Chapter 135 — Arraignment
and Pretrial Provisions
2011 EDITION
ARRAIGNMENT AND PRETRIAL PROVISIONS
PROCEDURE IN CRIMINAL MATTERS GENERALLY
ARRAIGNMENT
(Generally)
135.010 Time
and place
135.020 Scope
of proceedings
135.030 When
presence of defendant is required; appearance by counsel
135.035 Bringing
in defendant not yet arrested or held to answer
135.037 Omnibus
hearing; when held; subject; ruling of court; counsel required
(Counsel; Name Used)
135.040 Right
to counsel
135.045 Court
appointment of counsel; waiver of counsel; appointment of legal advisor
135.050 Eligibility
for court-appointed counsel; financial statement; termination; civil liability
135.055 Compensation
and expenses of appointed counsel
135.060 Communication
to defendant as to use of name in accusatory instrument; effect of
acknowledging true name at arraignment
135.065 Name
used in further proceedings; motion to strike false name
135.067 Effect
of failure to provide true name of defendant on certain types of release
PRELIMINARY HEARING
(Generally)
135.070 Information
as to charge, right to counsel, use of statement, preliminary hearing and use
by State Board of Parole and Post-Prison Supervision
135.073 Statement
by defendant when not advised of rights
135.075 Obtaining
counsel
135.085 Subpoenaing
witnesses
135.090 Examination
of adverse witnesses
135.095 Right
of defendant to make or waive making a statement
135.100 Statement
of defendant
135.105 Use
of statement before grand jury or on trial
135.115 Waiver
of right to make statement
135.125 Examination
of defendant’s witnesses
135.135 Exclusion
of witnesses during examination of others
135.139 Notice
of availability of testing for HIV and other communicable diseases to person
charged with crime; when court may order test; victim’s rights
135.145 Testimony
of witnesses
135.155 Retention
of record and statements by magistrate; inspection
135.165 Counsel
for complainant; district attorney
135.173 Oregon
Evidence Code to apply in preliminary hearings; exception
(Discharge or Commitment)
135.175 Discharge
135.185 Holding
defendant to answer; use of hearsay evidence
135.195 Commitment
135.205 Indorsement in certain cases
135.215 Direction
to sheriff; detention of defendant
135.225 Forwarding
of papers by magistrate
RELEASE OF DEFENDANT
135.230 Definitions
for ORS 135.230 to 135.290
135.235 Release
assistance officer; appointment; duties
135.240 Releasable
offenses
135.242 Security
release for certain methamphetamine offenses
135.245 Release
decision
135.247 Order
prohibiting contact with victim of sex crime or domestic violence
135.250 General
conditions of release agreement
135.255 Release
agreement
135.260 Conditional
release
135.265 Security
release
135.270 Taking
of security
135.280 Arrest
warrant; forfeiture
135.285 Modification
of release decision; release upon appeal
135.290 Punishment
by contempt of court
135.295 Application
of ORS 135.230 to 135.290 to certain traffic offenses
PLEADINGS
(Defendant’s Answer Generally)
135.305 Types
of answer
135.315 Types
of pleading
135.325 Pleading
a judgment
(Plea)
135.335 Pleading
by defendant; alternatives
135.345 Legal
effect of plea of no contest
135.355 Presentation
of plea; entry in register; forms
135.360 Special
provisions relating to presentation of plea of guilty or no contest
135.365 Withdrawal
of plea of guilty or no contest
135.370 Not
guilty plea as denial of allegations of accusatory instrument
135.375 Pleading
to other offenses
135.380 Time
of entering plea; aid of counsel
135.385 Defendant
to be advised by court
135.390 Determining
voluntariness of plea; nature of plea agreement
135.395 Determining
accuracy of plea
(Plea Discussions and Agreements)
135.405 Plea
discussions and plea agreements
135.407 Plea
agreement must contain defendant’s criminal history classification;
stipulations
135.415 Criteria
to be considered in plea discussions and plea agreements
135.425 Responsibilities
of defense counsel
135.432 Responsibilities
of trial judge
135.435 Discussion
and agreement not admissible
135.445 Withdrawn
plea or statement not admissible
(Related Procedure)
135.455 Notice
prior to trial of intention to rely on alibi evidence; content of notice;
effect of failure to supply notice
135.465 Defect
in accusatory instrument as affecting acquittal on merits
PRETRIAL MOTIONS
135.470 Motion
to dismiss accusatory instrument on grounds of former jeopardy
135.510 Grounds
for motion to set aside the indictment
135.520 Time
of making motion; hearing
135.530 Effect
of allowance of motion
135.540 Effect
of resubmission of case
135.560 Order
to set aside is no bar to future prosecution
DEMURRERS
135.610 Demurrer;
generally
135.630 Grounds
of demurrer
135.640 When
objections that are grounds for demurrer may be taken
135.650 Hearing
of objections specified by demurrer
135.660 Judgment
on demurrer; entry in register
135.670 Allowance
of demurrer
135.680 Failure
to resubmit case after allowance of demurrer
135.690 Resubmission
of case
135.700 Disallowance
of demurrer
COMPROMISE
135.703 Crimes
subject to being compromised; exceptions
135.705 Satisfaction
of injured person; dismissal of charges
135.707 Discharge
as bar to prosecution
135.709 Exclusiveness
of procedure
SUFFICIENCY OF ACCUSATORY INSTRUMENTS
135.711 Facts
constituting crime or subcategory of crime required
135.713 Necessity
of stating presumptions of law and matters judicially noticed
135.715 Effect
of nonprejudicial defects in form of accusatory
instrument
135.717 Time
of crime
135.720 Place
of crime in certain cases
135.725 Person
injured or intended to be injured
135.727 Description
of animal
135.730 Judgments;
facts conferring jurisdiction
135.733 Defamation
135.735 Forgery;
misdescription of forged instrument
135.737 Perjury
135.740 Construction
of words and phrases used
135.743 Fictitious
or erroneous name; insertion of true name
SPEEDY TRIAL PROVISIONS
135.745 Delay
in finding an indictment or filing an information
135.747 Effect
of delay in bringing defendant to trial
135.750 Where
there is reason for delay
DISMISSAL OF ACTION
135.753 Effect
of dismissal
135.755 Dismissal
on motion of court or district attorney
135.757 Nolle prosequi; discontinuance by
district attorney
PROSECUTION OF PRISONERS
135.760 Notice
requesting early trial on pending charge
135.763 Trial
within 90 days of notice unless continuance granted
135.765 Dismissal
of criminal proceeding not brought to trial within allowed time; exceptions
135.767 Presence
of prisoner at proceedings
135.770 Release
of prisoner prohibited
135.773 District
attorney to furnish certain documents
DETAINER
135.775 Agreement
on Detainers
135.777 Definition
for ORS 135.775
135.779 Enforcement
of ORS 135.775 by public agencies
135.783 Effect
of escape from custody in another state
135.785 Surrender
of custody under ORS 135.775
135.787 Administrator
of agreement; appointment; duties
135.789 Notice
of request for temporary custody; prisoner’s rights
135.791 Request
for final disposition of detainer from prisoner without state
135.793 Procedure
where untried instrument pending against prisoner without state
PRETRIAL DISCOVERY
135.805 Applicability;
scope of disclosure
135.815 Disclosure
to defendant
135.825 Other
disclosure to defense; special conditions
135.835 Disclosure
to the state
135.845 Time
of disclosure
135.855 Material
and information not subject to discovery
135.857 Disclosure
to victim; conditions
135.865 Effect
of failure to comply with discovery requirements
135.873 Protective
orders
DIVERSION
(Generally)
135.881 Definitions
for ORS 135.881 to 135.901
135.886 Requirements
for diversion; factors considered
135.891 Conditions
of diversion agreement; dismissal of criminal charges; scope of agreement
135.896 Stay
of criminal proceedings during period of agreement; limitation on stay; effect
of declining diversion
135.898 Diversion
agreement involving servicemember charged with
domestic violence
135.901 Effect
of compliance or noncompliance with agreement; effect of partial compliance in
subsequent criminal proceedings; record of participation in program
135.905 Unitary
assessment
(Possession of Marijuana)
135.907 Notification
of availability of diversion; petition form; information
135.909 Filing
petition; procedure
135.911 Diversion
for first offense only
135.913 Diversion
agreement part of record of case; duration of agreement; effect of denial of
petition
135.915 Effect
of compliance with agreement
135.917 Designation
of agencies to perform diagnostic assessments; duties of agency
135.919 Termination
of agreement by court; procedure; grounds; effect
135.921 Amount
and distribution of filing fee; diagnostic assessment fee
(Bad Check)
135.925 Bad
check diversion program
EARLY DISPOSITION PROGRAMS
135.941 Early
disposition programs
135.942 Purposes
of program
135.943 Provisions
of program
135.948 Availability
to probationers
135.949 Other
programs authorized
MEDIATING CRIMINAL OFFENSES
135.951 Authorization;
determining when appropriate; exclusions
135.953 How
mediation may be used
135.955 Notifying
victims and person charged with crime of mediation opportunities
135.957 Application
of ORS 36.220 to 36.238 to mediation of criminal offenses; information to
parties
135.959 Authority
to contract with dispute resolution programs
MISCELLANEOUS
135.970 When
address and phone number of victim or witness not to be given to defendant;
deposition of victim; when contact with victim prohibited; effect of threats by
defendant
135.980 Rehabilitative
programs directory; compilation; availability
PENALTIES
135.990 Penalties
ARRAIGNMENT
(Generally)
135.010 Time and place.
When the accusatory instrument has been filed, and if the defendant has been
arrested, or as soon thereafter as the defendant may be arrested, the defendant
shall be arraigned thereon as provided in ORS 135.030 before the court in which
it is found. Except for good cause shown or at the request of the defendant, if
the defendant is in custody, the arraignment shall be held during the first 36
hours of custody, excluding holidays, Saturdays and Sundays. In all other
cases, except as provided for in ORS 133.060, the arraignment shall be held
within 96 hours after the arrest. [Amended by 1973 c.836 §130; 1983 c.344 §1;
1983 c.661 §12]
135.020 Scope of proceedings.
The arraignment shall be made by the court, or by the clerk or the district
attorney under its direction, as provided in ORS 135.030. The arraignment
consists of reading the accusatory instrument to the defendant, causing
delivery to the defendant of a copy thereof and indorsements
thereon, including the list of witnesses indorsed on it or appended thereto if
the accusatory instrument is an indictment, asking the defendant how the
defendant pleads to the charge. [Amended by 1973 c.836 §131; 1983 c.344 §2]
135.030 When presence of defendant is
required; appearance by counsel. (1) When the
accusatory instrument charges a crime punishable as a felony, the defendant
shall appear in person at the arraignment.
(2)
When the accusatory instrument charges a crime punishable as a misdemeanor, the
defendant may appear in person or by counsel.
(3)
The court may require a defendant to appear at the arraignment by simultaneous
electronic transmission as provided in ORS 131.045 without the agreement of the
state or defendant if the type of simultaneous electronic transmission
available allows the defendant to observe the court and the court to observe
the defendant. [Formerly 135.110; 1983 c.344 §3; 2005 c.566 §5]
135.035 Bringing in defendant not yet arrested
or held to answer. When an accusatory instrument is
filed in court, if the defendant has not been arrested and held to answer the
charge, unless the defendant voluntarily appears for arraignment, the court
shall issue a warrant of arrest as provided in ORS 133.110. [Formerly 135.140]
135.037 Omnibus hearing; when held;
subject; ruling of court; counsel required. (1) At
any time after the filing of the accusatory instrument in circuit court and
before the commencement of trial thereon, the court upon motion of any party
shall, and upon its own motion may, order an omnibus hearing.
(2)
The purpose of an omnibus hearing shall be to rule on all pretrial motions and
requests, including but not limited to the following issues:
(a)
Suppression of evidence.
(b)
Challenges to identification procedures used by the prosecution.
(c)
Challenges to voluntariness of admissions or confession.
(d)
Challenges to the accusatory instrument.
(3)
The court, at the time of the omnibus hearing, may also consider any matters
that will facilitate trial by avoiding unnecessary proof or by simplifying the
issues to be tried, or that are otherwise appropriate under the circumstances
to facilitate disposition of the proceeding.
(4)
At the conclusion of the hearing and prior to trial the court shall prepare and
file an order setting forth all rulings of the court on issues raised under
subsection (2) of this section. The court shall further prepare and file a
memorandum of other matters agreed upon at the hearing. Except in a prosecution
of the defendant for perjury or false swearing, or impeachment of the
defendant, admissions made by the defendant or the attorney of the defendant at
the hearing may not be used against the defendant unless the admissions are
reduced to writing and signed by the defendant and the attorney.
(5)
This section may not be applied in any proceeding or at any stage of any
proceeding where the defendant is not represented by counsel. [1973 c.550 §2;
2009 c.11 §9]
(Counsel; Name Used)
135.040 Right to counsel.
If the defendant appears for arraignment without counsel, the defendant shall
be informed by the court that it is the right of the defendant to have counsel
before being arraigned and shall be asked if the defendant desires the aid of
counsel. [Formerly 135.310]
135.045 Court appointment of counsel;
waiver of counsel; appointment of legal advisor.
(1)(a) If the defendant in a criminal action appears without counsel at
arraignment or thereafter, the court shall determine whether the defendant
wishes to be represented by counsel.
(b)
If the defendant does wish to be represented by counsel, the court, in
accordance with ORS 135.050, shall appoint counsel to represent the defendant.
(c)
If the defendant wishes to waive counsel, the court shall determine whether the
defendant has made a knowing and voluntary waiver of counsel. The court shall
accept the waiver of counsel if the defendant is not charged with a capital
offense. The court may decline to accept the waiver of counsel if the defendant
is charged with a capital offense.
(d)
If the court accepts a defendant’s waiver of counsel, the court may allow an
attorney to serve as the defendant’s legal advisor and may, in accordance with
ORS 135.050, appoint an attorney as the defendant’s legal advisor.
(2)
Appointment of counsel, including a legal advisor, under this section is
subject to ORS 135.050, 135.055 and 151.485 to 151.497. [Formerly 135.320; 1987
c.803 §13; 1989 c.171 §16; 1989 c.1053 §1a; 1991 c.790 §11; 2001 c.472 §1; 2001
c.962 §24]
135.050 Eligibility for court-appointed
counsel; financial statement; termination; civil liability.
(1) Suitable counsel for a defendant shall be appointed by a municipal, county
or justice court if:
(a)
The defendant is before a court on a matter described in subsection (5) of this
section;
(b)
The defendant requests aid of counsel;
(c)
The defendant provides to the court a written and verified financial statement;
and
(d)
It appears to the court that the defendant is financially unable to retain
adequate representation without substantial hardship in providing basic
economic necessities to the defendant or the defendant’s dependent family.
(2)
Suitable counsel for a defendant shall be appointed by a circuit court if:
(a)
The defendant is before the court on a matter described in subsection (5) of
this section;
(b)
The defendant requests aid of counsel;
(c)
The defendant provides to the court a written and verified financial statement;
and
(d)(A)
The defendant is determined to be financially eligible under ORS 151.485 and the
standards established by the Public Defense Services Commission under ORS
151.216; or
(B)
The court finds, on the record, substantial and compelling reasons why the
defendant is financially unable to retain adequate representation without
substantial hardship in providing basic economic necessities to the defendant
or the defendant’s dependent family despite the fact that the defendant does
not meet the financial eligibility standards established by the commission.
(3)
Appointed counsel may not be denied to any defendant merely because the
defendant’s friends or relatives have resources adequate to retain counsel or
because the defendant has deposited or is capable of depositing security for
release. However, appointed counsel may be denied to a defendant if the
defendant’s spouse has adequate resources which the court determines should be
made available to retain counsel.
(4)
The defendant’s financial statement under subsection (1) or (2) of this section
shall include, but not be limited to:
(a)
A list of bank accounts in the name of defendant or defendant’s spouse, and the
balance in each;
(b)
A list of defendant’s interests in real property and those of defendant’s
spouse;
(c)
A list of automobiles and other personal property of significant value belonging
to defendant or defendant’s spouse;
(d)
A list of debts in the name of defendant or defendant’s spouse, and the total
of each; and
(e)
A record of earnings and other sources of income in the name of defendant or
defendant’s spouse, and the total of each.
(5)
Counsel must be appointed for a defendant who meets the requirements of
subsection (1) or (2) of this section and who is before a court on any of the
following matters:
(a)
Charged with a crime.
(b)
For a hearing to determine whether an enhanced sentence should be imposed when
such proceedings may result in the imposition of a felony sentence.
(c)
For extradition proceedings under the provisions of the Uniform Criminal
Extradition Act.
(d)
For any proceeding concerning an order of probation, including but not limited
to the revoking or amending thereof.
(6)
Unless otherwise ordered by the court, the appointment of counsel under this
section shall continue during all criminal proceedings resulting from the
defendant’s arrest through acquittal or the imposition of punishment. The court
having jurisdiction of the case may not substitute one appointed counsel for
another except pursuant to the policies, procedures, standards and guidelines
of the Public Defense Services Commission under ORS 151.216.
(7)
If, at any time after the appointment of counsel, the court having jurisdiction
of the case finds that the defendant is financially able to obtain counsel, the
court may terminate the appointment of counsel. If, at any time during criminal
proceedings, the court having jurisdiction of the case finds that the defendant
is financially unable to pay counsel whom the defendant has retained, the court
may appoint counsel as provided in this section.
(8)
The court may order the defendant in a circuit court to pay to the Public
Defense Services Account in the General Fund, through the clerk of the court,
in full or in part the administrative costs of determining the eligibility of
the defendant for appointed counsel and the costs of the legal and other services
that are related to the provision of appointed counsel under ORS 151.487,
151.505 or 161.665.
(9)
In addition to any criminal prosecution, a civil proceeding may be initiated by
any public body which has expended moneys for the defendant’s legal assistance
within two years of judgment if the defendant was not qualified in accordance
with subsection (1) or (2) of this section for legal assistance.
(10)
The civil proceeding shall be subject to the exemptions from execution as
provided for by law.
(11)
As used in this section unless the context requires otherwise, “counsel”
includes a legal advisor appointed under ORS 135.045. [Formerly 133.625; 1981
c.3 §118; 1985 c.710 §1; 1989 c.1053 §1b; 1997 c.761 §8; 2001 c.472 §4; 2001
c.962 §25; 2003 c.449 §49]
135.053 [1979
c.806 §1; 1981 s.s. c.3 §124; repealed by 1985 c.502 §28]
135.055 Compensation and expenses of
appointed counsel. (1) Counsel appointed pursuant
to ORS 135.045 or 135.050 shall be paid fair compensation for representation in
the case:
(a)
By the county, subject to the approval of the governing body of the county, in
a proceeding in a county or justice court.
(b)
By the public defense services executive director from funds available for the
purpose, in a proceeding in a circuit court.
(2)
Except for counsel appointed pursuant to contracts or counsel employed by the
public defense services executive director, compensation payable to appointed
counsel under subsection (1) of this section:
(a)
In a proceeding in a county or justice court may not be less than $30 per hour.
(b)
In a proceeding in a circuit court is subject to the applicable compensation
established under ORS 151.216.
(3)(a)
A person determined to be eligible for appointed counsel is entitled to
necessary and reasonable fees and expenses for investigation, preparation and
presentation of the case for trial, negotiation and sentencing. The person or
the counsel for the person shall upon written request secure preauthorization
to incur fees and expenses that are not routine to representation but are
necessary and reasonable in the investigation, preparation and presentation of
the case, including but not limited to nonroutine
travel, photocopying or other reproduction of nonroutine
documents, necessary costs associated with obtaining the attendance of
witnesses for the defense, investigator fees and expenses, expert witness fees
and expenses and fees for interpreters and assistive communication devices
necessary for the purpose of communication between counsel and a client or witness
in the case. Preauthorization to incur a fee or expense does not guarantee that
a fee or expense incurred pursuant to the preauthorization will be determined
to be necessary or reasonable when the fee or expense is submitted for payment.
(b)
In a county or justice court, the request must be in the form of a motion to
the court. The motion must be accompanied by a supporting affidavit that sets
out in detail the purpose of the requested expenditure, the name of the service
provider or other recipient of the funds, the dollar amount of the requested
expenditure that may not be exceeded without additional authorization and the
date or dates during which the service will be rendered or events will occur
for which the expenditure is requested.
(c)
In a circuit court, the request must be in the form and contain the information
that is required by the policies, procedures, standards and guidelines of the
Public Defense Services Commission. If the public defense services executive
director denies a request for preauthorization to incur nonroutine
fees and expenses, the person making the request may appeal the decision to the
presiding judge of the circuit court. The presiding judge has final authority
to preauthorize incurring nonroutine fees and
expenses under this paragraph.
(d)
Entitlement under subsection (7) of this section to payment for fees and
expenses in circuit court is subject to the policies, procedures, standards and
guidelines adopted under ORS 151.216. Entitlement to payment of nonroutine fees and expenses is dependent upon obtaining
preauthorization from the court, if the case is in county or justice court, or
from the public defense services executive director, if the case is in circuit
court, except as otherwise provided in paragraph (c) of this subsection and in
the policies, procedures, standards and guidelines adopted under ORS 151.216.
Fees and expenses shall be paid:
(A)
By the county, in respect to a proceeding in a county or justice court.
(B)
By the public defense services executive director from funds available for the
purpose, in respect to a proceeding in a circuit court.
(C)
By the city, in respect to a proceeding in municipal court.
(4)
Upon completion of all services by the counsel of a person determined to be
eligible for appointed counsel, the counsel shall submit a statement of all
necessary and reasonable fees and expenses of investigation, preparation and
presentation and, if counsel was appointed by the court, a statement of all
necessary and reasonable fees and expenses for legal representation, supported
by appropriate receipts or vouchers and certified by the counsel to be true and
accurate.
(5)
In a county or justice court, the total fees and expenses payable under this
section must be submitted to the court by counsel or other providers and are
subject to the review of the court. The court shall certify that such amount is
fair reimbursement for fees and expenses for representation in the case as
provided in subsection (6) of this section. Upon certification and any
verification as provided under subsection (6) of this section, the amount of
the fees and expenses approved by the court and not already paid shall be paid
by the county.
(6)
In a county or justice court, the court shall certify to the administrative authority
responsible for paying fees and expenses under this section that the amount for
payment is reasonable and that the amount is properly payable out of public
funds.
(7)
In a circuit court, the total fees and expenses payable under this section must
be submitted to and are subject to review by the public defense services
executive director. The public defense services executive director shall
determine whether the amount is necessary, reasonable and properly payable from
public funds for fees and expenses for representation in the case as provided
by the policies, procedures, standards and guidelines of the Public Defense
Services Commission. The public defense services executive director shall pay
the amount of the fees and expenses determined necessary, reasonable and
properly payable out of public funds. The court shall provide any information
identified and requested by the public defense services executive director as
needed for audit, statistical or any other purpose pertinent to ensure the
proper disbursement of state funds or pertinent to the provision of appointed
counsel compensated at state expense.
(8)
If the public defense services executive director denies, in whole or in part,
fees and expenses submitted for review and payment, the person who submitted
the payment request may appeal the decision to the presiding judge of the
circuit court. The presiding judge or the designee of the presiding judge shall
review the public defense services executive director’s decision for abuse of
discretion. The decision of the presiding judge or the designee of the
presiding judge is final.
(9)
The following may not be disclosed to the district attorney prior to the
conclusion of a case:
(a)
Requests and administrative or court orders for preauthorization to incur nonroutine fees and expenses in the investigation,
preparation and presentation of the case; and
(b)
Billings for such fees and expenses submitted by counsel or other providers.
(10)
Notwithstanding subsection (9) of this section, the total amount of moneys
determined to be necessary and reasonable for nonroutine
fees and expenses may be disclosed to the district attorney at the conclusion
of the trial in the circuit court.
(11)
As used in this section unless the context requires otherwise, “counsel”
includes a legal advisor appointed under ORS 135.045. [Formerly 135.330; 1979
c.867 §1; 1981 s.s. c.3 §§122,123; 1985 c.502 §19;
1985 c.710 §2; 1987 c.606 §4; 1987 c.803 §§14,14a; 1989 c.1053 §2; 1991 c.724 §25;
1991 c.750 §8; 1993 c.33 §297; 1995 c.677 §1; 1995 c.781 §39; 1997 c.761 §9;
1999 c.163 §8; 1999 c.583 §1; 2001 c.962 §§26,107; 2003 c.449 §§5,43]
135.060 Communication to defendant as to
use of name in accusatory instrument; effect of acknowledging true name at
arraignment. (1) When the defendant is arraigned,
the defendant shall be informed that:
(a)
If the name by which the defendant is charged in the accusatory instrument is
not the true name of the defendant the defendant must then declare the true
name; and
(b)
If the defendant does not declare the true name as required by paragraph (a) of
this subsection, the defendant is ineligible for any form of release other than
a security release under ORS 135.265.
(2)
The defendant or the attorney for the defendant may acknowledge the true name
of the defendant at arraignment and the acknowledgment may not be used against
the defendant at trial on the underlying charge or any other criminal charge or
fugitive complaint except that:
(a)
The use of different names can be used in determining the defendant’s release
status if the defendant has used different names in different proceedings; and
(b)
A defendant who intentionally falsifies the defendant’s name under this section
or ORS 135.065 while under oath or affirmation is subject to prosecution under
ORS 162.065.
(3)
As used in this section and ORS 135.065, “true name” means:
(a)
The name on the defendant’s birth certificate;
(b)
The defendant’s birth name; or
(c)
If the defendant’s name has been changed by court order or by operation of law,
the name as changed by court order or operation of law. [Formerly 135.340; 2003
c.645 §4]
135.065 Name used in further proceedings;
motion to strike false name. (1) If the
defendant gives no other name, the court may proceed against the defendant by the
name in the accusatory instrument. If the defendant is charged by indictment or
information and alleges that another name is the true name of the defendant,
the court shall direct an entry thereof to be made in its register, and the
subsequent proceedings on the accusatory instrument may be had against the
defendant by that name, referring also to the name by which the defendant is
charged. Before proceeding against the defendant as provided in this
subsection, the court shall attempt to determine the true name of the
defendant. If a birth certificate for the defendant was never created, the
court shall ask the defendant, under oath or affirmation, to give the defendant’s
true name. The court shall proceed under the name given unless the court is
persuaded by a preponderance of the evidence that the name is not the defendant’s
true name.
(2)
Upon motion of the defendant, all names, other than the true name of the
defendant, shall be stricken from any accusatory instrument read or submitted
to the jury.
(3)(a)
The following may file a motion requesting that a false name used by a
defendant be stricken from an accusatory instrument, warrant of arrest or
judgment and that the defendant’s true name, if known, be substituted:
(A)
The district attorney; or
(B)
A person whose name is the same as the false name used by the defendant.
(b)
Before the court may grant a motion filed under paragraph (a)(B) of this
subsection, the court must provide the district attorney with notice of the
motion and an opportunity to respond.
(c)
If the court grants a motion under this subsection, the court shall order that
the false name be stricken from the accusatory instrument, warrant of arrest or
judgment and that the defendant’s true name be substituted. In addition, the
court shall order that any warrant of arrest of the defendant reflect that the
defendant uses a name other than the defendant’s true name. [Formerly 135.350;
1985 c.540 §31; 2003 c.645 §5]
135.067 Effect of failure to provide true
name of defendant on certain types of release.
If a defendant, on or after August 12, 2003, fails to provide the defendant’s
true name under ORS 135.060 or 135.065 and is on personal recognizance,
conditional release or security release having deposited less than the full
security amount set by the magistrate, the magistrate who released the
defendant, upon a motion filed by the district attorney and supported by
probable cause, shall cause the defendant to be brought before the magistrate.
The magistrate shall conduct a hearing to establish release according to ORS
135.245. [2003 c.645 §7]
Note:
135.067 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 135 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
PRELIMINARY HEARING
(Generally)
135.070 Information as to charge, right to
counsel, use of statement, preliminary hearing and use by State Board of Parole
and Post-Prison Supervision. When the
defendant against whom an information has been filed in a preliminary
proceeding appears before a magistrate on a charge of having committed a crime
punishable as a felony, before any further proceedings are had the magistrate
shall read to the defendant the information and shall inform the defendant:
(1)
Of the defendant’s right to the aid of counsel, that the defendant is not
required to make a statement and that any statement made by the defendant may
be used against the defendant.
(2)
That the defendant is entitled to a preliminary hearing and of the nature of a
preliminary hearing. If a preliminary hearing is requested, it shall be held as
soon as practicable but in any event within five days if the defendant is in
custody or within 30 days if the defendant is not in custody. The time may be
extended for good cause shown.
(3)
That if the defendant is on parole, evidence received and the order of the
court at the preliminary hearing may be used by the State Board of Parole and
Post-Prison Supervision to establish that probable cause exists to believe that
a violation of a condition of parole has occurred; and further, that should the
defendant waive the defendant’s right to a preliminary hearing, such waiver
shall also constitute a waiver of a hearing by the board to determine whether
there is probable cause to believe that a violation of one or more of the
conditions of parole has occurred. [Formerly 133.610; 1981 c.644 §2; 1997 c.823
§1]
135.073 Statement by defendant when not
advised of rights. Evidence obtained directly or indirectly
as a result of failure of a magistrate to comply with ORS 135.070 shall not be
admissible before the grand jury. [1973 c.836 §61]
135.075 Obtaining counsel.
The magistrate shall allow the defendant a reasonable time to obtain counsel
and shall adjourn the proceeding for that purpose. A defendant who is committed
pending examination shall be given a reasonable opportunity to obtain counsel,
including but not limited to a reasonable use of the telephone. As used in this
section, “counsel” includes a legal advisor appointed under ORS 135.045. [Formerly
133.620; 2001 c.472 §6]
135.080
[Formerly 133.635; repealed by 1979 c.867 §18]
135.085 Subpoenaing witnesses.
(1) The magistrate shall issue subpoenas for any witness within the state when
requested by the district attorney or the defendant for the preliminary
hearing.
(2)
If either party desires to subpoena more than five witnesses, application therefor shall be made in the manner provided in ORS
136.570. [Formerly 133.660; 1987 c.606 §1]
135.090 Examination of adverse witnesses.
The witnesses shall be examined in the presence of the defendant and may be
cross-examined in behalf of the defendant or against the defendant. [Formerly
133.670]
135.095 Right of defendant to make or
waive making a statement. When the examination of the
witnesses on the part of the state is closed, the magistrate shall inform the
defendant that it is the right of the defendant to make a statement in relation
to the charge against the defendant; that the statement is designed to enable
the defendant, if the defendant sees fit, to answer the charge and explain the
facts alleged against the defendant; that the defendant is at liberty to waive
making a statement; and that the waiver of the defendant cannot be used against
the defendant on the trial. [Formerly 133.680]
135.100 Statement of defendant.
If the defendant chooses to make a statement, the magistrate shall take it in a
recorded proceeding without oath, and shall put to the defendant the following
questions only:
(1)
What is your name and age?
(2)
Where were you born?
(3)
Where do you reside and how long have you resided there?
(4)
What is your business or occupation?
(5)
Give any explanation you think proper of the circumstances appearing in the
testimony against you and state any facts which you think will tend to your
exculpation. [Formerly 133.690; 1991 c.790 §12]
135.105 Use of statement before grand jury
or on trial. The statement of the defendant is
competent testimony to be laid before the grand jury and may be given in
evidence at the trial. [Formerly 133.700]
135.110
[Amended by 1973 c.836 §132; renumbered 135.030]
135.115 Waiver of right to make statement.
If the defendant waives the right of the defendant to make a statement, the
fact of the waiver of the defendant cannot be used against the defendant on the
trial. [Formerly 133.710; 1991 c.790 §13]
135.120
[Repealed by 1973 c.836 §358]
135.125 Examination of defendant’s
witnesses. After the waiver of the defendant to
make a statement or after the defendant has made it, the witnesses of the
defendant, if the defendant produces any, shall be sworn and examined. [Formerly
133.720]
135.130
[Repealed by 1973 c.836 §358]
135.135 Exclusion of witnesses during
examination of others. The magistrate may exclude the
witnesses who have not been examined during the examination of the defendant or
of a witness for the state or the defendant. [Formerly 133.730]
135.139 Notice of availability of testing
for HIV and other communicable diseases to person charged with crime; when
court may order test; victim’s rights. (1) When a
person has been charged with a crime in which it appears from the nature of the
charge that the transmission of body fluids from one person to another may have
been involved, the district attorney, upon the request of the victim or the
parent or guardian of a minor or incapacitated victim, shall seek the consent
of the person charged to submit to a test for HIV and any other communicable
disease. In the absence of such consent or failure to submit to the test, the
district attorney may petition the court for an order requiring the person
charged to submit to a test for HIV and any other communicable disease.
(2)(a)
At the time of an appearance before a circuit court judge on a criminal charge,
the judge shall inform every person arrested and charged with a crime, in which
it appears from the nature of the charge that the transmission of body fluids
from one person to another may have been involved, of the availability of
testing for HIV and other communicable diseases and shall cause the alleged
victim of such a crime, if any, or a parent or guardian of the victim, if any,
to be notified that testing for HIV and other communicable diseases is
available. The judge shall inform the person arrested and charged and the
victim, or parent or guardian of the victim, of the availability of counseling
under the circumstances described in subsection (7) of this section.
(b)
Notwithstanding the provisions of ORS 433.045, if the district attorney files a
petition under subsection (1) of this section, the court shall order the person
charged to submit to testing if the court determines there is probable cause to
believe that:
(A)
The person charged committed the crime; and
(B)
The victim has received a substantial exposure, as defined by rule of the
Oregon Health Authority.
(3)
Notwithstanding the provisions of ORS 433.045, upon conviction of a person for
any crime in which the court determines from the facts that the transmission of
body fluids from one person to another was involved and if the person has not
been tested pursuant to subsection (2) of this section, the court shall seek
the consent of the convicted person to submit to a test for HIV and other
communicable diseases. In the absence of such consent or failure to submit to
the test, the court shall order the convicted person to submit to the test if
the victim of the crime, or a parent or guardian of the victim, requests the
court to make such order.
(4)
When a test is ordered under subsection (2) or (3) of this section, the victim
of the crime or a parent or guardian of the victim, shall designate an
attending physician to receive such information on behalf of the victim.
(5)
If an HIV test results in a negative reaction, the court may order the person
to submit to another HIV test six months after the first test was administered.
(6)
The result of any test ordered under this section is not a public record and
shall be available only to:
(a)
The victim.
(b)
The parent or guardian of a minor or incapacitated victim.
(c)
The attending physician who is licensed to practice medicine.
(d)
The Oregon Health Authority.
(e)
The person tested.
(7)
If an HIV test ordered under this section results in a positive reaction, the
individual subject to the test shall receive post-test counseling as required
by the Oregon Health Authority by rule. The results of HIV tests ordered under
this section shall be reported to the authority. Counseling and referral for
appropriate health care, testing and support services as directed by the
Director of the Oregon Health Authority shall be provided to the victim or
victims at the request of the victim or victims, or the parent or guardian of a
minor or incapacitated victim.
(8)
The costs of testing and counseling provided under subsections (2), (3) and (7)
of this section shall be paid through the compensation for crime victims
program authorized by ORS 147.005 to 147.367 from amounts appropriated for such
purposes. Restitution to the state for payment of the costs of any counseling
provided under this section and for payment of the costs of any test ordered
under this section shall be included by the court in any order requiring the
convicted person to pay restitution.
(9)
When a court orders a convicted person to submit to a test under this section,
the withdrawal of blood may be performed only by a physician licensed to
practice medicine or by a licensed health care provider acting within the
provider’s licensed scope of practice or acting under the supervision of a
physician licensed to practice medicine.
(10)
No person authorized by subsection (9) of this section to withdraw blood, no
person assisting in the performance of the test nor any medical care facility
where blood is withdrawn or tested that has been ordered by the court to
withdraw or test blood shall be liable in any civil or criminal action when the
act is performed in a reasonable manner according to generally accepted medical
practices.
(11)
The results of tests or reports, or information therein, obtained under this
section shall be confidential and shall not be divulged to any person not
authorized by this section to receive the information. Any violation of this
subsection is a Class C misdemeanor.
(12)
As used in this section:
(a)
“HIV test” means a test as defined in ORS 433.045.
(b)
“Parent or guardian of the victim” means a custodial parent or legal guardian
of a victim who is a minor or incapacitated person.
(c)
“Positive reaction” means a positive HIV test with a positive confirmatory test
result as specified by the Oregon Health Authority.
(d)
“Transmission of body fluids” means the transfer of blood, semen, vaginal
secretions or other body fluids identified by rule of the authority, from the
perpetrator of a crime to the mucous membranes or potentially broken skin of
the victim.
(e)
“Victim” means the person or persons to whom transmission of body fluids from
the perpetrator of the crime occurred or was likely to have occurred in the
course of the crime. [1989 c.568 §1; 1993 c.331 §1; 1999 c.967 §1; 2009 c.595 §92]
Note:
135.139 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 135 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
135.140
[Amended by 1973 c.836 §133; renumbered 135.035]
135.145 Testimony of witnesses.
The testimony of the witnesses in a preliminary hearing shall be recorded. [Formerly
133.740; 1991 c.790 §14]
135.150
[Repealed by 1973 c.836 §358]
135.155 Retention of record and statements
by magistrate; inspection. The magistrate shall keep the
record of the preliminary hearing and the statement of the defendant, if any,
until the record is returned to the proper court and shall not permit the record
to be inspected by any person, except the district attorney of the county or
the attorney who acts for the district attorney and the defendant and the
counsel of the defendant. [Formerly 133.750; 1991 c.790 §15]
135.160
[Repealed by 1973 c.836 §358]
135.165 Counsel for complainant; district
attorney. The complainant may employ counsel to
appear against the defendant in every stage of the preliminary hearing; but the
district attorney for the county, either in person or by some attorney
authorized to act for the district attorney, is entitled to appear on behalf of
the state and control and direct the prosecution. [Formerly 133.760]
135.170
[Repealed by 1973 c.836 §358]
135.173 Oregon Evidence Code to apply in
preliminary hearings; exception. The Oregon
Evidence Code shall apply in any preliminary hearing under this chapter, except
that hearsay may be admitted if the court determines that it would impose an
unreasonable hardship on one of the parties or on a witness to require that the
primary source of the evidence be produced at the hearing, and if the witness
furnishes information bearing on the informant’s reliability and, as far as
possible, the means by which the information was obtained. [1981 c.892 §88b]
(Discharge or Commitment)
135.175 Discharge.
After hearing the evidence and the statement of the defendant, if the defendant
has made one, unless there is a showing of probable cause that a crime has been
committed and that the defendant committed it, the magistrate shall dismiss the
information and order the defendant to be discharged. [Formerly 133.810]
135.180
[Repealed by 1973 c.836 §358]
135.185 Holding defendant to answer; use
of hearsay evidence. If it appears from the
preliminary hearing that there is probable cause to believe that a crime has
been committed and that the defendant committed it, the magistrate shall make a
written order holding the defendant for further proceedings on the charge. When
hearsay evidence was admitted at the preliminary hearing, the magistrate, in determining
the existence of probable cause, shall consider:
(1)
The extent to which the hearsay quality of the evidence affects the weight it
should be given; and
(2)
The likelihood of evidence other than hearsay being available at trial to
provide the information furnished by hearsay at the preliminary hearing. [Formerly
133.820; 1981 c.892 §88c; 2007 c.71 §33]
135.190
[Repealed by 1973 c.836 §358]
135.195 Commitment.
If the magistrate orders the defendant to be held to answer, the magistrate
shall make out a commitment, signed by the magistrate with the name of office
of the magistrate, and deliver it with the defendant to the officer to whom the
defendant is committed or, if that officer is not present, to any peace
officer, who shall immediately deliver the defendant into the proper custody,
together with the commitment. [Formerly 133.830]
135.200
[Repealed by 1973 c.836 §358]
135.205 Indorsement
in certain cases. When the magistrate delivers the
defendant to a peace officer other than the one to whom the defendant is
committed, the magistrate shall first make an indorsement
on the commitment directing the officer to deliver the defendant and the
commitment to the custody of the appropriate sheriff. [Formerly 133.840]
135.210
[Repealed by 1973 c.836 §358]
135.215 Direction to sheriff; detention of
defendant. The commitment shall be directed to the
sheriff of the county in which the magistrate is sitting. Such sheriff shall
receive and detain the defendant, as thereby commanded, in a jail located in
the county of the sheriff or, if there is no sufficient jail in the county, by
such means as may be necessary and proper therefor or
by confining the defendant in the jail of an adjoining county within or without
the state. [Formerly 133.850; 1987 c.550 §2]
135.225 Forwarding of papers by
magistrate. When the magistrate has held the
defendant to answer, the magistrate shall at once forward to the court in which
the defendant would be triable:
(1)
The warrant, if any;
(2)
The information;
(3)
The statement of the defendant, if the defendant made one;
(4)
The memoranda mentioned in ORS 135.115 and 135.145;
(5)
The release agreement or security release of the defendant; and
(6)
If applicable, any security taken for the appearance of witnesses. [Formerly
133.860; 2005 c.22 §108]
RELEASE OF DEFENDANT
135.230 Definitions for ORS 135.230 to
135.290. As used in ORS 135.230 to 135.290,
unless the context requires otherwise:
(1)
“Abuse” means:
(a)
Attempting to cause or intentionally, knowingly or recklessly causing physical
injury;
(b)
Intentionally, knowingly or recklessly placing another in fear of imminent
serious physical injury; or
(c)
Committing sexual abuse in any degree as defined in ORS 163.415, 163.425 and
163.427.
(2)
“Conditional release” means a nonsecurity release
which imposes regulations on the activities and associations of the defendant.
(3)
“Domestic violence” means abuse between family or household members.
(4)
“Family or household members” means any of the following:
(a)
Spouses.
(b)
Former spouses.
(c)
Adult persons related by blood or marriage.
(d)
Persons cohabiting with each other.
(e)
Persons who have cohabited with each other or who have been involved in a
sexually intimate relationship.
(f)
Unmarried parents of a minor child.
(5)
“Magistrate” has the meaning provided for this term in ORS 133.030.
(6)
“Personal recognizance” means the release of a defendant upon the promise of
the defendant to appear in court at all appropriate times.
(7)
“Primary release criteria” includes the following:
(a)
The reasonable protection of the victim or public;
(b)
The nature of the current charge;
(c)
The defendant’s prior criminal record, if any, and, if the defendant previously
has been released pending trial, whether the defendant appeared as required;
(d)
Any facts indicating the possibility of violations of law if the defendant is
released without regulations; and
(e)
Any other facts tending to indicate that the defendant is likely to appear.
(8)
“Release” means temporary or partial freedom of a defendant from lawful custody
before judgment of conviction or after judgment of conviction if defendant has
appealed.
(9)
“Release agreement” means a sworn writing by the defendant stating the terms of
the release and, if applicable, the amount of security.
(10)
“Release decision” means a determination by a magistrate, using primary and
secondary release criteria, which establishes the form of the release most
likely to ensure the safety of the public and the victim, the defendant’s court
appearance and that the defendant does not engage in domestic violence while on
release.
(11)
“Secondary release criteria” includes the following:
(a)
The defendant’s employment status and history and financial condition;
(b)
The nature and extent of the family relationships of the defendant;
(c)
The past and present residences of the defendant;
(d)
Names of persons who agree to assist the defendant in attending court at the
proper time; and
(e)
Any facts tending to indicate that the defendant has strong ties to the
community.
(12)
“Security release” means a release conditioned on a promise to appear in court
at all appropriate times which is secured by cash, stocks, bonds or real
property.
(13)
“Surety” is one who executes a security release and binds oneself to pay the
security amount if the defendant fails to comply with the release agreement. [1973
c.836 §146; 1993 c.731 §4; 1997 c.313 §18]
135.235 Release assistance officer;
appointment; duties. (1) If directed by the presiding
judge for a judicial district, a release assistance officer, and release
assistance deputies who shall be responsible to the release assistance officer,
shall be appointed under a personnel plan established by the Chief Justice of
the Supreme Court.
(2)
The release assistance officer shall, except when impracticable, interview
every person detained pursuant to law and charged with an offense.
(3)
The release assistance officer shall verify release criteria information and
may either:
(a)
Timely submit a written report to the magistrate containing, but not limited
to, an evaluation of the release criteria and a recommendation for the form of
release; or
(b)
If delegated release authority by the presiding judge for the judicial
district, make the release decision. [1973 c.836 §147; 1981 s.s.
c.3 §37; 1995 c.781 §40]
135.240 Releasable offenses.
(1) Except as provided in subsections (2), (4) and (5) of this section, a
defendant shall be released in accordance with ORS 135.230 to 135.290.
(2)(a)
When the defendant is charged with murder, aggravated murder or treason,
release shall be denied when the proof is evident or the presumption strong
that the person is guilty.
(b)
When the defendant is charged with murder or aggravated murder and the proof is
not evident nor the presumption strong that the defendant is guilty, the court
shall determine the issue of release as provided in subsection (4) of this
section. In determining the issue of release under subsection (4) of this
section, the court may consider any evidence used in making the determination
required by this subsection.
(3)
The magistrate may conduct such hearing as the magistrate considers necessary
to determine whether, under subsection (2) of this section, the proof is
evident or the presumption strong that the person is guilty.
(4)(a)
Except as otherwise provided in subsection (5) of this section, when the
defendant is charged with a violent felony, release shall be denied if the
court finds:
(A)
Except when the defendant is charged by indictment, that there is probable
cause to believe that the defendant committed the crime; and
(B)
By clear and convincing evidence, that there is a danger of physical injury or
sexual victimization to the victim or members of the public by the defendant
while on release.
(b)
If the defendant wants to have a hearing on the issue of release, the defendant
must request the hearing at the time of arraignment in circuit court. If the
defendant requests a release hearing, the court must hold the hearing within
five days of the request.
(c)
At the release hearing, unless the state stipulates to the setting of security
or release, the court shall make the inquiry set forth in paragraph (a) of this
subsection. The state has the burden of producing evidence at the release hearing
subject to ORS 40.015 (4).
(d)
The defendant may be represented by counsel and may present evidence on any
relevant issue. However, the hearing may not be used for purposes of discovery.
(e)
If the court determines that the defendant is eligible for release in
accordance with this subsection, the court shall set security or other
appropriate conditions of release.
(f)
When a defendant who has been released violates a condition of release and the
violation:
(A)
Constitutes a new criminal offense, the court shall cause the defendant to be
taken back into custody and shall order the defendant held pending trial
without release.
(B)
Does not constitute a new criminal offense, the court may order the defendant
to be taken back into custody, may order the defendant held pending trial and
may set a security amount of not less than $250,000.
(5)(a)
Notwithstanding any other provision of law, the court shall set a security
amount of not less than $50,000 for a defendant charged with an offense listed
in ORS 137.700 or 137.707 unless the court determines that amount to be
unconstitutionally excessive, and may not release the defendant on any form of
release other than a security release if:
(A)
The United States Constitution or the Oregon Constitution prohibits the denial
of release under subsection (4) of this section;
(B)
The court determines that the defendant is eligible for release under
subsection (4) of this section; or
(C)
The court finds that the offense is not a violent felony.
(b)
In addition to the security amount described in paragraph (a) of this
subsection, the court may impose any supervisory conditions deemed necessary
for the protection of the victim and the community. When a defendant who has
been released violates a condition of release and the violation:
(A)
Constitutes a new criminal offense, the court shall cause the defendant to be
taken back into custody, shall order the defendant held pending trial and shall
set a security amount of not less than $250,000.
(B)
Does not constitute a new criminal offense, the court may order the defendant
to be taken back into custody, may order the defendant held pending trial and
may set a security amount of not less than $250,000.
(6)
For purposes of this section, “violent felony” means a felony offense in which
there was an actual or threatened serious physical injury to the victim, or a
felony sexual offense. [1973 c.836 §148; 1997 c.313 §19; 2001 c.104 §45; 2007
c.194 §1; 2007 c.879 §9]
135.242 Security release for certain
methamphetamine offenses. (1) When a defendant is charged
with an offense described in subsection (7) of this section, the court may not
release the defendant on any form of release other than a security release and
shall set a security amount of not less than $500,000 if the court finds:
(a)
Except when the defendant is charged by indictment, that there is probable
cause to believe that the defendant committed the crime; and
(b)
By clear and convincing evidence that there is a danger that the defendant
will:
(A)
Fail to appear in court at all appropriate times;
(B)
Commit a new criminal offense; or
(C)
Pose a threat to the reasonable protection of the public.
(2)
If the defendant wants to have a hearing on the issue of release, the defendant
must request the hearing at the time of arraignment in circuit court. If the
defendant requests a release hearing, the court must hold the hearing within
five days of the request.
(3)
At the release hearing, unless the state stipulates to the setting of a
security amount less than $500,000, the court shall make the inquiry set forth
in subsection (1) of this section. The state has the burden of producing
evidence at the release hearing subject to ORS 40.015 (4).
(4)
The defendant may be represented by counsel and may present evidence on any
relevant issue. However, the hearing may not be used for purposes of discovery.
(5)
If the court determines that the defendant is eligible for a security amount of
less than $500,000, the court shall reduce the security amount to an amount not
less than $50,000 and may set other appropriate conditions of release.
(6)
When a defendant who has been released after posting the security amount
described in subsection (5) of this section violates a condition of release and
the violation:
(a)
Constitutes a new criminal offense, the court shall cause the defendant to be
taken back into custody and shall impose a security amount of not less than
$500,000.
(b)
Does not constitute a new criminal offense, the court may order the defendant
to be taken back into custody, may order the defendant held pending trial and
may set a security amount of not less than $250,000.
(7)
The offenses to which subsection (1) of this section applies are:
(a)
Manufacture of methamphetamine under ORS 475.886.
(b)
Manufacture of methamphetamine within 1,000 feet of a school under ORS 475.888.
(c)
Delivery of methamphetamine within 1,000 feet of a school under ORS 475.892.
(d)
Delivery of methamphetamine under ORS 475.890 if the delivery involves:
(A)
Substantial quantities of methamphetamine under ORS 475.900 (1)(a)(C); or
(B)
A commercial drug offense under ORS 475.900 (1)(b).
(e)
Delivery of methamphetamine to a minor under ORS 475.906.
(8)
Nothing in this section affects the ability of a county court or board of
commissioners of a county to adopt or implement a jail capacity limit and
action plan under ORS 169.042 to 169.046. [2008 c.52 §1]
135.245 Release decision.
(1) Except as provided in ORS 135.240, a person in custody has the right to
immediate security release or to be taken before a magistrate without undue
delay. If the person is not released under ORS 135.270, or otherwise released
before arraignment, the magistrate shall advise the person of the right of the
person to a security release as provided in ORS 135.265.
(2)
If a person in custody does not request a security release at the time of
arraignment, the magistrate shall make a release decision regarding the person
within 48 hours after the arraignment.
(3)
If the magistrate, having given priority to the primary release criteria,
decides to release a defendant or to set security, the magistrate shall impose
the least onerous condition reasonably likely to ensure the safety of the
public and the victim and the person’s later appearance and, if the person is charged
with an offense involving domestic violence, ensure that the person does not
engage in domestic violence while on release. A person in custody, otherwise
having a right to release, shall be released upon the personal recognizance
unless:
(a)
Release criteria show to the satisfaction of the magistrate that such a release
is unwarranted; or
(b)
Subsection (6) of this section applies to the person.
(4)
Upon a finding that release of the person on personal recognizance is
unwarranted, the magistrate shall impose either conditional release or security
release.
(5)
At the release hearing:
(a)
The district attorney has a right to be heard in relation to issues relevant to
the release decision; and
(b)
The victim has the right:
(A)
Upon request made within the time period prescribed in the notice required by
ORS 147.417, to be notified by the district attorney of the release hearing;
(B)
To appear personally at the hearing; and
(C)
If present, to reasonably express any views relevant to the issues before the
magistrate.
(6)
If a person refuses to provide a true name under the circumstances described in
ORS 135.060 and 135.065, the magistrate may not release the person on personal
recognizance or on conditional release. The magistrate may release the person
on security release under ORS 135.265 except that the magistrate shall require
the person to deposit the full security amount set by the magistrate.
(7)
This section shall be liberally construed to carry out the purpose of relying
upon criminal sanctions instead of financial loss to assure the appearance of
the defendant. [1973 c.836 §149; 1993 c.731 §5; 1997 c.313 §20; 2003 c.645 §6;
2009 c.178 §27]
135.247 Order prohibiting contact with
victim of sex crime or domestic violence. (1)
When a release assistance officer or a release assistance deputy makes a
release decision under ORS 135.235 involving a defendant charged with a sex
crime or a crime constituting domestic violence, the release assistance officer
or deputy shall include in the decision an order that the defendant be
prohibited from contacting the victim while the defendant is in custody. The
release assistance officer or deputy shall provide the defendant with a written
copy of the order.
(2)
When a defendant who is charged with a sex crime or a crime that constitutes
domestic violence is arraigned, the court shall enter an order continuing an
order issued under subsection (1) of this section or, if no such order has been
entered, enter an order prohibiting the defendant from contacting the victim
while the defendant is in custody.
(3)
Except as provided in subsection (4) of this section, an order described in
subsection (1) or (2) of this section:
(a)
Shall apply at any time during which the defendant is held in custody on the
charge; and
(b)
Shall remain valid until the defendant is sentenced for the crime, the charge
is dismissed or the defendant is acquitted of the crime.
(4)
Upon petition of the victim, the court may enter an order terminating an order
entered under subsection (1) or (2) of this section if the court finds, after a
hearing on the petition, that terminating the order is in the best interests of
the parties and the community.
(5)
As used in this section:
(a)
“Domestic violence” has the meaning given that term in ORS 135.230.
(b)
“Sex crime” has the meaning given that term in ORS 181.594. [2011 c.232 §1]
Note:
135.247 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 135 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
135.250 General conditions of release
agreement. (1) If a defendant is released before
judgment, the conditions of the release agreement shall be that the defendant
will:
(a)
Appear to answer the charge in the court having jurisdiction on a day certain
and thereafter as ordered by the court until the defendant is discharged or the
judgment is entered;
(b)
Submit to the orders and process of the court;
(c)
Not depart this state without leave of the court; and
(d)
Comply with such other conditions as the court may impose.
(2)(a)
In addition to the conditions listed in subsection (1) of this section, if the
defendant is charged with an offense that also constitutes domestic violence,
the court shall include as a condition of the release agreement that the
defendant not contact the victim of the violence.
(b)
Notwithstanding paragraph (a) of this subsection, the court may enter an order
waiving the condition that the defendant have no contact with the victim if:
(A)
The victim petitions the court for a waiver; and
(B)
The court finds, after a hearing on the petition, that waiving the condition is
in the best interests of the parties and the community.
(c)
If the defendant was provided notice and an opportunity to be heard, the court
shall also include in the agreement, when appropriate, terms and findings
sufficient under 18 U.S.C. 922 (d)(8) and (g)(8) to affect the defendant’s
ability to possess firearms and ammunition or engage in activities involving
firearms.
(d)
ORS 107.720 applies to release agreements executed by defendants charged with
an offense that constitutes domestic violence, except that proof of service of
the release agreement is not required and the agreement may not be terminated
at the request of the victim without a hearing.
(3)
If the defendant is released after judgment of conviction, the conditions of
the release agreement shall be that the defendant will:
(a)
Duly prosecute the appeal of the defendant as required by ORS 138.005 to
138.500;
(b)
Appear at such time and place as the court may direct;
(c)
Not depart this state without leave of the court;
(d)
Comply with such other conditions as the court may impose; and
(e)
If the judgment is affirmed or the judgment is reversed and the cause remanded
for a new trial, immediately appear as required by the trial court. [1973 c.836
§150; 1991 c.111 §10; 1993 c.731 §6; 1999 c.617 §3]
135.255 Release agreement.
(1) The defendant shall not be released from custody unless the defendant files
with the clerk of the court in which the magistrate is presiding a release
agreement duly executed by the defendant containing the conditions ordered by
the releasing magistrate or deposits security in the amount specified by the
magistrate in accordance with ORS 135.230 to 135.290.
(2)
A failure to appear as required by the release agreement shall be punishable as
provided in ORS 162.195 or 162.205.
(3)
“Custody” for purposes of a release agreement does not include temporary
custody under the citation procedures of ORS 133.055 to 133.076. [1973 c.836 §151]
135.260 Conditional release.
(1) Conditional release may include one or more of the following conditions:
(a)
Release of the defendant into the care of a qualified person or organization
responsible for supervising the defendant and assisting the defendant in
appearing in court. The supervisor shall not be required to be financially
responsible for the defendant, nor to forfeit money in the event the defendant
fails to appear in court. The supervisor, however, shall notify the court
immediately in the event that the defendant breaches the conditional release.
(b)
Reasonable regulations on the activities, movements, associations and
residences of the defendant, including, if the court finds it appropriate,
restriction of the defendant to the defendant’s own residence or to the
premises thereof.
(c)
Release of the defendant from custody during working hours.
(d)
Any other reasonable restriction designed to assure the defendant’s appearance.
(2)
Except as otherwise provided in ORS 135.250 (2)(b), conditional release shall
include a prohibition against contacting the victim if the defendant is charged
with an offense that also constitutes domestic violence. [1973 c.836 §152; 1985
c.818 §1; 1993 c.731 §7]
135.265 Security release.
(1) If the defendant is not released on personal recognizance under ORS
135.255, or granted conditional release under ORS 135.260, or fails to agree to
the provisions of the conditional release, the magistrate shall set a security
amount that will reasonably assure the defendant’s appearance. The defendant
shall execute the security release in the amount set by the magistrate.
(2)
The defendant shall execute a release agreement and deposit with the clerk of
the court before which the proceeding is pending a sum of money equal to 10
percent of the security amount, but in no event shall such deposit be less than
$25. The clerk shall issue a receipt for the sum deposited. Upon depositing
this sum the defendant shall be released from custody subject to the condition
that the defendant appear to answer the charge in the court having jurisdiction
on a day certain and thereafter as ordered by the court until discharged or
final order of the court. Once security has been given and a charge is pending
or is thereafter filed in or transferred to a court of competent jurisdiction
the latter court shall continue the original security in that court subject to
ORS 135.280 and 135.285. When conditions of the release agreement have been
performed and the defendant has been discharged from all obligations in the
cause, the clerk of the court shall return to the person shown by the receipt
to have made the deposit, unless the court orders otherwise, 85 percent of the
sum which has been deposited and shall retain as security release costs 15
percent, but not less than $5 nor more than $750, of the amount deposited. The
interest that has accrued on the full amount deposited shall also be retained
by the clerk. The amount retained by the clerk of a circuit court shall be paid
over as directed by the State Court Administrator for deposit in the General
Fund. The amount retained by a justice of the peace shall be deposited in the
county treasury. The amount retained by the clerk of a municipal court shall be
deposited in the municipal corporation treasury. At the request of the
defendant the court may order whatever amount is repayable to defendant from
such security amount to be paid to defendant’s attorney of record.
(3)
Instead of the security deposit provided for in subsection (2) of this section
the defendant may deposit with the clerk of the court an amount equal to the
security amount in cash, stocks, bonds, or real or personal property situated
in this state with equity not exempt owned by the defendant or sureties worth
double the amount of security set by the magistrate. The stocks, bonds, real or
personal property shall in all cases be justified by affidavit. The magistrate
may further examine the sufficiency of the security as the magistrate considers
necessary. [1973 c.836 §153; 1979 c.878 §1; 1981 c.837 §1; 1981 s.s. c.3 §112; 1983 c.763 §44; 1987 c.905 §14; 2009
c.659 §§9,11; 2011 c.595 §§158,159]
135.270 Taking of security.
When a security amount has been set by a magistrate for a particular offense or
for a defendant’s release, any person designated by the magistrate may take the
security and release the defendant to appear in accordance with the conditions
of the release agreement. The person designated by the magistrate shall give a
receipt to the defendant for the security so taken and within a reasonable time
deposit the security with the clerk of the court having jurisdiction of the
offense. [1973 c.836 §154]
135.280 Arrest warrant; forfeiture.
(1) Upon failure of a person to comply with any condition of a release
agreement or personal recognizance, the court having jurisdiction may, in
addition to any other action provided by law, issue a warrant for the arrest of
the person at liberty upon a personal recognizance, conditional or security
release.
(2)
A warrant issued under subsection (1) of this section by a municipal judge may
be executed by any peace officer authorized to execute arrest warrants.
(3)
If the defendant does not comply with the conditions of the release agreement,
the court having jurisdiction shall enter an order declaring the entire
security amount to be forfeited. Notice of the order of forfeiture shall be
given forthwith by personal service, by mail or by such other means as are
reasonably calculated to bring to the attention of the defendant and, if
applicable, of the sureties the order of forfeiture. If, within 30 days after
the court declares the forfeiture, the defendant does not appear or satisfy the
court having jurisdiction that appearance and surrender by the defendant was,
or still is, impossible and without fault of the defendant, the court shall
enter judgment for the state, or appropriate political subdivision thereof,
against the defendant and, if applicable, the sureties for the entire security
amount set under ORS 135.265 and the costs of the proceedings. At any time
before or after entry of the judgment, the defendant or the sureties may apply
to the court for a remission of the forfeiture or to modify or set aside the
judgment. The court, upon good cause shown, may remit the forfeiture or any
part thereof or may modify or set aside the judgment as in other criminal
cases, except the portion of the security deposit that the court ordered to be
applied to child support under subsection (4) of this section, as the court
considers reasonable under the circumstances of the case. The court shall adopt
procedures to ensure that the amount deposited under ORS 135.265 is available
for a reasonable period of time for disposition under subsection (4) of this
section.
(4)
After entry of a judgment for the state, the court, upon a motion filed under
ORS 25.715, may order that a portion of the security deposit be applied to any
unsatisfied child support award owed by the defendant and to provide security
for child support payments in accordance with ORS 25.230. The portion of the
security deposit that may be applied to the child support award:
(a)
Is limited to the amount deposited under ORS 135.265 (2);
(b)
May not exceed 66 percent of the entire security amount set under ORS 135.265
if the deposit has been made under ORS 135.265 (3); and
(c)
Does not reduce the money award in the judgment entered under subsection (3) of
this section that is owed to the state.
(5)
When judgment is entered in favor of the state, or any political subdivision of
the state, on any security given for a release, the judgment may be enforced as
a judgment in a civil action. If entered in circuit court, the judgment shall
be entered in the register, and the clerk of the court shall note in the
register that the judgment creates a judgment lien. The district attorney,
county counsel or city attorney may have execution issued on the judgment and
deliver same to the sheriff to be executed by levy on the deposit or security
amount made in accordance with ORS 135.265, or may collect the judgment as
otherwise provided by law. The proceeds of any execution or collection shall be
used to satisfy the judgment and costs and paid into the treasury of the
municipal corporation wherein the security was taken if the offense was defined
by an ordinance of a political subdivision of this state, or paid into the
treasury of the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered by a justice
court, or paid over as directed by the State Court Administrator for deposit in
the Criminal Fine Account, if the offense was defined by a statute of this
state and the judgment was entered by a circuit court. The provisions of this section
shall not apply to amounts deposited upon appearance under ORS 153.061.
(6)
When the judgment of forfeiture is entered, the security deposit or deposit
with the clerk is, by virtue of the judgment alone and without requiring
further execution, forfeited to and may be kept by the state or its appropriate
political subdivision. Except as provided in subsection (4) of this section,
the clerk shall reduce, by the value of the deposit so forfeited, the debt
remaining on the judgment and shall cause the amount on deposit to be
transferred to the revenue account of the state or political subdivision
thereof entitled to receive the proceeds of execution under this section.
(7)
The stocks, bonds, personal property and real property shall be sold in the
same manner as in execution sales in civil actions and the proceeds of such
sale shall be used to satisfy all court costs, prior encumbrances, if any, and
from the balance a sufficient amount to satisfy the judgment shall be paid into
the treasury of the municipal corporation wherein the security was taken if the
offense was defined by an ordinance of a political subdivision of this state,
or paid into the treasury of the county wherein the security was taken if the
offense was defined by a statute of this state and the judgment was entered by
a justice court, or deposited in the General Fund available for general
governmental expenses if the offense was defined by a statute of this state and
the judgment was entered by a circuit court. The balance shall be returned to
the owner. The real property sold may be redeemed in the same manner as real
estate may be redeemed after judicial or execution sales in civil actions. [1973
c.836 §155; 1981 s.s. c.3 §113; 1983 c.763 §45; 1987
c.710 §1; 1987 c.905 §15; 1995 c.658 §74; 1997 c.801 §64; 1999 c.1051 §250;
2001 c.705 §2; 2001 c.829 §10b; 2003 c.576 §161; 2005 c.700 §5; 2011 c.597 §41]
135.285 Modification of release decision;
release upon appeal. (1) If circumstances concerning
the defendant’s release change, the court, on its own motion or upon request by
the district attorney or defendant, may modify the release agreement or the
security release.
(2)
After judgment of conviction in municipal or justice court, the court shall
order the original release agreement, and if applicable, the security, to stand
pending appeal, or deny, increase or reduce the release agreement and the
security. If a defendant appeals after judgment of conviction in circuit court
for any crime other than murder or treason, release shall be discretionary. [1973
c.836 §156; 1995 c.658 §75]
135.290 Punishment by contempt of court.
(1) A supervisor of a defendant on conditional release who knowingly aids the
defendant in breach of the conditional release or who knowingly fails to report
the defendant’s breach is punishable by contempt.
(2)
A defendant may be punished by contempt if the defendant knowingly:
(a)
Breaches any of the regulations in the release agreement imposed pursuant to
ORS 135.260; or
(b)
Violates an order entered under ORS 135.247. [1973 c.836 §157; 2011 c.232 §2]
135.295 Application of ORS 135.230 to
135.290 to certain traffic offenses. Provision for
release contained in ORS 135.230 to 135.290 shall not apply to any traffic
offenses as defined for the Oregon Vehicle Code except the following:
(1)
Reckless driving under ORS 811.140.
(2)
Driving while under the influence of intoxicants under ORS 813.010.
(3)
Failure to perform the duties of a driver under ORS 811.700 or 811.705.
(4)
Criminal driving while suspended or revoked under ORS 811.182.
(5)
Fleeing or attempting to elude a police officer under ORS 811.540. [1974 c.35 §1;
1981 c.818 §3; 1983 c.338 §888; 1987 c.730 §5; 1991 c.208 §3]
PLEADINGS
(Defendant’s Answer Generally)
135.305 Types of answer.
If the defendant does not require time, as provided in ORS 135.380, or if the
defendant does, then on the next day or at such further day as the court may
have allowed the defendant, the defendant may, in answer to the arraignment,
move against the accusatory instrument or demur or plead thereto. [Formerly
135.420]
135.310
[Renumbered 135.040]
135.315 Types of pleading.
The only pleadings on the part of the defendant are the demurrer and plea. [Formerly
135.430]
135.320
[Amended by 1961 c.696 §2; 1967 c.475 §2; 1973 c.836 §134; renumbered 135.045]
135.325 Pleading a judgment.
In pleading a judgment or other determination of or proceeding before a court
or officer of special jurisdiction, it is not necessary for the defendant to
state the facts conferring jurisdiction; but the judgment, determination, or
proceeding may be stated to have been duly given or made. The facts conferring
jurisdiction, however, must be established on the trial. [Formerly 135.450]
135.330
[Amended by 1961 c.698 §1; 1967 c.628 §1; 1971 c.677 §1; renumbered 135.055]
(Plea)
135.335 Pleading by defendant;
alternatives. (1) The kinds of plea to an indictment,
information or complaint, or each count thereof, are:
(a)
Guilty.
(b)
Not guilty.
(c)
No contest.
(2)
A defendant may plead no contest only with the consent of the court. Such a
plea shall be accepted by the court only after due consideration of the views
of the parties and the interest of the public in the effective administration
of justice.
(3)
With the consent of the court and the state, a defendant may enter a
conditional plea of guilty or no contest reserving, in writing, the right, on
appeal from the judgment, to a review of an adverse determination of any
specified pretrial motion. A defendant who finally prevails on appeal may
withdraw the plea. [1973 c.836 §159; 1999 c.134 §1]
135.340
[Amended by 1973 c.836 §136; renumbered 135.060]
135.345 Legal effect of plea of no
contest. A judgment following entry of a no
contest plea is a conviction of the offense to which the plea is entered. [1973
c.836 §160]
135.350
[Amended by 1973 c.836 §137; renumbered 135.065]
135.355 Presentation of plea; entry in
register; forms. (1) Every plea shall be oral and
shall be entered in the register of the court in substantially one of the following
forms:
(a)
“The defendant pleads that defendant is guilty of the offense charged in this
accusatory instrument.”
(b)
“The defendant pleads that defendant is not guilty of the offense charged in
this accusatory instrument.”
(c)
“The defendant pleads no contest to the offense charged in this accusatory
instrument.”
(2)
When a defendant enters a conditional plea of guilty or no contest, the entry
in the register of the court shall so indicate.
(3)
For purposes of this section, an oral plea includes a plea made orally by means
of simultaneous electronic transmission as described in ORS 131.045. [Formerly
135.830; 1985 c.540 §32; 1999 c.134 §2; 2005 c.566 §6]
135.360 Special provisions relating to
presentation of plea of guilty or no contest. (1) Except
as provided in subsection (2) of this section, a plea of guilty or no contest
to a crime punishable as a felony shall in all cases be put in by the defendant
in person in open court unless upon an accusatory instrument against a
corporation, in which case it may be put in by counsel.
(2)
Any circuit judge may, within any county in the own district of the judge other
than the county where the accusation is pending, accept pleas of guilty or no
contest from persons charged with a crime punishable as a felony and pass
sentence thereon upon written request of the accused and the attorney of the
accused and upon not less than one day’s notice to the district attorney.
Judgments based upon such pleas and sentences entered upon the pleas are as
effective as though heard and determined in open court in the county where the
accusation is pending. Judges accepting the pleas shall transmit the pleas to
the clerk of the court in the county where the accusation is pending, whereupon
the clerk shall file and enter the pleas to become effective from the date of
filing.
(3)
A judge may accept a plea of guilty or no contest under subsection (1) of this
section by simultaneous electronic transmission, as defined in ORS 131.045,
without the agreement of the state or the defendant if the plea is entered at
arraignment and the type of simultaneous electronic transmission available
allows the defendant to observe the court and the court to observe the
defendant. [Formerly 135.840; 2005 c.566 §7]
135.365 Withdrawal of plea of guilty or no
contest. The court may at any time before
judgment, upon a plea of guilty or no contest, permit it to be withdrawn and a
plea of not guilty substituted therefor. [Formerly
135.850]
135.370 Not guilty plea as denial of
allegations of accusatory instrument. The plea of
not guilty controverts and is a denial of every material allegation in the
accusatory instrument. [Formerly 135.860]
135.375 Pleading to other offenses.
(1) As used in this section:
(a)
“Initiating county” means the county in which the defendant appears for the
purpose of entering a plea to a criminal charge.
(b)
“Responding county” means a county in which another criminal charge is pending
against the defendant entering a plea in the initiating county.
(2)
Upon entry of a plea of guilty or no contest, or after conviction on a plea of
not guilty, if a charge is pending against the defendant for a crime which is
within the jurisdiction of a coordinate court of a responding county in the
state, the defendant may state in writing that the defendant desires:
(a)
To waive venue and trial in the responding county;
(b)
To waive indictment by the grand jury of the responding county;
(c)
To plead guilty or no contest; and
(d)
To consent to disposition of the case by the court in the initiating county.
(3)
Upon receipt of the request and the written approval of the district attorney
of the initiating county, the clerk of the court shall forthwith transmit
copies of the request and approval to the court and the district attorney of the
responding county.
(4)
Upon receipt of the papers described in subsection (3) of this section and the
written approval of the district attorney of the responding county, the clerk
of the court shall forthwith transmit certified copies of the papers in the
proceeding to the court of the initiating county.
(5)
Upon receipt of the papers described in subsection (4) of this section, the
court may allow the defendant to enter the plea.
(6)
The original judgment entered by the court of the initiating county shall be
transmitted to the court of the responding county for filing. The judgment
shall thereafter be considered, for all purposes, the same as a judgment of the
court of the responding county. [1973 c.836 §165; 1991 c.111 §11]
135.380 Time of entering plea; aid of
counsel. (1) A defendant shall not be required
to plead to an offense punishable by imprisonment until the defendant is
represented by counsel, unless the defendant knowingly waives the right of the
defendant to counsel.
(2)
A defendant may plead guilty or no contest on the day of arraignment or any
time thereafter except that a defendant without counsel shall not be allowed to
plead guilty or no contest to a felony on the day of arraignment.
(3)
Upon completion of the arraignment, unless the defendant enters a plea in the
manner provided in ORS 135.305 to 135.325, 135.335, 135.355, 135.360 and
135.375, the defendant shall be considered to have entered a plea of not
guilty. [1973 c.836 §166; 2001 c.635 §13]
135.385 Defendant to be advised by court.
(1) The court shall not accept a plea of guilty or no contest to a felony or
other charge on which the defendant appears in person without first addressing
the defendant personally and determining that the defendant understands the
nature of the charge.
(2)
The court shall inform the defendant:
(a)
That by a plea of guilty or no contest the defendant waives the right:
(A)
To trial by jury;
(B)
Of confrontation; and
(C)
Against self-incrimination.
(b)
Of the maximum possible sentence on the charge, including the maximum possible
sentence from consecutive sentences.
(c)
When the offense charged is one for which a different or additional penalty is
authorized by reason of the fact that the defendant may be adjudged a dangerous
offender, that this fact may be established after a plea in the present action,
thereby subjecting the defendant to different or additional penalty.
(d)
That if the defendant is not a citizen of the United States conviction of a
crime may result, under the laws of the United States, in deportation,
exclusion from admission to the United States or denial of naturalization.
(e)
That if the defendant is entering a guilty plea pursuant to a plea offer and
agreed disposition recommendation under ORS 135.405, the court will agree to
impose sentence as provided in the agreed disposition recommendation.
(f)
That if the defendant enters a plea of guilty or no contest to an offense
involving domestic violence, as defined in ORS 135.230, and is convicted of the
offense, federal law may prohibit the defendant from possessing, receiving,
shipping or transporting any firearm or firearm ammunition and that the
conviction may negatively affect the defendant’s ability to serve in the Armed
Forces of the United States as defined in ORS 348.282 or to be employed in law
enforcement. [1973 c.836 §167; 1979 c.118 §1; 2001 c.635 §12; 2007 c.220 §1]
135.390 Determining voluntariness of plea;
nature of plea agreement. (1) The court shall not accept a
plea of guilty or no contest without first determining that the plea is
voluntary and intelligently made.
(2)
The court shall determine whether the plea is the result of prior plea
discussions and a plea agreement. If the plea is the result of a plea
agreement, the court shall determine the nature of the agreement.
(3)
If the plea agreement includes an agreement that the district attorney will
seek or not oppose dismissal of a charge in exchange for the defendant’s plea
of guilty or no contest to another charge, the court may not accept the plea of
guilty or no contest unless:
(a)
The agreement includes a written provision that indicates whether the court is
required to reinstate charges that are dismissed pursuant to the agreement if
the plea of guilty or no contest is withdrawn under ORS 135.365 or the judgment
of conviction is subsequently reversed, vacated or set aside; and
(b)
If the agreement requires the court to reinstate charges under the
circumstances described in paragraph (a) of this subsection, the defendant has
provided the court with a written waiver of the statute of limitations and any
statutory or constitutional speedy trial or double jeopardy rights, applicable
to the dismissed charges.
(4)
If the district attorney has agreed to seek charge or sentence concessions
which must be approved by the court, the court shall advise the defendant
personally that the recommendations of the district attorney are not binding on
the court.
(5)(a)
If the district attorney has provided a plea offer and agreed disposition
recommendation to the defendant as provided in ORS 135.405 and the defendant is
entering a guilty plea based on the plea offer and agreed disposition
recommendation, the court shall determine whether the plea is voluntarily made.
Except as otherwise provided in paragraph (b) of this subsection, if the court
finds that the plea is voluntarily made, the court shall impose sentence as
provided in the agreed disposition recommendation.
(b)
If the court determines that the agreed disposition recommendation is
inappropriate in a particular case, the court shall so advise the parties and
allow the defendant an opportunity to withdraw the plea. [1973 c.836 §168; 2001
c.635 §11; 2009 c.356 §1]
135.395 Determining accuracy of plea.
After accepting a plea of guilty or no contest, the court shall not enter a
judgment without making such inquiry as may satisfy the court that there is a
factual basis for the plea. [1973 c.836 §169]
(Plea Discussions and Agreements)
135.405 Plea discussions and plea
agreements. (1) In cases in which it appears that
the interest of the public in the effective administration of criminal justice
would thereby be served, and in accordance with the criteria set forth in ORS
135.415, the district attorney may engage in plea discussions for the purpose
of reaching a plea agreement.
(2)
The district attorney shall engage in plea discussions or reach a plea
agreement with the defendant only through defense counsel, except when, as a
matter of record, the defendant has effectively waived the right of the
defendant to counsel or, if the defendant is not eligible for appointed
counsel, has not retained counsel.
(3)
The district attorney in reaching a plea agreement may agree to, but is not
limited to, one or more of the following, as required by the circumstances of
the individual case:
(a)
To make or not to oppose favorable recommendations as to the sentence which
should be imposed if the defendant enters a plea of guilty or no contest to the
offense charged;
(b)
To seek or not to oppose dismissal of the offense charged if the defendant
enters a plea of guilty or no contest to another offense reasonably related to
the defendant’s conduct; or
(c)
To seek or not to oppose dismissal of other charges or to refrain from bringing
potential charges if the defendant enters a plea of guilty or no contest to the
offense charged.
(4)
Similarly situated defendants should be afforded equal plea agreement
opportunities.
(5)(a)
A district attorney may provide a plea offer and agreed disposition
recommendation to the defendant at the time of arraignment or first appearance
of the defendant for a crime in open court under an early disposition program
established under ORS 135.941.
(b)
Unless extended by the court, a plea offer and agreed disposition
recommendation made under paragraph (a) of this subsection expire upon
completion of the arraignment. Except for good cause, a court may not extend a
plea offer and agreed disposition recommendation under this paragraph for more
than seven days for a misdemeanor or 21 days for a felony. [1973 c.836 §170;
2001 c.635 §10; 2001 c.962 §79]
135.406 [1997
c.313 §3; repealed by 2009 c.178 §35]
135.407 Plea agreement must contain
defendant’s criminal history classification; stipulations.
In cases arising from felonies committed on or after November 1, 1989:
(1)
Whenever a plea agreement is presented to the sentencing judge, the defendant’s
criminal history classification, as set forth in the rules of the Oregon
Criminal Justice Commission, shall be accurately represented to the trial judge
in the plea agreement. If a controversy exists as to whether a prior conviction
or juvenile adjudication should be included in the defendant’s criminal
history, or as to its classification under rules of the Oregon Criminal Justice
Commission, the district attorney and the defendant may stipulate to the
inclusion, exclusion or classification of the conviction or adjudication as
part of the plea agreement subject to approval of the court.
(2)
The district attorney and the defendant may stipulate to the grid block
classification within the sentencing guidelines grid established by the rules
of the Oregon Criminal Justice Commission that will provide the presumptive
sentence range for the offender. The sentencing judge may accept the stipulated
classification and impose the presumptive sentence provided in the rules of the
Oregon Criminal Justice Commission for that grid block.
(3)
If the district attorney and the defendant stipulate to a grid block
classification within the sentencing guidelines grid, and the sentencing judge
accepts the stipulated classification but imposes a sentence other than the
presumptive sentence provided by rules of the Oregon Criminal Justice
Commission, the sentence is a departure sentence and is subject to rules of the
Oregon Criminal Justice Commission related to departures.
(4)
The district attorney and defendant may stipulate to a specific sentence within
the presumptive range provided by rules of the Oregon Criminal Justice
Commission for the stipulated offender classification. If the sentencing judge
accepts the plea agreement, the judge shall impose the stipulated sentence.
(5)
The district attorney and the defendant may stipulate to a sentence outside the
presumptive sentence range for a stipulated grid block classification. The sentencing
judge may accept an agreement for an optional probationary sentence or a
departure sentence as provided in rules of the Oregon Criminal Justice
Commission. [1989 c.790 §2]
135.410
[Repealed by 1973 c.836 §358]
135.415 Criteria to be considered in plea
discussions and plea agreements. In
determining whether to engage in plea discussions for the purpose of reaching a
plea agreement, the district attorney may take into account, but is not limited
to, any of the following considerations:
(1)
The defendant by the plea of the defendant has aided in insuring the prompt and
certain applications of correctional measures to the defendant.
(2)
The defendant has acknowledged guilt and shown a willingness to assume
responsibility for the conduct of the defendant.
(3)
The concessions made by the state will make possible alternative correctional
measures which are better adapted to achieving rehabilitative, protective,
deterrent or other purposes of correctional treatment, or will prevent undue
harm to the defendant from the form of conviction.
(4)
The defendant has made public trial unnecessary when there are good reasons for
not having the case dealt with in a public trial.
(5)
The defendant has given or offered cooperation when the cooperation has resulted
or may result in the successful prosecution of other offenders engaged in
equally serious or more serious criminal conduct.
(6)
The defendant by the plea of the defendant has aided in avoiding delay in the
disposition of other cases and thereby has increased the probability of prompt
and certain application of correctional measures to other offenders. [1973
c.836 §171]
135.420
[Amended by 1973 c.836 §158; renumbered 135.305]
135.425 Responsibilities of defense
counsel. (1) Defense counsel shall conclude a
plea agreement only with the consent of the defendant, and shall insure that
the decision whether to enter a plea of guilty or no contest is ultimately made
by the defendant.
(2)
To aid the defendant in reaching a decision, defense counsel, after appropriate
investigation, shall advise the defendant of the alternatives available and of
factors considered important by the defense counsel or the defendant in
reaching a decision. [1973 c.836 §172]
135.430
[Renumbered 135.315]
135.432 Responsibilities of trial judge.
(1)(a) The trial judge may not participate in plea discussions, except:
(A)
To inquire of the parties about the status of any discussions;
(B)
To participate in a tentative plea agreement as provided in subsections (2) to
(4) of this section;
(C)
To make the inquiries required by ORS 147.512; or
(D)
As provided in subsection (5) of this section.
(b)
Any other judge, at the request of both the prosecution and the defense, or at
the direction of the presiding judge, may participate in plea discussions.
Participation by a judge in the plea discussion process shall be advisory, and
shall in no way bind the parties. If no plea is entered pursuant to these
discussions, the advice of the participating judge shall not be reported to the
trial judge. If the discussion results in a plea of guilty or no contest, the
parties, if they both agree to do so, may proceed with the plea before a judge
involved in the discussion. This plea may be entered pursuant to a tentative
plea agreement as provided in subsections (2) to (4) of this section.
(2)
If a tentative plea agreement has been reached which contemplates entry of a
plea of guilty or no contest in the expectation that charge or sentence
concessions will be granted, the trial judge, upon request of the parties, may
permit the disclosure to the trial judge of the tentative agreement and the
reasons therefor in advance of the time for tender of
the plea. The trial judge may then advise the district attorney and defense
counsel whether the trial judge will concur in the proposed disposition if the
information in the presentence report or other information available at the
time for sentencing is consistent with the representations made to the trial
judge.
(3)
If the trial judge concurs, but later decides that the final disposition of the
case should not include the sentence concessions contemplated by the plea
agreement, the trial judge shall so advise the defendant and allow the
defendant a reasonable period of time in which to either affirm or withdraw a
plea of guilty or no contest.
(4)
When a plea of guilty or no contest is tendered or received as a result of a
prior plea agreement, the trial judge shall give the agreement due
consideration, but notwithstanding its existence, the trial judge is not bound
by it, and may reach an independent decision on whether to grant sentence
concessions under the criteria set forth in ORS 135.415.
(5)
With the consent of the parties and upon receipt of a written waiver executed
by the defendant, the trial judge may participate in plea discussions. [1973
c.836 §173; 1987 c.202 §1; 1997 c.313 §4; 2009 c.178 §33]
135.435 Discussion and agreement not
admissible. (1) Except as provided in subsection
(2) of this section, none of the following shall be received in evidence for or
against a defendant in any criminal or civil action or administrative
proceeding:
(a)
The fact that the defendant or the counsel of the defendant and the district
attorney engaged in plea discussions.
(b)
The fact that the defendant or the attorney of the defendant made a plea
agreement with the district attorney.
(c)
Any statement or admission made by the defendant or the attorney of the
defendant to the district attorney and as a part of the plea discussion or
agreement.
(2)
The provisions of subsection (1) of this section shall not apply if, subsequent
to the plea discussions or plea agreement, the defendant enters a plea of
guilty or no contest which is not withdrawn. [1973 c.836 §174]
135.440
[Repealed by 1973 c.836 §358]
135.445 Withdrawn plea or statement not
admissible. (1) A plea of guilty or no contest
which is not accepted or has been withdrawn shall not be received against the
defendant in any criminal proceeding.
(2)
No statement or admission made by a defendant or the attorney of the defendant
during any proceeding relating to a plea of guilty or no contest which is not
accepted or has been withdrawn shall be received against the defendant in any
criminal proceeding. [1973 c.836 §175]
135.450
[Renumbered 135.325]
(Related Procedure)
135.455 Notice prior to trial of intention
to rely on alibi evidence; content of notice; effect of failure to supply
notice. (1) If the defendant in a criminal
action proposes to rely in any way on alibi evidence, the defendant shall, not
less than five days before the trial of the cause, file and serve upon the
district attorney a written notice of the purpose to offer such evidence, which
notice shall state specifically the place or places where the defendant claims
to have been at the time or times of the alleged offense together with the name
and residence or business address of each witness upon whom the defendant
intends to rely for alibi evidence. If the defendant fails to file and serve
such notice, the defendant shall not be permitted to introduce alibi evidence
at the trial of the cause unless the court for good cause orders otherwise.
(2)
As used in this section “alibi evidence” means evidence that the defendant in a
criminal action was, at the time of commission of the alleged offense, at a
place other than the place where such offense was committed. [Formerly 135.875]
135.460
[Repealed by 1973 c.836 §358]
135.465 Defect in accusatory instrument as
affecting acquittal on merits. When the
defendant is acquitted on the merits, the defendant is considered acquitted of
the offense charged in the accusatory instrument, notwithstanding a defect in
form or substance in the accusatory instrument on which the defendant is
acquitted. [Formerly 135.880]
PRETRIAL MOTIONS
135.470 Motion to dismiss accusatory
instrument on grounds of former jeopardy. (1)
The court shall dismiss the accusatory instrument if, upon motion of the
defendant, it appears, as a matter of law, that a former prosecution bars the
prosecution for the offense charged.
(2)
The time of making the motion and its effect shall be as provided for a motion
to set aside the indictment in ORS 135.520 and 135.530.
(3)
An order to dismiss the accusatory instrument on grounds of former jeopardy is
a bar to a future prosecution of the defendant for the offense charged in the
accusatory instrument. [1973 c.836 §177]
135.510 Grounds for motion to set aside
the indictment. (1) The indictment shall be set
aside by the court upon the motion of the defendant in either of the following
cases:
(a)
When it is not found, indorsed and presented as prescribed in ORS 132.360,
132.400 to 132.430 and 132.580.
(b)
When the names of the witnesses examined before the grand jury are not inserted
at the foot of the indictment or indorsed thereon.
(2)
Nothing in subsection (1)(b) of this section shall affect the application of
ORS 132.580. [Amended by 1959 c.426 §2; 1973 c.836 §178]
135.520 Time of making motion; hearing.
A motion to set aside the indictment or dismiss the accusatory instrument shall
be made and heard at the time of the arraignment or within 10 days thereafter,
unless for good cause the court allows additional time. If not so made, the
defendant is precluded from afterwards taking the objections to the indictment
or accusatory instrument. [Amended by 1973 c.836 §179]
135.530 Effect of allowance of motion.
(1) If the motion to set aside or dismiss is allowed, the court shall order
that the defendant, if in custody, be discharged therefrom
or, if the defendant has been released, that the release agreement be
discharged and the security deposit be refunded as provided by law, unless the
court allows the case to be refiled or resubmitted to
the same or another grand jury.
(2)
If the court allows the case to be resubmitted or refiled,
it must be resubmitted or refiled by the state within
30 days from the date on which the court enters the order. If the case is not
resubmitted or refiled within that time, the
defendant shall be released from custody or the release agreement discharged or
the security deposit returned. [Amended by 1973 c.836 §180]
135.540 Effect of resubmission of case.
Subject to the limitations of ORS 135.530 (2), if the court allows the case to
be resubmitted or refiled, the defendant, if then in
custody, shall so remain, unless the defendant is released as provided by law.
If the defendant has already been released, the release agreement or any
security deposited as provided by law, shall continue to insure the appearance
of the defendant to answer a new indictment or information, if one is filed. [Amended
by 1973 c.836 §181]
135.550
[Repealed by 1973 c.836 §358]
135.560 Order to set aside is no bar to
future prosecution. Except for an order dismissing
an accusatory instrument on grounds of former jeopardy, an order to set aside
an indictment or to dismiss an accusatory instrument is no bar to a future
prosecution for the same crime. [Amended by 1973 c.836 §182]
DEMURRERS
135.610 Demurrer; generally.
(1) The demurrer shall be entered either at the time of the arraignment or at
such other time as may be allowed to the defendant for that purpose.
(2)
The demurrer shall be in writing, signed by the defendant or the attorney of
the defendant and filed. It shall distinctly specify the ground of objection to
the accusatory instrument. [Amended by 1973 c.836 §183]
135.620
[Repealed by 1973 c.836 §358]
135.630 Grounds of demurrer.
The defendant may demur to the accusatory instrument when it appears upon the
face thereof:
(1)
If the accusatory instrument is an indictment, that the grand jury by which it
was found had no legal authority to inquire into the crime charged because the
same is not triable within the county;
(2)
If the accusatory instrument is an indictment, that it does not substantially
conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715,
135.717 to 135.737, 135.740 and 135.743;
(3)
That the accusatory instrument charges more than one offense not separately
stated;
(4)
That the facts stated do not constitute an offense;
(5)
That the accusatory instrument contains matter which, if true, would constitute
a legal justification or excuse of the offense charged or other legal bar to
the action; or
(6)
That the accusatory instrument is not definite and certain. [Amended by 1973
c.836 §184]
135.640 When objections that are grounds for
demurrer may be taken. When the objections mentioned in
ORS 135.630 appear upon the face of the accusatory instrument, they can only be
taken by demurrer, except that the objection to the jurisdiction of the court
over the subject of the accusatory instrument, or that the facts stated do not
constitute an offense, may be taken at the trial, under the plea of not guilty
and in arrest of judgment. [Amended by 1973 c.836 §185]
135.650 Hearing of objections specified by
demurrer. Upon the filing of the demurrer, the
objections presented thereby shall be heard either immediately or at such time
as the court may direct.
135.660 Judgment on demurrer; entry in
register. Upon considering the demurrer, the
court shall give judgment, either allowing or disallowing it, and an entry to
that effect shall be made in the register. [Amended by 1985 c.540 §33]
135.670 Allowance of demurrer.
(1) If the demurrer is allowed, the judgment is final upon the accusatory
instrument demurred to and is a bar to another action for the same crime unless
the court, being of the opinion that the objection on which the demurrer is
allowed may be avoided in a new accusatory instrument, allows the case to be
resubmitted or refiled.
(2)
If the court allows the case to be resubmitted or refiled,
it must be resubmitted or refiled by the state within
30 days from the date on which the court enters the order. If the case is not
resubmitted or refiled within that time, the
defendant shall be discharged from custody or the release agreement discharged
or the security deposit returned as provided in ORS 135.680. [Amended by 1973
c.836 §186]
135.680 Failure to resubmit case after
allowance of demurrer. If the court does not allow the
case to be resubmitted or an amended complaint or information filed, the
defendant, if in custody, shall be discharged. If the defendant has been
released, the release agreement shall be discharged. If the defendant has
deposited any security, the security shall be returned to the defendant as
provided by law. [Amended by 1973 c.836 §187]
135.690 Resubmission of case.
If the court allows the case to be resubmitted, the same proceedings shall be
had thereon as are prescribed in ORS 135.540. [Amended by 1973 c.836 §188]
135.700 Disallowance of demurrer.
If the demurrer is disallowed, the court shall permit the defendant, at the
election of the defendant, to plead, which the defendant must do forthwith or
at such time as the court may allow; but if the defendant does not plead, a
plea of not guilty shall be entered. [Amended by 1973 c.836 §189]
COMPROMISE
135.703 Crimes subject to being
compromised; exceptions. (1) When a defendant is charged
with a crime punishable as a misdemeanor for which the person injured by the
act constituting the crime has a remedy by a civil action, the crime may be
compromised, as provided in ORS 135.705, except when it was committed:
(a)
By or upon a peace officer while in the execution of the duties of office;
(b)
Riotously;
(c)
With an intent to commit a crime punishable only as a felony; or
(d)
By one family or household member upon another family or household member, as
defined in ORS 107.705, or by a person upon an elderly person or a person with
a disability as defined in ORS 124.005 and the crime was:
(A)
Assault in the fourth degree under ORS 163.160;
(B)
Assault in the third degree under ORS 163.165;
(C)
Menacing under ORS 163.190;
(D)
Recklessly endangering another person under ORS 163.195;
(E)
Harassment under ORS 166.065; or
(F)
Strangulation under ORS 163.187.
(2)
Notwithstanding subsection (1) of this section, when a defendant is charged
with violating ORS 811.700, the crime may be compromised as provided in ORS
135.705. [Formerly 134.010; 1991 c.938 §1; 1995 c.657 §21; 1995 c.666 §26; 1999
c.738 §9; 2003 c.264 §9; 2003 c.577 §5; 2007 c.70 §35]
135.705 Satisfaction of injured person;
dismissal of charges. (1)(a) If the person injured
acknowledges in writing, at any time before trial on an accusatory instrument
for the crime, that the person has received satisfaction for the injury, the
court may, in its discretion, on payment of the costs and expenses incurred,
enter a judgment dismissing the accusatory instrument.
(b)
For purposes of paragraph (a) of this subsection, a written acknowledgment that
a civil penalty under ORS 30.875 has been paid is not evidence that the person
injured has received full satisfaction for the injury and is not a compromise
under this section.
(2)
As used in this section, “costs” includes those expenses specially incurred by
the state in prosecuting the defendant, including costs under ORS 151.505 for
the compensation of counsel appointed pursuant to ORS 135.045 or 135.050 and
fees and expenses paid under ORS 135.055. [Formerly 134.020; 1981 s.s. c.3 §121; 1985 c.540 §34; 1985 c.710 §4; 1987 c.803 §25;
1999 c.925 §1; 2003 c.449 §28; 2009 c.484 §9]
135.707 Discharge as bar to prosecution.
A judgment entered under ORS 135.705 is a bar to another prosecution for the
same crime. [Formerly 134.030; 2009 c.484 §10]
135.709 Exclusiveness of procedure.
No crime can be compromised nor can any proceeding for the prosecution or
punishment thereof be stayed upon a compromise, except as provided in ORS
135.703 to 135.709 and 135.745 to 135.757. [Formerly 134.040]
SUFFICIENCY OF ACCUSATORY INSTRUMENTS