As used in chapter 743, Oregon Laws
1971, and ORS 166.635, unless the context requires otherwise:
(1) “Dangerous weapon” means any weapon, device, instrument,
material or substance which under the circumstances in which it is used,
attempted to be used or threatened to be used, is readily capable of
causing death or serious physical injury.
(2) “Deadly weapon” means any instrument, article or substance
specifically designed for and presently capable of causing death or
serious physical injury.
(3) “Deadly physical force” means physical force that under the
circumstances in which it is used is readily capable of causing death or
serious physical injury.
(4) “Peace officer” means a sheriff, constable, marshal, municipal
police officer, member of the Oregon State Police, investigator of the
Criminal Justice Division of the Department of Justice or investigator of
a district attorney’s office and such other persons as may be designated
by law.
(5) “Person” means a human being and, where appropriate, a public
or private corporation, an unincorporated association, a partnership, a
government or a governmental instrumentality.
(6) “Physical force” includes, but is not limited to, the use of an
electrical stun gun, tear gas or mace.
(7) “Physical injury” means impairment of physical condition or
substantial pain.
(8) “Serious physical injury” means physical injury which creates a
substantial risk of death or which causes serious and protracted
disfigurement, protracted impairment of health or protracted loss or
impairment of the function of any bodily organ.
(9) “Possess” means to have physical possession or otherwise to
exercise dominion or control over property.
(10) “Public place” means a place to which the general public has
access and includes, but is not limited to, hallways, lobbies and other
parts of apartment houses and hotels not constituting rooms or apartments
designed for actual residence, and highways, streets, schools, places of
amusement, parks, playgrounds and premises used in connection with public
passenger transportation. [1971 c.743 §3; 1973 c.139 §1; 1979 c.656 §3;
1991 c.67 §33; 1993 c.625 §4; 1995 c.651 §5]Note: Legislative Counsel has substituted “chapter 743, Oregon Laws
1971,” for the words “this Act” in sections 2, 3, 4, 5, 6, 7, 19, 20, 21
and 36, chapter 743, Oregon Laws 1971, compiled as 161.015, 161.025,
161.035, 161.045, 161.055, 161.085, 161.195, 161.200, 161.205 and
161.295. Specific ORS references have not been substituted, pursuant to
173.160. These sections may be determined by referring to the 1971
Comparative Section Table located in Volume 20 of ORS. (1) The general
purposes of chapter 743, Oregon Laws 1971, are:
(a) To insure the public safety by preventing the commission of
offenses through the deterrent influence of the sentences authorized, the
correction and rehabilitation of those convicted, and their confinement
when required in the interests of public protection.
(b) To forbid and prevent conduct that unjustifiably and
inexcusably inflicts or threatens substantial harm to individual or
public interests.
(c) To give fair warning of the nature of the conduct declared to
constitute an offense and of the sentences authorized upon conviction.
(d) To define the act or omission and the accompanying mental state
that constitute each offense and limit the condemnation of conduct as
criminal when it is without fault.
(e) To differentiate on reasonable grounds between serious and
minor offenses.
(f) To prescribe penalties which are proportionate to the
seriousness of offenses and which permit recognition of differences in
rehabilitation possibilities among individual offenders.
(g) To safeguard offenders against excessive, disproportionate or
arbitrary punishment.
(2) The rule that a penal statute is to be strictly construed shall
not apply to chapter 743, Oregon Laws 1971, or any of its provisions.
Chapter 743, Oregon Laws 1971, shall be construed according to the fair
import of its terms, to promote justice and to effect the purposes stated
in subsection (1) of this section. [1971 c.743 §2]Note: See note under 161.015. (1) Chapter 743, Oregon Laws
1971, shall govern the construction of and punishment for any offense
defined in chapter 743, Oregon Laws 1971, and committed after January 1,
1972, as well as the construction and application of any defense to a
prosecution for such an offense.
(2) Except as otherwise expressly provided, or unless the context
requires otherwise, the provisions of chapter 743, Oregon Laws 1971,
shall govern the construction of and punishment for any offense defined
outside chapter 743, Oregon Laws 1971, and committed after January 1,
1972, as well as the construction and application of any defense to a
prosecution for such an offense.
(3) Chapter 743, Oregon Laws 1971, shall not apply to or govern the
construction of and punishment for any offense committed before January
1, 1972, or the construction and application of any defense to a
prosecution for such an offense. Such an offense shall be construed and
punished according to the law existing at the time of the commission of
the offense in the same manner as if chapter 743, Oregon Laws 1971, had
not been enacted.
(4) When all or part of a criminal statute is amended or repealed,
the criminal statute or part thereof so amended or repealed remains in
force for the purpose of authorizing the accusation, prosecution,
conviction and punishment of a person who violated the statute or part
Note: See note under 161.015. (1) Except as otherwise expressly
provided, the procedure governing the accusation, prosecution, conviction
and punishment of offenders and offenses is not regulated by chapter 743,
Oregon Laws 1971, but by the criminal procedure statutes.
(2) Chapter 743, Oregon Laws 1971, does not affect any power
conferred by law upon a court-martial or other military authority or
officer to prosecute and punish conduct and offenders violating military
codes or laws.
(3) Chapter 743, Oregon Laws 1971, does not bar, suspend or
otherwise affect any right or liability to damages, penalty, forfeiture
or other remedy authorized by law to be recovered or enforced in a civil
action, regardless of whether the conduct involved in the proceeding
constitutes an offense defined in chapter 743, Oregon Laws 1971.
(4) No conviction of a person for an offense works a forfeiture of
the property of the person, except in cases where a forfeiture is
expressly provided by law. [1971 c.743 §6] (1) When a “defense,” other
than an “affirmative defense” as defined in subsection (2) of this
section, is raised at a trial, the state has the burden of disproving the
defense beyond a reasonable doubt.
(2) When a defense, declared to be an “affirmative defense” by
chapter 743, Oregon Laws 1971, is raised at a trial, the defendant has
the burden of proving the defense by a preponderance of the evidence.
(3) The state is not required to negate a defense as defined in
subsection (1) of this section unless it is raised by the defendant.
“Raised by the defendant” means either notice in writing to the state
before commencement of trial or affirmative evidence by a defense witness
in the defendant’s case in chief. [1971 c.743 §4](1) When
the same conduct or criminal episode violates two or more statutory
provisions and each provision requires proof of an element that the
others do not, there are as many separately punishable offenses as there
are separate statutory violations.
(2) When the same conduct or criminal episode, though violating
only one statutory provision involves two or more victims, there are as
many separately punishable offenses as there are victims. However, two or
more persons owning joint interests in real or personal property shall be
considered a single victim for purposes of determining the number of
separately punishable offenses if the property is the subject of one of
the following crimes:
(a) Theft as defined in ORS 164.015.
(b) Unauthorized use of a vehicle as defined in ORS 164.135.
(c) Criminal possession of rented or leased personal property as
defined in ORS 164.140.
(d) Burglary as defined in ORS 164.215 or 164.225.
(e) Criminal trespass as defined in ORS 164.243, 164.245, 164.255,
164.265 or 164.278.
(f) Arson and related offenses as defined in ORS 164.315, 164.325
or 164.335.
(g) Forgery and related offenses as defined in ORS 165.002 to
165.070.
(3) When the same conduct or criminal episode violates only one
statutory provision and involves only one victim, but nevertheless
involves repeated violations of the same statutory provision against the
same victim, there are as many separately punishable offenses as there
are violations, except that each violation, to be separately punishable
under this subsection, must be separated from other such violations by a
sufficient pause in the defendant’s criminal conduct to afford the
defendant an opportunity to renounce the criminal intent. Each method of
engaging in deviate sexual intercourse as defined in ORS 163.305, and
each method of engaging in unlawful sexual penetration as defined in ORS
163.408 and 163.411 shall constitute separate violations of their
respective statutory provisions for purposes of determining the number of
statutory violations. [1987 c.2 §13; 1991 c.386 §9; 2003 c.629 §4] As used in chapter
743, Oregon Laws 1971, and ORS 166.635, unless the context requires
otherwise:
(1) “Act” means a bodily movement.
(2) “Voluntary act” means a bodily movement performed consciously
and includes the conscious possession or control of property.
(3) “Omission” means a failure to perform an act the performance of
which is required by law.
(4) “Conduct” means an act or omission and its accompanying mental
state.
(5) “To act” means either to perform an act or to omit to perform
an act.
(6) “Culpable mental state” means intentionally, knowingly,
recklessly or with criminal negligence as these terms are defined in
subsections (7), (8), (9) and (10) of this section.
(7) “Intentionally” or “with intent,” when used with respect to a
result or to conduct described by a statute defining an offense, means
that a person acts with a conscious objective to cause the result or to
engage in the conduct so described.
(8) “Knowingly” or “with knowledge,” when used with respect to
conduct or to a circumstance described by a statute defining an offense,
means that a person acts with an awareness that the conduct of the person
is of a nature so described or that a circumstance so described exists.
(9) “Recklessly,” when used with respect to a result or to a
circumstance described by a statute defining an offense, means that a
person is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the circumstance
exists. The risk must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of care that a reasonable
person would observe in the situation.
(10) “Criminal negligence” or “criminally negligent,” when used
with respect to a result or to a circumstance described by a statute
defining an offense, means that a person fails to be aware of a
substantial and unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature and degree that the
failure to be aware of it constitutes a gross deviation from the standard
of care that a reasonable person would observe in the situation. [1971
c.743 §7; 1973 c.139 §2] (1) The minimal requirement
for criminal liability is the performance by a person of conduct which
includes a voluntary act or the omission to perform an act which the
person is capable of performing.
(2) Except as provided in ORS 161.105, a person is not guilty of an
offense unless the person acts with a culpable mental state with respect
to each material element of the offense that necessarily requires a
culpable mental state. [1971 c.743 §8]
(1) Notwithstanding ORS 161.095, a culpable mental state is
not required if:
(a) The offense constitutes a violation, unless a culpable mental
state is expressly included in the definition of the offense; or
(b) An offense defined by a statute outside the Oregon Criminal
Code clearly indicates a legislative intent to dispense with any culpable
mental state requirement for the offense or for any material element
thereof.
(2) Notwithstanding any other existing law, and unless a statute
enacted after January 1, 1972, otherwise provides, an offense defined by
a statute outside the Oregon Criminal Code that requires no culpable
mental state constitutes a violation.
(3) Although an offense defined by a statute outside the Oregon
Criminal Code requires no culpable mental state with respect to one or
more of its material elements, the culpable commission of the offense may
be alleged and proved, in which case criminal negligence constitutes
sufficient culpability, and the classification of the offense and the
authorized sentence shall be determined by ORS 161.505 to 161.605 and
161.615 to 161.655. [1971 c.743 §9] (1)
If a statute defining an offense prescribes a culpable mental state but
does not specify the element to which it applies, the prescribed culpable
mental state applies to each material element of the offense that
necessarily requires a culpable mental state.
(2) Except as provided in ORS 161.105, if a statute defining an
offense does not prescribe a culpable mental state, culpability is
nonetheless required and is established only if a person acts
intentionally, knowingly, recklessly or with criminal negligence.
(3) If the definition of an offense prescribes criminal negligence
as the culpable mental state, it is also established if a person acts
intentionally, knowingly or recklessly. When recklessness suffices to
establish a culpable mental state, it is also established if a person
acts intentionally or knowingly. When acting knowingly suffices to
establish a culpable mental state, it is also established if a person
acts intentionally.
(4) Knowledge that conduct constitutes an offense, or knowledge of
the existence, meaning or application of the statute defining an offense,
is not an element of an offense unless the statute clearly so provides.
[1971 c.743 §10]
(1) The use of drugs or controlled substances,
dependence on drugs or controlled substances or voluntary intoxication
shall not, as such, constitute a defense to a criminal charge, but in any
prosecution for an offense, evidence that the defendant used drugs or
controlled substances, or was dependent on drugs or controlled
substances, or was intoxicated may be offered by the defendant whenever
it is relevant to negative an element of the crime charged.
(2) When recklessness establishes an element of the offense, if the
defendant, due to the use of drugs or controlled substances, dependence
on drugs or controlled substances or voluntary intoxication, is unaware
of a risk of which the defendant would have been aware had the defendant
been not intoxicated, not using drugs or controlled substances, or not
dependent on drugs or controlled substances, such unawareness is
immaterial. [1971 c.743 §11; 1973 c.697 §13; 1979 c.744 §6]
A person is guilty of a crime
if it is committed by the person’s own conduct or by the conduct of
another for which the person is criminally liable, or both. [1971 c.743
§12] A person is
criminally liable for the conduct of another person constituting a crime
if:
(1) The person is made criminally liable by the statute defining
the crime; or
(2) With the intent to promote or facilitate the commission of the
crime the person:
(a) Solicits or commands such other person to commit the crime; or
(b) Aids or abets or agrees or attempts to aid or abet such other
person in planning or committing the crime; or
(c) Having a legal duty to prevent the commission of the crime,
fails to make an effort the person is legally required to make. [1971
c.743 §13]In any prosecution for a crime in which criminal liability is
based upon the conduct of another person pursuant to ORS 161.155, it is
no defense that:
(1) Such other person has not been prosecuted for or convicted of
any crime based upon the conduct in question or has been convicted of a
different crime or degree of crime; or
(2) The crime, as defined, can be committed only by a particular
class or classes of persons to which the defendant does not belong, and
the defendant is for that reason legally incapable of committing the
crime in an individual capacity. [1971 c.743 §14]
Except as otherwise provided by the statute defining the crime, a person
is not criminally liable for conduct of another constituting a crime if:
(1) The person is a victim of that crime; or
(2) The crime is so defined that the conduct of the person is
necessarily incidental thereto. [1971 c.743 §15] (1) A corporation is
guilty of an offense if:
(a) The conduct constituting the offense is engaged in by an agent
of the corporation while acting within the scope of employment and in
behalf of the corporation and the offense is a misdemeanor or a
violation, or the offense is one defined by a statute that clearly
indicates a legislative intent to impose criminal liability on a
corporation; or
(b) The conduct constituting the offense consists of an omission to
discharge a specific duty of affirmative performance imposed on
corporations by law; or
(c) The conduct constituting the offense is engaged in, authorized,
solicited, requested, commanded or knowingly tolerated by the board of
directors or by a high managerial agent acting within the scope of
employment and in behalf of the corporation.
(2) As used in this section:
(a) “Agent” means any director, officer or employee of a
corporation, or any other person who is authorized to act in behalf of
the corporation.
(b) “High managerial agent” means an officer of a corporation who
exercises authority with respect to the formulation of corporate policy
or the supervision in a managerial capacity of subordinate employees, or
any other agent in a position of comparable authority. [1971 c.743 §16]
A person is criminally liable for conduct constituting an offense which
the person performs or causes to be performed in the name of or in behalf
of a corporation to the same extent as if such conduct were performed in
the person’s own name or behalf. [1971 c.743 §17]JUSTIFICATION In any prosecution for an
offense, justification, as defined in ORS 161.195 to 161.275, is a
defense. [1971 c.743 §18] (1) Unless inconsistent with
other provisions of chapter 743, Oregon Laws 1971, defining justifiable
use of physical force, or with some other provision of law, conduct which
would otherwise constitute an offense is justifiable and not criminal
when it is required or authorized by law or by a judicial decree or is
performed by a public servant in the reasonable exercise of official
powers, duties or functions.
(2) As used in subsection (1) of this section, “laws and judicial
decrees” include but are not limited to:
(a) Laws defining duties and functions of public servants;
(b) Laws defining duties of private citizens to assist public
servants in the performance of certain of their functions;
(c) Laws governing the execution of legal process;
(d) Laws governing the military services and conduct of war; and
(e) Judgments and orders of courts. [1971 c.743 §19]Note: See note under 161.015. (1) Unless inconsistent with other
provisions of chapter 743, Oregon Laws 1971, defining justifiable use of
physical force, or with some other provision of law, conduct which would
otherwise constitute an offense is justifiable and not criminal when:
(a) That conduct is necessary as an emergency measure to avoid an
imminent public or private injury; and
(b) The threatened injury is of such gravity that, according to
ordinary standards of intelligence and morality, the desirability and
urgency of avoiding the injury clearly outweigh the desirability of
avoiding the injury sought to be prevented by the statute defining the
offense in issue.
(2) The necessity and justifiability of conduct under subsection
(1) of this section shall not rest upon considerations pertaining only to
the morality and advisability of the statute, either in its general
application or with respect to its application to a particular class of
cases arising thereunder. [1971 c.743 §20]Note: See note under 161.015. The use of physical force
upon another person that would otherwise constitute an offense is
justifiable and not criminal under any of the following circumstances:
(1) A parent, guardian or other person entrusted with the care and
supervision of a minor or an incompetent person may use reasonable
physical force upon such minor or incompetent person when and to the
extent the person reasonably believes it necessary to maintain discipline
or to promote the welfare of the minor or incompetent person. A teacher
may use reasonable physical force upon a student when and to the extent
the teacher reasonably believes it necessary to maintain order in the
school or classroom or at a school activity or event, whether or not it
is held on school property.
(2) An authorized official of a jail, prison or correctional
facility may use physical force when and to the extent that the official
reasonably believes it necessary to maintain order and discipline or as
is authorized by law.
(3) A person responsible for the maintenance of order in a common
carrier of passengers, or a person acting under the direction of the
person, may use physical force when and to the extent that the person
reasonably believes it necessary to maintain order, but the person may
use deadly physical force only when the person reasonably believes it
necessary to prevent death or serious physical injury.
(4) A person acting under a reasonable belief that another person
is about to commit suicide or to inflict serious physical self-injury may
use physical force upon that person to the extent that the person
reasonably believes it necessary to thwart the result.
(5) A person may use physical force upon another person in
self-defense or in defending a third person, in defending property, in
making an arrest or in preventing an escape, as hereafter prescribed in
chapter 743, Oregon Laws 1971. [1971 c.743 §21; 1981 c.246 §1]Note: See note under 161.015. Except as
provided in ORS 161.215 and 161.219, a person is justified in using
physical force upon another person for self-defense or to defend a third
person from what the person reasonably believes to be the use or imminent
use of unlawful physical force, and the person may use a degree of force
which the person reasonably believes to be necessary for the purpose.
[1971 c.743 §22]Notwithstanding ORS 161.209, a person is not justified in using
physical force upon another person if:
(1) With intent to cause physical injury or death to another
person, the person provokes the use of unlawful physical force by that
person; or
(2) The person is the initial aggressor, except that the use of
physical force upon another person under such circumstances is
justifiable if the person withdraws from the encounter and effectively
communicates to the other person the intent to do so, but the latter
nevertheless continues or threatens to continue the use of unlawful
physical force; or
(3) The physical force involved is the product of a combat by
agreement not specifically authorized by law. [1971 c.743 §24]Notwithstanding the provisions of ORS 161.209, a person is not
justified in using deadly physical force upon another person unless the
person reasonably believes that the other person is:
(1) Committing or attempting to commit a felony involving the use
or threatened imminent use of physical force against a person; or
(2) Committing or attempting to commit a burglary in a dwelling; or
(3) Using or about to use unlawful deadly physical force against a
person. [1971 c.743 §23] (1) A person
in lawful possession or control of premises is justified in using
physical force upon another person when and to the extent that the person
reasonably believes it necessary to prevent or terminate what the person
reasonably believes to be the commission or attempted commission of a
criminal trespass by the other person in or upon the premises.
(2) A person may use deadly physical force under the circumstances
set forth in subsection (1) of this section only:
(a) In defense of a person as provided in ORS 161.219; or
(b) When the person reasonably believes it necessary to prevent the
commission of arson or a felony by force and violence by the trespasser.
(3) As used in subsection (1) and subsection (2)(a) of this
section, “premises” includes any building as defined in ORS 164.205 and
any real property. As used in subsection (2)(b) of this section,
“premises” includes any building. [1971 c.743 §25] A person is
justified in using physical force, other than deadly physical force, upon
another person when and to the extent that the person reasonably believes
it to be necessary to prevent or terminate the commission or attempted
commission by the other person of theft or criminal mischief of property.
[1971 c.743 §26]Except as provided in ORS 161.239, a peace officer is
justified in using physical force upon another person only when and to
the extent that the peace officer reasonably believes it necessary:
(1) To make an arrest or to prevent the escape from custody of an
arrested person unless the peace officer knows that the arrest is
unlawful; or
(2) For self-defense or to defend a third person from what the
peace officer reasonably believes to be the use or imminent use of
physical force while making or attempting to make an arrest or while
preventing or attempting to prevent an escape. [1971 c.743 §27](1) Notwithstanding the provisions of ORS 161.235,
a peace officer may use deadly physical force only when the peace officer
reasonably believes that:
(a) The crime committed by the person was a felony or an attempt to
commit a felony involving the use or threatened imminent use of physical
force against a person; or
(b) The crime committed by the person was kidnapping, arson, escape
in the first degree, burglary in the first degree or any attempt to
commit such a crime; or
(c) Regardless of the particular offense which is the subject of
the arrest or attempted escape, the use of deadly physical force is
necessary to defend the peace officer or another person from the use or
threatened imminent use of deadly physical force; or
(d) The crime committed by the person was a felony or an attempt to
commit a felony and under the totality of the circumstances existing at
the time and place, the use of such force is necessary; or
(e) The officer’s life or personal safety is endangered in the
particular circumstances involved.
(2) Nothing in subsection (1) of this section constitutes
justification for reckless or criminally negligent conduct by a peace
officer amounting to an offense against or with respect to innocent
persons whom the peace officer is not seeking to arrest or retain in
custody. [1971 c.743 §28]
(1) For the purposes of ORS 161.235 and 161.239, a reasonable belief that
a person has committed an offense means a reasonable belief in facts or
circumstances which if true would in law constitute an offense. If the
believed facts or circumstances would not in law constitute an offense,
an erroneous though not unreasonable belief that the law is otherwise
does not render justifiable the use of force to make an arrest or to
prevent an escape from custody.
(2) A peace officer who is making an arrest is justified in using
the physical force prescribed in ORS 161.235 and 161.239 unless the
arrest is unlawful and is known by the officer to be unlawful. [1971
c.743 §29](1) Except as provided in subsection (2) of this section, a
person who has been directed by a peace officer to assist the peace
officer to make an arrest or to prevent an escape from custody is
justified in using physical force when and to the extent that the person
reasonably believes that force to be necessary to carry out the peace
officer’s direction.
(2) A person who has been directed to assist a peace officer under
circumstances specified in subsection (1) of this section may use deadly
physical force to make an arrest or to prevent an escape only when:
(a) The person reasonably believes that force to be necessary for
self-defense or to defend a third person from what the person reasonably
believes to be the use or imminent use of deadly physical force; or
(b) The person is directed or authorized by the peace officer to
use deadly physical force unless the person knows that the peace officer
is not authorized to use deadly physical force under the circumstances.
[1971 c.743 §30](1) Except as provided in subsection (2) of this section, a
private person acting on the person’s own account is justified in using
physical force upon another person when and to the extent that the person
reasonably believes it necessary to make an arrest or to prevent the
escape from custody of an arrested person whom the person has arrested
under ORS 133.225.
(2) A private person acting under the circumstances prescribed in
subsection (1) of this section is justified in using deadly physical
force only when the person reasonably believes it necessary for
self-defense or to defend a third person from what the person reasonably
believes to be the use or imminent use of deadly physical force. [1971
c.743 §31; 1973 c.836 §339] A
person may not use physical force to resist an arrest by a peace officer
who is known or reasonably appears to be a peace officer, whether the
arrest is lawful or unlawful. [1971 c.743 §32] (1) A guard or
other peace officer employed in a correctional facility, as that term is
defined in ORS 162.135, is justified in using physical force, including
deadly physical force, when and to the extent that the guard or peace
officer reasonably believes it necessary to prevent the escape of a
prisoner from a correctional facility.
(2) Notwithstanding subsection (1) of this section, a guard or
other peace officer employed by the Department of Corrections may not use
deadly physical force in the circumstances described in ORS 161.267 (3).
[1971 c.743 §33; 2005 c.431 §3](1) As used in this section:
(a) “Colocated minimum security facility” means a Department of
Corrections institution that has been designated by the Department of
Corrections as a minimum security facility and has been located by the
department on the grounds of a medium or higher security Department of
Corrections institution.
(b) “Department of Corrections institution” has the meaning given
that term in ORS 421.005.
(c) “Stand-alone minimum security facility” means a Department of
Corrections institution that has been designated by the department as a
minimum security facility and that has been located by the department
separate and apart from other Department of Corrections institutions.
(2) A corrections officer or other official employed by the
Department of Corrections is justified in using physical force, including
deadly physical force, when and to the extent that the officer or
official reasonably believes it necessary to:
(a) Prevent the escape of an inmate from a Department of
Corrections institution, including the grounds of the institution, or
from custody;
(b) Maintain or restore order and discipline in a Department of
Corrections institution, or any part of the institution, in the event of
a riot, disturbance or other occurrence that threatens the safety of
inmates, department employees or other persons; or
(c) Prevent serious physical injury to or the death of the officer,
official or another person.
(3) Notwithstanding subsection (2)(a) of this section, a
corrections officer or other official employed by the department may not
use deadly physical force to prevent the escape of an inmate from:
(a) A stand-alone minimum security facility;
(b) A colocated minimum security facility, if the corrections
officer or other official knows that the inmate has been classified by
the department as minimum custody; or
(c) Custody outside of a Department of Corrections institution:
(A) While the inmate is assigned to an inmate work crew; or
(B) During transport or other supervised activity, if the inmate is
classified by the department as minimum custody and the inmate is not
being transported or supervised with an inmate who has been classified by
the department as medium or higher custody.
(4) Nothing in this section limits the authority of a person to use
physical force under ORS 161.205 (2) or 161.265. [2005 c.431 §2] (1) The commission of acts which would otherwise
constitute an offense, other than murder, is not criminal if the actor
engaged in the proscribed conduct because the actor was coerced to do so
by the use or threatened use of unlawful physical force upon the actor or
a third person, which force or threatened force was of such nature or
degree to overcome earnest resistance.
(2) Duress is not a defense for one who intentionally or recklessly
places oneself in a situation in which it is probable that one will be
subjected to duress.
(3) It is not a defense that a spouse acted on the command of the
other spouse, unless the spouse acted under such coercion as would
establish a defense under subsection (1) of this section. [1971 c.743
§34; 1987 c.158 §22] (1) The commission of acts which would
otherwise constitute an offense is not criminal if the actor engaged in
the proscribed conduct because the actor was induced to do so by a law
enforcement official, or by a person acting in cooperation with a law
enforcement official, for the purpose of obtaining evidence to be used
against the actor in a criminal prosecution.
(2) As used in this section, “induced” means that the actor did not
contemplate and would not otherwise have engaged in the proscribed
conduct. Merely affording the actor an opportunity to commit an offense
does not constitute entrapment. [1971 c.743 §35]RESPONSIBILITY (1) A person who is tried as
an adult in a court of criminal jurisdiction is not criminally
responsible for any conduct which occurred when the person was under 12
years of age.
(2) Incapacity due to immaturity, as defined in subsection (1) of
this section, is a defense. [Formerly 161.380; 1995 c.422 §58](1) A person is guilty except for insanity if, as a result of
mental disease or defect at the time of engaging in criminal conduct, the
person lacks substantial capacity either to appreciate the criminality of
the conduct or to conform the conduct to the requirements of law.
(2) As used in chapter 743, Oregon Laws 1971, the terms “mental
disease or defect” do not include an abnormality manifested only by
repeated criminal or otherwise antisocial conduct, nor do they include
any abnormality constituting solely a personality disorder. [1971 c.743
§36; 1983 c.800 §1]Note: See note under 161.015.
Evidence that the actor suffered from a mental disease or defect is
admissible whenever it is relevant to the issue of whether the actor did
or did not have the intent which is an element of the crime. [1971 c.743
§37] Mental disease or
defect constituting insanity under ORS 161.295 is an affirmative defense.
[1971 c.743 §38; 1983 c.800 §2] (1) No evidence
may be introduced by the defendant on the issue of insanity under ORS
161.295, unless the defendant gives notice of intent to do so in the
manner provided in subsection (3) of this section.
(2) The defendant may not introduce in the case in chief expert
testimony regarding partial responsibility or diminished capacity under
ORS 161.300 unless the defendant gives notice of intent to do so in the
manner provided in subsection (3) of this section.
(3) A defendant who is required under subsection (1) or (2) of this
section to give notice shall file a written notice of purpose at the time
the defendant pleads not guilty. The defendant may file such notice at
any time after the plea but before trial when just cause for failure to
file the notice at the time of making the plea is made to appear to the
satisfaction of the court. If the defendant fails to file notice, the
defendant shall not be entitled to introduce evidence for the
establishment of a defense under ORS 161.295 or 161.300 unless the court,
in its discretion, permits such evidence to be introduced where just
cause for failure to file the notice is made to appear. [1971 c.743
§§39,40,41; 1983 c.800 §3; 2003 c.127 §2] When the issue of insanity
under ORS 161.295 is submitted to be determined by a jury in the trial
court, the court shall instruct the jury in accordance with ORS 161.327.
[1983 c.800 §16]Upon filing of notice or the introduction of evidence by the
defendant as provided in ORS 161.309 (3), the state shall have the right
to have at least one psychiatrist or licensed psychologist of its
selection examine the defendant. The state shall file notice with the
court of its intention to have the defendant examined. Upon filing of the
notice, the court, in its discretion, may order the defendant committed
to a state institution or any other suitable facility for observation and
examination as it may designate for a period not to exceed 30 days. If
the defendant objects to the examiner chosen by the state, the court for
good cause shown may direct the state to select a different examiner.
[1971 c.743 §42; 1977 c.380 §3] When the
defendant is found guilty except for insanity under ORS 161.295, the
verdict and judgment shall so state. [1971 c.743 §43; 1977 c.380 §4; 1983
c.800 §4](1) After entry of judgment of
guilty except for insanity, the court shall, on the basis of the evidence
given at the trial or at a separate hearing, if requested by either
party, make an order as provided in ORS 161.327 or 161.329, whichever is
appropriate.
(2) If the court makes an order as provided in ORS 161.327, it
shall also:
(a) Determine on the record the offense of which the person
otherwise would have been convicted;
(b) State on the record the mental disease or defect on which the
defendant relied for the guilty except for insanity defense; and
(c) Make specific findings on whether there is a victim of the
crime for which the defendant has been found guilty except for insanity
and, if so, whether the victim wishes to be notified, under ORS 161.326
(2), of any Psychiatric Security Review Board hearings concerning the
defendant and of any conditional release, discharge or escape of the
defendant.
(3) The court shall include any such findings in its order.
(4) Except under circumstances described in ORS 137.076 (4),
whenever a defendant charged with any offense listed in ORS 137.076 (1)
has been found guilty of that offense except for insanity, the court
shall, in any order entered under ORS 161.327 or 161.329, direct the
defendant to submit to the obtaining of a blood or buccal sample in the
manner provided in ORS 137.076. [1971 c.743 §44; 1977 c.380 §5; 1979
c.885 §1; 1981 c.711 §1; 1983 c.800 §5; 1991 c.669 §8; 1999 c.97 §2; 2005
c.337 §1](1) Whenever a person already under the board’s
jurisdiction commits a new crime, the court or the board shall make the
findings described in ORS 161.325 (2).
(2) If the trial court or the board determines that a victim
desires notification as described in ORS 161.325 (2), the board shall
make a reasonable effort to notify the victim of board hearings,
conditional release, discharge or escape. [1981 c.711 §9]Note: 161.326 and 161.387 were added to and made a part of ORS
chapter 161 by legislative action but were not added to any smaller
series therein. See Preface to Oregon Revised Statutes for further
explanation.(1)(a) Following the entry of a judgment pursuant to ORS
161.319 and the dispositional determination under ORS 161.325, if the
court finds that the person would have been guilty of a felony, or of a
misdemeanor during a criminal episode in the course of which the person
caused physical injury or risk of physical injury to another, the court
shall order that a psychiatric or psychological evaluation be performed
and a report of the evaluation be provided to the court if an evaluation
was not performed or a report was not provided to the court prior to
trial. Upon receipt of the evaluation, the court shall order that the
person be placed under the jurisdiction of the Psychiatric Security
Review Board for care and treatment if the court finds by a preponderance
of the evidence that the person is affected by mental disease or defect
and presents a substantial danger to others requiring commitment to:
(A) A state hospital designated by the Department of Human Services
if the person is at least 18 years of age; or
(B) A secure intensive community inpatient facility designated by
the Department of Human Services if the person is under 18 years of age.
(b) The period of jurisdiction of the board is equal to the maximum
sentence provided by statute for the crime for which the person was found
guilty except for insanity.
(c) When a court orders a psychiatric or psychological evaluation
of a financially eligible person under this subsection, the court shall
order the public defense services executive director to pay a reasonable
fee for the evaluation from funds available for the purpose.
(2) The court shall determine whether the person should be
committed to a state hospital, or to a secure intensive community
inpatient facility, designated by the Department of Human Services or
conditionally released pending any hearing before the board as follows:
(a) If the court finds that the person presents a substantial
danger to others and is not a proper subject for conditional release, the
court shall order the person committed to a state hospital designated by
the Department of Human Services if the person is at least 18 years of
age, or to a secure intensive community inpatient facility designated by
the Department of Human Services if the person is under 18 years of age,
for custody, care and treatment pending hearing before the board in
accordance with ORS 161.341 to 161.351.
(b) If the court finds that the person presents a substantial
danger to others but that the person can be adequately controlled with
supervision and treatment if conditionally released and that necessary
supervision and treatment are available, the court may order the person
conditionally released, subject to those supervisory orders of the court
as are in the best interests of justice, the protection of society and
the welfare of the person. The court shall designate a person or state,
county or local agency to supervise the person upon release, subject to
those conditions as the court directs in the order for conditional
release. Prior to the designation, the court shall notify the person or
agency to whom conditional release is contemplated and provide the person
or agency an opportunity to be heard before the court. After receiving an
order entered under this paragraph, the person or agency designated shall
assume supervision of the person pursuant to the direction of the
Psychiatric Security Review Board. The person or agency designated as
supervisor shall be required to report in writing no less than once per
month to the board concerning the supervised person’s compliance with the
conditions of release.
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a mental
disease or defect requiring supervision when the disease may, with
reasonable medical probability, occasionally become active and, when
active, render the person a danger to others.
(4) In determining whether a person should be conditionally
released, the court may order evaluations, examinations and compliance as
provided in ORS 161.336 (4) and 161.346 (2).
(5) In determining whether a person should be committed to a state
hospital or to a secure intensive community inpatient facility or
conditionally released, the court shall have as its primary concern the
protection of society.
(6) Upon placing a person on conditional release, the court shall
notify the board in writing of the court’s conditional release order, the
supervisor appointed, and all other conditions of release, and the person
shall be on conditional release pending hearing before the board in
accordance with ORS 161.336 to 161.351. Upon compliance with this
subsection and subsections (1) and (2) of this section, the court’s
jurisdiction over the person is terminated and the board assumes
jurisdiction over the person.
(7) An order of the court under this section is a final order
appealable by the person found guilty except for insanity in accordance
with ORS 19.205 (5). Notwithstanding ORS 19.255, notice of an appeal
under this section shall be served and filed within 90 days after the
order appealed from is entered in the register. The person shall be
entitled on appeal to suitable counsel possessing skills and experience
commensurate with the nature and complexity of the case. If the person is
financially eligible, suitable counsel shall be appointed in the manner
provided in ORS 138.500 (1), and the compensation for counsel and costs
and expenses of the person necessary to the appeal shall be determined
and paid as provided in ORS 138.500.
(8) Upon placing a person under the jurisdiction of the board, the
court shall notify the person of the right to appeal and the right to a
hearing before the board in accordance with ORS 161.336 (7) and 161.341
(4). [1979 c.867 §5; 1979 c.885 §2; 1981 c.711 §2; 1981 s.s. c.3 §129;
1983 c.800 §6; 1989 c.790 §48; 1995 c.208 §1; 2001 c.962 §89; 2003 c.576
§§578,579; 2005 c.685 §§1,1a]Note: 161.327 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 161 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. Following the
entry of a judgment pursuant to ORS 161.319 and the dispositional
determination under ORS 161.325, if the court finds that the person would
have been guilty of a misdemeanor during a criminal episode in the course
of which the person did not cause physical injury or risk of physical
injury to another, and if the court has probable cause to believe that
the person is dangerous to self or others as a result of a mental
disorder, the court may initiate civil commitment proceedings under ORS
426.070 to 426.130. [1981 c.711 §3; 1983 c.800 §7; 1987 c.903 §36; 1995
c.529 §1] Following the entry of a judgment
pursuant to ORS 161.319 and the dispositional determination under ORS
161.325, if the court finds that the person is no longer affected by
mental disease or defect, or, if so affected, no longer presents a
substantial danger to others and is not in need of care, supervision or
treatment, the court shall order the person discharged from custody.
[1971 c.743 §45; 1977 c.380 §6; 1981 c.711 §4]As used in ORS 161.315 to
161.351 and 161.385 to 161.395, “conditional release” includes, but is
not limited to, the monitoring of mental and physical health treatment.
[1977 c.380 §1; 1983 c.800 §8](1) If the Psychiatric Security Review Board determines that the
person presents a substantial danger to others but can be adequately
controlled with supervision and treatment if conditionally released and
that necessary supervision and treatment are available, the board may
order the person conditionally released, subject to those supervisory
orders of the board as are in the best interests of justice, the
protection of society and the welfare of the person. The board may
designate any person or state, county or local agency the board considers
capable of supervising the person upon release, subject to those
conditions as the board directs in the order for conditional release.
Prior to the designation, the board shall notify the person or agency to
whom conditional release is contemplated and provide the person or agency
an opportunity to be heard before the board. After receiving an order
entered under this section, the person or agency designated shall assume
supervision of the person pursuant to the direction of the board.
(2) Conditions of release contained in orders entered under this
section may be modified from time to time and conditional releases may be
terminated by order of the board as provided in ORS 161.351.
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a mental
disease or defect requiring supervision when the disease may, with
reasonable medical probability, occasionally become active and, when
active, render the person a danger to others. The person may be continued
on conditional release by the board as provided in this section.
(4)(a) As a condition of release, the board may require the person
to report to any state or local mental health facility for evaluation.
Whenever medical, psychiatric or psychological treatment is recommended,
the board may order the person, as a condition of release, to cooperate
with and accept the treatment from the facility.
(b) The facility to which the person has been referred for
evaluation shall perform the evaluation and submit a written report of
its findings to the board. If the facility finds that treatment of the
person is appropriate, it shall include its recommendations for treatment
in the report to the board.
(c) Whenever treatment is provided by the facility, it shall
furnish reports to the board on a regular basis concerning the progress
of the person.
(d) Copies of all reports submitted to the board pursuant to this
section shall be furnished to the person and the person’s counsel. The
confidentiality of these reports is determined pursuant to ORS 192.501 to
192.505.
(e) The facility shall comply with any other conditions of release
prescribed by order of the board.
(5) If at any time while the person is under the jurisdiction of
the board it appears to the board or its chairperson that the person has
violated the terms of the conditional release or that the mental health
of the individual has changed, the board or its chairperson may order the
person returned for evaluation or treatment to a state hospital
designated by the Department of Human Services if the person is at least
18 years of age, or to a secure intensive community inpatient facility
designated by the Department of Human Services if the person is under 18
years of age. A written order of the board, or its chairperson on behalf
of the board, is sufficient warrant for any law enforcement officer to
take into custody such person and transport the person accordingly. A
sheriff, municipal police officer, constable, parole and probation
officer, prison official or other peace officer shall execute the order,
and the person shall be returned as soon as practicable to the custody of
the Department of Human Services. Within 20 days following the return of
the person to the custody of the Department of Human Services, the board
shall conduct a hearing. Notice of the time and place of the hearing
shall be given to the person, the attorney representing the person and
the Attorney General. The board may continue the person on conditional
release or, if it finds by a preponderance of the evidence that the
person is affected by mental disease or defect and presents a substantial
danger to others and cannot be adequately controlled if conditional
release is continued, it may order the person committed to a state
hospital designated by the Department of Human Services if the person is
at least 18 years of age, or to a secure intensive community inpatient
facility designated by the Department of Human Services if the person is
under 18 years of age. The state must prove by a preponderance of the
evidence the person’s unfitness for conditional release. A person in
custody pursuant to this subsection has the same rights as any person
appearing before the board pursuant to ORS 161.346.
(6) The community mental health and developmental disabilities
program director, the director of the facility providing treatment to a
person on conditional release, any peace officer or any person
responsible for the supervision of a person on conditional release may
take a person on conditional release into custody or request that the
person be taken into custody if there is reasonable cause to believe the
person is a substantial danger to others because of mental disease or
defect and that the person is in need of immediate care, custody or
treatment. Any person taken into custody pursuant to this subsection
shall be transported as soon as practicable to a state hospital
designated by the Department of Human Services if the person is at least
18 years of age, or to a secure intensive community inpatient facility
designated by the Department of Human Services if the person is under 18
years of age. A person taken into custody under this subsection has the
same rights as any person appearing before the board pursuant to ORS
161.346.
(7)(a) Any person conditionally released under this section may
apply to the board for discharge from or modification of an order of
conditional release on the ground that the person is no longer affected
by mental disease or defect or, if still so affected, no longer presents
a substantial danger to others and no longer requires supervision,
medication, care or treatment. Notice of the hearing on an application
for discharge or modification of an order of conditional release shall be
made to the Attorney General. The applicant, at the hearing pursuant to
this subsection, must prove by a preponderance of the evidence the
applicant’s fitness for discharge or modification of the order of
conditional release. Applications by the person for discharge or
modification of conditional release shall not be filed more often than
once every six months.
(b) Upon application by any person or agency responsible for
supervision or treatment pursuant to an order of conditional release, the
board shall conduct a hearing to determine if the conditions of release
shall be continued, modified or terminated. The application shall be
accompanied by a report setting forth the facts supporting the
application.
(8) The total period of commitment and conditional release ordered
pursuant to this section may not exceed the maximum sentence provided by
statute for the crime for which the person was found guilty except for
insanity.
(9) The board shall maintain and keep current the medical, social
and criminal history of all persons committed to its jurisdiction. The
confidentiality of records maintained by the board shall be determined
pursuant to ORS 192.501 to 192.505.
(10) In determining whether a person should be committed to a state
hospital or to a secure intensive community inpatient facility,
conditionally released or discharged, the board shall have as its primary
concern the protection of society. [1977 c.380 §11 (enacted in lieu of
161.335); 1979 c.885 §3; 1981 c.711 §5; 1983 c.800 §9; 1987 c.140 §1;
1989 c.790 §49; 2001 c.326 §1; 2005 c.264 §14; 2005 c.685 §2](1) If the Psychiatric Security Review
Board finds, upon its initial hearing, that the person presents a
substantial danger to others and is not a proper subject for conditional
release, the board shall order the person committed to, or retained in, a
state hospital designated by the Department of Human Services if the
person is at least 18 years of age, or to a secure intensive community
inpatient facility designated by the Department of Human Services if the
person is under 18 years of age, for custody, care and treatment. The
period of commitment ordered by the board may not exceed the maximum
sentence provided by statute for the crime for which the person was found
guilty except for insanity.
(2) If at any time after the commitment of a person to a state
hospital, or to a secure intensive community inpatient facility,
designated by the Department of Human Services under this section, the
superintendent of the hospital or the director of the secure intensive
community inpatient facility is of the opinion that the person is no
longer affected by mental disease or defect, or, if so affected, no
longer presents a substantial danger to others or that the person
continues to be affected by mental disease or defect and continues to be
a danger to others, but that the person can be controlled with proper
care, medication, supervision and treatment if conditionally released,
the superintendent or director shall apply to the board for an order of
discharge or conditional release. The application shall be accompanied by
a report setting forth the facts supporting the opinion of the
superintendent or director. If the application is for conditional
release, the application must also be accompanied by a verified
conditional release plan. The board shall hold a hearing on the
application within 60 days of its receipt. Not less than 20 days prior to
the hearing before the board, copies of the report shall be sent to the
Attorney General.
(3) The attorney representing the state may choose a psychiatrist
or licensed psychologist to examine the person prior to the initial or
any later decision by the board on discharge or conditional release. The
results of the examination shall be in writing and filed with the board,
and shall include, but need not be limited to, an opinion as to the
mental condition of the person, whether the person presents a substantial
danger to others and whether the person could be adequately controlled
with treatment as a condition of release.
(4) Any person who has been committed to a state hospital, or to a
secure intensive community inpatient facility, designated by the
Department of Human Services for custody, care and treatment or another
person acting on the person’s behalf may apply to the board for an order
of discharge or conditional release upon the grounds:
(a) That the person is no longer affected by mental disease or
defect;
(b) If so affected, that the person no longer presents a
substantial danger to others; or
(c) That the person continues to be affected by a mental disease or
defect and would continue to be a danger to others without treatment, but
that the person can be adequately controlled and given proper care and
treatment if placed on conditional release.
(5) When application is made under subsection (4) of this section,
the board shall require that a report from the superintendent of the
hospital or the director of the secure intensive community inpatient
facility be prepared and transmitted as provided in subsection (2) of
this section. The applicant must prove by a preponderance of the evidence
the applicant’s fitness for discharge or conditional release under the
standards of subsection (4) of this section, unless more than two years
has passed since the state had the burden of proof on that issue, in
which case the state shall have the burden of proving by a preponderance
of the evidence the applicant’s lack of fitness for discharge or
conditional release. Applications for discharge or conditional release
under subsection (4) of this section shall not be filed more often than
once every six months commencing with the date of the initial board
hearing.
(6) The board is not required to hold a hearing on a first
application under subsection (4) of this section any sooner than 90 days
after the initial hearing. However, hearings resulting from any
subsequent requests shall be held within 60 days of the filing of the
application.
(7)(a) In no case shall any person committed by the court under ORS
161.327 to a state hospital, or to a secure intensive community inpatient
facility, designated by the Department of Human Services be held in the
hospital or facility for more than 90 days from the date of the court’s
commitment order without an initial hearing before the board to determine
whether the person should be conditionally released or discharged.
(b) In no case shall a person be held pursuant to this section for
a period of time exceeding two years without a hearing before the board
to determine whether the person should be conditionally released or
discharged. [1977 c.380 §13 (enacted in lieu of 161.340); 1979 c.885 §4;
1981 c.711 §6; 1983 c.800 §10; 1985 c.192 §3; 1989 c.790 §50; 1991 c.244
§1; 2005 c.685 §3](1) The Psychiatric
Security Review Board shall conduct hearings upon any application for
discharge, conditional release, commitment or modification filed pursuant
to ORS 161.336, 161.341 or 161.351 and as otherwise required by ORS
161.336 to 161.351 and shall make findings on the issues before it which
may include:
(a) If the board finds that the person is no longer affected by
mental disease or defect, or, if so affected, no longer presents a
substantial danger to others, the board shall order the person discharged
from commitment or from conditional release.
(b) If the board finds that the person is still affected by a
mental disease or defect and is a substantial danger to others, but can
be controlled adequately if conditionally released with treatment as a
condition of release, the board shall order the person conditionally
released as provided in ORS 161.336.
(c) If the board finds that the person has not recovered from the
mental disease or defect and is a substantial danger to others and cannot
adequately be controlled if conditionally released on supervision, the
board shall order the person committed to, or retained in, a state
hospital designated by the Department of Human Services if the person is
at least 18 years of age, or a secure intensive community inpatient
facility designated by the Department of Human Services if the person is
under 18 years of age, for care, custody and treatment.
(2) At any time, the board may appoint a psychiatrist or licensed
psychologist to examine the person and to submit a report to the board.
Reports filed with the board pursuant to the examination shall include,
but need not be limited to, an opinion as to the mental condition of the
person and whether the person presents a substantial danger to others,
and whether the person could be adequately controlled with treatment as a
condition of release. To facilitate the examination of the person, the
board may order the person placed in the temporary custody of any state
hospital or other suitable facility.
(3) The board may make the determination regarding discharge or
conditional release based upon the written reports submitted pursuant to
this section. If any member of the board desires further information from
the examining psychiatrist or licensed psychologist who submitted the
report, these persons shall be summoned by the board to give testimony.
The board shall consider all evidence available to it which is material,
relevant and reliable regarding the issues before the board. Such
evidence may include but is not limited to the record of trial, the
information supplied by the attorney representing the state or by any
other interested party, including the person, and information concerning
the person’s mental condition and the entire psychiatric and criminal
history of the person. All evidence of a type commonly relied upon by
reasonably prudent persons in the conduct of their serious affairs shall
be admissible at hearings. Testimony shall be taken upon oath or
affirmation of the witness from whom received. The officer presiding at
the hearing shall administer oaths or affirmations to witnesses.
(4) The board shall furnish to the person about whom the hearing is
being conducted, the attorney representing the person, the Attorney
General, the district attorney and the court or department of the county
from which the person was committed written notice of any hearing pending
under this section within a reasonable time prior to the hearing. The
notice shall include:
(a) The time, place and location of the hearing.
(b) The nature of the hearing and the specific action for which a
hearing has been requested, the issues to be considered at the hearing
and a reference to the particular sections of the statutes and rules
involved.
(c) A statement of the authority and jurisdiction under which the
hearing is to be held.
(d) A statement of all rights under subsection (6) of this section.
(5) Prior to the commencement of a hearing, the board or presiding
officer shall inform each party as provided in ORS 183.413 (2).
(6) At the hearing, the person about whom the hearing is being held
shall have the right:
(a) To appear at all proceedings held pursuant to this section,
except board deliberations.
(b) To cross-examine all witnesses appearing to testify at the
hearing.
(c) To subpoena witnesses and documents as provided in ORS 161.395.
(d) To be represented by suitable legal counsel possessing skills
and experience commensurate with the nature and complexity of the case,
to consult with counsel prior to the hearing and, if financially
eligible, to have suitable counsel appointed at state expense.
(e) To examine all information, documents and reports which the
board considers. If then available to the board, the information,
documents and reports shall be disclosed to the person so as to allow
examination prior to the hearing.
(7) A record shall be kept of all hearings before the board, except
board deliberations.
(8) Upon request of any party before the board, or on its own
motion, the board may continue a hearing for a reasonable period not to
exceed 60 days to obtain additional information or testimony or for other
good cause shown.
(9) Within 15 days following the conclusion of the hearing, the
board shall provide to the person, the attorney representing the person,
the Attorney General or other attorney representing the state, if any,
written notice of the board’s decision.
(10) The burden of proof on all issues at hearings of the board
shall be by a preponderance of the evidence.
(11) If the board determines that the person about whom the hearing
is being held is financially eligible, the board shall appoint suitable
counsel to represent the person. Counsel so appointed shall be an
attorney who satisfies the professional qualifications established by the
Public Defense Services Commission under ORS 151.216. The public defense
services executive director shall determine and allow fair compensation
for counsel appointed under this subsection and the reasonable expenses
of the person in respect to the hearing. Compensation payable to
appointed counsel shall not be less than the applicable compensation
level established under ORS 151.216. The compensation and expenses so
allowed shall be paid by the public defense services executive director
from funds available for the purpose.
(12) The Attorney General may represent the state at contested
hearings before the board unless the district attorney of the county from
which the person was committed elects to represent the state. The
district attorney of the county from which the person was committed shall
cooperate with the Attorney General in securing the material necessary
for presenting a contested hearing before the board. If the district
attorney elects to represent the state, the district attorney shall give
timely written notice of such election to the Attorney General, the board
and the attorney representing the person. [1977 c.380 §15 (enacted in
lieu of 161.345); 1979 c.867 §6; 1979 c.885 §5; 1981 c.711 §7; 1981 s.s
c.3 §130; 1983 c.430 §1; 1985 c.502 §23; 1987 c.803 §19; 1991 c.827 §3;
2001 c.962 §40; 2003 c.449 §32; 2005 c.685 §4](1) Any person placed under the jurisdiction of the
Psychiatric Security Review Board pursuant to ORS 161.336 or 161.341
shall be discharged at such time as the board, upon a hearing, shall find
by a preponderance of the evidence that the person is no longer affected
by mental disease or defect or, if so affected, no longer presents a
substantial danger to others which requires regular medical care,
medication, supervision or treatment.
(2) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a mental
disease or defect. A person whose mental disease or defect may, with
reasonable medical probability, occasionally become active and when it
becomes active will render the person a danger to others, shall not be
discharged. The person shall continue under such supervision and
treatment as the board deems necessary to protect the person and others.
(3) Any person who has been placed under the jurisdiction of the
board and who has spent five years on conditional release shall be
brought before the board for hearing within 30 days of the expiration of
the five-year period. The board shall review the person’s status and
determine whether the person should be discharged from the jurisdiction
of the board. [1977 c.380 §17 (enacted in lieu of 161.350); 1981 c.711
§13; 1985 c.192 §4; 1989 c.49 §1] (1)
If, before or during the trial in any criminal case, the court has reason
to doubt the defendant’s fitness to proceed by reason of incapacity, the
court may order an examination in the manner provided in ORS 161.365.
(2) A defendant may be found incapacitated if, as a result of
mental disease or defect, the defendant is unable:
(a) To understand the nature of the proceedings against the
defendant; or
(b) To assist and cooperate with the counsel of the defendant; or
(c) To participate in the defense of the defendant. [1971 c.743
§50; 1993 c.238 §1] (1)
Whenever the court has reason to doubt the defendant’s fitness to proceed
by reason of incapacity as defined in ORS 161.360, the court may call to
its assistance in reaching its decision any witness and may appoint a
psychiatrist or psychologist to examine the defendant and advise the
court.
(2) If the court determines the assistance of a psychiatrist or
psychologist would be helpful, the court may order the defendant to be
committed for the purpose of an examination for a period not exceeding 30
days to a state mental hospital designated by the Department of Human
Services if the defendant is at least 18 years of age, or to a secure
intensive community inpatient facility designated by the Department of
Human Services if the defendant is under 18 years of age. The report of
each examination shall include, but is not necessarily limited to, the
following:
(a) A description of the nature of the examination;
(b) A statement of the mental condition of the defendant; and
(c) If the defendant suffers from a mental disease or defect, an
opinion as to whether the defendant is incapacitated within the
definition set out in ORS 161.360.
(3) Except when the defendant and the court both request to the
contrary, the report may not contain any findings or conclusions as to
whether the defendant as a result of mental disease or defect was subject
to the provisions of ORS 161.295 or 161.300 at the time of the criminal
act charged.
(4) If the examination by the psychiatrist or psychologist cannot
be conducted by reason of the unwillingness of the defendant to
participate therein, the report shall so state and shall include, if
possible, an opinion as to whether such unwillingness of the defendant
was the result of mental disease or defect affecting capacity to proceed.
(5) The report of the examination shall be filed in triplicate with
the clerk of the court, who shall cause copies to be delivered to the
district attorney and to counsel for defendant.
(6) When upon motion of the court or a financially eligible
defendant, the court has ordered a psychiatric or psychological
examination of the defendant, a county or justice court shall order the
county to pay, and a circuit court shall order the public defense
services executive director to pay from funds available for the purpose:
(a) A reasonable fee if the examination of the defendant is
conducted by a psychiatrist or psychologist in private practice; and
(b) All costs including transportation of the defendant if the
examination is conducted by a psychiatrist or psychologist in the employ
of the Department of Human Services or a community mental health and
developmental disabilities program established under ORS 430.610 to
430.670.
(7) When such an examination is ordered at the request or with the
acquiescence of a defendant who is determined not to be financially
eligible, the examination shall be performed at the defendant’s expense.
When such an examination is ordered at the request of the prosecution,
the county shall pay for the expense of the examination. [1971 c.743 §51;
1975 c.380 §4; 1981 s.s. c.3 §131; 1983 c.800 §11; 1987 c.803 §18; 1993
c.238 §2; 2001 c.962 §90; 2005 c.685 §5](1) When the defendant’s fitness to proceed is drawn in question, the
issue shall be determined by the court. If neither the prosecuting
attorney nor counsel for the defendant contests the finding of the report
filed by a psychiatrist or psychologist under ORS 161.365, the court may
make the determination on the basis of such report. If the finding is
contested, the court shall hold a hearing on the issue. If the report is
received in evidence upon such hearing, the party who contests the
finding thereof shall have the right to summon and to cross-examine any
psychiatrist or psychologist who submitted the report and to offer
evidence upon the issue. Other evidence regarding the defendant’s fitness
to proceed may be introduced by either party.
(2) If the court determines that the defendant lacks fitness to
proceed, the proceeding against the defendant shall be suspended, except
as provided in subsection (12) of this section, and the court shall
commit the defendant to the custody of the superintendent of a state
mental hospital designated by the Department of Human Services if the
defendant is at least 18 years of age, or to the custody of the director
of a secure intensive community inpatient facility designated by the
Department of Human Services if the defendant is under 18 years of age,
or shall release the defendant on supervision for as long as such
unfitness shall endure. The court may release the defendant on
supervision if it determines that care other than commitment for
incapacity to stand trial would better serve the defendant and the
community. It may place conditions which it deems appropriate on the
release, including the requirement that the defendant regularly report to
the Department of Human Services or a community mental health and
developmental disabilities program for examination to determine if the
defendant has regained capacity to stand trial. When the court, on its
own motion or upon the application of the superintendent of the hospital
or director of the secure intensive community inpatient facility in which
the defendant is committed, a person examining the defendant as a
condition of release on supervision, or either party, determines, after a
hearing, if a hearing is requested, that the defendant has regained
fitness to proceed, the proceeding shall be resumed. If, however, the
court is of the view that so much time has elapsed since the commitment
or release of the defendant on supervision that it would be unjust to
resume the criminal proceeding, the court on motion of either party may
dismiss the charge and may order the defendant to be discharged or cause
a proceeding to be commenced forthwith under ORS 426.070 to 426.170 or
427.235 to 427.290.
(3) The superintendent of a state hospital or director of a secure
intensive community inpatient facility shall cause the defendant to be
evaluated within 60 days from the defendant’s delivery into the
superintendent’s or director’s custody, for the purpose of determining
whether there is a substantial probability that, in the foreseeable
future, the defendant will have the capacity to stand trial.
(4) In addition, the superintendent or director shall:
(a) Immediately notify the committing court if the defendant, at
any time, gains or regains the capacity to stand trial or will never have
the capacity to stand trial.
(b) Within 90 days of the defendant’s delivery into the
superintendent’s or director’s custody, notify the committing court that:
(A) The defendant has the present capacity to stand trial;
(B) There is no substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand trial; or
(C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand trial. If
such a probability exists, the superintendent or director shall give the
court an estimate of the time in which the defendant, with appropriate
treatment, is expected to gain or regain capacity.
(5) If the superintendent or director determines that there is a
substantial probability that, in the foreseeable future, the defendant
will gain or regain the capacity to stand trial, unless the court
otherwise orders, the defendant shall remain in the superintendent’s or
director’s custody where the defendant shall receive treatment designed
for the purpose of enabling the defendant to gain or regain capacity. In
keeping with the notice requirement under subsection (4)(b) of this
section, the superintendent or director shall, for the duration of the
defendant’s period of commitment, submit a progress report to the
committing court, concerning the defendant’s capacity or incapacity, at
least once every 180 days as measured from the date of the defendant’s
delivery into the superintendent’s or director’s custody.
(6) A defendant who remains committed under subsection (5) of this
section shall be discharged within a period of time that is reasonable
for making a determination concerning whether or not, and when, the
defendant may gain or regain capacity. However, regardless of the number
of charges with which the defendant is accused, in no event shall the
defendant be committed for longer than whichever of the following,
measured from the defendant’s initial custody date, is shorter:
(a) Three years; or
(b) A period of time equal to the maximum sentence the court could
have imposed if the defendant had been convicted.
(7) The superintendent or director shall notify the committing
court of the defendant’s impending discharge 30 days before the date on
which the superintendent or director is required to discharge the
defendant under subsection (6) of this section.
(8) When the committing court receives a notice from the
superintendent or director under either subsection (4) or (7) of this
section concerning the defendant’s progress or lack thereof, the
committing court shall determine after a hearing, if a hearing is
requested, whether the defendant presently has the capacity to stand
trial.
(9) If under subsection (8) of this section the court determines
that the defendant lacks the capacity to stand trial, the court shall
further determine whether there is a substantial probability that the
defendant, in the foreseeable future, will gain or regain the capacity to
stand trial and whether the defendant is entitled to discharge under
subsection (6) of this section. If the court determines that there is no
substantial probability that the defendant, in the foreseeable future,
will gain or regain the capacity to stand trial or that the defendant is
entitled to discharge under subsection (6) of this section, the court
shall dismiss, without prejudice, all charges against the defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070 or 427.235 to
427.290.
(10) All notices required under this section shall be filed with
the clerk of the court and delivered to both the district attorney and
the counsel for the defendant.
(11) If the defendant regains fitness to proceed, the term of any
sentence received by the defendant for conviction of the crime charged
shall be reduced by the amount of time the defendant was committed under
this section to the custody of a state mental hospital, or to the custody
of a secure intensive community inpatient facility, designated by the
Department of Human Services.
(12) The fact that the defendant is unfit to proceed does not
preclude any objection through counsel and without the personal
participation of the defendant on the grounds that the indictment is
insufficient, that the statute of limitations has run, that double
jeopardy principles apply or upon any other ground at the discretion of
the court which the court deems susceptible of fair determination prior
to trial. [1971 c.743 §52; 1975 c.380 §5; 1993 c.238 §3; 1999 c.931
§§1,2; 2005 c.685 §6](1) When a patient, who has been placed at the Oregon
State Hospital for evaluation, care, custody and treatment under the
jurisdiction of the Psychiatric Security Review Board or by court order
under ORS 161.315, 161.365 or 161.370, has escaped or is absent without
authorization from the Oregon State Hospital or from the custody of any
person in whose charge the superintendent has placed the patient, the
superintendent may order the arrest and detention of the patient.
(2) When a patient, who has been placed at a secure intensive
community inpatient facility for evaluation, care, custody and treatment
under the jurisdiction of the Psychiatric Security Review Board or by
court order under ORS 161.315, 161.365 or 161.370, has escaped or is
absent without authorization from the facility or from the custody of any
person in whose charge the director of the facility has placed the
patient, the director of the facility shall notify the Director of Human
Services. The Director of Human Services may order the arrest and
detention of the patient.
(3) The superintendent or the Director of Human Services may issue
an order under this section based upon a reasonable belief that grounds
exist for issuing the order. When reasonable, the superintendent or the
Director of Human Services shall investigate to ascertain whether such
grounds exist.
(4) Any order issued by the superintendent or the Director of Human
Services as authorized by this section constitutes full authority for the
arrest and detention of the patient and all laws applicable to warrant or
arrest apply to the order. An order issued by the superintendent or the
Director of Human Services under this section expires 72 hours after
being signed by the superintendent or the Director of Human Services.
(5) As used in this section, “superintendent” means the
superintendent of the Oregon State Hospital or the superintendent’s
authorized representative. [1997 c.423 §1; 2005 c.685 §7]Note: The amendments to 161.375 by section 24a, chapter 843, Oregon
Laws 2005, become operative July 1, 2007. See section 38, chapter 843,
Oregon Laws 2005. The text that is operative on and after July 1, 2007,
is set forth for the user’s convenience.
161.375. (1) When a patient, who has been placed at the Oregon
State Hospital for evaluation, care, custody and treatment under the
jurisdiction of the Psychiatric Security Review Board or by court order
under ORS 161.315, 161.365 or 161.370, has escaped or is absent without
authorization from the Oregon State Hospital or from the custody of any
person in whose charge the superintendent has placed the patient, the
superintendent may order the arrest and detention of the patient.
(2) When a patient, who has been placed at a secure intensive
community inpatient facility for evaluation, care, custody and treatment
under the jurisdiction of the Psychiatric Security Review Board or by
court order under ORS 161.315, 161.365, 161.370 or 419C.527, has escaped
or is absent without authorization from the facility or from the custody
of any person in whose charge the director of the facility has placed the
patient, the director of the facility shall notify the Director of Human
Services. The Director of Human Services may order the arrest and
detention of the patient.
(3) The superintendent or the Director of Human Services may issue
an order under this section based upon a reasonable belief that grounds
exist for issuing the order. When reasonable, the superintendent or the
Director of Human Services shall investigate to ascertain whether such
grounds exist.
(4) Any order issued by the superintendent or the Director of Human
Services as authorized by this section constitutes full authority for the
arrest and detention of the patient and all laws applicable to warrant or
arrest apply to the order. An order issued by the superintendent or the
Director of Human Services under this section expires 72 hours after
being signed by the superintendent or the Director of Human Services.
(5) As used in this section, “superintendent” means the
superintendent of the Oregon State Hospital or the superintendent’s
authorized representative.Note: 161.375 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 161 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) There is hereby created a Psychiatric
Security Review Board consisting of five members appointed by the
Governor and subject to confirmation by the Senate under section 4,
Article III of the Oregon Constitution.
(2) The membership of the board shall not include any district
attorney, deputy district attorney or public defender, but the membership
shall be composed of:
(a) A psychiatrist experienced in the criminal justice system and
not otherwise employed on a full-time basis by the Department of Human
Services or a community mental health and developmental disabilities
program;
(b) A licensed psychologist experienced in the criminal justice
system and not otherwise employed on a full-time basis by the Department
of Human Services or a community mental health and developmental
disabilities program;
(c) A member with substantial experience in the processes of parole
and probation;
(d) A member of the general public; and
(e) A lawyer with substantial experience in criminal trial practice.
(3) The term of office of each member is four years. The Governor
at any time may remove any member for inefficiency, neglect of duty or
malfeasance in office. Before the expiration of the term of a member, the
Governor shall appoint a successor whose term begins on July 1 next
following. A member is eligible for reappointment. If there is a vacancy
for any cause, the Governor shall make an appointment to become
immediately effective for the unexpired term.
(4) A member of the board not otherwise employed full-time by the
state, shall be paid on a per diem basis an amount equal to $212,
adjusted according to the executive pay plan for the biennium, for each
day during which the member is engaged in the performance of official
duties, including necessary travel time. In addition, subject to ORS
292.220 to 292.250 regulating travel and other expenses of state officers
and employees, the member shall be reimbursed for actual and necessary
travel and other expenses incurred in the performance of official duties.
(5) Subject to any applicable provision of the State Personnel
Relations Law, the board may hire employees to aid it in performing its
duties.
(6)(a) The board shall select one of its members as chairperson to
serve for a one-year term with such duties and powers as the board
determines.
(b) A majority of the voting members of the board constitutes a
quorum for the transaction of business.
(7) The board shall meet at least twice every month, unless the
chairperson determines that there is not sufficient business before the
board to warrant a meeting at the scheduled time. The board shall also
meet at other times and places specified by the call of the chairperson
or of a majority of the members of the board.
(8)(a) When a person over whom the board exercises its jurisdiction
is adversely affected or aggrieved by a final order of the board, the
person is entitled to judicial review of the final order. The person is
entitled on judicial review to suitable counsel possessing skills and
experience commensurate with the nature and complexity of the case. If
the person is financially eligible, suitable counsel shall be appointed
by the reviewing court in the manner provided in ORS 138.500 (1). If the
person is financially eligible, the public defense services executive
director shall determine and pay, as provided in ORS 138.500, the cost of
briefs, any other expenses of the person necessary to the review and
compensation for counsel appointed for the person. The costs, expenses
and compensation so allowed shall be paid as provided in ORS 138.500.
(b) The order and the proceedings underlying the order are subject
to review by the Court of Appeals upon petition to that court filed
within 60 days of the order for which review is sought. The board shall
submit to the court the record of the proceeding or, if the person
agrees, a shortened record. The record may include a certified true copy
of a tape recording of the proceedings at a hearing in accordance with
ORS 161.346. A copy of the record transmitted shall be delivered to the
person by the board.
(c) The court may affirm, reverse or remand the order on the same
basis as provided in ORS 183.482 (8).
(d) The filing of the petition shall not stay the board’s order,
but the board or the Court of Appeals may order a stay upon application
on such terms as are deemed proper. [1977 c.380 §8; 1979 c.867 §7; 1979
c.885 §6; 1981 c.711 §15; 1981 s.s. c.3 §132; 1983 c.740 §26; 1983 c.800
§12; 1987 c.133 §1; 2001 c.962 §70]Note: The amendments to 161.385 by section 20, chapter 843, Oregon
Laws 2005, become operative January 1, 2007. See section 38, chapter 843,
Oregon Laws 2005. The text that is operative on and after January 1,
2007, is set forth for the user’s convenience.
161.385. (1) There is hereby created a Psychiatric Security Review
Board consisting of 10 members appointed by the Governor and subject to
confirmation by the Senate under section 4, Article III of the Oregon
Constitution.
(2) The membership of the board may not include any district
attorney, deputy district attorney or public defender. The Governor shall
appoint:
(a) A psychiatrist experienced in the criminal justice system and
not otherwise employed on a full-time basis by the Department of Human
Services or a community mental health and developmental disabilities
program;
(b) A licensed psychologist experienced in the criminal justice
system and not otherwise employed on a full-time basis by the Department
of Human Services or a community mental health and developmental
disabilities program;
(c) A member with substantial experience in the processes of parole
and probation;
(d) A lawyer with substantial experience in criminal trial practice;
(e) A psychiatrist certified, or eligible to be certified, by the
Board of Medical Examiners in child psychiatry who is experienced in the
juvenile justice system and not employed on a full-time basis by the
Department of Human Services or a community mental health and
developmental disabilities program;
(f) A licensed psychologist who is experienced in child psychology
and the juvenile justice system and not employed on a full-time basis by
the Department of Human Services or a community mental health and
developmental disabilities program;
(g) A member with substantial experience in the processes of
juvenile parole and probation;
(h) A lawyer with substantial experience in juvenile law practice;
and
(i) Two members of the general public.
(3) The term of office of each member is four years. The Governor
at any time may remove any member for inefficiency, neglect of duty or
malfeasance in office. Before the expiration of the term of a member, the
Governor shall appoint a successor whose term begins on July 1 next
following. A member is eligible for reappointment. If there is a vacancy
for any cause, the Governor shall make an appointment to become
immediately effective for the unexpired term.
(4) A member of the board not otherwise employed full-time by the
state shall be paid on a per diem basis an amount equal to $289.22,
adjusted according to the executive pay plan for the biennium, for each
day during which the member is engaged in the performance of official
duties, including necessary travel time. In addition, subject to ORS
292.220 to 292.250 regulating travel and other expenses of state officers
and employees, the member shall be reimbursed for actual and necessary
travel and other expenses incurred in the performance of official duties.
(5) Subject to any applicable provision of the State Personnel
Relations Law, the board may hire employees to aid it in performing its
duties.
(6) The board consists of two five-member panels. The adult panel
is responsible for persons placed under the board’s jurisdiction under
ORS 161.327 and 419C.544 and consists of those members appointed under
subsection (2)(a) to (d) of this section and one of the public members.
The juvenile panel is responsible for young persons placed under the
board’s jurisdiction under ORS 419C.529 and consists of those members
appointed under subsection (2)(e) to (h) of this section and the other
public member.
(7)(a) Each panel shall select one of its members as chairperson to
serve for a one-year term with such duties and powers as the panel
determines.
(b) A majority of the voting members of a panel constitutes a
quorum for the transaction of business of the panel.
(8) Each panel shall meet at least twice every month, unless the
chairperson determines that there is not sufficient business before the
panel to warrant a meeting at the scheduled time. The panel shall also
meet at other times and places specified by the call of the chairperson
or of a majority of the members of the panel.
(9)(a) When a person over whom a panel of the board exercises its
jurisdiction is adversely affected or aggrieved by a final order of the
panel, the person is entitled to judicial review of the final order. The
person is entitled on judicial review to suitable counsel possessing
skills and experience commensurate with the nature and complexity of the
case. If the person is financially eligible, suitable counsel shall be
appointed by the reviewing court in the manner provided in ORS 138.500
(1). If the person is financially eligible, the public defense services
executive director shall determine and pay, as provided in ORS 138.500,
the cost of briefs, any other expenses of the person necessary to the
review and compensation for counsel appointed for the person. The costs,
expenses and compensation so allowed shall be paid as provided in ORS
138.500.
(b) The order and the proceedings underlying the order are subject
to review by the Court of Appeals upon petition to that court filed
within 60 days of the order for which review is sought. The panel shall
submit to the court the record of the proceeding or, if the person
agrees, a shortened record. The record may include a certified true copy
of a tape recording of the proceedings at a hearing in accordance with
ORS 161.346. A copy of the record transmitted shall be delivered to the
person by the panel.
(c) The court may affirm, reverse or remand the order on the same
basis as provided in ORS 183.482 (8).
(d) The filing of the petition does not stay the panel’s order, but
the panel or the Court of Appeals may order a stay upon application on
such terms as are deemed proper.(1) The Psychiatric
Security Review Board, by rule pursuant to ORS 183.325 to 183.410 and not
inconsistent with law, may implement its policies and set out its
procedure and practice requirements and may promulgate such interpretive
rules as the board deems necessary or appropriate to carry out its
statutory responsibilities.
(2) Administrative meetings of the board and the evidentiary phase
of board hearings are not deliberations for the purposes of ORS 192.690.
[1981 c.711 §§10,11]Note: See note under 161.326.(1) The Department of Human Services
shall promulgate rules for the assignment of persons to state mental
hospitals or secure intensive community inpatient facilities under ORS
161.341, 161.365 and 161.370 and for establishing standards for
evaluation and treatment of persons committed to a state hospital or a
secure intensive community inpatient facility, designated by the
department, or ordered to a community mental health and developmental
disabilities program under ORS 161.315 to 161.351 and 428.210.
(2) Whenever the Psychiatric Security Review Board requires the
preparation of a predischarge or preconditional release plan before a
hearing or as a condition of granting discharge or conditional release
for a person committed under ORS 161.327 or 161.341 to a state hospital
or a secure intensive community inpatient facility for custody, care and
treatment, the Department of Human Services is responsible for and shall
prepare the plan.
(3) In carrying out a conditional release plan prepared under
subsection (2) of this section, the Department of Human Services may
contract with a community mental health and developmental disabilities
program, other public agency or private corporation or an individual to
provide supervision and treatment for the conditionally released person.
[1975 c.380 §7; 1977 c.380 §18; 1981 c.711 §14; 1993 c.680 §18; 2005 c.22
§109; 2005 c.685 §8] (1) Upon request of any party to a
hearing before the board, the board or its designated representatives
shall issue, or the board on its own motion may issue, subpoenas
requiring the attendance and testimony of witnesses.
(2) Upon request of any party to the hearing before the board and
upon a proper showing of the general relevance and reasonable scope of
the documentary or physical evidence sought, the board or its designated
representative shall issue, or the board on its own motion may issue,
subpoenas duces tecum.
(3) Witnesses appearing under subpoenas, other than the parties or
state officers or employees, shall receive fees and mileage as prescribed
by law for witnesses in ORS 44.415 (2). If the board or its designated
representative certifies that the testimony of a witness was relevant and
material, any person who has paid fees and mileage to that witness shall
be reimbursed by the board.
(4) If any person fails to comply with a subpoena issued under
subsections (1) or (2) of this section or any party or witness refuses to
testify regarding any matter on which the party or witness may be
lawfully interrogated, the judge of the circuit court of any county, on
the application of the board or its designated representative or of the
party requesting the issuance of the subpoena, shall compel obedience by
proceedings for contempt as in the case of disobedience of the
requirements of a subpoena issued by the court.
(5) If any person, agency or facility fails to comply with an order
of the board issued pursuant to subsection (2) of this section, the judge
of a circuit court of any county, on application of the board or its
designated representative, shall compel obedience by proceedings for
contempt as in the case of disobedience of the requirements of an order
issued by the court. Contempt for disobedience of an order of the board
shall be punishable by a fine of $100. [1977 c.380 §9; 1989 c.980 §8]Note: 161.395 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 161 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. The Psychiatric
Security Review Board Account is established separate and distinct from
the General Fund. All moneys received by the Psychiatric Security Review
Board, other than appropriations from the General Fund, shall be
deposited into the account and are continuously appropriated to the board
to carry out the duties, functions and powers of the board. [2001 c.716
§3]Note: 161.397 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 161 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. If, at any time after
the commitment of a person to a state hospital or a secure intensive
community inpatient facility under ORS 161.341 (1), the superintendent of
the hospital or the director of the facility is of the opinion that a
leave of absence from the hospital or facility would be therapeutic for
the person and that such leave would pose no substantial danger to
others, the superintendent or director may authorize such leave for up to
48 hours in accordance with rules adopted by the Psychiatric Security
Review Board. However, the superintendent or director, before authorizing
the leave of absence, shall first notify the board for the purposes of
ORS 161.326 (2). [1981 c.711 §12; 2005 c.685 §9]INCHOATE CRIMES (1) A person is guilty of an attempt
to commit a crime when the person intentionally engages in conduct which
constitutes a substantial step toward commission of the crime.
(2) An attempt is a:
(a) Class A felony if the offense attempted is murder or treason.
(b) Class B felony if the offense attempted is a Class A felony.
(c) Class C felony if the offense attempted is a Class B felony.
(d) Class A misdemeanor if the offense attempted is a Class C
felony or an unclassified felony.
(e) Class B misdemeanor if the offense attempted is a Class A
misdemeanor.
(f) Class C misdemeanor if the offense attempted is a Class B
misdemeanor.
(g) Violation if the offense attempted is a Class C misdemeanor or
an unclassified misdemeanor. [1971 c.743 §54] In a prosecution for an
attempt, it is no defense that it was impossible to commit the crime
which was the object of the attempt where the conduct engaged in by the
actor would be a crime if the circumstances were as the actor believed
them to be. [1971 c.743 §55] (1) A person is not
liable under ORS 161.405 if, under circumstances manifesting a voluntary
and complete renunciation of the criminal intent of the person, the
person avoids the commission of the crime attempted by abandoning the
criminal effort and, if mere abandonment is insufficient to accomplish
this avoidance, doing everything necessary to prevent the commission of
the attempted crime.
(2) The defense of renunciation is an affirmative defense. [1971
c.743 §56] (1) A person commits the crime of
solicitation if with the intent of causing another to engage in specific
conduct constituting a crime punishable as a felony or as a Class A
misdemeanor or an attempt to commit such felony or Class A misdemeanor
the person commands or solicits such other person to engage in that
conduct.
(2) Solicitation is a:
(a) Class A felony if the offense solicited is murder or treason.
(b) Class B felony if the offense solicited is a Class A felony.
(c) Class C felony if the offense solicited is a Class B felony.
(d) Class A misdemeanor if the offense solicited is a Class C
felony.
(e) Class B misdemeanor if the offense solicited is a Class A
misdemeanor. [1971 c.743 §57] (1) It is a
defense to the crime of solicitation that the person soliciting the
crime, after soliciting another person to commit a crime, persuaded the
person solicited not to commit the crime or otherwise prevented the
commission of the crime, under circumstances manifesting a complete and
voluntary renunciation of the criminal intent.
(2) The defense of renunciation is an affirmative defense. [1971
c.743 §58] (1) A person is guilty of criminal
conspiracy if with the intent that conduct constituting a crime
punishable as a felony or a Class A misdemeanor be performed, the person
agrees with one or more persons to engage in or cause the performance of
such conduct.
(2) Criminal conspiracy is a:
(a) Class A felony if an object of the conspiracy is commission of
murder, treason or a Class A felony.
(b) Class B felony if an object of the conspiracy is commission of
a Class B felony.
(c) Class C felony if an object of the conspiracy is commission of
a Class C felony.
(d) Class A misdemeanor if an object of the conspiracy is
commission of a Class A misdemeanor. [1971 c.743 §59] If a person is guilty of
conspiracy, as defined in ORS 161.450, and knows that a person with whom
the person conspires to commit a crime has conspired or will conspire
with another person or persons to commit the same crime, the person is
guilty of conspiring with such other person or persons, whether or not
the person knows their identity, to commit such crime. [1971 c.743 §60] (1) It is a defense
to a charge of conspiracy that the actor, after conspiring to commit a
crime, thwarted commission of the crime which was the object of the
conspiracy, under circumstances manifesting a complete and voluntary
renunciation of the criminal purpose of the actor. Renunciation by one
conspirator does not, however, affect the liability of another
conspirator who does not join in the renunciation of the conspiratorial
objective.
(2) The defense of renunciation is an affirmative defense. [1971
c.743 §61] For the purpose of application of
ORS 131.125:
(1) Conspiracy is a continuing course of conduct which terminates
when the crime or crimes which are its object are completed or the
agreement that they be committed is abandoned by the defendant and by
those with whom the defendant conspired.
(2) Abandonment is presumed if neither the defendant nor anyone
with whom the defendant conspired does any overt act in pursuance of the
conspiracy during the applicable period of limitation.
(3) If an individual abandons the agreement, the conspiracy is
terminated as to the individual only if and when the individual advises
those with whom the individual conspired of the abandonment or the
individual informs the law enforcement authorities of the existence of
the conspiracy and of the participation of the individual therein. [1971
c.743 §62; 1973 c.836 §340] (1) Except as
provided in subsection (2) of this section, it is immaterial to the
liability of a person who solicits or conspires with another to commit a
crime that:
(a) The person or the person whom the person solicits or with whom
the person conspires does not occupy a particular position or have a
particular characteristic which is an element of such crime, if the
person believes that one of them does; or
(b) The person whom the person solicits or with whom the person
conspires is irresponsible or has an immunity to prosecution or
conviction for the commission of the crime, or, in the case of
conspiracy, has feigned the agreement; or
(c) The person with whom the person conspires has not been
prosecuted for or convicted of the conspiracy or a crime based upon the
conduct in question, or has previously been acquitted.
(2) It is a defense to a charge of solicitation or conspiracy to
commit a crime that if the criminal object were achieved, the actor would
not be guilty of a crime under the law defining the offense or as an
accomplice under ORS 161.150 to 161.165. [1971 c.743 §63] (1) It is
no defense to a prosecution under ORS 161.405, 161.435 or 161.450 that
the offense the defendant either attempted to commit, solicited to commit
or conspired to commit was actually committed pursuant to such attempt,
solicitation or conspiracy.
(2) A person shall not be convicted of more than one offense
defined by ORS 161.405, 161.435 and 161.450 for conduct designed to
commit or to culminate in commission of the same crime.
(3) A person shall not be convicted on the basis of the same course
of conduct of both the actual commission of an offense and an attempt to
commit that offense or solicitation of that offense or conspiracy to
commit that offense.
(4) Nothing in this section shall be construed to bar inclusion of
multiple counts charging violation of the substantive crime and ORS
161.405, 161.435 and 161.450 in a single indictment or information,
provided the penal conviction is consistent with subsections (2) and (3)
of this section. [1971 c.743 §64]CLASSES OF OFFENSES An offense is conduct for which a
sentence to a term of imprisonment or to a fine is provided by any law of
this state or by any law or ordinance of a political subdivision of this
state. An offense is either a crime, as described in ORS 161.515, or a
violation, as described in ORS 153.008. [1971 c.743 §65; 1975 c.451 §173;
1981 c.626 §2; 1981 c.692 §7; 1999 c.1051 §43] (1) A crime is an offense for which a
sentence of imprisonment is authorized.
(2) A crime is either a felony or a misdemeanor. [1971 c.743 §66]Except as provided in ORS 161.585 and
161.705, a crime is a felony if it is so designated in any statute of
this state or if a person convicted under a statute of this state may be
sentenced to a maximum term of imprisonment of more than one year. [1971
c.743 §67] (1) Felonies are classified for
the purpose of sentence into the following categories:
(a) Class A felonies;
(b) Class B felonies;
(c) Class C felonies; and
(d) Unclassified felonies.
(2) The particular classification of each felony defined in the
Oregon Criminal Code, except murder under ORS 163.115 and treason under
ORS 166.005, is expressly designated in the section defining the crime.
An offense defined outside this code which, because of the express
sentence provided is within the definition of ORS 161.525, shall be
considered an unclassified felony. [1971 c.743 §68] A crime is a misdemeanor if it is
so designated in any statute of this state or if a person convicted
thereof may be sentenced to a maximum term of imprisonment of not more
than one year. [1971 c.743 §69] (1) Misdemeanors are
classified for the purpose of sentence into the following categories:
(a) Class A misdemeanors;
(b) Class B misdemeanors;
(c) Class C misdemeanors; and
(d) Unclassified misdemeanors.
(2) The particular classification of each misdemeanor defined in
the Oregon Criminal Code is expressly designated in the section defining
the crime. An offense defined outside this code which, because of the
express sentence provided is within the definition of ORS 161.545, shall
be considered an unclassified misdemeanor.
(3) An offense defined by a statute of this state, but without
specification as to its classification or as to the penalty authorized
upon conviction, shall be considered a Class A misdemeanor. [1971 c.743
§70](1) Except as provided in subsection (4) of this section, a
prosecuting attorney may elect to treat any misdemeanor as a Class A
violation. The election must be made by the prosecuting attorney orally
at the time of the first appearance of the defendant or in writing filed
on or before the time scheduled for the first appearance of the
defendant. If no election is made within the time allowed, the case shall
proceed as a misdemeanor.
(2) If a prosecuting attorney elects to treat a misdemeanor as a
Class A violation under this section, the court shall amend the
accusatory instrument to reflect the charged offense as a Class A
violation and clearly denominate the offense as a Class A violation in
any judgment entered in the matter. Notwithstanding ORS 153.018, the
maximum fine that a court may impose upon conviction of a violation under
this section may not exceed the amount provided in ORS 161.635 for the
class of misdemeanor receiving violation treatment.
(3) If a prosecuting attorney elects to treat a misdemeanor as a
Class A violation under this section, and the defendant fails to make any
required appearance in the matter, the court may enter a default judgment
against the defendant in the manner provided by ORS 153.102.
Notwithstanding ORS 153.018, the maximum fine that the court may impose
under a default judgment entered pursuant to ORS 153.102 is the maximum
fine for the class of misdemeanor receiving violation treatment.
(4) A prosecuting attorney may not elect to treat misdemeanors
created under ORS 811.540 or 813.010 as violations under the provisions
of this section.
(5) The election provided for in this section may be made by a city
attorney acting as prosecuting attorney in the case of municipal
ordinance offenses, a county counsel acting as prosecuting attorney under
a county charter in the case of county ordinance offenses, and the
Attorney General acting as prosecuting attorney in those criminal actions
or proceedings within the jurisdiction of the Attorney General.
(6) Notwithstanding ORS 137.290 (1)(d), the unitary assessment
imposed upon conviction of a violation under this section is the amount
provided in ORS 137.290 for the misdemeanor receiving violation
treatment. [1999 c.1051 §47; 2003 c.737 §89] (1)
Except as provided in subsection (4) of this section, a court may elect
to treat any misdemeanor as a Class A violation for the purpose of
entering a default judgment under ORS 153.102 if:
(a) A complaint or information has been filed with the court for
the misdemeanor;
(b) The defendant has failed to make an appearance in the
proceedings required by the court or by law; and
(c) The court has given notice to the district attorney for the
county and the district attorney has informed the court that the district
attorney does not object to treating the misdemeanor as a Class A
violation.
(2) If the court treats a misdemeanor as a Class A violation under
this section, the court shall amend the accusatory instrument to reflect
the charged offense as a Class A violation and clearly denominate the
offense as a Class A violation in the judgment entered in the matter.
(3) Notwithstanding ORS 153.018, if the court treats a misdemeanor
as a Class A violation under this section, the maximum fine that the
court may impose under a default judgment entered pursuant to ORS 153.102
is the maximum fine for the class of misdemeanor receiving violation
treatment.
(4) A court may not treat misdemeanors created under ORS 811.540 or
813.010 as violations under the provisions of this section.
(5) Notwithstanding ORS 137.290 (1)(d), the unitary assessment
imposed upon conviction of a violation under this section is the amount
provided in ORS 137.290 for the misdemeanor receiving violation
treatment. [1999 c.1051 §48; 2003 c.737 §90] (1) As used in this section,
“nonperson felony” has the meaning given that term in the rules of the
Oregon Criminal Justice Commission.
(2) A district attorney may elect to treat a Class C nonperson
felony or a violation of ORS 475.840 (3)(a) or 475.864 (2) as a Class A
misdemeanor. The election must be made by the district attorney orally or
in writing at the time of the first appearance of the defendant. If a
district attorney elects to treat a Class C felony or a violation of ORS
475.840 (3)(a) or 475.864 (2) as a Class A misdemeanor under this
subsection, the court shall amend the accusatory instrument to reflect
the charged offense as a Class A misdemeanor.
(3) If, at some time after the first appearance of a defendant
charged with a Class C nonperson felony or a violation of ORS 475.840
(3)(a) or 475.864 (2), the district attorney and the defendant agree to
treat the charged offense as a Class A misdemeanor, the court may allow
the offense to be treated as a Class A misdemeanor by stipulation of the
parties.
(4) If a Class C felony or a violation of ORS 475.840 (3)(a) or
475.864 (2) is treated as a Class A misdemeanor under this section, the
court shall clearly denominate the offense as a Class A misdemeanor in
any judgment entered in the matter.
(5) If no election or stipulation is made under this section, the
case proceeds as a felony.
(6) Before a district attorney may make an election under
subsection (2) of this section, the district attorney shall adopt written
guidelines for determining when and under what circumstances the election
may be made. The district attorney shall apply the guidelines uniformly.
(7) Notwithstanding ORS 161.635, the maximum fine that a court may
impose upon conviction of a misdemeanor under this section may not exceed
the amount provided in ORS 161.625 for the class of felony receiving
Class A misdemeanor treatment. [2003 c.645 §2; 2005 c.708 §47]
(1) When a crime punishable as a felony is also punishable by
imprisonment for a maximum term of one year or by a fine, the crime shall
be classed as a misdemeanor if the court imposes a punishment other than
imprisonment under ORS 137.124 (1).
(2) Notwithstanding the provisions of ORS 161.525, upon conviction
of a crime punishable as described in subsection (1) of this section, the
crime is a felony for all purposes until one of the following events
occurs, after which occurrence the crime is a misdemeanor for all
purposes:
(a) Without imposing a sentence of probation, the court imposes a
sentence of imprisonment other than to the legal and physical custody of
the Department of Corrections.
(b) Without imposing a sentence of probation, the court imposes a
fine.
(c) Upon revocation of probation, the court imposes a sentence of
imprisonment other than to the legal and physical custody of the
Department of Corrections.
(d) Upon revocation of probation, the court imposes a fine.
(e) The court declares the offense to be a misdemeanor, either at
the time of imposing a sentence of probation, upon suspension of
imposition of a part of a sentence, or on application of defendant or the
parole and probation officer of the defendant thereafter.
(f) The court imposes a sentence of probation on the defendant
without imposition of any other sentence upon conviction and defendant is
thereafter discharged without any other sentence.
(g) Without imposing a sentence of probation and without imposing
any other sentence, the court declares the offense to be a misdemeanor
and discharges the defendant.
(3) The provisions of this section shall apply only to persons
convicted of a felony committed prior to November 1, 1989. [1971 c.743
§73; 1987 c.320 §85; 1989 c.790 §52; 1993 c.14 §18; 2005 c.264 §15]DISPOSITION OF OFFENDERS The maximum term of an
indeterminate sentence of imprisonment for a felony is as follows:
(1) For a Class A felony, 20 years.
(2) For a Class B felony, 10 years.
(3) For a Class C felony, 5 years.
(4) For an unclassified felony as provided in the statute defining
the crime. [1971 c.743 §74](1) As used in this section, “firearm” means a weapon which is designed
to expel a projectile by the action of black powder or smokeless powder.
(2) The use or threatened use of a firearm, whether operable or
inoperable, by a defendant during the commission of a felony may be
pleaded in the accusatory instrument and proved at trial as an element in
aggravation of the crime as provided in this section. When a crime is so
pleaded, the aggravated nature of the crime may be indicated by adding
the words “with a firearm” to the title of the offense. The unaggravated
crime shall be considered a lesser included offense.
(3) Notwithstanding the provisions of ORS 161.605 or 137.010 (3)
and except as otherwise provided in subsection (6) of this section, if a
defendant is convicted of a felony having as an element the defendant’s
use or threatened use of a firearm during the commission of the crime,
the court shall impose at least the minimum term of imprisonment as
provided in subsection (4) of this section. Except as provided in ORS
144.122 and 144.126 and subsection (5) of this section, in no case shall
any person punishable under this section become eligible for work
release, parole, temporary leave or terminal leave until the minimum term
of imprisonment is served, less a period of time equivalent to any
reduction of imprisonment granted for good time served or time credits
earned under ORS 421.121, nor shall the execution of the sentence imposed
upon such person be suspended by the court.
(4) The minimum terms of imprisonment for felonies having as an
element the defendant’s use or threatened use of a firearm in the
commission of the crime shall be as follows:
(a) Except as provided in subsection (5) of this section, upon the
first conviction for such felony, five years, except that if the firearm
is a machine gun, short-barreled rifle, short-barreled shotgun or is
equipped with a firearms silencer, the term of imprisonment shall be 10
years.
(b) Upon conviction for such felony committed after punishment
pursuant to paragraph (a) of this subsection or subsection (5) of this
section, 10 years, except that if the firearm is a machine gun,
short-barreled rifle, short-barreled shotgun or is equipped with a
firearms silencer, the term of imprisonment shall be 20 years.
(c) Upon conviction for such felony committed after imprisonment
pursuant to paragraph (b) of this subsection, 30 years.
(5) If it is the first time that the defendant is subject to
punishment under this section, rather than impose the sentence otherwise
required by subsection (4)(a) of this section, the court may:
(a) For felonies committed prior to November 1, 1989, suspend the
execution of the sentence or impose a lesser term of imprisonment, when
the court expressly finds mitigating circumstances justifying such lesser
sentence and sets forth those circumstances in its statement on
sentencing; or
(b) For felonies committed on or after November 1, 1989, impose a
lesser sentence in accordance with the rules of the Oregon Criminal
Justice Commission.
(6) When a defendant who is convicted of a felony having as an
element the defendant’s use or threatened use of a firearm during the
commission of the crime is a person who was waived from juvenile court
under ORS 137.707 (5)(b)(A), 419C.349, 419C.352, 419C.364 or 419C.370,
the court is not required to impose a minimum term of imprisonment under
this section. [1979 c.779 §2; 1985 c.552 §1; 1989 c.790 §72; 1989 c.839
§18; 1991 c.133 §3; 1993 c.692 §9; 1999 c.951 §3; 2005 c.407 §1] Sentences for misdemeanors
shall be for a definite term. The court shall fix the term of
imprisonment within the following maximum limitations:
(1) For a Class A misdemeanor, 1 year.
(2) For a Class B misdemeanor, 6 months.
(3) For a Class C misdemeanor, 30 days.
(4) For an unclassified misdemeanor, as provided in the statute
defining the crime. [1971 c.743 §75]
Notwithstanding any other provision of law, a sentence imposed upon any
person waived from the juvenile court under ORS 419C.349, 419C.352,
419C.364 or 419C.370 shall not include any sentence of death or life
imprisonment without the possibility of release or parole nor imposition
of any mandatory minimum sentence except that a mandatory minimum
sentence under:
(1) ORS 163.105 (1)(c) shall be imposed; and
(2) ORS 161.610 may be imposed. [1985 c.631 §9; 1989 c.720 §3; 1993
c.33 §306; 1993 c.546 §119; 1995 c.422 §131y; 1999 c.951 §2]Note: 161.620 was added to and made a part of ORS 161.615 to
161.685 by legislative action but was not added to any smaller series in
that series. See Preface to Oregon Revised Statutes for further
explanation. (1) A sentence to pay a fine for a
felony shall be a sentence to pay an amount, fixed by the court, not
exceeding:
(a) $500,000 for murder or aggravated murder.
(b) $375,000 for a Class A felony.
(c) $250,000 for a Class B felony.
(d) $125,000 for a Class C felony.
(2) A sentence to pay a fine for an unclassified felony shall be a
sentence to pay an amount, fixed by the court, as provided in the statute
defining the crime.
(3)(a) If a person has gained money or property through the
commission of a felony, then upon conviction thereof the court, in lieu
of imposing the fine authorized for the crime under subsection (1) or (2)
of this section, may sentence the defendant to pay an amount, fixed by
the court, not exceeding double the amount of the defendant’s gain from
the commission of the crime.
(b) The provisions of paragraph (a) of this subsection do not apply
to the felony theft of a companion animal, as defined in ORS 164.055, or
a captive wild animal.
(4) As used in this section, “gain” means the amount of money or
the value of property derived from the commission of the felony, less the
amount of money or the value of property returned to the victim of the
crime or seized by or surrendered to lawful authority before the time
sentence is imposed. “Value” shall be determined by the standards
established in ORS 164.115.
(5) When the court imposes a fine for a felony the court shall make
a finding as to the amount of the defendant’s gain from the crime. If the
record does not contain sufficient evidence to support a finding the
court may conduct a hearing upon the issue.
(6) Except as provided in ORS 161.655, this section does not apply
to a corporation. [1971 c.743 §76; 1981 c.390 §1; 1991 c.837 §11; 1993
c.680 §36; 2003 c.615 §1; 2003 c.737 §86] (1) A sentence to pay a fine for a
misdemeanor shall be a sentence to pay an amount, fixed by the court, not
exceeding:
(a) $6,250 for a Class A misdemeanor.
(b) $2,500 for a Class B misdemeanor.
(c) $1,250 for a Class C misdemeanor.
(2) A sentence to pay a fine for an unclassified misdemeanor shall
be a sentence to pay an amount, fixed by the court, as provided in the
statute defining the crime.
(3) If a person has gained money or property through the commission
of a misdemeanor, then upon conviction thereof the court, instead of
imposing the fine authorized for the offense under this section, may
sentence the defendant to pay an amount fixed by the court, not exceeding
double the amount of the defendant’s gain from the commission of the
offense. In that event, ORS 161.625 (4) and (5) apply.
(4) This section does not apply to corporations. [1971 c.743 §77;
1981 c.390 §2; 1993 c.680 §30; 1995 c.545 §2; 1999 c.1051 §44; 2003 c.737
§87] In determining whether to
impose a fine and its amount, the court shall consider:
(1) The financial resources of the defendant and the burden that
payment of a fine will impose, with due regard to the other obligations
of the defendant; and
(2) The ability of the defendant to pay a fine on an installment
basis or on other conditions to be fixed by the court. [1971 c.743 §78] (1) A sentence to pay a fine when
imposed on a corporation for an offense defined in the Oregon Criminal
Code or for an offense defined outside this code for which no special
corporate fine is specified, shall be a sentence to pay an amount, fixed
by the court, not exceeding:
(a) $50,000 when the conviction is of a felony.
(b) $5,000 when the conviction is of a Class A misdemeanor or of an
unclassified misdemeanor for which a term of imprisonment of more than
six months is authorized.
(c) $2,500 when the conviction is of a Class B misdemeanor or of an
unclassified misdemeanor for which the authorized term of imprisonment is
not more than six months.
(d) $1,000 when the conviction is of a Class C misdemeanor or an
unclassified misdemeanor for which the authorized term of imprisonment is
not more than 30 days.
(2) A sentence to pay a fine, when imposed on a corporation for an
offense defined outside the Oregon Criminal Code, if a special fine for a
corporation is provided in the statute defining the offense, shall be a
sentence to pay an amount, fixed by the court, as provided in the statute
defining the offense.
(3) If a corporation has gained money or property through the
commission of an offense, then upon conviction thereof the court, in lieu
of imposing the fine authorized for the offense under subsection (1) or
(2) of this section, may sentence the corporation to pay an amount, fixed
by the court, not exceeding double the amount of the corporation’s gain
from the commission of the offense. In that event, ORS 161.625 (4) and
(5) apply. [1971 c.743 §79; 1999 c.1051 §45](1) Except as provided in ORS 151.505, the court,
only in the case of a defendant for whom it enters a judgment of
conviction, may include in its sentence thereunder a provision that the
convicted defendant pay as costs expenses specially incurred by the state
in prosecuting the defendant. Costs include a reasonable attorney fee for
counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable
amount for fees and expenses incurred pursuant to preauthorization under
ORS 135.055. A reasonable attorney fee is presumed to be a reasonable
number of hours at the hourly rate authorized by the Public Defense
Services Commission under ORS 151.216. Costs do not include expenses
inherent in providing a constitutionally guaranteed jury trial or
expenditures in connection with the maintenance and operation of
government agencies that must be made by the public irrespective of
specific violations of law.
(2) Except as provided in ORS 151.505, the court, after the
conclusion of an appeal of its initial judgment of conviction, may
include in its general judgment, or enter a supplemental judgment that
includes, a requirement that a convicted defendant pay as costs a
reasonable attorney fee for counsel appointed pursuant to ORS 138.500,
including counsel who is appointed under ORS 151.216 or counsel who is
under contract to provide services for the proceeding under ORS 151.219,
and other costs and expenses allowed by the public defense services
executive director under ORS 138.500 (4). A reasonable attorney fee is
presumed to be a reasonable number of hours at the hourly rate authorized
by the commission under ORS 151.216.
(3) For purposes of subsections (1) and (2) of this section,
compensation of counsel is determined by reference to a schedule of
compensation established by the commission under ORS 151.216.
(4) The court may not sentence a defendant to pay costs under this
section unless the defendant is or may be able to pay them. In
determining the amount and method of payment of costs, the court shall
take account of the financial resources of the defendant and the nature
of the burden that payment of costs will impose.
(5) A defendant who has been sentenced to pay costs under this
section and who is not in contumacious default in the payment of costs
may at any time petition the court that sentenced the defendant for
remission of the payment of costs or of any unpaid portion of costs. If
it appears to the satisfaction of the court that payment of the amount
due will impose manifest hardship on the defendant or the immediate
family of the defendant, the court may remit all or part of the amount
due in costs, or modify the method of payment under ORS 161.675.
(6) Except as provided in subsection (7) of this section, all
moneys collected or paid under this section shall be paid into the
General Fund and credited to the Criminal Fine and Assessment Account.
(7) All moneys collected or paid under this section as costs for
expenses incurred by the state in extraditing the defendant to this state
shall be deposited into the Arrest and Return Account established in ORS
133.865. [1971 c.743 §80; 1981 s.s. c.3 §120; 1983 c.763 §12; 1985 c.710
§3; 1987 c.803 §26; 1989 c.1053 §11; 1991 c.460 §12; 1991 c.840 §1; 1997
c.761 §1; 2001 c.962 §§41,113; 2003 c.449 §29; 2003 c.576 §§247,248; 2003
c.615 §2]
(1) When a defendant, as a part of a sentence or as condition of
probation or suspension of sentence, is required to pay a sum of money
for any purpose, the court may order payment to be made immediately or
within a specified period of time or in specified installments. If a
defendant is sentenced to a term of imprisonment, any part of the
sentence that requires the payment of a sum of money for any purpose is
enforceable during the period of imprisonment if the court expressly
finds that the defendant has assets to pay all or part of the amounts
ordered.
(2) When a defendant whose sentence requires the payment of a sum
of money for any purpose is also sentenced to probation or imposition or
execution of sentence is suspended, the court may make payment of the sum
of money a condition of probation or suspension of sentence.
(3) When a defendant is sentenced to probation or imposition or
execution of sentence is suspended and the court requires as a part of
the sentence or as a condition of the probation or suspension of sentence
that the defendant pay a sum of money in installments, the court, or the
court clerk or parole and probation officer if so ordered by the court,
shall establish a schedule of payments to satisfy the obligation. A
schedule of payments shall be reviewed by the court upon motion of the
defendant at any time, so long as the obligation remains unsatisfied.
[1971 c.743 §81; 1977 c.371 §4; 1985 c.46 §1; 1993 c.14 §19; 1995 c.512
§3; 2005 c.264 §16](1) When a defendant who has been
sentenced or ordered to pay a fine, or to make restitution as defined in
ORS 137.103, defaults on a payment or installment ordered by the court,
the court on motion of the district attorney or upon its own motion may
require the defendant to show cause why the default should not be treated
as contempt of court, and may issue a show cause citation or a warrant of
arrest for the appearance of the defendant.
(2) If the court finds that the default constitutes contempt, the
court may impose one or more of the sanctions authorized by ORS 33.105.
(3) When a fine or an order of restitution is imposed on a
corporation or unincorporated association, it is the duty of the person
authorized to make disbursement from the assets of the corporation or
association to pay the fine or make the restitution from those assets,
and if that person fails to do so, the court may hold that person in
contempt.
(4) Notwithstanding ORS 33.105, the term of confinement for
contempt for nonpayment of fines or failure to make restitution shall be
set forth in the commitment order, and shall not exceed one day for each
$25 of the fine or restitution, 30 days if the fine or order of
restitution was imposed upon conviction of a violation or misdemeanor, or
one year in any other case, whichever is the shorter period.
(5) If it appears to the satisfaction of the court that the default
in the payment of a fine or restitution is not contempt, the court may
enter an order allowing the defendant additional time for payment,
reducing the amount of the payment or installments due on the payment, or
revoking the fine or order of restitution in whole or in part.
(6) A default in the payment of a fine or costs or failure to make
restitution or a default on an installment on a fine, costs or
restitution may be collected by any means authorized by law for the
enforcement of a judgment. The levy of execution or garnishment for the
collection of a fine or restitution shall not discharge a defendant
confined for contempt until the amount of the fine or restitution has
actually been collected.
(7) The court, or the court clerk if ordered by the court, may
report a default on a court-ordered payment to a consumer reporting
agency.
(8) The Chief Justice of the Supreme Court shall adopt rules under
ORS 1.002 establishing policies and procedures for reporting a default
under subsection (7) of this section to a consumer reporting agency that
may include, but are not limited to, limitations on reporting a default
to a consumer reporting agency.
(9) Except as otherwise provided in this section, proceedings under
this section shall be conducted:
(a) As provided in ORS 33.055, if the court seeks to impose
remedial sanctions as described in ORS 33.015 to 33.155; and
(b) As provided in ORS 33.065, if the court seeks to impose
punitive sanctions as described in ORS 33.015 to 33.155.
(10) Confinement under this section may be custody or
incarceration, whether actual or constructive.
(11) As used in this section, “consumer reporting agency” means any
person that regularly engages for fees, dues, or on a nonprofit basis, in
whole or in part, in the practice of assembling or evaluating consumer
credit information or other information on consumers for the purpose of
furnishing consumer reports to third parties. [1971 c.743 §82; 1977 c.371
§5; 1987 c.709 §3; 1987 c.873 §28; 1991 c.724 §27a; 1995 c.79 §50; 1995
c.512 §4]AUTHORITY OF SENTENCING COURT
Notwithstanding ORS 161.525, the court may enter judgment of conviction
for a Class A misdemeanor and make disposition accordingly when:
(1)(a) A person is convicted of any Class C felony;
(b) A person is convicted of a Class B felony pursuant to ORS
475.860 (2);
(c) A person is convicted of the Class B felony of possession of
marijuana pursuant to ORS 475.864 (2); or
(d) A person convicted of any of the felonies described in
paragraphs (a) to (c) of this subsection, or of a Class A felony pursuant
to ORS 166.720, has successfully completed a sentence of probation; and
(2) The court, considering the nature and circumstances of the
crime and the history and character of the defendant, believes that it
would be unduly harsh to sentence the defendant for a felony. [1971 c.743
§83; 1977 c.745 §31; 1979 c.124 §1; 1981 c.769 §8; 2005 c.708 §48] (1) Any court
empowered to suspend imposition or execution of sentence or to sentence a
defendant to probation may discharge the defendant if:
(a) The conviction is for an offense other than murder, treason or
a Class A or B felony; and
(b) The court is of the opinion that no proper purpose would be
served by imposing any condition upon the defendant’s release.
(2) If a sentence of discharge is imposed for a felony, the court
shall set forth in the record the reasons for its action.
(3) If the court imposes a sentence of discharge, the defendant
shall be released with respect to the conviction for which the sentence
is imposed without imprisonment, fine, probationary supervision or
conditions.
(4) If a defendant pleads not guilty and is tried and found guilty,
a sentence of discharge is a judgment on a conviction for all purposes,
including an appeal by the defendant.
(5) If a defendant pleads guilty, a sentence of discharge is not
appealable, but for all other purposes is a judgment on a conviction.
[1971 c.743 §84; 1993 c.14 §20; 2003 c.576 §249] (1)
Subject to the provisions of ORS 161.737, the maximum term of an
indeterminate sentence of imprisonment for a dangerous offender is 30
years, if because of the dangerousness of the defendant an extended
period of confined correctional treatment or custody is required for the
protection of the public and one or more of the following grounds exist:
(a) The defendant is being sentenced for a Class A felony and the
defendant is suffering from a severe personality disorder indicating a
propensity toward crimes that seriously endanger the life or safety of
another.
(b) The defendant is being sentenced for a felony that seriously
endangered the life or safety of another, the defendant has been
previously convicted of a felony not related to the instant crime as a
single criminal episode and the defendant is suffering from a severe
personality disorder indicating a propensity toward crimes that seriously
endanger the life or safety of another.
(c) The defendant is being sentenced for a felony that seriously
endangered the life or safety of another, the defendant has previously
engaged in unlawful conduct not related to the instant crime as a single
criminal episode that seriously endangered the life or safety of another
and the defendant is suffering from a severe personality disorder
indicating a propensity toward crimes that seriously endanger the life or
safety of another.
(2) As used in this section, “previously convicted of a felony”
means:
(a) Previous conviction of a felony in a court of this state;
(b) Previous conviction in a court of the United States, other than
a court-martial, of an offense which at the time of conviction of the
offense was and at the time of conviction of the instant crime is
punishable under the laws of the United States by death or by
imprisonment in a penitentiary, prison or similar institution for a term
of one year or more; or
(c) Previous conviction by a general court-martial of the United
States or in a court of any other state or territory of the United
States, or of the Commonwealth of Puerto Rico, of an offense which at the
time of conviction of the offense was punishable by death or by
imprisonment in a penitentiary, prison or similar institution for a term
of one year or more and which offense also at the time of conviction of
the instant crime would have been a felony if committed in this state.
(3) As used in this section, “previous conviction of a felony” does
not include:
(a) An offense committed when the defendant was less than 16 years
of age;
(b) A conviction rendered after the commission of the instant crime;
(c) A conviction that is the defendant’s most recent conviction
described in subsection (2) of this section, and the defendant was
finally and unconditionally discharged from all resulting imprisonment,
probation or parole more than seven years before the commission of the
instant crime; or
(d) A conviction that was by court-martial of an offense denounced
only by military law and triable only by court-martial.
(4) As used in this section, “conviction” means an adjudication of
guilt upon a plea, verdict or finding in a criminal proceeding in a court
of competent jurisdiction, but does not include an adjudication which has
been expunged by pardon, reversed, set aside or otherwise rendered
nugatory. [1971 c.743 §85; 1989 c.790 §75; 1993 c.334 §5; 2005 c.463 §9]Note: The amendments to 161.725 by section 14, chapter 463, Oregon
Laws 2005, become operative January 2, 2008. See section 20, chapter 463,
Oregon Laws 2005. The text that is operative on and after January 2,
2008, is set forth for the user’s convenience.
161.725. (1) Subject to the provisions of ORS 161.737, the maximum
term of an indeterminate sentence of imprisonment for a dangerous
offender is 30 years, if the court finds that because of the
dangerousness of the defendant an extended period of confined
correctional treatment or custody is required for the protection of the
public and if it further finds, as provided in ORS 161.735, that one or
more of the following grounds exist:
(a) The defendant is being sentenced for a Class A felony, and the
court finds that the defendant is suffering from a severe personality
disorder indicating a propensity toward crimes that seriously endanger
the life or safety of another.
(b) The defendant is being sentenced for a felony that seriously
endangered the life or safety of another, the defendant has been
previously convicted of a felony not related to the instant crime as a
single criminal episode and the court finds that the defendant is
suffering from a severe personality disorder indicating a propensity
toward crimes that seriously endanger the life or safety of another.
(c) The defendant is being sentenced for a felony that seriously
endangered the life or safety of another, the defendant has previously
engaged in unlawful conduct not related to the instant crime as a single
criminal episode that seriously endangered the life or safety of another
and the court finds that the defendant is suffering from a severe
personality disorder indicating a propensity toward crimes that seriously
endanger the life or safety of another.
(2) Unless the parties stipulate otherwise, the state has the
burden of proving beyond a reasonable doubt that the felonies or unlawful
conduct referred to in subsection (1)(b) and (c) of this section
seriously endangered the life and safety of another.
(3) As used in this section, “previously convicted of a felony”
means:
(a) Previous conviction of a felony in a court of this state;
(b) Previous conviction in a court of the United States, other than
a court-martial, of an offense which at the time of conviction of the
offense was and at the time of conviction of the instant crime is
punishable under the laws of the United States by death or by
imprisonment in a penitentiary, prison or similar institution for a term
of one year or more; or
(c) Previous conviction by a general court-martial of the United
States or in a court of any other state or territory of the United
States, or of the Commonwealth of Puerto Rico, of an offense which at the
time of conviction of the offense was punishable by death or by
imprisonment in a penitentiary, prison or similar institution for a term
of one year or more and which offense also at the time of conviction of
the instant crime would have been a felony if committed in this state.
(4) As used in this section, “previous conviction of a felony” does
not include:
(a) An offense committed when the defendant was less than 16 years
of age;
(b) A conviction rendered after the commission of the instant crime;
(c) A conviction that is the defendant’s most recent conviction
described in subsection (3) of this section, and the defendant was
finally and unconditionally discharged from all resulting imprisonment,
probation or parole more than seven years before the commission of the
instant crime; or
(d) A conviction that was by court-martial of an offense denounced
only by military law and triable only by court-martial.
(5) As used in this section, “conviction” means an adjudication of
guilt upon a plea, verdict or finding in a criminal proceeding in a court
of competent jurisdiction, but does not include an adjudication which has
been expunged by pardon, reversed, set aside or otherwise rendered
nugatory. (1)
Upon motion of the district attorney, and if, in the opinion of the
court, there is reason to believe that the defendant falls within ORS
161.725, the court shall order a presentence investigation and an
examination by a psychiatrist or psychologist. The court may appoint one
or more qualified psychiatrists or psychologists to examine the defendant
in the local correctional facility.
(2) All costs connected with the examination shall be paid by the
state.
(3) The examination performed pursuant to this section shall be
completed within 30 days, subject to additional extensions not exceeding
30 days on order of the court. Each psychiatrist and psychologist
appointed to examine a defendant under this section shall file with the
court a written report of findings and conclusions, including an
evaluation of whether the defendant is suffering from a severe
personality disorder indicating a propensity toward criminal activity.
(4) No statement made by a defendant under this section or ORS
137.124 or 423.090 shall be used against the defendant in any civil
proceeding or in any other criminal proceeding.
(5) Upon receipt of the examination and presentence reports the
court shall set a time for a presentence hearing, unless the district
attorney and the defendant waive the hearing. At the presentence hearing
the district attorney and the defendant may question any psychiatrist or
psychologist who examined the defendant pursuant to this section.
(6) If, after considering the evidence in the case or in the
presentence hearing, the jury or, if the defendant waives the right to a
jury trial, the court finds that the defendant comes within ORS 161.725,
the court may sentence the defendant as a dangerous offender.
(7) In determining whether a defendant has been previously
convicted of a felony for purposes of ORS 161.725, the court shall
consider as prima facie evidence of the previous conviction:
(a) A copy of the judicial record of the conviction which copy is
authenticated under ORS 40.510;
(b) A copy of the fingerprints of the subject of that conviction
which copy is authenticated under ORS 40.510; and
(c) Testimony that the fingerprints of the subject of that
conviction are those of the defendant.
(8) Subsection (7) of this section does not prohibit proof of the
previous conviction by any other procedure.
(9) The facts required to be found to sentence a defendant as a
dangerous offender under this section are enhancement facts, as defined
in section 1, chapter 463, Oregon Laws 2005, and sections 2 to 7, chapter
463, Oregon Laws 2005, apply to making determinations of those facts.
[1971 c.743 §86; 1973 c.836 §341; 1981 c.892 §89a; 1983 c.740 §27; 1987
c.248 §1; 1999 c.163 §9; 2005 c.463 §10]Note: The amendments to 161.735 by section 15, chapter 463, Oregon
Laws 2005, become operative January 2, 2008. See section 20, chapter 463,
Oregon Laws 2005. The text that is operative on and after January 2,
2008, is set forth for the user’s convenience.
161.735. (1) Upon motion of the district attorney, and if, in the
opinion of the court, there is reason to believe that the defendant falls
within ORS 161.725, the court shall order a presentence investigation and
an examination by a psychiatrist or psychologist. The court may appoint
one or more qualified psychiatrists or psychologists to examine the
defendant in the local correctional facility.
(2) All costs connected with the examination shall be paid by the
state.
(3) The examination performed pursuant to this section shall be
completed within 30 days, subject to additional extensions not exceeding
30 days on order of the court. Each psychiatrist and psychologist
appointed to examine a defendant under this section shall file with the
court a written report of findings and conclusions, including an
evaluation of whether the defendant is suffering from a severe
personality disorder indicating a propensity toward criminal activity.
(4) No statement made by a defendant under this section or ORS
137.124 or 423.090 shall be used against the defendant in any civil
proceeding or in any other criminal proceeding.
(5) Upon receipt of the examination and presentence reports the
court shall set a time for a presentence hearing, unless the district
attorney and the defendant waive the hearing. At the presentence hearing
the district attorney and the defendant may question any psychiatrist or
psychologist who examined the defendant pursuant to this section.
(6) If, after considering the presentence report, the examination
reports and the evidence in the case or in the presentence hearing, the
court finds that the defendant comes within ORS 161.725, the court may
sentence the defendant as a dangerous offender.
(7) In determining whether a defendant has been previously
convicted of a felony for purposes of ORS 161.725, the court shall
consider as prima facie evidence of the previous conviction:
(a) A copy of the judicial record of the conviction which copy is
authenticated under ORS 40.510;
(b) A copy of the fingerprints of the subject of that conviction
which copy is authenticated under ORS 40.510; and
(c) Testimony that the fingerprints of the subject of that
conviction are those of the defendant.
(8) Subsection (7) of this section does not prohibit proof of the
previous conviction by any other procedure.(1) A sentence imposed under ORS 161.725 and
161.735 for felonies committed on or after November 1, 1989, shall
constitute a departure from the sentencing guidelines created by rules of
the Oregon Criminal Justice Commission. The findings made to classify the
defendant as a dangerous offender under ORS 161.725 and 161.735 shall
constitute substantial and compelling reasons to depart from the
presumptive sentence as provided by rules of the Oregon Criminal Justice
Commission.
(2) When the sentence is imposed, the sentencing judge shall
indicate on the record the reasons for the departure and shall impose, in
addition to the indeterminate sentence imposed under ORS 161.725, a
required incarceration term that the offender must serve before release
to post-prison supervision. If the presumptive sentence that would have
been imposed if the court had not imposed the sentence under ORS 161.725
and 161.735 as a departure is a prison sentence, the required
incarceration term shall be no less than the presumptive incarceration
term and no more than twice the maximum presumptive incarceration term.
If the presumptive sentence for the offense is probation, the required
incarceration term shall be no less than the maximum incarceration term
provided by the rule of the Oregon Criminal Justice Commission that
establishes incarceration terms for dispositional departures and no more
than twice that amount. However, the indeterminate sentence imposed under
this section and ORS 161.725 is not subject to any guideline rule
establishing limitations on the duration of departures. [1989 c.790 §77;
1993 c.334 §6]
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