1413

TITr,E 16

CRIMES AND PUNISHMENTS

Chapter 161. General Provisions

162. Offenses Against the State and Public Justice163. Offenses Against Persons164. Offenses Against Property165. Offenses Involving Fraud or Deception166. Offenses Against Public Order; Firearms and Other Weapons167. Offenses Against Public Health and Decency169. Local and Regional Correctional Facilities; Prisoners

0 Chapter 161

1977 REPLACEMENT PART

General Provisions

PRINCIPLES 161. 165 Exemptions to criminal liability for con - duct of another

161.005 Short title161. 170 Criminal liability of corporations

161. 015

161. 025

General definitions

Purposes; principles of construction161. 175 Criminal liability of an individual for

161.035 Application of Criminal Codecorporate conduct

161.045 Limits on application

161.055 Defense" and " raised by defendant" JUSTIFICATION

defined; burden of proof 161. 190 Justification as a defense

161. 195 Justification' described

CRIIVIINAL LIABILITY 161.200 Choice of evils

161.085 Definitions with respect to culpability 161.205 Use of physical force generally

161.095 Requirements of culpability161.209 Use of physical force in defense of a

161. 105 Culpability requirements inapplicable tocertain violations and offenses 161. 215

person

Limitations on use of physical force in

161. 115 Construction of statutes with respect to161.219

defense of a person

Limitations on use of deadly physical forceculpability

161. 125 Intoxication; drug use or dependence asin defense of a person

defense 161.225 Use of physical force in defense of prem- ises

161. 229 Use of physical force in defense of proper - PARTIES TO CREVIE ty

161. 150

161. 155

Criminal liability describedCriminal liability for conduct of another

161.235 Use of physical force in making an arrestor in preventing an escape

161. 160 Defense to criminal liability for conduct of 161.239 Use of deadly physical force in making ananother arrest or in preventing an escape

1414

161.245

161.249

161. 255

161. 260

161. 265

161. 270161.275

161. 295

161. 300

161.305

161.309

161.315

161. 319

161. 325

161. 329

161.332

161.336

161. 341

161. 346

161. 351

161.360

161.365

161.370

161. 380

161.385

161. 390

CROSS REFERENCES

It

belief" described; status of 161.395 Subpena power of Psychiatric Securityunlawful arrestReview Board

Use of physical force by private personassisting an arrest

Use of physical force by private personmaking citizen's arrest

Use of physical force in resisting arrestprohibited

Use of physical force to prevent escapeDuress

Entrapment

RESPONSIBILITY

Effect of mental disease or defectEvidence of disease or defect admissible as

to intent

Disease or defect as affirmative defenseNotice prerequisite to defense; contentRight of state to obtain mental examina-

tion of defendant; limitationsForm of verdict on acquittal on grounds of

disease or defect

Entry of order finder defendant notresponsible on grounds of disease ordefect

Order of conditional releaseDefinition of conditional releaseOrder giving jurisdiction to Psychiatric

Security Review Board; board determi- nation and designation; supervision byboard; application for modification ofboard order

Order of commitment; application fordischarge or conditional release

Hearings on discharge, conditional re- lease, commitment or modification; psy- chiah ports; notice of hearing; hear- ing rigts

Disc" e of person under jurisdiction ofPsychiatric Security Review Board, burden of proof; periodic review of sta- tus; notices; challenge of status determi- nation

Mental disease or defect excluding fitnessto proceed

Procedure for determining issue of fitnessto proceed

Determination of fitness; effect of findingof unfitness; proceedings if fitness re- ggaained, pretrial objections by defense

unsel

Incapacity due to immaturityPsychiatric Security Review Board;

composition, term of office, qualifica- tions, compensation, appointment andmeetings; judicial review of board order

Mental Health Division to promulgaterules for assignment of persons to statemental hospitals

CLASSES OF OFFENSES161. 505

INCHOATE CRIMES

161. 405 Attempt" described161. 425 Impossibility not a defense161.430 Renunciation as defense to attempt161.435 Solicitation" described161. 440 Renunciation as defense to solicitation161. 450 Conspiracy" described161.455 Conspiratorial relationship161. 460 Renunciation as defense to conspiracy161. 465 Duration of conspiracy161. 475 Defenses to solicitation and conspiracy161.485 Multiple convictions barred in inchoate

crimes

CLASSES OF OFFENSES161. 505 Offense" described

161. 515 Crime" described161. 525 Felony" described161.535 Classification of felonies161. 545 Misdemeanor" described161. 555 Classification of misdemeanors161.565 Violation" described161.575 Types of violations161. 585 Classification of certain crimes determined

161. 685

by punishment

DISPOSITION OF OFFENDERS161. 605 Maximum prison terms for felonies161.615 Prison terms for misdemeanors161.625 Fines for felonies161. 635 Fines for misdemeanors and violations161. 645 Standards for imposing fines161. 655 Fines for corporations161.665 Costs161. 675 Time and method of payment of fines,

restitution and costs

161. 685 Effect of nonpayment of fines, restitutionor costs

AUTHORITY OF SENTENCING COURT161. 705 Reduction of certain felonies to misde-

meanors

161.715 Standards for discharge of defendant161. 725 Standards for sentencing of dangerous

offenders

161.735 Procedure for determining whether

offender dangerous

CROSS REFERENCES

Civilian political rights, effect of felony conviction, 137.230 and 137.260

Construction of statutes and general definitions, Ch 174Correctional institutions, Chs. 169, 179, 419, 420, 421Evidence in criminal actions generally, 136 415 to

136.440

Post - conviction relief, 138.510 to 138.680

Program for persons convicted of driving under influenceof alcohol; crimes committed while intoxicated, 430 850 to 430.880

Violation of county ordinances, penalties, 203.065

161.045

Conviction does not cause forfeiture of estate, Costt. Art. I, §25

C

CROSS REFERENCES

Forfeiture of vehicles in certain cases, 133.460

161.085 to 161. 125Ex -post facto law prohibited, Const. Art I, §21Militiamen on active duty, criminal liability, 399 225

Definitions, 430.405

161. 125

1415

161.385

Meetings of governing bodies to be open to public, exceptions, 192.690

161. 505 to 161.585

County law, offense, 203.810Cruel and unusual punishments, Const Art I, §16Juvenile court judgment not a criminal conviction,

419.543

1416

GENERAL PROVISIONS

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. 295 to

161. 380, 161.405 to 161. 485, 161.505 to

161. 585, 161.605 to 161. 685, 161.705 to

161.735, 162.005, 162.015 to 162.035, 162.055to 162. 115, 162. 135 to 162.205, 162.225 to162.375, 162.405 to 162.425, 162.465, 163.005, 163. 115, 162. 125 to 163. 145, 163. 165 to

163.205, 163. 215 to 163.257, 163.275, 163.285, 163.305 to 163.475, 163.505 to 163.575,

163.605, 164.005, 164.015 to 164.135, 164.205to 164.255, 164.305 to 164.365, 164.395 to

164.415, 164.805, 165.002 to 165.022, 165.032to 165.070, 165.075 to 165. 109, 165.805,

166.005 to 166.095, 167.002 to 167.027,

167.060 to 167. 100, 167. 117, 167. 122 to

167. 162, 167.202 to 167.252, 167. 810, 167.820and 167.850 shall be known and maybe citedas Oregon Criminal Code of 1971. 1971 c.743 §11

161.010 [Repealed by 1971 c.743 §4321

161.015 General definitions. As used inchapter 743, Oregon Laws 1971, and ORS166.635, unless the context requires other- wise:

1) " Dangerous weapon" means any in- strument, article or substance which under

the circumstances in which it is used, attempt- ed to be used or threatened to be used, isreadily capable of causing death or seriousphysical injury.

2) " Deadly weapon" means any instru- ment, article or substance specifically de- signed for and presently capable of causingdeath or serious physical injury.

3) " Deadly physical force" means physi- cal force that under the circumstances inwhich it is used is readily capable of causingdeath or serious physical injury.

4) " Peace officer" means a sheriff, con-

stable, marshal, municipal policeman or

member of the Oregon State Police and such

other persons as may be designated by law. 5) " Person" means a human being and,

where appropriate, a public or private corpora-

tion, an unincorporated association, a partner-

ship, a government or a governmental instru- mentality.

6) " Physical injury" means impairment

of physical condition or substantial pain.

7) " Serious physical injury" means physi- cal injury which creates a substantial risk ofdeath or which causes serious and protracted

disfigurement, protracted impairment of

1417

health or protracted loss or impairment of thefunction of any bodily organ.

8) " Possess" means to have physical

possession or otherwise to exercise dominionor control over property.

9) " Public place" means a place to whichthe general public has access and includes, butis not limited to, hallways, lobbies and otherparts of apartment houses and hotels notconstituting rooms or apartments designed foractual residence, and highways, streets,

schools, places of amusement, parks, play- grounds and premises used in connection withpublic passenger transportation. 1971 c.743 § 3; 1973 c. 139 § 11

Note: The Legislative Counsel has not, pursuant to173. 160, undertaken to substitute specific ORS referencesfor the words " this Act" in ORS chapter 161 Chapter743, Oregon Laws 1971, enacted into law and amendedthe ORS sections which may be found by referring to the1971 Comparative Section Table located following theIndex in volume 6 of Oregon Revised Statues ( 1971Replacement Parts)

161.020 [ Amended by 1967 c.372 § 9, repealed by1971 c 743 § 4321

161.025 Purposes; principles of con- struction. ( 1) The general purposes of chap- ter 743, Oregon Laws 1971, are:

a) To ensure the public safety by prevent- ing the commission of offenses through thedeterrent influence of the sentences author- ized, the correction and rehabilitation of thoseconvicted, and their confinement when re- quired in the interests of public protection.

b) To forbid and prevent conduct thatunjustifiably and inexcusably inflicts or

threatens substantial harm to individual orpublic interests.

c) To give fair warning of the nature ofthe conduct declared to constitute an offenseand of the sentences authorized upon convic-

tion.

d) To define the act or omission and theaccompanying mental state that constituteeach offense and limit the condemnation ofconduct as criminal when it iwwithout fault.

e) To differentiate on reasonable groundsbetween serious and minor offenses.

f) To prescribe penalties which are pro- portionate to the seriousness of offenses and

which permit recognition of differences inrehabilitation possibilities among individualoffenders.

g) To safeguard offenders against exces- sive, disproportionate or arbitrary punish- ment.

1418 CRIMES AND PUIVISEMMNTS

2) The rule that a penal statute is to bestrictly construed shall not apply to chapter743, Oregon Laws 1971, or any of its provi- sions. Chapter 743, Oregon Laws 1971, shallbe construed according to the fair import of itsterms, to promote justice and to effect thepurposes stated in subsection ( 1) of this sec- tion. 1971 c.743 §2]

Note: See note under 161. 015.

161.030 [Amended by 1955 c.660 §20, 1967 c 372 § 10; repealed by 1971 c 743 §4321

161.035 Application of CriminalCode. ( 1) Chapter 743, Oregon Laws 1971, shall govern the construction of and punish- ment for any offense defined in chapter 743, Oregon Laws 1971, and committed after

January 1, 1972, as well as the constructionand application of any defense to a prosecu- tion for such an offense.

2) Except as otherwise expressly provid- ed, or unless the context requires otherwise, the provisions of chapter 743, Oregon Laws1971, shall govern the construction of andpunishment for any offense defined outsidechapter 743, Oregon Laws 1971, and commit- ted after January 1, 1972, as well as theconstruction and application of any defense toa prosecution for such an offense.

3) Chapter 743, Oregon Laws 1971, shallnot apply to or govern the construction of andpunishment for any offense committed beforeJanuary 1, 1972, or the construction andapplication of any defense to a prosecution forsuch an offense. Such an offense shall beconstrued and punished according to the lawexisting at the time of the commission of theoffense in the same manner as if chapter 743, Oregon Laws 1971, had not been enacted.

4) When all or part of a criminal statuteis amended or repealed, the criminal statuteor part thereof so amended or repealed re- mains in force for the purpose of authorizingthe accusation, prosecution, conviction andPunishment of h person who violated thestatute or part thereof before the effectivedate of the amending or repealing Act. 1971 c.743 §51

Note: See note under 161 015

161.040 [Repealed by 1971 c.743 §4321

161.045 Limits on application. ( 1)

Except as otherwise expressly provided, theprocedure governing the accusation, prosecu- tion, conviction and punishment of offenders

and offenses is not regulated by chapter 743, Oregon Laws 1971, but by the criminal proce- dure statutes.

2) Chapter 743, Oregon Laws 1971, doesnot affect any power conferred by law upon acourt - martial or other military authority orofficer to prosecute and punish conduct andoffenders violating military codes or laws.

3) Chapter 743, Oregon Laws 1971, doesnot bar, suspend or otherwise affect any rightor liability to damages, penalty, forfeiture orother remedy authorized by law to be re- covered or enforced in a civil action, regard- less of whether the conduct involved in theproceeding constitutes an offense defined inchapter 743, Oregon Laws 1971.

4) No conviction of a person for an of- fense works a forfeiture of his property, except in cases where a forfeiture is expresslyprovided by law. 1971 c 743 §61

Note: See note under 161. 015

161. 050 [Repealed by 1971 c 743 §4321

161.055 ` Defense" and ` raised bydefendant" defined; burden of proof. ( 1)

When a " defense," other than an " affirmativedefense" as defined in subsection ( 2) of thissection, is raised at a trial, the state has theburden of disproving the defense beyond areasonable doubt.

2) When a defense, declared to be anaffirmative defense" by chapter 743, Oregon

Laws 1971, is raised at a trial, the defendanthas the burden of proving the defense by apreponderance of the evidence.

3) The state is not required to negate adefense as defined in subsection ( 1) of thissection unless it is raised by the defendant. Raised by the defendant" means either notice

in writing to the state before commencementof trial or affirmative evidence by a defensewitness in the defendant's case in chief. 1971 c 743 §41

Note: See note under 161015.

161.060 [Repealed by 1971 c 743 §4321

161.070 [Repealed by 1971 c.743 § 4321

161.075 [ 1965 c.516 §l, repealed by 1971 c. 743 §4321

161.080 [Repealed by 1971 c.743 §4321

C

GENERAL PROVISIONS

CRIIVIINAL LIABILITY

161. 085 Definitions with respect toculpability. As used in chapter 743, OregonLaws 1971, and ORS 166.635, unless the

context requires otherwise:

1) " Act" means a bodily movement. 2) "Voluntary act" means a bodily move-

ment performed consciously and includes theconscious possession or control of property.

3) " Omission" means a failure to performan act the performance of which is required bylaw.

4) " Conduct" means an act or omission

and its accompanying mental state.

5) " To act" means either to perform anact or to omit to perform an act.

6) " Culpable mental state" means inten-

tionally, knowingly, recklessly or with crimi- nal negligence as these terms are defined insubsections (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 inthe conduct so described.

8) " Knowingly" or " with knowledge,"

when used with respect to conduct or to acircumstance described by a statute definingan offense, means that a person acts with anawareness that his conduct is of a nature sodescribed or that a circumstance so describedexists.

9) " Recklessly," when used with respect

to a result or to a circumstance described by astatute defining an offense, means that aperson is aware of and consciously disregardsa substantial and unjustifiable risk that theresult will occur or that the circumstanceexists. The risk must be of such nature anddegree that disregard thereof constitutes agross deviation from the standard of care thata reasonable person would observe in thesituation.

10) " Criminal negligence" or " criminallynegligent," when used with respect to a resultor to a circumstance described by a statutedefining an offense, means that a person failsto be aware of a substantial and unjustifiablerisk that the result will occur or that thecircumstance exists. The risk must be of suchnature and degree that the failure to be awareof it constitutes a gross deviation from thestandard of care that a reasonable person

would observe in the situation. 1971 c 743 §7; 1973 c. 139 §21

Note: See note under 161.015.

1419

161.090 [ Amended by 1967 c.372 § 11; repealed by1971 c.743 § 4321

161.095 Requirements of culpability. 1) The minimal requirement for criminal

liability is the performance by a person ofconduct which includes a voluntary act or theomission to perform an act which he is capableof performing.

2) Except as provided in ORS 161. 105, aperson is not guilty of an offense unless heacts with a culpable mental state with respect

to each material element of the offense thatnecessarily requires a culpable mental state. 1971 c 743 §81

161. 100 [Repealed by 1971 c.743 §4321

161. 105 Culpability requirements

inapplicable to certain violations and of-

fenses. ( 1) Notwithstanding ORS 161. 095, aculpable mental state is not required if:

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

b) An offense defined by a statute outsidethe Oregon Criminal Code clearly indicates alegislative intent to dispense with any culpa- ble mental state requirement for the offenseor for any material element thereof.

2) Notwithstanding any other existinglaw, and unless a statute enacted after Janu- ary 1, 1972, otherwise provides, an offensedefined by a statute outside the Oregon Crimi- nal Code that requires no culpable mental

state constitutes a violation.

3) Although an offense defined by astatute outside the Oregon Criminal Coderequires no culpable mental state with respect

to one or more of its material elements, theculpable commission of the offense may bealleged and proved, in which case criminalnegligence constitutes sufficient culpability,

and the classification of the offense and theauthorized sentence shall be determined byORS 161. 505 to 161.655. 1971 c.743 §91

161. 110 [Repealed by 1971 c.743 §4321

161. 115 Construction of statutes with

respect to culpability. (1) If a statute defin- ing an offense prescribes a culpable mentalstate but does not specify the element towhich it applies, the prescribed culpable

mental state applies to each material elementof the offense that necessarily requires aculpable mental state.

1420 CRIMES AND PUNISHMENTS

2) Except as provided in ORS 161. 105, ifa statute defining an offense does not pre- scribe a culpable mental state, culpability isnonetheless required and is established only ifa person acts intentionally, knowingly, reck- lessly or with criminal negligence.

3) If the definition of an offense pre- scribes criminal negligence as the culpablemental state, it is also established if a personacts intentionally, knowingly or recklessly. When recklessness suffices to establish aculpable mental state, it is also established ifa person acts intentionally or knowingly. When acting knowingly suffices to establish aculpable mental state, it is also established ifa person acts intentionally.

4) Knowledge that conduct constitutes anoffense, or knowledge of the existence, mean- ing or application of the statute defining anoffense, is not an element of an offense unlessthe statute clearly so provides. 1971 c 743 § 101

161. 120 [ Repealed by 1971 c. 743 §4321

161. 125 Intoxication; drug use or de- pendence as defense. ( 1) Drug use, depend- ence on drugs or voluntary intoxication shallnot, as such, constitute a defense to a criminalcharge, but in any prosecution for an offense, evidence that the defendant used drugs, orwas dependent on drugs, or was intoxicatedmay be offered by the defendant whenever itis relevant to negative an element of thecrime charged.

2) When recklessness establishes anelement of the offense, if the defendant, dueto drug use, dependence on drugs or voluntaryintoxication, is unaware of a risk of which hewould have been aware had he been notintoxicated, not using drugs, or not drugdependent, such unawareness is immaterial. 1971 c 743 §11; 1973 c 697 § 131

PARTIES TO CRIME

161. 150 Criminal liability described. A person is guilty of a crime if it is committedby his own conduct or by the conduct of anoth- er person for which he is criminally liable, orboth. 1971 e. 743 § 121

161. 155 Criminal liability for conductof another. A person is criminally liable forthe conduct of another person constituting acrime if:

1) He is made criminally liable by thestatute defining the crime; or

2) With the intent to promote or facilitatethe commission of the crime he:

a) Solicits or commands such other personto commit the crime; or

b) Aids or abets or agrees or attempts toaid or abet such other person in planning orcommitting the crime; or

c) Having a legal duty to prevent thecommission of the crime, fails to make aneffort he is legally required to make. 1971 c 743 § 13]

161. 160 Defense to criminal liabilityfor conduct of another. In any prosecutionfor a crime in which criminal liability is basedupon the conduct of another person pursuantto ORS 161. 155, it is no defense that:

1) Such other person has not been prose- cuted for or convicted of any crime based uponthe conduct in question or has been convictedof a different crime or degree of crime; or

2) The crime, as defined, can be commit- ted only by a particular class or classes ofpersons to which the defendant does not

belong, and he is for that reason legallyincapable of committing the crime in anindividual capacity. 1971 c 743 § 14]

161. 165 Exemptions to criminal liabil- ity for conduct of another. Except as other- wise provided by the statute defining thecrime, a person is not criminally liable forconduct of another constituting a crime if:

1) He is a victim of that crime; or

2) The crime is so defined that his con- duct is necessarily incidental thereto. 1971 c.743 § 151

161. 170 Criminal liability of corpora- tions. ( 1) A corporation is guilty of an offenseif:

a) The conduct constituting the offense isengaged in by an agent of the corporationwhile acting within the scope of his employ- ment and in behalf of the corporation and theoffense is a misdemeanor or a violation, or theoffense is one defined by a statute that clearlyindicates a legislative intent to impose crimi- nal liability on a corporation; or

b) The conduct constituting the offenseconsists of an omission to discharge a specificduty of affirmative performance imposed oncorporations by law; or

c) The conduct constituting the offense isengaged in, authorized, solicited, requested, commanded or knowingly tolerated by theboard of directors or by a high managerial

E

GENERAL PROVISIONS

agent acting within the scope of his employ- ment and in behalf of the corporation.

2) As used in this section:

a) " Agent" means any director, officer oremploye of a corporation, or any other person

who is authorized to act in behalf of thecorporation.

b) " High managerial agent" means an

officer of a corporation who exercises author-

ity with respect to the formulation of corpo- rate policy or the supervision in a managerialcapacity of subordinate employes, or any otheragent in a position of comparable authority. 1971 c.743 § 161

161. 175 Criminal liability of an indi- vidual for corporate conduct. A' person iscriminally liable for conduct constituting anoffense which he performs or causes to beperformed in the name of or in behalf of acorporation to the same extent as if suchconduct were performed in his own name orbehalf. 1971 c 743 § 171

JUSTIFICATION

161. 190 Justification as a defense. Inany prosecution for an offense, justification, as defined in ORS 161. 195 to 161. 275, is adefense. 1971 043 §181

161. 195 " Justification" described (1)

Unless inconsistent with other provisions ofchapter 743, Oregon Laws 1971, definingjustifiable use of physical force, or with someother provision of law, conduct which wouldotherwise constitute an offense is justifiableand not criminal when it is required or au- thorized by law or by a judicial decree or isperformed by a public servant in the reason- able exercise of his official powers, duties orfunctions.

2) As used in subsection ( 1) of this sec- tion, " laws and judicial decrees" include butare not limited to:

a) Laws defining duties and functions ofpublic servants;

b) Laws defining duties of private citizensto assist public servants in the performance ofcertain of their functions;

c) Laws governing the execution of legalpiss;

d) Laws governing the military servicesand conduct of war; and

e) Judgments and orders of courts. 1971 c.743 § 191

1421

161.200 Choice of evils. ( 1) Unless

inconsistent with other provisions of chapter

743, Oregon Laws 1971, defining justifiableuse of physical force, or with some otherprovision of law, conduct which would other- wise constitute an offense is justifiable andnot criminal when:

a) That conduct is necessary as an emer- gency measure to avoid an imminent public orprivate injury; and

b) The threatened injury is of such gravi- ty that, according to ordinary standards ofintelligence and morality, the desirability andurgency of avoiding the injury clearly out- weigh the desirability of avoiding the injurysought to be prevented by the statute definingthe offense in issue.

2) The necessity and justifiability ofconduct under subsection ( 1) of this sectionshall not rest upon considerations pertaining

only to the morality and advisability of thestatute, either in its general application orwith respect to its application to a particular

class of cases arising thereunder. 1971 c.743 §201

Note: See note under 161. 015

161.205 Use of physical force general- ly. The use of physical force upon anotherperson 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 usereasonable physical force upon such minor orincompetent person when and to the extent hereasonably believes it necessary to maintaindiscipline or to promote the welfare of theminor or incompetent person. A teacher mayuse reasonable physical force upon a studentwhen and to the extent the teacher reasonably

believes it necessary to maintain order in theschool or classroom.

2) An authorized official of a jail, prisonor correctional facility may use physical forcewhen and to the extent that he reasonablybelieves it necessary to maintain order anddiscipline or as is authorized by law.

3) A person responsible for the mainte- nance of order in a common carrier of passen-

gers, or a person acting under his direction, may use physical force when and to the extentthat he reasonably believes it necessary tomaintain order, but he may use deadly physi- cal force only when he reasonably believes itnecessary to prevent death or serious physicalinjury.

1422 CREWES AND PUNIS)E mmNTS

4) A person acting under a reasonablebelief that another person is about to commitsuicide or to inflict serious physical injuryupon himself may use physical force upon thatperson to the extent that he reasonably be- lieves it necessary to thwart the result.

5) A person may use physical force uponanother person in defending himself or a thirdperson, in defending property, in making anarrest or in preventing an escape, as hereafterprescribed in chapter 743, Oregon Laws 1971. 1971 c. 743 § 211

Note: See note under 161 015

161.209 Use of physical force in de- fense of a person. Except as provided in ORS161.215 and 161. 219, a person is justified inusing physical force upon another person todefend himself or a third person from what hereasonably believes to be the use or imminentuse of unlawful physical force, and he mayuse a degree of force which he reasonablybelieves to be necessary for the purpose. 1971 c 743 §221

161.210 [ Repealed by 1971 c. 743 § 4321

161.215 Limitations on use of physi- cal force in defense of a person.

Notvdthstanding ORS 161.209, a person is notjustified in using physical force upon anotherperson if:

1) With intent to cause physical injury ordeath to another person, he provokes the useof unlawful physical force by that person; or

2) He is the initial aggressor, except thathis use of physical force upon another personunder such circumstances is justifible if hewithdraws from the encounter and effectivelycommunicates to the other person his intent todo so, but the latter nevertheless continues orthreatens to continue the use of unlawfulphysical force; or

3) The physical force involved is theproduct of a combat by agreement not specifi- cally authorized by law. 1971 c.743 § 241

161.219 Iamitations on use of deadlyphysical force in defense of a person. Notwithstanding the provisions of ORS

161. 209, a person is not justified in usingdeadly physical force upon another personunless he reasonably believes that the otherperson is:

1) Committing or attempting to commit afelony involving the use or threatened immi- nent use of physical force against a person; or

2) Committing or attempting to commit aburglary in a dwelling; or

3) Using or about to use unlawful deadlyphysical force against a person. 1971 c.743 §231

161.220 [ Repealed by 1971 c. 743 §432]

161.225 Use of physical force in de- fense of premises. ( 1) A person in lawfulpossession or control of premises is justified inusing physical force upon another person

when and to the extent that he reasonablybelieves it necessary to prevent or terminatewhat he reasonably believes to be the commis- sion or attempted commission of a criminal

trespass by the other person in or upon thepremises.

2) A person may use deadly physical forceunder the circumstances set forth in subsec- tion (1) of this section only:

a) In defense of a person as provided inORS 161. 219; or

b) When he reasonably believes it neces- sary to prevent the commission of arson or afelony by force and violence by the trespasser.

3) As used in subsection ( 1) and para- graph ( a) of subsection ( 2) of this section,

premises" includes any building as defined inORS 164.205 and any real property. As usedin paragraph ( b) of subsection ( 2) of this

section, "premises" includes any building. 1971 c 743 §251

161.229 Use of physical force in de- fense of property. A person is justified inusing physical force, other than deadly physi- cal force, upon another person when and tothe extent that he reasonably believes it to benecessary to prevent or terminate the commis- sion or attempted commission by the otherperson of theft or criminal mischief of proper-

1971 c. 743 § 26]

161230 [Repealed by 1971 c 743 §4321

161.235 Use of physical force in mak- ing an arrest or in preventing an escape. Except as provided in ORS 161. 239, a peaceofficer is justified in using physical force uponanother person only when and to the extentthat he reasonably believes it necessary:

1) To make an arrest or to prevent theescape from custody of an arrested personunless he knows that the arrest is unlawful; or

2) To defend himself or a third personfrom what he reasonably believes to be theuse or imminent use of physical force whilemaking or attempting to make an arrest or

GENERAL PROVISIONS 1423

while preventing or attempting to prevent an the arrest is unlawful and is known by the

escape. officer to be unlawful.

1971 c. 743 §271 [ 1971 c 743 §291

161.239 Use of deadly physical forcein making an arrest or in preventing anescape. (1) Notwithstanding the provisions ofORS 161. 235, a peace officer may use deadlyphysical force only when he reasonably be- lieves that:

a) The crime committed by the personwas a felony or an attempt to commit a felonyinvolving the use or threatened imminent useof physical force against a person; or

b) The crime committed by the personwas kidnapping, arson, escape in the firstdegree, burglary in the first degree or anyattempt to commit such a crime; or

c) Regardless of the particular offensewhich is the subject of the arrest or attempted

escape, the use of deadly physical force isnecessary to defend the peace officer or anoth- er person from the use or threatened immi- nent use of deadly physical force; or

d) The crime committed by the personwas a felony or an attempt to commit a felonyand under the totality of the circumstancesexisting at the time and place, the use of suchforce is necessary; or

e) The officer's life or personal safety isendangered in the particular circumstances

involved.

2) Nothing in subsection ( 1) of this sec- tion constitutes justification for reckless orcriminally negligent conduct by a peaceofficer amounting to an offense against orwith respect to innocent persons whom he isnot seeking to arrest or retain in custody. 1971 c 743 § 281

161240 [Repealed by 1971 c 743 §4321

161.245 ` Reasonable belief" de-

scribed; status of unlawful arrest. (1) For

the purposes of ORS 161. 235 and 161. 239, areasonable belief that a person has committed

an offense means a reasonable belief in factsor circumstances which if true would in lawconstitute an offense. If the believed facts orcircumstances would not in law constitute anoffense, an erroneous though not unreasona- ble belief that the law is otherwise does notrender justifiable the use of force to make anarrest or to prevent an escape from custody.

2) A peace officer who is making anarrest is justified in using the physical forceprescribed in ORS 161. 235 and 161.239 unless

161.249 Use of physical force by pri- vate person assisting an arrest. (1) Except

as provided in subsection (2) of this section, aperson who has been directed by a peaceofficer to assist him to make an arrest or toprevent an escape from custody is justified inusing physical force when and to the extentthat he reasonably believes that force to benecessary to carry out the peace officer'sdirection.

2) A person who has been directed toassist a peace officer under circumstances

specified in subsection ( 1) of this section may

use deadly physical force to make an arrest orto prevent an escape only when:

a) He reasonably believes that force to benecessary to defend himself or a third personfrom what he reasonably believes to be theuse or imminent use of deadly physical force; or

b) He is directed or authorized by thepeace officer to use deadly physical forceunless he knows that the peace officer himselfis not authorized to use deadly physical forceunder the circumstances.

1971 c 743 §301

161. 250 [Repealed by 1971 c 743 64321

161.255 Use of physical force by pri- vate person making citizen's arrest. ( 1)

Except as provided in subsection ( 2) of thissection, a private person acting on his ownaccount is justified in using physical forceupon another person when and to the extent

that he reasonably believes it necessary tomake an arrest or to prevent the escape fromcustody of an arrested person whom he hasarrested under ORS 133. 225.

2) A private person acting under thecircumstances prescribed in subsection ( 1) of

this section is justified in using deadly physi- cal force only when he reasonably believes itnecessary to defend himself or a third personfrom what he reasonably believes to be theuse or imminent use of deadly physical force. 1971 c 743 §31, 1973 c 836 § 3391

161.260 Use of physical force in re-

sisting arrest prohibited. A person may notuse physical force to resist an arrest by apeace officer who is known or reasonablyappears to be a peace officer, whether thearrest is lawful or unlawful. 1971 c 743 §321

1424 CRIMES AND PUNISEMIENTS

161.265 Use of physical force to pre- vent escape. A guard or other peace officeremployed in a correctional facility, as thatterm is defined in ORS 162. 135, is justified inusing physical force including deadly physicalforce, when and to the extent that he reason- ably believes it necessary to prevent theescape of a prisoner from a correctional facili- ty. 1971 c 743 §33]

161. 270 Duress. ( 1) The commission ofacts which would otherwise constitute anoffense, other than murder, is not criminal ifthe actor engaged in the proscribed conductbecause he was coerced to do so by the use orthreatened use of unlawful physical forceupon him or a third person, which force orthreatened force was of such nature or degreeto overcome earnest resistance.

2) Duress is not a defense if a personintentionally or recklessly places himself in asituation in which it is probable that he willbe subjected to duress.

3) It is not a defense that a woman actedon the command of her husband, unless sheacted under such coercion as would establish adefense under subsection ( 1) of this section. 1971 c 743 §341

161. 275 Entrapment. ( 1) The commis- sion of acts which would otherwise constitutean offense is not criminal if the actor engagedin the proscribed conduct because he wasinduced to do so by a law enforcement official, or by a person acting in cooperation with alaw enforcement official, for the purpose ofobtaining evidence to be used against theactor in a criminal prosecution.

2) As used in this section, " induced" means that the actor did not contemplate andwould not otherwise have engaged in theproscribed conduct. Merely affording the actoran opportunity to commit an offense does notconstitute entrapment.

1971 c 743 § 351

RESPONSIBILITY,

161.295 ' Effect of mental disease ordefect. ( 1) A person is not responsible forcriminal conduct if at the time of such conductas a result of mental disease or defect he lackssubstantial capacity either to appreciate thecriminality of his conduct or to conform hisconduct to the requirements of law.

2) As used in chapter 743, Oregon Laws1971, the terms " mental disease or defect" donot include an abnormality manifested only

by repeated criminal or otherwise antisocialconduct.

11971 c 743 §36]

161. 300 Evidence of disease or defectadmissible as to intent. Evidence that theactor suffered from a mental disease or defectis admissible whenever it is relevant to theissue of whether he did or did not have theintent which is an element of the crime. 1971 c 743 §371

161.305 Disease or defect as affirma- tive defense. Mental disease or defect exclud- ing responsibility under ORS 161. 295 orpartial responsibility under ORS 161. 300 is anaffirmative defense. 1971 c 743 §381

161.309 Notice prerequisite to de- fense; content. ( 1) No evidence may beintroduced by the defendant on the issue ofcriminal responsibility as defined in ORS161. 295, unless he gives notice of his intent todo so in the manner provided in subsection (3) of this section.

2) The defendant may not introduce inhis case in chief expert testimony regardingpartial responsibility under ORS 161. 300unless he gives notice of his intent to do so inthe manner provided in subsection ( 3) of thissection.

3) A defendant who is required undersubsection ( 1) or ( 2) of this section to givenotice shall file a written notice of his purposeat the time he pleads not guilty. The defend- ant may file such notice at any time after hepleads but before trial when just cause forfailure to file the notice at the time of makinghis plea is made to appear to the satisfactionof the court. If the defendant fails to file anysuch notice, he shall not be entitled to intro- duce evidence for the establishment of adefense under ORS 161. 295 or 161.300 unlessthe court, in its discretion, permits such

evidence to be introduced where just cause forfailure to file the notice is made to appear. 1971 c 743 § §39, 40, 411

161.310 [Repealed by 1971 c 743 § 4321

161.315 Right of state to obtain men- tal examination of defendant; limitations. Upon filing of notice or the introduction ofevidence by the defendant as provided insubsection ( 3) of ORS 161. 309, the state shallhave the right to have at least one psychia- trist or licensed psychologist of its selectionexamine the defendant. The state shall filenotice with the court of its intention to havethe defendant examined. Upon filing of thenotice, the court, in its discretion, may order

E

J

GENERAL PROVISIONS

the defendant committed to a state institutionor any other suitable facility for observationand examination as it may designate for aperiod not to exceed 30 days. If the defendantobjects to the examiner chosen by the state, the court for good cause shown may direct thestate to select a different examiner. f197 c 743 §42; 1977 c 380 §31

161.319 Form of verdict on acquittalon grounds of disease or defect. When thedefendant is found not responsible due tomental disease or defect, as defined in ORS161. 295, the verdict and judgment shall sostate.

1971 c 743 §43, 1977 c 380 §41

161.320 [Repealed by 1971 c 743 §4321

161.325 Entry of order finding de- fendant not responsible on grounds of

disease or defect. After entry of judgment ofnot responsible due to mental disease ordefect, the court shall, on the basis of theevidence given at the trial or at a separate

hearing, if requested by either party, make anorder as provided in ORS 161. 329, 161. 336 or161. 341, whichever is appropriate. If the courtmakes an order as provided in ORS 161. 336, itshall also determine on the record what of- fense the person would have been convicted ofhad the person been found responsible. 1971 c 743 §44, 1977 c 380 §51

161.329 Order of conditional release.

If the court finds that the person is no longeraffected by mental disease or defect, or, if soaffected, that he no longer presents a substan- tial danger to himself or others and is not inneed of care, supervision or treatment, thecourt shall order him discharged from custody. 1971 c 743 §45; 1977 c 380 §61

161.330 [Repealed by 1971 c 743 §4321

161.332 Definition of conditional re-

lease. As used in ORS 137.540, 161.315 to161. 351, 161. 385 to 161. 395, 192.690 and

428.210, " conditional release" includes, but is

not limited to, the monitoring of mental andphysical health treatment. 1977 c 380 §11

Note: 161 332 was enacted into law by the Legisla- tive Assembly but was not added to or made a part ofORS chapter 161 or any series therein by legislativeaction See the Preface to Oregon Revised Statutes forfurther explanation

161.335 [ 1971 c 743 § 46, 1973 c 137 § 1; 1975 c.3801; Repealed by 1977 c 380 § 10 ( 161 336 enacted in lieu of

161 335)]

161.336 Order giving jurisdiction toPsychiatric Security Review Board; boarddetermination and designation; supervi-

1425

sion by board; application for modifica- tion of board order. (1) Following the entryof a judgment pursuant to ORS 161. 319, if thecourt finds by a preponderance of the evidencethat the person is affected by mental diseaseor defect and that he presents a substantialdanger to himself or others that requires thatthe person be committed to a state mental

hospital designated by the Mental HealthDivision or conditionally released, the courtshall order him placed under the jurisdictionof the Psychiatric Security Review Board forcare and treatment. The period of jurisdictionof the board shall be equal to the maximumsentence the court finds the person could havereceived had he been found responsible. Theboard shall hold a hearing within 20 days todetermine whether the person should becommitted or conditionally released. Pendinghearing before the board, the person may becommitted to a state hospital designated bythe Mental Health Division.

2) If the board determines that the personpresents a substantial danger to himself orothers but that he can be adequately con- trolled with supervision and treatment if he isconditionally released and that necessarysupervision and treatment is available, the

board may order him conditionally released, subject to those supervisory orders of theboard as are in the best interests of justice, the protection of society and the welfare of theperson. The board may designate any personor state, county or local agency the boardconsiders capable of supervising the personupon release, subject to those conditions as theboard directs in the order for conditionalrelease. Prior to the designation, the boardshall notify the person or agency to whomconditional release is contemplated and pro-

vide the person or agency an opportunity to beheard before the board. After receiving anorder entered under this section, the person or

agency designated shall assume supervision ofthe person pursuant to the direction of theboard.

3) Conditions of release contained inorders entered under this section may bemodified from time to time and conditional

releases may be terminated by order of theboard as provided in ORS 161.351.

4) For purposes of this section, a person

affected by a mental disease or defect . in astate of remission is considered to have amental disease or defect requiring supervisionwhen his disease may, with reasonable medi- cal probability, occasionally become activeand, when active, render him a danger tohimself or others. The person may be contin-

1426 CRIMS AND PUNISHMENTS

ued on conditional release by the board as any person appearing before the board pur- provided in this section. suant to ORS 161.346.

5) ( a) As a condition of release, the board

may require the person to report to any stateor local mental health facility for evaluation. Whenever medical, psychiatric or psychologi- cal treatment is recommended, the board mayorder the person, as a condition of release, tocooperate with and accept the treatment from

the facility.

b) The facility to which the person hasbeen referred for evaluation shall perform theevaluation and submit a written report of its

findings to the board. If the facility finds thattreatment of the person is appropriate, it shallinclude its recommendations for treatment inthe report to the board.

c) Whenever treatment is provided by thefacility, it shall furnish reports to the boardon a regular basis concerning the progress ofthe person.

d) Copies of all reports submitted to theboard pursuant to this section shall be fur- nished to the person and his counsel. Theconfidentiality of these reports shall be deter- mined pursuant to ORS 192.500.

e) The facility shall comply with anyother conditions of release prescribed by orderof the board.

6) If at any time while the person isunder the jurisdiction of the board it appearsto the board or its chairman that the personhas violated the terms of the conditionalrelease or that the mental health of the indi- vidual has changed, the board or its chairmanmay order the person returned to a statehospital designated by the Mental HealthDivision for evaluation or treatment. Within20 days of a revocation of a conditional re- lease, the board shall conduct a hearing. Notice of the hearing shall be given to theperson, the court and the district attorneyfrom the committing county of the time andplace of the hearing. The board may continuethe person on conditional release or, if it findsby a preponderance of the evidence that theperson is affected by mental disease or defectand presents a substantial danger to himself

or others and cannot be adequately controlledif conditional release is continued, it mayorder the person committed to a state hospitaldesignated by the Mental Health Division. The state must prove by a preponderance ofthe evidence the person's unfitness for condi-

tional release. A person in custody pursuant tothis subsection shall have the same rights as

7) The community mental health pro- gram director, the director of the facilityproviding treatment to a person on conditionalrelease, any peace officer or any person re- sponsible for the supervision of a person onconditional release may take a person onconditional release into custody or requestthat the person be taken into custody if he hasreasonable cause to believe the person is asubstantial danger to himself or others be- cause of mental disease or defect and that theperson is in need of immediate care, custodyor treatment. Any person taken into custodypursuant to this subsection shall immediatelybe transported to a state hospital designatedby the Mental Health Division. A person

taken into custody under this subsection shallhave the same rights as any person appearingbefore the board pursuant to ORS 161. 346.

8)(a) Any person conditionally releasedunder this section may apply to the board fordischarge from or modification of an order ofconditional release on the ground that he is no

longer affected by mental disease or defect or, if still so affected, he no longer presents asubstantial danger to himself or others and heno longer requires supervision, medication, care or treatment. Notice of the hearing on anapplication for discharge or modification of anorder of conditional release shall be made to

the district attorney and the court or depart- ment of the county of original commitment. The applicant must prove by a preponderanceof the evidence his fitness for discharge ormodification of the order of conditional re- lease. Applications by the person for dischargeor modification of conditional release shall not

be filed more often than once every sixmonths.

b) Upon application by any person oragency responsible for supervision or treat- ment pursuant to an order of conditional

release, the board shall conduct a hearing todetermine if the conditions of release shall becontinued, modified or terminated. The appli-

cation shall be accompanied by a report set- ting forth the facts supporting the application.

9) The total period of conditional releaseand commitment ordered pursuant to thissection shall not exceed the maximum sen- tence the person could have received had hebeen found responsible.

10) The board shall maintain and keepcurrent the medical, social and criminal

history of all persons committed to its jurisdic-

GENERAL PROVISIONS 1427

tion. The confidentiality of records main- presents a substantial danger to himself or to

tained by the board shall be determined others and whether the person could be ade- pursuant to ORS 192. 500. quately controlled' with treatment as a condi-

f 111) In determining whether a person

should be committed to a state hospital,

conditionally released or discharged, the boardshall have as its primary concern the protec- tion of society. 1977 c 380 § 11 ( enacted in lieu of 161 335)]

161. 340 [ 1971 c 743 § 47, 1975 c 380 § 2, repealed by1977 c 380 § 12 ( 161 341 enacted in lieu of 161 340)]

161.341 Order of commitment; appli-

cation for discharge or conditional re- lease. ( 1) If the board finds that the personpresents a substantial danger to himself orothers and that he is not a proper subject forconditional release, the board shall order himcommitted to a state hospital designated bythe Mental Health Division for custody, careand treatment. The period of commitment

ordered by the board shall not exceed themaximum sentence the person could havereceived had he been found responsible.

2) If at any time after the commitment ofa person to a state hospital designated by theMental Health Division under this section, thesuperintendent of the hospital is of the opin- ion that the person is no longer affected bymental disease or defect, or, if so affected, that he no longer presents a substantialdanger to himself or others or that the person

continues to be affected by mental disease ordefect and continues to be a danger to himselfor others, but that the person can be con- trolled with proper care, medication, supervi-

sion and treatment if conditionally released, the superintendent shall apply to the boardfor an order of discharge or conditional re- lease. The application shall be accompanied bya report setting forth the facts supporting theopinion of the superintendent. Within 30 daysof the hearing before the board, copies of thereport shall be sent to the district attorneyand the circuit court or department of the

county of original commitment. The districtattorney or circuit court or department of thecounty shall notify the board in writing ifthey wish to present evidence at the hearing.

3) The district attorney or circuit court ordepartment of the county from which theperson was committed may choose a psychia- trist or licensed psychologist to examine theperson prior to a decision by the board ondischarge or conditional release. The results ofthe examination shall be in writing and filedwith the board, and shall include, but need notbe limited to, an opinion as to the mentalcondition of the person, whether the person

L. on o re ease.

4) Any person who has been committed toa state hospital designated by the MentalHealth Division for custody, care and treat- ment or another person acting on his behalf, after the expiration of six months from thedate of the order of commitment, may apply tothe board for an order of discharge or condi- tional release upon the grounds:

a) That he is no longer affected by mentaldisease or defect;

b) If so affected, that he no longer

presents a substantial danger to himself orothers; or

c) That he continues to be affected by amental disease or defect and would continueto be a danger to himself or others withouttreatment, but he can be adequately con- trolled and given proper care and treatment ifplaced on conditional release.

5) When application is made under sub- section ( 4) of this section, the board shallrequire a report from the superintendent ofthe hospital which shall be prepared andtransmitted as provided in subsection ( 2) ofthis section. The applicant must prove by apreponderance of the evidence his fitness fordischarge under the standards of subsection

4) of this section. Applications for dischargeor conditional release under subsection ( 4) ofthis section shall not be filed more often thanonce every six months.

6) In no case shall a person be held pur- suant to this section for a period of time

exceeding two years without a hearing beforethe board to determine whether the personshould be conditionally released or discharged. 11977 c 380 §13 ( enacted in lieu of 161 340)]

161. 345 [ 1971 c 743 § 48, repealed by 1977 c 380 § 14161 346 enacted in lieu of 161 345)]

161.346 Hearings on discharge, con- ditional release, commitment or modifica- tion; psychiatric reports; notice of hear- ing; hearing rights. ( 1) The board shall

conduct a hearing upon any application fordischarge, conditional release, commitment ormodification filed pursuant to ORS 161. 336 or161. 341:

a) If the board finds that the person is nolonger affected by mental disease or defect, or, if so affected, that he no longer presents asubstantial danger to himself or others, theboard shall order him discharged from com- mitment or from conditional release.

1428 CRUAES AND PUNISEUKENTS

b) If the board finds that the person isstill affected by a mental disease or defect andis a substantial danger to himself or others, but can be controlled adequately if he isconditionally released with treatment as acondition of release, the board shall order himconditionally released as provided in ORS161.336.

c) If the board finds that the person hasnot recovered from his mental disease ordefect and is a substantial danger to himselfor others and cannot adequately be controlledif he is conditionally released on supervision, the board shall order him committed to orretained in a state hospital designated by theMental Health Division for care, custody andtreatment.

2) In any hearing under this section, theboard may appoint a psychiatrist or licensedpsychologist to examine the person and tosubmit a report to the board. Reports filedwith the board pursuant to the examinationshall include, but need not be limited to, anopinion as to the mental condition of theperson and whether the person presents asubstantial danger to himself or others, and

whether the person could be adequatelycontrolled with treatment as a condition of

release. To facilitate the examination of theperson, the board may order the person placedin the temporary custody of any state hospitalor other suitable facility.

3) The board may make the determina- tion regarding discharge or conditional releasebased upon the written reports submittedpursuant to this section. If any member of theboard desires further information from theexamining psychiatrist or licensed psycholo- gist who submitted the report, these persons

shall be summoned by the board to give testi- mony. The board shall consider all otherevidence regarding the person's mental condi- tion, including but not limited to the record oftrial, the information supplied by the districtattorney or the court or department of thecounty from which the person was committedor by any other interested party, including theperson. A written record shall be kept of allproceedings before the board.

4) The person about whom the hearing isbeing conducted shall be furnished withwritten notice of any hearing pending underthis section within a reasonable time prior tothe hearing. The notice shall include:

a) The time, place and location of thehearing.

b) The nature of the hearing and thespecific action for which a hearing has beenrequested.

c) A statement of the right to consultwith legal counsel, and if indigent, to havelegal counsel provided without cost.

d) A statement of the right to examine, prior to the hearing, all relevant information, documents and reports in the board's posses- sion.

5) At the hearing, the person subject tothe provisions of ORS 137.540, 161. 315 to161.351, 161. 385 to 161. 395, 192.690 and428.210 shall have the right:

a) To appear at all proceedings heldpursuant to this section, except board deliber- ations.

b) To cross - examine all witnesses givingtestimony at the hearing.

c) To subpena witnesses.

d) To be represented by legal counsel and, if indigent, to have counsel provided withoutcost.

1977 c 380 415 ( enacted in lieu of 161 345)]

161.350 [ 1971 c 743 449, 1975 c 380 § 3, repealed by1977 c 380 § 16 ( 161 351 enacted in lieu of 161 350)]

161.351 Discharge of person under

jurisdiction of Psychiatric Security Re- view Board; burden of proof; periodicreview of status; notices; challenge of sta-

tus determination. ( 1) Any person placedunder the jurisdiction of the PsychiatricSecurity Review Board pursuant to ORS161. 336 or 161. 341, shall be discharged at

such time as the board shall find by a prepon- derance of the evidence that the person is nolonger affected by mental disease or defect or, if he continues to be so affected, that he nolonger presents a substantial danger to him- self or others which requires regular medical

care, medication, supervision or treatment.

2) For purposes of this section, a personaffected by a mental disease or defect in astate of remission is considered to have amental disease or defect. A person whosemental disease or defect may, with reasonablemedical probability, occasionally becomeactive and when it becomes active will renderhim a danger to himself or others, shall not bedischarged. The state has the burden of prov- ing by a preponderance of the evidence thatthe person continues to be affected by mentaldisease or defect and he continues to be asubstantial danger to himself or others. Theperson shall continue under such supervision

is

GENERAL PROVISIONS

and treatment as the board deems necessaryto protect the person and others.

3) Any person who has been placed underthe jurisdiction of the board under an order ofcommitment to the Mental Health Division oran order of conditional release for a period of10 years shall be brought before the board forhearing within 30 days of the expiration ofthe 10 -year period. The board shall review theperson's status and determine whether heshould be discharged from the jurisdiction ofthe board.

4) If the person has been committed to a

state hospital designated by the MentalHealth Division, the superintendent of the

hospital shall notify the board and the com- mitting court or department of the expirationof the 10 -year period. The notice shall begiven at least 30 days prior to the expirationof the 10 -year period. After receiving thenotice, the board shall order a hearing.

5) The notice provided in subsection (4) ofthis section shall contain a recommendation

by the superintendent of the hospital either: a) That the person is still affected by a

mental disease or defect but is no longer asubstantial danger to himself or others and

should be discharged;

b) That the person continues to be affect-

ed by a mental disease or defect and is asubstantial danger to himself or others andshould continue in commitment; or

c) That the person is no longer affected bya mental disease or defect and should bedischarged.

6) If the recommendation of the superin- tendent of the hospital is that the personshould continue under the jurisdiction of theboard, the person seeking discharge has theburden at the hearing of proving by a prepon- derance of the evidence that he:

a) Is no longer affected by a mentaldisease or defect; or

b) If so affected, is no longer a substantialdanger to himself or others.

7) If the state wishes to challenge therecommendation of the superintendent of the

hospital for discharge, the state has the bur- den of proving by a preponderance of theevidence that the person seeking releasecontinues to be affected by a mental disease ordefect and is a substantial danger to himselfor others.

8) If the recommendation of the superin- tendent of the hospital is that the personshould continue in commitment, the superin-

1429

tendent shall notify in writing the board andthe circuit court or department and districtattorney of the county of the original commit- ment and request that commitment proceed-

ings be instituted as provided in ORS chapter426. 1977 c 380 § 17 ( enacted in lieu of 161 350)]

161.360 Mental disease or defect ex-

cluding fitness to proceed. ( 1) If, before or

during the trial in any criminal case, the courthas reason to doubt the defendant's fitness to

proceed by reason of incompetence, the courtmay order an examination in the mannerprovided in ORS 161.365.

2) A defendant may be found incompetentif, as a result of mental disease or defect, he isunable:

a) To understand the nature of the pro- ceedings against him; or

b) To assist and cooperate with his coun- sel; or

c) To participate in his defense. 1971 c 743 §501

161.365 Procedure for determiningissue of fitness to proceed. ( 1) Whenever

the court has reason to doubt the defendant'sfitness to proceed by reason of incompetenceas defined in ORS 161. 360, the court may callto its assistance in reaching its decision anywitness and may appoint a psychiatrist toexamine the defendant and advise the court.

2) If the court determines the assistanceof a psychiatrist would be helpful, the court

may order the defendant to be committed to astate mental hospital designated by the Men- tal Health Division for the purpose of anexamination for a period not exceeding 30days. The report of each examination shall

include, but is not necessarily limited to, thefollowing:

a) A description of the nature of theexamination;

b) A statement of the mental condition ofthe defendant; and

c) If the defendant suffers from a mentaldisease or defect, an opinion as to whether heis incompetent within the definition set out inORS 161. 360.

3) Except where the defendant and thecourt both request to the contrary, the reportshall not contain any findings or conclusionsas to whether the defendant as a result ofmental disease or defect was responsible forthe criminal act charged.

4) If the examination by the psychiatristcannot be conducted by reason of the unwill-

1430 CRIMES AND PUNISHIVIENTS

ingness of the defendant to participate there- in, the report shall so state and shall include, if possible, an opinion as to whether suchunwillingness of the defendant was the resultof mental disease or defect affecting hiscompetency to proceed.

5) The report of the examination shall befiled in triplicate with the clerk of the court, who shall cause copies to be delivered to thedistrict attorney and to counsel for defendant.

6) The court, when it has ordered a psy- chiatric examination, shall order the countywherein the original proceeding was com- menced to pay:

a) A reasonable fee if the examination ofthe defendant is conducted by a psychiatrist inprivate practice; and

b) All costs including transportation ofthe defendant if the examination is conductedby a psychiatrist in the employ of the MentalHealth Division or a community mentalhealth program established under ORS430.610 to 430.670. f 1971 c 743 §51, 1975 c.380 §41

161. 370 Determination of fitness; ef- fect of finding of unfitness; proceedings iffitness regained; pretrial objections bydefense counsel. ( 1) When the defendant'sfitness to proceed is drawn in question, theissue shall be determined by the court. Ifneither the prosecuting attorney nor counselfor the defendant contests the finding of thereport filed by a psychiatrist under ORS161. 365, the court may make the determina- tion on the basis of such report. If the findingis contested, the court shall hold a hearing onthe issue. If the report is received in evidenceupon such hearing, the party who contests thefinding thereof shall have the right to sum- mon and to cross - examine the psychiatrist orpsychiatrists who submitted the report and tooffer evidence upon the issue. Other evidenceregarding the defendant's fitness to proceedmay be introduced by either party.

2) If the court determines that the de- fendant lacks fitness to proceed, the proceed- ing against him shall be suspended, except asprovided in subsection ( 5) of this section, and

the court shall commit him to the custody ofthe superintendent of a state mental hospital

designated by the Mental Health Division orshall release him on supervision for so long assuch unfitness shall endure. The court mayrelease the defendant on supervision if itdetermines that care other than commitmentfor incompetency to stand trial would betterserve the defendant and the community. Itmay place conditions which it deems appropri-

ate on the release, including the requirementthat the defendant regularly report to theMental Health Division or a communitymental health program for examination todetermine if the defendant has regained hiscompetency to stand trial. When the court, onits own motion or upon the application of thesuperintendent of the hospital in which the

defendant is committed, a person examiningthe defendant as a condition of his release onsupervision, or either party, determines, aftera hearing, if a hearing is requested, that thedefendant has regained fitness to proceed, theproceeding shall be resumed. If, however, thecourt is of the view that so much time haselapsed since the commitment or release ofthe defendant on supervision that it would beunjust to resume the criminal proceeding, thecourt on motion of either party may dismissthe charge and may order the defendant to bedischarged or cause a proceeding to be com- menced forthwith under ORS 426.070 to426.170.

3) Notwithstanding subsection ( 2) of thissection, a defendant who remains committedunder this section to the custody of a statemental hospital designated by the MentalHealth Division for a period of time equal tothe maximum term of the sentence whichcould be imposed if the defendant were con- victed of the offense with which he is chargedor for five years, whichever is less, shall bedischarged at the end of the period. Thesuperintendent of the hospital in which the

defendant is committed shall notify the com- mitting court of the expiration of the period atleast 30 days prior to the date of expiration. The notice shall include an opinion as towhether the defendant is still incompetentwithin the definition set forth in ORS161. 360. Upon receipt of the notice, the courtshall dismiss the charge and shall order thedefendant to be discharged or cause a proceed- ing to be commenced forthwith under ORS426.070 to 426. 170.

4) If the defendant regains fitness toproceed, the term of any sentence received bythe defendant for conviction of the crimecharged shall be reduced by the amount oftime the defendant was committed under thissection to the custody of a state mental hospi- tal designated by the Mental Health Division.

5) The fact that the defendant is unfit toproceed does not preclude any objectionthrough counsel and without the personalparticipation of the defendant on the groundsthat the indictment is insufficient, that thestatute of limitations has run, that doublejeopardy principles apply or upon any other

r

GENERAL PROVISIONS

ground at the discretion of the court which thecourt deems susceptible of fair determinationprior to trial.

1971 c 743 §52, 1975 c 380 §51

161.380 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 occurredwhen the person was under 14 years of age.

2) Incapacity due to immaturity, as

defined in subsection ( 1) of this section, is adefense. 1971 c 743 § 531

161. 385 Psychiatric Security ReviewBoard; composition, term of office, qualifi- cations, compensation, appointment and

meetings; judicial review of board order. 1) There is hereby created a Psychiatric

Security Review Board consisting of fivemembers appointed by the Governor andsubject to confirmation by the Senate by theaffirmative vote of a majority of the Senatorsvoting, a quorum being present. If an appoint- ment is made when the Legislative Assemblyis not in session, the Senate shall act throughthe Committee on Executive Appointmentsunder ORS 171. 560.

2) The membership of the board shall becomposed of:

a) A psychiatrist experienced in thecriminal justice system and not otherwise

employed on a full -time basis by the MentalHealth Division or a community mentalhealth program;

b) A licensed psychologist experienced inthe criminal justice system and not otherwise

employed on a full -time basis by the MentalHealth Division or a community mentalhealth program;

c) A member with substantial experiencein the processes of parole and probation;

d) A member of the general public; and

e) A lawyer with substantial experiencein criminal trial practice.

3) The term of office of each member isfour years. The Governor at any time mayremove any member for inefficiency, neglectof duty or malfeasance in office. Before theexpiration of the term of a member, the Gov- ernor shall appoint a successor whose term

begins on July 1 next following. A member iseligible for reappointment. If there is a vacan-

cy for any cause, the Governor shall make anappointment to become immediately effectivefor the unexpired term.

1431

4) Notwithstanding the term of officespecified by subsection ( 3) of this section, ofthe members first appointed to the board:

a) One shall serve for a term ending June30, 1979.

b) Two shall serve for terms ending June30, 1980.

c) Two shall serve for terms ending June30, 1981.

5) A member of the board not otherwise

employed full time by the state, shall be paidon a per diem basis an amount equal to fourpercent of the gross monthly salary of amember of the State Board of Parole for eachday during which the member is engaged inthe performance of his official duties, includ-

ing necessary travel time. In addition, subjectto ORS 292. 220 to 292.250 regulating traveland other expenses of state officers and em-

ployes, he shall be reimbursed for actual andnecessary travel and other expenses incurredby him in the performance of his officialduties.

6) Subject to any applicable provision ofthe State Merit System Law, the board mayhire employes to aid it in performing its dutiesunder ORS 137.540, 161. 315 to 161. 351,

161.385 to 161. 395, 192.690 and 428.210.

7) ( a) The board shall select one of itsmembers as chairman to serve for a one -yearterm with such duties and powers as the boarddetermines.

b) A majority of the voting members ofthe board constitutes a quorum for the trans- action of business.

8) The board shall meet at least twiceevery month, unless the chairman determinesthat there is not sufficient business before theboard to warrant a meeting at the scheduledtime. The board shall also meet at other timesand places specified by the call of the chair- man or of a majority of the members of theboard.

9) ( a) When a person over whom the

board exercises its jurisdiction is adverselyaffected or aggrieved by a final order of theboard, the person is entitled to judicial reviewof the final order. The person shall be entitledto counsel and, if indigent, counsel shall beprovided.

b) The order and the proceedings underly-

ing the order are subject to review by theCourt of Appeals upon petition to that courtfiled within 60 days of the order for whichreview is sought. The board shall submit tothe court the record of the proceeding or, if theperson agrees, a shortened record. A copy of

1432 CRUKES AND PUNISHMENTS

the record transmitted shall be delivered to

the person by the board.

c) The court may affirm, reverse or re- mand the order on the same basis as provided

in paragraphs ( a) to ( d) of subsection ( 8) ofORS 183.482.

d) The filing of the petition shall not staythe board's order, but the board or the Courtof Appeals may order a stay upon applicationon such terms as are deemed proper. 1977 c 380 §81

Note: Sections 21, 22 and 24 of chapter 380, OregonLaws 1977, provide

Sec. 21. ( 1) Except as provided in subsection ( 2) ofthis section, this Act does not become operative until

January 1, 1978

2) The Psychiatric Security Review Board may beappointed before the operative date of this Act and maytake any action before the operative date of this Act thatis necessary to enable it to exercise, on or after theoperative date of this Act, all the duties, functions andpowers conferred on it by this Act

Sec. 22. On the operative date of this Act, thejurisdiction of all persons conditionally released or

committed to a state mental hospital designated by theMental Health Division shall be transferred to thePsychiatric Security Review Board The circuit courtpreviously having jurisdiction over the person shall, onthe operative date of this Act, transfer its court filepertaining to the person to the board

Sec. 24. The Psychiatric Security Review Boardestablished by section 8 of this Act shall cease to existand expire on July 1, 1981, unless the Sixty -first Legisla- tive Assembly by law extends its existence In the eventof such expiration all duties, functions and powersconferred on the board shall vest in the circuit court anddistrict court of this state On the date of expirationjurisdiction over all persons under the jurisdiction of theboard shall revert to the circuit or district court ordepartment thereof in which such persons were found notresponsible for the criminal offense Any orders of theboard shall, at that time, become orders of the courtassuming jurisdiction of the person to whom they applyand shall continue in effect for the maximum period ofsupervision or until modified or terminated by the court

161. 390 Mental Health Division topromulgate rules for assignment of per- sons to state mental hospitals. The MentalHealth Division shall promulgate rules for theassignment of persons to state mental hospi- tals under ORS 161. 341, 161. 365 and 161. 370and for establishing standards for evaluationand treatment of persons committed to a state

hospital designated by the division or orderedto a community mental health program underORS 137.540, 161. 315 to 161. 351, 161. 385 to161. 395, 192.690 and 428.210. 1975 c 380 § 7, 1977 c 380 §181

161. 395 Subpena power of Psychiat-

ric Security Review Board. ( 1) Upon re-

quest of any party to a hearing before theboard, the board or its designated representa- tives shall issue, or the board on its own

motion may issue, subpenas requiring theattendance and testimony of witnesses.

2) Upon request of any party to thehearing before the board and upon a propershowing of the general relevance and reason-

able scope of the documentary or physicalevidence sought, the board or its designated

representative shall issue, or the board on its

own motion may issue, subpenas duces tecum.

3) Witnesses appearing under subpenas, other than the parties or state officers oremployes, shall receive fees and mileage as

prescribed by law for witnesses in civil ac- tions. If the board or its designated represent-

ative certifies that the testimony, of a witnesswas relevant and material, any person whohas paid fees and mileage to that witnessshall be reimbursed by the board.

4) If any person fails to comply with asubpena issued under subsections ( 1) or ( 2) of

this section or any party or witness refuses totestify regarding any matter on which he maybe lawfully interrogated, the judge of thecircuit court of any county, on the applicationof the board or its designated representative

or of the party requesting the issuance of thesubpena, shall compel obedience by proceed- ings for contempt as in the case of disobedi- ence of the requirements of a subpena issued

by the court.

5) If any person, agency or facility failsto comply with an order of the board issuedpursuant to subsection ( 2) of this section, the

judge of a circuit court of any county, onapplication of the board or its designatedrepresentative, shall compel obedience byproceedings for contempt as in the case ofdisobedience of the requirements of an orderissued by the court. Contempt for disobedienceof an order of the board shall be punishable bya fine of $100. 1977 c 380 §91

Note: 161 395 was enacted into law by the Legisla- tive Assembly but was not added to or made a part ofORS chapter 161 or any series therein by legislativeaction See the Preface to Oregon Revised Statutes forfurther explanation

u

GENERAL PROVISIONS

INCHOATE CRIMES

161. 405 " Attempt" described. ( 1) A

person is guilty of an attempt to commit acrime when he intentionally engages in con- duct which constitutes a substantial steptoward commission of the crime.

2) An attempt is a:

a) Class A felony if the offense attemptedis murder or treason.

b) Class B felony if the offense attemptedis a Class A felony.

c) Class C felony if the offense attemptedis a Class B felony.

d) Class A misdemeanor if the offense

attempted is a Class C felony or an unclassi- fied felony.

e) Class B misdemeanor if the offenseattempted is a Class A misdemeanor.

f) Class C misdemeanor if the offenseattempted is a Class B misdemeanor.

g) Violation if the offense attempted is aClass C misdemeanor or an unclassifiedmisdemeanor.

1971 c 743 §541

161. 425 Impossibility not a defense. In a prosecution for an attempt, it is no de- fense that it was impossible to commit thecrime which was the object of the attempt

where the conduct engaged in by the actorwould be a crime if the circumstances were asthe acted believed them to be. 1971 c 743 §551

161.430 Renunciation as a defense toattempt. (1) A person is not liable under ORS161.405 if, under circumstances manifesting a

voluntary and complete renunciation of hiscriminal intent, he avoids the commission of

the crime attempted by abandoning his crimi- nal effort and, if mere abandonment is insuf-

ficient to accomplish this avoidance, doingeverything necessary to prevent the commis- sion of the attempted crime.

2) The defense of renunciation is anaffirmative defense. 1971 c.743 §561

161.435 " Solicitation" described. ( 1)

A person commits the crime of solicitation if

with the intent of causing another to engagein specific conduct constituting a crime pun- ishable as a felony or as a Class A misde- meanor or an attempt to commit such felonyor Class A misdemeanor he commands orsolicits such other person to engage in thatconduct.

2) Solicitation is a:

1433

a) Class A felony if the offense solicited ismurder or treason.

b) Class B felony if the offense solicited isClass A felony.

c) Class C felony if the offense solicited isClass 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 §571

161.440 Renunciation as defense tosolicitation. ( 1) It is a defense to the crime of

solicitation that the person soliciting thecrime, after soliciting another person tocommit a crime, persuaded the person solicit-

ed not to commit the crime or otherwiseprevented the commission of the crime, under

circumstances manifesting a complete andvoluntary renunciation of his criminal intent.

2) The defense of renunciation is anaffirmative defense. 1971 c 743 §581

161.450 " Conspiracy" described. ( 1)

A person is guilty of criminal conspiracy ifwith the intent that conduct constituting acrime punishable as a felony or a Class Amisdemeanor be performed, he agrees withone or more persons to engage in or cause theperformance of such conduct.

2) Criminal conspiracy is a:

a) Class A felony if an object of theconspiracy is commission of murder, treasonor a Class A felony.

b) Class B felony if an object of the con- spiracy is commission of a Class B felony.

c) Class C felony if an object of the con- spiracy is commission of a Class C felony.

d) Class A misdemeanor if an object of

the conspiracy is commission of a Class Amisdemeanor.

1971 c 743 § 591

161. 455 Conspiratorial relationship. If a person is guilty of conspiracy, as definedin ORS 161.450, and knows that a person withwhom he conspires to commit a crime hasconspired or will conspire with another person

or persons to commit the same crime, he is

guilty of conspiring with such other person orpersons, whether or not he knows their identi-

ty, to commit such crime. 1971 c 743 §601

161.460 Renunciation as defense to

conspiracy. ( 1) It is a defense to a charge of

conspiracy that the actor, after conspiring to

1434 CRIMES AND PUNISEMNTS

commit a crime, thwarted commission of the

crime which was the object of the conspiracy, under circumstances manifesting a completeand voluntary renunciation of his criminalpurpose. Renunciation by one conspirator doesnot, however, affect the liability of anotherconspirator who does not join in the renuncia- tion of the conspiratorial objective.

2) The defense of renunciation is anaffirmative defense. 1971 c 743 §611

161.465 Duration of conspiracy. Forthe purpose of application of ORS 131. 125:

1) Conspiracy is a continuing course ofconduct which terminates when the crime orcrimes which are its object are completed orthe agreement that they be committed isabandoned by the defendant and by those withwhom he conspired.

2) Abandonment is presumed if neitherthe defendant nor anyone with whom heconspired does any overt act in pursuance ofthe conspiracy during the applicable period oflimitation.

3) If an individual abandons the agree- ment, the conspiracy is terminated as to himonly if and when he advises those with whomhe conspired of his abandonment or he in- forms the law enforcement authorities of theexistence of the conspiracy and of his partici- pation therein.

1971 c 743 §62; 1973 c 836 §3401

161.475 Defenses to solicitation andconspiracy. ( 1) Except as provided in subsec- tion (2) of this section, it is immaterial to theliability of a person who solicits or conspireswith another to commit a crime that:

a) He or the person whom he solicits orwith whom he conspires does not occupy aparticular position or have a particular char- acteristic which is an element of such crime, ifhe believes that one of them does; or

b) The person whom he solicits or withwhom he conspires is irresponsible or has animmunity to prosecution or conviction for thecommission of the crime, or, in the case ofconspiracy, has feigned the agreement; or

c) The person with whom he conspires hasnot been prosecuted for or convicted of theconspiracy or a crime based upon the conductin question, or has previously been acquitted.

2) It is a defense to a charge of solicita- tion or conspiracy to commit a crime that ifthe criminal object were achieved, the actorwould not be guilty of a crime under the law

defining the offense or as an accomplice underORS 161. 150 to 161. 165. 1971 c 743 § 631

161.485 Multiple convictions barredin inchoate crimes. ( 1) It is no defense to aprosecution under ORS 161. 405, 161.435 or161. 450 that the offense the defendant eitherattempted to commit, solicited to commit or

conspired to commit was actually committedpursuant to such attempt, solicitation or

conspiracy.

2) A person shall not be convicted of morethan one offense defined by ORS 161. 405, 161. 435 and 161. 450 for conduct designed tocommit or to culminate in commission of thesame crime.

3) A person shall not be convicted on thebasis of the same course of conduct of both theactual commission of an offense and an at-

tempt to commit that offense or solicitation of

that offense or conspiracy to commit thatoffense.

4) Nothing in this section shall be con- strued to bar inclusion of multiple countscharging violation of the substantive crimeand ORS 161. 405, 161. 435 and 161. 450 in asingle indictment or information, provided thepenal conviction is consistent with subsections2) and (3) of this section. 1971 c 743 § 641

CLASSES OF OFFENSES

161.505 " Offense" described. Anoffense is conduct for which a sentence to aterm of imprisonment or to a fine is providedby any law of this state or by any law orordinance of a political subdivision of this

state. An offense is either a crime or a viola- tion or a traffic infraction. 1971 c 743 §65, 1975 c 451 § 1731

161. 515 " Crime" described. ( 1) Acrime is an offense for which a sentence ofimprisonment is authorized.

2) A crime is either a felony or a misde- meanor.

1971 c 743 §661

161. 525 " Felony" described. Except asprovided in ORS 161. 585 and 161. 705, a crimeis a felony if it is so designated in any statuteof this state or if a person convicted under a

statute of this state may be sentenced to amaximum term of imprisonment of more thanone year.

1971 c 743 §671

GENERAL PROVISIONS

161.535 Classification of felonies. ( 1)

Felonies are classified for the purpose ofsentence 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 trea- son under ORS 166.005, is expressly designat- ed in the section defining the crime. An of- fense defined outside this code which, becauseof the express sentence provided is within thedefinition of ORS 161. 525, shall be consideredan unclassified felony. 1971 c 743 §681

161. 545 ' Misdemeanor" described. A

crime is a misdemeanor if it is so designatedin any statute of this state or if a personconvicted thereof may be sentenced to amaximum term of imprisonment of not more

than one year.

1971 c 743 §691

161. 555 Classification of misdemean- ors. ( 1) Misdemeanors are classified for thepurpose of sentence into the following categor- ies:

a) Class A misdemeanors;

b) Class B misdemeanors;

c) Class C misdemeanors; and

d) Unclassified misdemeanors.

2) The particular classification of eachmisdemeanor defined in the Oregon CriminalCode is expressly designated in the sectiondefining the crime. An offense defined outsidethis code which, because of the express sen- tence provided is within the definition of ORS161. 545, shall be considered an unclassifiedmisdemeanor.

3) An offense defined by a statute of thisstate, but without specification as to its classi- fication or as to the penalty authorized uponconviction, shall be considered a Class Amisdemeanor.

1971 c 743 §701

161. 565 " Violation" described. An

offense is a violation if it is so designated inthe statute defining the offense or if theoffense is punishable only by a fine, forfei- ture, fine and forfeiture or other civil penalty. Conviction of a violation does not give rise to

any disability or legal disadvantage based onconviction of a crime.

1971 c. 743 §711

1435

161.575 Types of violations ( 1) Anyviolation defined in the Oregon Criminal Code

is expressly designated in the section definingthe offense. Any offense defined outside thiscode which is punishable as provided in ORS161. 565 shall be considered a violation.

2) Violations are not classified.

1971 c 743 § 721

161. 585 Classification of certain

crimes determined by punishment. ( 1)

When a crime punishable as a felony is alsopunishable by imprisonment for a maximumterm of one year or by a fine, the crime shallbe classed as a misdemeanor if the courtimposes a punishment other than imprison- ment under subsection ( 1) of ORS 137. 124.

2) Notwithstanding the provisions of ORS161. 525, upon conviction of a crime punish-

able as described in subsection ( 1) of this

section, the crime is a felony for all purposesuntil one of the following events occurs, afterwhich occurrence the crime is a misdemeanorfor all purposes:

a) Without granting probation, the courtimposes a sentence of imprisonment to a

correctional facility other than the penitentia- ry or the Oregon State Correctional Institu- tion.

b) Without granting probation, the courtimposes a fine.

c) Upon revocation of probation, the courtimposes a sentence of imprisonment to acorrectional facility other than the penitentia- ry or the Oregon State Correctional Institu- tion.

d) Upon revocation of probation, the courtimposes a fine.

e) The court declares the offense to be amisdemeanor, either at the time of granting

probation, upon suspension of imposition ofsentence, or on application of defendant or hisprobation officer thereafter.

f) The court grants probation to the

defendant without imposition of sentence

upon conviction and defendant is thereafterdischarged without sentence.

g) Without granting probation and with- out imposing sentence, the court declares theoffense to be a misdemeanor and dischargesthe defendant.

1971 c 743 §731

1436 CRIMES AND PUNISUMMNTS

DISPOSITION OF OFFENDERS

161.605 Maximum prison terms forfelonies. The maximum term of an indetermi- nate sentence of imprisonment for a felony isas 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 § 741

161.615 Prison terms for misdemean- ors. Sentences for misdemeanors shall be fora definite term. The court shall fix the termof imprisonment within the following maxi- mum 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, asprovided in the statute defining the crime. 1971 c 743 §751

161.625 Fines for felonies. ( 1) A sen-

tence to pay a fine for a Class A, B or C felonyshall be a sentence to pay an amount, fixed bythe court, not exceeding $2, 500.

2) A sentence to pay a fine for an unclas- sified felony shall be a sentence to pay anamount, fixed by the court, as provided in thestatute defining the crime.

3) If a person has gained money or prop- erty through the commission of a felony, thenupon conviction thereof the court, in lieu ofimposing the fine authorized for the crimeunder subsection ( 1) or (2) of this section, maysentence the defendant to pay an amount, fixed by the court, not exceeding double theamount of the defendent's gain from thecommission of the crime.

4) As used in this section, " gain" means

the amount of money or the value of propertyderived from the commission of the felony, less the amount of money or the value ofproperty returned to the victim of the crime or

seized by or surrendered to lawful authoritybefore the time sentence is imposed. " Value"

shall be determined by the standards estab- lished in ORS 164.115.

5) When the court imposes a fine for afelony the court shall make a finding as to theamount of the defendant's gain from thecrime. If the record does not contain sufficientevidence to support a finding the court mayconduct a hearing upon the issue.

6) Except as provided in ORS 161. 655,

this section shall not apply to a corporation. 1971 c 743 § 761

161. 635 Fines for misdemeanors andviolations. ( 1) A sentence to pay a fine for amisdemeanor shall be a sentence to pay anamount, fixed by the court, not exceeding:

a) $ 1, 000 for a Class A misdemeanor.

b) $500 for a Class B misdemeanor.

c) $ 250 for a Class C misdemeanor.

2) A sentence to pay a fine for an unclas- sified misdemeanor shall be a sentence to payan amount, fixed by the court, as provided inthe statute defining the crime.

3) A sentence to pay a fine for a violationshall be a sentence to pay an amount, fixed bythe court, not exceeding $250.

4) If a person has gained money or prop- erty through the commission of a misdemean- or or violation, then upon conviction thereof

the court, instead of imposing the fine author- ized for the offense under subsection ( 1), ( 2) or

3) of this section, may sentence the defendantto pay an amount fixed by the court, notexceeding double the amount of the defend- ant's gain from the commission of the offense. In that event, subsections ( 4) and ( 5) of ORS161. 625 apply.

5) This section shall not apply to corpora- tions.

1971 c 743 § 771

161.645 Standards for imposing fines. In determining whether to impose a fine andits amount, the court shall consider:

1) The financial resources of the defend- ant and the burden that payment of a fine willimpose, with due regard to the other obliga- tions of the defendant; and

2) The ability of the defendant to pay afine on an instalment basis or on other condi- tions to be fixed by the court. 1971 c 743 § 781

161. 655 Fines for corporations. ( 1) A

sentence to pay a fine when imposed on acorporation for an offense defined in theOregon Criminal Code or for an offense de- fined outside this code for which no specialcorporate fine is specified, shall be a sentenceto pay an amount, fixed by the court, notexceeding:

a) $ 50,000 when the conviction is of afelony.

b) $ 5,000 when the conviction is of aClass A misdemeanor or of an unclassified

r

C J

GENERAL PROVISIONS 1437

misdemeanor for which a term of imprison- the defendant or his immediate family, thement of more than six months is authorized. court may remit all or part of the amount due

c) $ 2,500 when the conviction is of aClass B misdemeanor or of an unclassifiedmisdemeanor for which the authorized term ofimprisonment is not more than six months.

d) $ 1, 000 when the conviction is of aClass C misdemeanor or an unclassifiedmisdemeanor for which the authorized term ofimprisonment is not more than 30 days.

e) $ 500 when the conviction is of a viola- tion.

2) A sentence to pay a fine, when imposedon a corporation for an offense defined outsidethe Oregon Criminal Code, if a special fine fora corporation is provided in the statute defin-

ing the offense, shall be a sentence to pay anamount, fixed by the court, as provided in thestatute defining the offense.

3) If a corporation has gained money orproperty through the commission of an of- fense, then upon conviction thereof the court,

in lieu of imposing the fine authorized for theoffense under subsection ( 1) or ( 2) of this

section, may sentence the corporation to payan amount, fixed by the court, not exceedingdouble the amount of the corporation's gainfrom the commission of the offense. In thatevent, subsections ( 4) and (5) of ORS 161. 625

apply. 1971 c 743 §791

161.665 Costs. ( 1) The court may re- quire a convicted defendant to pay costs.

2) Costs shall be limited to expenses

specially incurred by the state in prosecutingthe defendant. They cannot include expensesinherent in providing a constitutionally

guaranteed jury trial or expenditures inconnection with the maintenance and opera-

tion of government agencies that must be

made by the public irrespective of specificviolations of law.

3) The court shall not sentence a defend-

ant to pay costs unless the defendant is or willbe able to pay them. In determining theamount and method of payment of costs, the

court shall take account of the financialresources of the defendant and the nature ofthe burden that payment of costs will impose.

4) A defendant who has been sentenced to

pay costs and who is not in contumaciousdefault in the payment thereof may at anytime petition the court which sentenced himfor remission of the payment of costs or of anyunpaid portion thereof. If it appears to thesatisfaction of the court that payment of the

amount due will impose manifest hardship on

in costs, or modify the method of paymentunder ORS 161. 675. 1971 c 743 § 801

161. 675 Time and method of paymentof fines, restitution and costs. ( 1) When a

defendant is sentenced to pay a fine or costs orordered to make restitution, as defined in ORS

137. 103, the court may order payment to bemade forthwith or within a specified period oftime or in specified instalments. If a defend- ant is sentenced to a term of imprisonment, anorder of payment of a fine, costs or restitution

shall not be enforceable during the period ofimprisonment unless the court expressly findsthat the defendant has assets to pay all orpart of the amounts ordered at the time of

sentencing.

2) When a defendant sentenced to pay afine or costs or ordered to make restitution isalso placed on probation or imposition orexecution of sentence is suspended, the court

may make payment of the fine or costs or themaking of restitution a condition of probationor suspension of sentence.

1971 c 743 §81, 1977 c 371 § 41

161.685 Effect of nonpayment of

fines, restitution or costs. ( 1) When a de-

fendant sentenced to pay a fine or to makerestitution, as defined in ORS 137. 103, de- faults in the payment thereof or of any instal- ment, the court on motion of the district

attorney or upon its own motion may requirehim to show cause why his default should notbe treated as contempt of court, and may issuea show cause citation or a warrant of arrest

for his appearance.

2) Unless the defendant shows that hisdefault was not attributable to an intentional

refusal to obey the order of the court or to afailure on his part to make a good faith effortto make the payment, the court may find thathis default constitutes contempt and mayorder him committed until the fine or therestitution, or a specified part thereof, is paid.

3) When a fine or an order of restitution

is imposed on a corporation or unincorporated

association, it is the duty of the person author- ized to make disbursement from the assets ofthe corporation or association to pay the fineor make the restitution from those assets, and

his failure to do so may be held to be contemptunless he makes the showing required insubsection (2) of this section.

4) The term of imprisonment for con- tempt for nonpayment of fines or failure to

1438 CRE14ES AND PUNISHMENTS

make restitution shall be set forth in thecommitment order, and shall not exceed one

day for each $ 25 of the fine or restitution, 30days if the fine or order of restitution wasimposed upon conviction of a violation ormisdemeanor, or one year in any other case, whichever is the shorter period. A personcommitted for nonpayment of a fine or failureto make restitution shall be given credit

toward payment for each day of imprisonmentat the rate specified in the commitment order.

5) If it appears to the satisfaction of thecourt that the default in the payment of a fine

or restitution is not contempt, the court mayenter an order allowing the defendant addi- tional time for payment, reducing the amountthereof or of each instalment or revoking thefine or order of restitution or the unpaidportion thereof in whole or in part.

6) A default in the payment of a fine orcosts or failure to make restitution or anyinstalment thereof may be collected by anymeans authorized by law for the enforcementof a judgment. The levy of execution for thecollection of a' fine or restitution shall notdischarge a defendant committed to imprison- ment for contempt until the amount of thefine or restitution has actually been collected. 1971 c 743 § 82, 1977 c371 § 51

AU'T'HORITY OF SENTENCINGCOURT

161. 705 Reduction of certain feloniesto misdemeanors. Notwithstanding ORS161. 525, when a person is convicted of anyClass C felony under ORS 475.005 to 475.285and 475.992 to 475.998 or when a person is

convicted of a Class B felony pursuant toparagraph ( a) of subsection ( 2) of ORS

475.992, if the court, having regard to thenature and circumstances of the crime and to

the history and character of the defendant, isof the opinion that it would be unduly harshto sentence the defendant for a felony, thecourt may enter judgment of conviction for aClass A misdemeanor and make dispositionaccordingly. This section does not apply, however, in cases subject to ORS 475. 995. 1971 c 743 § 83, 1977 c 745 § 311

Note: The 1977 amendment to 161 705 takes effectJuly 1, 1978 . Until then, 161. 705 ( 1975 ReplacementPart) remains in effect

161. 715 Standards for discharge ofdefendant. ( 1) Any court empowered tosuspend imposition or execution of sentence or

to place a defendant on probation may dis- charge 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 imposingany condition upon the defendant's release.

2) If a sentence of discharge is imposedfor a felony, the court shall set forth in therecord the reasons for its action.

3) If the court imposes a sentence ofdischarge, the defendant shall be releasedwith respect to the conviction for which thesentence is imposed without imprisonment,

fine, probationary supervision or conditions.

4) If a defendant pleads not guilty and istried and found guilty, a sentence of dischargeis a final judgment on a conviction for allpurposes, including an appeal by the defend- ant.

5) If a defendant pleads guilty, a sentenceof discharge is not appealable, but for allother purposes is a final judgment on a convic- tion.

1971 c 743 §841

161. 725 Standards for sentencing ofdangerous offenders. The maximum term ofan indeterminate sentence of imprisonmentfor a dangerous offender is 30 years, if thecourt finds that because of the dangerousnessof the defendant an extended period of con-

fined correctional treatment or custody isrequired for the protection of the public and ifit further finds, as provided in ORS 161. 735,

that one or more of the following groundsexist:

1) The defendant is being sentenced for aClass A felony, and the court finds that he issuffering from a severe personality disorderindicating a propensity toward criminal

activity.

2) The defendant is being sentenced for afelony that seriously endangered the life orsafety of another, has been previously convict- ed of a felony not related to the instant crimeas a `single criminal episode, and the court

finds that he is suffering from a severe per- sonality disorder indicating a propensitytoward criminal activity.

3) As used in this section, " previously

convicted of a felony" means:

a) Previous conviction of a felony, in acourt of this state;

b) Previous conviction in a court of theUnited States, other than a court - martial, ofan offense which at the time of conviction of

the offense was and at the time of conviction

is

J

GENERAL PROVISIONS

of the instant crime is punishable under the

laws of the United States by death or byimprisonment in a penitentiary, prison orsimilar institution for a term of one year ormore; 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 UnitedStates, or of the Commonwealth of PuertoRico, of an offense which at the time of convic-

tion of the offense was punishable by death orby imprisonment in a penitentiary, prison orsimilar institution for a term of one year ormore and which offense also at the time ofconviction of the instant crime would have

been a felony if committed in this state. 4) As used in this section, " previous

conviction of a felony" does not include: a) An offense committed when the de-

fendant was less than 16 years of age;

b) A conviction rendered after the com- mission of the instant crime;

c) A conviction that is the defendant'smost recent conviction described in subsection3) of this section, and the defendant was

finally and unconditionally discharged fromall resulting imprisonment, probation or

parole more than seven years before thecommission of the instant crime; or

d) A conviction that was by court - martialof an offense denounced only by military lawand triable only by court - martial.

5) As used in this section, " conviction"

means an adjudication of guilt upon a plea,

verdict or finding in a criminal proceeding ina court of competent jurisdiction, but does notinclude an adjudication which has been ex-

punged by pardon, reversed, set aside or

otherwise rendered nugatory. 1971 c 743 §851

161. 735 Procedure for determiningwhether offender dangerous. (1) Whenever, in the opinion of the court, there is reason tobelieve that the defendant falls within ORS161. 725, the court shall order a presentenceinvestigation and a psychiatric examination.

The court may appoint one or more qualifiedpsychiatrists to examine the defendant or mayorder that he be taken by the sheriff to a statehospital designated by the Mental HealthDivision for the examination.

2) When the examination is conducted ata state hospital the superintendent shall

notify the sheriff upon completion of the

1439

examination, and the sheriff shall return the

defendant to the county in which he wasconvicted. The defendant shall remain in the

custody of the sheriff subject to further orderof the court. All costs connected with the

examination shall be paid by the county inwhich the defendant was convicted.

3) The psychiatric examination shall becompleted within 30 days, subject to addition-

al extensions not exceeding 30 days on orderof the court. The psychiatrist shall file withthe court a written report of his findings and

conclusions, including an evaluation of wheth- er the defendant is suffering from a severepersonality disorder indicating a propensitytoward criminal activity. •

4) No statement made by a defendantunder this section or ORS 137. 124, 137.320 or423.090 shall be used against him in any civilproceeding or in any other criminal proceed- ing.

5) Upon receipt of the psychiatric exami- nation and presentence reports the court shall

set a time for a presentence hearing, unlessthe district attorney and the defendant waivethe hearing. At the presentence hearing thedistrict attorney and the defendant mayexamine the psychiatrist who filed the report

regarding the defendant. 6) If, after considering the presentence

report, the psychiatric report and the evidence

in the case or on the presentence hearing, thecourt finds that the defendant comes within

ORS 161. 725, the court may sentence thedefendant as a dangerous offender.

7) In determining whether a defendanthas been previously convicted of a felony, thecourt shall consider as prima facie evidence ofthe previous conviction:

a) A copy of the judicial record of theconviction which copy is authenticated underORS 43. 110 or 43. 120;

b) A copy of the fingerprints of the sub- ject of that conviction which copy is authenti- cated under ORS 43.330; and

c) Testimony that the fingerprints of thesubject of that conviction are those of thedefendant.

8) Subsection ( 7) of this section does notprohibit proof of the previous conviction byany other procedure. 1971 c 743 §86, 1973 c 836 §3411

1440 CRIMES AND PUNISHIVIENI'S

CERTIFICATE OF LEGISLATIVE COUNSEL

Pursuant to ORS 173 170, I, Thomas G Clifford, Legislative Counsel, do hereby certify that I have compared eachsection printed in this chapter with the original section in the enrolled bill, and that the sections to this chapter arecorrect copies of the enrolled sections, with the exception of the changes in form pernutted by ORS 173 160 and otherchanges specifically authorized by lawDone at Salem, Oregon, Thomas G CliffordOctober 1, 1977 Legislative Counsel

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