73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 362
 
                         House Bill 2173
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Governor Theodore R.
  Kulongoski for Department of Consumer and Business Services)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Repeals Digital Signature Act. Repeals registry of
international trade consultants.
 
                        A BILL FOR AN ACT
Relating to repeal of registration programs administered by the
  Department of Consumer and Business Services; creating new
  provisions; amending ORS 40.460, 40.510, 84.064 and 709.335 and
  section 1, chapter 175, Oregon Laws 2001; and repealing ORS
  192.825, 192.830, 192.835, 192.845, 192.850, 705.730 and
  705.732.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + ORS 192.825, 192.830, 192.835, 192.845,
192.850, 705.730 and 705.732 are repealed. + }
  SECTION 2. ORS 84.064 is amended to read:
  84.064.  { + (1) + } For purposes of ORS 84.049, 84.052 and
84.055, the Oregon Department of Administrative Services shall
make determinations and adopt standards for state agencies.  { +
  (2) The department shall adopt rules for the use of digital
signatures by state agencies. The rules shall include control
processes and procedures to ensure adequate integrity, security
and confidentiality of state agency business transactions
conducted using electronic commerce and to ensure that those
transactions can be audited as may be necessary for the normal
conduct of business.
  (3) + } As used in this section, 'state agency'
 { - includes - }  { +  means + } every state officer and board,
commission, department, institution, branch and agency of the
state government whose costs are paid wholly or in part from
funds held in the State Treasury, except:
    { - (1) - }   { + (a) + } The Legislative Assembly, the
courts, the district attorney for each county and their officers
and committees; and
    { - (2) - }   { + (b) + } The Public Defense Services
Commission.
  SECTION 3. ORS 40.460 is amended to read:
  40.460. The following are not excluded by ORS 40.455, even
though the declarant is available as a witness:
  (1) (Reserved.)
 
  (2) A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by
the event or condition.
  (3) A statement of the declarant's then existing state of mind,
emotion, sensation or physical condition, such as intent, plan,
motive, design, mental feeling, pain or bodily health, but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution,
revocation, identification, or terms of the declarant's will.
  (4) Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain or sensations, or the inception or general
character of the cause of external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
  (5) A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection
to enable the witness to testify fully and accurately, shown to
have been made or adopted by the witness when the matter was
fresh in the memory of the witness and to reflect that knowledge
correctly. If admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit unless
offered by an adverse party.
  (6) A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made
at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice
of that business activity to make the memorandum, report, record,
or data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the source of
information or the method of circumstances of preparation
indicate lack of trustworthiness. The term 'business' as used in
this subsection includes business, institution, association,
profession, occupation, and calling of every kind, whether or not
conducted for profit.
  (7) Evidence that a matter is not included in the memoranda,
reports, records, or data compilations, and in any form, kept in
accordance with the provisions of subsection (6) of this section,
to prove the nonoccurrence or nonexistence of the matter, if the
matter was of a kind of which a memorandum, report, record, or
data compilation was regularly made and preserved, unless the
sources of information or other circumstances indicate lack of
trustworthiness.
  (8) Records, reports, statements, or data compilations, in any
form, of public offices or agencies, setting forth:
  (a) The activities of the office or agency;
  (b) Matters observed pursuant to duty imposed by law as to
which matters there was a duty to report, excluding however, in
criminal cases matters observed by police officers and other law
enforcement personnel; or
  (c) In civil actions and proceedings and against the government
in criminal cases, factual findings, resulting from an
investigation made pursuant to authority granted by law, unless
the sources of information or other circumstances indicate lack
of trustworthiness.
  (9) Records or data compilations, in any form, of births, fetal
deaths, deaths or marriages, if the report thereof was made to a
public office pursuant to requirements of law.
  (10) To prove the absence of a record, report, statement, or
data compilation, in any form, or the nonoccurrence or
nonexistence of a matter of which a record, report, statement, or
data compilation, in any form, was regularly made and preserved
by a public office or agency, evidence in the form of a
certification in accordance with ORS 40.510, or testimony, that
diligent search failed to disclose the record, report, statement,
or data compilation, or entry.
  (11) Statements of births, marriages, divorces, deaths,
legitimacy, ancestry, relationship by blood or marriage, or other
similar facts of personal or family history, contained in a
regularly kept record of a religious organization.
  (12) A statement of fact contained in a certificate that the
maker performed a marriage or other ceremony or administered a
sacrament, made by a member of the clergy, public official, or
other person authorized by the rules or practices of a religious
organization or by law to perform the act certified, and
purporting to have been issued at the time of the act or within a
reasonable time thereafter.
  (13) Statements of facts concerning personal or family history
contained in family bibles, genealogies, charts, engravings on
rings, inscriptions on family portraits, engravings on urns,
crypts, or tombstones, or the like.
  (14) The record of a document purporting to establish or affect
an interest in property, as proof of content of the original
recorded document and its execution and delivery by each person
by whom it purports to have been executed, if the record is a
record of a public office and an applicable statute authorizes
the recording of documents of that kind in that office.
  (15) A statement contained in a document purporting to
establish or affect an interest in property if the matter stated
was relevant to the purpose of the document, unless dealings with
the property since the document was made have been inconsistent
with the truth of the statement or the purport of the document.
  (16) Statements in a document in existence 20 years or more the
authenticity of which is established.
  (17) Market quotations, tabulations, lists, directories, or
other published compilations, generally used and relied upon by
the public or by persons in particular occupations.
  (18) (Reserved.)
  (18a)(a) A complaint of sexual misconduct, complaint of abuse
as defined in ORS 107.705 or 419B.005, complaint of abuse of an
elderly person, as those terms are defined in ORS 124.050, or a
complaint relating to a violation of ORS 163.205 or 164.015 in
which a person 65 years of age or older is the victim, made by
the witness after the commission of the alleged misconduct or
abuse at issue. Except as provided in paragraph (b) of this
subsection, such evidence must be confined to the fact that the
complaint was made.
  (b) A statement made by a person concerning an act of abuse as
defined in ORS 107.705 or 419B.005, a statement made by a person
concerning an act of abuse of an elderly person, as those terms
are defined in ORS 124.050, or a statement made by a person
concerning a violation of ORS 163.205 or 164.015 in which a
person 65 years of age or older is the victim, is not excluded by
ORS 40.455 if the declarant either testifies at the proceeding
and is subject to cross-examination, or is unavailable as a
witness but was chronologically or mentally under 12 years of age
when the statement was made or was 65 years of age or older when
the statement was made. However, if a declarant is unavailable,
the statement may be admitted in evidence only if the proponent
establishes that the time, content and circumstances of the
statement provide indicia of reliability, and in a criminal trial
that there is corroborative evidence of the act of abuse and of
the alleged perpetrator's opportunity to participate in the
conduct and that the statement possesses indicia of reliability
as is constitutionally required to be admitted. No statement may
be admitted under this paragraph unless the proponent of the
statement makes known to the adverse party the proponent's
intention to offer the statement and the particulars of the
statement no later than 15 days before trial, except for good
cause shown. For purposes of this paragraph, in addition to those
situations described in ORS 40.465 (1), the declarant shall be
considered 'unavailable' if the declarant has a substantial lack
of memory of the subject matter of the statement, is presently
incompetent to testify, is unable to communicate about the abuse
or sexual conduct because of fear or other similar reason or is
substantially likely, as established by expert testimony, to
suffer lasting severe emotional trauma from testifying. Unless
otherwise agreed by the parties, the court shall examine the
declarant in chambers and on the record or outside the presence
of the jury and on the record. The examination shall be conducted
immediately prior to the commencement of the trial in the
presence of the attorney and the legal guardian or other suitable
person as designated by the court. If the declarant is found to
be unavailable, the court shall then determine the admissibility
of the evidence. The determinations shall be appealable under ORS
138.060 (1)(c) or (2)(a). The purpose of the examination shall be
to aid the court in making its findings regarding the
availability of the declarant as a witness and the reliability of
the statement of the declarant. In determining whether a
statement possesses indicia of reliability under this paragraph,
the court may consider, but is not limited to, the following
factors:
  (A) The personal knowledge of the declarant of the event;
  (B) The age and maturity of the declarant or extent of
disability if the declarant is a person with developmental
disabilities;
  (C) Certainty that the statement was made, including the
credibility of the person testifying about the statement and any
motive the person may have to falsify or distort the statement;
  (D) Any apparent motive the declarant may have to falsify or
distort the event, including bias, corruption or coercion;
  (E) The timing of the statement of the declarant;
  (F) Whether more than one person heard the statement;
  (G) Whether the declarant was suffering pain or distress when
making the statement;
  (H) Whether the declarant's young age or disability makes it
unlikely that the declarant fabricated a statement that
represents a graphic, detailed account beyond the knowledge and
experience of the declarant;
  (I) Whether the statement has internal consistency or coherence
and uses terminology appropriate to the declarant's age or to the
extent of the declarant's disability if the declarant is a person
with developmental disabilities;
  (J) Whether the statement is spontaneous or directly responsive
to questions; and
  (K) Whether the statement was elicited by leading questions.
  (c) This subsection applies to all civil, criminal and juvenile
proceedings.
  (d) This subsection applies to a child declarant, a declarant
who is an elderly person as defined in ORS 124.050 or an adult
declarant with developmental disabilities. For the purposes of
this subsection, 'developmental disabilities' means any
disability attributable to mental retardation, autism, cerebral
palsy, epilepsy or other disabling neurological condition that
requires training or support similar to that required by persons
with mental retardation, if either of the following apply:
  (A) The disability originates before the person attains 22
years of age, or if the disability is attributable to mental
retardation the condition is manifested before the person attains
18 years of age, the disability can be expected to continue
indefinitely, and the disability constitutes a substantial
handicap to the ability of the person to function in society.
  (B) The disability results in a significant subaverage general
intellectual functioning with concurrent deficits in adaptive
behavior that are manifested during the developmental period.
  (19) Reputation among members of a person's family by blood,
adoption or marriage, or among a person's associates, or in the
community, concerning a person's birth, adoption, marriage,
divorce, death, legitimacy, relationship by blood or adoption or
marriage, ancestry, or other similar fact of a person's personal
or family history.
  (20) Reputation in a community, arising before the controversy,
as to boundaries of or customs affecting lands in the community,
and reputation as to events of general history important to the
community or state or nation in which located.
  (21) Reputation of a person's character among associates of the
person or in the community.
  (22) Evidence of a final judgment, entered after a trial or
upon a plea of guilty, but not upon a plea of no contest,
adjudging a person guilty of a crime other than a traffic
offense, to prove any fact essential to sustain the judgment, but
not including, when offered by the government in a criminal
prosecution for purposes other than impeachment, judgments
against persons other than the accused. The pendency of an appeal
may be shown but does not affect admissibility.
  (23) Judgments as proof of matters of personal, family or
general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.
  (24) Notwithstanding the limits contained in subsection (18a)
of this section, in any proceeding in which a child under 12
years of age at the time of trial, or a person with developmental
disabilities as described in subsection (18a)(d) of this section,
may be called as a witness to testify concerning an act of abuse,
as defined in ORS 419B.005, or sexual conduct performed with or
on the child or person with developmental disabilities by
another, the testimony of the child or person with developmental
disabilities taken by contemporaneous examination and
cross-examination in another place under the supervision of the
trial judge and communicated to the courtroom by closed circuit
television or other audiovisual means. Testimony will be allowed
as provided in this subsection only if the court finds that there
is a substantial likelihood, established by expert testimony,
that the child or person with developmental disabilities will
suffer severe emotional or psychological harm if required to
testify in open court. If the court makes such a finding, the
court, on motion of a party, the child, the person with
developmental disabilities or the court in a civil proceeding, or
on motion of the district attorney, the child or the person with
developmental disabilities in a criminal or juvenile proceeding,
may order that the testimony of the child or the person with
developmental disabilities be taken as described in this
subsection. Only the judge, the attorneys for the parties, the
parties, individuals necessary to operate the equipment and any
individual the court finds would contribute to the welfare and
well-being of the child or person with developmental disabilities
may be present during the testimony of the child or person with
developmental disabilities.
  (25)(a) Any document containing data prepared or recorded by
the Oregon State Police pursuant to ORS 813.160 (1)(b)(C) or (E),
or pursuant to ORS 475.235 (4), if the document is produced by
data retrieval from the Law Enforcement Data System or other
computer system maintained and operated by the Oregon State
Police, and the person retrieving the data attests that the
information was retrieved directly from the system and that the
document accurately reflects the data retrieved.
  (b) Any document containing data prepared or recorded by the
Oregon State Police that is produced by data retrieval from the
Law Enforcement Data System or other computer system maintained
and operated by the Oregon State Police and that is
electronically transmitted through public or private computer
networks under a digital signature adopted by the Oregon State
Police   { - pursuant to ORS 192.825 to 192.850 - }  if the
person receiving the data attests that the document accurately
reflects the data received.
  (c) Notwithstanding any statute or rule to the contrary, in any
criminal case in which documents are introduced under the
provisions of this subsection, the defendant may subpoena the
analyst, as defined in ORS 475.235 (6), or other person that
generated or keeps the original document for the purpose of
testifying at the preliminary hearing and trial of the issue.
Except as provided in ORS 44.550 to 44.566, no charge shall be
made to the defendant for the appearance of the analyst or other
person.
  (26)(a) A statement that purports to narrate, describe, report
or explain an incident of domestic violence, as defined in ORS
135.230, made by a victim of the domestic violence within 24
hours after the incident occurred, if the statement:
  (A) Was recorded, either electronically or in writing, or was
made to a peace officer as defined in ORS 161.015, corrections
officer, youth correction officer, parole and probation officer,
emergency medical technician or firefighter; and
  (B) Has sufficient indicia of reliability.
  (b) In determining whether a statement has sufficient indicia
of reliability under paragraph (a) of this subsection, the court
shall consider all circumstances surrounding the statement. The
court may consider, but is not limited to, the following factors
in determining whether a statement has sufficient indicia of
reliability:
  (A) The personal knowledge of the declarant.
  (B) Whether the statement is corroborated by evidence other
than statements that are subject to admission only pursuant to
this subsection.
  (C) The timing of the statement.
  (D) Whether the statement was elicited by leading questions.
  (E) Subsequent statements made by the declarant. Recantation by
a declarant is not sufficient reason for denying admission of a
statement under this subsection in the absence of other factors
indicating unreliability.
  (27) A report prepared by a forensic scientist that contains
the results of a presumptive test conducted by the forensic
scientist as described in ORS 475.235, if the forensic scientist
attests that the report accurately reflects the results of the
presumptive test.
  (28)(a) A statement not specifically covered by any of the
foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that:
  (A) The statement is relevant;
  (B) The statement is more probative on the point for which it
is offered than any other evidence that the proponent can procure
through reasonable efforts; and
  (C) The general purposes of the Oregon Evidence Code and the
interests of justice will best be served by admission of the
statement into evidence.
  (b) A statement may not be admitted under this subsection
unless the proponent of it makes known to the adverse party the
intention to offer the statement and the particulars of it,
including the name and address of the declarant, sufficiently in
advance of the trial or hearing, or as soon as practicable after
it becomes apparent that such statement is probative of the
issues at hand, to provide the adverse party with a fair
opportunity to prepare to meet it.
  SECTION 4. ORS 40.510 is amended to read:
  40.510. Extrinsic evidence of authenticity as a condition
precedent to admissibility is not required with respect to the
following:
  (1) A document bearing a seal purporting to be that of the
United States, or of any state, district, commonwealth,
territory, or insular possession thereof, or the Panama Canal
Zone, or the Trust Territory of the Pacific Islands, or of a
 
political subdivision, department, officer, or agency thereof,
and a signature purporting to be an attestation or execution.
  (2) A document purporting to bear the signature, in an official
capacity, of an officer or employee of any entity included in
subsection (1) of this section, having no seal, if a public
officer having a seal and having official duties in the district
or political subdivision of the officer or employee certifies
under seal that the signer has the official capacity and that the
signature is genuine.
  (3) A document purporting to be executed or attested in an
official capacity by a person authorized by the laws of a foreign
country to make the execution or attestation, and accompanied by
a final certification as to the genuineness of the signature and
official position of (A) the executing or attesting person, or
(B) any foreign official whose certificate of genuineness of
signature and official position relates to the execution or
attestation or is in a chain of certificates of genuineness of
signature and official position relating to the execution or
attestation. A final certification may be made by a secretary of
embassy or legation, consul general, consul, vice consul, or
consular agent of the United States, or a diplomatic or consular
official of the foreign country assigned or accredited to the
United States. If reasonable opportunity has been given to all
parties to investigate the authenticity and accuracy of official
documents, the court may, for good cause shown, order that they
be treated as presumptively authentic without final certification
or permit them to be evidenced by an attested summary with or
without final certification.
  (4) A copy of an official record or report or entry therein, or
of a document authorized by law to be recorded or filed and
actually recorded or filed in a public office, including data
compilations in any form, certified as correct by the custodian
or other person authorized to make the certification, by
certificate complying with subsection (1), (2) or (3) of this
section or otherwise complying with any law or rule prescribed by
the Supreme Court.
  (5) Books, pamphlets or other publications purporting to be
issued by public authority.
  (6) Printed materials purporting to be newspapers or
periodicals.
  (7) Inscriptions, signs, tags or labels purporting to have been
affixed in the course of business and indicating ownership,
control or origin.
  (8) Documents accompanied by a certificate of acknowledgment
executed in the manner provided by law by a notary public or
other officer authorized by law to take acknowledgments.
  (9) Commercial paper, signatures thereon and documents relating
thereto to the extent provided by the Uniform Commercial Code or
ORS chapter 83.
  (10) Any signature, documents or other matter declared by law
to be presumptively or prima facie genuine or authentic.
  (11)(a) A document bearing a seal purporting to be that of a
federally recognized Indian tribal government or of a political
subdivision, department, officer, or agency thereof, and a
signature purporting to be an attestation or execution.
  (b) A document purporting to bear the signature, in an official
capacity, of an officer or employee of any entity included in
paragraph (a) of this subsection, having no seal, if a public
officer having a seal and having official duties in the district
or political subdivision or the officer or employee certifies
under seal that the signer has the official capacity and that the
signature is genuine.
  (12)(a) Any document containing data prepared or recorded by
the Oregon State Police pursuant to ORS 813.160 (1)(b)(C) or (E),
or pursuant to ORS 475.235 (4), if the document is produced by
data retrieval from the Law Enforcement Data System or other
computer system maintained and operated by the Oregon State
Police, and the person retrieving the data attests that the
information was retrieved directly from the system and that the
document accurately reflects the data retrieved.
  (b) Any document containing data prepared or recorded by the
Oregon State Police that is produced by data retrieval from the
Law Enforcement Data System or other computer system maintained
and operated by the Oregon State Police and that is
electronically transmitted through public or private computer
networks under a digital signature adopted by the Oregon State
Police   { - pursuant to ORS 192.825 to 192.850 - }  if the
person receiving the data attests that the document accurately
reflects the data received.
  (13) A report prepared by a forensic scientist that contains
the results of a presumptive test conducted by the forensic
scientist as described in ORS 475.235, if the forensic scientist
attests that the report accurately reflects the results of the
presumptive test.
  (14) For the purposes of this section, 'signature' includes any
symbol executed or adopted by a party with present intention to
authenticate a writing.
  SECTION 5. ORS 709.335 is amended to read:
  709.335.   { - As provided in ORS 192.825 to 192.850, - }  A
trust company may conduct transactions using digital signatures
 { - , may be a certification authority and may - }   { + and + }
issue certificates for the purpose of verifying digital
signatures.
  SECTION 6. Section 1, chapter 175, Oregon Laws 2001, is amended
to read:
   { +  Sec. 1. + } (1) As used in this section and section
2 { + , chapter 175, Oregon Laws 2001 + }   { - of this 2001
Act - } :
  (a) 'Public body' has the meaning given that term in ORS
192.410.
  (b) 'Rule,' in the case of a political subdivision as defined
in ORS 192.005, means an ordinance, policy or resolution.
  (2) Notwithstanding any other provision of law { + , + }
 { - : - }
    { - (a) - }  a public body may receive and accept any
communication or transaction electronically.
    { - (b) A public body may provide for the electronic receipt
and acceptance of communications or transactions in accordance
with ORS 192.825 to 192.850. - }
  (3) To carry out the provisions of subsection (2) of this
section, a public body may adopt rules:
  (a) To give notice of the public body's intention to begin
electronic receipt and acceptance of communications or
transactions.
  (b) Requiring electronic communications or transactions to
conform to other laws that set requirements on electronic
communications or transactions and that prohibit, except as
provided in subsection (2) of this section, the receipt or
acceptance of communications or transactions electronically.
  (4) The authority granted by subsection (2) of this section
does not authorize a public body to require only electronic
delivery or acceptance of communications or transactions.
  SECTION 7.  { + (1) The repeal of ORS 192.845 by section 1 of
this 2005 Act and the amendments to ORS 709.335 by section 5 of
this 2005 Act do not:
  (a) Revoke a registration issued to a certification authority;
or
  (b) Affect actions taken by a certification authority before
the effective date of this 2005 Act in reliance upon a
registration issued by the Director of the Department of Consumer
and Business Services.
 
  (2) All moneys received by the department under ORS 705.730 and
not expended by the effective date of this 2005 Act are subject
to ORS 705.145 (4). + }
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