretionary. [1973 c.836 §156; 1995 c.658 §75] (1) A supervisor of a
defendant on conditional release who knowingly aids the defendant in
breach of the conditional release or who knowingly fails to report the
defendant’s breach is punishable by contempt.
(2) A defendant who knowingly breaches any of the regulations in
the release agreement imposed pursuant to ORS 135.260 is punishable by
contempt. [1973 c.836 §157]
(1) Reckless driving under ORS 811.140.
(2) Driving while under the influence of intoxicants under ORS
813.010.
(3) Failure to perform the duties of a driver under ORS 811.700 or
811.705.
(4) Criminal driving while suspended or revoked under ORS 811.182.
(5) Fleeing or attempting to elude a police officer under ORS
811.540. [1974 c.35 §1; 1981 c.818 §3; 1983 c.338 §888; 1987 c.730 §5;
1991 c.208 §3]PLEADINGS(Defendant’s Answer Generally) If the defendant does not require time, as
provided in ORS 135.380, or if the defendant does, then on the next day
or at such further day as the court may have allowed the defendant, the
defendant may, in answer to the arraignment, move against the accusatory
instrument or demur or plead thereto. [Formerly 135.420] The only pleadings on the part of the
defendant are the demurrer and plea. [Formerly 135.430] In pleading a judgment or other
determination of or proceeding before a court or officer of special
jurisdiction, it is not necessary for the defendant to state the facts
conferring jurisdiction; but the judgment, determination, or proceeding
may be stated to have been duly given or made. The facts conferring
jurisdiction, however, must be established on the trial. [Formerly
135.450](Plea) (1) The kinds of plea
to an indictment, information or complaint, or each count thereof, are:
(a) Guilty.
(b) Not guilty.
(c) No contest.
(2) A defendant may plead no contest only with the consent of the
court. Such a plea shall be accepted by the court only after due
consideration of the views of the parties and the interest of the public
in the effective administration of justice.
(3) With the consent of the court and the state, a defendant may
enter a conditional plea of guilty or no contest reserving, in writing,
the right, on appeal from the judgment, to a review of an adverse
determination of any specified pretrial motion. A defendant who finally
prevails on appeal may withdraw the plea. [1973 c.836 §159; 1999 c.134 §1] A judgment following
entry of a no contest plea is a conviction of the offense to which the
plea is entered. [1973 c.836 §160] (1) Every
plea shall be oral and shall be entered in the register of the court in
substantially one of the following forms:
(a) “The defendant pleads that defendant is guilty of the offense
charged in this accusatory instrument.”
(b) “The defendant pleads that defendant is not guilty of the
offense charged in this accusatory instrument.”
(c) “The defendant pleads no contest to the offense charged in this
accusatory instrument.”
(2) When a defendant enters a conditional plea of guilty or no
contest, the entry in the register of the court shall so indicate.
(3) For purposes of this section, an oral plea includes a plea made
orally by means of simultaneous electronic transmission as described in
ORS 131.045. [Formerly 135.830; 1985 c.540 §32; 1999 c.134 §2; 2005 c.566
§6](1) Except as provided in subsection (2) of this
section, a plea of guilty or no contest to a crime punishable as a felony
shall in all cases be put in by the defendant in person in open court
unless upon an accusatory instrument against a corporation, in which case
it may be put in by counsel.
(2) Any circuit judge may, within any county in the own district of
the judge other than the county where the accusation is pending, accept
pleas of guilty or no contest from persons charged with a crime
punishable as a felony and pass sentence thereon upon written request of
the accused and the attorney of the accused and upon not less than one
day’s notice to the district attorney. Judgments based upon such pleas
and sentences entered upon the pleas are as effective as though heard and
determined in open court in the county where the accusation is pending.
Judges accepting the pleas shall transmit the pleas to the clerk of the
court in the county where the accusation is pending, whereupon the clerk
shall file and enter the pleas to become effective from the date of
filing.
(3) A judge may accept a plea of guilty or no contest under
subsection (1) of this section by simultaneous electronic transmission,
as defined in ORS 131.045, without the agreement of the state or the
defendant if the plea is entered at arraignment and the type of
simultaneous electronic transmission available allows the defendant to
observe the court and the court to observe the defendant. [Formerly
135.840; 2005 c.566 §7] The court may
at any time before judgment, upon a plea of guilty or no contest, permit
it to be withdrawn and a plea of not guilty substituted therefor.
[Formerly 135.850]The plea of not guilty controverts and is a denial of every
material allegation in the accusatory instrument. [Formerly 135.860] (1) As used in this section:
(a) “Initiating county” means the county in which the defendant
appears for the purpose of entering a plea to a criminal charge.
(b) “Responding county” means a county in which another criminal
charge is pending against the defendant entering a plea in the initiating
county.
(2) Upon entry of a plea of guilty or no contest, or after
conviction on a plea of not guilty, if a charge is pending against the
defendant for a crime which is within the jurisdiction of a coordinate
court of a responding county in the state, the defendant may state in
writing that the defendant desires:
(a) To waive venue and trial in the responding county;
(b) To waive indictment by the grand jury of the responding county;
(c) To plead guilty or no contest; and
(d) To consent to disposition of the case by the court in the
initiating county.
(3) Upon receipt of the request and the written approval of the
district attorney of the initiating county, the clerk of the court shall
forthwith transmit copies of the request and approval to the court and
the district attorney of the responding county.
(4) Upon receipt of the papers described in subsection (3) of this
section and the written approval of the district attorney of the
responding county, the clerk of the court shall forthwith transmit
certified copies of the papers in the proceeding to the court of the
initiating county.
(5) Upon receipt of the papers described in subsection (4) of this
section, the court may allow the defendant to enter the plea.
(6) The original judgment entered by the court of the initiating
county shall be transmitted to the court of the responding county for
filing. The judgment shall thereafter be considered, for all purposes,
the same as a judgment of the court of the responding county. [1973 c.836
§165; 1991 c.111 §11] (1) A defendant
shall not be required to plead to an offense punishable by imprisonment
until the defendant is represented by counsel, unless the defendant
knowingly waives the right of the defendant to counsel.
(2) A defendant may plead guilty or no contest on the day of
arraignment or any time thereafter except that a defendant without
counsel shall not be allowed to plead guilty or no contest to a felony on
the day of arraignment.
(3) Upon completion of the arraignment, unless the defendant enters
a plea in the manner provided in ORS 135.305 to 135.325, 135.335,
135.355, 135.360 and 135.375, the defendant shall be considered to have
entered a plea of not guilty. [1973 c.836 §166; 2001 c.635 §13] (1) The court shall not
accept a plea of guilty or no contest to a felony or other charge on
which the defendant appears in person without first addressing the
defendant personally and determining that the defendant understands the
nature of the charge.
(2) The court shall inform the defendant:
(a) That by a plea of guilty or no contest the defendant waives the
right:
(A) To trial by jury;
(B) Of confrontation; and
(C) Against self-incrimination.
(b) Of the maximum possible sentence on the charge, including the
maximum possible sentence from consecutive sentences.
(c) When the offense charged is one for which a different or
additional penalty is authorized by reason of the fact that the defendant
may be adjudged a dangerous offender, that this fact may be established
after a plea in the present action, thereby subjecting the defendant to
different or additional penalty.
(d) That if the defendant is not a citizen of the United States
conviction of a crime may result, under the laws of the United States, in
deportation, exclusion from admission to the United States or denial of
naturalization.
(e) That if the defendant is entering a guilty plea pursuant to a
plea offer and agreed disposition recommendation under ORS 135.405, the
court will agree to impose sentence as provided in the agreed disposition
recommendation. [1973 c.836 §167; 1979 c.118 §1; 2001 c.635 §12] (1) The court shall not
accept a plea of guilty or no contest without first determining that the
plea is voluntary and intelligently made.
(2) The court shall determine whether the plea is the result of
prior plea discussions and a plea agreement. If the plea is the result of
a plea agreement, the court shall determine the nature of the agreement.
(3) If the district attorney has agreed to seek charge or sentence
concessions which must be approved by the court, the court shall advise
the defendant personally that the recommendations of the district
attorney are not binding on the court.
(4)(a) If the district attorney has provided a plea offer and
agreed disposition recommendation to the defendant as provided in ORS
135.405 and the defendant is entering a guilty plea based on the plea
offer and agreed disposition recommendation, the court shall determine
whether the plea is voluntarily made. Except as otherwise provided in
paragraph (b) of this subsection, if the court finds that the plea is
voluntarily made, the court shall impose sentence as provided in the
agreed disposition recommendation.
(b) If the court determines that the agreed disposition
recommendation is inappropriate in a particular case, the court shall so
advise the parties and allow the defendant an opportunity to withdraw the
plea. [1973 c.836 §168; 2001 c.635 §11] After accepting a plea of
guilty or no contest, the court shall not enter a judgment without making
such inquiry as may satisfy the court that there is a factual basis for
the plea. [1973 c.836 §169](Plea Discussions and Agreements) (1) In cases in which
it appears that the interest of the public in the effective
administration of criminal justice would thereby be served, and in
accordance with the criteria set forth in ORS 135.415, the district
attorney may engage in plea discussions for the purpose of reaching a
plea agreement.
(2) The district attorney shall engage in plea discussions or reach
a plea agreement with the defendant only through defense counsel, except
when, as a matter of record, the defendant has effectively waived the
right of the defendant to counsel or, if the defendant is not eligible
for appointed counsel, has not retained counsel.
(3) The district attorney in reaching a plea agreement may agree
to, but is not limited to, one or more of the following, as required by
the circumstances of the individual case:
(a) To make or not to oppose favorable recommendations as to the
sentence which should be imposed if the defendant enters a plea of guilty
or no contest to the offense charged;
(b) To seek or not to oppose dismissal of the offense charged if
the defendant enters a plea of guilty or no contest to another offense
reasonably related to the defendant’s conduct; or
(c) To seek or not to oppose dismissal of other charges or to
refrain from bringing potential charges if the defendant enters a plea of
guilty or no contest to the offense charged.
(4) Similarly situated defendants should be afforded equal plea
agreement opportunities.
(5)(a) A district attorney may provide a plea offer and agreed
disposition recommendation to the defendant at the time of arraignment or
first appearance of the defendant for a crime in open court under an
early disposition program established under ORS 135.941.
(b) Unless extended by the court, a plea offer and agreed
disposition recommendation made under paragraph (a) of this subsection
expire upon completion of the arraignment. Except for good cause, a court
may not extend a plea offer and agreed disposition recommendation under
this paragraph for more than seven days for a misdemeanor or 21 days for
a felony. [1973 c.836 §170; 2001 c.635 §10; 2001 c.962 §79] (1) In
any case involving a defendant charged with a violent felony:
(a) If the victim requests within the time period designated in the
notice received under ORS 147.417, the district attorney shall consult
the victim regarding plea discussions before making a final plea
agreement; and
(b) Before the judge accepts a plea of guilty or no contest, the
judge shall ask the district attorney if the victim requested to be
notified and consulted regarding plea discussions. If the victim has made
such a request, the judge shall ask the district attorney if the victim
agrees or disagrees with the plea discussions and agreement and the
victim’s reasons for agreement or disagreement.
(2) As used in this section, “violent felony” means a person felony
as defined in the rules of the Oregon Criminal Justice Commission.
(3) Failure to comply with this section does not affect the
validity of a plea. [1997 c.313 §3]Note: 135.406 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 135 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.In cases arising from felonies committed on
or after November 1, 1989:
(1) Whenever a plea agreement is presented to the sentencing judge,
the defendant’s criminal history classification, as set forth in the
rules of the Oregon Criminal Justice Commission, shall be accurately
represented to the trial judge in the plea agreement. If a controversy
exists as to whether a prior conviction or juvenile adjudication should
be included in the defendant’s criminal history, or as to its
classification under rules of the Oregon Criminal Justice Commission, the
district attorney and the defendant may stipulate to the inclusion,
exclusion or classification of the conviction or adjudication as part of
the plea agreement subject to approval of the court.
(2) The district attorney and the defendant may stipulate to the
grid block classification within the sentencing guidelines grid
established by the rules of the Oregon Criminal Justice Commission that
will provide the presumptive sentence range for the offender. The
sentencing judge may accept the stipulated classification and impose the
presumptive sentence provided in the rules of the Oregon Criminal Justice
Commission for that grid block.
(3) If the district attorney and the defendant stipulate to a grid
block classification within the sentencing guidelines grid, and the
sentencing judge accepts the stipulated classification but imposes a
sentence other than the presumptive sentence provided by rules of the
Oregon Criminal Justice Commission, the sentence is a departure sentence
and is subject to rules of the Oregon Criminal Justice Commission related
to departures.
(4) The district attorney and defendant may stipulate to a specific
sentence within the presumptive range provided by rules of the Oregon
Criminal Justice Commission for the stipulated offender classification.
If the sentencing judge accepts the plea agreement, the judge shall
impose the stipulated sentence.
(5) The district attorney and the defendant may stipulate to a
sentence outside the presumptive sentence range for a stipulated grid
block classification. The sentencing judge may accept an agreement for an
optional probationary sentence or a departure sentence as provided in
rules of the Oregon Criminal Justice Commission. [1989 c.790 §2]In determining whether to engage in plea discussions for the
purpose of reaching a plea agreement, the district attorney may take into
account, but is not limited to, any of the following considerations:
(1) The defendant by the plea of the defendant has aided in
insuring the prompt and certain applications of correctional measures to
the defendant.
(2) The defendant has acknowledged guilt and shown a willingness to
assume responsibility for the conduct of the defendant.
(3) The concessions made by the state will make possible
alternative correctional measures which are better adapted to achieving
rehabilitative, protective, deterrent or other purposes of correctional
treatment, or will prevent undue harm to the defendant from the form of
conviction.
(4) The defendant has made public trial unnecessary when there are
good reasons for not having the case dealt with in a public trial.
(5) The defendant has given or offered cooperation when the
cooperation has resulted or may result in the successful prosecution of
other offenders engaged in equally serious or more serious criminal
conduct.
(6) The defendant by the plea of the defendant has aided in
avoiding delay in the disposition of other cases and thereby has
increased the probability of prompt and certain application of
correctional measures to other offenders. [1973 c.836 §171] (1) Defense counsel
shall conclude a plea agreement only with the consent of the defendant,
and shall insure that the decision whether to enter a plea of guilty or
no contest is ultimately made by the defendant.
(2) To aid the defendant in reaching a decision, defense counsel,
after appropriate investigation, shall advise the defendant of the
alternatives available and of factors considered important by the defense
counsel or the defendant in reaching a decision. [1973 c.836 §172] (1)(a) The trial judge
shall not participate in plea discussions, except to:
(A) Inquire of the parties about the status of any discussions;
(B) Participate in a tentative plea agreement as provided in
subsections (2) to (4) of this section; or
(C) Make the inquiry required by ORS 135.406.
(b) Any other judge, at the request of both the prosecution and the
defense, or at the direction of the presiding judge, may participate in
plea discussions. Participation by a judge in the plea discussion process
shall be advisory, and shall in no way bind the parties. If no plea is
entered pursuant to these discussions, the advice of the participating
judge shall not be reported to the trial judge. If the discussion results
in a plea of guilty or no contest, the parties, if they both agree to do
so, may proceed with the plea before a judge involved in the discussion.
This plea may be entered pursuant to a tentative plea agreement as
provided in subsections (2) to (4) of this section.
(2) If a tentative plea agreement has been reached which
contemplates entry of a plea of guilty or no contest in the expectation
that charge or sentence concessions will be granted, the trial judge,
upon request of the parties, may permit the disclosure to the trial judge
of the tentative agreement and the reasons therefor in advance of the
time for tender of the plea. The trial judge may then advise the district
attorney and defense counsel whether the trial judge will concur in the
proposed disposition if the information in the presentence report or
other information available at the time for sentencing is consistent with
the representations made to the trial judge.
(3) If the trial judge concurs, but later decides that the final
disposition of the case should not include the sentence concessions
contemplated by the plea agreement, the trial judge shall so advise the
defendant and allow the defendant a reasonable period of time in which to
either affirm or withdraw a plea of guilty or no contest.
(4) When a plea of guilty or no contest is tendered or received as
a result of a prior plea agreement, the trial judge shall give the
agreement due consideration, but notwithstanding its existence, the trial
judge is not bound by it, and may reach an independent decision on
whether to grant sentence concessions under the criteria set forth in ORS
135.415. [1973 c.836 §173; 1987 c.202 §1; 1997 c.313 §4] (1) Except as
provided in subsection (2) of this section, none of the following shall
be received in evidence for or against a defendant in any criminal or
civil action or administrative proceeding:
(a) The fact that the defendant or the counsel of the defendant and
the district attorney engaged in plea discussions.
(b) The fact that the defendant or the attorney of the defendant
made a plea agreement with the district attorney.
(c) Any statement or admission made by the defendant or the
attorney of the defendant to the district attorney and as a part of the
plea discussion or agreement.
(2) The provisions of subsection (1) of this section shall not
apply if, subsequent to the plea discussions or plea agreement, the
defendant enters a plea of guilty or no contest which is not withdrawn.
[1973 c.836 §174] (1) A plea of
guilty or no contest which is not accepted or has been withdrawn shall
not be received against the defendant in any criminal proceeding.
(2) No statement or admission made by a defendant or the attorney
of the defendant during any proceeding relating to a plea of guilty or no
contest which is not accepted or has been withdrawn shall be received
against the defendant in any criminal proceeding. [1973 c.836 §175](Related Procedure)(1) If
the defendant in a criminal action proposes to rely in any way on alibi
evidence, the defendant shall, not less than five days before the trial
of the cause, file and serve upon the district attorney a written notice
of the purpose to offer such evidence, which notice shall state
specifically the place or places where the defendant claims to have been
at the time or times of the alleged offense together with the name and
residence or business address of each witness upon whom the defendant
intends to rely for alibi evidence. If the defendant fails to file and
serve such notice, the defendant shall not be permitted to introduce
alibi evidence at the trial of the cause unless the court for good cause
orders otherwise.
(2) As used in this section “alibi evidence” means evidence that
the defendant in a criminal action was, at the time of commission of the
alleged offense, at a place other than the place where such offense was
committed. [Formerly 135.875]When the defendant is acquitted on the merits, the defendant is
considered acquitted of the offense charged in the accusatory instrument,
notwithstanding a defect in form or substance in the accusatory
instrument on which the defendant is acquitted. [Formerly 135.880]PRETRIAL MOTIONS(1) The court shall dismiss the accusatory instrument
if, upon motion of the defendant, it appears, as a matter of law, that a
former prosecution bars the prosecution for the offense charged.
(2) The time of making the motion and its effect shall be as
provided for a motion to set aside the indictment in ORS 135.520 and
135.530.
(3) An order to dismiss the accusatory instrument on grounds of
former jeopardy is a bar to a future prosecution of the defendant for the
offense charged in the accusatory instrument. [1973 c.836 §177] (1) The
indictment shall be set aside by the court upon the motion of the
defendant in either of the following cases:
(a) When it is not found, indorsed and presented as prescribed in
ORS 132.360, 132.400 to 132.430 and 132.580.
(b) When the names of the witnesses examined before the grand jury
are not inserted at the foot of the indictment or indorsed thereon.
(2) Nothing in subsection (1)(b) of this section shall affect the
application of ORS 132.580. [Amended by 1959 c.426 §2; 1973 c.836 §178] A motion to set aside the
indictment or dismiss the accusatory instrument shall be made and heard
at the time of the arraignment or within 10 days thereafter, unless for
good cause the court allows additional time. If not so made, the
defendant is precluded from afterwards taking the objections to the
indictment or accusatory instrument. [Amended by 1973 c.836 §179] (1) If the motion to set
aside or dismiss is allowed, the court shall order that the defendant, if
in custody, be discharged therefrom or, if the defendant has been
released, that the release agreement be discharged and the security
deposit be refunded as provided by law, unless the court allows the case
to be refiled or resubmitted to the same or another grand jury.
(2) If the court allows the case to be resubmitted or refiled, it
must be resubmitted or refiled by the state within 30 days from the date
on which the court enters the order. If the case is not resubmitted or
refiled within that time, the defendant shall be released from custody or
the release agreement discharged or the security deposit returned.
[Amended by 1973 c.836 §180] Subject to the limitations
of ORS 135.530 (2), if the court allows the case to be resubmitted or
refiled, the defendant, if then in custody, shall so remain, unless the
defendant is released as provided by law. If the defendant has already
been released, the release agreement or any security deposited as
provided by law, shall continue to insure the appearance of the defendant
to answer a new indictment or information, if one is filed. [Amended by
1973 c.836 §181] Except
for an order dismissing an accusatory instrument on grounds of former
jeopardy, an order to set aside an indictment or to dismiss an accusatory
instrument is no bar to a future prosecution for the same crime. [Amended
by 1973 c.836 §182]DEMURRERS (1) The demurrer shall be entered
either at the time of the arraignment or at such other time as may be
allowed to the defendant for that purpose.
(2) The demurrer shall be in writing, signed by the defendant or
the attorney of the defendant and filed. It shall distinctly specify the
ground of objection to the accusatory instrument. [Amended by 1973 c.836
§183] The defendant may demur to the
accusatory instrument when it appears upon the face thereof:
(1) If the accusatory instrument is an indictment, that the grand
jury by which it was found had no legal authority to inquire into the
crime charged because the same is not triable within the county;
(2) If the accusatory instrument is an indictment, that it does not
substantially conform to the requirements of ORS 132.510 to 132.560,
135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;
(3) That the accusatory instrument charges more than one offense
not separately stated;
(4) That the facts stated do not constitute an offense;
(5) That the accusatory instrument contains matter which, if true,
would constitute a legal justification or excuse of the offense charged
or other legal bar to the action; or
(6) That the accusatory instrument is not definite and certain.
[Amended by 1973 c.836 §184]
When the objections mentioned in ORS 135.630 appear upon the face of the
accusatory instrument, they can only be taken by demurrer, except that
the objection to the jurisdiction of the court over the subject of the
accusatory instrument, or that the facts stated do not constitute an
offense, may be taken at the trial, under the plea of not guilty and in
arrest of judgment. [Amended by 1973 c.836 §185] Upon the
filing of the demurrer, the objections presented thereby shall be heard
either immediately or at such time as the court may direct. Upon considering
the demurrer, the court shall give judgment, either allowing or
disallowing it, and an entry to that effect shall be made in the
register. [Amended by 1985 c.540 §33] (1) If the demurrer is allowed, the
judgment is final upon the accusatory instrument demurred to and is a bar
to another action for the same crime unless the court, being of the
opinion that the objection on which the demurrer is allowed may be
avoided in a new accusatory instrument, allows the case to be resubmitted
or refiled.
(2) If the court allows the case to be resubmitted or refiled, it
must be resubmitted or refiled by the state within 30 days from the date
on which the court enters the order. If the case is not resubmitted or
refiled within that time, the defendant shall be discharged from custody
or the release agreement discharged or the security deposit returned as
provided in ORS 135.680. [Amended by 1973 c.836 §186] If
the court does not allow the case to be resubmitted or an amended
complaint or information filed, the defendant, if in custody, shall be
discharged. If the defendant has been released, the release agreement
shall be discharged. If the defendant has deposited any security, the
security shall be returned to the defendant as provided by law. [Amended
by 1973 c.836 §187] If the court allows the case to be
resubmitted, the same proceedings shall be had thereon as are prescribed
in ORS 135.540. [Amended by 1973 c.836 §188] If the demurrer is disallowed,
the court shall permit the defendant, at the election of the defendant,
to plead, which the defendant must do forthwith or at such time as the
court may allow; but if the defendant does not plead, a plea of not
guilty shall be entered. [Amended by 1973 c.836 §189]COMPROMISE (1) When a
defendant is charged with a crime punishable as a misdemeanor for which
the person injured by the act constituting the crime has a remedy by a
civil action, the crime may be compromised, as provided in ORS 135.705,
except when it was committed:
(a) By or upon a peace officer while in the execution of the duties
of office;
(b) Riotously;
(c) With an intent to commit a crime punishable only as a felony; or
(d) By one family or household member upon another family or
household member, as defined in ORS 107.705, or by a person upon an
elderly person or a person with disabilities as defined in ORS 124.005
and the crime was:
(A) Assault in the fourth degree under ORS 163.160;
(B) Assault in the third degree under ORS 163.165;
(C) Menacing under ORS 163.190;
(D) Recklessly endangering another person under ORS 163.195;
(E) Harassment under ORS 166.065; or
(F) Strangulation under ORS 163.187.
(2) Notwithstanding subsection (1) of this section, when a
defendant is charged with violating ORS 811.700, the crime may be
compromised as provided in ORS 135.705. [Formerly 134.010; 1991 c.938 §1;
1995 c.657 §21; 1995 c.666 §26; 1999 c.738 §9; 2003 c.264 §9; 2003 c.577
§5]
(1)(a) If the person injured acknowledges in writing, at any time before
trial on an accusatory instrument for the crime, that the person has
received satisfaction for the injury, the court may, in its discretion,
on payment of the costs and expenses incurred, order the accusatory
instrument dismissed. The order must be entered in the register.
(b) For purposes of paragraph (a) of this subsection, a written
acknowledgment that a civil penalty under ORS 30.875 has been paid is not
evidence that the person injured has received full satisfaction for the
injury and is not a compromise under this section.
(2) As used in this section, “costs” includes those expenses
specially incurred by the state in prosecuting the defendant, including
costs under ORS 151.505 for the compensation of counsel appointed
pursuant to ORS 135.045 or 135.050 and fees and expenses paid under ORS
135.055. [Formerly 134.020; 1981 s.s. c.3 §121; 1985 c.540 §34; 1985
c.710 §4; 1987 c.803 §25; 1999 c.925 §1; 2003 c.449 §28] The order authorized by
ORS 135.705, when made and entered, is a bar to another prosecution for
the same crime. [Formerly 134.030] No crime can be compromised nor
can any proceeding for the prosecution or punishment thereof be stayed
upon a compromise, except as provided in ORS 135.703 to 135.709 and
135.745 to 135.757. [Formerly 134.040]SUFFICIENCY OF ACCUSATORY INSTRUMENTS
For any felony committed on or after November 1, 1989, the accusatory
instrument shall allege facts sufficient to constitute a crime or a
specific subcategory of a crime in the Crime Seriousness Scale
established by the rules of the Oregon Criminal Justice Commission. [1989
c.790 §4]Neither presumptions of law nor matters of which
judicial notice is taken need be stated in an accusatory instrument.
[Formerly 132.570]No accusatory instrument is insufficient, nor can the trial,
judgment or other proceedings thereon be affected, by reason of a defect
or imperfection in a matter of form which does not tend to the prejudice
of the substantial rights of the defendant upon the merits. [Formerly
132.590] The precise time at which the offense was
committed need not be stated in the accusatory instrument, but it may be
alleged to have been committed at any time before the finding thereof and
within the time in which an action may be commenced therefor, except
where the time is a material element in the offense. [Formerly 132.610] In an accusatory
instrument for an offense committed as described in ORS 131.315 and
131.325, it is sufficient to allege that the offense was committed within
the county where the accusatory instrument is found. [Formerly 132.620] When a crime
involves the commission of or an attempt to commit a private injury and
is described with sufficient certainty in other respects to identify the
act, an erroneous allegation as to the person injured or intended to be
injured is not material. [Formerly 132.630] When an offense involves the taking
of or injury to an animal, the accusatory instrument is sufficiently
certain in that respect if it describes the animal by the common name of
its class. [Formerly 132.640] In pleading in an
accusatory instrument a judgment or other determination of or proceeding
before a court or officer of special jurisdiction, it is not necessary to
state the facts conferring jurisdiction; but the judgment, determination
or proceeding may be stated to have been duly given or made. The facts
conferring jurisdiction, however, must be established on the trial.
[Formerly 132.660] An accusatory instrument for criminal
defamation need not set forth any extrinsic facts for the purpose of
showing the application to the party defamed of the defamatory matter on
which the accusatory instrument is founded; but it is sufficient to state
generally that the same was published concerning the party; and the fact
that it was so published must be established on the trial. [Formerly
132.670] When an
instrument which is the subject of an accusatory instrument for forgery
has been destroyed or withheld by the act or procurement of the defendant
and the fact of the destruction or withholding is alleged in the
accusatory instrument and established on the trial, the misdescription of
the instrument is immaterial. [Formerly 132.680] In an accusatory instrument for perjury, attempted
perjury, solicitation of perjury or conspiracy to commit perjury it is
sufficient to set forth the substance of the controversy or matter in
respect to which the crime was committed, in what court or before whom
the oath alleged to be false was taken and that the court or person
before whom it was taken had authority to administer it, with proper
allegations of the falsity of the matter on which the perjury is
assigned; but the accusatory instrument need set forth neither the
pleadings, record or proceedings with which the oath is connected nor the
commission or authority of the court or person before whom the perjury
was committed. [Formerly 132.690] The words used in
an accusatory instrument must be construed in their usual acceptation in
common language, except words and phrases defined by law, which are to be
construed according to their legal meaning. [Formerly 132.710] When
a defendant is charged in an accusatory instrument by a fictitious or
erroneous name and in any stage of the proceedings the true name of the
defendant is discovered, it may be inserted in the subsequent
proceedings, referring to the fact of the defendant being charged by the
name mentioned in the accusatory instrument. [Formerly 132.720]SPEEDY TRIAL PROVISIONS
When a person has been held to answer for a crime, if an indictment is
not found against the person within 30 days or the district attorney does
not file an information in circuit court within 30 days after the person
is held to answer, the court shall order the prosecution to be dismissed,
unless good cause to the contrary is shown. [Formerly 134.110] If a
defendant charged with a crime, whose trial has not been postponed upon
the application of the defendant or by the consent of the defendant, is
not brought to trial within a reasonable period of time, the court shall
order the accusatory instrument to be dismissed. [Formerly 134.120] If the defendant is not
proceeded against or tried, as provided in ORS 135.745 and 135.747, and
sufficient reason therefor is shown, the court may order the action to be
continued and in the meantime may release the defendant from custody as
provided in ORS 135.230 to 135.290, for the appearance of the defendant
to answer the charge or action. [Formerly 134.130]DISMISSAL OF ACTION (1) If the court directs the charge or
action to be dismissed, the defendant, if in custody, shall be
discharged. If the defendant has been released, the release agreement is
exonerated and security deposited shall be refunded to the defendant.
(2) An order for the dismissal of a charge or action, as provided
in ORS 135.703 to 135.709 and 135.745 to 135.757, is a bar to another
prosecution for the same crime if the crime is a Class B or C
misdemeanor; but it is not a bar if the crime charged is a Class A
misdemeanor or a felony.
(3) If any charge or action is dismissed for the purpose of
consolidation with one or more other charges or actions, then any such
dismissal shall not be a bar to another prosecution for the same offense.
[Formerly 134.140; 1975 c.198 §1] The
court may, either of its own motion or upon the application of the
district attorney, and in furtherance of justice, order the proceedings
to be dismissed. The reasons for the dismissal shall be set forth in the
order, which shall be entered in the register. [Formerly 134.150; 1985
c.540 §35] The
entry of a nolle prosequi is abolished, and the district attorney cannot
discontinue or abandon a prosecution for a crime, except as provided in
ORS 135.755. [Formerly 134.160]PROSECUTION OF PRISONERS (1) Any
inmate in the custody of the Department of Corrections or of the
supervisory authority of a county pursuant to a commitment under ORS
137.124 (2) against whom there is pending at the time of commitment or
against whom there is filed at any time during imprisonment, in any court
of this state, an indictment, information or criminal complaint charging
the inmate with the commission of a crime, may give written notice to the
district attorney of the county in which the inmate is so charged
requesting the district attorney to prosecute and bring the inmate to
trial on the charge forthwith.
(2) The notice provided for in subsection (1) of this section shall
be signed by the inmate and set forth the place and term of imprisonment.
A copy of the notice shall be sent to the court in which the inmate has
been charged by indictment, information or complaint. [Formerly 134.510;
1987 c.320 §19; 1995 c.423 §9b]
(1) The district attorney, after receiving a notice requesting trial
under ORS 135.760, shall, within 90 days of receipt of the notice, bring
the inmate to trial upon the pending charge.
(2) The court shall grant any reasonable continuance with the
consent of the defendant. Notwithstanding the defendant’s lack of
consent, the court may grant a continuance on motion of the district
attorney or on its own motion, for good cause shown. The fact of
imprisonment is not good cause for the purposes of this subsection.
[Formerly 134.520; 1993 c.542 §1](1) On motion of the defendant or the
counsel of the defendant, or on its own motion, the court shall dismiss
any criminal proceeding not brought to trial in accordance with ORS
135.763.
(2) This section shall not apply:
(a) When failure to bring the inmate to trial within 90 days after
the district attorney receives notice under ORS 135.760 was the result of
motions filed on behalf of the inmate, or of a grant by the court of a
continuance on motion of the district attorney or on its own motion, for
good cause shown; or
(b) When the inmate is unavailable for trial, other than by
imprisonment, or because of other pending criminal proceedings against
the inmate. [Formerly 134.530; 1993 c.542 §2] (1) Whenever the
presence of an inmate in the custody of the Department of Corrections or
of the supervisory authority of a county pursuant to a commitment under
ORS 137.124 (2) is necessary in any criminal proceeding under ORS 135.760
to 135.773, the court wherein the inmate is charged with the commission
of a crime may:
(a) Issue an order directing the Director of the Department of
Corrections or the supervisory authority of a county to surrender the
inmate to the sheriff of the county where the inmate is to be tried; or
(b) Ensure that arrangements for the inmate to appear by
simultaneous electronic transmission as described in ORS 131.045 have
been made.
(2) The county where an inmate is charged with commission of a
crime shall pay the costs of:
(a) Transportation and maintenance of the inmate removed under this
section; or
(b) Providing for the inmate to appear by simultaneous electronic
transmission.
(3) If an inmate is transported under this section for a criminal
proceeding under ORS 135.760 to 135.773, at the conclusion of the
proceeding, notwithstanding the provisions of ORS 137.140, the inmate
shall be returned by the sheriff to the custody of the Department of
Corrections or the supervisory authority of the county in which the
inmate is imprisoned.
(4) The time during which an inmate is in the custody of the
sheriff under this section is part of and shall be counted as time served
under the original sentence. [Formerly 134.540; 1983 c.740 §14; 1987
c.320 §20; 1995 c.423 §9c; 2005 c.566 §8] No inmate in the custody of
a sheriff under ORS 135.767 shall be released pending a criminal
proceeding under ORS 135.760 to 135.773 or any appeal therefrom.
[Formerly 134.550] The
district attorney shall, in all proceedings against inmates under ORS
135.760 to 135.773, obtain for and furnish to the court a certified copy
of the judgment, sentence or commitment order pursuant to which the
inmate is imprisoned. [Formerly 134.560]DETAINER The Agreement on Detainers is
hereby enacted into law and entered into by this state with all other
jurisdictions legally joining therein in the form substantially as
follows:
___________________________________________________________________________
___AGREEMENT ON DETAINERS
The contracting states solemnly agree that:ARTICLE I
The party states find that charges outstanding against a prisoner,
detainers based on untried indictments, informations or complaints, and
difficulties in securing speedy trial of persons already incarcerated in
other jurisdictions, produce uncertainties which obstruct programs of
prisoner treatment and rehabilitation. Accordingly, it is the policy of
the party states and the purpose of this agreement to encourage the
expeditious and orderly disposition of such charges and determination of
the proper status of any and all detainers based on untried indictments,
informations or complaints. The party states also find that proceedings
with reference to such charges and detainers, when emanating from another
jurisdiction, cannot properly be had in the absence of cooperative
procedures. It is the further purpose of this agreement to provide such
cooperative procedures.
ARTICLE II
As used in this agreement:
(a) “State” shall mean a state of the United States; the United
States of America; a territory or possession of the United States; the
District of Columbia; the Commonwealth of Puerto Rico.
(b) “Sending state” shall mean a state in which a prisoner is
incarcerated at the time that the prisoner initiates a request for final
disposition pursuant to Article III of this agreement or at the time that
a request for custody or availability is initiated pursuant to Article IV
of this agreement.
(c) “Receiving state” shall mean the state in which trial is to be
had on an indictment, information or complaint pursuant to Article III or
Article IV of this agreement.
(d) “Department of Corrections institution” of this state shall
mean any institution operated by the Department of Corrections.
ARTICLE III
(a) Whenever a person has entered upon a term of imprisonment in a
penal or correctional institution of a party state, and whenever during
the continuance of the term of imprisonment there is pending in any other
party state any untried indictment, information or complaint on the basis
of which a detainer has been lodged against the prisoner, the prisoner
shall be brought to trial within 180 days after the prisoner shall have
caused to be delivered to the prosecuting officer and the appropriate
court of the prosecuting officer’s jurisdiction written notice of the
place of imprisonment and the request of the prisoner for a final
disposition to be made of the indictment, information or complaint:
Provided, that for good cause shown in open court, the prisoner or the
counsel of the prisoner being present, the court having jurisdiction of
the matter may grant any necessary or reasonable continuance. The request
of the prisoner shall be accompanied by a certificate of the appropriate
official having custody of the prisoner, stating the term of commitment
under which the prisoner is being held, the time already served, the time
remaining to be served on the sentence, the amount of good time earned,
the time of parole eligibility of the prisoner, and any decisions of the
state parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred
to in paragraph (a) of this Article shall be given or sent by the
prisoner to the warden or other official having custody of the prisoner,
who shall promptly forward it together with the certificate to the
prosecuting official and court by registered or certified mail, return
receipt requested.
(c) The warden or other official having custody of the prisoner
shall promptly inform the prisoner of the source and contents of any
detainer lodged against the prisoner and shall also inform the prisoner
of the right to make a request for final disposition of the indictment,
information or complaint on which the detainer is based.
(d) Any request for final disposition made by a prisoner pursuant
to paragraph (a) of this Article shall operate as a request for final
disposition of all untried indictments, informations or complaints on the
basis of which detainers have been lodged against the prisoner from the
state to whose prosecuting official the request for final disposition is
specifically directed. The warden or other official having custody of the
prisoner shall forthwith notify all appropriate prosecuting officers and
courts in the several jurisdictions within the state to which the
prisoner’s request for final disposition is being sent of the proceeding
being initiated by the prisoner. Any notification sent pursuant to this
paragraph shall be accompanied by copies of the prisoner’s written
notice, request and the certificate. If trial is not had on any
indictment, information or complaint contemplated hereby prior to the
return of the prisoner to the original place of imprisonment, such
indictment, information or complaint shall not be of any further force or
effect, and the court shall enter an order dismissing the same with
prejudice.
(e) Any request for final disposition made by a prisoner pursuant
to paragraph (a) of this Article shall also be deemed to be a waiver of
extradition with respect to any charge or proceeding contemplated thereby
or included therein by reason of paragraph (d) of this Article, and a
waiver of extradition to the receiving state to serve any sentence there
imposed upon the prisoner, after completion of the term of imprisonment
in the sending state. The request for final disposition shall also
constitute a consent by the prisoner to the production of the body of the
prisoner in any court where the presence of the prisoner may be required
in order to effectuate the purposes of this agreement and a further
consent voluntarily to be returned to the original place of imprisonment
in accordance with the provisions of this agreement. Nothing in this
paragraph shall prevent the imposition of a concurrent sentence if
otherwise permitted by law.
(f) Escape from custody by the prisoner subsequent to the execution
of the request for final disposition referred to in paragraph (a) of this
Article shall void the request.
ARTICLE IV
(a) The appropriate officer of the jurisdiction in which an untried
indictment, information or complaint is pending shall be entitled to have
a prisoner against whom the officer has lodged a detainer and who is
serving a term of imprisonment in any party state made available in
accordance with paragraph (a) of Article V of this agreement upon
presentation of a written request for temporary custody or availability
to the appropriate authorities of the state in which the prisoner is
incarcerated: Provided, that the court having jurisdiction of such
indictment, information or complaint shall have duly approved, recorded
and transmitted the request; And provided further, that there shall be a
period of 30 days after receipt by the appropriate authorities before the
request be honored, within which period the governor of the sending state
may disapprove the request for temporary custody or availability, either
upon the own motion of the governor or upon motion of the prisoner.
(b) Upon receipt of the officer’s written request as provided in
paragraph (a) of this Article, the appropriate authorities having the
prisoner in custody shall furnish the officer with a certificate stating
the term of commitment under which the prisoner is being held, the time
already served, the time remaining to be served on the sentence, the
amount of good time earned, the time of parole eligibility of the
prisoner and any decisions of the state parole agency relating to the
prisoner. Such authorities simultaneously shall furnish all other
officers and appropriate courts in the receiving state who have lodged
detainers against the prisoner with similar certificates and with notices
informing them of the request for custody or availability and of the
reasons therefor.
(c) In respect of any proceeding made possible by this Article,
trial shall be commenced within 120 days of the arrival of the prisoner
in the receiving state, but for good cause shown in open court, the
prisoner or the counsel of the prisoner being present, the court having
jurisdiction of the matter may grant any necessary or reasonable
continuance.
(d) Nothing contained in this Article shall be construed to deprive
any prisoner of any right which the prisoner may have to contest the
legality of the delivery of the prisoner as provided in paragraph (a) of
this Article, but such delivery may not be opposed or denied on the
ground that the executive authority of the sending state has not
affirmatively consented to or ordered such delivery.
(e) If trial is not had on any indictment, information or complaint
contemplated hereby prior to the prisoner’s being returned to the
original place of imprisonment pursuant to paragraph (e) of Article V of
this agreement, such indictment, information or complaint shall not be of
any further force or effect, and the court shall enter an order
dismissing the same with prejudice.
ARTICLE V
(a) In response to a request made under Article III or Article IV
of this agreement, the appropriate authority in a sending state shall
offer to deliver temporary custody of such prisoner to the appropriate
authority in the state where such indictment, information or complaint is
pending against such person in order that speedy and efficient
prosecution may be had. If the request for final disposition is made by
the prisoner, the offer of temporary custody shall accompany the written
notice provided for in Article III of this agreement. In the case of a
federal prisoner, the appropriate authority in the receiving state shall
be entitled to temporary custody as provided by this agreement or to the
prisoner’s presence in federal custody at the place for trial, whichever
custodial arrangement may be approved by the custodian.
(b) The officer or other representative of a state accepting an
offer of temporary custody shall present the following upon demand:
(1) Proper identification and evidence of authority to act for the
state into whose temporary custody the prisoner is to be given.
(2) A duly certified copy of the indictment, information or
complaint on the basis of which the detainer has been lodged and on the
basis of which the request for temporary custody of the prisoner has been
made.
(c) If the appropriate authority shall refuse or fail to accept
temporary custody of such prisoner, or in the event that an action on the
indictment, information or complaint on the basis of which the detainer
has been lodged is not brought to trial within the period provided in
Article III or Article IV of this agreement, the appropriate court of the
jurisdiction where the indictment, information or complaint has been
pending shall enter an order dismissing the same with prejudice, and any
detainer based thereon shall cease to be of any force or effect.
(d) The temporary custody referred to in this agreement shall be
only for the purpose of permitting prosecution on the charge or charges
contained in one or more untried indictments, informations or complaints
which form the basis of the detainer or detainers or for prosecution on
any other charge or charges arising out of the same transaction. Except
for attendance of the prisoner at court and while being transported to or
from any place at which the presence of the prisoner may be required, the
prisoner shall be held in a suitable jail or other facility regularly
used for persons awaiting prosecution.
(e) At the earliest practicable time consonant with the purposes of
this agreement, the prisoner shall be returned to the sending state.
(f) During the continuance of temporary custody or while the
prisoner is otherwise being made available for trial as required by this
agreement, time being served on the sentence shall continue to run but
good time shall be earned by the prisoner only if, and to the extent
that, the law and practice of the jurisdiction which imposed the sentence
may allow.
(g) For all purposes other than that for which temporary custody as
provided in this agreement is exercised, the prisoner shall be deemed to
remain in the custody of and subject to the jurisdiction of the sending
state and any escape from temporary custody may be dealt with in the same
manner as an escape from the original place of imprisonment or in any
other manner permitted by law.
(h) From the time that a party state receives custody of a prisoner
pursuant to this agreement until such prisoner is returned to the
territory and custody of the sending state, the state in which the one or
more untried indictments, informations or complaints are pending or in
which trial is being had shall be responsible for the prisoner and shall
also pay all costs of transporting, caring for, keeping and returning the
prisoner. The provisions of this paragraph shall govern unless the states
concerned shall have entered into a supplementary agreement providing for
a different allocation of costs and responsibilities as between or among
themselves. Nothing contained in this paragraph shall be construed to
alter or affect any internal relationship among the departments, agencies
and officers of and in the government of a party state, or between a
party state and its subdivisions, as to the payment of costs, or
responsibilities therefor.
ARTICLE VI
(a) In determining the duration and expiration dates of the time
periods provided in Articles III and IV of this agreement, the running of
such time periods shall be tolled whenever and for as long as the
prisoner is unable to stand trial, as determined by the court having
jurisdiction of the matter.
(b) No provision of this agreement, and no remedy made available by
this agreement, shall apply to any person who is adjudged to be mentally
ill.
ARTICLE VII
Each state party to this agreement shall designate an officer who,
acting jointly with like officers of other party states, shall promulgate
rules and regulations to carry out more effectively the terms and
provisions of this agreement, and who shall provide within and without
the state, information necessary to the effective operation of this
agreement.
ARTICLE VIII
This agreement shall enter into full force and effect as to a party
state when such state has enacted the agreement into law. A state party
to this agreement may withdraw herefrom by enacting a statute repealing
the agreement. However, the withdrawal of any state shall not affect the
status of any proceedings already initiated by prisoners or by state
officers at the time such withdrawal takes effect, nor shall it affect
their rights in respect thereof.
ARTICLE IX
This agreement shall be liberally construed so as to effectuate its
purposes. The provisions of this agreement shall be severable and if any
phrase, clause, sentence or provision of this agreement is declared to be
contrary to the constitution of any party state or of the United States
or the applicability thereof to any government, agency, person or
circumstance is held invalid, the validity of the remainder of this
agreement and the applicability thereof to any government, agency, person
or circumstance shall not be affected thereby. If this agreement shall be
held contrary to the constitution of any state party to this agreement,
the agreement shall remain in full force and effect as to the remaining
states and in full force and effect as to the state affected as to all
severable matters.
___________________________________________________________________________
___[Formerly 134.605; 1987 c.320 §20a] As used in the Agreement on
Detainers, the term “appropriate court” means any court of this state
that has criminal jurisdiction. [Formerly 134.615] All courts,
departments, agencies, officers and employees of this state and its
political subdivisions are hereby directed to enforce the Agreement on
Detainers and to cooperate with one another and with other party states
in enforcing the agreement and effectuating its purposes. [Formerly
134.625] Escape from
custody while in another state pursuant to the Agreement on Detainers is
an offense against the laws of this state to the same extent and degree
as an escape from the institution in which the prisoner was confined
immediately prior to having been sent to another state pursuant to the
provision of the Agreement on Detainers and shall be punishable in the
same manner as an escape from such institution. [Formerly 134.635] The official in
charge of a Department of Corrections institution in this state shall
give over the person of any inmate thereof whenever so required by the
operation of the Agreement on Detainers. [Formerly 134.645; 1987 c.320
§21] The
Governor may appoint an administrator who shall perform the duties and
functions and exercise the powers conferred upon such person by Article
VII of the Agreement on Detainers. [Formerly 134.655]
In order to implement paragraph (a) of Article IV of the Agreement on
Detainers, and in furtherance of its purposes, the appropriate
authorities having custody of the prisoner shall, promptly upon receipt
of the officer’s written request, notify the prisoner and the Governor in
writing that a request for temporary custody has been made and such
notification shall describe the source and contents of such request. The
authorities having custody of the prisoner shall also advise the prisoner
in writing of the rights of the prisoner to counsel, to make
representations to the Governor within 30 days, and to contest the
legality of the delivery of the prisoner. [Formerly 134.665]When the district attorney of any county shall have
received written notice from a prisoner in another state of the
prisoner’s request for final disposition to be made of any untried
accusatory instrument which is the basis of a detainer against the
prisoner, the district attorney promptly shall give written notice to the
Governor that such request has been received. The notice to the Governor
shall describe the charge pending against the prisoner and shall recite
the crime of which the prisoner was convicted in the other state, the
sentence imposed and the date the sentence commenced, or so much of such
information as may be known to the district attorney. The notice to the
Governor shall be accompanied by a summary of the evidence against the
prisoner on the untried charge. Within 10 days after receiving the notice
and summary of evidence, the Governor shall send written direction to the
district attorney either to proceed with prosecution of the prisoner when
the prisoner is made available, or to move the court for dismissal of the
untried indictment, information or complaint and to remove the detainer
against the prisoner. The written direction may be signed by the Governor
or by a person authorized by the Governor to perform extradition
functions. The decision of the Governor shall be final, and the district
attorney shall act as so directed. [1973 c.632 §2]Any officer of a jurisdiction in this state in which an
untried accusatory instrument is pending against a prisoner in another
state, and who desires to have the prisoner returned for trial, shall
give written notice and a summary of the evidence against the prisoner to
the Governor in the manner provided in ORS 135.791. The Governor shall,
within 10 days after receiving the notice and summary, send written
direction to such officer either approving or disapproving the return of
the prisoner. The direction by the Governor shall be final, and may be
signed as provided in ORS 135.791. The officer desiring return of a
prisoner shall not seek the court approval provided for in paragraph (a)
of Article IV of the Agreement on Detainers prior to receiving approval
by the Governor. [1973 c.632 §3]PRETRIAL DISCOVERY (1) The provisions of
ORS 135.805 to 135.873 are applicable to all criminal prosecutions in
which the charging instrument has been brought in a court of record.
(2) As used in ORS 135.805 to 135.873, “disclose” means to afford
the adverse party an opportunity to inspect or copy the material. [1973
c.836 §213; 1977 c.617 §1] (1) Except as otherwise provided
in ORS 135.855 and 135.873, the district attorney shall disclose to a
represented defendant the following material and information within the
possession or control of the district attorney:
(a) The names and addresses of persons whom the district attorney
intends to call as witnesses at any stage of the trial, together with
their relevant written or recorded statements or memoranda of any oral
statements of such persons.
(b) Any written or recorded statements or memoranda of any oral
statements made by the defendant, or made by a codefendant if the trial
is to be a joint one.
(c) Any reports or statements of experts, made in connection with
the particular case, including results of physical or mental examinations
and of scientific tests, experiments or comparisons which the district
attorney intends to offer in evidence at the trial.
(d) Any books, papers, documents, photographs or tangible objects:
(A) Which the district attorney intends to offer in evidence at the
trial; or
(B) Which were obtained from or belong to the defendant.
(e) If actually known to the district attorney, any record of prior
criminal convictions of persons whom the district attorney intends to
call as witnesses at the trial; and the district attorney shall make a
good faith effort to determine if such convictions have occurred.
(f) All prior convictions of the defendant known to the state that
would affect the determination of the defendant’s criminal history for
sentencing under rules of the Oregon Criminal Justice Commission.
(2)(a) If a defendant is not represented by a lawyer, the district
attorney shall disclose to the defendant all of the information described
in subsection (1) of this section except for the personal identifiers of
the victim and any witnesses.
(b) Notwithstanding paragraph (a) of this subsection, the district
attorney shall disclose the personal identifiers of the victim and any
witnesses if the trial court orders the disclosure. A trial court shall
order the district attorney to disclose the personal identifiers of the
victim and any witnesses if the trial court finds that:
(A) The defendant has requested the information; and
(B)(i) The victim or witness is a business or institution and
disclosure of the information would not represent a risk of harm to the
victim or witness; or
(ii) The need for the information cannot reasonably be met by other
means.
(3)(a) Unless authorized by the trial court to disclose the
information, a lawyer representing a defendant, or a representative of
the lawyer, may not disclose to the defendant personal identifiers of a
victim or witness obtained under subsection (1) of this section.
(b) The trial court shall order the lawyer, or representative of
the lawyer, to disclose to the defendant the personal identifiers of a
victim or witness if the court finds that:
(A) The defendant’s lawyer has requested the district attorney to
disclose the information to the defendant;
(B) The district attorney has refused to disclose the information
to the defendant; and
(C) The need for the information cannot reasonably be met by other
means.
(4) As used in this section:
(a) “Personal identifiers” means a person’s address, telephone
number, Social Security number and date of birth and the identifying
number of a person’s depository account at a financial institution, as
defined in ORS 706.008, or credit card account.
(b) “Representative of the lawyer” has the meaning given that term
in ORS 40.225.
(c) “Represented defendant” means a defendant who is represented by
a lawyer in a criminal action. [1973 c.836 §214; 1989 c.790 §5; 1993
c.469 §2; 1999 c.304 §1; 2005 c.545 §1] Except as
otherwise provided in ORS 135.855 and 135.873, the district attorney
shall disclose to the defense:
(1) The occurrence of a search or seizure; and
(2) Upon written request by the defense, any relevant material or
information obtained thereby, the circumstances of the search or seizure,
and the circumstances of the acquisition of any specified statements from
the defendant. [1973 c.836 §215; 1999 c.304 §2] Except as otherwise provided in
ORS 135.855 and 135.873, the defense shall disclose to the district
attorney the following material and information within the possession or
control of the defense:
(1) The names and addresses of persons, including the defendant,
whom the defense intends to call as witnesses at the trial, together with
relevant written or recorded statements or memoranda of any oral
statements of such persons other than the defendant.
(2) Any reports or statements of experts, made in connection with
the particular case, including results of physical or mental examinations
and of scientific tests, experiments or comparisons, that the defense
intends to offer in evidence at the trial.
(3) Any books, papers, documents, photographs or tangible objects
that the defense intends to offer in evidence at the trial. [1973 c.836
§216; 1999 c.304 §3] (1) The obligations to disclose shall
be performed as soon as practicable following the filing of an indictment
or information in the circuit court or the filing of a complaint or
information charging a misdemeanor or violation of a city ordinance. The
court may supervise the exercise of discovery to the extent necessary to
insure that it proceeds properly and expeditiously.
(2) If, after complying with the provisions of ORS 135.805 to
135.873 and 135.970, a party finds, either before or during trial,
additional material or information which is subject to or covered by
these provisions, the party must promptly notify the other party of the
additional material or information. [1973 c.836 §217; 1999 c.304 §4] (1) The
following material and information shall not be subject to discovery
under ORS 135.805 to 135.873:
(a) Work product, legal research, records, correspondence, reports
or memoranda to the extent that they contain the opinions, theories or
conclusions of the attorneys, peace officers or their agents in
connection with the investigation, prosecution or defense of a criminal
action.
(b) The identity of a confidential informant where the identity of
the informant is a prosecution secret and a failure to disclose will not
infringe the constitutional rights of the defendant. Except as provided
in ORS 135.873, disclosure shall not be denied hereunder of the identity
of witnesses to be produced at trial.
(c) Transcripts, recordings or memoranda of testimony of witnesses
before the grand jury, except transcripts or recordings of statements
made by the defendant.
(2) When some parts of certain material are discoverable under ORS
135.805 to 135.873 or 135.970, and other parts not discoverable, as much
of the material shall be disclosed as is consistent with the provisions
thereof. [1973 c.836 §218; 1999 c.304 §5] (1) In any criminal
prosecution arising from an automobile collision in which the defendant
is alleged to have been under the influence of alcohol or drugs, the
district attorney prosecuting the action shall make available, upon
request, to the victim or victims and to their attorney, or to the
survivors of the victim or victims and to their attorney, all reports and
information disclosed to the defendant pursuant to ORS 135.805 to
135.873. The reports and information shall be made available at the same
time as it is disclosed to the defendant or as soon thereafter as may be
practicable after a request is received. The district attorney may impose
such conditions as may be reasonable and necessary to prevent the release
of the reports and information from interfering with the trial of the
defendant. The district attorney may apply to the court for an order
requiring any person receiving such reports and information to comply
with the conditions of release.
(2) For the purpose of this section:
(a) “District attorney” has that meaning given in ORS 131.005.
(b) “Drug” has that meaning given in ORS 475.005. [1991 c.229 §2]
Upon being apprised of any breach of the duty imposed by the provisions
of ORS 135.805 to 135.873 and 135.970, the court may order the violating
party to permit inspection of the material, or grant a continuance, or
refuse to permit the witness to testify, or refuse to receive in evidence
the material not disclosed, or enter such other order as it considers
appropriate. [1973 c.836 §219; 1999 c.304 §6] (1) As used in this section:
(a) “Local government” has the meaning given that term in ORS
174.116.
(b) “Sexual offense” includes but is not limited to a crime listed
in ORS 181.594 (4).
(c) “State government” has the meaning given that term in ORS
174.111.
(d) “Victim” has the meaning given that term in ORS 131.007.
(2) Upon a showing of good cause, the court may at any time order
that specified disclosures be denied, restricted or deferred, or make
such other order as is appropriate.
(3) Upon request of any party, the court may permit a showing of
good cause for denial or regulation of disclosures, or portion of such
showing, to be made in camera. A record shall be made of such proceedings.
(4) If the court enters an order granting relief following a
showing in camera, the entire record of the showing shall be sealed and
preserved in the records of the court, to be made available to the
appellate court in the event of an appeal. Except for information or
materials subject to an order that has been entered under subsection (5)
or (6) of this section, the trial court, in its discretion, may, after
the case has been concluded, unseal matters previously sealed.
(5) Upon the request of a district attorney or the victim, the
court shall enter a protective order prohibiting any party to or attorney
in, or the agent of a party to or attorney in, criminal proceedings
involving a sexual offense, an offense involving the visual or audio
recording of sexual conduct by a child or invasion of personal privacy
under ORS 163.700 from copying or disseminating any information of a
sexually explicit nature including, but not limited to, photographs
depicting a person in a state of nudity, photographs of human genitalia,
any information of the prior sexual history of the victim and any visual
or audio recording of the sexual victimization.
(6) Upon the request of a district attorney or the victim, unless
the court finds good cause to do otherwise, the court shall enter a
protective order prohibiting any party to or attorney in, or the agent of
a party to or attorney in, criminal proceedings involving a sexual
offense, an offense involving the visual or audio recording of sexual
conduct by a child or invasion of personal privacy under ORS 163.700 from
copying or disseminating a visual or audio recording of the victim
describing the victim’s sexual victimization.
(7) Notwithstanding a protective order entered under subsection (5)
or (6) of this section, information or materials described in subsections
(5) and (6) may be copied or disseminated for the purpose of:
(a) Providing discovery;
(b) Submitting evidence to a grand jury, a court, an agency of
state government, a local government or a federal agency for use in
judicial or administrative proceedings;
(c) Having the information or materials examined by an expert
witness for the court, the state or any party;
(d) Providing copies of the information or materials to the
parties’ attorneys or agents; or
(e) Sharing the information or materials with an agency of state
government for use in carrying out duties imposed on the agency by
statute.
(8) Upon the request of the victim, the court may order that the
victim be provided with a copy of information or materials described in
subsections (5) and (6) of this section. [1973 c.836 §220; 2005 c.531 §1]DIVERSION(Generally) As used in ORS
135.881 to 135.901:
(1) “District attorney” has the meaning given that term by ORS
131.005 (8).
(2) “Diversion” means referral of a defendant in a criminal case to
a supervised performance program prior to adjudication.
(3) “Diversion agreement” means the specification of formal terms
and conditions which a defendant must fulfill in order to have the
charges against the defendant dismissed. [1977 c.373 §1] (1) After
an accusatory instrument has been filed charging a defendant with
commission of a crime other than driving while under the influence of
intoxicants as defined in ORS 813.010, and after the district attorney
has considered the factors listed in subsection (2) of this section, if
it appears to the district attorney that diversion of the defendant would
be in the interests of justice and of benefit to the defendant and the
community, the district attorney may propose a diversion agreement to the
defendant the terms of which are established by the district attorney in
conformance with ORS 135.891. A diversion agreement under this section is
not available to a defendant charged with the crime of driving while
under the influence of intoxicants as defined in ORS 813.010.
(2) In determining whether diversion of a defendant is in the
interests of justice and of benefit to the defendant and the community,
the district attorney shall consider at least the following factors:
(a) The nature of the offense; however, the offense must not have
involved injury to another person;
(b) Any special characteristics or difficulties of the offender;
(c) Whether the defendant is a first-time offender; if the offender
has previously participated in diversion, according to the certification
of the Department of Justice, diversion shall not be offered;
(d) Whether there is a probability that the defendant will
cooperate with and benefit from alternative treatment;
(e) Whether the available program is appropriate to the needs of
the offender;
(f) The impact of diversion upon the community;
(g) Recommendations, if any, of the involved law enforcement agency;
(h) Recommendations, if any, of the victim;
(i) Provisions for restitution; and
(j) Any mitigating circumstances. [1977 c.373 §2; 1981 c.64 §1;
1981 c.803 §2; 1983 c.338 §889]A diversion agreement carries the
understanding that if the defendant fulfills the obligations of the
program described therein, the criminal charges filed against the
defendant will be dismissed with prejudice. It shall include specifically
the waiver of the right to a speedy trial. It may include, but is not
limited to, admissions by the defendant, stipulation of facts,
stipulation that depositions of witnesses may be taken pursuant to ORS
136.080 to 136.100, payment of costs as defined in ORS 135.705,
restitution, performance of community service, residence in a halfway
house or similar facility, maintenance of gainful employment, and
participation in programs offering medical, educational, vocational,
social and psychological services, corrective and preventive guidance and
other rehabilitative services. [1977 c.373 §3; 1985 c.710 §5]If the district
attorney elects to offer diversion in lieu of further criminal
proceedings and the defendant, with the advice of counsel, agrees to the
terms of the proposed agreement, including a waiver of the right to a
speedy trial, the court shall stay further criminal proceedings for a
definite period. The stay shall not exceed 270 days in the case of a
defendant charged with commission of a felony, and shall not exceed 180
days in the case of a defendant charged with the commission of a
misdemeanor. If the defendant declines diversion, the court shall resume
criminal proceedings. [1977 c.373 §4](1) If the district attorney finds at the
termination of the diversion period or any time prior thereto that the
divertee has failed to fulfill the terms of the diversion agreement, the
district attorney shall terminate diversion and the court shall resume
criminal proceedings. However, if the former divertee is adjudicated
guilty as a result thereof, the court may take into consideration at the
time of the sentencing any partially successful fulfillment by such
person of the terms of agreement.
(2) If the district attorney informs the court at the termination
of the diversion period that the defendant has fulfilled the terms of the
diversion agreement, the court shall dismiss with prejudice the criminal
charges filed against the defendant.
(3) A record of the fact that an individual has participated in
diversion shall be forwarded to and kept by the Department of Justice,
and shall be made available upon request to any district attorney who
subsequently considers diversion of such person. [1977 c.373 §5; 1981
c.64 §2] (1) Whenever a defendant accused of
committing a crime participates in a diversion agreement under ORS
135.881 to 135.901 or under ORS 813.210, 813.215, 813.220 and 813.230,
the defendant, as a condition of the diversion, shall pay the unitary
assessment for which the defendant would have been liable under ORS
137.290 if the defendant had been convicted. The district attorney, or
the city attorney if the case is prosecuted by the city attorney, shall
include in the diversion agreement a provision setting forth the
defendant’s obligation. If the diversion is terminated and criminal
proceedings are resumed against defendant, any payment made by the
defendant under this subsection shall be refunded upon subsequent
acquittal of the defendant or dismissal of the case.
(2) Assessments under this section shall be paid within 90 days of
imposition, unless the court allows payment at a later time. The
assessments shall be paid to the clerk of the court, who shall account
for and distribute the moneys as provided in ORS 137.293 and 137.295.
[1987 c.905 §10; 1999 c.59 §27]Note: 135.905 was added to and made a part of 147.005 to 147.367 by
legislative action but was not added to or made a part of ORS chapter 135
or any series therein. See Preface to Oregon Revised Statutes for further
explanation.(Possession of Marijuana)(1) The court shall inform at arraignment a defendant
charged with the offense of possession of less than one ounce of
marijuana, that a diversion agreement may be available if the offense for
which the defendant is before the court is the defendant’s first offense
of possession of less than one ounce of marijuana and files with the
court a petition for a possession of marijuana diversion agreement.
(2) The petition form for a possession of marijuana diversion
agreement shall be available to a defendant at the court.
(3) The form of the petition for a possession of marijuana
diversion agreement and the information and blanks contained therein
shall be determined by the Supreme Court under ORS 1.525. The petition
form made available to a defendant by any state court shall conform to
the requirements adopted by the Supreme Court.
(4) In addition to any other information required by the Supreme
Court to be contained in a petition for a possession of marijuana
diversion agreement, the petition shall include:
(a) A waiver by the defendant of the right to speedy trial or
sentencing in any subsequent action upon the charge;
(b) An agreement by the defendant to complete at an agency or
organization designated by the state court a diagnostic assessment to
determine the possible existence and degree of a drug abuse problem;
(c) An agreement by the defendant to complete, at defendant’s own
expense based on defendant’s ability to pay, the program of treatment
indicated as necessary by the diagnostic assessment;
(d) An agreement by the defendant to comply fully with the laws of
this state regarding controlled substances;
(e) A notice to the defendant that the diversion agreement will be
considered to be violated if the court receives notice that the defendant
at any time during the diversion period committed a violation of the
controlled substances laws of this state;
(f) An agreement by the defendant to keep the court advised of the
defendant’s current mailing address at all times during the diversion
period; and
(g) A waiver by the defendant of any former jeopardy rights under
the federal and state constitutions and ORS 131.505 to 131.525 in any
subsequent action upon the charge or any other offenses based upon the
same criminal episode. [1989 c.1075 §5]Note: 135.907 to 135.921 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 135 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation. (1) After an accusatory
instrument has been filed charging the defendant with the offense of
possession of less than one ounce of marijuana, a defendant may file with
the court a petition for a possession of marijuana diversion agreement
described in ORS 135.907. The petition:
(a) Must be filed within 30 days after the date of the defendant’s
first appearance on the summons, unless a later filing date is allowed by
the court upon a showing of good cause.
(b) Notwithstanding paragraph (a) of this subsection, may not be
filed after entry of a guilty plea or a no contest plea or after
commencement of any trial on the charge whether or not a new trial or
retrial is ordered for any reason.
(2) The defendant shall pay to the court, at the time of filing a
petition for a possession of marijuana diversion agreement, a filing fee
as specified in ORS 135.921. The court may make provision for payment of
the filing fee by the defendant on an installment basis. The court may
waive all or part of the filing fee in cases involving indigent
defendants. The filing fee paid to the court under this subsection shall
be retained by the court if the petition is allowed. The filing fee shall
be distributed as provided in ORS 135.921.
(3) The defendant shall pay to the agency or organization providing
the diagnostic assessment, at the time the petition is allowed, the fee
required by ORS 135.921 (3).
(4) The defendant shall cause a copy of the petition for a
possession of marijuana diversion agreement to be served upon the
district attorney or city attorney. The district attorney may file with
the court, within 15 days after the date of service, a written objection
to the petition and a request for a hearing. [1989 c.1075 §6; 1993 c.13
§2]Note: See note under 135.907. After the time for
requesting a hearing under ORS 135.909 has expired with no request for a
hearing, or after a hearing requested under ORS 135.909, the court shall
allow the petition for a possession of marijuana diversion agreement if
the court finds that the offense for which the defendant is before the
court is the defendant’s first offense of possession of less than one
ounce of marijuana. [1989 c.1075 §7]Note: See note under 135.907.(1) When the court allows a
petition for a possession of marijuana diversion agreement filed as
provided in ORS 135.909, the judge taking that action shall sign the
petition and indicate thereon the date of allowance of the diversion
period, the length of the diversion period and the date upon which the
possession of less than one ounce of marijuana offense occurred. The
petition when signed and dated becomes the diversion agreement between
the defendant and the court. The court shall make the agreement a part of
the record of the case.
(2) A possession of marijuana diversion agreement shall be for a
period of one year after the date the court allows the petition. During
the diversion period the court shall stay the possession of less than one
ounce of marijuana offense proceeding pending completion of the diversion
agreement or its termination.
(3) When the court denies a petition for a possession of marijuana
diversion agreement, it shall continue the offense proceeding against the
defendant. [1989 c.1075 §8]Note: See note under 135.907. (1) At any time after
the conclusion of the period of a possession of marijuana diversion
agreement described in ORS 135.913, a defendant who has fully complied
with and performed the conditions of the diversion agreement may apply by
motion to the court wherein the diversion agreement was entered for an
order dismissing the charge with prejudice.
(2) The defendant shall cause to be served on the district attorney
a copy of the motion for entry of an order dismissing with prejudice the
charge of possession of less than one ounce of marijuana. The motion
shall be served on the district attorney at the time it is filed with the
court. The district attorney may contest the motion.
(3) If the defendant does not appear as provided by subsection (1)
of this section within six months after the conclusion of the diversion
period, and if the court finds that the defendant fully complied with and
performed the conditions of the diversion agreement, and if it gives
notice of that finding to the district attorney, the court may on its own
motion enter an order dismissing the charge of possession of less than
one ounce of marijuana with prejudice.
(4) No statement made by the defendant about the offense with which
the defendant is charged shall be offered or received in evidence in any
criminal or civil action or proceeding arising out of the same conduct
which is the basis of the charge of possession of less than one ounce of
marijuana, if the statement was made during the course of the diagnostic
assessment or the rehabilitation program and to a person employed by the
program. [1989 c.1075 §9]Note: See note under 135.907.(1) Courts having jurisdiction over the offense of
possession of less than one ounce of marijuana shall designate agencies
or organizations to perform the diagnostic assessment and treatment
required under possession of marijuana diversion agreements described in
ORS 135.907. The designated agencies or organizations must meet the
standards set by the Department of Human Services to perform the
diagnostic assessment and treatment of drug dependency and must be
certified by the Department of Human Services. Wherever possible, a court
shall designate agencies or organizations to perform the diagnostic
assessment that are separate from those that may be designated to carry
out a program of treatment for drug dependency.
(2) Monitoring of a defendant’s progress under a diversion
agreement shall be the responsibility of the diagnostic assessment agency
or organization. It shall make a report to the court stating the
defendant’s successful completion or failure to complete all or any part
of the treatment program specified by the diagnostic assessment. The form
of the report shall be determined by agreement between the court and the
diagnostic assessment agency or organization. The court shall make the
report of the diagnostic assessment agency or organization that is
required by this subsection a part of the record of the case. [1989
c.1075 §11]Note: See note under 135.907.(1) At any time before the court dismisses with prejudice the
charge of possession of less than one ounce of marijuana, the court on
its own motion or on the motion of the district attorney may issue an
order requiring the defendant to appear and show cause why the court
should not terminate the diversion agreement. The order to show cause
shall state the reasons for the proposed termination and shall set an
appearance date.
(2) The order to show cause shall be served on the defendant and on
the defendant’s attorney, if any. Service may be made by first class
mail, postage paid, addressed to the defendant at the mailing address
shown on the diversion petition and agreement or at any other address
that the defendant provides in writing to the court.
(3) The court shall terminate the diversion agreement and continue
the offense proceeding if:
(a) At the hearing on the order to show cause, the court finds by a
preponderance of the evidence that any of the reasons for termination
described in this section exist; or
(b) The defendant fails to appear at the hearing on the order to
show cause.
(4) If the court terminates the diversion agreement and continues
the offense proceeding, the court:
(a) On the defendant’s motion and for good cause shown, may
reinstate the diversion agreement at any time before conviction,
acquittal or dismissal with prejudice.
(b) If the defendant is convicted, may take into account at time of
sentencing any partial fulfillment by the defendant of the terms of the
diversion agreement.
(5) The court shall terminate a diversion agreement under this
subsection for any of the following reasons:
(a) If the defendant has failed to fulfill the terms of the
diversion agreement.
(b) If the defendant did not qualify for the diversion agreement.
[1989 c.1075 §10]Note: See note under 135.907.(1) The filing fee paid by a defendant at the
time of filing a petition for a possession of marijuana diversion
agreement as provided in ORS 135.909 shall be $212 and shall be ordered
paid as follows if the petition is allowed:
(a) $112 to the Department of Revenue for deposit in the Criminal
Fine and Assessment Account; and
(b) $100 to be distributed as provided for the disposition of costs
under ORS 153.630.
(2) If less than the $212 filing fee is paid to the court by the
defendant under subsection (1) of this section, the money actually
received shall be allocated in the amounts provided first to the State
Treasurer and the remainder as provided for the disposition of costs
under ORS 153.630.
(3) In addition to the filing fee under subsection (1) of this
section, the court shall order the defendant to pay $90 directly to the
agency or organization providing the diagnostic assessment.
(4) The Chief Justice of the Oregon Supreme Court may require that
any or all fees distributed by circuit courts under this section be
distributed through the offices of the State Court Administrator.
(5) In addition to the filing fee provided for in subsection (1) of
this section, for the period commencing on August 3, 2005, and ending
December 31, 2006, if a petition for a possession of marijuana diversion
agreement as provided in ORS 135.909 is allowed in circuit court the
defendant shall pay a surcharge of $64. [1989 c.1075 §12; 1991 c.460 §19;
1991 c.818 §4; 1993 c.13 §3; 2003 c.737 §§62,63; 2005 c.702 §§73,74]Note: The amendments to 135.921 by section 75, chapter 702, Oregon
Laws 2005, become operative January 1, 2007. See section 76, chapter 702,
Oregon Laws 2005. The text that is operative on and after January 1,
2007, is set forth for the user’s convenience.
135.921. (1) The filing fee paid by a defendant at the time of
filing a petition for a possession of marijuana diversion agreement as
provided in ORS 135.909 shall be $233 and shall be ordered paid as
follows if the petition is allowed:
(a) $123 to the Department of Revenue for deposit in the Criminal
Fine and Assessment Account; and
(b) $110 to be distributed as provided for the disposition of costs
under ORS 153.630.
(2) If less than the $233 filing fee is paid to the court by the
defendant under subsection (1) of this section, the money actually
received shall be allocated in the amounts provided first to the State
Treasurer and the remainder as provided for the disposition of costs
under ORS 153.630.
(3) In addition to the filing fee under subsection (1) of this
section, the court shall order the defendant to pay $90 directly to the
agency or organization providing the diagnostic assessment.
(4) The Chief Justice of the Oregon Supreme Court may require that
any or all fees distributed by circuit courts under this section be
distributed through the offices of the State Court Administrator.Note: Section 97, chapter 702, Oregon Laws 2005, provides:
Sec. 97. All moneys collected on or after July 1, 2005, from the
surcharges imposed by the amendments to ORS 21.010, 21.040, 21.110,
21.111, 21.114, 21.270, 21.275, 21.310, 21.325, 34.340, 36.520, 36.615,
46.570, 105.130, 107.434, 108.130, 112.820, 114.515, 135.921, 138.560,
419B.555 and 813.240 by sections 2, 6, 10, 14, 18, 22, 26, 30, 34, 38,
42, 46, 50, 54, 58, 62, 66, 70, 74, 78, 82 and 86 of this 2005 Act shall
be deposited in the General Fund. [2005 c.702 §97]Note: See note under 135.907.(Bad Check) (1) As used in this section,
“bad check diversion program” means a program established under
subsection (2) of this section.
(2) A district attorney may establish a bad check diversion program
within the office of the district attorney.
(3) If a district attorney has established a bad check diversion
program, upon receipt of a case alleging a violation of ORS 165.065, the
district attorney shall determine if the case is appropriate to be
referred to the bad check diversion program. In determining whether to
refer the case to the bad check diversion program, the district attorney
shall consider, in addition to any other factors the district attorney
deems appropriate, the following:
(a) The amount of the bad check;
(b) Whether the person alleged to have negotiated the bad check has
a prior criminal record or has previously participated in a bad check
diversion program;
(c) The number of violations of ORS 165.065 the person is alleged
to have committed in the current or prior allegations;
(d) Whether current charges of violating ORS 165.065 are pending
against the person; and
(e) The strength of the evidence of intent to defraud the victim.
(4) When a case is referred to the bad check diversion program, the
district attorney shall send a notice to the person who is alleged to
have violated ORS 165.065. The notice must contain:
(a) The date and amount of the bad check;
(b) The name of the payee;
(c) The date before which the person is required to contact the
district attorney, or a person designated by the district attorney,
concerning the bad check; and
(d) The penalty for a violation of ORS 165.065.
(5) The district attorney may enter into a written agreement with
the person alleged to have violated ORS 165.065 to forgo prosecution of
the violation if the person agrees to do the following within a six-month
period:
(a) Complete a class conducted by the district attorney, or by a
private entity under contract to the district attorney, relating to
writing checks;
(b) Make full restitution to the payee; and
(c) Pay any collection fee imposed by the district attorney under
subsection (6) of this section.
(6) A district attorney may collect a fee if the district attorney
collects and processes a bad check. The amount of the fee may not exceed
$35 for each bad check in addition to the actual amount of any bank
charge incurred by the victim as a result of the bad check.
(7) The district attorney may not require a person alleged to have
violated ORS 165.065 to make an admission of guilt as a prerequisite to
participating in a bad check diversion program.
(8) The following are not admissible in any civil or criminal
action against a person arising from negotiating a bad check:
(a) A statement, or any information derived from the statement,
made by the person in connection with the determination of the person’s
eligibility to participate in a bad check diversion program.
(b) A statement, or any information derived from the statement,
made by the person after the person is determined to be eligible to
participate in a bad check diversion program.
(c) A statement, or any information derived from the statement,
made by the person while participating in a bad check diversion program.
(d) Information about the person’s participation in a bad check
diversion program. [2001 c.433 §1]Note: 135.925 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 135 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.EARLY DISPOSITION PROGRAMS To effectuate the purposes set
out in ORS 135.942, each local public safety coordinating council
established under ORS 423.560:
(1) Shall establish early disposition programs for first-time
offenders who have committed a nonperson offense and for persons charged
with probation violations. As used in this subsection, “nonperson
offense” means an offense other than:
(a) A Class A or B felony; and
(b) A person felony or person Class A misdemeanor, as those terms
are defined in the rules of the Oregon Criminal Justice Commission.
(2) May establish early disposition programs for other offenders.
[2001 c.635 §6]Note: 135.941 to 135.949 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 135 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation. The purposes of an early disposition
program are to:
(1) Hold offenders accountable for their actions;
(2) Ensure a prompt resolution of criminal matters;
(3) Protect the rights of the public and the offender;
(4) Maximize use of community resources to provide alternative
sanctions for criminal behavior; and
(5) Reduce the costs to the criminal justice system that are
incurred when traditional sanctions are the only option available to
district attorneys and courts. [2001 c.635 §7]Note: See note under 135.941. An early disposition program
established under ORS 135.941 must provide, but need not be limited to,
the following:
(1) Written criteria for eligibility to participate in the program.
(2) Victim notification and appearance.
(3) A process to ensure legal representation and provision of
discovery for offenders who are eligible for the early disposition
program.
(4) Specific evaluation criteria and an evaluation schedule. The
evaluation criteria must address, but need not be limited to, the
following:
(a) Cost avoidance;
(b) Cost savings; and
(c) Outcomes. [2001 c.635 §8]Note: See note under 135.941. (1)(a) A district attorney
may provide an offer and agreed disposition recommendation under an early
disposition program established under ORS 135.941 to a probationer at the
time of the first appearance of the probationer in court for a probation
violation.
(b) Unless extended by the court, an offer and agreed disposition
recommendation made under paragraph (a) of this subsection expire upon
completion of the appearance. Except for good cause, a court may not
extend an offer and agreed disposition recommendation under this
paragraph for more than seven days for a misdemeanor or 21 days for a
felony.
(2) If the court determines that the agreed disposition
recommendation is inappropriate in a particular case, the court shall so
advise the parties and allow the probationer an opportunity to withdraw
the admission. [2001 c.635 §14]Note: See note under 135.941.Nothing in ORS 135.941, 135.942,
135.943 and 135.948 or in the amendments to ORS 135.380, 135.385, 135.390
and 135.405 by sections 10 to 13, chapter 635, Oregon Laws 2001, prevents
the implementation or continuation of an early disposition program other
than one established under ORS 135.941. [2001 c.635 §15]Note: See note under 135.941.MEDIATING CRIMINAL OFFENSES
(1) Law enforcement agencies, city attorneys and district attorneys may
consider the availability and likely effectiveness of mediation in
determining whether to process and prosecute criminal charges. If it
appears that mediation is in the interests of justice and of benefit to
the offender, victim and community, the law enforcement agency, city
attorney or district attorney may propose mediation through a qualified
mediation program.
(2) In determining whether mediation is in the interests of justice
and of benefit to the offender, victim and community, the law enforcement
agency, city attorney or district attorney shall consider, at a minimum,
the following factors:
(a) The nature of the offense;
(b) Any special characteristics of the offender or the victim;
(c) Whether the offender has previously participated in mediation;
(d) Whether it is probable that the offender will cooperate with
and benefit from mediation;
(e) The recommendations of the victim;
(f) Whether a qualified mediation program is available or may be
made available;
(g) The impact of mediation on the community;
(h) The recommendations of the involved law enforcement agency; and
(i) Any mitigating circumstances.
(3) Mediation may not be used for:
(a) Disputes between family or household members, as defined in ORS
107.705, that involve conduct that would constitute assault under ORS
163.160, 163.165, 163.175 or 163.185 or strangulation under ORS 163.187;
or
(b) Offenses that involve sex crimes, as defined in ORS 181.594.
[1995 c.323 §1; 2003 c.577 §6]Note: 135.951 to 135.959 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 135 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation. (1) A defendant may participate
in mediation as part of a diversion agreement under ORS 135.881 to
135.901.
(2) A court, including, but not limited to, a justice court, may:
(a) Authorize, in a pretrial release order, contact between a
defendant and a victim as part of mediation between the defendant and the
victim;
(b) Consider mediation as the basis of a compromise of crimes under
ORS 135.703; or
(c) Include participation in mediation as a condition of probation
under ORS 137.540.
(3) A district attorney or city attorney:
(a) May suspend prosecution of a case referred to mediation and
dismiss the charges in the referred case if the defendant successfully
completes the terms of the agreement resulting from the mediation; or
(b) May include, with a defendant, mediation between the defendant
and the victim as part of a plea agreement entered into under ORS 135.405.
(4) A county juvenile department may include mediation between a
child and a victim as one of the terms of an informal disposition
agreement under ORS 419C.230.
(5) The Department of Corrections may use mediation for the
purposes of rehabilitation and treatment.
(6) Mediation may be used in any other appropriate manner in
resolving disputes involving criminal matters. [1995 c.323 §2]Note: See note under 135.951.(1) Law enforcement agencies, district attorneys
and city attorneys may inform:
(a) The victim of a crime of:
(A) Any mediation opportunities that may be available to the victim
in the victim’s community, within or as an alternative to the criminal
justice system; and
(B) How to request mediation; and
(b) A person charged with a crime of:
(A) Any mediation opportunities that may be available to the person
in the person’s community, within or as an alternative to the criminal
justice system; and
(B) How to request mediation.
(2) No party to a dispute may be compelled to participate in
mediation. [1995 c.323 §3]Note: See note under 135.951. A
law enforcement agency, city attorney, district attorney, county juvenile
department or court may contract with dispute resolution programs to
provide mediation services under ORS 135.951 or 135.953. The programs
must meet the standards for dispute resolution programs established by
the Dean of the University of Oregon School of Law under ORS 36.175.
[1995 c.323 §5; 2003 c.791 §§26,26a; 2005 c.817 §5]Note: See note under 135.951.MISCELLANEOUS(1) If the victim or a
witness requests, the court shall order that the victim’s or witness’s
address and phone number not be given to the defendant unless good cause
is shown to the court.
(2) If contacted by the defense, the victim must be clearly
informed by the defendant’s attorney, either in person or in writing, of
the identity and capacity of the person contacting the victim, that the
victim does not have to talk to the defendant’s attorney, or other agents
of the defendant, or provide other discovery unless the victim wishes,
and that the victim may have a district attorney present during any
interview.
(3) A victim may not be required to be interviewed or deposed by or
give discovery to the defendant or the defendant’s attorney unless the
victim consents. This subsection does not prohibit the defendant from:
(a) Subpoenaing or examining the victim at trial or in a pretrial
proceeding when the purpose is other than for discovery; or
(b) Subpoenaing books, papers or documents as provided in ORS
136.580.
(4)(a) Any pretrial release order must prohibit any contact with
the victim, either directly or indirectly, unless specifically authorized
by the court having jurisdiction over the criminal charge. This
subsection shall not limit contact by the defense attorney, or an agent
of the defense attorney, other than the defendant, in the manner set
forth in subsection (2).
(b) If a victim notifies the district attorney that the defendant,
either directly or indirectly threatened or intimidated the victim, the
district attorney shall notify the court with jurisdiction over the
criminal matter and the defense attorney. If the defendant is not in
custody and the court finds there is probable cause to believe the victim
has been threatened or intimidated by the defendant, either directly or
indirectly, the court shall immediately issue an order to show cause why
defendant’s release status should not be revoked. After conducting such
hearing as it deems appropriate, if the court finds that the victim has
been threatened or intimidated by the defendant, either directly or
indirectly, the defendant’s release status shall be revoked and the
defendant shall be held in custody with a security amount set in an
amount sufficient to ensure the safety of the victim and the community.
[1987 c.2 §3; 1997 c.313 §7; 1999 c.1051 §251](1) By January 1, 1990, the Director of the Department of
Corrections shall compile and thereafter maintain a directory of public
and private rehabilitative programs known and available to corrections
agencies of the state and of each county. For purposes of this
subsection, “rehabilitative program” means a planned activity, in a
custodial or noncustodial context, designed and implemented to treat drug
or alcohol abuse, to prevent criminal sexual behavior, to modify a
propensity to commit crimes against persons or property or to achieve
restitution for losses caused by an offender and includes programs that
employ the device of mediation between the victim and offender. The
director shall include:
(a) The name, address and telephone number of the program and the
identity of its director or other principal contact;
(b) The geographical jurisdiction of the program;
(c) The types of offenders that the program claims to be able to
serve and the criteria that the program applies in selecting or
soliciting cases;
(d) The claims of the program regarding its effectiveness in
reducing recidivism, achieving restitution or otherwise serving
correctional objectives;
(e) An assessment by the relevant corrections agency of the actual
effectiveness of the program; and
(f) The capacity of the program for new cases.
(2) The Director of the Department of Corrections shall make the
directory available to the Oregon Criminal Justice Commission and to
judges in a form that will allow sentencing judges to determine what
rehabilitative programs are appropriate and available to the offender
during any period of probation, imprisonment or local incarceration and
post-prison supervision. The Director of the Department of Corrections
shall also make the directory available to its employees who prepare
presentence reports and proposed release plans for submission to the
State Board of Parole and Post-Prison Supervision.
(3) The directory shall be updated as frequently as is practical,
but no less often than every six months.
(4) The Director of the Department of Corrections shall prepare a
plan for monitoring the scope and measuring the effectiveness of existing
rehabilitative programs and shall deliver that plan to the Oregon
Criminal Justice Commission no later than January 1, 1990. [1989 c.790
§7a]Note: 135.980 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 135 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.PENALTIESViolation of ORS 135.155 is punishable as a
contempt by the court having jurisdiction of the crime charged against
the defendant. [Formerly 133.990]
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