2007 Oregon Code - Chapter 135 :: Chapter 135 - Arraignment and Pretrial Provisions
Chapter 135 —
Arraignment and Pretrial Provisions
2007 EDITION
ARRAIGNMENT AND PRETRIAL PROVISIONS
PROCEDURE IN CRIMINAL MATTERS GENERALLY
ARRAIGNMENT
(Generally)
135.010Â Â Â Â Time
and place
135.020Â Â Â Â Scope
of proceedings
135.030Â Â Â Â When
presence of defendant is required; appearance by counsel
135.035Â Â Â Â Bringing
in defendant not yet arrested or held to answer
135.037Â Â Â Â Omnibus
hearing; when held; subject; ruling of court; counsel required
(Counsel; Name Used)
135.040Â Â Â Â Right
to counsel
135.045Â Â Â Â Court
appointment of counsel; waiver of counsel; appointment of legal advisor
135.050Â Â Â Â Eligibility
for court-appointed counsel; financial statement; termination; civil liability
135.055Â Â Â Â Compensation
and expenses of appointed counsel
135.060Â Â Â Â Communication
to defendant as to use of name in accusatory instrument; effect of
acknowledging true name at arraignment
135.065Â Â Â Â Name
used in further proceedings; motion to strike false name
135.067Â Â Â Â Effect
of failure to provide true name of defendant on certain types of release
PRELIMINARY HEARING
(Generally)
135.070Â Â Â Â Information
as to charge, right to counsel, use of statement, preliminary hearing and use
by State Board of Parole and Post-Prison Supervision
135.073Â Â Â Â Statement
by defendant when not advised of rights
135.075Â Â Â Â Obtaining
counsel
135.085Â Â Â Â Subpoenaing
witnesses
135.090Â Â Â Â Examination
of adverse witnesses
135.095Â Â Â Â Right
of defendant to make or waive making a statement
135.100Â Â Â Â Statement
of defendant
135.105Â Â Â Â Use
of statement before grand jury or on trial
135.115Â Â Â Â Waiver
of right to make statement
135.125Â Â Â Â Examination
of defendantÂ’s witnesses
135.135Â Â Â Â Exclusion
of witnesses during examination of others
135.139Â Â Â Â Notice
of availability of testing for HIV and other communicable diseases to person
charged with crime; when court may order test; victimÂ’s rights
135.145Â Â Â Â Testimony
of witnesses
135.155Â Â Â Â Retention
of record and statements by magistrate; inspection
135.165Â Â Â Â Counsel
for complainant; district attorney
135.173Â Â Â Â Oregon
Evidence Code to apply in preliminary hearings; exception
(Discharge or Commitment)
135.175Â Â Â Â Discharge
135.185Â Â Â Â Holding
defendant to answer; use of hearsay evidence
135.195Â Â Â Â Commitment
135.205Â Â Â Â Indorsement
in certain cases
135.215Â Â Â Â Direction
to sheriff; detention of defendant
135.225Â Â Â Â Forwarding
of papers by magistrate
RELEASE OF DEFENDANT
135.230Â Â Â Â Definitions
for ORS 135.230 to 135.290
135.235Â Â Â Â Release
assistance officer; appointment; duties
135.240Â Â Â Â Releasable
offenses
135.245Â Â Â Â Release
decision
135.250Â Â Â Â General
conditions of release agreement
135.255Â Â Â Â Release
agreement
135.260Â Â Â Â Conditional
release
135.265Â Â Â Â Security
release
135.270Â Â Â Â Taking
of security
135.280Â Â Â Â Arrest
warrant; forfeiture
135.285Â Â Â Â Modification
of release decision; release upon appeal
135.290Â Â Â Â Punishment
by contempt of court
135.295Â Â Â Â Application
of ORS 135.230 to 135.290 to certain traffic offenses
PLEADINGS
(DefendantÂ’s Answer Generally)
135.305Â Â Â Â Types
of answer
135.315Â Â Â Â Types
of pleading
135.325Â Â Â Â Pleading
a judgment
(Plea)
135.335Â Â Â Â Pleading
by defendant; alternatives
135.345Â Â Â Â Legal
effect of plea of no contest
135.355Â Â Â Â Presentation
of plea; entry in register; forms
135.360Â Â Â Â Special
provisions relating to presentation of plea of guilty or no contest
135.365Â Â Â Â Withdrawal
of plea of guilty or no contest
135.370Â Â Â Â Not
guilty plea as denial of allegations of accusatory instrument
135.375Â Â Â Â Pleading
to other offenses
135.380Â Â Â Â Time
of entering plea; aid of counsel
135.385Â Â Â Â Defendant
to be advised by court
135.390Â Â Â Â Determining
voluntariness of plea
135.395Â Â Â Â Determining
accuracy of plea
(Plea Discussions and Agreements)
135.405Â Â Â Â Plea
discussions and plea agreements
135.406Â Â Â Â Consultation
with victim regarding plea discussions
135.407Â Â Â Â Plea
agreement must contain defendantÂ’s criminal history classification;
stipulations
135.415Â Â Â Â Criteria
to be considered in plea discussions and plea agreements
135.425Â Â Â Â Responsibilities
of defense counsel
135.432Â Â Â Â Responsibilities
of trial judge
135.435Â Â Â Â Discussion
and agreement not admissible
135.445Â Â Â Â Withdrawn
plea or statement not admissible
(Related Procedure)
135.455Â Â Â Â Notice
prior to trial of intention to rely on alibi evidence; content of notice;
effect of failure to supply notice
135.465Â Â Â Â Defect
in accusatory instrument as affecting acquittal on merits
PRETRIAL MOTIONS
135.470Â Â Â Â Motion
to dismiss accusatory instrument on grounds of former jeopardy
135.510Â Â Â Â Grounds
for motion to set aside the indictment
135.520Â Â Â Â Time
of making motion; hearing
135.530Â Â Â Â Effect
of allowance of motion
135.540Â Â Â Â Effect
of resubmission of case
135.560Â Â Â Â Order
to set aside is no bar to future prosecution
DEMURRERS
135.610Â Â Â Â Demurrer;
generally
135.630Â Â Â Â Grounds
of demurrer
135.640Â Â Â Â When
objections that are grounds for demurrer may be taken
135.650Â Â Â Â Hearing
of objections specified by demurrer
135.660Â Â Â Â Judgment
on demurrer; entry in register
135.670Â Â Â Â Allowance
of demurrer
135.680Â Â Â Â Failure
to resubmit case after allowance of demurrer
135.690Â Â Â Â Resubmission
of case
135.700Â Â Â Â Disallowance
of demurrer
COMPROMISE
135.703Â Â Â Â Crimes
subject to being compromised; exceptions
135.705Â Â Â Â Satisfaction
of injured person; dismissal of charges
135.707Â Â Â Â Discharge
as bar to prosecution
135.709Â Â Â Â Exclusiveness
of procedure
SUFFICIENCY OF ACCUSATORY INSTRUMENTS
135.711Â Â Â Â Facts
constituting crime or subcategory of crime required
135.713Â Â Â Â Necessity
of stating presumptions of law and matters judicially noticed
135.715Â Â Â Â Effect
of nonprejudicial defects in form of accusatory instrument
135.717Â Â Â Â Time
of crime
135.720Â Â Â Â Place
of crime in certain cases
135.725Â Â Â Â Person
injured or intended to be injured
135.727Â Â Â Â Description
of animal
135.730Â Â Â Â Judgments;
facts conferring jurisdiction
135.733Â Â Â Â Defamation
135.735Â Â Â Â Forgery;
misdescription of forged instrument
135.737Â Â Â Â Perjury
135.740Â Â Â Â Construction
of words and phrases used
135.743Â Â Â Â Fictitious
or erroneous name; insertion of true name
SPEEDY TRIAL PROVISIONS
135.745Â Â Â Â Delay
in finding an indictment or filing an information
135.747Â Â Â Â Effect
of delay in bringing defendant to trial
135.750Â Â Â Â Where
there is reason for delay
DISMISSAL OF ACTION
135.753Â Â Â Â Effect
of dismissal
135.755Â Â Â Â Dismissal
on motion of court or district attorney
135.757Â Â Â Â Nolle
prosequi; discontinuance by district attorney
PROSECUTION OF PRISONERS
135.760Â Â Â Â Notice
requesting early trial on pending charge
135.763Â Â Â Â Trial
within 90 days of notice unless continuance granted
135.765Â Â Â Â Dismissal
of criminal proceeding not brought to trial within allowed time; exceptions
135.767Â Â Â Â Presence
of prisoner at proceedings
135.770Â Â Â Â Release
of prisoner prohibited
135.773Â Â Â Â District
attorney to furnish certain documents
DETAINER
135.775Â Â Â Â Agreement
on Detainers
135.777Â Â Â Â Definition
for ORS 135.775
135.779Â Â Â Â Enforcement
of ORS 135.775 by public agencies
135.783Â Â Â Â Effect
of escape from custody in another state
135.785Â Â Â Â Surrender
of custody under ORS 135.775
135.787Â Â Â Â Administrator
of agreement; appointment; duties
135.789Â Â Â Â Notice
of request for temporary custody; prisonerÂ’s rights
135.791Â Â Â Â Request
for final disposition of detainer from prisoner without state
135.793Â Â Â Â Procedure
where untried instrument pending against prisoner without state
PRETRIAL DISCOVERY
135.805Â Â Â Â Applicability;
scope of disclosure
135.815Â Â Â Â Disclosure
to defendant
135.825Â Â Â Â Other
disclosure to defense; special conditions
135.835Â Â Â Â Disclosure
to the state
135.845Â Â Â Â Time
of disclosure
135.855Â Â Â Â Material
and information not subject to discovery
135.857Â Â Â Â Disclosure
to victim; conditions
135.865Â Â Â Â Effect
of failure to comply with discovery requirements
135.873Â Â Â Â Protective
orders
DIVERSION
(Generally)
135.881Â Â Â Â Definitions
for ORS 135.881 to 135.901
135.886Â Â Â Â Requirements
for diversion; factors considered
135.891Â Â Â Â Conditions
of diversion agreement; dismissal of criminal charges; scope of agreement
135.896Â Â Â Â Stay
of criminal proceedings during period of agreement; limitation on stay; effect
of declining diversion
135.901Â Â Â Â Effect
of compliance or noncompliance with agreement; effect of partial compliance in
subsequent criminal proceedings; record of participation in program
135.905Â Â Â Â Unitary
assessment
(Possession of Marijuana)
135.907Â Â Â Â Notification
of availability of diversion; petition form; information
135.909Â Â Â Â Filing
petition; procedure
135.911Â Â Â Â Diversion
for first offense only
135.913Â Â Â Â Diversion
agreement part of record of case; duration of agreement; effect of denial of
petition
135.915Â Â Â Â Effect
of compliance with agreement
135.917Â Â Â Â Designation
of agencies to perform diagnostic assessments; duties of agency
135.919Â Â Â Â Termination
of agreement by court; procedure; grounds; effect
135.921Â Â Â Â Amount
and distribution of filing fee; diagnostic assessment fee
(Bad Check)
135.925Â Â Â Â Bad
check diversion program
EARLY DISPOSITION PROGRAMS
135.941Â Â Â Â Early
disposition programs
135.942Â Â Â Â Purposes
of program
135.943Â Â Â Â Provisions
of program
135.948Â Â Â Â Availability
to probationers
135.949Â Â Â Â Other
programs authorized
MEDIATING CRIMINAL OFFENSES
135.951Â Â Â Â Authorization;
determining when appropriate; exclusions
135.953Â Â Â Â How
mediation may be used
135.955Â Â Â Â Notifying
victims and person charged with crime of mediation opportunities
135.957Â Â Â Â Application
of ORS 36.220 to 36.238 to mediation of criminal offenses; information to
parties
135.959Â Â Â Â Authority
to contract with dispute resolution programs
MISCELLANEOUS
135.970Â Â Â Â When
address and phone number of victim or witness not to be given to defendant;
deposition of victim; when contact with victim prohibited; effect of threats by
defendant
135.980Â Â Â Â Rehabilitative
programs directory; compilation; availability
PENALTIES
135.990Â Â Â Â Penalties
ARRAIGNMENT
(Generally)
     135.010
Time and place. When the
accusatory instrument has been filed, and if the defendant has been arrested,
or as soon thereafter as the defendant may be arrested, the defendant shall be
arraigned thereon as provided in ORS 135.030 before the court in which it is
found. Except for good cause shown or at the request of the defendant, if the
defendant is in custody, the arraignment shall be held during the first 36
hours of custody, excluding holidays, Saturdays and Sundays. In all other
cases, except as provided for in ORS 133.060, the arraignment shall be held
within 96 hours after the arrest. [Amended by 1973 c.836 §130; 1983 c.344 §1;
1983 c.661 §12]
     135.020
Scope of proceedings. The
arraignment shall be made by the court, or by the clerk or the district
attorney under its direction, as provided in ORS 135.030. The arraignment
consists of reading the accusatory instrument to the defendant, causing
delivery to the defendant of a copy thereof and indorsements thereon, including
the list of witnesses indorsed on it or appended thereto if the accusatory
instrument is an indictment, asking the defendant how the defendant pleads to
the charge. [Amended by 1973 c.836 §131; 1983 c.344 §2]
     135.030
When presence of defendant is required; appearance by counsel. (1) When the accusatory instrument charges a
crime punishable as a felony, the defendant shall appear in person at the
arraignment.
     (2) When the accusatory instrument charges
a crime punishable as a misdemeanor, the defendant may appear in person or by
counsel.
     (3) The court may require a defendant to
appear at the arraignment by simultaneous electronic transmission as provided
in ORS 131.045 without the agreement of the state or defendant if the type of
simultaneous electronic transmission available allows the defendant to observe
the court and the court to observe the defendant. [Formerly 135.110; 1983 c.344
§3; 2005 c.566 §5]
     135.035
Bringing in defendant not yet arrested or held to answer. When an accusatory instrument is filed in
court, if the defendant has not been arrested and held to answer the charge,
unless the defendant voluntarily appears for arraignment, the court shall issue
a warrant of arrest as provided in ORS 133.110. [Formerly 135.140]
     135.037
Omnibus hearing; when held; subject; ruling of court; counsel required. (1) At any time after the filing of the
accusatory instrument in circuit court and before the commencement of trial
thereon, the court upon motion of any party shall, and upon its own motion may,
order an omnibus hearing.
     (2) The purpose of an omnibus hearing
shall be to rule on all pretrial motions and requests, including but not
limited to the following issues:
     (a) Suppression of evidence;
     (b) Challenges to identification
procedures used by the prosecution;
     (c) Challenges to voluntariness of
admissions or confession;
     (d) Challenges to the accusatory
instrument.
     (3) The court, at the time of the omnibus
hearing, may also consider any matters which will facilitate trial by avoiding
unnecessary proof or by simplifying the issues to be tried, or which are
otherwise appropriate under the circumstances to facilitate disposition of the
proceeding.
     (4) At the conclusion of the hearing and
prior to trial the court shall prepare and file an order setting forth all
rulings of the court on issues raised under subsection (2) of this section. The
court shall further prepare and file a memorandum of other matters agreed upon
at the hearing. Except in a prosecution of the defendant for perjury or false
swearing, or impeachment of the defendant, no admissions made by the defendant
or the attorney of the defendant at the hearing shall be used against the
defendant unless the admissions are reduced to writing and signed by the
defendant and the attorney.
     (5) This section shall not be applied in
any proceeding or at any stage of any proceeding where the defendant is not
represented by counsel. [1973 c.550 §2]
(Counsel;
Name Used)
     135.040
Right to counsel. If the
defendant appears for arraignment without counsel, the defendant shall be
informed by the court that it is the right of the defendant to have counsel
before being arraigned and shall be asked if the defendant desires the aid of
counsel. [Formerly 135.310]
     135.045
Court appointment of counsel; waiver of counsel; appointment of legal advisor. (1)(a) If the defendant in a criminal action
appears without counsel at arraignment or thereafter, the court shall determine
whether the defendant wishes to be represented by counsel.
     (b) If the defendant does wish to be
represented by counsel, the court, in accordance with ORS 135.050, shall
appoint counsel to represent the defendant.
     (c) If the defendant wishes to waive
counsel, the court shall determine whether the defendant has made a knowing and
voluntary waiver of counsel. The court shall accept the waiver of counsel if
the defendant is not charged with a capital offense. The court may decline to
accept the waiver of counsel if the defendant is charged with a capital
offense.
     (d) If the court accepts a defendant’s
waiver of counsel, the court may allow an attorney to serve as the defendantÂ’s
legal advisor and may, in accordance with ORS 135.050, appoint an attorney as
the defendantÂ’s legal advisor.
     (2) Appointment of counsel, including a
legal advisor, under this section is subject to ORS 135.050, 135.055 and
151.485 to 151.497. [Formerly 135.320; 1987 c.803 §13; 1989 c.171 §16; 1989
c.1053 §1a; 1991 c.790 §11; 2001 c.472 §1; 2001 c.962 §24]
     135.050
Eligibility for court-appointed counsel; financial statement; termination;
civil liability. (1)
Suitable counsel for a defendant shall be appointed by a municipal, county or
justice court if:
     (a) The defendant is before a court on a
matter described in subsection (5) of this section;
     (b) The defendant requests aid of counsel;
     (c) The defendant provides to the court a
written and verified financial statement; and
     (d) It appears to the court that the
defendant is financially unable to retain adequate representation without
substantial hardship in providing basic economic necessities to the defendant
or the defendantÂ’s dependent family.
     (2) Suitable counsel for a defendant shall
be appointed by a circuit court if:
     (a) The defendant is before the court on a
matter described in subsection (5) of this section;
     (b) The defendant requests aid of counsel;
     (c) The defendant provides to the court a
written and verified financial statement; and
     (d)(A) The defendant is determined to be
financially eligible under ORS 151.485 and the standards established by the
Public Defense Services Commission under ORS 151.216; or
     (B) The court finds, on the record,
substantial and compelling reasons why the defendant is financially unable to
retain adequate representation without substantial hardship in providing basic
economic necessities to the defendant or the defendantÂ’s dependent family
despite the fact that the defendant does not meet the financial eligibility
standards established by the commission.
     (3) Appointed counsel may not be denied to
any defendant merely because the defendantÂ’s friends or relatives have
resources adequate to retain counsel or because the defendant has deposited or
is capable of depositing security for release. However, appointed counsel may
be denied to a defendant if the defendantÂ’s spouse has adequate resources which
the court determines should be made available to retain counsel.
     (4) The defendant’s financial statement
under subsection (1) or (2) of this section shall include, but not be limited
to:
     (a) A list of bank accounts in the name of
defendant or defendantÂ’s spouse, and the balance in each;
     (b) A list of defendant’s interests in
real property and those of defendantÂ’s spouse;
     (c) A list of automobiles and other
personal property of significant value belonging to defendant or defendantÂ’s
spouse;
     (d) A list of debts in the name of
defendant or defendantÂ’s spouse, and the total of each; and
     (e) A record of earnings and other sources
of income in the name of defendant or defendantÂ’s spouse, and the total of
each.
     (5) Counsel must be appointed for a
defendant who meets the requirements of subsection (1) or (2) of this section
and who is before a court on any of the following matters:
     (a) Charged with a crime.
     (b) For a hearing to determine whether an
enhanced sentence should be imposed when such proceedings may result in the
imposition of a felony sentence.
     (c) For extradition proceedings under the
provisions of the Uniform Criminal Extradition Act.
     (d) For any proceeding concerning an order
of probation, including but not limited to the revoking or amending thereof.
     (6) Unless otherwise ordered by the court,
the appointment of counsel under this section shall continue during all
criminal proceedings resulting from the defendantÂ’s arrest through acquittal or
the imposition of punishment. The court having jurisdiction of the case may not
substitute one appointed counsel for another except pursuant to the policies,
procedures, standards and guidelines of the Public Defense Services Commission
under ORS 151.216.
     (7) If, at any time after the appointment
of counsel, the court having jurisdiction of the case finds that the defendant
is financially able to obtain counsel, the court may terminate the appointment
of counsel. If, at any time during criminal proceedings, the court having
jurisdiction of the case finds that the defendant is financially unable to pay
counsel whom the defendant has retained, the court may appoint counsel as
provided in this section.
     (8) The court may order the defendant in a
circuit court to pay to the Public Defense Services Account in the General
Fund, through the clerk of the court, in full or in part the administrative
costs of determining the eligibility of the defendant for appointed counsel and
the costs of the legal and other services that are related to the provision of
appointed counsel under ORS 151.487, 151.505 or 161.665.
     (9) In addition to any criminal
prosecution, a civil proceeding may be initiated by any public body which has
expended moneys for the defendantÂ’s legal assistance within two years of
judgment if the defendant was not qualified in accordance with subsection (1)
or (2) of this section for legal assistance.
     (10) The civil proceeding shall be subject
to the exemptions from execution as provided for by law.
     (11) As used in this section unless the
context requires otherwise, “counsel” includes a legal advisor appointed under
ORS 135.045. [Formerly 133.625; 1981 c.3 §118; 1985 c.710 §1; 1989 c.1053 §1b;
1997 c.761 §8; 2001 c.472 §4; 2001 c.962 §25; 2003 c.449 §49]
     135.053 [1979 c.806 §1; 1981 s.s. c.3 §124; repealed
by 1985 c.502 §28]
     135.055
Compensation and expenses of appointed counsel. (1) Counsel appointed pursuant to ORS
135.045 or 135.050 shall be paid fair compensation for representation in the
case:
     (a) By the county, subject to the approval
of the governing body of the county, in a proceeding in a county or justice
court.
     (b) By the public defense services
executive director from funds available for the purpose, in a proceeding in a
circuit court.
     (2) Except for counsel appointed pursuant
to contracts or counsel employed by the public defense services executive
director, compensation payable to appointed counsel under subsection (1) of
this section:
     (a) In a proceeding in a county or justice
court may not be less than $30 per hour.
     (b) In a proceeding in a circuit court is
subject to the applicable compensation established under ORS 151.216.
     (3)(a) A person determined to be eligible
for appointed counsel is entitled to necessary and reasonable fees and expenses
for investigation, preparation and presentation of the case for trial,
negotiation and sentencing. The person or the counsel for the person shall upon
written request secure preauthorization to incur fees and expenses that are not
routine to representation but are necessary and reasonable in the
investigation, preparation and presentation of the case, including but not
limited to nonroutine travel, photocopying or other reproduction of nonroutine
documents, necessary costs associated with obtaining the attendance of
witnesses for the defense, investigator fees and expenses, expert witness fees
and expenses and fees for interpreters and assistive communication devices
necessary for the purpose of communication between counsel and a client or
witness in the case. Preauthorization to incur a fee or expense does not
guarantee that a fee or expense incurred pursuant to the preauthorization will
be determined to be necessary or reasonable when the fee or expense is
submitted for payment.
     (b) In a county or justice court, the
request must be in the form of a motion to the court. The motion must be
accompanied by a supporting affidavit that sets out in detail the purpose of
the requested expenditure, the name of the service provider or other recipient
of the funds, the dollar amount of the requested expenditure that may not be
exceeded without additional authorization and the date or dates during which
the service will be rendered or events will occur for which the expenditure is
requested.
     (c) In a circuit court, the request must
be in the form and contain the information that is required by the policies,
procedures, standards and guidelines of the Public Defense Services Commission.
If the public defense services executive director denies a request for
preauthorization to incur nonroutine fees and expenses, the person making the
request may appeal the decision to the presiding judge of the circuit court.
The presiding judge has final authority to preauthorize incurring nonroutine
fees and expenses under this paragraph.
     (d) Entitlement under subsection (7) of
this section to payment for fees and expenses in circuit court is subject to
the policies, procedures, standards and guidelines adopted under ORS 151.216.
Entitlement to payment of nonroutine fees and expenses is dependent upon
obtaining preauthorization from the court, if the case is in county or justice
court, or from the public defense services executive director, if the case is
in circuit court, except as otherwise provided in paragraph (c) of this
subsection and in the policies, procedures, standards and guidelines adopted
under ORS 151.216. Fees and expenses shall be paid:
     (A) By the county, in respect to a
proceeding in a county or justice court.
     (B) By the public defense services
executive director from funds available for the purpose, in respect to a
proceeding in a circuit court.
     (C) By the city, in respect to a
proceeding in municipal court.
     (4) Upon completion of all services by the
counsel of a person determined to be eligible for appointed counsel, the
counsel shall submit a statement of all necessary and reasonable fees and
expenses of investigation, preparation and presentation and, if counsel was
appointed by the court, a statement of all necessary and reasonable fees and
expenses for legal representation, supported by appropriate receipts or
vouchers and certified by the counsel to be true and accurate.
     (5) In a county or justice court, the
total fees and expenses payable under this section must be submitted to the
court by counsel or other providers and are subject to the review of the court.
The court shall certify that such amount is fair reimbursement for fees and
expenses for representation in the case as provided in subsection (6) of this
section. Upon certification and any verification as provided under subsection
(6) of this section, the amount of the fees and expenses approved by the court
and not already paid shall be paid by the county.
     (6) In a county or justice court, the
court shall certify to the administrative authority responsible for paying fees
and expenses under this section that the amount for payment is reasonable and
that the amount is properly payable out of public funds.
     (7) In a circuit court, the total fees and
expenses payable under this section must be submitted to and are subject to
review by the public defense services executive director. The public defense
services executive director shall determine whether the amount is necessary,
reasonable and properly payable from public funds for fees and expenses for
representation in the case as provided by the policies, procedures, standards
and guidelines of the Public Defense Services Commission. The public defense
services executive director shall pay the amount of the fees and expenses
determined necessary, reasonable and properly payable out of public funds. The
court shall provide any information identified and requested by the public
defense services executive director as needed for audit, statistical or any
other purpose pertinent to ensure the proper disbursement of state funds or
pertinent to the provision of appointed counsel compensated at state expense.
     (8) If the public defense services
executive director denies, in whole or in part, fees and expenses submitted for
review and payment, the person who submitted the payment request may appeal the
decision to the presiding judge of the circuit court. The presiding judge or
the designee of the presiding judge shall review the public defense services
executive directorÂ’s decision for abuse of discretion. The decision of the
presiding judge or the designee of the presiding judge is final.
     (9) The following may not be disclosed to
the district attorney prior to the conclusion of a case:
     (a) Requests and administrative or court
orders for preauthorization to incur nonroutine fees and expenses in the
investigation, preparation and presentation of the case; and
     (b)
     (10) Notwithstanding subsection (9) of
this section, the total amount of moneys determined to be necessary and
reasonable for nonroutine fees and expenses may be disclosed to the district
attorney at the conclusion of the trial in the circuit court.
     (11) As used in this section unless the
context requires otherwise, “counsel” includes a legal advisor appointed under
ORS 135.045. [Formerly 135.330; 1979 c.867 §1; 1981 s.s. c.3 §§122,123; 1985
c.502 §19; 1985 c.710 §2; 1987 c.606 §4; 1987 c.803 §§14,14a; 1989 c.1053 §2;
1991 c.724 §25; 1991 c.750 §8; 1993 c.33 §297; 1995 c.677 §1; 1995 c.781 §39;
1997 c.761 §9; 1999 c.163 §8; 1999 c.583 §1; 2001 c.962 §§26,107; 2003 c.449 §§5,43]
     135.060
Communication to defendant as to use of name in accusatory instrument; effect
of acknowledging true name at arraignment. (1) When the defendant is arraigned, the defendant shall be informed
that:
     (a) If the name by which the defendant is
charged in the accusatory instrument is not the true name of the defendant the
defendant must then declare the true name; and
     (b) If the defendant does not declare the
true name as required by paragraph (a) of this subsection, the defendant is
ineligible for any form of release other than a security release under ORS
135.265.
     (2) The defendant or the attorney for the
defendant may acknowledge the true name of the defendant at arraignment and the
acknowledgment may not be used against the defendant at trial on the underlying
charge or any other criminal charge or fugitive complaint except that:
     (a) The use of different names can be used
in determining the defendantÂ’s release status if the defendant has used
different names in different proceedings; and
     (b) A defendant who intentionally
falsifies the defendantÂ’s name under this section or ORS 135.065 while under
oath or affirmation is subject to prosecution under ORS 162.065.
     (3) As used in this section and ORS
135.065, “true name” means:
     (a) The name on the defendant’s birth
certificate;
     (b) The defendant’s birth name; or
     (c) If the defendant’s name has been
changed by court order or by operation of law, the name as changed by court
order or operation of law. [Formerly 135.340; 2003 c.645 §4]
     135.065
Name used in further proceedings; motion to strike false name. (1) If the defendant gives no other name,
the court may proceed against the defendant by the name in the accusatory
instrument. If the defendant is charged by indictment or information and
alleges that another name is the true name of the defendant, the court shall
direct an entry thereof to be made in its register, and the subsequent
proceedings on the accusatory instrument may be had against the defendant by
that name, referring also to the name by which the defendant is charged. Before
proceeding against the defendant as provided in this subsection, the court
shall attempt to determine the true name of the defendant. If a birth
certificate for the defendant was never created, the court shall ask the
defendant, under oath or affirmation, to give the defendantÂ’s true name. The
court shall proceed under the name given unless the court is persuaded by a
preponderance of the evidence that the name is not the defendantÂ’s true name.
     (2) Upon motion of the defendant, all
names, other than the true name of the defendant, shall be stricken from any accusatory
instrument read or submitted to the jury.
     (3)(a) The following may file a motion
requesting that a false name used by a defendant be stricken from an accusatory
instrument, warrant of arrest or judgment and that the defendantÂ’s true name,
if known, be substituted:
     (A) The district attorney; or
     (B) A person whose name is the same as the
false name used by the defendant.
     (b) Before the court may grant a motion
filed under paragraph (a)(B) of this subsection, the court must provide the
district attorney with notice of the motion and an opportunity to respond.
     (c) If the court grants a motion under
this subsection, the court shall order that the false name be stricken from the
accusatory instrument, warrant of arrest or judgment and that the defendantÂ’s
true name be substituted. In addition, the court shall order that any warrant
of arrest of the defendant reflect that the defendant uses a name other than
the defendant’s true name. [Formerly 135.350; 1985 c.540 §31; 2003 c.645 §5]
     135.067
Effect of failure to provide true name of defendant on certain types of
release. If a defendant, on
or after August 12, 2003, fails to provide the defendantÂ’s true name under ORS
135.060 or 135.065 and is on personal recognizance, conditional release or
security release having deposited less than the full security amount set by the
magistrate, the magistrate who released the defendant, upon a motion filed by
the district attorney and supported by probable cause, shall cause the
defendant to be brought before the magistrate. The magistrate shall conduct a
hearing to establish release according to ORS 135.245. [2003 c.645 §7]
     Note: 135.067 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 135 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
PRELIMINARY
HEARING
(Generally)
     135.070
Information as to charge, right to counsel, use of statement, preliminary
hearing and use by State Board of Parole and Post-Prison Supervision. When the defendant against whom an
information has been filed in a preliminary proceeding appears before a
magistrate on a charge of having committed a crime punishable as a felony,
before any further proceedings are had the magistrate shall read to the
defendant the information and shall inform the defendant:
     (1) Of the defendant’s right to the aid of
counsel, that the defendant is not required to make a statement and that any
statement made by the defendant may be used against the defendant.
     (2) That the defendant is entitled to a
preliminary hearing and of the nature of a preliminary hearing. If a
preliminary hearing is requested, it shall be held as soon as practicable but
in any event within five days if the defendant is in custody or within 30 days
if the defendant is not in custody. The time may be extended for good cause
shown.
     (3) That if the defendant is on parole,
evidence received and the order of the court at the preliminary hearing may be
used by the State Board of Parole and Post-Prison Supervision to establish that
probable cause exists to believe that a violation of a condition of parole has
occurred; and further, that should the defendant waive the defendantÂ’s right to
a preliminary hearing, such waiver shall also constitute a waiver of a hearing
by the board to determine whether there is probable cause to believe that a
violation of one or more of the conditions of parole has occurred. [Formerly
133.610; 1981 c.644 §2; 1997 c.823 §1]
     135.073
Statement by defendant when not advised of rights. Evidence obtained directly or indirectly as
a result of failure of a magistrate to comply with ORS 135.070 shall not be
admissible before the grand jury. [1973 c.836 §61]
     135.075
Obtaining counsel. The
magistrate shall allow the defendant a reasonable time to obtain counsel and
shall adjourn the proceeding for that purpose. A defendant who is committed
pending examination shall be given a reasonable opportunity to obtain counsel,
including but not limited to a reasonable use of the telephone. As used in this
section, “counsel” includes a legal advisor appointed under ORS 135.045. [Formerly
133.620; 2001 c.472 §6]
     135.080 [Formerly 133.635; repealed by 1979 c.867 §18]
     135.085
Subpoenaing witnesses. (1)
The magistrate shall issue subpoenas for any witness within the state when
requested by the district attorney or the defendant for the preliminary
hearing.
     (2) If either party desires to subpoena
more than five witnesses, application therefor shall be made in the manner
provided in ORS 136.570. [Formerly 133.660; 1987 c.606 §1]
     135.090
Examination of adverse witnesses. The witnesses shall be examined in the presence of the defendant and
may be cross-examined in behalf of the defendant or against the defendant. [Formerly
133.670]
     135.095
Right of defendant to make or waive making a statement. When the examination of the witnesses on the
part of the state is closed, the magistrate shall inform the defendant that it
is the right of the defendant to make a statement in relation to the charge
against the defendant; that the statement is designed to enable the defendant,
if the defendant sees fit, to answer the charge and explain the facts alleged
against the defendant; that the defendant is at liberty to waive making a
statement; and that the waiver of the defendant cannot be used against the
defendant on the trial. [Formerly 133.680]
     135.100
Statement of defendant. If
the defendant chooses to make a statement, the magistrate shall take it in a
recorded proceeding without oath, and shall put to the defendant the following
questions only:
     (1) What is your name and age?
     (2) Where were you born?
     (3) Where do you reside and how long have
you resided there?
     (4) What is your business or occupation?
     (5) Give any explanation you think proper
of the circumstances appearing in the testimony against you and state any facts
which you think will tend to your exculpation. [Formerly 133.690; 1991 c.790 §12]
     135.105
Use of statement before grand jury or on trial. The statement of the defendant is competent
testimony to be laid before the grand jury and may be given in evidence at the
trial. [Formerly 133.700]
     135.110 [Amended by 1973 c.836 §132; renumbered
135.030]
     135.115
Waiver of right to make statement. If the defendant waives the right of the defendant to make a
statement, the fact of the waiver of the defendant cannot be used against the
defendant on the trial. [Formerly 133.710; 1991 c.790 §13]
     135.120 [Repealed by 1973 c.836 §358]
     135.125
Examination of defendantÂ’s witnesses. After the waiver of the defendant to make a statement or after the
defendant has made it, the witnesses of the defendant, if the defendant
produces any, shall be sworn and examined. [Formerly 133.720]
     135.130 [Repealed by 1973 c.836 §358]
     135.135
Exclusion of witnesses during examination of others. The magistrate may exclude the witnesses who
have not been examined during the examination of the defendant or of a witness
for the state or the defendant. [Formerly 133.730]
     135.139
Notice of availability of testing for HIV and other communicable diseases to
person charged with crime; when court may order test; victimÂ’s rights. (1) When a person has been charged with a
crime in which it appears from the nature of the charge that the transmission
of body fluids from one person to another may have been involved, the district
attorney, upon the request of the victim or the parent or guardian of a minor
or incapacitated victim, shall seek the consent of the person charged to submit
to a test for HIV and any other communicable disease. In the absence of such
consent or failure to submit to the test, the district attorney may petition
the court for an order requiring the person charged to submit to a test for HIV
and any other communicable disease.
     (2)(a) At the time of an appearance before
a circuit court judge on a criminal charge, the judge shall inform every person
arrested and charged with a crime, in which it appears from the nature of the
charge that the transmission of body fluids from one person to another may have
been involved, of the availability of testing for HIV and other communicable
diseases and shall cause the alleged victim of such a crime, if any, or a
parent or guardian of the victim, if any, to be notified that testing for HIV
and other communicable diseases is available. The judge shall inform the person
arrested and charged and the victim, or parent or guardian of the victim, of
the availability of counseling under the circumstances described in subsection
(7) of this section.
     (b) Notwithstanding the provisions of ORS
433.045, if the district attorney files a petition under subsection (1) of this
section, the court shall order the person charged to submit to testing if the
court determines there is probable cause to believe that:
     (A) The person charged committed the
crime; and
     (B) The victim has received a substantial
exposure, as defined by rule of the Department of Human Services.
     (3) Notwithstanding the provisions of ORS
433.045, upon conviction of a person for any crime in which the court determines
from the facts that the transmission of body fluids from one person to another
was involved and if the person has not been tested pursuant to subsection (2)
of this section, the court shall seek the consent of the convicted person to
submit to a test for HIV and other communicable diseases. In the absence of
such consent or failure to submit to the test, the court shall order the
convicted person to submit to the test if the victim of the crime, or a parent
or guardian of the victim, requests the court to make such order.
     (4) When a test is ordered under
subsection (2) or (3) of this section, the victim of the crime or a parent or
guardian of the victim, shall designate an attending physician to receive such
information on behalf of the victim.
     (5) If an HIV test results in a negative
reaction, the court may order the person to submit to another HIV test six
months after the first test was administered.
     (6) The result of any test ordered under
this section is not a public record and shall be available only to:
     (a) The victim.
     (b) The parent or guardian of a minor or
incapacitated victim.
     (c) The attending physician who is
licensed to practice medicine.
     (d) The Department of Human Services.
     (e) The person tested.
     (7) If an HIV test ordered under this
section results in a positive reaction, the individual subject to the test
shall receive post-test counseling as required by the Department of Human
Services, by rule. The results of HIV tests ordered under this section shall be
reported to the Department of Human Services. Counseling and referral for
appropriate health care, testing and support services as directed by the
Director of Human Services shall be provided to the victim or victims at the
request of the victim or victims, or the parent or guardian of a minor or
incapacitated victim.
     (8) The costs of testing and counseling
provided under subsections (2), (3) and (7) of this section shall be paid
through the compensation for crime victims program authorized by ORS 147.005 to
147.367 from amounts appropriated for such purposes. Restitution to the state
for payment of the costs of any counseling provided under this section and for
payment of the costs of any test ordered under this section shall be included
by the court in any order requiring the convicted person to pay restitution.
     (9) When a court orders a convicted person
to submit to a test under this section, the withdrawal of blood may be
performed only by a physician licensed to practice medicine or by a licensed
health care provider acting within the providerÂ’s licensed scope of practice or
acting under the supervision of a physician licensed to practice medicine.
     (10) No person authorized by subsection
(9) of this section to withdraw blood, no person assisting in the performance
of the test nor any medical care facility where blood is withdrawn or tested
that has been ordered by the court to withdraw or test blood shall be liable in
any civil or criminal action when the act is performed in a reasonable manner
according to generally accepted medical practices.
     (11) The results of tests or reports, or
information therein, obtained under this section shall be confidential and
shall not be divulged to any person not authorized by this section to receive
the information. Any violation of this subsection is a Class C misdemeanor.
     (12) As used in this section:
     (a) “HIV test” means a test as defined in
ORS 433.045.
     (b) “Parent or guardian of the victim”
means a custodial parent or legal guardian of a victim who is a minor or
incapacitated person.
     (c) “Positive reaction” means a positive
HIV test with a positive confirmatory test result as specified by the
Department of Human Services.
     (d) “Transmission of body fluids” means
the transfer of blood, semen, vaginal secretions or other body fluids identified
by rule of the Department of Human Services, from the perpetrator of a crime to
the mucous membranes or potentially broken skin of the victim.
     (e) “Victim” means the person or persons
to whom transmission of body fluids from the perpetrator of the crime occurred
or was likely to have occurred in the course of the crime. [1989 c.568 §1; 1993
c.331 §1; 1999 c.967 §1]
     Note: 135.139 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 135 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     135.140 [Amended by 1973 c.836 §133; renumbered
135.035]
     135.145
Testimony of witnesses. The
testimony of the witnesses in a preliminary hearing shall be recorded. [Formerly
133.740; 1991 c.790 §14]
     135.150 [Repealed by 1973 c.836 §358]
     135.155
Retention of record and statements by magistrate; inspection. The magistrate shall keep the record of the
preliminary hearing and the statement of the defendant, if any, until the
record is returned to the proper court and shall not permit the record to be
inspected by any person, except the district attorney of the county or the
attorney who acts for the district attorney and the defendant and the counsel
of the defendant. [Formerly 133.750; 1991 c.790 §15]
     135.160 [Repealed by 1973 c.836 §358]
     135.165
Counsel for complainant; district attorney. The complainant may employ counsel to appear against the defendant in
every stage of the preliminary hearing; but the district attorney for the
county, either in person or by some attorney authorized to act for the district
attorney, is entitled to appear on behalf of the state and control and direct
the prosecution. [Formerly 133.760]
     135.170 [Repealed by 1973 c.836 §358]
     135.173
(Discharge or
Commitment)
     135.175
Discharge. After hearing the
evidence and the statement of the defendant, if the defendant has made one,
unless there is a showing of probable cause that a crime has been committed and
that the defendant committed it, the magistrate shall dismiss the information
and order the defendant to be discharged. [Formerly 133.810]
     135.180 [Repealed by 1973 c.836 §358]
     135.185
Holding defendant to answer; use of hearsay evidence. If it appears from the preliminary hearing
that there is probable cause to believe that a crime has been committed and
that the defendant committed it, the magistrate shall make a written order
holding the defendant for further proceedings on the charge. When hearsay
evidence was admitted at the preliminary hearing, the magistrate, in
determining the existence of probable cause, shall consider:
     (1) The extent to which the hearsay
quality of the evidence affects the weight it should be given; and
     (2) The likelihood of evidence other than
hearsay being available at trial to provide the information furnished by
hearsay at the preliminary hearing. [Formerly 133.820; 1981 c.892 §88c; 2007
c.71 §33]
     135.190 [Repealed by 1973 c.836 §358]
     135.195
Commitment. If the
magistrate orders the defendant to be held to answer, the magistrate shall make
out a commitment, signed by the magistrate with the name of office of the
magistrate, and deliver it with the defendant to the officer to whom the
defendant is committed or, if that officer is not present, to any peace
officer, who shall immediately deliver the defendant into the proper custody,
together with the commitment. [Formerly 133.830]
     135.200 [Repealed by 1973 c.836 §358]
     135.205
Indorsement in certain cases.
When the magistrate delivers the defendant to a peace officer other than the
one to whom the defendant is committed, the magistrate shall first make an
indorsement on the commitment directing the officer to deliver the defendant
and the commitment to the custody of the appropriate sheriff. [Formerly
133.840]
     135.210 [Repealed by 1973 c.836 §358]
     135.215
Direction to sheriff; detention of defendant. The commitment shall be directed to the sheriff of the county in which
the magistrate is sitting. Such sheriff shall receive and detain the defendant,
as thereby commanded, in a jail located in the county of the sheriff or, if
there is no sufficient jail in the county, by such means as may be necessary
and proper therefor or by confining the defendant in the jail of an adjoining
county within or without the state. [Formerly 133.850; 1987 c.550 §2]
     135.225
Forwarding of papers by magistrate. When the magistrate has held the defendant to answer, the magistrate
shall at once forward to the court in which the defendant would be triable:
     (1) The warrant, if any;
     (2) The information;
     (3) The statement of the defendant, if the
defendant made one;
     (4) The memoranda mentioned in ORS 135.115
and 135.145;
     (5) The release agreement or security
release of the defendant; and
     (6) If applicable, any security taken for
the appearance of witnesses. [Formerly 133.860; 2005 c.22 §108]
RELEASE OF
DEFENDANT
     135.230
Definitions for ORS 135.230 to 135.290. As used in ORS 135.230 to 135.290, unless the context requires otherwise:
     (1) “Abuse” means:
     (a) Attempting to cause or intentionally,
knowingly or recklessly causing physical injury;
     (b) Intentionally, knowingly or recklessly
placing another in fear of imminent serious physical injury; or
     (c) Committing sexual abuse in any degree
as defined in ORS 163.415, 163.425 and 163.427.
     (2) “Conditional release” means a
nonsecurity release which imposes regulations on the activities and
associations of the defendant.
     (3) “Domestic violence” means abuse
between family or household members.
     (4) “Family or household members” means
any of the following:
     (a) Spouses.
     (b) Former spouses.
     (c) Adult persons related by blood or
marriage.
     (d) Persons cohabiting with each other.
     (e) Persons who have cohabited with each
other or who have been involved in a sexually intimate relationship.
     (f) Unmarried parents of a minor child.
     (5) “Magistrate” has the meaning provided
for this term in ORS 133.030.
     (6) “Personal recognizance” means the
release of a defendant upon the promise of the defendant to appear in court at
all appropriate times.
     (7) “Primary release criteria” includes
the following:
     (a) The reasonable protection of the
victim or public;
     (b) The nature of the current charge;
     (c) The defendant’s prior criminal record,
if any, and, if the defendant previously has been released pending trial,
whether the defendant appeared as required;
     (d) Any facts indicating the possibility
of violations of law if the defendant is released without regulations; and
     (e) Any other facts tending to indicate
that the defendant is likely to appear.
     (8) “Release” means temporary or partial
freedom of a defendant from lawful custody before judgment of conviction or
after judgment of conviction if defendant has appealed.
     (9) “Release agreement” means a sworn
writing by the defendant stating the terms of the release and, if applicable,
the amount of security.
     (10) “Release decision” means a
determination by a magistrate, using primary and secondary release criteria,
which establishes the form of the release most likely to ensure the safety of
the public and the victim, the defendantÂ’s court appearance and that the
defendant does not engage in domestic violence while on release.
     (11) “Secondary release criteria” includes
the following:
     (a) The defendant’s employment status and
history and financial condition;
     (b) The nature and extent of the family
relationships of the defendant;
     (c) The past and present residences of the
defendant;
     (d) Names of persons who agree to assist
the defendant in attending court at the proper time; and
     (e) Any facts tending to indicate that the
defendant has strong ties to the community.
     (12) “Security release” means a release
conditioned on a promise to appear in court at all appropriate times which is
secured by cash, stocks, bonds or real property.
     (13) “Surety” is one who executes a
security release and binds oneself to pay the security amount if the defendant
fails to comply with the release agreement. [1973 c.836 §146; 1993 c.731 §4;
1997 c.313 §18]
     135.235
Release assistance officer; appointment; duties. (1) If directed by the presiding judge for a
judicial district, a release assistance officer, and release assistance
deputies who shall be responsible to the release assistance officer, shall be
appointed under a personnel plan established by the Chief Justice of the
Supreme Court.
     (2) The release assistance officer shall,
except when impracticable, interview every person detained pursuant to law and
charged with an offense.
     (3) The release assistance officer shall
verify release criteria information and may either:
     (a) Timely submit a written report to the
magistrate containing, but not limited to, an evaluation of the release
criteria and a recommendation for the form of release; or
     (b) If delegated release authority by the
presiding judge for the judicial district, make the release decision. [1973
c.836 §147; 1981 s.s. c.3 §37; 1995 c.781 §40]
     135.240
Releasable offenses. (1)
Except as provided in subsections (2), (4) and (5) of this section, a defendant
shall be released in accordance with ORS 135.230 to 135.290.
     (2)(a) When the defendant is charged with
murder, aggravated murder or treason, release shall be denied when the proof is
evident or the presumption strong that the person is guilty.
     (b) When the defendant is charged with
murder or aggravated murder and the proof is not evident nor the presumption
strong that the defendant is guilty, the court shall determine the issue of
release as provided in subsection (4) of this section. In determining the issue
of release under subsection (4) of this section, the court may consider any
evidence used in making the determination required by this subsection.
     (3) The magistrate may conduct such
hearing as the magistrate considers necessary to determine whether, under
subsection (2) of this section, the proof is evident or the presumption strong
that the person is guilty.
     (4)(a) Except as otherwise provided in
subsection (5) of this section, when the defendant is charged with a violent
felony, release shall be denied if the court finds:
     (A) Except when the defendant is charged
by indictment, that there is probable cause to believe that the defendant
committed the crime; and
     (B) By clear and convincing evidence, that
there is a danger of physical injury or sexual victimization to the victim or
members of the public by the defendant while on release.
     (b) If the defendant wants to have a
hearing on the issue of release, the defendant must request the hearing at the
time of arraignment in circuit court. If the defendant requests a release
hearing, the court must hold the hearing within five days of the request.
     (c) At the release hearing, unless the
state stipulates to the setting of security or release, the court shall make
the inquiry set forth in paragraph (a) of this subsection. The state has the
burden of producing evidence at the release hearing subject to ORS 40.015 (4).
     (d) The defendant may be represented by
counsel and may present evidence on any relevant issue. However, the hearing
may not be used for purposes of discovery.
     (e) If the court determines that the
defendant is eligible for release in accordance with this subsection, the court
shall set security or other appropriate conditions of release.
     (f) When a defendant who has been released
violates a condition of release and the violation:
     (A) Constitutes a new criminal offense,
the court shall cause the defendant to be taken back into custody and shall
order the defendant held pending trial without release.
     (B) Does not constitute a new criminal offense,
the court may order the defendant to be taken back into custody, may order the
defendant held pending trial and may set a security amount of not less than
$250,000.
     (5)(a) Notwithstanding any other provision
of law, the court shall set a security amount of not less than $50,000 for a
defendant charged with an offense listed in ORS 137.700 or 137.707 unless the
court determines that amount to be unconstitutionally excessive, and may not
release the defendant on any form of release other than a security release if:
     (A) The United States Constitution or the
Oregon Constitution prohibits the denial of release under subsection (4) of
this section;
     (B) The court determines that the
defendant is eligible for release under subsection (4) of this section; or
     (C) The court finds that the offense is
not a violent felony.
     (b) In addition to the security amount
described in paragraph (a) of this subsection, the court may impose any
supervisory conditions deemed necessary for the protection of the victim and
the community. When a defendant who has been released violates a condition of
release and the violation:
     (A) Constitutes a new criminal offense,
the court shall cause the defendant to be taken back into custody, shall order
the defendant held pending trial and shall set a security amount of not less
than $250,000.
     (B) Does not constitute a new criminal
offense, the court may order the defendant to be taken back into custody, may
order the defendant held pending trial and may set a security amount of not
less than $250,000.
     (6) For purposes of this section, “violent
felony” means a felony offense in which there was an actual or threatened
serious physical injury to the victim, or a felony sexual offense. [1973 c.836 §148;
1997 c.313 §19; 2001 c.104 §45; 2007 c.194 §1; 2007 c.879 §9]
     135.245
Release decision. (1) Except
as provided in ORS 135.240, a person in custody has the right to immediate
security release or to be taken before a magistrate without undue delay. If the
person is not released under ORS 135.270, or otherwise released before
arraignment, the magistrate shall advise the person of the right of the person
to a security release as provided in ORS 135.265.
     (2) If a person in custody does not
request a security release at the time of arraignment, the magistrate shall
make a release decision regarding the person within 48 hours after the
arraignment.
     (3) If the magistrate, having given
priority to the primary release criteria, decides to release a defendant or to
set security, the magistrate shall impose the least onerous condition
reasonably likely to ensure the safety of the public and the victim and the
personÂ’s later appearance and, if the person is charged with an offense
involving domestic violence, ensure that the person does not engage in domestic
violence while on release. A person in custody, otherwise having a right to
release, shall be released upon the personal recognizance unless:
     (a) Release criteria show to the
satisfaction of the magistrate that such a release is unwarranted; or
     (b) Subsection (6) of this section applies
to the person.
     (4) Upon a finding that release of the
person on personal recognizance is unwarranted, the magistrate shall impose
either conditional release or security release.
     (5)(a) At the release hearing:
     (A) The district attorney has a right to
be heard in relation to issues relevant to the release decision; and
     (B) The victim has the right:
     (i) Upon request made within the time
period prescribed in the notice required by ORS 147.417, to be notified by the
district attorney of the release hearing;
     (ii) To appear personally at the hearing;
and
     (iii) If present, to reasonably express
any views relevant to the issues before the magistrate.
     (b) Failure of the district attorney to
notify the victim under paragraph (a) of this subsection or failure of the
victim to appear at the hearing does not affect the validity of the proceeding.
     (6) If a person refuses to provide a true
name under the circumstances described in ORS 135.060 and 135.065, the
magistrate may not release the person on personal recognizance or on
conditional release. The magistrate may release the person on security release
under ORS 135.265 except that the magistrate shall require the person to
deposit the full security amount set by the magistrate.
     (7) This section shall be liberally
construed to carry out the purpose of relying upon criminal sanctions instead
of financial loss to assure the appearance of the defendant. [1973 c.836 §149;
1993 c.731 §5; 1997 c.313 §20; 2003 c.645 §6]
     135.250
General conditions of release agreement. (1) If a defendant is released before judgment, the conditions of the
release agreement shall be that the defendant will:
     (a) Appear to answer the charge in the
court having jurisdiction on a day certain and thereafter as ordered by the
court until the defendant is discharged or the judgment is entered;
     (b) Submit to the orders and process of
the court;
     (c) Not depart this state without leave of
the court; and
     (d) Comply with such other conditions as
the court may impose.
     (2)(a) In addition to the conditions
listed in subsection (1) of this section, if the defendant is charged with an
offense that also constitutes domestic violence, the court shall include as a
condition of the release agreement that the defendant not contact the victim of
the violence.
     (b) Notwithstanding paragraph (a) of this
subsection, the court may enter an order waiving the condition that the
defendant have no contact with the victim if:
     (A) The victim petitions the court for a
waiver; and
     (B) The court finds, after a hearing on
the petition, that waiving the condition is in the best interests of the
parties and the community.
     (c) If the defendant was provided notice
and an opportunity to be heard, the court shall also include in the agreement,
when appropriate, terms and findings sufficient under 18 U.S.C. 922 (d)(8) and
(g)(8) to affect the defendantÂ’s ability to possess firearms and ammunition or
engage in activities involving firearms.
     (d) ORS 107.720 applies to release
agreements executed by defendants charged with an offense that constitutes
domestic violence, except that proof of service of the release agreement is not
required and the agreement may not be terminated at the request of the victim
without a hearing.
     (3) If the defendant is released after
judgment of conviction, the conditions of the release agreement shall be that
the defendant will:
     (a) Duly prosecute the appeal of the
defendant as required by ORS 138.005 to 138.500;
     (b) Appear at such time and place as the
court may direct;
     (c) Not depart this state without leave of
the court;
     (d) Comply with such other conditions as
the court may impose; and
     (e) If the judgment is affirmed or the
judgment is reversed and the cause remanded for a new trial, immediately appear
as required by the trial court. [1973 c.836 §150; 1991 c.111 §10; 1993 c.731 §6;
1999 c.617 §3]
     135.255
Release agreement. (1) The
defendant shall not be released from custody unless the defendant files with
the clerk of the court in which the magistrate is presiding a release agreement
duly executed by the defendant containing the conditions ordered by the
releasing magistrate or deposits security in the amount specified by the
magistrate in accordance with ORS 135.230 to 135.290.
     (2) A failure to appear as required by the
release agreement shall be punishable as provided in ORS 162.195 or 162.205.
     (3) “Custody” for purposes of a release
agreement does not include temporary custody under the citation procedures of
ORS 133.055 to 133.076. [1973 c.836 §151]
     135.260
Conditional release. (1)
Conditional release may include one or more of the following conditions:
     (a) Release of the defendant into the care
of a qualified person or organization responsible for supervising the defendant
and assisting the defendant in appearing in court. The supervisor shall not be
required to be financially responsible for the defendant, nor to forfeit money
in the event the defendant fails to appear in court. The supervisor, however,
shall notify the court immediately in the event that the defendant breaches the
conditional release.
     (b) Reasonable regulations on the
activities, movements, associations and residences of the defendant, including,
if the court finds it appropriate, restriction of the defendant to the
defendantÂ’s own residence or to the premises thereof.
     (c) Release of the defendant from custody
during working hours.
     (d) Any other reasonable restriction
designed to assure the defendantÂ’s appearance.
     (2) Except as otherwise provided in ORS
135.250 (2)(b), conditional release shall include a prohibition against
contacting the victim if the defendant is charged with an offense that also
constitutes domestic violence. [1973 c.836 §152; 1985 c.818 §1; 1993 c.731 §7]
     135.265
Security release. (1) If the
defendant is not released on personal recognizance under ORS 135.255, or
granted conditional release under ORS 135.260, or fails to agree to the
provisions of the conditional release, the magistrate shall set a security
amount that will reasonably assure the defendantÂ’s appearance. The defendant
shall execute the security release in the amount set by the magistrate.
     (2) The defendant shall execute a release
agreement and deposit with the clerk of the court before which the proceeding
is pending a sum of money equal to 10 percent of the security amount, but in no
event shall such deposit be less than $25. The clerk shall issue a receipt for
the sum deposited. Upon depositing this sum the defendant shall be released
from custody subject to the condition that the defendant appear to answer the
charge in the court having jurisdiction on a day certain and thereafter as
ordered by the court until discharged or final order of the court. Once
security has been given and a charge is pending or is thereafter filed in or
transferred to a court of competent jurisdiction the latter court shall
continue the original security in that court subject to ORS 135.280 and
135.285. When conditions of the release agreement have been performed and the
defendant has been discharged from all obligations in the cause, the clerk of
the court shall return to the person shown by the receipt to have made the
deposit, unless the court orders otherwise, 85 percent of the sum which has
been deposited and shall retain as security release costs 15 percent, but not
less than $5 nor more than $200, of the amount deposited. The interest that has
accrued on the full amount deposited shall also be retained by the clerk. The
amount retained by the clerk of a circuit court shall be paid over as directed
by the State Court Administrator for deposit in the Criminal Fine and
Assessment Account created under ORS 137.300. The amount retained by a justice
of the peace shall be deposited in the county treasury. The amount retained by
the clerk of a municipal court shall be deposited in the municipal corporation
treasury. At the request of the defendant the court may order whatever amount
is repayable to defendant from such security amount to be paid to defendantÂ’s
attorney of record.
     (3) Instead of the security deposit provided
for in subsection (2) of this section the defendant may deposit with the clerk
of the court an amount equal to the security amount in cash, stocks, bonds, or
real or personal property situated in this state with equity not exempt owned
by the defendant or sureties worth double the amount of security set by the
magistrate. The stocks, bonds, real or personal property shall in all cases be
justified by affidavit. The magistrate may further examine the sufficiency of
the security as the magistrate considers necessary. [1973 c.836 §153; 1979
c.878 §1; 1981 c.837 §1; 1981 s.s. c.3 §112; 1983 c.763 §44; 1987 c.905 §14]
     135.270
Taking of security. When a
security amount has been set by a magistrate for a particular offense or for a
defendantÂ’s release, any person designated by the magistrate may take the
security and release the defendant to appear in accordance with the conditions
of the release agreement. The person designated by the magistrate shall give a
receipt to the defendant for the security so taken and within a reasonable time
deposit the security with the clerk of the court having jurisdiction of the
offense. [1973 c.836 §154]
     135.280
Arrest warrant; forfeiture.
(1) Upon failure of a person to comply with any condition of a release
agreement or personal recognizance, the court having jurisdiction may, in
addition to any other action provided by law, issue a warrant for the arrest of
the person at liberty upon a personal recognizance, conditional or security
release.
     (2) A warrant issued under subsection (1)
of this section by a municipal judge may be executed by any peace officer
authorized to execute arrest warrants.
     (3) If the defendant does not comply with
the conditions of the release agreement, the court having jurisdiction shall
enter an order declaring the entire security amount to be forfeited. Notice of
the order of forfeiture shall be given forthwith by personal service, by mail
or by such other means as are reasonably calculated to bring to the attention
of the defendant and, if applicable, of the sureties the order of forfeiture.
If, within 30 days after the court declares the forfeiture, the defendant does
not appear or satisfy the court having jurisdiction that appearance and
surrender by the defendant was, or still is, impossible and without fault of
the defendant, the court shall enter judgment for the state, or appropriate
political subdivision thereof, against the defendant and, if applicable, the
sureties for the entire security amount set under ORS 135.265 and the costs of
the proceedings. At any time before or after entry of the judgment, the
defendant or the sureties may apply to the court for a remission of the
forfeiture or to modify or set aside the judgment. The court, upon good cause
shown, may remit the forfeiture or any part thereof or may modify or set aside
the judgment as in other criminal cases, except the portion of the security
amount that the court ordered to be applied to child support under subsection
(4) of this section, as the court considers reasonable under the circumstances
of the case. The court shall adopt procedures to ensure that the amount
deposited under ORS 135.265 is available for a reasonable period of time for
disposition under subsection (4) of this section.
     (4) After entry of a judgment for the state,
the court, upon a motion filed under ORS 25.715, may order that a portion of
the security amount be applied to any unsatisfied child support award owed by
the defendant and to provide security for child support payments in accordance
with ORS 25.230. The portion of the security amount that may be applied to the
child support award:
     (a) Is limited to the amount deposited
under ORS 135.265;
     (b) May not exceed 66 percent of the
entire security amount set under ORS 135.265; and
     (c) Does not reduce the money award in the
judgment entered under subsection (3) of this section that is owed to the
state.
     (5) When judgment is entered in favor of
the state, or any political subdivision of the state, on any security given for
a release, the judgment may be enforced as a judgment in a civil action. If
entered in circuit court, the judgment shall be entered in the register, and
the clerk of the court shall note in the register that the judgment creates a
judgment lien. The district attorney, county counsel or city attorney may have
execution issued on the judgment and deliver same to the sheriff to be executed
by levy on the deposit or security amount made in accordance with ORS 135.265,
or may collect the judgment as otherwise provided by law. The proceeds of any execution
or collection shall be used to satisfy the judgment and costs and paid into the
treasury of the municipal corporation wherein the security was taken if the
offense was defined by an ordinance of a political subdivision of this state,
or paid into the treasury of the county wherein the security was taken if the
offense was defined by a statute of this state and the judgment was entered by
a justice court, or paid over as directed by the State Court Administrator for
deposit in the Criminal Fine and Assessment Account created under ORS 137.300,
if the offense was defined by a statute of this state and the judgment was
entered by a circuit court. The provisions of this section shall not apply to
base fine amounts deposited upon appearance under ORS 153.061.
     (6) When the judgment of forfeiture is
entered, the security deposit or deposit with the clerk is, by virtue of the
judgment alone and without requiring further execution, forfeited to and may be
kept by the state or its appropriate political subdivision. Except as provided
in subsection (4) of this section, the clerk shall reduce, by the value of the
deposit so forfeited, the debt remaining on the judgment and shall cause the
amount on deposit to be transferred to the revenue account of the state or political
subdivision thereof entitled to receive the proceeds of execution under this
section.
     (7) The stocks, bonds, personal property
and real property shall be sold in the same manner as in execution sales in
civil actions and the proceeds of such sale shall be used to satisfy all court
costs, prior encumbrances, if any, and from the balance a sufficient amount to
satisfy the judgment shall be paid into the treasury of the municipal
corporation wherein the security was taken if the offense was defined by an
ordinance of a political subdivision of this state, or paid into the treasury
of the county wherein the security was taken if the offense was defined by a
statute of this state and the judgment was entered by a justice court, or
deposited in the General Fund available for general governmental expenses if
the offense was defined by a statute of this state and the judgment was entered
by a circuit court. The balance shall be returned to the owner. The real
property sold may be redeemed in the same manner as real estate may be redeemed
after judicial or execution sales in civil actions. [1973 c.836 §155; 1981 s.s.
c.3 §113; 1983 c.763 §45; 1987 c.710 §1; 1987 c.905 §15; 1995 c.658 §74; 1997
c.801 §64; 1999 c.1051 §250; 2001 c.705 §2; 2001 c.829 §10b; 2003 c.576 §161;
2005 c.700 §5]
     135.285
Modification of release decision; release upon appeal. (1) If circumstances concerning the
defendantÂ’s release change, the court, on its own motion or upon request by the
district attorney or defendant, may modify the release agreement or the
security release.
     (2) After judgment of conviction in
municipal or justice court, the court shall order the original release
agreement, and if applicable, the security, to stand pending appeal, or deny,
increase or reduce the release agreement and the security. If a defendant
appeals after judgment of conviction in circuit court for any crime other than
murder or treason, release shall be discretionary. [1973 c.836 §156; 1995 c.658
§75]
     135.290
Punishment by contempt of court. (1) A supervisor of a defendant on conditional release who knowingly
aids the defendant in breach of the conditional release or who knowingly fails
to report the defendantÂ’s breach is punishable by contempt.
     (2) A defendant who knowingly breaches any
of the regulations in the release agreement imposed pursuant to ORS 135.260 is
punishable by contempt. [1973 c.836 §157]
     135.295
Application of ORS 135.230 to 135.290 to certain traffic offenses. Provision for release contained in ORS
135.230 to 135.290 shall not apply to any traffic offenses as defined for the
Oregon Vehicle Code except the following:
     (1) Reckless driving under ORS 811.140.
     (2) Driving while under the influence of
intoxicants under ORS 813.010.
     (3) Failure to perform the duties of a
driver under ORS 811.700 or 811.705.
     (4) Criminal driving while suspended or
revoked under ORS 811.182.
     (5) Fleeing or attempting to elude a
police officer under ORS 811.540. [1974 c.35 §1; 1981 c.818 §3; 1983 c.338 §888;
1987 c.730 §5; 1991 c.208 §3]
PLEADINGS
(DefendantÂ’s
Answer Generally)
     135.305
Types of answer. If the
defendant does not require time, as provided in ORS 135.380, or if the
defendant does, then on the next day or at such further day as the court may
have allowed the defendant, the defendant may, in answer to the arraignment,
move against the accusatory instrument or demur or plead thereto. [Formerly
135.420]
     135.310 [Renumbered 135.040]
     135.315
Types of pleading. The only
pleadings on the part of the defendant are the demurrer and plea. [Formerly
135.430]
     135.320 [Amended by 1961 c.696 §2; 1967 c.475 §2;
1973 c.836 §134; renumbered 135.045]
     135.325
Pleading a judgment. In
pleading a judgment or other determination of or proceeding before a court or
officer of special jurisdiction, it is not necessary for the defendant to state
the facts conferring jurisdiction; but the judgment, determination, or
proceeding may be stated to have been duly given or made. The facts conferring
jurisdiction, however, must be established on the trial. [Formerly 135.450]
     135.330 [Amended by 1961 c.698 §1; 1967 c.628 §1;
1971 c.677 §1; renumbered 135.055]
(Plea)
     135.335
Pleading by defendant; alternatives. (1) The kinds of plea to an indictment, information or complaint, or
each count thereof, are:
     (a) Guilty.
     (b) Not guilty.
     (c) No contest.
     (2) A defendant may plead no contest only
with the consent of the court. Such a plea shall be accepted by the court only
after due consideration of the views of the parties and the interest of the
public in the effective administration of justice.
     (3) With the consent of the court and the
state, a defendant may enter a conditional plea of guilty or no contest
reserving, in writing, the right, on appeal from the judgment, to a review of
an adverse determination of any specified pretrial motion. A defendant who
finally prevails on appeal may withdraw the plea. [1973 c.836 §159; 1999 c.134 §1]
     135.340 [Amended by 1973 c.836 §136; renumbered
135.060]
     135.345
Legal effect of plea of no contest. A judgment following entry of a no contest plea is a conviction of the
offense to which the plea is entered. [1973 c.836 §160]
     135.350 [Amended by 1973 c.836 §137; renumbered
135.065]
     135.355
Presentation of plea; entry in register; forms. (1) Every plea shall be oral and shall be
entered in the register of the court in substantially one of the following
forms:
     (a) “The defendant pleads that defendant
is guilty of the offense charged in this accusatory instrument.”
     (b) “The defendant pleads that defendant
is not guilty of the offense charged in this accusatory instrument.”
     (c) “The defendant pleads no contest to
the offense charged in this accusatory instrument.”
     (2) When a defendant enters a conditional
plea of guilty or no contest, the entry in the register of the court shall so
indicate.
     (3) For purposes of this section, an oral
plea includes a plea made orally by means of simultaneous electronic
transmission as described in ORS 131.045. [Formerly 135.830; 1985 c.540 §32;
1999 c.134 §2; 2005 c.566 §6]
     135.360
Special provisions relating to presentation of plea of guilty or no contest. (1) Except as provided in subsection (2) of
this section, a plea of guilty or no contest to a crime punishable as a felony
shall in all cases be put in by the defendant in person in open court unless
upon an accusatory instrument against a corporation, in which case it may be
put in by counsel.
     (2) Any circuit judge may, within any
county in the own district of the judge other than the county where the
accusation is pending, accept pleas of guilty or no contest from persons
charged with a crime punishable as a felony and pass sentence thereon upon
written request of the accused and the attorney of the accused and upon not
less than one dayÂ’s notice to the district attorney. Judgments based upon such
pleas and sentences entered upon the pleas are as effective as though heard and
determined in open court in the county where the accusation is pending. Judges
accepting the pleas shall transmit the pleas to the clerk of the court in the
county where the accusation is pending, whereupon the clerk shall file and
enter the pleas to become effective from the date of filing.
     (3) A judge may accept a plea of guilty or
no contest under subsection (1) of this section by simultaneous electronic
transmission, as defined in ORS 131.045, without the agreement of the state or
the defendant if the plea is entered at arraignment and the type of
simultaneous electronic transmission available allows the defendant to observe
the court and the court to observe the defendant. [Formerly 135.840; 2005 c.566
§7]
     135.365
Withdrawal of plea of guilty or no contest. The court may at any time before judgment, upon a plea of guilty or no
contest, permit it to be withdrawn and a plea of not guilty substituted
therefor. [Formerly 135.850]
     135.370
Not guilty plea as denial of allegations of accusatory instrument. The plea of not guilty controverts and is a
denial of every material allegation in the accusatory instrument. [Formerly
135.860]
     135.375
Pleading to other offenses.
(1) As used in this section:
     (a) “Initiating county” means the county
in which the defendant appears for the purpose of entering a plea to a criminal
charge.
     (b) “Responding county” means a county in
which another criminal charge is pending against the defendant entering a plea
in the initiating county.
     (2) Upon entry of a plea of guilty or no
contest, or after conviction on a plea of not guilty, if a charge is pending
against the defendant for a crime which is within the jurisdiction of a
coordinate court of a responding county in the state, the defendant may state
in writing that the defendant desires:
     (a) To waive venue and trial in the
responding county;
     (b) To waive indictment by the grand jury
of the responding county;
     (c) To plead guilty or no contest; and
     (d) To consent to disposition of the case
by the court in the initiating county.
     (3) Upon receipt of the request and the
written approval of the district attorney of the initiating county, the clerk
of the court shall forthwith transmit copies of the request and approval to the
court and the district attorney of the responding county.
     (4) Upon receipt of the papers described
in subsection (3) of this section and the written approval of the district
attorney of the responding county, the clerk of the court shall forthwith
transmit certified copies of the papers in the proceeding to the court of the
initiating county.
     (5) Upon receipt of the papers described
in subsection (4) of this section, the court may allow the defendant to enter
the plea.
     (6) The original judgment entered by the
court of the initiating county shall be transmitted to the court of the
responding county for filing. The judgment shall thereafter be considered, for
all purposes, the same as a judgment of the court of the responding county. [1973
c.836 §165; 1991 c.111 §11]
     135.380
Time of entering plea; aid of counsel. (1) A defendant shall not be required to plead to an offense
punishable by imprisonment until the defendant is represented by counsel,
unless the defendant knowingly waives the right of the defendant to counsel.
     (2) A defendant may plead guilty or no
contest on the day of arraignment or any time thereafter except that a
defendant without counsel shall not be allowed to plead guilty or no contest to
a felony on the day of arraignment.
     (3) Upon completion of the arraignment,
unless the defendant enters a plea in the manner provided in ORS 135.305 to
135.325, 135.335, 135.355, 135.360 and 135.375, the defendant shall be
considered to have entered a plea of not guilty. [1973 c.836 §166; 2001 c.635 §13]
     135.385
Defendant to be advised by court. (1) The court shall not accept a plea of guilty or no contest to a
felony or other charge on which the defendant appears in person without first
addressing the defendant personally and determining that the defendant
understands the nature of the charge.
     (2) The court shall inform the defendant:
     (a) That by a plea of guilty or no contest
the defendant waives the right:
     (A) To trial by jury;
     (B) Of confrontation; and
     (C) Against self-incrimination.
     (b) Of the maximum possible sentence on
the charge, including the maximum possible sentence from consecutive sentences.
     (c) When the offense charged is one for
which a different or additional penalty is authorized by reason of the fact
that the defendant may be adjudged a dangerous offender, that this fact may be
established after a plea in the present action, thereby subjecting the
defendant to different or additional penalty.
     (d) That if the defendant is not a citizen
of the
     (e) That if the defendant is entering a
guilty plea pursuant to a plea offer and agreed disposition recommendation
under ORS 135.405, the court will agree to impose sentence as provided in the
agreed disposition recommendation.
     (f) That if the defendant enters a plea of
guilty or no contest to an offense involving domestic violence, as defined in
ORS 135.230, and is convicted of the offense, federal law may prohibit the
defendant from possessing, receiving, shipping or transporting any firearm or
firearm ammunition and that the conviction may negatively affect the defendantÂ’s
ability to serve in the Armed Forces of the United States as defined in ORS
348.282 or to be employed in law enforcement. [1973 c.836 §167; 1979 c.118 §1;
2001 c.635 §12; 2007 c.220 §1]
     135.390
Determining voluntariness of plea. (1) The court shall not accept a plea of guilty or no contest without
first determining that the plea is voluntary and intelligently made.
     (2) The court shall determine whether the
plea is the result of prior plea discussions and a plea agreement. If the plea
is the result of a plea agreement, the court shall determine the nature of the
agreement.
     (3) If the district attorney has agreed to
seek charge or sentence concessions which must be approved by the court, the
court shall advise the defendant personally that the recommendations of the
district attorney are not binding on the court.
     (4)(a) If the district attorney has
provided a plea offer and agreed disposition recommendation to the defendant as
provided in ORS 135.405 and the defendant is entering a guilty plea based on
the plea offer and agreed disposition recommendation, the court shall determine
whether the plea is voluntarily made. Except as otherwise provided in paragraph
(b) of this subsection, if the court finds that the plea is voluntarily made,
the court shall impose sentence as provided in the agreed disposition
recommendation.
     (b) If the court determines that the
agreed disposition recommendation is inappropriate in a particular case, the
court shall so advise the parties and allow the defendant an opportunity to withdraw
the plea. [1973 c.836 §168; 2001 c.635 §11]
     135.395
Determining accuracy of plea.
After accepting a plea of guilty or no contest, the court shall not enter a
judgment without making such inquiry as may satisfy the court that there is a
factual basis for the plea. [1973 c.836 §169]
(Plea
Discussions and Agreements)
     135.405
Plea discussions and plea agreements. (1) In cases in which it appears that the interest of the public in
the effective administration of criminal justice would thereby be served, and
in accordance with the criteria set forth in ORS 135.415, the district attorney
may engage in plea discussions for the purpose of reaching a plea agreement.
     (2) The district attorney shall engage in
plea discussions or reach a plea agreement with the defendant only through
defense counsel, except when, as a matter of record, the defendant has
effectively waived the right of the defendant to counsel or, if the defendant
is not eligible for appointed counsel, has not retained counsel.
     (3) The district attorney in reaching a
plea agreement may agree to, but is not limited to, one or more of the
following, as required by the circumstances of the individual case:
     (a) To make or not to oppose favorable
recommendations as to the sentence which should be imposed if the defendant
enters a plea of guilty or no contest to the offense charged;
     (b) To seek or not to oppose dismissal of
the offense charged if the defendant enters a plea of guilty or no contest to
another offense reasonably related to the defendantÂ’s conduct; or
     (c) To seek or not to oppose dismissal of
other charges or to refrain from bringing potential charges if the defendant
enters a plea of guilty or no contest to the offense charged.
     (4) Similarly situated defendants should
be afforded equal plea agreement opportunities.
     (5)(a) A district attorney may provide a
plea offer and agreed disposition recommendation to the defendant at the time
of arraignment or first appearance of the defendant for a crime in open court
under an early disposition program established under ORS 135.941.
     (b) Unless extended by the court, a plea
offer and agreed disposition recommendation made under paragraph (a) of this
subsection expire upon completion of the arraignment. Except for good cause, a
court may not extend a plea offer and agreed disposition recommendation under
this paragraph for more than seven days for a misdemeanor or 21 days for a
felony. [1973 c.836 §170; 2001 c.635 §10; 2001 c.962 §79]
     135.406
Consultation with victim regarding plea discussions. (1) In any case involving a defendant
charged with a violent felony:
     (a) If the victim requests within the time
period designated in the notice received under ORS 147.417, the district
attorney shall consult the victim regarding plea discussions before making a
final plea agreement; and
     (b) Before the judge accepts a plea of
guilty or no contest, the judge shall ask the district attorney if the victim
requested to be notified and consulted regarding plea discussions. If the
victim has made such a request, the judge shall ask the district attorney if
the victim agrees or disagrees with the plea discussions and agreement and the
victimÂ’s reasons for agreement or disagreement.
     (2) As used in this section, “violent
felony” means a person felony as defined in the rules of the Oregon Criminal
Justice Commission.
     (3) Failure to comply with this section
does not affect the validity of a plea. [1997 c.313 §3]
     Note: 135.406 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 135 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     135.407
Plea agreement must contain defendantÂ’s criminal history classification;
stipulations. In cases
arising from felonies committed on or after November 1, 1989:
     (1) Whenever a plea agreement is presented
to the sentencing judge, the defendantÂ’s criminal history classification, as
set forth in the rules of the Oregon Criminal Justice Commission, shall be
accurately represented to the trial judge in the plea agreement. If a
controversy exists as to whether a prior conviction or juvenile adjudication
should be included in the defendantÂ’s criminal history, or as to its
classification under rules of the Oregon Criminal Justice Commission, the
district attorney and the defendant may stipulate to the inclusion, exclusion
or classification of the conviction or adjudication as part of the plea
agreement subject to approval of the court.
     (2) The district attorney and the
defendant may stipulate to the grid block classification within the sentencing
guidelines grid established by the rules of the Oregon Criminal Justice
Commission that will provide the presumptive sentence range for the offender.
The sentencing judge may accept the stipulated classification and impose the
presumptive sentence provided in the rules of the Oregon Criminal Justice
Commission for that grid block.
     (3) If the district attorney and the
defendant stipulate to a grid block classification within the sentencing guidelines
grid, and the sentencing judge accepts the stipulated classification but
imposes a sentence other than the presumptive sentence provided by rules of the
Oregon Criminal Justice Commission, the sentence is a departure sentence and is
subject to rules of the Oregon Criminal Justice Commission related to
departures.
     (4) The district attorney and defendant
may stipulate to a specific sentence within the presumptive range provided by
rules of the Oregon Criminal Justice Commission for the stipulated offender
classification. If the sentencing judge accepts the plea agreement, the judge
shall impose the stipulated sentence.
     (5) The district attorney and the
defendant may stipulate to a sentence outside the presumptive sentence range
for a stipulated grid block classification. The sentencing judge may accept an
agreement for an optional probationary sentence or a departure sentence as
provided in rules of the Oregon Criminal Justice Commission. [1989 c.790 §2]
     135.410 [Repealed by 1973 c.836 §358]
     135.415
Criteria to be considered in plea discussions and plea agreements. In determining whether to engage in plea
discussions for the purpose of reaching a plea agreement, the district attorney
may take into account, but is not limited to, any of the following considerations:
     (1) The defendant by the plea of the
defendant has aided in insuring the prompt and certain applications of
correctional measures to the defendant.
     (2) The defendant has acknowledged guilt
and shown a willingness to assume responsibility for the conduct of the
defendant.
     (3) The concessions made by the state will
make possible alternative correctional measures which are better adapted to
achieving rehabilitative, protective, deterrent or other purposes of
correctional treatment, or will prevent undue harm to the defendant from the
form of conviction.
     (4) The defendant has made public trial
unnecessary when there are good reasons for not having the case dealt with in a
public trial.
     (5) The defendant has given or offered
cooperation when the cooperation has resulted or may result in the successful
prosecution of other offenders engaged in equally serious or more serious
criminal conduct.
     (6) The defendant by the plea of the
defendant has aided in avoiding delay in the disposition of other cases and
thereby has increased the probability of prompt and certain application of
correctional measures to other offenders. [1973 c.836 §171]
     135.420 [Amended by 1973 c.836 §158; renumbered
135.305]
     135.425
Responsibilities of defense counsel. (1) Defense counsel shall conclude a plea agreement only with the
consent of the defendant, and shall insure that the decision whether to enter a
plea of guilty or no contest is ultimately made by the defendant.
     (2) To aid the defendant in reaching a
decision, defense counsel, after appropriate investigation, shall advise the
defendant of the alternatives available and of factors considered important by
the defense counsel or the defendant in reaching a decision. [1973 c.836 §172]
     135.430 [Renumbered 135.315]
     135.432
Responsibilities of trial judge. (1)(a) The trial judge shall not participate in plea discussions,
except to:
     (A) Inquire of the parties about the
status of any discussions;
     (B) Participate in a tentative plea
agreement as provided in subsections (2) to (4) of this section; or
     (C) Make the inquiry required by ORS
135.406.
     (b) Any other judge, at the request of
both the prosecution and the defense, or at the direction of the presiding
judge, may participate in plea discussions. Participation by a judge in the
plea discussion process shall be advisory, and shall in no way bind the
parties. If no plea is entered pursuant to these discussions, the advice of the
participating judge shall not be reported to the trial judge. If the discussion
results in a plea of guilty or no contest, the parties, if they both agree to
do so, may proceed with the plea before a judge involved in the discussion.
This plea may be entered pursuant to a tentative plea agreement as provided in
subsections (2) to (4) of this section.
     (2) If a tentative plea agreement has been
reached which contemplates entry of a plea of guilty or no contest in the
expectation that charge or sentence concessions will be granted, the trial
judge, upon request of the parties, may permit the disclosure to the trial
judge of the tentative agreement and the reasons therefor in advance of the
time for tender of the plea. The trial judge may then advise the district
attorney and defense counsel whether the trial judge will concur in the
proposed disposition if the information in the presentence report or other
information available at the time for sentencing is consistent with the
representations made to the trial judge.
     (3) If the trial judge concurs, but later
decides that the final disposition of the case should not include the sentence
concessions contemplated by the plea agreement, the trial judge shall so advise
the defendant and allow the defendant a reasonable period of time in which to
either affirm or withdraw a plea of guilty or no contest.
     (4) When a plea of guilty or no contest is
tendered or received as a result of a prior plea agreement, the trial judge
shall give the agreement due consideration, but notwithstanding its existence,
the trial judge is not bound by it, and may reach an independent decision on
whether to grant sentence concessions under the criteria set forth in ORS
135.415. [1973 c.836 §173; 1987 c.202 §1; 1997 c.313 §4]
     135.435
Discussion and agreement not admissible. (1) Except as provided in subsection (2) of this section, none of the
following shall be received in evidence for or against a defendant in any
criminal or civil action or administrative proceeding:
     (a) The fact that the defendant or the
counsel of the defendant and the district attorney engaged in plea discussions.
     (b) The fact that the defendant or the
attorney of the defendant made a plea agreement with the district attorney.
     (c) Any statement or admission made by the
defendant or the attorney of the defendant to the district attorney and as a
part of the plea discussion or agreement.
     (2) The provisions of subsection (1) of
this section shall not apply if, subsequent to the plea discussions or plea
agreement, the defendant enters a plea of guilty or no contest which is not
withdrawn. [1973 c.836 §174]
     135.440 [Repealed by 1973 c.836 §358]
     135.445
Withdrawn plea or statement not admissible. (1) A plea of guilty or no contest which is not accepted or has been
withdrawn shall not be received against the defendant in any criminal
proceeding.
     (2) No statement or admission made by a
defendant or the attorney of the defendant during any proceeding relating to a
plea of guilty or no contest which is not accepted or has been withdrawn shall
be received against the defendant in any criminal proceeding. [1973 c.836 §175]
     135.450 [Renumbered 135.325]
(Related
Procedure)
     135.455
Notice prior to trial of intention to rely on alibi evidence; content of
notice; effect of failure to supply notice. (1) If the defendant in a criminal action proposes to rely in any way
on alibi evidence, the defendant shall, not less than five days before the
trial of the cause, file and serve upon the district attorney a written notice
of the purpose to offer such evidence, which notice shall state specifically
the place or places where the defendant claims to have been at the time or
times of the alleged offense together with the name and residence or business
address of each witness upon whom the defendant intends to rely for alibi
evidence. If the defendant fails to file and serve such notice, the defendant
shall not be permitted to introduce alibi evidence at the trial of the cause
unless the court for good cause orders otherwise.
     (2) As used in this section “alibi
evidence” means evidence that the defendant in a criminal action was, at the
time of commission of the alleged offense, at a place other than the place
where such offense was committed. [Formerly 135.875]
     135.460 [Repealed by 1973 c.836 §358]
     135.465
Defect in accusatory instrument as affecting acquittal on merits. When the defendant is acquitted on the
merits, the defendant is considered acquitted of the offense charged in the
accusatory instrument, notwithstanding a defect in form or substance in the
accusatory instrument on which the defendant is acquitted. [Formerly 135.880]
PRETRIAL
MOTIONS
     135.470
Motion to dismiss accusatory instrument on grounds of former jeopardy. (1) The court shall dismiss the accusatory
instrument if, upon motion of the defendant, it appears, as a matter of law,
that a former prosecution bars the prosecution for the offense charged.
     (2) The time of making the motion and its
effect shall be as provided for a motion to set aside the indictment in ORS
135.520 and 135.530.
     (3) An order to dismiss the accusatory
instrument on grounds of former jeopardy is a bar to a future prosecution of
the defendant for the offense charged in the accusatory instrument. [1973 c.836
§177]
     135.510
Grounds for motion to set aside the indictment. (1) The indictment shall be set aside by the
court upon the motion of the defendant in either of the following cases:
     (a) When it is not found, indorsed and
presented as prescribed in ORS 132.360, 132.400 to 132.430 and 132.580.
     (b) When the names of the witnesses
examined before the grand jury are not inserted at the foot of the indictment
or indorsed thereon.
     (2) Nothing in subsection (1)(b) of this
section shall affect the application of ORS 132.580. [Amended by 1959 c.426 §2;
1973 c.836 §178]
     135.520
Time of making motion; hearing.
A motion to set aside the indictment or dismiss the accusatory instrument shall
be made and heard at the time of the arraignment or within 10 days thereafter,
unless for good cause the court allows additional time. If not so made, the
defendant is precluded from afterwards taking the objections to the indictment
or accusatory instrument. [Amended by 1973 c.836 §179]
     135.530
Effect of allowance of motion.
(1) If the motion to set aside or dismiss is allowed, the court shall order
that the defendant, if in custody, be discharged therefrom or, if the defendant
has been released, that the release agreement be discharged and the security
deposit be refunded as provided by law, unless the court allows the case to be
refiled or resubmitted to the same or another grand jury.
     (2) If the court allows the case to be
resubmitted or refiled, it must be resubmitted or refiled by the state within
30 days from the date on which the court enters the order. If the case is not
resubmitted or refiled within that time, the defendant shall be released from
custody or the release agreement discharged or the security deposit returned. [Amended
by 1973 c.836 §180]
     135.540
Effect of resubmission of case.
Subject to the limitations of ORS 135.530 (2), if the court allows the case to
be resubmitted or refiled, the defendant, if then in custody, shall so remain,
unless the defendant is released as provided by law. If the defendant has
already been released, the release agreement or any security deposited as
provided by law, shall continue to insure the appearance of the defendant to
answer a new indictment or information, if one is filed. [Amended by 1973 c.836
§181]
     135.550 [Repealed by 1973 c.836 §358]
     135.560
Order to set aside is no bar to future prosecution. Except for an order dismissing an accusatory
instrument on grounds of former jeopardy, an order to set aside an indictment
or to dismiss an accusatory instrument is no bar to a future prosecution for
the same crime. [Amended by 1973 c.836 §182]
DEMURRERS
     135.610
Demurrer; generally. (1) The
demurrer shall be entered either at the time of the arraignment or at such
other time as may be allowed to the defendant for that purpose.
     (2) The demurrer shall be in writing,
signed by the defendant or the attorney of the defendant and filed. It shall
distinctly specify the ground of objection to the accusatory instrument. [Amended
by 1973 c.836 §183]
     135.620 [Repealed by 1973 c.836 §358]
     135.630
Grounds of demurrer. The
defendant may demur to the accusatory instrument when it appears upon the face
thereof:
     (1) If the accusatory instrument is an
indictment, that the grand jury by which it was found had no legal authority to
inquire into the crime charged because the same is not triable within the
county;
     (2) If the accusatory instrument is an
indictment, that it does not substantially conform to the requirements of ORS
132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;
     (3) That the accusatory instrument charges
more than one offense not separately stated;
     (4) That the facts stated do not
constitute an offense;
     (5) That the accusatory instrument
contains matter which, if true, would constitute a legal justification or
excuse of the offense charged or other legal bar to the action; or
     (6) That the accusatory instrument is not definite
and certain. [Amended by 1973 c.836 §184]
     135.640
When objections that are grounds for demurrer may be taken. When the objections mentioned in ORS 135.630
appear upon the face of the accusatory instrument, they can only be taken by
demurrer, except that the objection to the jurisdiction of the court over the
subject of the accusatory instrument, or that the facts stated do not
constitute an offense, may be taken at the trial, under the plea of not guilty
and in arrest of judgment. [Amended by 1973 c.836 §185]
     135.650
Hearing of objections specified by demurrer. Upon the filing of the demurrer, the objections presented thereby
shall be heard either immediately or at such time as the court may direct.
     135.660
Judgment on demurrer; entry in register. Upon considering the demurrer, the court shall give judgment, either
allowing or disallowing it, and an entry to that effect shall be made in the
register. [Amended by 1985 c.540 §33]
     135.670
Allowance of demurrer. (1)
If the demurrer is allowed, the judgment is final upon the accusatory
instrument demurred to and is a bar to another action for the same crime unless
the court, being of the opinion that the objection on which the demurrer is
allowed may be avoided in a new accusatory instrument, allows the case to be
resubmitted or refiled.
     (2) If the court allows the case to be
resubmitted or refiled, it must be resubmitted or refiled by the state within
30 days from the date on which the court enters the order. If the case is not
resubmitted or refiled within that time, the defendant shall be discharged from
custody or the release agreement discharged or the security deposit returned as
provided in ORS 135.680. [Amended by 1973 c.836 §186]
     135.680
Failure to resubmit case after allowance of demurrer. If the court does not allow the case to be
resubmitted or an amended complaint or information filed, the defendant, if in
custody, shall be discharged. If the defendant has been released, the release
agreement shall be discharged. If the defendant has deposited any security, the
security shall be returned to the defendant as provided by law. [Amended by
1973 c.836 §187]
     135.690
Resubmission of case. If the
court allows the case to be resubmitted, the same proceedings shall be had
thereon as are prescribed in ORS 135.540. [Amended by 1973 c.836 §188]
     135.700
Disallowance of demurrer. If
the demurrer is disallowed, the court shall permit the defendant, at the
election of the defendant, to plead, which the defendant must do forthwith or
at such time as the court may allow; but if the defendant does not plead, a
plea of not guilty shall be entered. [Amended by 1973 c.836 §189]
COMPROMISE
     135.703
Crimes subject to being compromised; exceptions. (1) When a defendant is charged with a crime
punishable as a misdemeanor for which the person injured by the act
constituting the crime has a remedy by a civil action, the crime may be
compromised, as provided in ORS 135.705, except when it was committed:
     (a) By or upon a peace officer while in
the execution of the duties of office;
     (b) Riotously;
     (c) With an intent to commit a crime
punishable only as a felony; or
     (d) By one family or household member upon
another family or household member, as defined in ORS 107.705, or by a person
upon an elderly person or a person with a disability as defined in ORS 124.005
and the crime was:
     (A) Assault in the fourth degree under ORS
163.160;
     (B) Assault in the third degree under ORS
163.165;
     (C) Menacing under ORS 163.190;
     (D) Recklessly endangering another person
under ORS 163.195;
     (E) Harassment under ORS 166.065; or
     (F) Strangulation under ORS 163.187.
     (2) Notwithstanding subsection (1) of this
section, when a defendant is charged with violating ORS 811.700, the crime may
be compromised as provided in ORS 135.705. [Formerly 134.010; 1991 c.938 §1;
1995 c.657 §21; 1995 c.666 §26; 1999 c.738 §9; 2003 c.264 §9; 2003 c.577 §5;
2007 c.70 §35]
     135.705
Satisfaction of injured person; dismissal of charges. (1)(a) If the person injured acknowledges in
writing, at any time before trial on an accusatory instrument for the crime,
that the person has received satisfaction for the injury, the court may, in its
discretion, on payment of the costs and expenses incurred, order the accusatory
instrument dismissed. The order must be entered in the register.
     (b) For purposes of paragraph (a) of this
subsection, a written acknowledgment that a civil penalty under ORS 30.875 has
been paid is not evidence that the person injured has received full
satisfaction for the injury and is not a compromise under this section.
     (2) As used in this section, “costs”
includes those expenses specially incurred by the state in prosecuting the
defendant, including costs under ORS 151.505 for the compensation of counsel
appointed pursuant to ORS 135.045 or 135.050 and fees and expenses paid under
ORS 135.055. [Formerly 134.020; 1981 s.s. c.3 §121; 1985 c.540 §34; 1985 c.710 §4;
1987 c.803 §25; 1999 c.925 §1; 2003 c.449 §28]
     135.707
Discharge as bar to prosecution. The order authorized by ORS 135.705, when made and entered, is a bar
to another prosecution for the same crime. [Formerly 134.030]
     135.709
Exclusiveness of procedure.
No crime can be compromised nor can any proceeding for the prosecution or
punishment thereof be stayed upon a compromise, except as provided in ORS
135.703 to 135.709 and 135.745 to 135.757. [Formerly 134.040]
SUFFICIENCY
OF ACCUSATORY INSTRUMENTS
     135.711
Facts constituting crime or subcategory of crime required. For any felony committed on or after
November 1, 1989, the accusatory instrument shall allege facts sufficient to
constitute a crime or a specific subcategory of a crime in the Crime
Seriousness Scale established by the rules of the Oregon Criminal Justice
Commission. [1989 c.790 §4]
     135.713
Necessity of stating presumptions of law and matters judicially noticed. Neither presumptions of law nor matters of
which judicial notice is taken need be stated in an accusatory instrument. [Formerly
132.570]
     135.715
Effect of nonprejudicial defects in form of accusatory instrument. No accusatory instrument is insufficient,
nor can the trial, judgment or other proceedings thereon be affected, by reason
of a defect or imperfection in a matter of form which does not tend to the
prejudice of the substantial rights of the defendant upon the merits. [Formerly
132.590]
     135.717
Time of crime. The precise
time at which the offense was committed need not be stated in the accusatory
instrument, but it may be alleged to have been committed at any time before the
finding thereof and within the time in which an action may be commenced
therefor, except where the time is a material element in the offense. [Formerly
132.610]
     135.720
Place of crime in certain cases. In an accusatory instrument for an offense committed as described in
ORS 131.315 and 131.325, it is sufficient to allege that the offense was
committed within the county where the accusatory instrument is found. [Formerly
132.620]
     135.725
Person injured or intended to be injured. When a crime involves the commission of or an attempt to commit a
private injury and is described with sufficient certainty in other respects to
identify the act, an erroneous allegation as to the person injured or intended
to be injured is not material. [Formerly 132.630]
     135.727
Description of animal. When
an offense involves the taking of or injury to an animal, the accusatory
instrument is sufficiently certain in that respect if it describes the animal
by the common name of its class. [Formerly 132.640]
     135.730
Judgments; facts conferring jurisdiction. In pleading in an accusatory instrument a judgment or other
determination of or proceeding before a court or officer of special
jurisdiction, it is not necessary to state the facts conferring jurisdiction;
but the judgment, determination or proceeding may be stated to have been duly
given or made. The facts conferring jurisdiction, however, must be established
on the trial. [Formerly 132.660]
     135.733
Defamation. An accusatory
instrument for criminal defamation need not set forth any extrinsic facts for
the purpose of showing the application to the party defamed of the defamatory
matter on which the accusatory instrument is founded; but it is sufficient to
state generally that the same was published concerning the party; and the fact
that it was so published must be established on the trial. [Formerly 132.670]
     135.735
Forgery; misdescription of forged instrument. When an instrument which is the subject of an accusatory instrument
for forgery has been destroyed or withheld by the act or procurement of the
defendant and the fact of the destruction or withholding is alleged in the
accusatory instrument and established on the trial, the misdescription of the
instrument is immaterial. [Formerly 132.680]
     135.737
Perjury. In an accusatory
instrument for perjury, attempted perjury, solicitation of perjury or
conspiracy to commit perjury it is sufficient to set forth the substance of the
controversy or matter in respect to which the crime was committed, in what
court or before whom the oath alleged to be false was taken and that the court
or person before whom it was taken had authority to administer it, with proper
allegations of the falsity of the matter on which the perjury is assigned; but
the accusatory instrument need set forth neither the pleadings, record or
proceedings with which the oath is connected nor the commission or authority of
the court or person before whom the perjury was committed. [Formerly 132.690]
     135.740
Construction of words and phrases used. The words used in an accusatory instrument must be construed in their
usual acceptation in common language, except words and phrases defined by law,
which are to be construed according to their legal meaning. [Formerly 132.710]
     135.743
Fictitious or erroneous name; insertion of true name. When a defendant is charged in an accusatory
instrument by a fictitious or erroneous name and in any stage of the
proceedings the true name of the defendant is discovered, it may be inserted in
the subsequent proceedings, referring to the fact of the defendant being
charged by the name mentioned in the accusatory instrument. [Formerly 132.720]
SPEEDY TRIAL
PROVISIONS
     135.745
Delay in finding an indictment or filing an information. When a person has been held to answer for a
crime, if an indictment is not found against the person within 30 days or the
district attorney does not file an information in circuit court within 30 days
after the person is held to answer, the court shall order the prosecution to be
dismissed, unless good cause to the contrary is shown. [Formerly 134.110]
     135.747
Effect of delay in bringing defendant to trial. If a defendant charged with a crime, whose
trial has not been postponed upon the application of the defendant or by the
consent of the defendant, is not brought to trial within a reasonable period of
time, the court shall order the accusatory instrument to be dismissed. [Formerly
134.120]
     135.750
Where there is reason for delay. If the defendant is not proceeded against or tried, as provided in ORS
135.745 and 135.747, and sufficient reason therefor is shown, the court may
order the action to be continued and in the meantime may release the defendant
from custody as provided in ORS 135.230 to 135.290, for the appearance of the
defendant to answer the charge or action. [Formerly 134.130]
DISMISSAL OF
ACTION
     135.753
Effect of dismissal. (1) If
the court directs the charge or action to be dismissed, the defendant, if in
custody, shall be discharged. If the defendant has been released, the release
agreement is exonerated and security deposited shall be refunded to the
defendant.
     (2) An order for the dismissal of a charge
or action, as provided in ORS 135.703 to 135.709 and 135.745 to 135.757, is a
bar to another prosecution for the same crime if the crime is a Class B or C
misdemeanor; but it is not a bar if the crime charged is a Class A misdemeanor
or a felony.
     (3) If any charge or action is dismissed
for the purpose of consolidation with one or more other charges or actions,
then any such dismissal shall not be a bar to another prosecution for the same
offense. [Formerly 134.140; 1975 c.198 §1]
     135.755
Dismissal on motion of court or district attorney. The court may, either of its own motion or
upon the application of the district attorney, and in furtherance of justice,
order the proceedings to be dismissed. The reasons for the dismissal shall be
set forth in the order, which shall be entered in the register. [Formerly
134.150; 1985 c.540 §35]
     135.757
Nolle prosequi; discontinuance by district attorney. The entry of a nolle prosequi is abolished,
and the district attorney cannot discontinue or abandon a prosecution for a
crime, except as provided in ORS 135.755. [Formerly 134.160]
PROSECUTION
OF PRISONERS
     135.760
Notice requesting early trial on pending charge. (1) Any inmate in the custody of the
Department of Corrections or of the supervisory authority of a county pursuant
to a commitment under ORS 137.124 (2) against whom there is pending at the time
of commitment or against whom there is filed at any time during imprisonment,
in any court of this state, an indictment, information or criminal complaint
charging the inmate with the commission of a crime, may give written notice to
the district attorney of the county in which the inmate is so charged
requesting the district attorney to prosecute and bring the inmate to trial on
the charge forthwith.
     (2) The notice provided for in subsection
(1) of this section shall be signed by the inmate and set forth the place and
term of imprisonment. A copy of the notice shall be sent to the court in which
the inmate has been charged by indictment, information or complaint. [Formerly
134.510; 1987 c.320 §19; 1995 c.423 §9b]
     135.763
Trial within 90 days of notice unless continuance granted. (1) The district attorney, after receiving a
notice requesting trial under ORS 135.760, shall, within 90 days of receipt of
the notice, bring the inmate to trial upon the pending charge.
     (2) The court shall grant any reasonable
continuance with the consent of the defendant. Notwithstanding the defendantÂ’s
lack of consent, the court may grant a continuance on motion of the district
attorney or on its own motion, for good cause shown. The fact of imprisonment
is not good cause for the purposes of this subsection. [Formerly 134.520; 1993
c.542 §1]
     135.765
Dismissal of criminal proceeding not brought to trial within allowed time;
exceptions. (1) On motion of
the defendant or the counsel of the defendant, or on its own motion, the court
shall dismiss any criminal proceeding not brought to trial in accordance with
ORS 135.763.
     (2) This section shall not apply:
     (a) When failure to bring the inmate to
trial within 90 days after the district attorney receives notice under ORS
135.760 was the result of motions filed on behalf of the inmate, or of a grant
by the court of a continuance on motion of the district attorney or on its own
motion, for good cause shown; or
     (b) When the inmate is unavailable for
trial, other than by imprisonment, or because of other pending criminal
proceedings against the inmate. [Formerly 134.530; 1993 c.542 §2]
     135.767
Presence of prisoner at proceedings. (1) Whenever the presence of an inmate in the custody of the
Department of Corrections or of the supervisory authority of a county pursuant
to a commitment under ORS 137.124 (2) is necessary in any criminal proceeding
under ORS 135.760 to 135.773, the court wherein the inmate is charged with the
commission of a crime may:
     (a) Issue an order directing the Director
of the Department of Corrections or the supervisory authority of a county to
surrender the inmate to the sheriff of the county where the inmate is to be
tried; or
     (b) Ensure that arrangements for the
inmate to appear by simultaneous electronic transmission as described in ORS
131.045 have been made.
     (2) The county where an inmate is charged
with commission of a crime shall pay the costs of:
     (a) Transportation and maintenance of the
inmate removed under this section; or
     (b) Providing for the inmate to appear by
simultaneous electronic transmission.
     (3) If an inmate is transported under this
section for a criminal proceeding under ORS 135.760 to 135.773, at the
conclusion of the proceeding, notwithstanding the provisions of ORS 137.140,
the inmate shall be returned by the sheriff to the custody of the Department of
Corrections or the supervisory authority of the county in which the inmate is
imprisoned.
     (4) The time during which an inmate is in
the custody of the sheriff under this section is part of and shall be counted
as time served under the original sentence. [Formerly 134.540; 1983 c.740 §14;
1987 c.320 §20; 1995 c.423 §9c; 2005 c.566 §8]
     135.770
Release of prisoner prohibited.
No inmate in the custody of a sheriff under ORS 135.767 shall be released
pending a criminal proceeding under ORS 135.760 to 135.773 or any appeal
therefrom. [Formerly 134.550]
     135.773
District attorney to furnish certain documents. The district attorney shall, in all
proceedings against inmates under ORS 135.760 to 135.773, obtain for and
furnish to the court a certified copy of the judgment, sentence or commitment
order pursuant to which the inmate is imprisoned. [Formerly 134.560]
DETAINER
     135.775
Agreement on Detainers. The
Agreement on Detainers is hereby enacted into law and entered into by this
state with all other jurisdictions legally joining therein in the form
substantially as follows:
______________________________________________________________________________
AGREEMENT ON DETAINERS
     The contracting states solemnly agree
that:
ARTICLE I
     The party states find that charges outstanding
against a prisoner, detainers based on untried indictments, informations or
complaints, and difficulties in securing speedy trial of persons already
incarcerated in other jurisdictions, produce uncertainties which obstruct
programs of prisoner treatment and rehabilitation. Accordingly, it is the
policy of the party states and the purpose of this agreement to encourage the
expeditious and orderly disposition of such charges and determination of the
proper status of any and all detainers based on untried indictments,
informations or complaints. The party states also find that proceedings with
reference to such charges and detainers, when emanating from another
jurisdiction, cannot properly be had in the absence of cooperative procedures.
It is the further purpose of this agreement to provide such cooperative
procedures.
ARTICLE II
     As used in this agreement:
     (a) “State” shall mean a state of the
     (b) “Sending state” shall mean a state in
which a prisoner is incarcerated at the time that the prisoner initiates a
request for final disposition pursuant to Article III of this agreement or at
the time that a request for custody or availability is initiated pursuant to
Article IV of this agreement.
     (c) “Receiving state” shall mean the state
in which trial is to be had on an indictment, information or complaint pursuant
to Article III or Article IV of this agreement.
     (d) “Department of Corrections institution”
of this state shall mean any institution operated by the Department of
Corrections.
ARTICLE III
     (a) Whenever a person has entered upon a
term of imprisonment in a penal or correctional institution of a party state,
and whenever during the continuance of the term of imprisonment there is
pending in any other party state any untried indictment, information or
complaint on the basis of which a detainer has been lodged against the
prisoner, the prisoner shall be brought to trial within 180 days after the
prisoner shall have caused to be delivered to the prosecuting officer and the
appropriate court of the prosecuting officerÂ’s jurisdiction written notice of
the place of imprisonment and the request of the prisoner for a final
disposition to be made of the indictment, information or complaint: Provided,
that for good cause shown in open court, the prisoner or the counsel of the
prisoner being present, the court having jurisdiction of the matter may grant
any necessary or reasonable continuance. The request of the prisoner shall be
accompanied by a certificate of the appropriate official having custody of the
prisoner, stating the term of commitment under which the prisoner is being
held, the time already served, the time remaining to be served on the sentence,
the amount of good time earned, the time of parole eligibility of the prisoner,
and any decisions of the state parole agency relating to the prisoner.
     (b) The written notice and request for
final disposition referred to in paragraph (a) of this Article shall be given
or sent by the prisoner to the warden or other official having custody of the
prisoner, who shall promptly forward it together with the certificate to the
prosecuting official and court by registered or certified mail, return receipt
requested.
     (c) The warden or other official having
custody of the prisoner shall promptly inform the prisoner of the source and
contents of any detainer lodged against the prisoner and shall also inform the
prisoner of the right to make a request for final disposition of the
indictment, information or complaint on which the detainer is based.
     (d) Any request for final disposition made
by a prisoner pursuant to paragraph (a) of this Article shall operate as a
request for final disposition of all untried indictments, informations or
complaints on the basis of which detainers have been lodged against the
prisoner from the state to whose prosecuting official the request for final
disposition is specifically directed. The warden or other official having
custody of the prisoner shall forthwith notify all appropriate prosecuting
officers and courts in the several jurisdictions within the state to which the
prisonerÂ’s request for final disposition is being sent of the proceeding being
initiated by the prisoner. Any notification sent pursuant to this paragraph
shall be accompanied by copies of the prisonerÂ’s written notice, request and
the certificate. If trial is not had on any indictment, information or
complaint contemplated hereby prior to the return of the prisoner to the
original place of imprisonment, such indictment, information or complaint shall
not be of any further force or effect, and the court shall enter an order
dismissing the same with prejudice.
     (e) Any request for final disposition made
by a prisoner pursuant to paragraph (a) of this Article shall also be deemed to
be a waiver of extradition with respect to any charge or proceeding
contemplated thereby or included therein by reason of paragraph (d) of this Article,
and a waiver of extradition to the receiving state to serve any sentence there
imposed upon the prisoner, after completion of the term of imprisonment in the
sending state. The request for final disposition shall also constitute a
consent by the prisoner to the production of the body of the prisoner in any
court where the presence of the prisoner may be required in order to effectuate
the purposes of this agreement and a further consent voluntarily to be returned
to the original place of imprisonment in accordance with the provisions of this
agreement. Nothing in this paragraph shall prevent the imposition of a
concurrent sentence if otherwise permitted by law.
     (f) Escape from custody by the prisoner
subsequent to the execution of the request for final disposition referred to in
paragraph (a) of this Article shall void the request.
ARTICLE IV
     (a) The appropriate officer of the
jurisdiction in which an untried indictment, information or complaint is
pending shall be entitled to have a prisoner against whom the officer has
lodged a detainer and who is serving a term of imprisonment in any party state
made available in accordance with paragraph (a) of Article V of this agreement
upon presentation of a written request for temporary custody or availability to
the appropriate authorities of the state in which the prisoner is incarcerated:
Provided, that the court having jurisdiction of such indictment, information or
complaint shall have duly approved, recorded and transmitted the request; And
provided further, that there shall be a period of 30 days after receipt by the
appropriate authorities before the request be honored, within which period the
governor of the sending state may disapprove the request for temporary custody
or availability, either upon the own motion of the governor or upon motion of
the prisoner.
     (b) Upon receipt of the officer’s written
request as provided in paragraph (a) of this Article, the appropriate
authorities having the prisoner in custody shall furnish the officer with a
certificate stating the term of commitment under which the prisoner is being
held, the time already served, the time remaining to be served on the sentence,
the amount of good time earned, the time of parole eligibility of the prisoner
and any decisions of the state parole agency relating to the prisoner. Such
authorities simultaneously shall furnish all other officers and appropriate
courts in the receiving state who have lodged detainers against the prisoner
with similar certificates and with notices informing them of the request for
custody or availability and of the reasons therefor.
     (c) In respect of any proceeding made
possible by this Article, trial shall be commenced within 120 days of the
arrival of the prisoner in the receiving state, but for good cause shown in
open court, the prisoner or the counsel of the prisoner being present, the
court having jurisdiction of the matter may grant any necessary or reasonable
continuance.
     (d) Nothing contained in this Article
shall be construed to deprive any prisoner of any right which the prisoner may
have to contest the legality of the delivery of the prisoner as provided in
paragraph (a) of this Article, but such delivery may not be opposed or denied
on the ground that the executive authority of the sending state has not
affirmatively consented to or ordered such delivery.
     (e) If trial is not had on any indictment,
information or complaint contemplated hereby prior to the prisonerÂ’s being
returned to the original place of imprisonment pursuant to paragraph (e) of
Article V of this agreement, such indictment, information or complaint shall
not be of any further force or effect, and the court shall enter an order
dismissing the same with prejudice.
ARTICLE V
     (a) In response to a request made under
Article III or Article IV of this agreement, the appropriate authority in a
sending state shall offer to deliver temporary custody of such prisoner to the
appropriate authority in the state where such indictment, information or
complaint is pending against such person in order that speedy and efficient
prosecution may be had. If the request for final disposition is made by the
prisoner, the offer of temporary custody shall accompany the written notice
provided for in Article III of this agreement. In the case of a federal prisoner,
the appropriate authority in the receiving state shall be entitled to temporary
custody as provided by this agreement or to the prisonerÂ’s presence in federal
custody at the place for trial, whichever custodial arrangement may be approved
by the custodian.
     (b) The officer or other representative of
a state accepting an offer of temporary custody shall present the following
upon demand:
     (1) Proper identification and evidence of
authority to act for the state into whose temporary custody the prisoner is to
be given.
     (2) A duly certified copy of the
indictment, information or complaint on the basis of which the detainer has
been lodged and on the basis of which the request for temporary custody of the
prisoner has been made.
     (c) If the appropriate authority shall
refuse or fail to accept temporary custody of such prisoner, or in the event
that an action on the indictment, information or complaint on the basis of
which the detainer has been lodged is not brought to trial within the period
provided in Article III or Article IV of this agreement, the appropriate court
of the jurisdiction where the indictment, information or complaint has been
pending shall enter an order dismissing the same with prejudice, and any
detainer based thereon shall cease to be of any force or effect.
     (d) The temporary custody referred to in
this agreement shall be only for the purpose of permitting prosecution on the
charge or charges contained in one or more untried indictments, informations or
complaints which form the basis of the detainer or detainers or for prosecution
on any other charge or charges arising out of the same transaction. Except for
attendance of the prisoner at court and while being transported to or from any
place at which the presence of the prisoner may be required, the prisoner shall
be held in a suitable jail or other facility regularly used for persons
awaiting prosecution.
     (e) At the earliest practicable time
consonant with the purposes of this agreement, the prisoner shall be returned
to the sending state.
     (f) During the continuance of temporary
custody or while the prisoner is otherwise being made available for trial as
required by this agreement, time being served on the sentence shall continue to
run but good time shall be earned by the prisoner only if, and to the extent
that, the law and practice of the jurisdiction which imposed the sentence may
allow.
     (g) For all purposes other than that for
which temporary custody as provided in this agreement is exercised, the
prisoner shall be deemed to remain in the custody of and subject to the
jurisdiction of the sending state and any escape from temporary custody may be
dealt with in the same manner as an escape from the original place of
imprisonment or in any other manner permitted by law.
     (h) From the time that a party state
receives custody of a prisoner pursuant to this agreement until such prisoner
is returned to the territory and custody of the sending state, the state in
which the one or more untried indictments, informations or complaints are pending
or in which trial is being had shall be responsible for the prisoner and shall
also pay all costs of transporting, caring for, keeping and returning the
prisoner. The provisions of this paragraph shall govern unless the states
concerned shall have entered into a supplementary agreement providing for a
different allocation of costs and responsibilities as between or among
themselves. Nothing contained in this paragraph shall be construed to alter or
affect any internal relationship among the departments, agencies and officers
of and in the government of a party state, or between a party state and its
subdivisions, as to the payment of costs, or responsibilities therefor.
ARTICLE VI
     (a) In determining the duration and
expiration dates of the time periods provided in Articles III and IV of this
agreement, the running of such time periods shall be tolled whenever and for as
long as the prisoner is unable to stand trial, as determined by the court
having jurisdiction of the matter.
     (b) No provision of this agreement, and no
remedy made available by this agreement, shall apply to any person who is
adjudged to be mentally ill.
ARTICLE VII
     Each state party to this agreement shall
designate an officer who, acting jointly with like officers of other party
states, shall promulgate rules and regulations to carry out more effectively
the terms and provisions of this agreement, and who shall provide within and
without the state, information necessary to the effective operation of this
agreement.
ARTICLE VIII
     This agreement shall enter into full force
and effect as to a party state when such state has enacted the agreement into
law. A state party to this agreement may withdraw herefrom by enacting a
statute repealing the agreement. However, the withdrawal of any state shall not
affect the status of any proceedings already initiated by prisoners or by state
officers at the time such withdrawal takes effect, nor shall it affect their
rights in respect thereof.
ARTICLE IX
     This agreement shall be liberally
construed so as to effectuate its purposes. The provisions of this agreement
shall be severable and if any phrase, clause, sentence or provision of this
agreement is declared to be contrary to the constitution of any party state or
of the United States or the applicability thereof to any government, agency,
person or circumstance is held invalid, the validity of the remainder of this
agreement and the applicability thereof to any government, agency, person or
circumstance shall not be affected thereby. If this agreement shall be held
contrary to the constitution of any state party to this agreement, the
agreement shall remain in full force and effect as to the remaining states and
in full force and effect as to the state affected as to all severable matters.
______________________________________________________________________________
[Formerly
134.605; 1987 c.320 §20a]
     135.777
Definition for ORS 135.775.
As used in the Agreement on Detainers, the term “appropriate court” means any
court of this state that has criminal jurisdiction. [Formerly 134.615]
     135.779
Enforcement of ORS 135.775 by public agencies. All courts, departments, agencies, officers
and employees of this state and its political subdivisions are hereby directed
to enforce the Agreement on Detainers and to cooperate with one another and
with other party states in enforcing the agreement and effectuating its
purposes. [Formerly 134.625]
     135.783
Effect of escape from custody in another state. Escape from custody while in another state
pursuant to the Agreement on Detainers is an offense against the laws of this
state to the same extent and degree as an escape from the institution in which
the prisoner was confined immediately prior to having been sent to another
state pursuant to the provision of the Agreement on Detainers and shall be
punishable in the same manner as an escape from such institution. [Formerly
134.635]
     135.785
Surrender of custody under ORS 135.775. The official in charge of a Department of Corrections institution in
this state shall give over the person of any inmate thereof whenever so
required by the operation of the Agreement on Detainers. [Formerly 134.645;
1987 c.320 §21]
     135.787
Administrator of agreement; appointment; duties. The Governor may appoint an administrator
who shall perform the duties and functions and exercise the powers conferred
upon such person by Article VII of the Agreement on Detainers. [Formerly
134.655]
     135.789
Notice of request for temporary custody; prisonerÂ’s rights. In order to implement paragraph (a) of Article
IV of the Agreement on Detainers, and in furtherance of its purposes, the
appropriate authorities having custody of the prisoner shall, promptly upon
receipt of the officerÂ’s written request, notify the prisoner and the Governor
in writing that a request for temporary custody has been made and such
notification shall describe the source and contents of such request. The
authorities having custody of the prisoner shall also advise the prisoner in
writing of the rights of the prisoner to counsel, to make representations to
the Governor within 30 days, and to contest the legality of the delivery of the
prisoner. [Formerly 134.665]
     135.791
Request for final disposition of detainer from prisoner without state. When the district attorney of any county
shall have received written notice from a prisoner in another state of the
prisonerÂ’s request for final disposition to be made of any untried accusatory
instrument which is the basis of a detainer against the prisoner, the district
attorney promptly shall give written notice to the Governor that such request
has been received. The notice to the Governor shall describe the charge pending
against the prisoner and shall recite the crime of which the prisoner was
convicted in the other state, the sentence imposed and the date the sentence
commenced, or so much of such information as may be known to the district
attorney. The notice to the Governor shall be accompanied by a summary of the
evidence against the prisoner on the untried charge. Within 10 days after receiving
the notice and summary of evidence, the Governor shall send written direction
to the district attorney either to proceed with prosecution of the prisoner
when the prisoner is made available, or to move the court for dismissal of the
untried indictment, information or complaint and to remove the detainer against
the prisoner. The written direction may be signed by the Governor or by a
person authorized by the Governor to perform extradition functions. The
decision of the Governor shall be final, and the district attorney shall act as
so directed. [1973 c.632 §2]
     135.793
Procedure where untried instrument pending against prisoner without state. Any officer of a jurisdiction in this state
in which an untried accusatory instrument is pending against a prisoner in
another state, and who desires to have the prisoner returned for trial, shall
give written notice and a summary of the evidence against the prisoner to the
Governor in the manner provided in ORS 135.791. The Governor shall, within 10
days after receiving the notice and summary, send written direction to such
officer either approving or disapproving the return of the prisoner. The
direction by the Governor shall be final, and may be signed as provided in ORS
135.791. The officer desiring return of a prisoner shall not seek the court
approval provided for in paragraph (a) of Article IV of the Agreement on
Detainers prior to receiving approval by the Governor. [1973 c.632 §3]
PRETRIAL
DISCOVERY
     135.805
Applicability; scope of disclosure. (1) The provisions of ORS 135.805 to 135.873 are applicable to all
criminal prosecutions in which the charging instrument has been brought in a
court of record.
     (2) As used in ORS 135.805 to 135.873, “disclose”
means to afford the adverse party an opportunity to inspect or copy the
material. [1973 c.836 §213; 1977 c.617 §1]
     135.810 [Repealed by 1973 c.836 §358]
     135.815
Disclosure to defendant. (1)
Except as otherwise provided in ORS 135.855 and 135.873, the district attorney
shall disclose to a represented defendant the following material and
information within the possession or control of the district attorney:
     (a) The names and addresses of persons
whom the district attorney intends to call as witnesses at any stage of the
trial, together with their relevant written or recorded statements or memoranda
of any oral statements of such persons.
     (b) Any written or recorded statements or
memoranda of any oral statements made by the defendant, or made by a
codefendant if the trial is to be a joint one.
     (c) Any reports or statements of experts,
made in connection with the particular case, including results of physical or
mental examinations and of scientific tests, experiments or comparisons which
the district attorney intends to offer in evidence at the trial.
     (d) Any books, papers, documents,
photographs or tangible objects:
     (A) Which the district attorney intends to
offer in evidence at the trial; or
     (B) Which were obtained from or belong to
the defendant.
     (e) If actually known to the district
attorney, any record of prior criminal convictions of persons whom the district
attorney intends to call as witnesses at the trial; and the district attorney
shall make a good faith effort to determine if such convictions have occurred.
     (f) All prior convictions of the defendant
known to the state that would affect the determination of the defendantÂ’s
criminal history for sentencing under rules of the Oregon Criminal Justice
Commission.
     (2) Except as otherwise provided in ORS
135.855 and 135.873, in prosecutions for violation of ORS 813.010 in which an
instrument was used to test a personÂ’s breath, blood or urine to determine the
alcoholic content of the personÂ’s blood the district attorney shall disclose to
a represented defendant at least the following material and information within
the possession or control of the district attorney:
     (a) Any report prepared by a police
officer relating to field tests, interviews, observations and other information
relating to the charged offense;
     (b) Any report relating to the test
results;
     (c) A copy of the form provided to the
defendant under ORS 813.100 (3)(b); and
     (d) Any checklist prepared by the operator
of the instrument for the test.
     (3)(a) If a defendant is not represented
by a lawyer, the district attorney shall disclose to the defendant all of the
information described in subsections (1) and (2) of this section except for the
personal identifiers of the victim and any witnesses.
     (b) Notwithstanding paragraph (a) of this
subsection, the district attorney shall disclose the personal identifiers of
the victim and any witnesses if the trial court orders the disclosure. A trial
court shall order the district attorney to disclose the personal identifiers of
the victim and any witnesses if the trial court finds that:
     (A) The defendant has requested the
information; and
     (B)(i) The victim or witness is a business
or institution and disclosure of the information would not represent a risk of
harm to the victim or witness; or
     (ii) The need for the information cannot
reasonably be met by other means.
     (4)(a) Unless authorized by the trial
court to disclose the information, a lawyer representing a defendant, or a
representative of the lawyer, may not disclose to the defendant personal
identifiers of a victim or witness obtained under subsections (1) and (2) of
this section.
     (b) The trial court shall order the
lawyer, or representative of the lawyer, to disclose to the defendant the
personal identifiers of a victim or witness if the court finds that:
     (A) The defendant’s lawyer has requested
the district attorney to disclose the information to the defendant;
     (B) The district attorney has refused to
disclose the information to the defendant; and
     (C) The need for the information cannot
reasonably be met by other means.
     (5) As used in this section:
     (a) “Personal identifiers” means a person’s
address, telephone number, Social Security number and date of birth and the
identifying number of a personÂ’s depository account at a financial institution,
as defined in ORS 706.008, or credit card account.
     (b) “Representative of the lawyer” has the
meaning given that term in ORS 40.225.
     (c) “Represented defendant” means a
defendant who is represented by a lawyer in a criminal action. [1973 c.836 §214;
1989 c.790 §5; 1993 c.469 §2; 1999 c.304 §1; 2005 c.545 §1; 2007 c.581 §1]
     135.820 [Repealed by 1973 c.836 §358]
     135.825
Other disclosure to defense; special conditions. Except as otherwise provided in ORS 135.855
and 135.873, the district attorney shall disclose to the defense:
     (1) The occurrence of a search or seizure;
and
     (2) Upon written request by the defense,
any relevant material or information obtained thereby, the circumstances of the
search or seizure, and the circumstances of the acquisition of any specified
statements from the defendant. [1973 c.836 §215; 1999 c.304 §2]
     135.830 [Amended by 1973 c.836 §161; renumbered
135.355]
     135.835
Disclosure to the state.
Except as otherwise provided in ORS 135.855 and 135.873, the defense shall
disclose to the district attorney the following material and information within
the possession or control of the defense:
     (1) The names and addresses of persons,
including the defendant, whom the defense intends to call as witnesses at the
trial, together with relevant written or recorded statements or memoranda of
any oral statements of such persons other than the defendant.
     (2) Any reports or statements of experts,
made in connection with the particular case, including results of physical or
mental examinations and of scientific tests, experiments or comparisons, that
the defense intends to offer in evidence at the trial.
     (3) Any books, papers, documents,
photographs or tangible objects that the defense intends to offer in evidence
at the trial. [1973 c.836 §216; 1999 c.304 §3]
     135.840 [Amended by 1973 c.836 §162; renumbered
135.360]
     135.845
Time of disclosure. (1) The
obligations to disclose shall be performed as soon as practicable following the
filing of an indictment or information in the circuit court or the filing of a
complaint or information charging a misdemeanor or violation of a city
ordinance. The court may supervise the exercise of discovery to the extent
necessary to insure that it proceeds properly and expeditiously.
     (2) If, after complying with the
provisions of ORS 135.805 to 135.873 and 135.970, a party finds, either before
or during trial, additional material or information which is subject to or
covered by these provisions, the party must promptly notify the other party of
the additional material or information. [1973 c.836 §217; 1999 c.304 §4]
     135.850 [Amended by 1973 c.836 §163; renumbered
135.365]
     135.855
Material and information not subject to discovery. (1) The following material and information
shall not be subject to discovery under ORS 135.805 to 135.873:
     (a) Work product, legal research, records,
correspondence, reports or memoranda to the extent that they contain the
opinions, theories or conclusions of the attorneys, peace officers or their
agents in connection with the investigation, prosecution or defense of a
criminal action.
     (b) The identity of a confidential
informant where the identity of the informant is a prosecution secret and a
failure to disclose will not infringe the constitutional rights of the
defendant. Except as provided in ORS 135.873, disclosure shall not be denied
hereunder of the identity of witnesses to be produced at trial.
     (c) Transcripts, recordings or memoranda
of testimony of witnesses before the grand jury, except transcripts or
recordings of statements made by the defendant.
     (d) Schematics, source codes or software
of an instrument that was used to test a personÂ’s breath, blood or urine to
determine the alcoholic content of the personÂ’s blood that are not in the
actual possession or control of the state.
     (2) When some parts of certain material
are discoverable under ORS 135.805 to 135.873 or 135.970, and other parts not
discoverable, as much of the material shall be disclosed as is consistent with
the provisions thereof. [1973 c.836 §218; 1999 c.304 §5; 2007 c.581 §2]
     135.857
Disclosure to victim; conditions. (1) In any criminal prosecution arising from an automobile collision
in which the defendant is alleged to have been under the influence of alcohol
or drugs, the district attorney prosecuting the action shall make available,
upon request, to the victim or victims and to their attorney, or to the
survivors of the victim or victims and to their attorney, all reports and
information disclosed to the defendant pursuant to ORS 135.805 to 135.873. The
reports and information shall be made available at the same time as it is
disclosed to the defendant or as soon thereafter as may be practicable after a
request is received. The district attorney may impose such conditions as may be
reasonable and necessary to prevent the release of the reports and information
from interfering with the trial of the defendant. The district attorney may
apply to the court for an order requiring any person receiving such reports and
information to comply with the conditions of release.
     (2) For the purpose of this section:
     (a) “District attorney” has that meaning
given in ORS 131.005.
     (b) “Drug” has that meaning given in ORS
475.005. [1991 c.229 §2]
     135.860 [Amended by 1973 c.836 §164; renumbered
135.370]
     135.865
Effect of failure to comply with discovery requirements. Upon being apprised of any breach of the
duty imposed by the provisions of ORS 135.805 to 135.873 and 135.970, the court
may order the violating party to permit inspection of the material, or grant a
continuance, or refuse to permit the witness to testify, or refuse to receive
in evidence the material not disclosed, or enter such other order as it
considers appropriate. [1973 c.836 §219; 1999 c.304 §6]
     135.870 [Amended by 1971 c.743 §321; repealed by
1973 c.836 §358]
     135.873
Protective orders. (1) As
used in this section:
     (a) “Local government” has the meaning
given that term in ORS 174.116.
     (b) “Sexual offense” includes but is not
limited to a crime listed in ORS 181.594 (4).
     (c) “State government” has the meaning
given that term in ORS 174.111.
     (d) “Victim” has the meaning given that
term in ORS 131.007.
     (2) Upon a showing of good cause, the
court may at any time order that specified disclosures be denied, restricted or
deferred, or make such other order as is appropriate.
     (3) Upon request of any party, the court
may permit a showing of good cause for denial or regulation of disclosures, or
portion of such showing, to be made in camera. A record shall be made of such
proceedings.
     (4) If the court enters an order granting
relief following a showing in camera, the entire record of the showing shall be
sealed and preserved in the records of the court, to be made available to the
appellate court in the event of an appeal. Except for information or materials
subject to an order that has been entered under subsection (5) or (6) of this
section, the trial court, in its discretion, may, after the case has been
concluded, unseal matters previously sealed.
     (5) Upon the request of a district
attorney or the victim, the court shall enter a protective order prohibiting
any party to or attorney in, or the agent of a party to or attorney in,
criminal proceedings involving a sexual offense, an offense involving the
visual or audio recording of sexual conduct by a child or invasion of personal
privacy under ORS 163.700 from copying or disseminating any information of a
sexually explicit nature including, but not limited to, photographs depicting a
person in a state of nudity, photographs of human genitalia, any information of
the prior sexual history of the victim and any visual or audio recording of the
sexual victimization.
     (6) Upon the request of a district
attorney or the victim, unless the court finds good cause to do otherwise, the
court shall enter a protective order prohibiting any party to or attorney in,
or the agent of a party to or attorney in, criminal proceedings involving a
sexual offense, an offense involving the visual or audio recording of sexual
conduct by a child or invasion of personal privacy under ORS 163.700 from
copying or disseminating a visual or audio recording of the victim describing
the victimÂ’s sexual victimization.
     (7) Notwithstanding a protective order
entered under subsection (5) or (6) of this section, information or materials
described in subsections (5) and (6) may be copied or disseminated for the
purpose of:
     (a) Providing discovery;
     (b) Submitting evidence to a grand jury, a
court, an agency of state government, a local government or a federal agency
for use in judicial or administrative proceedings;
     (c) Having the information or materials
examined by an expert witness for the court, the state or any party;
     (d) Providing copies of the information or
materials to the partiesÂ’ attorneys or agents; or
     (e) Sharing the information or materials
with an agency of state government for use in carrying out duties imposed on
the agency by statute.
     (8) Upon the request of the victim, the
court may order that the victim be provided with a copy of information or
materials described in subsections (5) and (6) of this section. [1973 c.836 §220;
2005 c.531 §1]
     135.875 [1969 c.293 §1; renumbered 135.455]
     135.880 [Amended by 1973 c.836 §176; renumbered
135.465]
DIVERSION
(Generally)
     135.881
Definitions for ORS 135.881 to 135.901. As used in ORS 135.881 to 135.901:
     (1) “District attorney” has the meaning
given that term by ORS 131.005 (8).
     (2) “Diversion” means referral of a
defendant in a criminal case to a supervised performance program prior to
adjudication.
     (3) “Diversion agreement” means the
specification of formal terms and conditions which a defendant must fulfill in
order to have the charges against the defendant dismissed. [1977 c.373 §1]
     135.886
Requirements for diversion; factors considered. (1) After an accusatory instrument has been
filed charging a defendant with commission of a crime other than driving while
under the influence of intoxicants as defined in ORS 813.010, and after the
district attorney has considered the factors listed in subsection (2) of this
section, if it appears to the district attorney that diversion of the defendant
would be in the interests of justice and of benefit to the defendant and the
community, the district attorney may propose a diversion agreement to the
defendant the terms of which are established by the district attorney in
conformance with ORS 135.891. A diversion agreement under this section is not
available to a defendant charged with the crime of driving while under the
influence of intoxicants as defined in ORS 813.010.
     (2) In determining whether diversion of a
defendant is in the interests of justice and of benefit to the defendant and
the community, the district attorney shall consider at least the following
factors:
     (a) The nature of the offense; however,
the offense must not have involved injury to another person;
     (b) Any special characteristics or
difficulties of the offender;
     (c) Whether the defendant is a first-time
offender; if the offender has previously participated in diversion, according
to the certification of the Department of Justice, diversion shall not be
offered;
     (d) Whether there is a probability that
the defendant will cooperate with and benefit from alternative treatment;
     (e) Whether the available program is
appropriate to the needs of the offender;
     (f) The impact of diversion upon the
community;
     (g) Recommendations, if any, of the
involved law enforcement agency;
     (h) Recommendations, if any, of the
victim;
     (i) Provisions for restitution; and
     (j) Any mitigating circumstances. [1977
c.373 §2; 1981 c.64 §1; 1981 c.803 §2; 1983 c.338 §889]
     135.890 [Repealed by 1973 c.836 §358]
     135.891
Conditions of diversion agreement; dismissal of criminal charges; scope of
agreement. A diversion
agreement carries the understanding that if the defendant fulfills the
obligations of the program described therein, the criminal charges filed
against the defendant will be dismissed with prejudice. It shall include
specifically the waiver of the right to a speedy trial. It may include, but is
not limited to, admissions by the defendant, stipulation of facts, stipulation
that depositions of witnesses may be taken pursuant to ORS 136.080 to 136.100,
payment of costs as defined in ORS 135.705, restitution, performance of
community service, residence in a halfway house or similar facility,
maintenance of gainful employment, and participation in programs offering
medical, educational, vocational, social and psychological services, corrective
and preventive guidance and other rehabilitative services. [1977 c.373 §3; 1985
c.710 §5]
     135.896
Stay of criminal proceedings during period of agreement; limitation on stay;
effect of declining diversion.
If the district attorney elects to offer diversion in lieu of further criminal
proceedings and the defendant, with the advice of counsel, agrees to the terms
of the proposed agreement, including a waiver of the right to a speedy trial,
the court shall stay further criminal proceedings for a definite period. The
stay shall not exceed 270 days in the case of a defendant charged with
commission of a felony, and shall not exceed 180 days in the case of a
defendant charged with the commission of a misdemeanor. If the defendant
declines diversion, the court shall resume criminal proceedings. [1977 c.373 §4]
     135.900 [Repealed by 1973 c.836 §358]
     135.901
Effect of compliance or noncompliance with agreement; effect of partial
compliance in subsequent criminal proceedings; record of participation in
program. (1) If the district
attorney finds at the termination of the diversion period or any time prior
thereto that the divertee has failed to fulfill the terms of the diversion
agreement, the district attorney shall terminate diversion and the court shall
resume criminal proceedings. However, if the former divertee is adjudicated
guilty as a result thereof, the court may take into consideration at the time
of the sentencing any partially successful fulfillment by such person of the
terms of agreement.
     (2) If the district attorney informs the
court at the termination of the diversion period that the defendant has
fulfilled the terms of the diversion agreement, the court shall dismiss with
prejudice the criminal charges filed against the defendant.
     (3) A record of the fact that an
individual has participated in diversion shall be forwarded to and kept by the
Department of Justice, and shall be made available upon request to any district
attorney who subsequently considers diversion of such person. [1977 c.373 §5;
1981 c.64 §2]
     135.905
Unitary assessment. (1)
Whenever a defendant accused of committing a crime participates in a diversion
agreement under ORS 135.881 to 135.901 or under ORS 813.210, 813.215, 813.220
and 813.230, the defendant, as a condition of the diversion, shall pay the
unitary assessment for which the defendant would have been liable under ORS
137.290 if the defendant had been convicted. The district attorney, or the city
attorney if the case is prosecuted by the city attorney, shall include in the
diversion agreement a provision setting forth the defendantÂ’s obligation. If
the diversion is terminated and criminal proceedings are resumed against
defendant, any payment made by the defendant under this subsection shall be
refunded upon subsequent acquittal of the defendant or dismissal of the case.
     (2) Assessments under this section shall
be paid within 90 days of imposition, unless the court allows payment at a
later time. The assessments shall be paid to the clerk of the court, who shall
account for and distribute the moneys as provided in ORS 137.293 and 137.295. [1987
c.905 §10; 1999 c.59 §27]
     Note: 135.905 was added to and made a part of
147.005 to 147.367 by legislative action but was not added to or made a part of
ORS chapter 135 or any series therein. See Preface to Oregon Revised Statutes
for further explanation.
(Possession
of Marijuana)
     135.907
Notification of availability of diversion; petition form; information. (1) The court shall inform at arraignment a
defendant charged with the offense of possession of less than one ounce of
marijuana, that a diversion agreement may be available if the offense for which
the defendant is before the court is the defendantÂ’s first offense of
possession of less than one ounce of marijuana and files with the court a
petition for a possession of marijuana diversion agreement.
     (2) The petition form for a possession of
marijuana diversion agreement shall be available to a defendant at the court.
     (3) The form of the petition for a
possession of marijuana diversion agreement and the information and blanks
contained therein shall be determined by the Supreme Court under ORS 1.525. The
petition form made available to a defendant by any state court shall conform to
the requirements adopted by the Supreme Court.
     (4) In addition to any other information
required by the Supreme Court to be contained in a petition for a possession of
marijuana diversion agreement, the petition shall include:
     (a) A waiver by the defendant of the right
to speedy trial or sentencing in any subsequent action upon the charge;
     (b) An agreement by the defendant to
complete at an agency or organization designated by the state court a
diagnostic assessment to determine the possible existence and degree of a drug
abuse problem;
     (c) An agreement by the defendant to
complete, at defendantÂ’s own expense based on defendantÂ’s ability to pay, the
program of treatment indicated as necessary by the diagnostic assessment;
     (d) An agreement by the defendant to
comply fully with the laws of this state regarding controlled substances;
     (e) A notice to the defendant that the
diversion agreement will be considered to be violated if the court receives
notice that the defendant at any time during the diversion period committed a
violation of the controlled substances laws of this state;
     (f) An agreement by the defendant to keep
the court advised of the defendantÂ’s current mailing address at all times
during the diversion period; and
     (g) A waiver by the defendant of any
former jeopardy rights under the federal and state Constitutions and ORS
131.505 to 131.525 in any subsequent action upon the charge or any other
offenses based upon the same criminal episode. [1989 c.1075 §5]
     Note: 135.907 to 135.921 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
135 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     135.909
Filing petition; procedure.
(1) After an accusatory instrument has been filed charging the defendant with
the offense of possession of less than one ounce of marijuana, a defendant may
file with the court a petition for a possession of marijuana diversion
agreement described in ORS 135.907. The petition:
     (a) Must be filed within 30 days after the
date of the defendantÂ’s first appearance on the summons, unless a later filing
date is allowed by the court upon a showing of good cause.
     (b) Notwithstanding paragraph (a) of this
subsection, may not be filed after entry of a guilty plea or a no contest plea
or after commencement of any trial on the charge whether or not a new trial or
retrial is ordered for any reason.
     (2) The defendant shall pay to the court,
at the time of filing a petition for a possession of marijuana diversion
agreement, a filing fee as specified in ORS 135.921. The court may make
provision for payment of the filing fee by the defendant on an installment
basis. The court may waive all or part of the filing fee in cases involving
indigent defendants. The filing fee paid to the court under this subsection
shall be retained by the court if the petition is allowed. The filing fee shall
be distributed as provided in ORS 135.921.
     (3) The defendant shall pay to the agency
or organization providing the diagnostic assessment, at the time the petition
is allowed, the fee required by ORS 135.921 (3).
     (4) The defendant shall cause a copy of
the petition for a possession of marijuana diversion agreement to be served
upon the district attorney or city attorney. The district attorney may file
with the court, within 15 days after the date of service, a written objection
to the petition and a request for a hearing. [1989 c.1075 §6; 1993 c.13 §2]
     Note: See note under 135.907.
     135.911
Diversion for first offense only. After the time for requesting a hearing under ORS 135.909 has expired
with no request for a hearing, or after a hearing requested under ORS 135.909,
the court shall allow the petition for a possession of marijuana diversion
agreement if the court finds that the offense for which the defendant is before
the court is the defendantÂ’s first offense of possession of less than one ounce
of marijuana. [1989 c.1075 §7]
     Note: See note under 135.907.
     135.913
Diversion agreement part of record of case; duration of agreement; effect of
denial of petition. (1) When
the court allows a petition for a possession of marijuana diversion agreement
filed as provided in ORS 135.909, the judge taking that action shall sign the
petition and indicate thereon the date of allowance of the diversion period,
the length of the diversion period and the date upon which the possession of
less than one ounce of marijuana offense occurred. The petition when signed and
dated becomes the diversion agreement between the defendant and the court. The
court shall make the agreement a part of the record of the case.
     (2) A possession of marijuana diversion
agreement shall be for a period of one year after the date the court allows the
petition. During the diversion period the court shall stay the possession of
less than one ounce of marijuana offense proceeding pending completion of the
diversion agreement or its termination.
     (3) When the court denies a petition for a
possession of marijuana diversion agreement, it shall continue the offense
proceeding against the defendant. [1989 c.1075 §8]
     Note: See note under 135.907.
     135.915
Effect of compliance with agreement. (1) At any time after the conclusion of the period of a possession of
marijuana diversion agreement described in ORS 135.913, a defendant who has
fully complied with and performed the conditions of the diversion agreement may
apply by motion to the court wherein the diversion agreement was entered for an
order dismissing the charge with prejudice.
     (2) The defendant shall cause to be served
on the district attorney a copy of the motion for entry of an order dismissing
with prejudice the charge of possession of less than one ounce of marijuana.
The motion shall be served on the district attorney at the time it is filed
with the court. The district attorney may contest the motion.
     (3) If the defendant does not appear as
provided by subsection (1) of this section within six months after the
conclusion of the diversion period, and if the court finds that the defendant
fully complied with and performed the conditions of the diversion agreement,
and if it gives notice of that finding to the district attorney, the court may
on its own motion enter an order dismissing the charge of possession of less
than one ounce of marijuana with prejudice.
     (4) No statement made by the defendant
about the offense with which the defendant is charged shall be offered or
received in evidence in any criminal or civil action or proceeding arising out
of the same conduct which is the basis of the charge of possession of less than
one ounce of marijuana, if the statement was made during the course of the
diagnostic assessment or the rehabilitation program and to a person employed by
the program. [1989 c.1075 §9]
     Note: See note under 135.907.
     135.917
Designation of agencies to perform diagnostic assessments; duties of agency. (1) Courts having jurisdiction over the
offense of possession of less than one ounce of marijuana shall designate
agencies or organizations to perform the diagnostic assessment and treatment
required under possession of marijuana diversion agreements described in ORS
135.907. The designated agencies or organizations must meet the standards set
by the Department of Human Services to perform the diagnostic assessment and
treatment of drug dependency and must be certified by the Department of Human
Services. Wherever possible, a court shall designate agencies or organizations
to perform the diagnostic assessment that are separate from those that may be
designated to carry out a program of treatment for drug dependency.
     (2) Monitoring of a defendant’s progress
under a diversion agreement shall be the responsibility of the diagnostic
assessment agency or organization. It shall make a report to the court stating
the defendantÂ’s successful completion or failure to complete all or any part of
the treatment program specified by the diagnostic assessment. The form of the
report shall be determined by agreement between the court and the diagnostic
assessment agency or organization. The court shall make the report of the
diagnostic assessment agency or organization that is required by this
subsection a part of the record of the case. [1989 c.1075 §11]
     Note: See note under 135.907.
     135.919
Termination of agreement by court; procedure; grounds; effect. (1) At any time before the court dismisses
with prejudice the charge of possession of less than one ounce of marijuana,
the court on its own motion or on the motion of the district attorney may issue
an order requiring the defendant to appear and show cause why the court should
not terminate the diversion agreement. The order to show cause shall state the
reasons for the proposed termination and shall set an appearance date.
     (2) The order to show cause shall be
served on the defendant and on the defendantÂ’s attorney, if any. Service may be
made by first class mail, postage paid, addressed to the defendant at the
mailing address shown on the diversion petition and agreement or at any other
address that the defendant provides in writing to the court.
     (3) The court shall terminate the
diversion agreement and continue the offense proceeding if:
     (a) At the hearing on the order to show
cause, the court finds by a preponderance of the evidence that any of the
reasons for termination described in this section exist; or
     (b) The defendant fails to appear at the
hearing on the order to show cause.
     (4) If the court terminates the diversion
agreement and continues the offense proceeding, the court:
     (a) On the defendant’s motion and for good
cause shown, may reinstate the diversion agreement at any time before
conviction, acquittal or dismissal with prejudice.
     (b) If the defendant is convicted, may
take into account at time of sentencing any partial fulfillment by the
defendant of the terms of the diversion agreement.
     (5) The court shall terminate a diversion
agreement under this subsection for any of the following reasons:
     (a) If the defendant has failed to fulfill
the terms of the diversion agreement.
     (b) If the defendant did not qualify for
the diversion agreement. [1989 c.1075 §10]
     Note: See note under 135.907.
     135.921
Amount and distribution of filing fee; diagnostic assessment fee. (1) The filing fee paid by a defendant at the
time of filing a petition for a possession of marijuana diversion agreement as
provided in ORS 135.909 shall be $233 and shall be ordered paid as follows if
the petition is allowed:
     (a) $123 to the Department of Revenue for
deposit in the Criminal Fine and Assessment Account; and
     (b) $110 to be distributed as provided for
the disposition of costs under ORS 153.630.
     (2) If less than the $233 filing fee is
paid to the court by the defendant under subsection (1) of this section, the
money actually received shall be allocated in the amounts provided first to the
State Treasurer and the remainder as provided for the disposition of costs
under ORS 153.630.
     (3) In addition to the filing fee under
subsection (1) of this section, the court shall order the defendant to pay $90
directly to the agency or organization providing the diagnostic assessment.
     (4) The Chief Justice of the Supreme Court
may require that any or all fees distributed by circuit courts under this
section be distributed through the offices of the State Court Administrator. [1989
c.1075 §12; 1991 c.460 §19; 1991 c.818 §4; 1993 c.13 §3; 2003 c.737 §§62,63;
2005 c.702 §§73,74,75; 2007 c.71 §34]
     Note: See note under 135.907.
(Bad Check)
     135.925
Bad check diversion program.
(1) As used in this section, “bad check diversion program” means a program
established under subsection (2) of this section.
     (2) A district attorney may establish a
bad check diversion program within the office of the district attorney.
     (3) If a district attorney has established
a bad check diversion program, upon receipt of a case alleging a violation of
ORS 165.065, the district attorney shall determine if the case is appropriate
to be referred to the bad check diversion program. In determining whether to
refer the case to the bad check diversion program, the district attorney shall
consider, in addition to any other factors the district attorney deems
appropriate, the following:
     (a) The amount of the bad check;
     (b) Whether the person alleged to have
negotiated the bad check has a prior criminal record or has previously
participated in a bad check diversion program;
     (c) The number of violations of ORS
165.065 the person is alleged to have committed in the current or prior
allegations;
     (d) Whether current charges of violating
ORS 165.065 are pending against the person; and
     (e) The strength of the evidence of intent
to defraud the victim.
     (4) When a case is referred to the bad
check diversion program, the district attorney shall send a notice to the
person who is alleged to have violated ORS 165.065. The notice must contain:
     (a) The date and amount of the bad check;
     (b) The name of the payee;
     (c) The date before which the person is
required to contact the district attorney, or a person designated by the
district attorney, concerning the bad check; and
     (d) The penalty for a violation of ORS
165.065.
     (5) The district attorney may enter into a
written agreement with the person alleged to have violated ORS 165.065 to forgo
prosecution of the violation if the person agrees to do the following within a
six-month period:
     (a) Complete a class conducted by the
district attorney, or by a private entity under contract to the district
attorney, relating to writing checks;
     (b) Make full restitution to the payee;
and
     (c) Pay any collection fee imposed by the
district attorney under subsection (6) of this section.
     (6) A district attorney may collect a fee
if the district attorney collects and processes a bad check. The amount of the
fee may not exceed $35 for each bad check in addition to the actual amount of
any bank charge incurred by the victim as a result of the bad check.
     (7) The district attorney may not require
a person alleged to have violated ORS 165.065 to make an admission of guilt as
a prerequisite to participating in a bad check diversion program.
     (8) The following are not admissible in
any civil or criminal action against a person arising from negotiating a bad
check:
     (a) A statement, or any information
derived from the statement, made by the person in connection with the
determination of the personÂ’s eligibility to participate in a bad check
diversion program.
     (b) A statement, or any information
derived from the statement, made by the person after the person is determined
to be eligible to participate in a bad check diversion program.
     (c) A statement, or any information
derived from the statement, made by the person while participating in a bad
check diversion program.
     (d) Information about the person’s
participation in a bad check diversion program. [2001 c.433 §1]
     Note: 135.925 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 135 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     135.930 [1983 c.487 §1; 1987 c.320 §22; repealed by
1987 c.908 §4]
     135.935 [1983 c.487 §2; 1987 c.320 §23; repealed by
1987 c.908 §4]
     135.940 [1983 c.487 §3; 1987 c.320 §24; repealed by
1987 c.908 §4]
EARLY
DISPOSITION PROGRAMS
     135.941
Early disposition programs.
To effectuate the purposes set out in ORS 135.942, each local public safety
coordinating council established under ORS 423.560:
     (1) Shall establish early disposition
programs for first-time offenders who have committed a nonperson offense and
for persons charged with probation violations. As used in this subsection, “nonperson
offense” means an offense other than:
     (a) A Class A or B felony; and
     (b) A person felony or person Class A
misdemeanor, as those terms are defined in the rules of the Oregon Criminal
Justice Commission.
     (2) May establish early disposition
programs for other offenders. [2001 c.635 §6]
     Note: 135.941 to 135.949 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
135 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     135.942
Purposes of program. The
purposes of an early disposition program are to:
     (1) Hold offenders accountable for their
actions;
     (2) Ensure a prompt resolution of criminal
matters;
     (3) Protect the rights of the public and
the offender;
     (4) Maximize use of community resources to
provide alternative sanctions for criminal behavior; and
     (5) Reduce the costs to the criminal
justice system that are incurred when traditional sanctions are the only option
available to district attorneys and courts. [2001 c.635 §7]
     Note: See note under 135.941.
     135.943
Provisions of program. An
early disposition program established under ORS 135.941 must provide, but need
not be limited to, the following:
     (1) Written criteria for eligibility to
participate in the program.
     (2) Victim notification and appearance.
     (3) A process to ensure legal
representation and provision of discovery for offenders who are eligible for
the early disposition program.
     (4) Specific evaluation criteria and an
evaluation schedule. The evaluation criteria must address, but need not be
limited to, the following:
     (a) Cost avoidance;
     (b) Cost savings; and
     (c) Outcomes. [2001 c.635 §8]
     Note: See note under 135.941.
     135.945 [1983 c.487 §4; 1987 c.320 §25; repealed by
1987 c.908 §4]
     135.946 [2001 c.635 §9; repealed by 2005 c.308 §1]
     135.948
Availability to probationers.
(1)(a) A district attorney may provide an offer and agreed disposition
recommendation under an early disposition program established under ORS 135.941
to a probationer at the time of the first appearance of the probationer in
court for a probation violation.
     (b) Unless extended by the court, an offer
and agreed disposition recommendation made under paragraph (a) of this
subsection expire upon completion of the appearance. Except for good cause, a
court may not extend an offer and agreed disposition recommendation under this
paragraph for more than seven days for a misdemeanor or 21 days for a felony.
     (2) If the court determines that the
agreed disposition recommendation is inappropriate in a particular case, the
court shall so advise the parties and allow the probationer an opportunity to
withdraw the admission. [2001 c.635 §14]
     Note: See note under 135.941.
     135.949
Other programs authorized.
Nothing in ORS 135.941, 135.942, 135.943 and 135.948 or in the amendments to
ORS 135.380, 135.385, 135.390 and 135.405 by sections 10 to 13, chapter 635,
Oregon Laws 2001, prevents the implementation or continuation of an early
disposition program other than one established under ORS 135.941. [2001 c.635 §15]
     Note: See note under 135.941.
     135.950 [1983 c.487 §5; repealed by 1987 c.908 §4]
MEDIATING
CRIMINAL OFFENSES
     135.951
Authorization; determining when appropriate; exclusions. (1) Law enforcement agencies, city attorneys
and district attorneys may consider the availability and likely effectiveness
of mediation in determining whether to process and prosecute criminal charges.
If it appears that mediation is in the interests of justice and of benefit to
the offender, victim and community, the law enforcement agency, city attorney
or district attorney may propose mediation through a qualified mediation
program.
     (2) In determining whether mediation is in
the interests of justice and of benefit to the offender, victim and community,
the law enforcement agency, city attorney or district attorney shall consider,
at a minimum, the following factors:
     (a) The nature of the offense;
     (b) Any special characteristics of the
offender or the victim;
     (c) Whether the offender has previously
participated in mediation;
     (d) Whether it is probable that the
offender will cooperate with and benefit from mediation;
     (e) The recommendations of the victim;
     (f) Whether a qualified mediation program
is available or may be made available;
     (g) The impact of mediation on the
community;
     (h) The recommendations of the involved
law enforcement agency; and
     (i) Any mitigating circumstances.
     (3) Mediation may not be used for:
     (a) Disputes between family or household
members, as defined in ORS 107.705, that involve conduct that would constitute
assault under ORS 163.160, 163.165, 163.175 or 163.185 or strangulation under
ORS 163.187; or
     (b) Offenses that involve sex crimes, as
defined in ORS 181.594. [1995 c.323 §1; 2003 c.577 §6]
     Note: 135.951 to 135.959 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
135 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     135.953
How mediation may be used.
(1) A defendant may participate in mediation as part of a diversion agreement
under ORS 135.881 to 135.901.
     (2) A court, including, but not limited
to, a justice court, may:
     (a) Authorize, in a pretrial release
order, contact between a defendant and a victim as part of mediation between
the defendant and the victim;
     (b) Consider mediation as the basis of a
compromise of crimes under ORS 135.703; or
     (c) Include participation in mediation as
a condition of probation under ORS 137.540.
     (3) A district attorney or city attorney:
     (a) May suspend prosecution of a case
referred to mediation and dismiss the charges in the referred case if the
defendant successfully completes the terms of the agreement resulting from the
mediation; or
     (b) May include, with a defendant,
mediation between the defendant and the victim as part of a plea agreement
entered into under ORS 135.405.
     (4) A county juvenile department may
include mediation between a child and a victim as one of the terms of a formal
accountability agreement under ORS 419C.230 or an authorized diversion program
under ORS 419C.225.
     (5) The Department of Corrections may use
mediation for the purposes of rehabilitation and treatment.
     (6) Mediation may be used in any other
appropriate manner in resolving disputes involving criminal matters. [1995
c.323 §2; 2007 c.609 §4]
     Note: See note under 135.951.
     135.955
Notifying victims and person charged with crime of mediation opportunities. (1) Law enforcement agencies, district
attorneys and city attorneys may inform:
     (a) The victim of a crime of:
     (A) Any mediation opportunities that may
be available to the victim in the victimÂ’s community, within or as an
alternative to the criminal justice system; and
     (B) How to request mediation; and
     (b) A person charged with a crime of:
     (A) Any mediation opportunities that may
be available to the person in the personÂ’s community, within or as an
alternative to the criminal justice system; and
     (B) How to request mediation.
     (2) No party to a dispute may be compelled
to participate in mediation. [1995 c.323 §3]
     Note: See note under 135.951.
     135.957
Application of ORS 36.220 to 36.238 to mediation of criminal offenses;
information to parties. The
provisions of ORS 36.220 to 36.238 do not apply to a mediation conducted under
ORS 135.951 or 135.953 unless the parties to the mediation enter into a written
agreement for confidentiality of the mediation. If the parties enter into a
written agreement for confidentiality of the mediation, a court may not receive
in evidence in any proceeding any mediation communications or mediation
agreement to the extent provided by ORS 36.220 to 36.238. The parties
participating in mediation must be informed:
     (1) Of the right to enter into a written
agreement concerning confidentiality of the mediation proceedings; and
     (2) That mediation communications or
agreements may not be used as an admission of guilt or as evidence against the
offender in any adjudicatory proceeding. [1995 c.323 §4; 1997 c.670 §13]
     Note: See note under 135.951.
     135.959
Authority to contract with dispute resolution programs. A law enforcement agency, city attorney,
district attorney, county juvenile department or court may contract with dispute
resolution programs to provide mediation services under ORS 135.951 or 135.953.
The programs must meet the standards for dispute resolution programs
established by the Dean of the University of Oregon School of Law under ORS
36.175. [1995 c.323 §5; 2003 c.791 §§26,26a; 2005 c.817 §5]
     Note: See note under 135.951.
MISCELLANEOUS
     135.970
When address and phone number of victim or witness not to be given to
defendant; deposition of victim; when contact with victim prohibited; effect of
threats by defendant. (1) If
the victim or a witness requests, the court shall order that the victimÂ’s or
witnessÂ’s address and phone number not be given to the defendant unless good
cause is shown to the court.
     (2) If contacted by the defense, the
victim must be clearly informed by the defendantÂ’s attorney, either in person
or in writing, of the identity and capacity of the person contacting the
victim, that the victim does not have to talk to the defendantÂ’s attorney, or
other agents of the defendant, or provide other discovery unless the victim
wishes, and that the victim may have a district attorney present during any
interview.
     (3) A victim may not be required to be
interviewed or deposed by or give discovery to the defendant or the defendantÂ’s
attorney unless the victim consents. This subsection does not prohibit the
defendant from:
     (a) Subpoenaing or examining the victim at
trial or in a pretrial proceeding when the purpose is other than for discovery;
or
     (b) Subpoenaing books, papers or documents
as provided in ORS 136.580.
     (4)(a) Any pretrial release order must
prohibit any contact with the victim, either directly or indirectly, unless
specifically authorized by the court having jurisdiction over the criminal
charge. This subsection shall not limit contact by the defense attorney, or an
agent of the defense attorney, other than the defendant, in the manner set
forth in subsection (2) of this section.
     (b) If a victim notifies the district
attorney that the defendant, either directly or indirectly threatened or intimidated
the victim, the district attorney shall notify the court with jurisdiction over
the criminal matter and the defense attorney. If the defendant is not in
custody and the court finds there is probable cause to believe the victim has
been threatened or intimidated by the defendant, either directly or indirectly,
the court shall immediately issue an order to show cause why defendantÂ’s
release status should not be revoked. After conducting such hearing as it deems
appropriate, if the court finds that the victim has been threatened or
intimidated by the defendant, either directly or indirectly, the defendantÂ’s
release status shall be revoked and the defendant shall be held in custody with
a security amount set in an amount sufficient to ensure the safety of the
victim and the community. [1987 c.2 §3; 1997 c.313 §7; 1999 c.1051 §251]
     135.975 [1987 c.475 §2; repealed by 1989 c.790 §74]
     135.980
Rehabilitative programs directory; compilation; availability. (1) By January 1, 1990, the Director of the
Department of Corrections shall compile and thereafter maintain a directory of
public and private rehabilitative programs known and available to corrections
agencies of the state and of each county. For purposes of this subsection, “rehabilitative
program” means a planned activity, in a custodial or noncustodial context,
designed and implemented to treat drug or alcohol abuse, to prevent criminal
sexual behavior, to modify a propensity to commit crimes against persons or
property or to achieve restitution for losses caused by an offender and
includes programs that employ the device of mediation between the victim and
offender. The director shall include:
     (a) The name, address and telephone number
of the program and the identity of its director or other principal contact;
     (b) The geographical jurisdiction of the
program;
     (c) The types of offenders that the
program claims to be able to serve and the criteria that the program applies in
selecting or soliciting cases;
     (d) The claims of the program regarding
its effectiveness in reducing recidivism, achieving restitution or otherwise
serving correctional objectives;
     (e) An assessment by the relevant
corrections agency of the actual effectiveness of the program; and
     (f) The capacity of the program for new
cases.
     (2) The Director of the Department of
Corrections shall make the directory available to the Oregon Criminal Justice
Commission and to judges in a form that will allow sentencing judges to
determine what rehabilitative programs are appropriate and available to the
offender during any period of probation, imprisonment or local incarceration
and post-prison supervision. The Director of the Department of Corrections
shall also make the directory available to its employees who prepare
presentence reports and proposed release plans for submission to the State
Board of Parole and Post-Prison Supervision.
     (3) The directory shall be updated as
frequently as is practical, but no less often than every six months.
     (4) The Director of the Department of
Corrections shall prepare a plan for monitoring the scope and measuring the
effectiveness of existing rehabilitative programs and shall deliver that plan
to the Oregon Criminal Justice Commission no later than January 1, 1990. [1989
c.790 §7a]
     Note: 135.980 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 135 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
PENALTIES
     135.990
Penalties. Violation of ORS
135.155 is punishable as a contempt by the court having jurisdiction of the
crime charged against the defendant. [Formerly 133.990]
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