US Laws, Codes, Statutes & Cases

Chapter 135 — Arraignment and Pretrial Provisions

 

2007 EDITION

 

ARRAIGNMENT AND PRETRIAL PROVISIONS

 

PROCEDURE IN CRIMINAL MATTERS GENERALLY

 

ARRAIGNMENT

 

(Generally)

 

135.010     Time and place

 

135.020     Scope of proceedings

 

135.030     When presence of defendant is required; appearance by counsel

 

135.035     Bringing in defendant not yet arrested or held to answer

 

135.037     Omnibus hearing; when held; subject; ruling of court; counsel required

 

(Counsel; Name Used)

 

135.040     Right to counsel

 

135.045     Court appointment of counsel; waiver of counsel; appointment of legal advisor

 

135.050     Eligibility for court-appointed counsel; financial statement; termination; civil liability

 

135.055     Compensation and expenses of appointed counsel

 

135.060     Communication to defendant as to use of name in accusatory instrument; effect of acknowledging true name at arraignment

 

135.065     Name used in further proceedings; motion to strike false name

 

135.067     Effect of failure to provide true name of defendant on certain types of release

 

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

 

135.073     Statement by defendant when not advised of rights

 

135.075     Obtaining counsel

 

135.085     Subpoenaing witnesses

 

135.090     Examination of adverse witnesses

 

135.095     Right of defendant to make or waive making a statement

 

135.100     Statement of defendant

 

135.105     Use of statement before grand jury or on trial

 

135.115     Waiver of right to make statement

 

135.125     Examination of defendant’s witnesses

 

135.135     Exclusion of witnesses during examination of others

 

135.139     Notice of availability of testing for HIV and other communicable diseases to person charged with crime; when court may order test; victim’s rights

 

135.145     Testimony of witnesses

 

135.155     Retention of record and statements by magistrate; inspection

 

135.165     Counsel for complainant; district attorney

 

135.173     Oregon Evidence Code to apply in preliminary hearings; exception

 

(Discharge or Commitment)

 

135.175     Discharge

 

135.185     Holding defendant to answer; use of hearsay evidence

 

135.195     Commitment

 

135.205     Indorsement in certain cases

 

135.215     Direction to sheriff; detention of defendant

 

135.225     Forwarding of papers by magistrate

 

RELEASE OF DEFENDANT

 

135.230     Definitions for ORS 135.230 to 135.290

 

135.235     Release assistance officer; appointment; duties

 

135.240     Releasable offenses

 

135.245     Release decision

 

135.250     General conditions of release agreement

 

135.255     Release agreement

 

135.260     Conditional release

 

135.265     Security release

 

135.270     Taking of security

 

135.280     Arrest warrant; forfeiture

 

135.285     Modification of release decision; release upon appeal

 

135.290     Punishment by contempt of court

 

135.295     Application of ORS 135.230 to 135.290 to certain traffic offenses

 

PLEADINGS

 

(Defendant’s Answer Generally)

 

135.305     Types of answer

 

135.315     Types of pleading

 

135.325     Pleading a judgment

 

(Plea)

 

135.335     Pleading by defendant; alternatives

 

135.345     Legal effect of plea of no contest

 

135.355     Presentation of plea; entry in register; forms

 

135.360     Special provisions relating to presentation of plea of guilty or no contest

 

135.365     Withdrawal of plea of guilty or no contest

 

135.370     Not guilty plea as denial of allegations of accusatory instrument

 

135.375     Pleading to other offenses

 

135.380     Time of entering plea; aid of counsel

 

135.385     Defendant to be advised by court

 

135.390     Determining voluntariness of plea

 

135.395     Determining accuracy of plea

 

(Plea Discussions and Agreements)

 

135.405     Plea discussions and plea agreements

 

135.406     Consultation with victim regarding plea discussions

 

135.407     Plea agreement must contain defendant’s criminal history classification; stipulations

 

135.415     Criteria to be considered in plea discussions and plea agreements

 

135.425     Responsibilities of defense counsel

 

135.432     Responsibilities of trial judge

 

135.435     Discussion and agreement not admissible

 

135.445     Withdrawn plea or statement not admissible

 

(Related Procedure)

 

135.455     Notice prior to trial of intention to rely on alibi evidence; content of notice; effect of failure to supply notice

 

135.465     Defect in accusatory instrument as affecting acquittal on merits

 

PRETRIAL MOTIONS

 

135.470     Motion to dismiss accusatory instrument on grounds of former jeopardy

 

135.510     Grounds for motion to set aside the indictment

 

135.520     Time of making motion; hearing

 

135.530     Effect of allowance of motion

 

135.540     Effect of resubmission of case

 

135.560     Order to set aside is no bar to future prosecution

 

DEMURRERS

 

135.610     Demurrer; generally

 

135.630     Grounds of demurrer

 

135.640     When objections that are grounds for demurrer may be taken

 

135.650     Hearing of objections specified by demurrer

 

135.660     Judgment on demurrer; entry in register

 

135.670     Allowance of demurrer

 

135.680     Failure to resubmit case after allowance of demurrer

 

135.690     Resubmission of case

 

135.700     Disallowance of demurrer

 

COMPROMISE

 

135.703     Crimes subject to being compromised; exceptions

 

135.705     Satisfaction of injured person; dismissal of charges

 

135.707     Discharge as bar to prosecution

 

135.709     Exclusiveness of procedure

 

SUFFICIENCY OF ACCUSATORY INSTRUMENTS

 

135.711     Facts constituting crime or subcategory of crime required

 

135.713     Necessity of stating presumptions of law and matters judicially noticed

 

135.715     Effect of nonprejudicial defects in form of accusatory instrument

 

135.717     Time of crime

 

135.720     Place of crime in certain cases

 

135.725     Person injured or intended to be injured

 

135.727     Description of animal

 

135.730     Judgments; facts conferring jurisdiction

 

135.733     Defamation

 

135.735     Forgery; misdescription of forged instrument

 

135.737     Perjury

 

135.740     Construction of words and phrases used

 

135.743     Fictitious or erroneous name; insertion of true name

 

SPEEDY TRIAL PROVISIONS

 

135.745     Delay in finding an indictment or filing an information

 

135.747     Effect of delay in bringing defendant to trial

 

135.750     Where there is reason for delay

 

DISMISSAL OF ACTION

 

135.753     Effect of dismissal

 

135.755     Dismissal on motion of court or district attorney

 

135.757     Nolle prosequi; discontinuance by district attorney

 

PROSECUTION OF PRISONERS

 

135.760     Notice requesting early trial on pending charge

 

135.763     Trial within 90 days of notice unless continuance granted

 

135.765     Dismissal of criminal proceeding not brought to trial within allowed time; exceptions

 

135.767     Presence of prisoner at proceedings

 

135.770     Release of prisoner prohibited

 

135.773     District attorney to furnish certain documents

 

DETAINER

 

135.775     Agreement on Detainers

 

135.777     Definition for ORS 135.775

 

135.779     Enforcement of ORS 135.775 by public agencies

 

135.783     Effect of escape from custody in another state

 

135.785     Surrender of custody under ORS 135.775

 

135.787     Administrator of agreement; appointment; duties

 

135.789     Notice of request for temporary custody; prisoner’s rights

 

135.791     Request for final disposition of detainer from prisoner without state

 

135.793     Procedure where untried instrument pending against prisoner without state

 

PRETRIAL DISCOVERY

 

135.805     Applicability; scope of disclosure

 

135.815     Disclosure to defendant

 

135.825     Other disclosure to defense; special conditions

 

135.835     Disclosure to the state

 

135.845     Time of disclosure

 

135.855     Material and information not subject to discovery

 

135.857     Disclosure to victim; conditions

 

135.865     Effect of failure to comply with discovery requirements

 

135.873     Protective orders

 

DIVERSION

 

(Generally)

 

135.881     Definitions for ORS 135.881 to 135.901

 

135.886     Requirements for diversion; factors considered

 

135.891     Conditions of diversion agreement; dismissal of criminal charges; scope of agreement

 

135.896     Stay of criminal proceedings during period of agreement; limitation on stay; effect of declining diversion

 

135.901     Effect of compliance or noncompliance with agreement; effect of partial compliance in subsequent criminal proceedings; record of participation in program

 

135.905     Unitary assessment

 

(Possession of Marijuana)

 

135.907     Notification of availability of diversion; petition form; information

 

135.909     Filing petition; procedure

 

135.911     Diversion for first offense only

 

135.913     Diversion agreement part of record of case; duration of agreement; effect of denial of petition

 

135.915     Effect of compliance with agreement

 

135.917     Designation of agencies to perform diagnostic assessments; duties of agency

 

135.919     Termination of agreement by court; procedure; grounds; effect

 

135.921     Amount and distribution of filing fee; diagnostic assessment fee

 

(Bad Check)

 

135.925     Bad check diversion program

 

EARLY DISPOSITION PROGRAMS

 

135.941     Early disposition programs

 

135.942     Purposes of program

 

135.943     Provisions of program

 

135.948     Availability to probationers

 

135.949     Other programs authorized

 

MEDIATING CRIMINAL OFFENSES

 

135.951     Authorization; determining when appropriate; exclusions

 

135.953     How mediation may be used

 

135.955     Notifying victims and person charged with crime of mediation opportunities

 

135.957     Application of ORS 36.220 to 36.238 to mediation of criminal offenses; information to parties

 

135.959     Authority to contract with dispute resolution programs

 

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

 

135.980     Rehabilitative programs directory; compilation; availability

 

PENALTIES

 

135.990     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 defendant’s legal advisor and may, in accordance with ORS 135.050, appoint an attorney as the defendant’s legal advisor.

      (2) Appointment of counsel, including a legal advisor, under this section is subject to ORS 135.050, 135.055 and 151.485 to 151.497. [Formerly 135.320; 1987 c.803 §13; 1989 c.171 §16; 1989 c.1053 §1a; 1991 c.790 §11; 2001 c.472 §1; 2001 c.962 §24]

 

      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 defendant’s dependent family.

      (2) Suitable counsel for a defendant shall be appointed by a circuit court if:

      (a) The defendant is before the court on a matter described in subsection (5) of this section;

      (b) The defendant requests aid of counsel;

      (c) The defendant provides to the court a written and verified financial statement; and

      (d)(A) The defendant is determined to be financially eligible under ORS 151.485 and the standards established by the Public Defense Services Commission under ORS 151.216; or

      (B) The court finds, on the record, substantial and compelling reasons why the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant’s dependent family despite the fact that the defendant does not meet the financial eligibility standards established by the commission.

      (3) Appointed counsel may not be denied to any defendant merely because the defendant’s friends or relatives have resources adequate to retain counsel or because the defendant has deposited or is capable of depositing security for release. However, appointed counsel may be denied to a defendant if the defendant’s spouse has adequate resources which the court determines should be made available to retain counsel.

      (4) The defendant’s financial statement under subsection (1) or (2) of this section shall include, but not be limited to:

      (a) A list of bank accounts in the name of defendant or defendant’s spouse, and the balance in each;

      (b) A list of defendant’s interests in real property and those of defendant’s spouse;

      (c) A list of automobiles and other personal property of significant value belonging to defendant or defendant’s spouse;

      (d) A list of debts in the name of defendant or defendant’s spouse, and the total of each; and

      (e) A record of earnings and other sources of income in the name of defendant or defendant’s spouse, and the total of each.

      (5) Counsel must be appointed for a defendant who meets the requirements of subsection (1) or (2) of this section and who is before a court on any of the following matters:

      (a) Charged with a crime.

      (b) For a hearing to determine whether an enhanced sentence should be imposed when such proceedings may result in the imposition of a felony sentence.

      (c) For extradition proceedings under the provisions of the Uniform Criminal Extradition Act.

      (d) For any proceeding concerning an order of probation, including but not limited to the revoking or amending thereof.