Chapter 0645

Chapter 645 Oregon Laws 2003

AN ACT

HB 2865

Relating to criminal procedure; creating new provisions; amending ORS 132.320, 132.580, 135.060, 135.065 and 135.245; and declaring an emergency.

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 161.505 to 161.585.

SECTION 2. (1) As used in this section, “nonperson felony” has the meaning given that term in the rules of the Oregon Criminal Justice Commission.

(2) A district attorney may elect to treat a Class C nonperson felony or a violation of ORS 475.992 (4)(a) as a Class A misdemeanor. The election must be made by the district attorney orally or in writing at the time of the first appearance of the defendant. If a district attorney elects to treat a Class C felony or a violation of ORS 475.992 (4)(a) as a Class A misdemeanor under this subsection, the court shall amend the accusatory instrument to reflect the charged offense as a Class A misdemeanor.

(3) If, at some time after the first appearance of a defendant charged with a Class C nonperson felony or a violation of ORS 475.992 (4)(a), the district attorney and the defendant agree to treat the charged offense as a Class A misdemeanor, the court may allow the offense to be treated as a Class A misdemeanor by stipulation of the parties.

(4) If a Class C felony or a violation of ORS 475.992 (4)(a) is treated as a Class A misdemeanor under this section, the court shall clearly denominate the offense as a Class A misdemeanor in any judgment entered in the matter.

(5) If no election or stipulation is made under this section, the case proceeds as a felony.

(6) Before a district attorney may make an election under subsection (2) of this section, the district attorney shall adopt written guidelines for determining when and under what circumstances the election may be made. The district attorney shall apply the guidelines uniformly.

(7) Notwithstanding ORS 161.635, the maximum fine that a court may impose upon conviction of a misdemeanor under this section may not exceed the amount provided in ORS 161.625 for the class of felony receiving Class A misdemeanor treatment.

SECTION 3. ORS 132.320 is amended to read:

132.320. (1) Except as provided in subsections (2) to [(6)] (7) of this section, in the investigation of a charge for the purpose of indictment, the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question.

(2) A report or a copy of a report made by a physicist, chemist, medical examiner, physician, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by such person in connection with a case which is the subject of a grand jury proceeding, shall, when certified by such person as a report made by such person or as a true copy thereof, be received in evidence in the grand jury proceeding.

(3) An affidavit of a witness who is unable to appear before the grand jury shall be received in evidence in the grand jury proceeding if, upon application by the district attorney, the presiding judge for the judicial district in which the grand jury is sitting authorizes such receipt after good cause has been shown for the witness’ inability to appear. An affidavit taken in another state or territory of the United States, the District of Columbia or in a foreign country must be authenticated as provided in ORS 194.505 to 194.575 before it can be used in this state.

(4) A grand jury that is investigating a charge of criminal driving while suspended or revoked under ORS 811.182 may receive in evidence an affidavit of a peace officer with a report or copy of a report of the peace officer concerning the peace officer’s investigation of the violation of ORS 811.182 by the defendant.

(5) A grand jury may receive testimony of a witness by means of simultaneous television transmission allowing the grand jury and district attorney to observe and communicate with the witness and the witness to observe and communicate with the grand jury and the district attorney.

(6) A grand jury that is investigating a charge of failure to appear under ORS 133.076, 153.992, 162.195 or 162.205 may receive in evidence an affidavit of a court employee certifying that the defendant failed to appear as required by law and setting forth facts sufficient to support that conclusion.

(7)(a) Except as otherwise provided in this subsection, a grand jury may receive in evidence through the testimony of one peace officer involved in the criminal investigation under grand jury inquiry information from an official report of another peace officer involved in the same criminal investigation concerning the other peace officer’s investigation of the matter before the grand jury. The statement of a person suspected of committing an offense or inadmissible hearsay of persons other than the peace officer who compiled the official report may not be presented to a grand jury under this paragraph.

(b) If the official report contains evidence other than chain of custody, venue or the name of the person suspected of committing an offense, the grand jurors must be notified that the evidence is being submitted by report and that the peace officer who compiled the report will be made available for testimony at the request of the grand jury. When a grand jury requests the testimony of a peace officer under this paragraph, the peace officer may present sworn testimony by telephone if requiring the peace officer’s presence before the grand jury would constitute an undue hardship on the peace officer or the agency that employs or utilizes the peace officer.

[(7)] (8) The grand jury is not bound to hear evidence for the defendant, but it shall weigh all the evidence submitted to it; and when it believes that other evidence within its reach will explain away the charge, it should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.

[(8)] (9) A grand jury that is investigating a charge of driving while under the influence of intoxicants in violation of ORS 813.010 may receive in evidence an affidavit of a peace officer regarding any or all of the following:

(a) Whether the defendant was driving.

(b) Whether the defendant took or refused to take tests under any provision of ORS chapter 813.

(d) The officer’s observations of physical or mental impairment of the defendant.

SECTION 4. ORS 135.060 is amended to read:

135.060. (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 [or be proceeded against by the name in the accusatory instrument]; 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.

SECTION 5. ORS 135.065 is amended to read:

135.065. (1) If the defendant gives no other name, the court may proceed [accordingly] 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.

SECTION 6. ORS 135.245 is amended to read:

135.245. (1) Except as provided in ORS 135.240, a person in custody [shall have] has the [immediate] right to immediate security release or [shall] 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)(a) 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:

(i) 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;

(ii) To appear personally at the hearing; and

(iii) If present, to reasonably express any views relevant to the issues before the magistrate.

(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.

(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.

[(6)] (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.

SECTION 7. If a defendant, on or after the effective date of this 2003 Act, 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.

SECTION 8. ORS 132.580 is amended to read:

132.580. (1) When an indictment is found, the names of the witnesses examined before the grand jury that returned the indictment, either by testimony in the presence of the grand jury, by affidavit, [or] by means of simultaneous television transmission under ORS 132.320 (5) or by telephone under ORS 132.320 (7), and the names of those whose reports were received by such grand jury pursuant to ORS 132.320 (2) must be inserted at the foot of the indictment, or indorsed thereon, before it is filed. The indorsement shall show whether the witness gave testimony before the grand jury in person, by affidavit, [or] by means of simultaneous television transmission or by telephone or filed a report.

(2) A witness examined before the grand jury whose name is not indorsed on the indictment shall not be permitted to testify at trial without the consent of the defendant, unless the court finds that:

(a) The name of the witness was omitted from the indictment by inadvertence; [and]

(b) The name of the witness was furnished to the defendant by the state at least 10 days before trial; and

SECTION 9. 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 August 12, 2003

Filed in the office of Secretary of State August 13, 2003

Effective date August 12, 2003

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