2007 Oregon Code - Chapter 161 :: TITLE 16
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
2007 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 citizens 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 attorneys election
161.568 Misdemeanor
treated as violation; courts 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
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, 163.149, 163.160 to 163.208, 163.215 to 163.257, 163.261,
163.263, 163.264, 163.266, 163.275, 163.285, 163.305 to 163.467, 163.432,
163.433, 163.505 to 163.575, 163.665 to 163.693, 164.005, 164.015 to 164.135,
164.138, 164.140, 164.205 to 164.270, 164.305 to 164.377, 164.395 to 164.415,
164.805, 164.886, 165.002 to 165.102, 165.109, 165.805, 166.005 to 166.095,
166.350, 166.382, 166.384, 166.660, 167.002 to 167.027, 167.054, 167.057,
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; 2007 c.475 §4; 2007 c.684 §2;
2007 c.811 §6; 2007 c.867 §16; 2007 c.869 §5; 2007 c.876 §5]
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 attorneys 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,
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 defendants 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) Criminal possession of a rented or
leased motor vehicle as defined in ORS 164.138.
(e) Burglary as defined in ORS 164.215 or
164.225.
(f) Criminal trespass as defined in ORS
164.243, 164.245, 164.255, 164.265 or 164.278.
(g) Arson and related offenses as defined
in ORS 164.315, 164.325 or 164.335.
(h) 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 defendants 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; 2007 c.684 §3]
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 persons 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 persons 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,
(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 officers 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 officers
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 citizens arrest. (1) Except as provided in subsection (2) of
this section, a private person acting on the persons 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, if the defendant is 18 years of age
or older, for observation and examination as the court may designate for a
period not to exceed 30 days. If the defendant is under 18 years of age, upon
filing of the notice, the court, in its discretion, may order the defendant
committed to a secure intensive community inpatient facility designated by the
Department of Human Services for observation and examination as the court 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; 2007 c.14
§5]
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
(c) Make specific findings on whether
there is a victim of the crime for which the defendant has been found guilty
except for insanity and, if so, whether the victim wishes to be notified, under
ORS 161.326 (2), of any Psychiatric Security Review Board hearings concerning
the defendant and of any conditional release, discharge or escape of the
defendant.
(3) The court shall include any such
findings in its order.
(4) Except under circumstances described
in ORS 137.076 (4), whenever a defendant charged with any offense listed in ORS
137.076 (1) has been found guilty of that offense except for insanity, the
court shall, in any order entered under ORS 161.327 or 161.329, direct the
defendant to submit to the obtaining of a blood or buccal sample in the manner
provided in ORS 137.076. [1971 c.743 §44; 1977 c.380 §5; 1979 c.885 §1; 1981
c.711 §1; 1983 c.800 §5; 1991 c.669 §8; 1999 c.97 §2; 2005 c.337 §1]
161.326
Commission of crime by person under board jurisdiction; notice to victim. (1) Whenever a person already under the
boards jurisdiction commits a new crime, the court or the board shall make the
findings described in ORS 161.325 (2).
(2) If the trial court or the board
determines that a victim desires notification as described in ORS 161.325 (2),
the board shall make a reasonable effort to notify the victim of board
hearings, conditional release, discharge or escape. [1981 c.711 §9]
Note: 161.326 and 161.387 were added to and made a
part of ORS chapter 161 by legislative action but were not added to any smaller
series therein. See Preface to Oregon Revised Statutes for further explanation.
161.327
Order giving jurisdiction to Psychiatric Security Review Board; court to commit
or conditionally release defendant; notice to board; appeal. (1)(a) Following the entry of a judgment
pursuant to ORS 161.319 and the dispositional determination under ORS 161.325,
if the court finds that the person would have been guilty of a felony, or of a
misdemeanor during a criminal episode in the course of which the person caused
physical injury or risk of physical injury to another, the court shall order
that a psychiatric or psychological evaluation be performed and a report of the
evaluation be provided to the court if an evaluation was not performed or a
report was not provided to the court prior to trial. Upon receipt of the
evaluation, the court shall order that the person be placed under the
jurisdiction of the Psychiatric Security Review Board for care and treatment if
the court finds by a preponderance of the evidence that the person is affected
by mental disease or defect and presents a substantial danger to others
requiring commitment to:
(A) A state hospital designated by the
Department of Human Services if the person is at least 18 years of age; or
(B) A secure intensive community inpatient
facility designated by the Department of Human Services if the person is under
18 years of age.
(b) The period of jurisdiction of the
board is equal to the maximum sentence provided by statute for the crime for
which the person was found guilty except for insanity.
(c) When a court orders a psychiatric or
psychological evaluation of a financially eligible person under this
subsection, the court shall order the public defense services executive
director to pay a reasonable fee for the evaluation from funds available for
the purpose.
(2) The court shall determine whether the
person should be committed to a state hospital, or to a secure intensive
community inpatient facility, designated by the Department of Human Services or
conditionally released pending any hearing before the board as follows:
(a) If the court finds that the person
presents a substantial danger to others and is not a proper subject for
conditional release, the court shall order the person committed to a state
hospital designated by the Department of Human Services if the person is at
least 18 years of age, or to a secure intensive community inpatient facility
designated by the Department of Human Services if the person is under 18 years
of age, for custody, care and treatment pending hearing before the board in
accordance with ORS 161.341 to 161.351.
(b) If the court finds that the person
presents a substantial danger to others but that the person can be adequately
controlled with supervision and treatment if conditionally released and that
necessary supervision and treatment are available, the court may order the
person conditionally released, subject to those supervisory orders of the court
as are in the best interests of justice, the protection of society and the
welfare of the person. The court shall designate a person or state, county or
local agency to supervise the person upon release, subject to those conditions
as the court directs in the order for conditional release. Prior to the
designation, the court shall notify the person or agency to whom conditional
release is contemplated and provide the person or agency an opportunity to be
heard before the court. After receiving an order entered under this paragraph,
the person or agency designated shall assume supervision of the person pursuant
to the direction of the Psychiatric Security Review Board. The person or agency
designated as supervisor shall be required to report in writing no less than
once per month to the board concerning the supervised persons compliance with
the conditions of release.
(3) For purposes of this section, a person
affected by a mental disease or defect in a state of remission is considered to
have a mental disease or defect requiring supervision when the disease may,
with reasonable medical probability, occasionally become active and, when
active, render the person a danger to others.
(4) In determining whether a person should
be conditionally released, the court may order evaluations, examinations and
compliance as provided in ORS 161.336 (4) and 161.346 (2).
(5) In determining whether a person should
be committed to a state hospital or to a secure intensive community inpatient
facility or conditionally released, the court shall have as its primary concern
the protection of society.
(6) Upon placing a person on conditional
release, the court shall notify the board in writing of the courts conditional
release order, the supervisor appointed, and all other conditions of release,
and the person shall be on conditional release pending hearing before the board
in accordance with ORS 161.336 to 161.351. Upon compliance with this subsection
and subsections (1) and (2) of this section, the courts jurisdiction over the
person is terminated and the board assumes jurisdiction over the person.
(7) An order of the court under this
section is a final order appealable by the person found guilty except for
insanity in accordance with ORS 19.205 (5). Notwithstanding ORS 19.255, notice
of an appeal under this section shall be served and filed within 90 days after
the order appealed from is entered in the register. The person shall be
entitled on appeal to suitable counsel possessing skills and experience
commensurate with the nature and complexity of the case. If the person is
financially eligible, suitable counsel shall be appointed in the manner
provided in ORS 138.500 (1), and the compensation for counsel and costs and
expenses of the person necessary to the appeal shall be determined and paid as
provided in ORS 138.500.
(8) Upon placing a person under the
jurisdiction of the board, the court shall notify the person of the right to
appeal and the right to a hearing before the board in accordance with ORS
161.336 (7) and 161.341 (4). [1979 c.867 §5; 1979 c.885 §2; 1981 c.711 §2; 1981
s.s. c.3 §129; 1983 c.800 §6; 1989 c.790 §48; 1995 c.208 §1; 2001 c.962 §89;
2003 c.576 §§578,579; 2005 c.685 §§1,1a]
Note: 161.327 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 161 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
161.328
Initiation of civil commitment proceedings. Following the entry of a judgment pursuant to ORS 161.319 and the
dispositional determination under ORS 161.325, if the court finds that the person
would have been guilty of a misdemeanor during a criminal episode in the course
of which the person did not cause physical injury or risk of physical injury to
another, and if the court has probable cause to believe that the person is
dangerous to self or others as a result of a mental disorder, the court may
initiate civil commitment proceedings under ORS 426.070 to 426.130. [1981 c.711
§3; 1983 c.800 §7; 1987 c.903 §36; 1995 c.529 §1]
161.329
Order of discharge.
Following the entry of a judgment pursuant to ORS 161.319 and the dispositional
determination under ORS 161.325, if the court finds that the person is no
longer affected by mental disease or defect, or, if so affected, no longer
presents a substantial danger to others and is not in need of care, supervision
or treatment, the court shall order the person discharged from custody. [1971
c.743 §45; 1977 c.380 §6; 1981 c.711 §4]
161.330 [Repealed by 1971 c.743 §432]
161.332
Conditional release defined.
As used in ORS 161.315 to 161.351 and 161.385 to 161.395, conditional release
includes, but is not limited to, the monitoring of mental and physical health
treatment. [1977 c.380 §1; 1983 c.800 §8]
161.335 [1971 c.743 §46; 1973 c.137 §1; 1975 c.380 §1;
repealed by 1977 c.380 §10 (161.336 enacted in lieu of 161.335)]
161.336
Conditional release by Psychiatric Security Review Board; supervision by board;
termination or modification of conditional release; hearing. (1) If the Psychiatric Security Review Board
determines that the person presents a substantial danger to others but can be
adequately controlled with supervision and treatment if conditionally released
and that necessary supervision and treatment are available, the board may order
the person conditionally released, subject to those supervisory orders of the
board as are in the best interests of justice, the protection of society and
the welfare of the person. The board may designate any person or state, county
or local agency the board considers capable of supervising the person upon release,
subject to those conditions as the board directs in the order for conditional
release. Prior to the designation, the board shall notify the person or agency
to whom conditional release is contemplated and provide the person or agency an
opportunity to be heard before the board. After receiving an order entered
under this section, the person or agency designated shall assume supervision of
the person pursuant to the direction of the board.
(2) Conditions of release contained in
orders entered under this section may be modified from time to time and
conditional releases may be terminated by order of the board as provided in ORS
161.351.
(3) For purposes of this section, a person
affected by a mental disease or defect in a state of remission is considered to
have a mental disease or defect requiring supervision when the disease may,
with reasonable medical probability, occasionally become active and, when
active, render the person a danger to others. The person may be continued on
conditional release by the board as provided in this section.
(4)(a) As a condition of release, the
board may require the person to report to any state or local mental health
facility for evaluation. Whenever medical, psychiatric or psychological
treatment is recommended, the board may order the person, as a condition of
release, to cooperate with and accept the treatment from the facility.
(b) The facility to which the person has
been referred for evaluation shall perform the evaluation and submit a written
report of its findings to the board. If the facility finds that treatment of
the person is appropriate, it shall include its recommendations for treatment
in the report to the board.
(c) Whenever treatment is provided by the
facility, it shall furnish reports to the board on a regular basis concerning
the progress of the person.
(d) Copies of all reports submitted to the
board pursuant to this section shall be furnished to the person and the persons
counsel. The confidentiality of these reports is determined pursuant to ORS
192.501 to 192.505.
(e) The facility shall comply with any
other conditions of release prescribed by order of the board.
(5) If at any time while the person is
under the jurisdiction of the board it appears to the board or its chairperson
that the person has violated the terms of the conditional release or that the
mental health of the individual has changed, the board or its chairperson may
order the person returned for evaluation or treatment to a state hospital
designated by the Department of Human Services if the person is at least 18
years of age, or to a secure intensive community inpatient facility designated
by the Department of Human Services if the person is under 18 years of age. A
written order of the board, or its chairperson on behalf of the board, is
sufficient warrant for any law enforcement officer to take into custody such
person and transport the person accordingly. A sheriff, municipal police
officer, constable, parole and probation officer, prison official or other
peace officer shall execute the order, and the person shall be returned as soon
as practicable to the custody of the Department of Human Services. Within 20
days following the return of the person to the custody of the Department of
Human Services, the board shall conduct a hearing. Notice of the time and place
of the hearing shall be given to the person, the attorney representing the
person and the Attorney General. The board may continue the person on
conditional release or, if it finds by a preponderance of the evidence that the
person is affected by mental disease or defect and presents a substantial
danger to others and cannot be adequately controlled if conditional release is
continued, it may order the person committed to a state hospital designated by
the Department of Human Services if the person is at least 18 years of age, or
to a secure intensive community inpatient facility designated by the Department
of Human Services if the person is under 18 years of age. The state must prove
by a preponderance of the evidence the persons unfitness for conditional
release. A person in custody pursuant to this subsection has the same rights as
any person appearing before the board pursuant to ORS 161.346.
(6) The community mental health and
developmental disabilities program director, the director of the facility
providing treatment to a person on conditional release, any peace officer or
any person responsible for the supervision of a person on conditional release
may take a person on conditional release into custody or request that the
person be taken into custody if there is reasonable cause to believe the person
is a substantial danger to others because of mental disease or defect and that
the person is in need of immediate care, custody or treatment. Any person taken
into custody pursuant to this subsection shall be transported as soon as
practicable to a state hospital designated by the Department of Human Services
if the person is at least 18 years of age, or to a secure intensive community
inpatient facility designated by the Department of Human Services if the person
is under 18 years of age. A person taken into custody under this subsection has
the same rights as any person appearing before the board pursuant to ORS
161.346.
(7)(a) Any person conditionally released
under this section may apply to the board for discharge from or modification of
an order of conditional release on the ground that the person is no longer
affected by mental disease or defect or, if still so affected, no longer
presents a substantial danger to others and no longer requires supervision,
medication, care or treatment. Notice of the hearing on an application for
discharge or modification of an order of conditional release shall be made to
the Attorney General. The applicant, at the hearing pursuant to this
subsection, must prove by a preponderance of the evidence the applicants
fitness for discharge or modification of the order of conditional release.
Applications by the person for discharge or modification of conditional release
shall not be filed more often than once every six months.
(b) Upon application by any person or
agency responsible for supervision or treatment pursuant to an order of
conditional release, the board shall conduct a hearing to determine if the
conditions of release shall be continued, modified or terminated. The
application shall be accompanied by a report setting forth the facts supporting
the application.
(8) The total period of commitment and
conditional release ordered pursuant to this section may not exceed the maximum
sentence provided by statute for the crime for which the person was found
guilty except for insanity.
(9) The board shall maintain and keep
current the medical, social and criminal history of all persons committed to
its jurisdiction. The confidentiality of records maintained by the board shall
be determined pursuant to ORS 192.501 to 192.505.
(10) In determining whether a person
should be committed to a state hospital or to a secure intensive community
inpatient facility, conditionally released or discharged, the board shall have
as its primary concern the protection of society. [1977 c.380 §11 (enacted in
lieu of 161.335); 1979 c.885 §3; 1981 c.711 §5; 1983 c.800 §9; 1987 c.140 §1;
1989 c.790 §49; 2001 c.326 §1; 2005 c.264 §14; 2005 c.685 §2]
161.340 [1971 c.743 §47; 1975 c.380 §2; repealed by
1977 c.380 §12 (161.341 enacted in lieu of 161.340)]
161.341
Order of commitment; application for discharge or conditional release; release
plan. (1) If the Psychiatric
Security Review Board finds, upon its initial hearing, that the person presents
a substantial danger to others and is not a proper subject for conditional
release, the board shall order the person committed to, or retained in, a state
hospital designated by the Department of Human Services if the person is at
least 18 years of age, or to a secure intensive community inpatient facility
designated by the Department of Human Services if the person is under 18 years
of age, for custody, care and treatment. The period of commitment ordered by
the board may not exceed the maximum sentence provided by statute for the crime
for which the person was found guilty except for insanity.
(2) If at any time after the commitment of
a person to a state hospital, or to a secure intensive community inpatient
facility, designated by the Department of Human Services under this section,
the superintendent of the hospital or the director of the secure intensive
community inpatient facility is of the opinion that the person is no longer
affected by mental disease or defect, or, if so affected, no longer presents a
substantial danger to others or that the person continues to be affected by
mental disease or defect and continues to be a danger to others, but that the
person can be controlled with proper care, medication, supervision and
treatment if conditionally released, the superintendent or director shall apply
to the board for an order of discharge or conditional release. The application
shall be accompanied by a report setting forth the facts supporting the opinion
of the superintendent or director. If the application is for conditional
release, the application must also be accompanied by a verified conditional
release plan. The board shall hold a hearing on the application within 60 days
of its receipt. Not less than 20 days prior to the hearing before the board,
copies of the report shall be sent to the Attorney General.
(3) The attorney representing the state
may choose a psychiatrist or licensed psychologist to examine the person prior
to the initial or any later decision by the board on discharge or conditional
release. The results of the examination shall be in writing and filed with the
board, and shall include, but need not be limited to, an opinion as to the
mental condition of the person, whether the person presents a substantial
danger to others and whether the person could be adequately controlled with
treatment as a condition of release.
(4) Any person who has been committed to a
state hospital, or to a secure intensive community inpatient facility, designated
by the Department of Human Services for custody, care and treatment or another
person acting on the persons behalf may apply to the board for an order of
discharge or conditional release upon the grounds:
(a) That the person is no longer affected
by mental disease or defect;
(b) If so affected, that the person no
longer presents a substantial danger to others; or
(c) That the person continues to be
affected by a mental disease or defect and would continue to be a danger to
others without treatment, but that the person can be adequately controlled and
given proper care and treatment if placed on conditional release.
(5) When application is made under
subsection (4) of this section, the board shall require that a report from the
superintendent of the hospital or the director of the secure intensive
community inpatient facility be prepared and transmitted as provided in
subsection (2) of this section. The applicant must prove by a preponderance of
the evidence the applicants fitness for discharge or conditional release under
the standards of subsection (4) of this section, unless more than two years has
passed since the state had the burden of proof on that issue, in which case the
state shall have the burden of proving by a preponderance of the evidence the
applicants lack of fitness for discharge or conditional release. Applications
for discharge or conditional release under subsection (4) of this section shall
not be filed more often than once every six months commencing with the date of
the initial board hearing.
(6) The board is not required to hold a
hearing on a first application under subsection (4) of this section any sooner
than 90 days after the initial hearing. However, hearings resulting from any
subsequent requests shall be held within 60 days of the filing of the
application.
(7)(a) In no case shall any person
committed by the court under ORS 161.327 to a state hospital, or to a secure
intensive community inpatient facility, designated by the Department of Human
Services be held in the hospital or facility for more than 90 days from the
date of the courts commitment order without an initial hearing before the
board to determine whether the person should be conditionally released or
discharged.
(b) In no case shall a person be held
pursuant to this section for a period of time exceeding two years without a
hearing before the board to determine whether the person should be
conditionally released or discharged. [1977 c.380 §13 (enacted in lieu of
161.340); 1979 c.885 §4; 1981 c.711 §6; 1983 c.800 §10; 1985 c.192 §3; 1989
c.790 §50; 1991 c.244 §1; 2005 c.685 §3]
161.345 [1971 c.743 §48; repealed by 1977 c.380 §14
(161.346 enacted in lieu of 161.345)]
161.346
Hearings on discharge, conditional release, commitment or modification;
psychiatric reports; notice of hearing. (1) The Psychiatric Security Review Board shall conduct hearings upon
any application for discharge, conditional release, commitment or modification
filed pursuant to ORS 161.336, 161.341 or 161.351 and as otherwise required by
ORS 161.336 to 161.351 and shall make findings on the issues before it which
may include:
(a) If the board finds that the person is
no longer affected by mental disease or defect, or, if so affected, no longer
presents a substantial danger to others, the board shall order the person
discharged from commitment or from conditional release.
(b) If the board finds that the person is
still affected by a mental disease or defect and is a substantial danger to
others, but can be controlled adequately if conditionally released with
treatment as a condition of release, the board shall order the person
conditionally released as provided in ORS 161.336.
(c) If the board finds that the person has
not recovered from the mental disease or defect and is a substantial danger to
others and cannot adequately be controlled if conditionally released on
supervision, the board shall order the person committed to, or retained in, a
state hospital designated by the Department of Human Services if the person is
at least 18 years of age, or a secure intensive community inpatient facility
designated by the Department of Human Services if the person is under 18 years
of age, for care, custody and treatment.
(2) At any time, the board may appoint a
psychiatrist or licensed psychologist to examine the person and to submit a
report to the board. Reports filed with the board pursuant to the examination
shall include, but need not be limited to, an opinion as to the mental
condition of the person and whether the person presents a substantial danger to
others, and whether the person could be adequately controlled with treatment as
a condition of release. To facilitate the examination of the person, the board
may order the person placed in the temporary custody of any state hospital or
other suitable facility.
(3) The board may make the determination
regarding discharge or conditional release based upon the written reports
submitted pursuant to this section. If any member of the board desires further
information from the examining psychiatrist or licensed psychologist who
submitted the report, these persons shall be summoned by the board to give
testimony. The board shall consider all evidence available to it which is
material, relevant and reliable regarding the issues before the board. Such
evidence may include but is not limited to the record of trial, the information
supplied by the attorney representing the state or by any other interested
party, including the person, and information concerning the persons mental
condition and the entire psychiatric and criminal history of the person. All
evidence of a type commonly relied upon by reasonably prudent persons in the
conduct of their serious affairs shall be admissible at hearings. Testimony
shall be taken upon oath or affirmation of the witness from whom received. The
officer presiding at the hearing shall administer oaths or affirmations to
witnesses.
(4) The board shall furnish to the person
about whom the hearing is being conducted, the attorney representing the
person, the Attorney General, the district attorney and the court or department
of the county from which the person was committed written notice of any hearing
pending under this section within a reasonable time prior to the hearing. The
notice shall include:
(a) The time, place and location of the
hearing.
(b) The nature of the hearing and the
specific action for which a hearing has been requested, the issues to be
considered at the hearing and a reference to the particular sections of the
statutes and rules involved.
(c) A statement of the authority and
jurisdiction under which the hearing is to be held.
(d) A statement of all rights under
subsection (6) of this section.
(5) Prior to the commencement of a
hearing, the board or presiding officer shall serve personally or by mail a
written notice to each party as provided in ORS 183.413 (2).
(6) At the hearing, the person about whom
the hearing is being held shall have the right:
(a) To appear at all proceedings held
pursuant to this section, except board deliberations.
(b) To cross-examine all witnesses
appearing to testify at the hearing.
(c) To subpoena witnesses and documents as
provided in ORS 161.395.
(d) To be represented by suitable legal
counsel possessing skills and experience commensurate with the nature and complexity
of the case, to consult with counsel prior to the hearing and, if financially
eligible, to have suitable counsel appointed at state expense.
(e) To examine all information, documents
and reports which the board considers. If then available to the board, the
information, documents and reports shall be disclosed to the person so as to
allow examination prior to the hearing.
(7) A record shall be kept of all hearings
before the board, except board deliberations.
(8) Upon request of any party before the
board, or on its own motion, the board may continue a hearing for a reasonable
period not to exceed 60 days to obtain additional information or testimony or
for other good cause shown.
(9) Within 15 days following the
conclusion of the hearing, the board shall provide to the person, the attorney
representing the person, the Attorney General or other attorney representing
the state, if any, written notice of the boards decision.
(10) The burden of proof on all issues at
hearings of the board shall be by a preponderance of the evidence.
(11) If the board determines that the
person about whom the hearing is being held is financially eligible, the board
shall appoint suitable counsel to represent the person. Counsel so appointed
shall be an attorney who satisfies the professional qualifications established
by the Public Defense Services Commission under ORS 151.216. The public defense
services executive director shall determine and allow fair compensation for
counsel appointed under this subsection and the reasonable expenses of the
person in respect to the hearing. Compensation payable to appointed counsel
shall not be less than the applicable compensation level established under ORS
151.216. The compensation and expenses so allowed shall be paid by the public
defense services executive director from funds available for the purpose.
(12) The Attorney General may represent
the state at contested hearings before the board unless the district attorney
of the county from which the person was committed elects to represent the
state. The district attorney of the county from which the person was committed
shall cooperate with the Attorney General in securing the material necessary
for presenting a contested hearing before the board. If the district attorney
elects to represent the state, the district attorney shall give timely written
notice of such election to the Attorney General, the board and the attorney
representing the person. [1977 c.380 §15 (enacted in lieu of 161.345); 1979
c.867 §6; 1979 c.885 §5; 1981 c.711 §7; 1981 s.s c.3 §130; 1983 c.430 §1; 1985
c.502 §23; 1987 c.803 §19; 1991 c.827 §3; 2001 c.962 §40; 2003 c.449 §32; 2005
c.685 §4; 2007 c.288 §7]
161.350 [1971 c.743 §49; 1975 c.380 §3; repealed by
1977 c.380 §16 (161.351 enacted in lieu of 161.350)]
161.351
Discharge of person under jurisdiction of board; periodic review of status. (1) Any person placed under the jurisdiction
of the Psychiatric Security Review Board pursuant to ORS 161.336 or 161.341
shall be discharged at such time as the board, upon a hearing, shall find by a
preponderance of the evidence that the person is no longer affected by mental
disease or defect or, if so affected, no longer presents a substantial danger
to others which requires regular medical care, medication, supervision or
treatment.
(2) For purposes of this section, a person
affected by a mental disease or defect in a state of remission is considered to
have a mental disease or defect. A person whose mental disease or defect may,
with reasonable medical probability, occasionally become active and when it
becomes active will render the person a danger to others, shall not be
discharged. The person shall continue under such supervision and treatment as
the board deems necessary to protect the person and others.
(3) Any person who has been placed under
the jurisdiction of the board and who has spent five years on conditional
release shall be brought before the board for hearing within 30 days of the
expiration of the five-year period. The board shall review the persons status
and determine whether the person should be discharged from the jurisdiction of
the board. [1977 c.380 §17 (enacted in lieu of 161.350); 1981 c.711 §13; 1985
c.192 §4; 1989 c.49 §1]
161.360
Mental disease or defect excluding fitness to proceed. (1) If, before or during the trial in any
criminal case, the court has reason to doubt the defendants fitness to proceed
by reason of incapacity, the court may order an examination in the manner
provided in ORS 161.365.
(2) A defendant may be found incapacitated
if, as a result of mental disease or defect, the defendant is unable:
(a) To understand the nature of the
proceedings against the defendant; or
(b) To assist and cooperate with the
counsel of the defendant; or
(c) To participate in the defense of the
defendant. [1971 c.743 §50; 1993 c.238 §1]
161.365
Procedure for determining issue of fitness to proceed. (1) Whenever the court has reason to doubt
the defendants fitness to proceed by reason of incapacity as defined in ORS
161.360, the court may call to its assistance in reaching its decision any
witness and may appoint a psychiatrist or psychologist to examine the defendant
and advise the court.
(2) If the court determines the assistance
of a psychiatrist or psychologist would be helpful, the court may order the
defendant to be committed for the purpose of an examination for a period not
exceeding 30 days to a state mental hospital designated by the Department of
Human Services if the defendant is at least 18 years of age, or to a secure
intensive community inpatient facility designated by the Department of Human
Services if the defendant is under 18 years of age. The report of each
examination shall include, but is not necessarily limited to, the following:
(a) A description of the nature of the
examination;
(b) A statement of the mental condition of
the defendant; and
(c) If the defendant suffers from a mental
disease or defect, an opinion as to whether the defendant is incapacitated
within the definition set out in ORS 161.360.
(3) Except when the defendant and the
court both request to the contrary, the report may not contain any findings or
conclusions as to whether the defendant as a result of mental disease or defect
was subject to the provisions of ORS 161.295 or 161.300 at the time of the
criminal act charged.
(4) If the examination by the psychiatrist
or psychologist cannot be conducted by reason of the unwillingness of the
defendant to participate therein, the report shall so state and shall include,
if possible, an opinion as to whether such unwillingness of the defendant was
the result of mental disease or defect affecting capacity to proceed.
(5) The report of the examination shall be
filed in triplicate with the clerk of the court, who shall cause copies to be
delivered to the district attorney and to counsel for defendant.
(6) When upon motion of the court or a
financially eligible defendant, the court has ordered a psychiatric or
psychological examination of the defendant, a county or justice court shall
order the county to pay, and a circuit court shall order the public defense
services executive director to pay from funds available for the purpose:
(a) A reasonable fee if the examination of
the defendant is conducted by a psychiatrist or psychologist in private
practice; and
(b) All costs including transportation of
the defendant if the examination is conducted by a psychiatrist or psychologist
in the employ of the Department of Human Services or a community mental health
and developmental disabilities program established under ORS 430.610 to
430.670.
(7) When such an examination is ordered at
the request or with the acquiescence of a defendant who is determined not to be
financially eligible, the examination shall be performed at the defendants
expense. When such an examination is ordered at the request of the prosecution,
the county shall pay for the expense of the examination. [1971 c.743 §51; 1975
c.380 §4; 1981 s.s. c.3 §131; 1983 c.800 §11; 1987 c.803 §18; 1993 c.238 §2;
2001 c.962 §90; 2005 c.685 §5]
161.370
Determination of fitness; effect of finding of unfitness; proceedings if
fitness regained; pretrial objections by defense counsel. (1) When the defendants fitness to proceed
is drawn in question, the issue shall be determined by the court. If neither
the prosecuting attorney nor counsel for the defendant contests the finding of
the report filed by a psychiatrist or psychologist under ORS 161.365, the court
may make the determination on the basis of such report. If the finding is
contested, the court shall hold a hearing on the issue. If the report is
received in evidence upon such hearing, the party who contests the finding
thereof shall have the right to summon and to cross-examine any psychiatrist or
psychologist who submitted the report and to offer evidence upon the issue.
Other evidence regarding the defendants fitness to proceed may be introduced
by either party.
(2) If the court determines that the
defendant lacks fitness to proceed, the proceeding against the defendant shall
be suspended, except as provided in subsection (12) of this section, and the
court shall commit the defendant to the custody of the superintendent of a
state mental hospital designated by the Department of Human Services if the
defendant is at least 18 years of age, or to the custody of the director of a
secure intensive community inpatient facility designated by the Department of
Human Services if the defendant is under 18 years of age, or shall release the
defendant on supervision for as long as such unfitness shall endure. The court may
release the defendant on supervision if it determines that care other than
commitment for incapacity to stand trial would better serve the defendant and
the community. It may place conditions which it deems appropriate on the
release, including the requirement that the defendant regularly report to the
Department of Human Services or a community mental health and developmental
disabilities program for examination to determine if the defendant has regained
capacity to stand trial. When the court, on its own motion or upon the
application of the superintendent of the hospital or director of the secure
intensive community inpatient facility in which the defendant is committed, a
person examining the defendant as a condition of release on supervision, or either
party, determines, after a hearing, if a hearing is requested, that the
defendant has regained fitness to proceed, the proceeding shall be resumed. If,
however, the court is of the view that so much time has elapsed since the
commitment or release of the defendant on supervision that it would be unjust
to resume the criminal proceeding, the court on motion of either party may
dismiss the charge and may order the defendant to be discharged or cause a
proceeding to be commenced forthwith under ORS 426.070 to 426.170 or 427.235 to
427.290.
(3) The superintendent of a state hospital
or director of a secure intensive community inpatient facility shall cause the
defendant to be evaluated within 60 days from the defendants delivery into the
superintendents or directors custody, for the purpose of determining whether
there is a substantial probability that, in the foreseeable future, the
defendant will have the capacity to stand trial.
(4) In addition, the superintendent or
director shall:
(a) Immediately notify the committing
court if the defendant, at any time, gains or regains the capacity to stand
trial or will never have the capacity to stand trial.
(b) Within 90 days of the defendants
delivery into the superintendents or directors custody, notify the committing
court that:
(A) The defendant has the present capacity
to stand trial;
(B) There is no substantial probability
that, in the foreseeable future, the defendant will gain or regain the capacity
to stand trial; or
(C) There is a substantial probability
that, in the foreseeable future, the defendant will gain or regain the capacity
to stand trial. If such a probability exists, the superintendent or director
shall give the court an estimate of the time in which the defendant, with
appropriate treatment, is expected to gain or regain capacity.
(5) If the superintendent or director
determines that there is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand trial, unless
the court otherwise orders, the defendant shall remain in the superintendents
or directors custody where the defendant shall receive treatment designed for
the purpose of enabling the defendant to gain or regain capacity. In keeping
with the notice requirement under subsection (4)(b) of this section, the
superintendent or director shall, for the duration of the defendants period of
commitment, submit a progress report to the committing court, concerning the
defendants capacity or incapacity, at least once every 180 days as measured
from the date of the defendants delivery into the superintendents or directors
custody.
(6) A defendant who remains committed
under subsection (5) of this section shall be discharged within a period of
time that is reasonable for making a determination concerning whether or not,
and when, the defendant may gain or regain capacity. However, regardless of the
number of charges with which the defendant is accused, in no event shall the
defendant be committed for longer than whichever of the following, measured
from the defendants initial custody date, is shorter:
(a) Three years; or
(b) A period of time equal to the maximum
sentence the court could have imposed if the defendant had been convicted.
(7) The superintendent or director shall
notify the committing court of the defendants impending discharge 30 days
before the date on which the superintendent or director is required to
discharge the defendant under subsection (6) of this section.
(8) When the committing court receives a
notice from the superintendent or director under either subsection (4) or (7)
of this section concerning the defendants progress or lack thereof, the
committing court shall determine after a hearing, if a hearing is requested,
whether the defendant presently has the capacity to stand trial.
(9) If under subsection (8) of this
section the court determines that the defendant lacks the capacity to stand
trial, the court shall further determine whether there is a substantial
probability that the defendant, in the foreseeable future, will gain or regain
the capacity to stand trial and whether the defendant is entitled to discharge
under subsection (6) of this section. If the court determines that there is no
substantial probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial or that the defendant is entitled to
discharge under subsection (6) of this section, the court shall dismiss,
without prejudice, all charges against the defendant and:
(a) Order that the defendant be
discharged; or
(b) Initiate commitment proceedings under
ORS 426.070 or 427.235 to 427.290.
(10) All notices required under this
section shall be filed with the clerk of the court and delivered to both the
district attorney and the counsel for the defendant.
(11) If the defendant regains fitness to
proceed, the term of any sentence received by the defendant for conviction of
the crime charged shall be reduced by the amount of time the defendant was
committed under this section to the custody of a state mental hospital, or to
the custody of a secure intensive community inpatient facility, designated by
the Department of Human Services.
(12) The fact that the defendant is unfit
to proceed does not preclude any objection through counsel and without the personal
participation of the defendant on the grounds that the indictment is
insufficient, that the statute of limitations has run, that double jeopardy
principles apply or upon any other ground at the discretion of the court which
the court deems susceptible of fair determination prior to trial. [1971 c.743 §52;
1975 c.380 §5; 1993 c.238 §3; 1999 c.931 §§1,2; 2005 c.685 §6]
161.375
Escape of person placed at hospital or facility; authority to order arrest. (1) When a patient, who has been placed at
the Oregon State Hospital for evaluation, care, custody and treatment under the
jurisdiction of the Psychiatric Security Review Board or by court order under
ORS 161.315, 161.365 or 161.370, has escaped or is absent without authorization
from the Oregon State Hospital or from the custody of any person in whose
charge the superintendent has placed the patient, the superintendent may order
the arrest and detention of the patient.
(2) When a patient, who has been placed at
a secure intensive community inpatient facility for evaluation, care, custody
and treatment under the jurisdiction of the Psychiatric Security Review Board
or by court order under ORS 161.315, 161.365, 161.370 or 419C.527, has escaped
or is absent without authorization from the facility or from the custody of any
person in whose charge the director of the facility has placed the patient, the
director of the facility shall notify the Director of Human Services. The
Director of Human Services may order the arrest and detention of the patient.
(3) The superintendent or the Director of
Human Services may issue an order under this section based upon a reasonable
belief that grounds exist for issuing the order. When reasonable, the
superintendent or the Director of Human Services shall investigate to ascertain
whether such grounds exist.
(4) Any order issued by the superintendent
or the Director of Human Services as authorized by this section constitutes
full authority for the arrest and detention of the patient and all laws
applicable to warrant or arrest apply to the order. An order issued by the
superintendent or the Director of Human Services under this section expires 72
hours after being signed by the superintendent or the Director of Human
Services.
(5) As used in this section, superintendent
means the superintendent of the
Note: 161.375 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 161 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
161.380 [1971 c.743 §53; renumbered 161.290]
161.385
Psychiatric Security Review Board; composition, term, qualifications, compensation,
appointment, confirmation and meetings; judicial review of orders. (1) There is hereby created a Psychiatric
Security Review Board consisting of 10 members appointed by the Governor and
subject to confirmation by the Senate under section 4, Article III of the
Oregon Constitution.
(2) The membership of the board may not
include any district attorney, deputy district attorney or public defender. The
Governor shall appoint:
(a) A psychiatrist experienced in the
criminal justice system and not otherwise employed on a full-time basis by the
Department of Human Services or a community mental health and developmental
disabilities program;
(b) A licensed psychologist experienced in
the criminal justice system and not otherwise employed on a full-time basis by
the Department of Human Services or a community mental health and developmental
disabilities program;
(c) A member with substantial experience
in the processes of parole and probation;
(d) A lawyer with substantial experience
in criminal trial practice;
(e) A psychiatrist certified, or eligible
to be certified, by the Oregon Medical Board in child psychiatry who is
experienced in the juvenile justice system and not employed on a full-time
basis by the Department of Human Services or a community mental health and
developmental disabilities program;
(f) A licensed psychologist who is
experienced in child psychology and the juvenile justice system and not
employed on a full-time basis by the Department of Human Services or a
community mental health and developmental disabilities program;
(g) A member with substantial experience
in the processes of juvenile parole and probation;
(h) A lawyer with substantial experience
in juvenile law practice; and
(i) Two members of the general public.
(3) The term of office of each member is
four years. The Governor at any time may remove any member for inefficiency,
neglect of duty or malfeasance in office. Before the expiration of the term of
a member, the Governor shall appoint a successor whose term begins on July 1
next following. A member is eligible for reappointment. If there is a vacancy
for any cause, the Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) A member of the board not otherwise
employed full-time by the state shall be paid on a per diem basis an amount
equal to $289.22, adjusted according to the executive pay plan for the
biennium, for each day during which the member is engaged in the performance of
official duties, including necessary travel time. In addition, subject to ORS
292.220 to 292.250 regulating travel and other expenses of state officers and
employees, the member shall be reimbursed for actual and necessary travel and
other expenses incurred in the performance of official duties.
(5) Subject to any applicable provision of
the State Personnel Relations Law, the board may hire employees to aid it in
performing its duties.
(6) The board consists of two five-member
panels. The adult panel is responsible for persons placed under the boards jurisdiction
under ORS 161.327 and 419C.544 and consists of those members appointed under
subsection (2)(a) to (d) of this section and one of the public members. The
juvenile panel is responsible for young persons placed under the boards
jurisdiction under ORS 419C.529 and consists of those members appointed under
subsection (2)(e) to (h) of this section and the other public member.
(7)(a) Each panel shall select one of its
members as chairperson to serve for a one-year term with such duties and powers
as the panel determines.
(b) A majority of the voting members of a
panel constitutes a quorum for the transaction of business of the panel.
(8) Each panel shall meet at least twice
every month, unless the chairperson determines that there is not sufficient business
before the panel to warrant a meeting at the scheduled time. The panel shall
also meet at other times and places specified by the call of the chairperson or
of a majority of the members of the panel.
(9)(a) When a person over whom a panel of
the board exercises its jurisdiction is adversely affected or aggrieved by a
final order of the panel, the person is entitled to judicial review of the
final order. The person is entitled on judicial review to suitable counsel
possessing skills and experience commensurate with the nature and complexity of
the case. If the person is financially eligible, suitable counsel shall be
appointed by the reviewing court in the manner provided in ORS 138.500 (1). If
the person is financially eligible, the public defense services executive
director shall determine and pay, as provided in ORS 138.500, the cost of
briefs, any other expenses of the person necessary to the review and
compensation for counsel appointed for the person. The costs, expenses and
compensation so allowed shall be paid as provided in ORS 138.500.
(b) The order and the proceedings
underlying the order are subject to review by the Court of Appeals upon
petition to that court filed within 60 days of the order for which review is
sought. The panel shall submit to the court the record of the proceeding or, if
the person agrees, a shortened record. The record may include a certified true
copy of a tape recording of the proceedings at a hearing in accordance with ORS
161.346. A copy of the record transmitted shall be delivered to the person by
the panel.
(c) The court may affirm, reverse or
remand the order on the same basis as provided in ORS 183.482 (8).
(d) The filing of the petition does not
stay the panels order, but the panel or the Court of Appeals may order a stay
upon application on such terms as are deemed proper. [1977 c.380 §8; 1979 c.867
§7; 1979 c.885 §6; 1981 c.711 §15; 1981 s.s. c.3 §132; 1983 c.740 §26; 1983
c.800 §12; 1987 c.133 §1; 2001 c.962 §70; 2005 c.843 §20]
161.387
Board to implement policies; rulemaking; meetings not deliberative under public
meeting requirements. (1)
The Psychiatric Security Review Board, by rule pursuant to ORS 183.325 to
183.410 and not inconsistent with law, may implement its policies and set out
its procedure and practice requirements and may promulgate such interpretive
rules as the board deems necessary or appropriate to carry out its statutory
responsibilities.
(2) Administrative meetings of the board
and the evidentiary phase of board hearings are not deliberations for the
purposes of ORS 192.690. [1981 c.711 §§10,11]
Note: See note under 161.326.
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. (1) The Department
of Human Services shall promulgate rules for the assignment of persons to state
mental hospitals or secure intensive community inpatient facilities under ORS
161.341, 161.365 and 161.370 and for establishing standards for evaluation and
treatment of persons committed to a state hospital or a secure intensive
community inpatient facility, designated by the department, or ordered to a
community mental health and developmental disabilities program under ORS
161.315 to 161.351 and 428.210.
(2) Whenever the Psychiatric Security
Review Board requires the preparation of a predischarge or preconditional
release plan before a hearing or as a condition of granting discharge or
conditional release for a person committed under ORS 161.327 or 161.341 to a
state hospital or a secure intensive community inpatient facility for custody,
care and treatment, the Department of Human Services is responsible for and
shall prepare the plan.
(3) In carrying out a conditional release
plan prepared under subsection (2) of this section, the Department of Human
Services may contract with a community mental health and developmental
disabilities program, other public agency or private corporation or an
individual to provide supervision and treatment for the conditionally released
person. [1975 c.380 §7; 1977 c.380 §18; 1981 c.711 §14; 1993 c.680 §18; 2005
c.22 §109; 2005 c.685 §8]
161.395
Subpoena power of board. (1)
Upon request of any party to a hearing before the board, the board or its
designated representatives shall issue, or the board on its own motion may
issue, subpoenas requiring the attendance and testimony of witnesses.
(2) Upon request of any party to the
hearing before the board and upon a proper showing of the general relevance and
reasonable scope of the documentary or physical evidence sought, the board or
its designated representative shall issue, or the board on its own motion may
issue, subpoenas duces tecum.
(3) Witnesses appearing under subpoenas,
other than the parties or state officers or employees, shall receive fees and
mileage as prescribed by law for witnesses in ORS 44.415 (2). If the board or
its designated representative certifies that the testimony of a witness was
relevant and material, any person who has paid fees and mileage to that witness
shall be reimbursed by the board.
(4) If any person fails to comply with a
subpoena issued under subsections (1) or (2) of this section or any party or
witness refuses to testify regarding any matter on which the party or witness
may be lawfully interrogated, the judge of the circuit court of any county, on
the application of the board or its designated representative or of the party
requesting the issuance of the subpoena, shall compel obedience by proceedings
for contempt as in the case of disobedience of the requirements of a subpoena
issued by the court.
(5) If any person, agency or facility
fails to comply with an order of the board issued pursuant to subsection (2) of
this section, the judge of a circuit court of any county, on application of the
board or its designated representative, shall compel obedience by proceedings
for contempt as in the case of disobedience of the requirements of an order
issued by the court. Contempt for disobedience of an order of the board shall
be punishable by a fine of $100. [1977 c.380 §9; 1989 c.980 §8]
Note: 161.395 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 161 or
any series therein by legislative action. See Preface to Oregon Revised Statutes
for further explanation.
161.397
Psychiatric Security Review Board Account. The Psychiatric Security Review Board Account is established separate
and distinct from the General Fund. All moneys received by the Psychiatric
Security Review Board, other than appropriations from the General Fund, shall
be deposited into the account and are continuously appropriated to the board to
carry out the duties, functions and powers of the board. [2001 c.716 §3]
Note: 161.397 was enacted into law by the Legislative
Assembly but was not added to or made a part of ORS chapter 161 or any series
therein by legislative action. See Preface to Oregon Revised Statutes for
further explanation.
161.400
Leave of absence; notice to board. If, at any time after the commitment of a person to a state hospital
or a secure intensive community inpatient facility under ORS 161.341 (1), the
superintendent of the hospital or the director of the facility is of the
opinion that a leave of absence from the hospital or facility would be
therapeutic for the person and that such leave would pose no substantial danger
to others, the superintendent or director may authorize such leave for up to 48
hours in accordance with rules adopted by the Psychiatric Security Review
Board. However, the superintendent or director, before authorizing the leave of
absence, shall first notify the board for the purposes of ORS 161.326 (2). [1981
c.711 §12; 2005 c.685 §9]
161.403 [1983 c.800 §14; repealed by 1993 c.77 §1]
INCHOATE
CRIMES
161.405
Attempt described. (1) A
person is guilty of an attempt to commit a crime when the person intentionally
engages in conduct which constitutes a substantial step toward commission of
the crime.
(2) An attempt is a:
(a) Class A felony if the offense
attempted is murder or treason.
(b) Class B felony if the offense
attempted is a Class A felony.
(c) Class C felony if the offense
attempted is a Class B felony.
(d) Class A misdemeanor if the offense
attempted is a Class C felony or an unclassified felony.
(e) Class B misdemeanor if the offense
attempted is a Class A misdemeanor.
(f) Class C misdemeanor if the offense
attempted is a Class B misdemeanor.
(g) Violation if the offense attempted is
a Class C misdemeanor or an unclassified misdemeanor. [1971 c.743 §54]
161.425
Impossibility not a defense.
In a prosecution for an attempt, it is no defense that it was impossible to
commit the crime which was the object of the attempt where the conduct engaged
in by the actor would be a crime if the circumstances were as the actor
believed them to be. [1971 c.743 §55]
161.430
Renunciation as a defense to attempt. (1) A person is not liable under ORS 161.405 if, under circumstances
manifesting a voluntary and complete renunciation of the criminal intent of the
person, the person avoids the commission of the crime attempted by abandoning
the criminal effort and, if mere abandonment is insufficient to accomplish this
avoidance, doing everything necessary to prevent the commission of the
attempted crime.
(2) The defense of renunciation is an
affirmative defense. [1971 c.743 §56]
161.435
Solicitation described.
(1) A person commits the crime of solicitation if with the intent of causing
another to engage in specific conduct constituting a crime punishable as a
felony or as a Class A misdemeanor or an attempt to commit such felony or Class
A misdemeanor the person commands or solicits such other person to engage in
that conduct.
(2) Solicitation is a:
(a) Class A felony if the offense
solicited is murder or treason.
(b) Class B felony if the offense
solicited is a Class A felony.
(c) Class C felony if the offense
solicited is a Class B felony.
(d) Class A misdemeanor if the offense
solicited is a Class C felony.
(e) Class B misdemeanor if the offense
solicited is a Class A misdemeanor. [1971 c.743 §57]
161.440
Renunciation as defense to solicitation. (1) It is a defense to the crime of solicitation that the person
soliciting the crime, after soliciting another person to commit a crime,
persuaded the person solicited not to commit the crime or otherwise prevented
the commission of the crime, under circumstances manifesting a complete and
voluntary renunciation of the criminal intent.
(2) The defense of renunciation is an
affirmative defense. [1971 c.743 §58]
161.450
Conspiracy described. (1)
A person is guilty of criminal conspiracy if with the intent that conduct
constituting a crime punishable as a felony or a Class A misdemeanor be
performed, the person agrees with one or more persons to engage in or cause the
performance of such conduct.
(2) Criminal conspiracy is a:
(a) Class A felony if an object of the
conspiracy is commission of murder, treason or a Class A felony.
(b) Class B felony if an object of the
conspiracy is commission of a Class B felony.
(c) Class C felony if an object of the
conspiracy is commission of a Class C felony.
(d) Class A misdemeanor if an object of
the conspiracy is commission of a Class A misdemeanor. [1971 c.743 §59]
161.455
Conspiratorial relationship.
If a person is guilty of conspiracy, as defined in ORS 161.450, and knows that
a person with whom the person conspires to commit a crime has conspired or will
conspire with another person or persons to commit the same crime, the person is
guilty of conspiring with such other person or persons, whether or not the
person knows their identity, to commit such crime. [1971 c.743 §60]
161.460
Renunciation as defense to conspiracy. (1) It is a defense to a charge of conspiracy that the actor, after
conspiring to commit a crime, thwarted commission of the crime which was the
object of the conspiracy, under circumstances manifesting a complete and
voluntary renunciation of the criminal purpose of the actor. Renunciation by
one conspirator does not, however, affect the liability of another conspirator
who does not join in the renunciation of the conspiratorial objective.
(2) The defense of renunciation is an
affirmative defense. [1971 c.743 §61]
161.465
Duration of conspiracy. For
the purpose of application of ORS 131.125:
(1) Conspiracy is a continuing course of
conduct which terminates when the crime or crimes which are its object are
completed or the agreement that they be committed is abandoned by the defendant
and by those with whom the defendant conspired.
(2) Abandonment is presumed if neither the
defendant nor anyone with whom the defendant conspired does any overt act in
pursuance of the conspiracy during the applicable period of limitation.
(3) If an individual abandons the
agreement, the conspiracy is terminated as to the individual only if and when
the individual advises those with whom the individual conspired of the
abandonment or the individual informs the law enforcement authorities of the
existence of the conspiracy and of the participation of the individual therein.
[1971 c.743 §62; 1973 c.836 §340]
161.475
Defenses to solicitation and conspiracy. (1) Except as provided in subsection (2) of this section, it is
immaterial to the liability of a person who solicits or conspires with another
to commit a crime that:
(a) The person or the person whom the
person solicits or with whom the person conspires does not occupy a particular
position or have a particular characteristic which is an element of such crime,
if the person believes that one of them does; or
(b) The person whom the person solicits or
with whom the person conspires is irresponsible or has an immunity to
prosecution or conviction for the commission of the crime, or, in the case of
conspiracy, has feigned the agreement; or
(c) The person with whom the person conspires
has not been prosecuted for or convicted of the conspiracy or a crime based
upon the conduct in question, or has previously been acquitted.
(2) It is a defense to a charge of
solicitation or conspiracy to commit a crime that if the criminal object were
achieved, the actor would not be guilty of a crime under the law defining the
offense or as an accomplice under ORS 161.150 to 161.165. [1971 c.743 §63]
161.485
Multiple convictions barred in inchoate crimes. (1) It is no defense to a prosecution under
ORS 161.405, 161.435 or 161.450 that the offense the defendant either attempted
to commit, solicited to commit or conspired to commit was actually committed
pursuant to such attempt, solicitation or conspiracy.
(2) A person shall not be convicted of more
than one offense defined by ORS 161.405, 161.435 and 161.450 for conduct
designed to commit or to culminate in commission of the same crime.
(3) A person shall not be convicted on the
basis of the same course of conduct of both the actual commission of an offense
and an attempt to commit that offense or solicitation of that offense or
conspiracy to commit that offense.
(4) Nothing in this section shall be
construed to bar inclusion of multiple counts charging violation of the
substantive crime and ORS 161.405, 161.435 and 161.450 in a single indictment
or information, provided the penal conviction is consistent with subsections
(2) and (3) of this section. [1971 c.743 §64]
CLASSES OF
OFFENSES
161.505
Offense described. An
offense is conduct for which a sentence to a term of imprisonment or to a fine
is provided by any law of this state or by any law or ordinance of a political
subdivision of this state. An offense is either a crime, as described in ORS
161.515, or a violation, as described in ORS 153.008. [1971 c.743 §65; 1975
c.451 §173; 1981 c.626 §2; 1981 c.692 §7; 1999 c.1051 §43]
161.515
Crime described. (1) A
crime is an offense for which a sentence of imprisonment is authorized.
(2) A crime is either a felony or a
misdemeanor. [1971 c.743 §66]
161.525
Felony described. Except
as provided in ORS 161.585 and 161.705, a crime is a felony if it is so
designated in any statute of this state or if a person convicted under a
statute of this state may be sentenced to a maximum term of imprisonment of
more than one year. [1971 c.743 §67]
161.535
Classification of felonies.
(1) Felonies are classified for the purpose of sentence into the following
categories:
(a) Class A felonies;
(b) Class B felonies;
(c) Class C felonies; and
(d) Unclassified felonies.
(2) The particular classification of each
felony defined in the Oregon Criminal Code, except murder under ORS 163.115 and
treason under ORS 166.005, is expressly designated in the section defining the
crime. An offense defined outside this code which, because of the express
sentence provided is within the definition of ORS 161.525, shall be considered
an unclassified felony. [1971 c.743 §68]
161.545
Misdemeanor described. A
crime is a misdemeanor if it is so designated in any statute of this state or
if a person convicted thereof may be sentenced to a maximum term of
imprisonment of not more than one year. [1971 c.743 §69]
161.555
Classification of misdemeanors.
(1) Misdemeanors are classified for the purpose of sentence into the following
categories:
(a) Class A misdemeanors;
(b) Class B misdemeanors;
(c) Class C misdemeanors; and
(d) Unclassified misdemeanors.
(2) The particular classification of each
misdemeanor defined in the Oregon Criminal Code is expressly designated in the
section defining the crime. An offense defined outside this code which, because
of the express sentence provided is within the definition of ORS 161.545, shall
be considered an unclassified misdemeanor.
(3) An offense defined by a statute of
this state, but without specification as to its classification or as to the
penalty authorized upon conviction, shall be considered a Class A misdemeanor. [1971
c.743 §70]
161.565 [1971 c.743 §71; 1987 c.783 §1; 1989 c.1053 §17;
1991 c.111 §17; 1993 c.533 §4; 1997 c.852 §12; repealed by 1999 c.1051 §49]
161.566
Misdemeanor treated as violation; prosecuting attorneys election. (1) Except as provided in subsection (4) of
this section, a prosecuting attorney may elect to treat any misdemeanor as a
Class A violation. The election must be made by the prosecuting attorney orally
at the time of the first appearance of the defendant or in writing filed on or
before the time scheduled for the first appearance of the defendant. If no
election is made within the time allowed, the case shall proceed as a
misdemeanor.
(2) If a prosecuting attorney elects to
treat a misdemeanor as a Class A violation under this section, the court shall
amend the accusatory instrument to reflect the charged offense as a Class A
violation and clearly denominate the offense as a Class A violation in any
judgment entered in the matter. Notwithstanding ORS 153.018, the maximum fine
that a court may impose upon conviction of a violation under this section may
not exceed the amount provided in ORS 161.635 for the class of misdemeanor
receiving violation treatment.
(3) If a prosecuting attorney elects to
treat a misdemeanor as a Class A violation under this section, and the
defendant fails to make any required appearance in the matter, the court may
enter a default judgment against the defendant in the manner provided by ORS
153.102. Notwithstanding ORS 153.018, the maximum fine that the court may
impose under a default judgment entered pursuant to ORS 153.102 is the maximum
fine for the class of misdemeanor receiving violation treatment.
(4) A prosecuting attorney may not elect
to treat misdemeanors created under ORS 811.540 or 813.010 as violations under
the provisions of this section.
(5) The election provided for in this
section may be made by a city attorney acting as prosecuting attorney in the
case of municipal ordinance offenses, a county counsel acting as prosecuting
attorney under a county charter in the case of county ordinance offenses, and
the Attorney General acting as prosecuting attorney in those criminal actions
or proceedings within the jurisdiction of the Attorney General.
(6) Notwithstanding ORS 137.290 (1)(d),
the unitary assessment imposed upon conviction of a violation under this
section is the amount provided in ORS 137.290 for the misdemeanor receiving
violation treatment. [1999 c.1051 §47; 2003 c.737 §89]
161.568
Misdemeanor treated as violation; courts election. (1) Except as provided in subsection (4) of
this section, a court may elect to treat any misdemeanor as a Class A violation
for the purpose of entering a default judgment under ORS 153.102 if:
(a) A complaint or information has been
filed with the court for the misdemeanor;
(b) The defendant has failed to make an
appearance in the proceedings required by the court or by law; and
(c) The court has given notice to the
district attorney for the county and the district attorney has informed the
court that the district attorney does not object to treating the misdemeanor as
a Class A violation.
(2) If the court treats a misdemeanor as a
Class A violation under this section, the court shall amend the accusatory
instrument to reflect the charged offense as a Class A violation and clearly
denominate the offense as a Class A violation in the judgment entered in the
matter.
(3) Notwithstanding ORS 153.018, if the
court treats a misdemeanor as a Class A violation under this section, the
maximum fine that the court may impose under a default judgment entered
pursuant to ORS 153.102 is the maximum fine for the class of misdemeanor
receiving violation treatment.
(4) A court may not treat misdemeanors
created under ORS 811.540 or 813.010 as violations under the provisions of this
section.
(5) Notwithstanding ORS 137.290 (1)(d),
the unitary assessment imposed upon conviction of a violation under this
section is the amount provided in ORS 137.290 for the misdemeanor receiving
violation treatment. [1999 c.1051 §48; 2003 c.737 §90]
161.570
Felony treated as misdemeanor.
(1) As used in this section, nonperson felony has the meaning given that term
in the rules of the Oregon Criminal Justice Commission.
(2) A district attorney may elect to treat
a Class C nonperson felony or a violation of ORS 475.840 (3)(a), 475.854,
475.864 (2) or 475.874 as a Class A misdemeanor. The election must be made by
the district attorney orally or in writing at the time of the first appearance
of the defendant. If a district attorney elects to treat a Class C felony or a
violation of ORS 475.840 (3)(a), 475.854, 475.864 (2) or 475.874 as a Class A
misdemeanor under this subsection, the court shall amend the accusatory
instrument to reflect the charged offense as a Class A misdemeanor.
(3) If, at some time after the first
appearance of a defendant charged with a Class C nonperson felony or a
violation of ORS 475.840 (3)(a), 475.854, 475.864 (2) or 475.874, the district
attorney and the defendant agree to treat the charged offense as a Class A
misdemeanor, the court may allow the offense to be treated as a Class A
misdemeanor by stipulation of the parties.
(4) If a Class C felony or a violation of
ORS 475.840 (3)(a), 475.854, 475.864 (2) or 475.874 is treated as a Class A
misdemeanor under this section, the court shall clearly denominate the offense
as a Class A misdemeanor in any judgment entered in the matter.
(5) If no election or stipulation is made
under this section, the case proceeds as a felony.
(6) Before a district attorney may make an
election under subsection (2) of this section, the district attorney shall
adopt written guidelines for determining when and under what circumstances the
election may be made. The district attorney shall apply the guidelines
uniformly.
(7) Notwithstanding ORS 161.635, the
maximum fine that a court may impose upon conviction of a misdemeanor under
this section may not exceed the amount provided in ORS 161.625 for the class of
felony receiving Class A misdemeanor treatment. [2003 c.645 §2; 2005 c.708 §47;
2007 c.286 §1]
161.575 [1971 c.743 §72; repealed by 1999 c.1051 §49]
161.585
Classification of certain crimes determined by punishment. (1) When a crime punishable as a felony is
also punishable by imprisonment for a maximum term of one year or by a fine,
the crime shall be classed as a misdemeanor if the court imposes a punishment
other than imprisonment under ORS 137.124 (1).
(2) Notwithstanding the provisions of ORS
161.525, upon conviction of a crime punishable as described in subsection (1)
of this section, the crime is a felony for all purposes until one of the
following events occurs, after which occurrence the crime is a misdemeanor for
all purposes:
(a) Without imposing a sentence of
probation, the court imposes a sentence of imprisonment other than to the legal
and physical custody of the Department of Corrections.
(b) Without imposing a sentence of probation,
the court imposes a fine.
(c) Upon revocation of probation, the
court imposes a sentence of imprisonment other than to the legal and physical
custody of the Department of Corrections.
(d) Upon revocation of probation, the
court imposes a fine.
(e) The court declares the offense to be a
misdemeanor, either at the time of imposing a sentence of probation, upon
suspension of imposition of a part of a sentence, or on application of
defendant or the parole and probation officer of the defendant thereafter.
(f) The court imposes a sentence of
probation on the defendant without imposition of any other sentence upon
conviction and defendant is thereafter discharged without any other sentence.
(g) Without imposing a sentence of
probation and without imposing any other sentence, the court declares the
offense to be a misdemeanor and discharges the defendant.
(3) The provisions of this section shall
apply only to persons convicted of a felony committed prior to November 1,
1989. [1971 c.743 §73; 1987 c.320 §85; 1989 c.790 §52; 1993 c.14 §18; 2005
c.264 §15]
DISPOSITION
OF OFFENDERS
161.605
Maximum prison terms for felonies. The maximum term of an indeterminate sentence of imprisonment for a
felony is as follows:
(1) For a Class A felony, 20 years.
(2) For a Class B felony, 10 years.
(3) For a Class C felony, 5 years.
(4) For an unclassified felony as provided
in the statute defining the crime. [1971 c.743 §74]
161.610
Enhanced penalty for use of firearm during commission of felony; pleading;
minimum penalties; suspension or reduction of penalty. (1) As used in this section, firearm means
a weapon which is designed to expel a projectile by the action of black powder
or smokeless powder.
(2) The use or threatened use of a
firearm, whether operable or inoperable, by a defendant during the commission
of a felony may be pleaded in the accusatory instrument and proved at trial as
an element in aggravation of the crime as provided in this section. When a
crime is so pleaded, the aggravated nature of the crime may be indicated by
adding the words with a firearm to the title of the offense. The unaggravated
crime shall be considered a lesser included offense.
(3) Notwithstanding the provisions of ORS
161.605 or 137.010 (3) and except as otherwise provided in subsection (6) of
this section, if a defendant is convicted of a felony having as an element the
defendants use or threatened use of a firearm during the commission of the
crime, the court shall impose at least the minimum term of imprisonment as
provided in subsection (4) of this section. Except as provided in ORS 144.122
and 144.126 and subsection (5) of this section, in no case shall any person
punishable under this section become eligible for work release, parole,
temporary leave or terminal leave until the minimum term of imprisonment is
served, less a period of time equivalent to any reduction of imprisonment
granted for good time served or time credits earned under ORS 421.121, nor
shall the execution of the sentence imposed upon such person be suspended by
the court.
(4) The minimum terms of imprisonment for
felonies having as an element the defendants use or threatened use of a
firearm in the commission of the crime shall be as follows:
(a) Except as provided in subsection (5)
of this section, upon the first conviction for such felony, five years, except
that if the firearm is a machine gun, short-barreled rifle, short-barreled
shotgun or is equipped with a firearms silencer, the term of imprisonment shall
be 10 years.
(b) Upon conviction for such felony
committed after punishment pursuant to paragraph (a) of this subsection or
subsection (5) of this section, 10 years, except that if the firearm is a
machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a
firearms silencer, the term of imprisonment shall be 20 years.
(c) Upon conviction for such felony
committed after imprisonment pursuant to paragraph (b) of this subsection, 30
years.
(5) If it is the first time that the
defendant is subject to punishment under this section, rather than impose the
sentence otherwise required by subsection (4)(a) of this section, the court
may:
(a) For felonies committed prior to
November 1, 1989, suspend the execution of the sentence or impose a lesser term
of imprisonment, when the court expressly finds mitigating circumstances
justifying such lesser sentence and sets forth those circumstances in its
statement on sentencing; or
(b) For felonies committed on or after
November 1, 1989, impose a lesser sentence in accordance with the rules of the
Oregon Criminal Justice Commission.
(6) When a defendant who is convicted of a
felony having as an element the defendants use or threatened use of a firearm
during the commission of the crime is a person who was waived from juvenile
court under ORS 137.707 (5)(b)(A), 419C.349, 419C.352, 419C.364 or 419C.370,
the court is not required to impose a minimum term of imprisonment under this
section. [1979 c.779 §2; 1985 c.552 §1; 1989 c.790 §72; 1989 c.839 §18; 1991
c.133 §3; 1993 c.692 §9; 1999 c.951 §3; 2005 c.407 §1]
161.615
Prison terms for misdemeanors.
Sentences for misdemeanors shall be for a definite term. The court shall fix
the term of imprisonment within the following maximum limitations:
(1) For a Class A misdemeanor, 1 year.
(2) For a Class B misdemeanor, 6 months.
(3) For a Class C misdemeanor, 30 days.
(4) For an unclassified misdemeanor, as
provided in the statute defining the crime. [1971 c.743 §75]
161.620
Sentences imposed upon waiver from juvenile court. Notwithstanding any other provision of law,
a sentence imposed upon any person waived from the juvenile court under ORS
419C.349, 419C.352, 419C.364 or 419C.370 shall not include any sentence of
death or life imprisonment without the possibility of release or parole nor
imposition of any mandatory minimum sentence except that a mandatory minimum
sentence under:
(1) ORS 163.105 (1)(c) shall be imposed;
and
(2) ORS 161.610 may be imposed. [1985
c.631 §9; 1989 c.720 §3; 1993 c.33 §306; 1993 c.546 §119; 1995 c.422 §131y;
1999 c.951 §2]
Note: 161.620 was added to and made a part of ORS
161.615 to 161.685 by legislative action but was not added to any smaller
series in that series. See Preface to Oregon Revised Statutes for further
explanation.
161.625
Fines for felonies. (1) A sentence
to pay a fine for a felony shall be a sentence to pay an amount, fixed by the
court, not exceeding:
(a) $500,000 for murder or aggravated
murder.
(b) $375,000 for a Class A felony.
(c) $250,000 for a Class B felony.
(d) $125,000 for a Class C felony.
(2) A sentence to pay a fine for an
unclassified felony shall be a sentence to pay an amount, fixed by the court,
as provided in the statute defining the crime.
(3)(a) If a person has gained money or
property through the commission of a felony, then upon conviction thereof the
court, in lieu of imposing the fine authorized for the crime under subsection
(1) or (2) of this section, may sentence the defendant to pay an amount, fixed
by the court, not exceeding double the amount of the defendants gain from the
commission of the crime.
(b) The provisions of paragraph (a) of
this subsection do not apply to the felony theft of a companion animal, as
defined in ORS 164.055, or a captive wild animal.
(4) As used in this section, gain means
the amount of money or the value of property derived from the commission of the
felony, less the amount of money or the value of property returned to the
victim of the crime or seized by or surrendered to lawful authority before the
time sentence is imposed. Value shall be determined by the standards
established in ORS 164.115.
(5) When the court imposes a fine for a
felony the court shall make a finding as to the amount of the defendants gain
from the crime. If the record does not contain sufficient evidence to support a
finding the court may conduct a hearing upon the issue.
(6) Except as provided in ORS 161.655,
this section does not apply to a corporation. [1971 c.743 §76; 1981 c.390 §1;
1991 c.837 §11; 1993 c.680 §36; 2003 c.615 §1; 2003 c.737 §86]
161.635
Fines for misdemeanors. (1)
A sentence to pay a fine for a misdemeanor shall be a sentence to pay an
amount, fixed by the court, not exceeding:
(a) $6,250 for a Class A misdemeanor.
(b) $2,500 for a Class B misdemeanor.
(c) $1,250 for a Class C misdemeanor.
(2) A sentence to pay a fine for an
unclassified misdemeanor shall be a sentence to pay an amount, fixed by the
court, as provided in the statute defining the crime.
(3) If a person has gained money or
property through the commission of a misdemeanor, then upon conviction thereof
the court, instead of imposing the fine authorized for the offense under this
section, may sentence the defendant to pay an amount fixed by the court, not
exceeding double the amount of the defendants gain from the commission of the
offense. In that event, ORS 161.625 (4) and (5) apply.
(4) This section does not apply to
corporations. [1971 c.743 §77; 1981 c.390 §2; 1993 c.680 §30; 1995 c.545 §2;
1999 c.1051 §44; 2003 c.737 §87]
161.645
Standards for imposing fines.
In determining whether to impose a fine and its amount, the court shall
consider:
(1) The financial resources of the
defendant and the burden that payment of a fine will impose, with due regard to
the other obligations of the defendant; and
(2) The ability of the defendant to pay a
fine on an installment basis or on other conditions to be fixed by the court. [1971
c.743 §78]
161.655
Fines for corporations. (1)
A sentence to pay a fine when imposed on a corporation for an offense defined
in the Oregon Criminal Code or for an offense defined outside this code for
which no special corporate fine is specified, shall be a sentence to pay an
amount, fixed by the court, not exceeding:
(a) $50,000 when the conviction is of a
felony.
(b) $5,000 when the conviction is of a
Class A misdemeanor or of an unclassified misdemeanor for which a term of
imprisonment of more than six months is authorized.
(c) $2,500 when the conviction is of a
Class B misdemeanor or of an unclassified misdemeanor for which the authorized
term of imprisonment is not more than six months.
(d) $1,000 when the conviction is of a
Class C misdemeanor or an unclassified misdemeanor for which the authorized
term of imprisonment is not more than 30 days.
(2) A sentence to pay a fine, when imposed
on a corporation for an offense defined outside the Oregon Criminal Code, if a
special fine for a corporation is provided in the statute defining the offense,
shall be a sentence to pay an amount, fixed by the court, as provided in the
statute defining the offense.
(3) If a corporation has gained money or
property through the commission of an offense, then upon conviction thereof the
court, in lieu of imposing the fine authorized for the offense under subsection
(1) or (2) of this section, may sentence the corporation to pay an amount,
fixed by the court, not exceeding double the amount of the corporations gain
from the commission of the offense. In that event, ORS 161.625 (4) and (5)
apply. [1971 c.743 §79; 1999 c.1051 §45]
161.665
Costs. (1) Except as provided
in ORS 151.505, the court, only in the case of a defendant for whom it enters a
judgment of conviction, may include in its sentence thereunder a provision that
the convicted defendant pay as costs expenses specially incurred by the state
in prosecuting the defendant. Costs include a reasonable attorney fee for
counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable amount
for fees and expenses incurred pursuant to preauthorization under ORS 135.055.
A reasonable attorney fee is presumed to be a reasonable number of hours at the
hourly rate authorized by the Public Defense Services Commission under ORS
151.216. Costs do not include expenses inherent in providing a constitutionally
guaranteed jury trial or expenditures in connection with the maintenance and
operation of government agencies that must be made by the public irrespective
of specific violations of law.
(2) Except as provided in ORS 151.505, the
court, after the conclusion of an appeal of its initial judgment of conviction,
may include in its general judgment, or enter a supplemental judgment that
includes, a requirement that a convicted defendant pay as costs a reasonable
attorney fee for counsel appointed pursuant to ORS 138.500, including counsel
who is appointed under ORS 151.216 or counsel who is under contract to provide
services for the proceeding under ORS 151.219, and other costs and expenses
allowed by the public defense services executive director under ORS 138.500
(4). A reasonable attorney fee is presumed to be a reasonable number of hours
at the hourly rate authorized by the commission under ORS 151.216.
(3) For purposes of subsections (1) and
(2) of this section, compensation of counsel is determined by reference to a
schedule of compensation established by the commission under ORS 151.216.
(4) The court may not sentence a defendant
to pay costs under this section unless the defendant is or may be able to pay
them. In determining the amount and method of payment of costs, the court shall
take account of the financial resources of the defendant and the nature of the
burden that payment of costs will impose.
(5) A defendant who has been sentenced to
pay costs under this section and who is not in contumacious default in the
payment of costs may at any time petition the court that sentenced the
defendant for remission of the payment of costs or of any unpaid portion of
costs. If it appears to the satisfaction of the court that payment of the
amount due will impose manifest hardship on the defendant or the immediate
family of the defendant, the court may remit all or part of the amount due in
costs, or modify the method of payment under ORS 161.675.
(6) Except as provided in subsection (7)
of this section, all moneys collected or paid under this section shall be paid
into the General Fund and credited to the Criminal Fine and Assessment Account.
(7) All moneys collected or paid under
this section as costs for expenses incurred by the state in extraditing the
defendant to this state shall be deposited into the Arrest and Return Account
established in ORS 133.865. [1971 c.743 §80; 1981 s.s. c.3 §120; 1983 c.763 §12;
1985 c.710 §3; 1987 c.803 §26; 1989 c.1053 §11; 1991 c.460 §12; 1991 c.840 §1;
1997 c.761 §1; 2001 c.962 §§41,113; 2003 c.449 §29; 2003 c.576 §§247,248; 2003
c.615 §2]
161.675
Time and method of payment of fines, restitution and costs. (1) When a defendant, as a part of a
sentence or as condition of probation or suspension of sentence, is required to
pay a sum of money for any purpose, the court may order payment to be made
immediately or within a specified period of time or in specified installments.
If a defendant is sentenced to a term of imprisonment, any part of the sentence
that requires the payment of a sum of money for any purpose is enforceable
during the period of imprisonment if the court expressly finds that the
defendant has assets to pay all or part of the amounts ordered.
(2) When a defendant whose sentence
requires the payment of a sum of money for any purpose is also sentenced to
probation or imposition or execution of sentence is suspended, the court may
make payment of the sum of money a condition of probation or suspension of
sentence.
(3) When a defendant is sentenced to
probation or imposition or execution of sentence is suspended and the court
requires as a part of the sentence or as a condition of the probation or
suspension of sentence that the defendant pay a sum of money in installments,
the court, or the court clerk or parole and probation officer if so ordered by
the court, shall establish a schedule of payments to satisfy the obligation. A
schedule of payments shall be reviewed by the court upon motion of the
defendant at any time, so long as the obligation remains unsatisfied. [1971
c.743 §81; 1977 c.371 §4; 1985 c.46 §1; 1993 c.14 §19; 1995 c.512 §3; 2005
c.264 §16]
161.685
Effect of nonpayment of fines, restitution or costs; report to consumer
reporting agency; rules. (1)
When a defendant who has been sentenced or ordered to pay a fine, or to make
restitution as defined in ORS 137.103, defaults on a payment or installment
ordered by the court, the court on motion of the district attorney or upon its
own motion may require the defendant to show cause why the default should not
be treated as contempt of court, and may issue a show cause citation or a
warrant of arrest for the appearance of the defendant.
(2) If the court finds that the default
constitutes contempt, the court may impose one or more of the sanctions
authorized by ORS 33.105.
(3) When a fine or an order of restitution
is imposed on a corporation or unincorporated association, it is the duty of
the person authorized to make disbursement from the assets of the corporation
or association to pay the fine or make the restitution from those assets, and
if that person fails to do so, the court may hold that person in contempt.
(4) Notwithstanding ORS 33.105, the term
of confinement for contempt for nonpayment of fines or failure to make
restitution shall be set forth in the commitment order, and shall not exceed
one day for each $25 of the fine or restitution, 30 days if the fine or order
of restitution was imposed upon conviction of a violation or misdemeanor, or
one year in any other case, whichever is the shorter period.
(5) If it appears to the satisfaction of
the court that the default in the payment of a fine or restitution is not
contempt, the court may enter an order allowing the defendant additional time
for payment, reducing the amount of the payment or installments due on the
payment, or revoking the fine or order of restitution in whole or in part.
(6) A default in the payment of a fine or
costs or failure to make restitution or a default on an installment on a fine,
costs or restitution may be collected by any means authorized by law for the
enforcement of a judgment. The levy of execution or garnishment for the
collection of a fine or restitution shall not discharge a defendant confined
for contempt until the amount of the fine or restitution has actually been
collected.
(7) The court, or the court clerk if
ordered by the court, may report a default on a court-ordered payment to a
consumer reporting agency.
(8) The Chief Justice of the Supreme Court
shall adopt rules under ORS 1.002 establishing policies and procedures for
reporting a default under subsection (7) of this section to a consumer
reporting agency that may include, but are not limited to, limitations on
reporting a default to a consumer reporting agency.
(9) Except as otherwise provided in this
section, proceedings under this section shall be conducted:
(a) As provided in ORS 33.055, if the
court seeks to impose remedial sanctions as described in ORS 33.015 to 33.155;
and
(b) As provided in ORS 33.065, if the
court seeks to impose punitive sanctions as described in ORS 33.015 to 33.155.
(10) Confinement under this section may be
custody or incarceration, whether actual or constructive.
(11) As used in this section, consumer
reporting agency means any person that regularly engages for fees, dues, or on
a nonprofit basis, in whole or in part, in the practice of assembling or
evaluating consumer credit information or other information on consumers for
the purpose of furnishing consumer reports to third parties. [1971 c.743 §82;
1977 c.371 §5; 1987 c.709 §3; 1987 c.873 §28; 1991 c.724 §27a; 1995 c.79 §50; 1995
c.512 §4]
AUTHORITY OF
161.705
Reduction of certain felonies to misdemeanors. Notwithstanding ORS 161.525, the court may
enter judgment of conviction for a Class A misdemeanor and make disposition
accordingly when:
(1)(a) A person is convicted of any Class
C felony;
(b) A person is convicted of a Class B
felony pursuant to ORS 475.860 (2);
(c) A person is convicted of the Class B
felony of possession of marijuana pursuant to ORS 475.864 (2); or
(d) A person convicted of any of the
felonies described in paragraphs (a) to (c) of this subsection, or of a Class A
felony pursuant to ORS 166.720, has successfully completed a sentence of
probation; and
(2) The court, considering the nature and
circumstances of the crime and the history and character of the defendant,
believes that it would be unduly harsh to sentence the defendant for a felony. [1971
c.743 §83; 1977 c.745 §31; 1979 c.124 §1; 1981 c.769 §8; 2005 c.708 §48]
161.715
Standards for discharge of defendant. (1) Any court empowered to suspend imposition or execution of sentence
or to sentence a defendant to probation may discharge the defendant if:
(a) The conviction is for an offense other
than murder, treason or a Class A or B felony; and
(b) The court is of the opinion that no
proper purpose would be served by imposing any condition upon the defendants
release.
(2) If a sentence of discharge is imposed
for a felony, the court shall set forth in the record the reasons for its
action.
(3) If the court imposes a sentence of
discharge, the defendant shall be released with respect to the conviction for
which the sentence is imposed without imprisonment, fine, probationary
supervision or conditions.
(4) If a defendant pleads not guilty and
is tried and found guilty, a sentence of discharge is a judgment on a
conviction for all purposes, including an appeal by the defendant.
(5) If a defendant pleads guilty, a
sentence of discharge is not appealable, but for all other purposes is a
judgment on a conviction. [1971 c.743 §84; 1993 c.14 §20; 2003 c.576 §249]
161.725
Standards for sentencing of dangerous offenders. (1) Subject to the provisions of ORS
161.737, the maximum term of an indeterminate sentence of imprisonment for a
dangerous offender is 30 years, if because of the dangerousness of the
defendant an extended period of confined correctional treatment or custody is
required for the protection of the public and one or more of the following
grounds exist:
(a) The defendant is being sentenced for a
Class A felony and the defendant is suffering from a severe personality
disorder indicating a propensity toward crimes that seriously endanger the life
or safety of another.
(b) The defendant is being sentenced for a
felony that seriously endangered the life or safety of another, the defendant
has been previously convicted of a felony not related to the instant crime as a
single criminal episode and the defendant is suffering from a severe
personality disorder indicating a propensity toward crimes that seriously
endanger the life or safety of another.
(c) The defendant is being sentenced for a
felony that seriously endangered the life or safety of another, the defendant
has previously engaged in unlawful conduct not related to the instant crime as
a single criminal episode that seriously endangered the life or safety of
another and the defendant is suffering from a severe personality disorder
indicating a propensity toward crimes that seriously endanger the life or
safety of another.
(2) As used in this section, previously
convicted of a felony means:
(a) Previous conviction of a felony in a
court of this state;
(b) Previous conviction in a court of the
United States, other than a court-martial, of an offense which at the time of
conviction of the offense was and at the time of conviction of the instant
crime is punishable under the laws of the United States by death or by
imprisonment in a penitentiary, prison or similar institution for a term of one
year or more; or
(c) Previous conviction by a general
court-martial of the United States or in a court of any other state or
territory of the United States, or of the Commonwealth of Puerto Rico, of an
offense which at the time of conviction of the offense was punishable by death
or by imprisonment in a penitentiary, prison or similar institution for a term
of one year or more and which offense also at the time of conviction of the
instant crime would have been a felony if committed in this state.
(3) As used in this section, previous
conviction of a felony does not include:
(a) An offense committed when the
defendant was less than 16 years of age;
(b) A conviction rendered after the
commission of the instant crime;
(c) A conviction that is the defendants
most recent conviction described in subsection (2) of this section, and the
defendant was finally and unconditionally discharged from all resulting
imprisonment, probation or parole more than seven years before the commission
of the instant crime; or
(d) A conviction that was by court-martial
of an offense denounced only by military law and triable only by court-martial.
(4) As used in this section, conviction
means an adjudication of guilt upon a plea, verdict or finding in a criminal
proceeding in a court of competent jurisdiction, but does not include an
adjudication which has been expunged by pardon, reversed, set aside or
otherwise rendered nugatory. [1971 c.743 §85; 1989 c.790 §75; 1993 c.334 §5;
2005 c.463 §§9,14; 2007 c.16 §4]
161.735
Procedure for determining whether defendant dangerous. (1) Upon motion of the district attorney,
and if, in the opinion of the court, there is reason to believe that the
defendant falls within ORS 161.725, the court shall order a presentence
investigation and an examination by a psychiatrist or psychologist. The court
may appoint one or more qualified psychiatrists or psychologists to examine the
defendant in the local correctional facility.
(2) All costs connected with the
examination shall be paid by the state.
(3) The examination performed pursuant to
this section shall be completed within 30 days, subject to additional
extensions not exceeding 30 days on order of the court. Each psychiatrist and
psychologist appointed to examine a defendant under this section shall file
with the court a written report of findings and conclusions, including an
evaluation of whether the defendant is suffering from a severe personality
disorder indicating a propensity toward criminal activity.
(4) No statement made by a defendant under
this section or ORS 137.124 or 423.090 shall be used against the defendant in
any civil proceeding or in any other criminal proceeding.
(5) Upon receipt of the examination and
presentence reports the court shall set a time for a presentence hearing,
unless the district attorney and the defendant waive the hearing. At the presentence
hearing the district attorney and the defendant may question any psychiatrist
or psychologist who examined the defendant pursuant to this section.
(6) If, after considering the evidence in
the case or in the presentence hearing, the jury or, if the defendant waives
the right to a jury trial, the court finds that the defendant comes within ORS
161.725, the court may sentence the defendant as a dangerous offender.
(7) In determining whether a defendant has
been previously convicted of a felony for purposes of ORS 161.725, the court
shall consider as prima facie evidence of the previous conviction:
(a) A copy of the judicial record of the
conviction which copy is authenticated under ORS 40.510;
(b) A copy of the fingerprints of the
subject of that conviction which copy is authenticated under ORS 40.510; and
(c) Testimony that the fingerprints of the
subject of that conviction are those of the defendant.
(8) Subsection (7) of this section does
not prohibit proof of the previous conviction by any other procedure.
(9) The facts required to be found to
sentence a defendant as a dangerous offender under this section are enhancement
facts, as defined in ORS 136.760, and ORS 136.765 to 136.785 apply to making
determinations of those facts. [1971 c.743 §86; 1973 c.836 §341; 1981 c.892 §89a;
1983 c.740 §27; 1987 c.248 §1; 1999 c.163 §9; 2005 c.463 §§10,15; 2007 c.16 §5]
161.737
Sentence imposed on dangerous offender as departure from sentencing guidelines. (1) A sentence imposed under ORS 161.725 and
161.735 for felonies committed on or after November 1, 1989, shall constitute a
departure from the sentencing guidelines created by rules of the Oregon
Criminal Justice Commission. The findings made to classify the defendant as a
dangerous offender under ORS 161.725 and 161.735 shall constitute substantial
and compelling reasons to depart from the presumptive sentence as provided by
rules of the Oregon Criminal Justice Commission.
(2) When the sentence is imposed, the
sentencing judge shall indicate on the record the reasons for the departure and
shall impose, in addition to the indeterminate sentence imposed under ORS
161.725, a required incarceration term that the offender must serve before
release to post-prison supervision. If the presumptive sentence that would have
been imposed if the court had not imposed the sentence under ORS 161.725 and
161.735 as a departure is a prison sentence, the required incarceration term
shall be no less than the presumptive incarceration term and no more than twice
the maximum presumptive incarceration term. If the presumptive sentence for the
offense is probation, the required incarceration term shall be no less than the
maximum incarceration term provided by the rule of the Oregon Criminal Justice
Commission that establishes incarceration terms for dispositional departures
and no more than twice that amount. However, the indeterminate sentence imposed
under this section and ORS 161.725 is not subject to any guideline rule
establishing limitations on the duration of departures. [1989 c.790 §77; 1993
c.334 §6]
_______________
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