Chapter 0614

Chapter 614 Oregon Laws 2003

AN ACT

SB 59

Relating to criminal forfeiture; creating new provisions; amending ORS 166.210, 166.250, 166.282, 166.370, 166.410 and 166.460 and sections 8, 57 and 58, chapter 666, Oregon Laws 2001; repealing ORS 166.281; and declaring an emergency.

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

SECTION 1. Section 8, chapter 666, Oregon Laws 2001, is amended to read:

Sec. 8. (1) As soon as practicable after seizure for criminal forfeiture, the seizing agency shall review the inventory prepared by the police officer under section 5, chapter 666, Oregon Laws 2001 [of this 2001 Act]. Within [15] 30 days after seizure for criminal forfeiture, the forfeiture counsel shall file a criminal information or an indictment alleging facts sufficient to establish that the property is subject to criminal forfeiture. Within [15] 30 days after seizure for criminal forfeiture, the seizing agency or forfeiture counsel shall prepare a notice of seizure for criminal forfeiture containing a copy of the inventory prepared pursuant to section 5, chapter 666, Oregon Laws 2001, [of this 2001 Act,] the identity of the person from whom the property was seized, the name, address and telephone number of the seizing agency and the address and telephone number of the office or other place where further information concerning the seizure and criminal forfeiture may be obtained, and shall make reasonable efforts to serve the notice of seizure for criminal forfeiture on all persons, other than the defendant, known to have an interest in the seized property. A person may be served as provided in ORCP 7 D except that the notice must also include information regarding the right to file a claim under subsection (2) of this section, if applicable, and the deadline for filing the claim. If the property is cash in the amount of $1,000 or less or if the fair market value of the property is $1,000 or less, the seizing agency may publish notice of seizure for criminal forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to D(6)(d). In all other cases, the seizing agency shall publish notice of seizure for criminal forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to D(6)(d). The seizing agency shall provide a copy of the notice, inventory and estimate of value to the forfeiture counsel.

(2) Except as otherwise provided in section 11 (1) to (3), chapter 666, Oregon Laws 2001, [of this 2001 Act,] if notice of seizure for criminal forfeiture:

(a) Is given in a manner other than by publication, any person, other than the defendant, claiming an interest in the property must file a claim with the forfeiture counsel within 21 days after service of notice of seizure for criminal forfeiture.

(b) Is published, any person, other than the defendant, claiming an interest in the property must file a claim with the forfeiture counsel within 21 days after the last publication date.

(3) An extension for the filing of a claim under subsection (2) of this section may not be granted. The claim must be signed by the claimant under penalty of perjury and must set forth all of the following:

(a) The true name of the claimant;

(b) The address at which the claimant will accept future mailings from the court or the forfeiture counsel; and

(4) If a seizing agency publishes notice of seizure for criminal forfeiture in a newspaper in the manner provided by subsection (1) of this section, the agency may include in a single publication as many notices of criminal forfeiture as the agency considers convenient. The publication may contain a single statement of matters from the notices of criminal forfeiture that are common to all of the notices and that would otherwise result in needless repetition. The publication must contain for each notice of criminal forfeiture a separate copy of the inventory prepared pursuant to section 5, chapter 666, Oregon Laws 2001, [of this 2001 Act] and a separate statement of the identity of the person from whose custody the property was seized. The published inventory need not contain estimates of value for the property seized.

SECTION 2. Section 57, chapter 666, Oregon Laws 2001, is amended to read:

Sec. 57. Sections 1 to 19, chapter 666, Oregon Laws 2001, and section 3 of this 2003 Act [of this 2001 Act] are repealed on July 31, 2005.

SECTION 3. (1) Except as provided in subsection (4) of this section, sections 1 to 18, chapter 666, Oregon Laws 2001, do not apply to the forfeiture of a firearm or other deadly weapon that was possessed, used or available for use to facilitate a criminal offense.

(2) Except as provided in subsection (3) of this section, at the time of sentencing for any criminal offense in which a firearm or other deadly weapon was possessed, used or available for use to facilitate the offense, the court shall declare the weapon to be contraband and order that the weapon be forfeited.

(3) If a firearm or other deadly weapon that was possessed, used or available for use to facilitate a criminal offense was stolen from its lawful owner and was recovered from a person other than the lawful owner, the court may not order that the weapon be forfeited but shall order that the weapon be restored to the lawful owner as soon as the weapon is no longer needed for evidentiary purposes.

(4) The court shall release a firearm or other deadly weapon forfeited under subsection (2) of this section to the law enforcement agency that seized the weapon. The law enforcement agency may destroy or sell the weapon, use the weapon as a service weapon or use the weapon for training, identification or demonstration purposes. When a weapon is sold pursuant to this subsection, the law enforcement agency shall pay the proceeds from the sale, less the costs of the sale, as provided in sections 16 and 17, chapter 666, Oregon Laws 2001.

(5) As used in this section, “deadly weapon” has the meaning given that term in ORS 161.015.

SECTION 4. (1) Except as provided in subsection (2) of this section, at the time of sentencing for any criminal offense in which a firearm or other deadly weapon was possessed, used or available for use to facilitate the offense, the court shall declare the weapon to be contraband and order that the weapon be forfeited.

(2) If a firearm or other deadly weapon that was possessed, used or available for use to facilitate a criminal offense was stolen from its lawful owner and was recovered from a person other than the lawful owner, the court may not order that the weapon be forfeited but shall order that the weapon be restored to the lawful owner as soon as the weapon is no longer needed for evidentiary purposes.

(3) The court shall release a firearm or other deadly weapon forfeited under subsection (1) of this section to the law enforcement agency that seized the weapon. The law enforcement agency may destroy or sell the weapon, use the weapon as a service weapon or use the weapon for training, identification or demonstration purposes. When a weapon is sold pursuant to this subsection, the law enforcement agency shall pay the proceeds from the sale, less the costs of the sale, as follows:

(a) When the seizing agency is not the state:

(A) Three percent to the Asset Forfeiture Oversight Account established in ORS 475A.160;

(B) Seven percent to the Illegal Drug Cleanup Fund established in ORS 475.495;

(C) Ten percent to the state General Fund;

(D) Forty percent to the Mental Health Alcoholism and Drug Services Account established in ORS 430.380; and

(E) Forty percent to the general fund of the political subdivision that operates the law enforcement agency, to be used for law enforcement purposes; or

(b) When the seizing agency is the state:

(A) Three percent to the Asset Forfeiture Oversight Account established in ORS 475A.160;

(B) Seven percent to the Illegal Drug Cleanup Fund established in ORS 475.495;

(C) Ten percent to the state General Fund;

(D) Forty percent to be distributed equitably between the agencies that participated in the seizure, to be used by those agencies for law enforcement purposes; and

(E) Forty percent to the Mental Health Alcoholism and Drug Services Account established in ORS 430.380.

(4) As used in this section, “deadly weapon” has the meaning given that term in ORS 161.015.

SECTION 5. ORS 166.282, as amended by section 37, chapter 666, Oregon Laws 2001, is amended to read:

166.282. (1) A political subdivision in this state that sells a weapon described in subsection (2) of this section shall pay the proceeds from the sale of the weapon, less the costs of the sale, to the account of the police agency that received [or seized] the weapon, to be used for purposes of public safety, law enforcement and crime prevention and detection.

(2) Subsection (1) of this section applies to a weapon that is[:]

[(a)] donated to the police agency[; or]

[(b) Seized by the police agency under ORS 166.281].

SECTION 6. ORS 166.370, as amended by section 36, chapter 666, Oregon Laws 2001, is amended to read:

166.370. (1) Any person who intentionally possesses a loaded or unloaded firearm or any other instrument used as a dangerous weapon, while in or on a public building, shall upon conviction be guilty of a Class C felony.

(2)(a) Except as otherwise provided in paragraph (b) of this subsection, a person who intentionally possesses:

(A) A firearm in a court facility is guilty, upon conviction, of a Class C felony. A person who intentionally possesses a firearm in a court facility shall surrender the firearm to a law enforcement officer.

(B) A weapon, other than a firearm, in a court facility may be required to surrender the weapon to a law enforcement officer or to immediately remove it from the court facility. A person who fails to comply with this subparagraph is guilty, upon conviction, of a Class C felony.

(b) The presiding judge of a judicial district may enter an order permitting the possession of specified weapons in a court facility.

(3) Subsection (1) of this section does not apply to:

(a) A sheriff, police officer, other duly appointed peace officers or a corrections officer while acting within the scope of employment.

(b) A person summoned by a peace officer to assist in making an arrest or preserving the peace, while the summoned person is engaged in assisting the officer.

(c) An active or reserve member of the military forces of this state or the United States, when engaged in the performance of duty.

(d) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun.

(e) A person who is authorized by the officer or agency that controls the public building to possess a firearm or dangerous weapon in that public building.

(f) Possession of a firearm on school property if the firearm:

(A) Is possessed by a person who is not otherwise prohibited from possessing the firearm; and

(B) Is unloaded and locked in a motor vehicle.

(4) The exceptions listed in subsection (3)(b) to (f) of this section constitute affirmative defenses to a charge of violating subsection (1) of this section.

(5)(a) Any person who knowingly, or with reckless disregard for the safety of another, discharges or attempts to discharge a firearm at a place that the person knows is a school shall upon conviction be guilty of a Class C felony.

(b) Paragraph (a) of this subsection does not apply to the discharge of a firearm:

(A) As part of a program approved by a school in the school by an individual who is participating in the program; or

(B) By a law enforcement officer acting in the officer’s official capacity.

(6) Any weapon carried in violation of this section is subject to the forfeiture provisions of [ORS 166.281] section 4 of this 2003 Act.

(7) Notwithstanding the fact that a person’s conduct in a single criminal episode constitutes a violation of both subsections (1) and (5) of this section, the district attorney may charge the person with only one of the offenses.

(8) As used in this section, “dangerous weapon” means a dangerous weapon as that term is defined in ORS 161.015.

SECTION 7. ORS 166.210, as amended by section 44, chapter 666, Oregon Laws 2001, is amended to read:

166.210. As used in ORS 166.250 to 166.270, [166.281,] 166.291 to 166.295 and 166.410 to 166.470:

(1) “Antique firearm” means:

(a) Any firearm, including any firearm with a matchlock, flintlock, percussion cap or similar type of ignition system, manufactured in or before 1898; and

(b) Any replica of any firearm described in paragraph (a) of this subsection if the replica:

(A) Is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition; or

(B) Uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade.

(2) “Firearm” means a weapon, by whatever name known, which is designed to expel a projectile by the action of powder and which is readily capable of use as a weapon.

(3) “Firearms silencer” means any device for silencing, muffling or diminishing the report of a firearm.

(4) “Handgun” means any pistol or revolver using a fixed cartridge containing a propellant charge, primer and projectile, and designed to be aimed or fired otherwise than from the shoulder.

(5) “Machine gun” means a weapon of any description by whatever name known, loaded or unloaded, which is designed or modified to allow two or more shots to be fired by a single pressure on the trigger device.

(6) “Minor” means a person under 18 years of age.

(7) “Parole and probation officer” has the meaning given that term in ORS 181.610.

(8) “Short-barreled rifle” means a rifle having one or more barrels less than 16 inches in length and any weapon made from a rifle if the weapon has an overall length of less than 26 inches.

(9) “Short-barreled shotgun” means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun if the weapon has an overall length of less than 26 inches.

SECTION 8. ORS 166.250, as amended by section 45, chapter 666, Oregon Laws 2001, is amended to read:

166.250. (1) Except as otherwise provided in this section or ORS 166.260, 166.270, 166.274, [166.281,] 166.291, 166.292 or 166.410 to 166.470, a person commits the crime of unlawful possession of a firearm if the person knowingly:

(a) Carries any firearm concealed upon the person;

(b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle; or

(A) Is under 18 years of age;

(B)(i) While a minor, was found to be within the jurisdiction of the juvenile court for having committed an act which, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470; and

(ii) Was discharged from the jurisdiction of the juvenile court within four years prior to being charged under this section;

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

(E) 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.

(2) This section does not prohibit:

(a) A minor, who is not otherwise prohibited under subsection (1)(c) of this section, from possessing a firearm:

(A) Other than a handgun, if the firearm was transferred to the minor by the minor’s parent or guardian or by another person with the consent of the minor’s parent or guardian; or

(B) Temporarily for hunting, target practice or any other lawful purpose; or

(b) Any citizen of the United States over the age of 18 years who resides in or is temporarily sojourning within this state, and who is not within the excepted classes prescribed by ORS 166.270 and subsection (1) of this section, from owning, possessing or keeping within the person’s place of residence or place of business any handgun, and no permit or license to purchase, own, possess or keep any such firearm at the person’s place of residence or place of business is required of any such citizen. As used in this subsection, “residence” includes a recreational vessel or recreational vehicle while used, for whatever period of time, as residential quarters.

(3) Firearms carried openly in belt holsters are not concealed within the meaning of this section.

(4) Unlawful possession of a firearm is a Class A misdemeanor.

SECTION 9. ORS 166.410, as amended by section 46, chapter 666, Oregon Laws 2001, is amended to read:

166.410. Any person who manufactures or causes to be manufactured within this state, or who imports into this state, or offers, exposes for sale, or sells or transfers a handgun, short-barreled rifle, short-barreled shotgun, firearms silencer or machine gun, otherwise than in accordance with ORS 166.250 to 166.270, [166.281,] 166.291, 166.292 and 166.425 to 166.470, shall be guilty of a Class B felony.

SECTION 10. ORS 166.460, as amended by section 47, chapter 666, Oregon Laws 2001, is amended to read:

166.460. (1) ORS 166.250, 166.260, [166.281,] 166.291 to 166.295, 166.410, 166.412, 166.425, 166.434, 166.438 and 166.450 do not apply to antique firearms.

(2) Notwithstanding the provisions of subsection (1) of this section, possession of an antique firearm by a person described in ORS 166.250 (1)(c)(B), (C) or (D) constitutes a violation of ORS 166.250.

SECTION 11. Section 3 of this 2003 Act applies to weapons seized on or after the effective date of this 2003 Act.

SECTION 12. Section 58, chapter 666, Oregon Laws 2001, as amended by section 14d, chapter 926, Oregon Laws 2001, is amended to read:

Sec. 58. (1) Sections 49 to 52 and 54, chapter 666, Oregon Laws 2001, and section 4 of this 2003 Act become operative on July 31, 2005.

(2) The amendments to ORS 133.643, 137.138, 164.864, 164.866, 166.210, 166.250, 166.282, 166.370, 166.410, 166.460, 166.660 and 475A.155 by sections 21, 23 and 36 to 47, chapter 666, Oregon Laws 2001, and sections 5 to 10 of this 2003 Act become operative on July 31, 2005.

SECTION 13. ORS 166.281 is repealed.

SECTION 14. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage.

Approved by the Governor July 28, 2003

Filed in the office of Secretary of State July 28, 2003

Effective date July 28, 2003

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