US Laws, Codes, Statutes & Cases

Chapter 161 — General Provisions

 

2005 EDITION

 

TITLE 16

CRIMES AND PUNISHMENTS

 

Chapter     161.     General Provisions

                  162.     Offenses Against the State and Public Justice

                  163.     Offenses Against Persons

                  164.     Offenses Against Property

                  165.     Offenses Involving Fraud or Deception

                  166.     Offenses Against Public Order; Firearms and Other Weapons; Racketeering

                  167.     Offenses Against Public Health, Decency and Animals

169.           Local and Regional Correctional Facilities; Prisoners; Juvenile Facilities

 

_______________

 

Chapter 161 — General Provisions

 

2005 EDITION

 

GENERAL PROVISIONS

 

CRIMES AND PUNISHMENTS

 

PRINCIPLES

 

161.005     Short title

 

161.015     General definitions

 

161.025     Purposes; principles of construction

 

161.035     Application of Criminal Code

 

161.045     Limits on application

 

161.055     Burden of proof as to defenses

 

161.067     Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations

 

CRIMINAL LIABILITY

 

161.085     Definitions with respect to culpability

 

161.095     Requirements of culpability

 

161.105     Culpability requirements inapplicable to certain violations and offenses

 

161.115     Construction of statutes with respect to culpability

 

161.125     Intoxication as defense; drug or controlled substance use or dependence as defense

 

PARTIES TO CRIME

 

161.150     Criminal liability described

 

161.155     Criminal liability for conduct of another

 

161.160     Exclusion of defenses to criminal liability for conduct of another

 

161.165     Exemptions to criminal liability for conduct of another

 

161.170     Criminal liability of corporations

 

161.175     Criminal liability of an individual for corporate conduct

 

JUSTIFICATION

 

161.190     Justification as a defense

 

161.195     “Justification” described

 

161.200     Choice of evils

 

161.205     Use of physical force generally

 

161.209     Use of physical force in defense of a person

 

161.215     Limitations on use of physical force in defense of a person

 

161.219     Limitations on use of deadly physical force in defense of a person

 

161.225     Use of physical force in defense of premises

 

161.229     Use of physical force in defense of property

 

161.235     Use of physical force in making an arrest or in preventing an escape

 

161.239     Use of deadly physical force in making an arrest or in preventing an escape

 

161.245     “Reasonable belief” described; status of unlawful arrest

 

161.249     Use of physical force by private person assisting an arrest

 

161.255     Use of physical force by private person making citizen’s arrest

 

161.260     Use of physical force in resisting arrest prohibited

 

161.265     Use of physical force to prevent escape

 

161.267     Use of physical force by corrections officer or official employed by Department of Corrections

 

161.270     Duress

 

161.275     Entrapment

 

RESPONSIBILITY

 

161.290     Incapacity due to immaturity

 

161.295     Effect of mental disease or defect; guilty except for insanity

 

161.300     Evidence of disease or defect admissible as to intent

 

161.305     Disease or defect as affirmative defense

 

161.309     Notice prerequisite to defense; content

 

161.313     Jury instructions; insanity

 

161.315     Right of state to obtain mental examination of defendant; limitations

 

161.319     Form of verdict on guilty except for insanity

 

161.325     Entry of judgment of guilty except for insanity; order to include whether victim wants notice of hearings or release of defendant; blood or buccal testing upon judgment

 

161.326     Commission of crime by person under board jurisdiction; notice to victim

 

161.327     Order giving jurisdiction to Psychiatric Security Review Board; court to commit or conditionally release defendant; notice to board; appeal

 

161.328     Initiation of civil commitment proceedings

 

161.329     Order of discharge

 

161.332     “Conditional release” defined

 

161.336     Conditional release by Psychiatric Security Review Board; supervision by board; termination or modification of conditional release; hearing

 

161.341     Order of commitment; application for discharge or conditional release; release plan

 

161.346     Hearings on discharge, conditional release, commitment or modification; psychiatric reports; notice of hearing

 

161.351     Discharge of person under jurisdiction of board; periodic review of status

 

161.360     Mental disease or defect excluding fitness to proceed

 

161.365     Procedure for determining issue of fitness to proceed

 

161.370     Determination of fitness; effect of finding of unfitness; proceedings if fitness regained; pretrial objections by defense counsel

 

161.375     Escape of person placed at hospital or facility; authority to order arrest

 

161.385     Psychiatric Security Review Board; composition, term, qualifications, compensation, appointment, confirmation and meetings; judicial review of orders

 

161.387     Board to implement policies; rulemaking; meetings not deliberative under public meeting requirements

 

161.390     Rules for assignment of persons to state mental hospitals or secure intensive community inpatient facilities; release plan prepared by Department of Human Services

 

161.395     Subpoena power of board

 

161.397     Psychiatric Security Review Board Account

 

161.400     Leave of absence; notice to board

 

INCHOATE CRIMES

 

161.405     “Attempt” described

 

161.425     Impossibility not a defense

 

161.430     Renunciation as a defense to attempt

 

161.435     “Solicitation” described

 

161.440     Renunciation as defense to solicitation

 

161.450     “Conspiracy” described

 

161.455     Conspiratorial relationship

 

161.460     Renunciation as defense to conspiracy

 

161.465     Duration of conspiracy

 

161.475     Defenses to solicitation and conspiracy

 

161.485     Multiple convictions barred in inchoate crimes

 

CLASSES OF OFFENSES

 

161.505     “Offense” described

 

161.515     “Crime” described

 

161.525     “Felony” described

 

161.535     Classification of felonies

 

161.545     “Misdemeanor” described

 

161.555     Classification of misdemeanors

 

161.566     Misdemeanor treated as violation; prosecuting attorney’s election

 

161.568     Misdemeanor treated as violation; court’s election

 

161.570     Felony treated as misdemeanor

 

161.585     Classification of certain crimes determined by punishment

 

DISPOSITION OF OFFENDERS

 

161.605     Maximum prison terms for felonies

 

161.610     Enhanced penalty for use of firearm during commission of felony; pleading; minimum penalties; suspension or reduction of penalty

 

161.615     Prison terms for misdemeanors

 

161.620     Sentences imposed upon waiver from juvenile court

 

161.625     Fines for felonies

 

161.635     Fines for misdemeanors

 

161.645     Standards for imposing fines

 

161.655     Fines for corporations

 

161.665     Costs

 

161.675     Time and method of payment of fines, restitution and costs

 

161.685     Effect of nonpayment of fines, restitution or costs; report to consumer reporting agency; rules

 

AUTHORITY OF SENTENCING COURT

 

161.705     Reduction of certain felonies to misdemeanors

 

161.715     Standards for discharge of defendant

 

161.725     Standards for sentencing of dangerous offenders

 

161.735     Procedure for determining whether defendant dangerous

 

161.737     Sentence imposed on dangerous offender as departure from sentencing guidelines

 

PRINCIPLES

 

      161.005 Short title. ORS 161.005 to 161.055, 161.085 to 161.125, 161.150 to 161.175, 161.190 to 161.275, 161.290 to 161.370, 161.405 to 161.485, 161.505 to 161.585, 161.605, 161.615 to 161.685, 161.705 to 161.737, 162.005, 162.015 to 162.035, 162.055 to 162.115, 162.135 to 162.205, 162.225 to 162.375, 162.405 to 162.425, 162.465, 163.005, 163.115, 163.125 to 163.145, 163.160 to 163.208, 163.215 to 163.257, 163.275, 163.285, 163.305 to 163.467, 163.505 to 163.575, 163.665 to 163.693, 164.005, 164.015 to 164.135, 164.140, 164.205 to 164.270, 164.305 to 164.377, 164.395 to 164.415, 164.805, 164.877, 165.002 to 165.109, 165.805, 166.005 to 166.095, 166.350, 166.382, 166.384, 166.660, 167.002 to 167.027, 167.060 to 167.100, 167.117, 167.122 to 167.162, 167.203 to 167.252, 167.310 to 167.340 and 167.350, 167.810 and 167.820, shall be known and may be cited as Oregon Criminal Code of 1971. [1971 c.743 §1; 1979 c.476 §1; 1983 c.740 §25; 1983 c.792 §1; 1985 c.366 §2; 1985 c.557 §9; 1985 c.662 §10; 1985 c.755 §1; 1989 c.982 §3; 1989 c.1003 §5; 2003 c.383 §3]

 

      161.010 [Repealed by 1971 c.743 §432]

 

      161.015 General definitions. As used in chapter 743, Oregon Laws 1971, and ORS 166.635, unless the context requires otherwise:

      (1) “Dangerous weapon” means any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.

      (2) “Deadly weapon” means any instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury.

      (3) “Deadly physical force” means physical force that under the circumstances in which it is used is readily capable of causing death or serious physical injury.

      (4) “Peace officer” means a sheriff, constable, marshal, municipal police officer, member of the Oregon State Police, investigator of the Criminal Justice Division of the Department of Justice or investigator of a district attorney’s office and such other persons as may be designated by law.

      (5) “Person” means a human being and, where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.

      (6) “Physical force” includes, but is not limited to, the use of an electrical stun gun, tear gas or mace.

      (7) “Physical injury” means impairment of physical condition or substantial pain.

      (8) “Serious physical injury” means physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

      (9) “Possess” means to have physical possession or otherwise to exercise dominion or control over property.

      (10) “Public place” means a place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence, and highways, streets, schools, places of amusement, parks, playgrounds and premises used in connection with public passenger transportation. [1971 c.743 §3; 1973 c.139 §1; 1979 c.656 §3; 1991 c.67 §33; 1993 c.625 §4; 1995 c.651 §5]

 

      Note: Legislative Counsel has substituted “chapter 743, Oregon Laws 1971,” for the words “this Act” in sections 2, 3, 4, 5, 6, 7, 19, 20, 21 and 36, chapter 743, Oregon Laws 1971, compiled as 161.015, 161.025, 161.035, 161.045, 161.055, 161.085, 161.195, 161.200, 161.205 and 161.295. Specific ORS references have not been substituted, pursuant to 173.160. These sections may be determined by referring to the 1971 Comparative Section Table located in Volume 20 of ORS.

 

      161.020 [Amended by 1967 c.372 §9; repealed by 1971 c.743 §432]

 

      161.025 Purposes; principles of construction. (1) The general purposes of chapter 743, Oregon Laws 1971, are:

      (a) To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the correction and rehabilitation of those convicted, and their confinement when required in the interests of public protection.

      (b) To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.

      (c) To give fair warning of the nature of the conduct declared to constitute an offense and of the sentences authorized upon conviction.

      (d) To define the act or omission and the accompanying mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault.

      (e) To differentiate on reasonable grounds between serious and minor offenses.

      (f) To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.

      (g) To safeguard offenders against excessive, disproportionate or arbitrary punishment.

      (2) The rule that a penal statute is to be strictly construed shall not apply to chapter 743, Oregon Laws 1971, or any of its provisions. Chapter 743, Oregon Laws 1971, shall be construed according to the fair import of its terms, to promote justice and to effect the purposes stated in subsection (1) of this section. [1971 c.743 §2]

 

      Note: See note under 161.015.

 

      161.030 [Amended by 1955 c.660 §20; 1967 c.372 §10; repealed by 1971 c.743 §432]

 

      161.035 Application of Criminal Code. (1) Chapter 743, Oregon Laws 1971, shall govern the construction of and punishment for any offense defined in chapter 743, Oregon Laws 1971, and committed after January 1, 1972, as well as the construction and application of any defense to a prosecution for such an offense.

      (2) Except as otherwise expressly provided, or unless the context requires otherwise, the provisions of chapter 743, Oregon Laws 1971, shall govern the construction of and punishment for any offense defined outside chapter 743, Oregon Laws 1971, and committed after January 1, 1972, as well as the construction and application of any defense to a prosecution for such an offense.

      (3) Chapter 743, Oregon Laws 1971, shall not apply to or govern the construction of and punishment for any offense committed before January 1, 1972, or the construction and application of any defense to a prosecution for such an offense. Such an offense shall be construed and punished according to the law existing at the time of the commission of the offense in the same manner as if chapter 743, Oregon Laws 1971, had not been enacted.

      (4) When all or part of a criminal statute is amended or repealed, the criminal statute or part thereof so amended or repealed remains in force for the purpose of authorizing the accusation, prosecution, conviction and punishment of a person who violated the statute or part thereof before the effective date of the amending or repealing Act. [1971 c.743 §5]

 

      Note: See note under 161.015.

 

      161.040 [Repealed by 1971 c.743 §432]

 

      161.045 Limits on application. (1) Except as otherwise expressly provided, the procedure governing the accusation, prosecution, conviction and punishment of offenders and offenses is not regulated by chapter 743, Oregon Laws 1971, but by the criminal procedure statutes.

      (2) Chapter 743, Oregon Laws 1971, does not affect any power conferred by law upon a court-martial or other military authority or officer to prosecute and punish conduct and offenders violating military codes or laws.

      (3) Chapter 743, Oregon Laws 1971, does not bar, suspend or otherwise affect any right or liability to damages, penalty, forfeiture or other remedy authorized by law to be recovered or enforced in a civil action, regardless of whether the conduct involved in the proceeding constitutes an offense defined in chapter 743, Oregon Laws 1971.

      (4) No conviction of a person for an offense works a forfeiture of the property of the person, except in cases where a forfeiture is expressly provided by law. [1971 c.743 §6]

 

      Note: See note under 161.015.

 

      161.050 [Repealed by 1971 c.743 §432]

 

      161.055 Burden of proof as to defenses. (1) When a “defense,” other than an “affirmative defense” as defined in subsection (2) of this section, is raised at a trial, the state has the burden of disproving the defense beyond a reasonable doubt.

      (2) When a defense, declared to be an “affirmative defense” by chapter 743, Oregon Laws 1971, is raised at a trial, the defendant has the burden of proving the defense by a preponderance of the evidence.

      (3) The state is not required to negate a defense as defined in subsection (1) of this section unless it is raised by the defendant. “Raised by the defendant” means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant’s case in chief. [1971 c.743 §4]

 

      Note: See note under 161.015.

 

      161.060 [Repealed by 1971 c.743 §432]

 

      161.062 [1985 c.722 §4; 1991 c.386 §8; repealed by 1999 c.136 §1]

 

      161.067 Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations. (1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.

      (2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. However, two or more persons owning joint interests in real or personal property shall be considered a single victim for purposes of determining the number of separately punishable offenses if the property is the subject of one of the following crimes:

      (a) Theft as defined in ORS 164.015.

      (b) Unauthorized use of a vehicle as defined in ORS 164.135.

      (c) Criminal possession of rented or leased personal property as defined in ORS 164.140.

      (d) Burglary as defined in ORS 164.215 or 164.225.

      (e) Criminal trespass as defined in ORS 164.243, 164.245, 164.255, 164.265 or 164.278.

      (f) Arson and related offenses as defined in ORS 164.315, 164.325 or 164.335.

      (g) Forgery and related offenses as defined in ORS 165.002 to 165.070.

      (3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent. Each method of engaging in deviate sexual intercourse as defined in ORS 163.305, and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 and 163.411 shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations. [1987 c.2 §13; 1991 c.386 §9; 2003 c.629 §4]

 

      161.070 [Repealed by 1971 c.743 §432]

 

      161.075 [1965 c.516 §1; repealed by 1971 c.743 §432]

 

      161.080 [Repealed by 1971 c.743 §432]

 

CRIMINAL LIABILITY

 

      161.085 Definitions with respect to culpability. As used in chapter 743, Oregon Laws 1971, and ORS 166.635, unless the context requires otherwise:

      (1) “Act” means a bodily movement.

      (2) “Voluntary act” means a bodily movement performed consciously and includes the conscious possession or control of property.

      (3) “Omission” means a failure to perform an act the performance of which is required by law.

      (4) “Conduct” means an act or omission and its accompanying mental state.

      (5) “To act” means either to perform an act or to omit to perform an act.

      (6) “Culpable mental state” means intentionally, knowingly, recklessly or with criminal negligence as these terms are defined in subsections (7), (8), (9) and (10) of this section.

      (7) “Intentionally” or “with intent,” when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.

      (8) “Knowingly” or “with knowledge,” when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.

      (9) “Recklessly,” when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

      (10) “Criminal negligence” or “criminally negligent,” when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. [1971 c.743 §7; 1973 c.139 §2]

 

      Note: See note under 161.015.

 

      161.090 [Amended by 1967 c.372 §11; repealed by 1971 c.743 §432]

 

      161.095 Requirements of culpability. (1) The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing.

      (2) Except as provided in ORS 161.105, a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state. [1971 c.743 §8]

 

      161.100 [Repealed by 1971 c.743 §432]

 

      161.105 Culpability requirements inapplicable to certain violations and offenses. (1) Notwithstanding ORS 161.095, a culpable mental state is not required if:

      (a) The offense constitutes a violation, unless a culpable mental state is expressly included in the definition of the offense; or

      (b) An offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof.

      (2) Notwithstanding any other existing law, and unless a statute enacted after January 1, 1972, otherwise provides, an offense defined by a statute outside the Oregon Criminal Code that requires no culpable mental state constitutes a violation.

      (3) Although an offense defined by a statute outside the Oregon Criminal Code requires no culpable mental state with respect to one or more of its material elements, the culpable commission of the offense may be alleged and proved, in which case criminal negligence constitutes sufficient culpability, and the classification of the offense and the authorized sentence shall be determined by ORS 161.505 to 161.605 and 161.615 to 161.655. [1971 c.743 §9]

 

      161.110 [Repealed by 1971 c.743 §432]

 

      161.115 Construction of statutes with respect to culpability. (1) If a statute defining an offense prescribes a culpable mental state but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense that necessarily requires a culpable mental state.

      (2) Except as provided in ORS 161.105, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence.

      (3) If the definition of an offense prescribes criminal negligence as the culpable mental state, it is also established if a person acts intentionally, knowingly or recklessly. When recklessness suffices to establish a culpable mental state, it is also established if a person acts intentionally or knowingly. When acting knowingly suffices to establish a culpable mental state, it is also established if a person acts intentionally.

      (4) Knowledge that conduct constitutes an offense, or knowledge of the existence, meaning or application of the statute defining an offense, is not an element of an offense unless the statute clearly so provides. [1971 c.743 §10]

 

      161.120 [Repealed by 1971 c.743 §432]

 

      161.125 Intoxication as defense; drug or controlled substance use or dependence as defense. (1) The use of drugs or controlled substances, dependence on drugs or controlled substances or voluntary intoxication shall not, as such, constitute a defense to a criminal charge, but in any prosecution for an offense, evidence that the defendant used drugs or controlled substances, or was dependent on drugs or controlled substances, or was intoxicated may be offered by the defendant whenever it is relevant to negative an element of the crime charged.

      (2) When recklessness establishes an element of the offense, if the defendant, due to the use of drugs or controlled substances, dependence on drugs or controlled substances or voluntary intoxication, is unaware of a risk of which the defendant would have been aware had the defendant been not intoxicated, not using drugs or controlled substances, or not dependent on drugs or controlled substances, such unawareness is immaterial. [1971 c.743 §11; 1973 c.697 §13; 1979 c.744 §6]

 

PARTIES TO CRIME

 

      161.150 Criminal liability described. A person is guilty of a crime if it is committed by the person’s own conduct or by the conduct of another for which the person is criminally liable, or both. [1971 c.743 §12]

 

      161.155 Criminal liability for conduct of another. A person is criminally liable for the conduct of another person constituting a crime if:

      (1) The person is made criminally liable by the statute defining the crime; or

      (2) With the intent to promote or facilitate the commission of the crime the person:

      (a) Solicits or commands such other person to commit the crime; or

      (b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime; or

      (c) Having a legal duty to prevent the commission of the crime, fails to make an effort the person is legally required to make. [1971 c.743 §13]

 

      161.160 Exclusion of defenses to criminal liability for conduct of another. In any prosecution for a crime in which criminal liability is based upon the conduct of another person pursuant to ORS 161.155, it is no defense that:

      (1) Such other person has not been prosecuted for or convicted of any crime based upon the conduct in question or has been convicted of a different crime or degree of crime; or

      (2) The crime, as defined, can be committed only by a particular class or classes of persons to which the defendant does not belong, and the defendant is for that reason legally incapable of committing the crime in an individual capacity. [1971 c.743 §14]

 

      161.165 Exemptions to criminal liability for conduct of another. Except as otherwise provided by the statute defining the crime, a person is not criminally liable for conduct of another constituting a crime if:

      (1) The person is a victim of that crime; or

      (2) The crime is so defined that the conduct of the person is necessarily incidental thereto. [1971 c.743 §15]

 

      161.170 Criminal liability of corporations. (1) A corporation is guilty of an offense if:

      (a) The conduct constituting the offense is engaged in by an agent of the corporation while acting within the scope of employment and in behalf of the corporation and the offense is a misdemeanor or a violation, or the offense is one defined by a statute that clearly indicates a legislative intent to impose criminal liability on a corporation; or

      (b) The conduct constituting the offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; or

      (c) The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded or knowingly tolerated by the board of directors or by a high managerial agent acting within the scope of employment and in behalf of the corporation.

      (2) As used in this section:

      (a) “Agent” means any director, officer or employee of a corporation, or any other person who is authorized to act in behalf of the corporation.

      (b) “High managerial agent” means an officer of a corporation who exercises authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees, or any other agent in a position of comparable authority. [1971 c.743 §16]

 

      161.175 Criminal liability of an individual for corporate conduct. A person is criminally liable for conduct constituting an offense which the person performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if such conduct were performed in the person’s own name or behalf. [1971 c.743 §17]

 

JUSTIFICATION

 

      161.190 Justification as a defense. In any prosecution for an offense, justification, as defined in ORS 161.195 to 161.275, is a defense. [1971 c.743 §18]

 

      161.195 “Justification” described. (1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by law or by a judicial decree or is performed by a public servant in the reasonable exercise of official powers, duties or functions.

      (2) As used in subsection (1) of this section, “laws and judicial decrees” include but are not limited to:

      (a) Laws defining duties and functions of public servants;

      (b) Laws defining duties of private citizens to assist public servants in the performance of certain of their functions;

      (c) Laws governing the execution of legal process;

      (d) Laws governing the military services and conduct of war; and

      (e) Judgments and orders of courts. [1971 c.743 §19]

 

      Note: See note under 161.015.

 

      161.200 Choice of evils. (1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:

      (a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and

      (b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.

      (2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. [1971 c.743 §20]

 

      Note: See note under 161.015.

 

      161.205 Use of physical force generally. The use of physical force upon another person that would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:

      (1) A parent, guardian or other person entrusted with the care and supervision of a minor or an incompetent person may use reasonable physical force upon such minor or incompetent person when and to the extent the person reasonably believes it necessary to maintain discipline or to promote the welfare of the minor or incompetent person. A teacher may use reasonable physical force upon a student when and to the extent the teacher reasonably believes it necessary to maintain order in the school or classroom or at a school activity or event, whether or not it is held on school property.

      (2) An authorized official of a jail, prison or correctional facility may use physical force when and to the extent that the official reasonably believes it necessary to maintain order and discipline or as is authorized by law.

      (3) A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under the direction of the person, may use physical force when and to the extent that the person reasonably believes it necessary to maintain order, but the person may use deadly physical force only when the person reasonably believes it necessary to prevent death or serious physical injury.

      (4) A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical self-injury may use physical force upon that person to the extent that the person reasonably believes it necessary to thwart the result.

      (5) A person may use physical force upon another person in self-defense or in defending a third person, in defending property, in making an arrest or in preventing an escape, as hereafter prescribed in chapter 743, Oregon Laws 1971. [1971 c.743 §21; 1981 c.246 §1]

 

      Note: See note under 161.015.

 

      161.209 Use of physical force in defense of a person. Except as provided in ORS 161.215 and 161.219, a person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose. [1971 c.743 §22]

 

      161.210 [Repealed by 1971 c.743 §432]

 

      161.215 Limitations on use of physical force in defense of a person. Notwithstanding ORS 161.209, a person is not justified in using physical force upon another person if:

      (1) With intent to cause physical injury or death to another person, the person provokes the use of unlawful physical force by that person; or

      (2) The person is the initial aggressor, except that the use of physical force upon another person under such circumstances is justifiable if the person withdraws from the encounter and effectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical force; or

      (3) The physical force involved is the product of a combat by agreement not specifically authorized by law. [1971 c.743 §24]

 

      161.219 Limitations on use of deadly physical force in defense of a person. Notwithstanding the provisions of ORS 161.209, a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is:

      (1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or

      (2) Committing or attempting to commit a burglary in a dwelling; or

      (3) Using or about to use unlawful deadly physical force against a person. [1971 c.743 §23]

 

      161.220 [Repealed by 1971 c.743 §432]

 

      161.225 Use of physical force in defense of premises. (1) A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to prevent or terminate what the person reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises.

      (2) A person may use deadly physical force under the circumstances set forth in subsection (1) of this section only:

      (a) In defense of a person as provided in ORS 161.219; or

      (b) When the person reasonably believes it necessary to prevent the commission of arson or a felony by force and violence by the trespasser.

      (3) As used in subsection (1) and subsection (2)(a) of this section, “premises” includes any building as defined in ORS 164.205 and any real property. As used in subsection (2)(b) of this section, “premises” includes any building. [1971 c.743 §25]

 

      161.229 Use of physical force in defense of property. A person is justified in using physical force, other than deadly physical force, upon another person when and to the extent that the person reasonably believes it to be necessary to prevent or terminate the commission or attempted commission by the other person of theft or criminal mischief of property. [1971 c.743 §26]

 

      161.230 [Repealed by 1971 c.743 §432]

 

      161.235 Use of physical force in making an arrest or in preventing an escape. Except as provided in ORS 161.239, a peace officer is justified in using physical force upon another person only when and to the extent that the peace officer reasonably believes it necessary:

      (1) To make an arrest or to prevent the escape from custody of an arrested person unless the peace officer knows that the arrest is unlawful; or

      (2) For self-defense or to defend a third person from what the peace officer reasonably believes to be the use or imminent use of physical force while making or attempting to make an arrest or while preventing or attempting to prevent an escape. [1971 c.743 §27]

 

      161.239 Use of deadly physical force in making an arrest or in preventing an escape. (1) Notwithstanding the provisions of ORS 161.235, a peace officer may use deadly physical force only when the peace officer reasonably believes that:

      (a) The crime committed by the person was a felony or an attempt to commit a felony involving the use or threatened imminent use of physical force against a person; or

      (b) The crime committed by the person was kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime; or

      (c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the peace officer or another person from the use or threatened imminent use of deadly physical force; or

      (d) The crime committed by the person was a felony or an attempt to commit a felony and under the totality of the circumstances existing at the time and place, the use of such force is necessary; or

      (e) The officer’s life or personal safety is endangered in the particular circumstances involved.

      (2) Nothing in subsection (1) of this section constitutes justification for reckless or criminally negligent conduct by a peace officer amounting to an offense against or with respect to innocent persons whom the peace officer is not seeking to arrest or retain in custody. [1971 c.743 §28]

 

      161.240 [Repealed by 1971 c.743 §432]

 

      161.245 “Reasonable belief” described; status of unlawful arrest. (1) For the purposes of ORS 161.235 and 161.239, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of force to make an arrest or to prevent an escape from custody.

      (2) A peace officer who is making an arrest is justified in using the physical force prescribed in ORS 161.235 and 161.239 unless the arrest is unlawful and is known by the officer to be unlawful. [1971 c.743 §29]

 

      161.249 Use of physical force by private person assisting an arrest. (1) Except as provided in subsection (2) of this section, a person who has been directed by a peace officer to assist the peace officer to make an arrest or to prevent an escape from custody is justified in using physical force when and to the extent that the person reasonably believes that force to be necessary to carry out the peace officer’s direction.

      (2) A person who has been directed to assist a peace officer under circumstances specified in subsection (1) of this section may use deadly physical force to make an arrest or to prevent an escape only when:

      (a) The person reasonably believes that force to be necessary for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of deadly physical force; or

      (b) The person is directed or authorized by the peace officer to use deadly physical force unless the person knows that the peace officer is not authorized to use deadly physical force under the circumstances. [1971 c.743 §30]

 

      161.250 [Repealed by 1971 c.743 §432]

 

      161.255 Use of physical force by private person making citizen’s arrest. (1) Except as provided in subsection (2) of this section, a private person acting on the person’s own account is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to make an arrest or to prevent the escape from custody of an arrested person whom the person has arrested under ORS 133.225.

      (2) A private person acting under the circumstances prescribed in subsection (1) of this section is justified in using deadly physical force only when the person reasonably believes it necessary for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of deadly physical force. [1971 c.743 §31; 1973 c.836 §339]

 

      161.260 Use of physical force in resisting arrest prohibited. A person may not use physical force to resist an arrest by a peace officer who is known or reasonably appears to be a peace officer, whether the arrest is lawful or unlawful. [1971 c.743 §32]

 

      161.265 Use of physical force to prevent escape. (1) A guard or other peace officer employed in a correctional facility, as that term is defined in ORS 162.135, is justified in using physical force, including deadly physical force, when and to the extent that the guard or peace officer reasonably believes it necessary to prevent the escape of a prisoner from a correctional facility.

      (2) Notwithstanding subsection (1) of this section, a guard or other peace officer employed by the Department of Corrections may not use deadly physical force in the circumstances described in ORS 161.267 (3). [1971 c.743 §33; 2005 c.431 §3]

 

      161.267 Use of physical force by corrections officer or official employed by Department of Corrections. (1) As used in this section:

      (a) “Colocated minimum security facility” means a Department of Corrections institution that has been designated by the Department of Corrections as a minimum security facility and has been located by the department on the grounds of a medium or higher security Department of Corrections institution.

      (b) “Department of Corrections institution” has the meaning given that term in ORS 421.005.

      (c) “Stand-alone minimum security facility” means a Department of Corrections institution that has been designated by the department as a minimum security facility and that has been located by the department separate and apart from other Department of Corrections institutions.

      (2) A corrections officer or other official employed by the Department of Corrections is justified in using physical force, including deadly physical force, when and to the extent that the officer or official reasonably believes it necessary to:

      (a) Prevent the escape of an inmate from a Department of Corrections institution, including the grounds of the institution, or from custody;

      (b) Maintain or restore order and discipline in a Department of Corrections institution, or any part of the institution, in the event of a riot, disturbance or other occurrence that threatens the safety of inmates, department employees or other persons; or

      (c) Prevent serious physical injury to or the death of the officer, official or another person.

      (3) Notwithstanding subsection (2)(a) of this section, a corrections officer or other official employed by the department may not use deadly physical force to prevent the escape of an inmate from:

      (a) A stand-alone minimum security facility;

      (b) A colocated minimum security facility, if the corrections officer or other official knows that the inmate has been classified by the department as minimum custody; or

      (c) Custody outside of a Department of Corrections institution:

      (A) While the inmate is assigned to an inmate work crew; or

      (B) During transport or other supervised activity, if the inmate is classified by the department as minimum custody and the inmate is not being transported or supervised with an inmate who has been classified by the department as medium or higher custody.

      (4) Nothing in this section limits the authority of a person to use physical force under ORS 161.205 (2) or 161.265. [2005 c.431 §2]

 

      161.270 Duress. (1) The commission of acts which would otherwise constitute an offense, other than murder, is not criminal if the actor engaged in the proscribed conduct because the actor was coerced to do so by the use or threatened use of unlawful physical force upon the actor or a third person, which force or threatened force was of such nature or degree to overcome earnest resistance.

      (2) Duress is not a defense for one who intentionally or recklessly places oneself in a situation in which it is probable that one will be subjected to duress.

      (3) It is not a defense that a spouse acted on the command of the other spouse, unless the spouse acted under such coercion as would establish a defense under subsection (1) of this section. [1971 c.743 §34; 1987 c.158 §22]

 

      161.275 Entrapment. (1) The commission of acts which would otherwise constitute an offense is not criminal if the actor engaged in the proscribed conduct because the actor was induced to do so by a law enforcement official, or by a person acting in cooperation with a law enforcement official, for the purpose of obtaining evidence to be used against the actor in a criminal prosecution.

      (2) As used in this section, “induced” means that the actor did not contemplate and would not otherwise have engaged in the proscribed conduct. Merely affording the actor an opportunity to commit an offense does not constitute entrapment. [1971 c.743 §35]

 

RESPONSIBILITY

 

      161.290 Incapacity due to immaturity. (1) A person who is tried as an adult in a court of criminal jurisdiction is not criminally responsible for any conduct which occurred when the person was under 12 years of age.

      (2) Incapacity due to immaturity, as defined in subsection (1) of this section, is a defense. [Formerly 161.380; 1995 c.422 §58]

 

      161.295 Effect of mental disease or defect; guilty except for insanity. (1) A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.

      (2) As used in chapter 743, Oregon Laws 1971, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder. [1971 c.743 §36; 1983 c.800 §1]

 

      Note: See note under 161.015.

 

      161.300 Evidence of disease or defect admissible as to intent. Evidence that the actor suffered from a mental disease or defect is admissible whenever it is relevant to the issue of whether the actor did or did not have the intent which is an element of the crime. [1971 c.743 §37]

 

      161.305 Disease or defect as affirmative defense. Mental disease or defect constituting insanity under ORS 161.295 is an affirmative defense. [1971 c.743 §38; 1983 c.800 §2]

 

      161.309 Notice prerequisite to defense; content. (1) No evidence may be introduced by the defendant on the issue of insanity under ORS 161.295, unless the defendant gives notice of intent to do so in the manner provided in subsection (3) of this section.

      (2) The defendant may not introduce in the case in chief expert testimony regarding partial responsibility or diminished capacity under ORS 161.300 unless the defendant gives notice of intent to do so in the manner provided in subsection (3) of this section.

      (3) A defendant who is required under subsection (1) or (2) of this section to give notice shall file a written notice of purpose at the time the defendant pleads not guilty. The defendant may file such notice at any time after the plea but before trial when just cause for failure to file the notice at the time of making the plea is made to appear to the satisfaction of the court. If the defendant fails to file notice, the defendant shall not be entitled to introduce evidence for the establishment of a defense under ORS 161.295 or 161.300 unless the court, in its discretion, permits such evidence to be introduced where just cause for failure to file the notice is made to appear. [1971 c.743 §§39,40,41; 1983 c.800 §3; 2003 c.127 §2]

 

      161.310 [Repealed by 1971 c.743 §432]

 

      161.313 Jury instructions; insanity. When the issue of insanity under ORS 161.295 is submitted to be determined by a jury in the trial court, the court shall instruct the jury in accordance with ORS 161.327. [1983 c.800 §16]

 

      161.315 Right of state to obtain mental examination of defendant; limitations. Upon filing of notice or the introduction of evidence by the defendant as provided in ORS 161.309 (3), the state shall have the right to have at least one psychiatrist or licensed psychologist of its selection examine the defendant. The state shall file notice with the court of its intention to have the defendant examined. Upon filing of the notice, the court, in its discretion, may order the defendant committed to a state institution or any other suitable facility for observation and examination as it may designate for a period not to exceed 30 days. If the defendant objects to the examiner chosen by the state, the court for good cause shown may direct the state to select a different examiner. [1971 c.743 §42; 1977 c.380 §3]

 

      161.319 Form of verdict on guilty except for insanity. When the defendant is found guilty except for insanity under ORS 161.295, the verdict and judgment shall so state. [1971 c.743 §43; 1977 c.380 §4; 1983 c.800 §4]

 

      161.320 [Repealed by 1971 c.743 §432]

 

      161.325 Entry of judgment of guilty except for insanity; order to include whether victim wants notice of hearings or release of defendant; blood or buccal testing upon judgment. (1) After entry of judgment of guilty except for insanity, the court shall, on the basis of the evidence given at the trial or at a separate hearing, if requested by either party, make an order as provided in ORS 161.327 or 161.329, whichever is appropriate.

      (2) If the court makes an order as provided in ORS 161.327, it shall also:

      (a) Determine on the record the offense of which the person otherwise would have been convicted;

      (b) State on the record the mental disease or defect on which the defendant relied for the guilty except for insanity defense; and