Chapter 0577

Chapter 577 Oregon Laws 2003

AN ACT

HB 2770

Relating to crime; creating new provisions; and amending ORS 40.355, 124.105, 133.726, 135.703, 135.951, 137.545, 162.365, 164.225, 164.235, 166.470 and 167.320 and section 19, chapter 666, Oregon Laws 2001.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 2003 Act is added to and made a part of ORS 163.160 to 163.208.

SECTION 2. (1) A person commits the crime of strangulation if the person knowingly impedes the normal breathing or circulation of the blood of another person by:

(a) Applying pressure on the throat or neck of the other person; or

(b) Blocking the nose or mouth of the other person.

(2) Subsection (1) of this section does not apply to legitimate medical or dental procedures or good faith practices of a religious belief.

(3) Strangulation is a Class A misdemeanor.

SECTION 3. ORS 40.355 is amended to read:

40.355. (1) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime:

(a) Was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted; or

(b) Involved false statement or dishonesty.

(2)(a) If a defendant is charged with one or more of the crimes listed in paragraph (b) of this subsection, and the defendant is a witness, evidence that the defendant has been convicted of committing one or more of the following crimes against a family or household member, as defined in ORS 135.230, may be elicited from the defendant, or established by public record, and admitted into evidence for the purpose of attacking the credibility of the defendant:

(A) Assault in the fourth degree under ORS 163.160.

(B) Menacing under ORS 163.190.

(D) Attempted assault in the fourth degree under ORS 163.160 (1).

(E) Attempted assault in the fourth degree under ORS 163.160 (3).

(F) Strangulation under section 2 of this 2003 Act.

(b) Evidence may be admitted into evidence for the purpose of attacking the credibility of a defendant under the provisions of this subsection only if the defendant is charged with committing one or more of the following crimes against a family or household member, as defined in ORS 135.230:

(A) Aggravated murder under ORS 163.095.

(B) Murder under ORS 163.115.

(D) Manslaughter in the second degree under ORS 163.125.

(E) Assault in the first degree under ORS 163.185.

(F) Assault in the second degree under ORS 163.175.

(G) Assault in the third degree under ORS 163.165.

(H) Assault in the fourth degree under ORS 163.160.

(I) Rape in the first degree under ORS 163.375 (1)(a).

(J) Sodomy in the first degree under ORS 163.405 (1)(a).

(K) Unlawful sexual penetration in the first degree under ORS 163.411 (1)(a).

(L) Sexual abuse in the first degree under ORS 163.427 (1)(a)(B).

(M) Kidnapping in the first degree under ORS 163.235.

(N) Kidnapping in the second degree under ORS 163.225.

(O) Burglary in the first degree under ORS 164.225.

(P) Coercion under ORS 163.275.

(Q) Stalking under ORS 163.732.

(R) Violating a court’s stalking protective order under ORS 163.750.

(S) Menacing under ORS 163.190.

(T) Harassment under ORS 166.065.

(U) Strangulation under section 2 of this 2003 Act.

[(U)] (V) Attempting to commit a crime listed in this paragraph.

(3) Evidence of a conviction under this section is not admissible if:

(a) A period of more than 15 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date; or

(b) The conviction has been expunged by pardon, reversed, set aside or otherwise rendered nugatory.

(4) When the credibility of a witness is attacked by evidence that the witness has been convicted of a crime, the witness shall be allowed to explain briefly the circumstances of the crime or former conviction; once the witness explains the circumstances, the opposing side shall have the opportunity to rebut the explanation.

(5) The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

(6) An adjudication by a juvenile court that a child is within its jurisdiction is not a conviction of a crime.

(7) A conviction of any of the statutory counterparts of offenses designated as violations as described in ORS 153.008 may not be used to impeach the character of a witness in any criminal or civil action or proceeding.

SECTION 4. ORS 124.105 is amended to read:

124.105. (1) An action may be brought under ORS 124.100 for physical abuse if the defendant engaged in conduct against an elderly or incapacitated person that would constitute any of the following:

(a) Assault, under the provisions of ORS 163.160, 163.165, 163.175 and 163.185.

(b) Menacing, under the provisions of ORS 163.190.

(d) Criminal mistreatment, under the provisions of ORS 163.200 and 163.205.

(e) Rape, under the provisions of ORS 163.355, 163.365 and 163.375.

(f) Sodomy, under the provisions of ORS 163.385, 163.395 and 163.405.

(g) Unlawful sexual penetration, under the provisions of ORS 163.408 and 163.411.

(h) Sexual abuse, under the provisions of ORS 163.415, 163.425 and 163.427.

(i) Strangulation, under section 2 of this 2003 Act.

(2) An action may be brought under ORS 124.100 for physical abuse if the defendant used any unreasonable physical constraint on the plaintiff or subjected the plaintiff to prolonged or continued deprivation of food or water.

(3) An action may be brought under ORS 124.100 for physical abuse if the defendant used a physical or chemical restraint, or psychotropic medication on the plaintiff without an order from a physician licensed in the State of Oregon or under any of the following conditions:

(a) For the purpose of punishing the elderly or incapacitated person.

(b) For any purpose not consistent with the purposes authorized by a physician.

SECTION 5. ORS 135.703 is amended to read:

135.703. (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;

(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 or disabled person 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;

(D) Recklessly endangering another person under ORS 163.195; [or]

(E) Harassment under ORS 166.065; or

(F) Strangulation under section 2 of this 2003 Act.

(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.

SECTION 6. ORS 135.951 is amended to read:

135.951. (1) Law enforcement agencies, city attorneys and district attorneys may consider the availability and likely effectiveness of mediation in determining whether to process and prosecute criminal charges. If it appears that mediation is in the interests of justice and of benefit to the offender, victim and community, the law enforcement agency, city attorney or district attorney may propose mediation through a qualified mediation program.

(2) In determining whether mediation is in the interests of justice and of benefit to the offender, victim and community, the law enforcement agency, city attorney or district attorney shall consider, at a minimum, the following factors:

(a) The nature of the offense;

(b) Any special characteristics of the offender or the victim;

(d) Whether it is probable that the offender will cooperate with and benefit from mediation;

(e) The recommendations of the victim;

(f) Whether a qualified mediation program is available or may be made available;

(g) The impact of mediation on the community;

(h) The recommendations of the involved law enforcement agency; and

(i) Any mitigating circumstances.

(3) Mediation [shall] may not be used for:

(a) Disputes between family or household members, as defined in ORS 107.705, that involve conduct that would constitute assault under ORS 163.160, 163.165, 163.175 or 163.185 or strangulation under section 2 of this 2003 Act; or

(b) Offenses that involve sex crimes, as defined in ORS 181.594.

SECTION 7. ORS 166.470 is amended to read:

166.470. (1) Unless relief has been granted under ORS 166.274, 18 U.S.C. 925(c) or the expunction laws of this state or an equivalent law of another jurisdiction, [no] a person [shall] may not intentionally sell, deliver or otherwise transfer any firearm when the transferor knows or reasonably should know that the recipient:

(a) Is under 18 years of age;

(b) Has been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony;

(d) Is free on any form of pretrial release for a felony;

(e) Was committed to the Department of Human Services under ORS 426.130;

(f) After January 1, 1990, was found to be mentally ill and subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; or

(g) Has been convicted of a misdemeanor involving violence or found guilty, except for insanity under ORS 161.295, of a misdemeanor involving violence within the previous four years. As used in this paragraph, “misdemeanor involving violence” means a misdemeanor described in ORS 163.160, 163.190, 163.195 or 166.155 (1)(b) or section 2 of this 2003 Act.

(2) [No] A person [shall] may not sell, deliver or otherwise transfer any firearm that the person knows or reasonably should know is stolen.

(3) Subsection (1)(a) of this section does not prohibit:

(a) The parent or guardian, or another person with the consent of the parent or guardian, of a minor from transferring to the minor a firearm, other than a handgun; or

(b) The temporary transfer of any firearm to a minor for hunting, target practice or any other lawful purpose.

(4) Violation of this section is a Class A misdemeanor.

SECTION 8. ORS 167.320 is amended to read:

167.320. (1) A person commits the crime of animal abuse in the first degree if, except as otherwise authorized by law, the person intentionally, knowingly or recklessly:

(a) Causes serious physical injury to an animal; or

(b) Cruelly causes the death of an animal.

(2) Any practice of good animal husbandry is not a violation of this section.

(3) Animal abuse in the first degree is a Class A misdemeanor.

(4) Notwithstanding subsection (3) of this section, animal abuse in the first degree is a Class C felony if:

(a) The person committing the animal abuse has previously been convicted of two or more of the following offenses:

(A) Any offense under ORS 163.160, 163.165, 163.175 or 163.185 or section 2 of this 2003 Act or the equivalent laws of another jurisdiction, if the offense involved domestic violence as defined in ORS 135.230 or the offense was committed against a minor child; or

(B) Any offense under this section or ORS 167.322, or the equivalent laws of another jurisdiction; or

(b) The person knowingly commits the animal abuse in the immediate presence of a minor child. For purposes of this paragraph, a minor child is in the immediate presence of animal abuse if the abuse is seen or directly perceived in any other manner by the minor child.

SECTION 9. ORS 164.235 is amended to read:

164.235. (1) A person commits the crime of possession of [burglar’s tools if the person possesses any burglar tool with the intent to use the tool or knowing that some person intends to use the tool to commit or facilitate a forcible entry into premises or theft by a physical taking] a burglary tool or theft device if the person possesses a burglary tool or theft device and the person:

(a) Intends to use the tool or device to commit or facilitate a forcible entry into premises or a theft by a physical taking; or

(b) Knows that another person intends to use the tool or device to commit or facilitate a forcible entry into premises or a theft by a physical taking.

(2) [“Burglar tool”] For purposes of this section, “burglary tool or theft device” means an acetylene torch, electric arc, burning bar, thermal lance, oxygen lance or other similar device capable of burning through steel, concrete or other solid material, or nitroglycerine, dynamite, gunpowder or any other explosive, tool, instrument or other article adapted or designed for committing or facilitating a forcible entry into premises or theft by a physical taking.

(3) Possession of [burglar’s tools] a burglary tool or theft device is a Class A misdemeanor.

SECTION 10. ORS 164.225 is amended to read:

164.225. (1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:

(a) Is armed with a [burglar’s tool] burglary tool or theft device as defined in ORS 164.235 or a deadly weapon; [or]

(b) Causes or attempts to cause physical injury to any person; or

(2) Burglary in the first degree is a Class A felony.

SECTION 11. Section 19, chapter 666, Oregon Laws 2001, as amended by section 5, chapter 696, Oregon Laws 2001, is amended to read:

Sec. 19. The crimes to which section 1 (11)(b), chapter 666, Oregon Laws 2001, applies are:

(1) Bribe giving, as defined in ORS 162.015.

(2) Bribe receiving, as defined in ORS 162.025.

(3) Public investment fraud, as defined in ORS 162.117.

(4) Bribing a witness, as defined in ORS 162.265.

(5) Bribe receiving by a witness, as defined in ORS 162.275.

(6) Simulating legal process, as defined in ORS 162.355.

(7) Official misconduct in the first degree, as defined in ORS 162.415.

(8) Custodial interference in the second degree, as defined in ORS 163.245.

(9) Custodial interference in the first degree, as defined in ORS 163.257.

(10) Buying or selling a person under 18 years of age, as defined in ORS 163.537.

(11) Using a child in a display of sexually explicit conduct, as defined in ORS 163.670.

(12) Encouraging child sexual abuse in the first degree, as defined in ORS 163.684.

(13) Encouraging child sexual abuse in the second degree, as defined in ORS 163.686.

(14) Encouraging child sexual abuse in the third degree, as defined in ORS 163.687.

(15) Possession of materials depicting sexually explicit conduct of a child in the first degree, as defined in ORS 163.688.

(16) Possession of materials depicting sexually explicit conduct of a child in the second degree, as defined in ORS 163.689.

(17) Theft in the second degree, as defined in ORS 164.045.

(18) Theft in the first degree, as defined in ORS 164.055.

(19) Aggravated theft in the first degree, as defined in ORS 164.057.

(20) Theft by extortion, as defined in ORS 164.075.

(21) Theft by deception, as defined in ORS 164.085, if it is a felony or a Class A misdemeanor.

(22) Theft by receiving, as defined in ORS 164.095, if it is a felony or a Class A misdemeanor.

(23) Theft of services, as defined in ORS 164.125, if it is a felony or a Class A misdemeanor.

(24) Unauthorized use of a vehicle, as defined in ORS 164.135.

(25) Mail theft or receipt of stolen mail, as defined in ORS 164.162.

(26) Laundering a monetary instrument, as defined in ORS 164.170.

(27) Engaging in a financial transaction in property derived from unlawful activity, as defined in ORS 164.172.

(28) Burglary in the second degree, as defined in ORS 164.215.

(29) Burglary in the first degree, as defined in ORS 164.225.

(30) Possession of [burglar’s tools] a burglary tool or theft device, as defined in ORS 164.235.

(31) Unlawful entry into a motor vehicle, as defined in ORS 164.272.

(32) Arson in the second degree, as defined in ORS 164.315.

(33) Arson in the first degree, as defined in ORS 164.325.

(34) Computer crime, as defined in ORS 164.377.

(35) Robbery in the third degree, as defined in ORS 164.395.

(36) Robbery in the second degree, as defined in ORS 164.405.

(37) Robbery in the first degree, as defined in ORS 164.415.

(38) Unlawful labeling of a sound recording, as defined in ORS 164.868.

(39) Unlawful recording of a live performance, as defined in ORS 164.869.

(40) Unlawful labeling of a videotape recording, as defined in ORS 164.872.

(41) A violation of ORS 164.877.

(42) Endangering aircraft, as defined in ORS 164.885.

(43) Interference with agricultural operations, as defined in ORS 164.887.

(44) Forgery in the second degree, as defined in ORS 165.007.

(45) Forgery in the first degree, as defined in ORS 165.013.

(46) Criminal possession of a forged instrument in the second degree, as defined in ORS 165.017.

(47) Criminal possession of a forged instrument in the first degree, as defined in ORS 165.022.

(48) Criminal possession of a forgery device, as defined in ORS 165.032.

(49) Criminal simulation, as defined in ORS 165.037.

(50) Fraudulently obtaining a signature, as defined in ORS 165.042.

(51) Fraudulent use of a credit card, as defined in ORS 165.055.

(52) Negotiating a bad check, as defined in ORS 165.065.

(53) Possessing a fraudulent communications device, as defined in ORS 165.070.

(54) Unlawful factoring of a credit card transaction, as defined in ORS 165.074.

(55) Falsifying business records, as defined in ORS 165.080.

(56) Sports bribery, as defined in ORS 165.085.

(57) Sports bribe receiving, as defined in ORS 165.090.

(58) Misapplication of entrusted property, as defined in ORS 165.095.

(59) Issuing a false financial statement, as defined in ORS 165.100.

(60) Obtaining execution of documents by deception, as defined in ORS 165.102.

(61) A violation of ORS 165.543.

(62) Cellular counterfeiting in the third degree, as defined in ORS 165.577.

(63) Cellular counterfeiting in the second degree, as defined in ORS 165.579.

(64) Cellular counterfeiting in the first degree, as defined in ORS 165.581.

(65) Identity theft, as defined in ORS 165.800.

(66) A violation of ORS 166.190.

(67) Unlawful use of a weapon, as defined in ORS 166.220.

(68) A violation of ORS 166.240.

(69) Unlawful possession of a firearm, as defined in ORS 166.250.

(70) A violation of ORS 166.270.

(71) Unlawful possession of a machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer, as defined in ORS 166.272.

(72) A violation of ORS 166.275.

(73) Unlawful possession of armor piercing ammunition, as defined in ORS 166.350.

(74) A violation of ORS 166.370.

(75) Unlawful possession of a destructive device, as defined in ORS 166.382.

(76) Unlawful manufacture of a destructive device, as defined in ORS 166.384.

(77) Possession of a hoax destructive device, as defined in ORS 166.385.

(78) A violation of ORS 166.410.

(79) Providing false information in connection with a transfer of a handgun, as defined in ORS 166.416.

(80) Improperly transferring a handgun, as defined in ORS 166.418.

(81) Unlawfully purchasing a firearm, as defined in ORS 166.425.

(82) A violation of ORS 166.429.

(83) A violation of ORS 166.470.

(84) A violation of ORS 166.480.

(85) A violation of ORS 166.635.

(86) A violation of ORS 166.638.

(87) Unlawful paramilitary activity, as defined in ORS 166.660.

(88) A violation of ORS 166.720.

(89) Prostitution, as defined in ORS 167.007.

(90) Promoting prostitution, as defined in ORS 167.012.

(91) Compelling prostitution, as defined in ORS 167.017.

(92) Exhibiting an obscene performance to a minor, as defined in ORS 167.075.

(93) Unlawful gambling in the second degree, as defined in ORS 167.122.

(94) Unlawful gambling in the first degree, as defined in ORS 167.127.

(95) Possession of gambling records in the second degree, as defined in ORS 167.132.

(96) Possession of gambling records in the first degree, as defined in ORS 167.137.

(97) Possession of a gambling device, as defined in ORS 167.147.

(98) Possession of a gray machine, as defined in ORS 167.164.

(99) Cheating, as defined in ORS 167.167.

(100) Tampering with drug records, as defined in ORS 167.212.

(101) A violation of ORS 167.262.

(102) Research and animal interference, as defined in ORS 167.312.

(103) Animal abuse in the first degree, as defined in ORS 167.320.

(104) Aggravated animal abuse in the first degree, as defined in ORS 167.322.

(105) Animal neglect in the first degree, as defined in ORS 167.330.

(106) Interfering with an assistance, a search and rescue or a therapy animal, as defined in ORS 167.352.

(107) Involvement in animal fighting, as defined in ORS 167.355.

(108) Dogfighting, as defined in ORS 167.365.

(109) Participation in dogfighting, as defined in ORS 167.370.

(110) Unauthorized use of a livestock animal, as defined in ORS 167.385.

(111) Interference with livestock production, as defined in ORS 167.388.

(112) A violation of ORS 167.390.

(113) A violation of ORS 471.410.

(114) Failure to report missing precursor substances, as defined in ORS 475.955.

(115) Illegally selling drug equipment, as defined in ORS 475.960.

(116) Providing false information on a precursor substances report, as defined in ORS 475.965.

(117) Unlawful delivery of an imitation controlled substance, as defined in ORS 475.991.

(118) A violation of ORS 475.992, if it is a felony or a Class A misdemeanor.

(119) A violation of ORS 475.993, if it is a felony or a Class A misdemeanor.

(120) A violation of ORS 475.994.

(121) A violation of ORS 475.995, if it is a felony or a Class A misdemeanor.

(122) A violation of ORS 475.999 (1)(a).

(123) Misuse of an identification card, as defined in ORS 807.430.

(124) Unlawful production of identification cards, licenses, permits, forms or camera cards, as defined in ORS 807.500.

(125) Transfer of documents for the purposes of misrepresentation, as defined in ORS 807.510.

(126) Using an invalid license, as defined in ORS 807.580.

(127) Permitting misuse of a license, as defined in ORS 807.590.

(128) Using another’s license, as defined in ORS 807.600.

(129) Criminal driving while suspended or revoked, as defined in ORS 811.182, when it is a felony.

(130) Driving while under the influence of intoxicants, as defined in ORS 813.010, when it is a felony.

(131) Unlawful distribution of cigarettes, as defined in [section 3 of this 2001 Act] ORS 323.482.

(132) An attempt, conspiracy or solicitation to commit a crime in subsections (1) to (131) of this section if the attempt, conspiracy or solicitation is a felony or a Class A misdemeanor.

SECTION 12. ORS 162.365 is amended to read:

162.365. (1) A person commits the crime of criminal impersonation if with intent to obtain a benefit or to injure, deceive or defraud another the person falsely impersonates a public servant and does an act in such assumed character.

(2) It is no defense to a prosecution for criminal impersonation that:

(a) The office, position or title that the person pretended to hold did not in fact exist; or

(b) The unit of government that the person pretended to represent did not in fact exist.

(3)(a) Criminal impersonation is a Class A misdemeanor.

(b) Notwithstanding paragraph (a) of this subsection, criminal impersonation is a Class C felony if the public servant impersonated is a peace officer, judge or justice of the peace.

SECTION 13. ORS 133.726 is amended to read:

133.726. (1) Notwithstanding ORS 133.724, under the circumstances described in this section, a law enforcement officer is authorized to intercept an oral communication to which the officer or someone under the direct supervision of the officer is a party, without obtaining an order for the interception of a wire, electronic or oral communication under ORS 133.724.

(2) For purposes of this section and ORS 133.736, a person is a party to an oral communication if the oral communication is made in the person’s immediate presence and is audible to the person regardless of whether the communication is specifically directed to the person.

(3) An ex parte order for intercepting an oral communication in any county of this state under this section may be issued by any judge as defined in ORS 133.525 upon written application made upon oath or affirmation of the district attorney or a deputy district attorney authorized by the district attorney for the county in which the order is sought or upon the oath or affirmation of any peace officer as defined in ORS 133.005. The application shall include:

(a) The name of the applicant and the applicant’s authority to make the application;

(b) A statement demonstrating that there is probable cause to believe that a person whose oral communication is to be intercepted is engaged in committing, has committed or is about to commit a particular felony, or a misdemeanor under ORS 167.007, and that intercepting the oral communication will yield evidence thereof; and

(c) The identity of the person, if known, suspected of committing the crime and whose oral communication is to be intercepted.

(4) The judge may require the applicant to furnish further testimony or documentary evidence in support of the application.

(5) Upon examination of the application and evidence, the judge may enter an ex parte order, as requested or as modified, authorizing or approving the interception of an oral communication within the state if the judge determines on the basis of the facts submitted by the applicant that:

(a) There is probable cause to believe that a person is engaged in committing, has committed or is about to commit a particular felony, or a misdemeanor under ORS 167.007; and

(b) There is probable cause to believe that the oral communication to be obtained will contain evidence concerning that crime.

(6) An order authorizing or approving the interception of an oral communication under this section must specify:

(a) The identity of the person, if known, whose oral communication is to be intercepted;

(b) A statement identifying the particular crime to which the oral communication is expected to relate;

(d) The name and office of the applicant and the signature and title of the issuing judge;

(e) A period of time after which the order shall expire; and

(f) A statement that the order authorizes only the interception of an oral communication to which a law enforcement officer or someone under the direct supervision of a law enforcement officer is a party.

(7) An order under ORS 133.724 or this section is not required when a law enforcement officer intercepts an oral communication to which the officer or someone under the direct supervision of the officer is a party if the oral communication is made by a person whom the officer has probable cause to believe has committed, is engaged in committing or is about to commit:

(a) A crime punishable as a felony under ORS 475.992 or 475.995 or as a misdemeanor under ORS 167.007; or

(b) Any other crime punishable as a felony if the circumstances at the time the oral communication is intercepted are of such exigency that it would be unreasonable to obtain a court order under ORS 133.724 or this section.

(8) A law enforcement officer who intercepts an oral communication pursuant to this section may not intentionally fail to record and preserve the oral communication in its entirety. A law enforcement officer, or a person under the direct supervision of the officer, who is authorized under this section to intercept an oral communication is not required to exclude from the interception an oral communication made by a person for whom probable cause does not exist if the officer or person under the officer’s direct supervision is a party to the oral communication.

(9) A law enforcement officer may not divulge the contents of an oral communication intercepted under this section before a preliminary hearing or trial in which an oral communication is going to be introduced as evidence against a person except:

(a) To a superior officer or other official with whom the law enforcement officer is cooperating in the enforcement of the criminal laws [creating felonies] of this state or the United States;

(b) To a magistrate;

(d) In compliance with a court order.

(10) A law enforcement officer may intercept an oral communication under this section only when acting within the scope of the officer’s employment and as a part of assigned duties.

(11) As used in this section, “law enforcement officer” means an officer employed by the United States, this state or a municipal government within this state, or a political subdivision, agency, department or bureau of those governments, to enforce criminal laws.

(12) Violation of subsection (9) of this section is a Class A misdemeanor.

SECTION 14. ORS 137.545 is amended to read:

137.545. (1) Subject to the limitations in ORS 137.010 and to rules of the Oregon Criminal Justice Commission for felonies committed on or after November 1, 1989:

(a) The period of probation shall be such as the court determines and may, in the discretion of the court, be continued or extended.

(b) The court may at any time discharge a person from probation.

(2) At any time during the probation period, the court may issue a warrant and cause a defendant to be arrested for violating any of the conditions of probation. Any probation officer, police officer or other officer with power of arrest may arrest a probationer without a warrant for violating any condition of probation, and a statement by the probation officer or arresting officer setting forth that the probationer has, in the judgment of the probation officer or arresting officer, violated the conditions of probation is sufficient warrant for the detention of the probationer in the county jail until the probationer can be brought before the court or until the probation officer or supervisory personnel impose and the offender agrees to structured, intermediate sanctions in accordance with the rules adopted under ORS 137.595. Such disposition shall be made during the first 36 hours in custody, excluding Saturdays, Sundays and holidays, unless later disposition is authorized by supervisory personnel. If authorized by supervisory personnel, the disposition shall take place in no more than five judicial days. If the offender does not consent to structured, intermediate sanctions imposed by the probation officer or supervisory personnel in accordance with the rules adopted under ORS 137.595, the probation officer, as soon as practicable, but within one judicial day, shall report such arrest or detention to the court that imposed the probation. The probation officer shall promptly submit to the court a report showing in what manner the probationer has violated the conditions of probation.

(3) Except for good cause shown or at the request of the probationer, the probationer shall be brought before a magistrate during the first 36 hours of custody, excluding holidays, Saturdays and Sundays. That magistrate, in the exercise of discretion, may order the probationer held pending a violation or revocation hearing or pending transfer to the jurisdiction of another court where the probation was imposed. In lieu of an order that the probationer be held, the magistrate may release the probationer upon the condition that the probationer appear in court at a later date for a probation violation or revocation hearing. If the probationer is being held on an out-of-county warrant, the magistrate may order the probationer released subject to an additional order to the probationer that the probationer report within seven calendar days to the court that imposed the probation.

(4) When a probationer has been sentenced to probation in more than one county and the probationer is being held on an out-of-county warrant for a probation violation, the court may consider consolidation of some or all pending probation violation proceedings pursuant to rules made and orders issued by the Chief Justice of the Supreme Court under ORS 137.547:

(a) Upon the motion of the district attorney or defense counsel in the county in which the probationer is held; or

(b) Upon the court’s own motion.

(5)(a) For defendants sentenced for felonies committed prior to November 1, 1989, and for any misdemeanor, the court that imposed the probation, after summary hearing, may revoke the probation and:

(A) If the execution of some other part of the sentence has been suspended, the court shall cause the rest of the sentence imposed to be executed.

(B) If no other sentence has been imposed, the court may impose any other sentence which originally could have been imposed.

(b) For defendants sentenced for felonies committed on or after November 1, 1989, the court that imposed the probationary sentence may revoke probation supervision and impose a sanction as provided by rules of the Oregon Criminal Justice Commission.

(6) Except for good cause shown, if the revocation hearing is not conducted within 14 calendar days following the arrest or detention of the probationer, the probationer shall be released from custody.

(7) A defendant who has been previously confined in the county jail as a condition of probation pursuant to ORS 137.540 or as part of a probationary sentence pursuant to the rules of the Oregon Criminal Justice Commission may be given credit for all time thus served in any order or judgment of confinement resulting from revocation of probation.

(8) In the case of any defendant whose sentence has been suspended but who has not been sentenced to probation, the court may issue a warrant and cause the defendant to be arrested and brought before the court at any time within the maximum period for which the defendant might originally have been sentenced. Thereupon the court, after summary hearing, may revoke the suspension of sentence and cause the sentence imposed to be executed.

(9) If a probationer fails to appear or report to a court for further proceedings as required by an order under subsection (3) of this section, the failure to appear may be prosecuted in the county to which the probationer was ordered to appear or report.

(10)(a) If requested by the probationer and agreed to by the court, the probationer may admit or deny the violation without being physically present at the hearing if the probationer appears before the court by means of simultaneous television transmission allowing the court to observe and communicate with the defendant and the defendant to observe and communicate with the court.

(b) Notwithstanding paragraph (a) of this subsection, appearance by simultaneous television transmission shall not be permitted unless the facilities used enable the defendant to consult privately with defense counsel during the proceedings.

(11)(a) 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 any hearing before the court that may result in the revocation of the defendant’s probation;

(B) To appear personally at the hearing; and

(b) Failure of the district attorney to notify the victim under paragraph (a) of this subsection or failure of the victim to appear at the hearing does not affect the validity of the proceeding.

Approved by the Governor July 17, 2003

Filed in the office of Secretary of State July 18, 2003

Effective date January 1, 2004

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