Chapter 14 Oregon Laws 2008 Special Session
AN ACT
SB 1087
:ACT4.[2008 Special Session]
Relating to crime; creating new provisions; amending ORS 137.717 and
164.162; and providing that this Act shall be referred to the people for their
approval or rejection.
Be It Enacted by the People of
the State of
SECTION 1. The
Legislative Assembly finds and declares that:
(1) The manufacturing
and dealing of methamphetamine, heroin, cocaine and ecstasy are especially
damaging to our community.
(2) Many Oregonians are
addicted to these drugs. Some of these drug-addicted persons present a danger
to public safety by committing crimes to feed their addictions.
(3) In order to reduce
the risk of future criminal activity, these drug-addicted offenders need the
opportunity to change their behavior through effective drug treatment.
(4) Sections 2 to 5 and
6 of this 2008 Act and the amendments to ORS 137.717 and 164.162 by sections 7
and 10 of this 2008 Act increase the punishment for offenders who commit high-level
or repeat drug and property crimes.
(5) Section 8 of this
2008 Act increases the availability of treatment for drug-addicted offenders.
(6) Section 9 of this
2008 Act requires swift and certain punishment for offenders who refuse or fail
to successfully complete treatment as a condition of probation, parole or
post-prison supervision.
SECTION 2. When
a person is convicted of the unlawful delivery or manufacture of a controlled
substance, the court shall sentence the person to a term of incarceration
ranging from:
(1) 58 months to 130
months, depending on the person’s criminal history, if the delivery or
manufacture involves:
(a) 500 grams or more of
a mixture or substance containing a detectable amount of cocaine;
(b) 500 grams or more of
a mixture or substance containing a detectable amount of methamphetamine, its
salts, isomers or salts of its isomers;
(c) 100 grams or more of
a mixture or substance containing a detectable amount of heroin; or
(d) 100 grams or more or
500 or more pills, tablets or capsules of a mixture or substance containing a
detectable amount of ecstasy.
(2) 34 months to 72
months, depending on the person’s criminal history, if the delivery or
manufacture involves:
(a) 100 grams or more of
a mixture or substance containing a detectable amount of cocaine;
(b) 100 grams or more of
a mixture or substance containing a detectable amount of methamphetamine, its
salts, isomers or salts of its isomers;
(c) 50 grams or more of
a mixture or substance containing a detectable amount of heroin; or
(d) 50 grams or more or
250 or more pills, tablets or capsules of a mixture or substance containing a
detectable amount of ecstasy.
SECTION 3. (1)
When a person is convicted of the unlawful delivery of cocaine,
methamphetamine, heroin or ecstasy to a person under 18 years of age, the court
shall sentence the person to a term of incarceration ranging from 34 months to
72 months, depending on the person’s criminal history.
(2) The sentence
described in subsection (1) of this section does not apply to a person who is
less than three years older than the person under 18 years of age to whom the
controlled substance was delivered, unless the person has a previous conviction
for delivery of cocaine, methamphetamine, heroin or ecstasy to a person under
18 years of age.
SECTION 4. When
a person is convicted of aggravated theft in the first degree under ORS
164.057, the court shall sentence the person to a term of incarceration ranging
from 16 months to 45 months, depending on the person’s criminal history, if:
(1) The victim of the
theft was 65 years of age or older at the time of the commission of the
offense; and
(2) The value of the
property stolen from the victim described in subsection (1) of this section, in
a single or aggregate transaction, is $10,000 or more.
SECTION 5. As
used in sections 2 to 5 of this 2008 Act:
(1) “Controlled
substance” means:
(a) Cocaine;
(b) Methamphetamine;
(c) Heroin; or
(d) Ecstasy.
(2) “Ecstasy” means:
(a)
3,4-methylenedioxymethamphetamine;
(b) 3,4-methylenedioxyamphetamine;
or
(c)
3,4-methylenedioxy-N-ethylamphetamine.
(3) “Mixture or
substance” means any mixture or substance, whether or not the mixture or
substance is in an ingestible or marketable form at the time of the offense.
SECTION 6. (1)
When a court sentences a person convicted of a crime listed in subsection (2)
of this section, the court may not impose a sentence of optional probation or
grant a downward dispositional departure or a downward durational departure
under the rules of the Oregon Criminal Justice Commission if the person has a
previous conviction for any of the crimes listed in subsection (2) of this
section.
(2) The crimes to which
subsection (1) of this section applies are:
(a) Manufacture or
delivery of a controlled substance, other than marijuana, under ORS 475.840
(1);
(b) Creation or delivery
of a counterfeit substance, other than marijuana, under ORS 475.840 (2);
(c) Manufacture or
delivery of heroin under ORS 475.846, 475.848, 475.850 or 475.852;
(d) Manufacture or
delivery of 3,4-methylenedioxymethamphetamine under ORS 475.866, 475.868,
475.870 or 475.872;
(e) Manufacture or
delivery of cocaine under ORS 475.876, 475.878, 475.880 or 475.882;
(f) Manufacture or
delivery of methamphetamine under ORS 475.886, 475.888, 475.890 or 475.892;
(g) Manufacture or
delivery of a controlled substance within 1,000 feet of a school under ORS
475.904;
(h) Delivery of a
controlled substance to a person under 18 years of age under ORS 475.906; and
(i) Possession of a
precursor substance with intent to manufacture a controlled substance under ORS
475.967.
(3)(a) For a crime
committed on or after November 1, 1989, a conviction is considered to have
occurred upon the pronouncement in open court of sentence. However, when
sentences are imposed for two or more convictions arising out of the same
conduct or criminal episode, none of the convictions is considered to have
occurred prior to any of the other convictions arising out of the same conduct
or criminal episode.
(b) For a crime
committed prior to November 1, 1989, a conviction is considered to have
occurred upon the pronouncement in open court of a sentence or upon the
pronouncement in open court of the suspended imposition of a sentence.
(4) For purposes of this
section, previous convictions must be proven pursuant to ORS 137.079.
(5) As used in this
section, “previous conviction” means:
(a) Convictions
occurring before, on or after the effective date of this 2008 Act; and
(b) Convictions entered
in any other state or federal court for comparable offenses.
SECTION 7.
ORS 137.717 is amended to read:
137.717. (1) When a
court sentences a person convicted of:
(a) Aggravated theft in
the first degree under ORS 164.057, burglary in the first degree under ORS
164.225, robbery in the third degree under ORS 164.395, identity theft under
ORS 165.800 or aggravated identity theft under ORS 165.803, the presumptive
sentence is [19] 24 months of
incarceration, unless the rules of the Oregon Criminal Justice Commission
prescribe a longer presumptive sentence, if the person has:
(A) A previous
conviction for aggravated theft in the first degree under ORS 164.057, burglary
in the first degree under ORS 164.225, robbery in the third degree under ORS
164.395, robbery in the second degree under ORS 164.405, robbery in the
first degree under ORS 164.415 or aggravated identity theft under ORS 165.803;
[or]
(B) [Four] Two or more previous
convictions for any combination of the [other]
crimes listed in subsection (2) of this section[.]; or
(C) A previous
conviction for a crime listed in subsection (2) of this section if the current
crime of conviction was committed while the defendant was on supervision for
the previous conviction or less than three years after the date the defendant
completed the period of supervision for the previous conviction.
(b) Theft in the first
degree under ORS 164.055, unauthorized use of a vehicle under ORS 164.135,
mail theft or receipt of stolen mail under ORS 164.162, burglary in the
second degree under ORS 164.215, criminal mischief in the first degree under
ORS 164.365, computer crime under ORS 164.377, forgery in the first degree
under ORS 165.013, criminal possession of a forged instrument in the first
degree under ORS 165.022, fraudulent use of a credit card under ORS 165.055
(4)(b), [identity theft under ORS
165.800,] possession of a stolen vehicle under ORS 819.300 or trafficking
in stolen vehicles under ORS 819.310, the presumptive sentence is [13] 18 months of incarceration,
unless the rules of the Oregon Criminal Justice Commission prescribe a longer
presumptive sentence, if the person has:
(A) A previous
conviction for aggravated theft in the first degree under ORS 164.057,
unauthorized use of a vehicle under ORS 164.135, burglary in the first degree
under ORS 164.225, robbery in the third degree under ORS 164.395,
robbery in the second degree under ORS 164.405, robbery in the first degree
under ORS 164.415, possession of a stolen vehicle under ORS 819.300,
trafficking in stolen vehicles under ORS 819.310 or aggravated identity theft
under ORS 165.803; [or]
(B) [Four] Two or more previous
convictions for any combination of the [other]
crimes listed in subsection (2) of this section[.]; or
(C) A previous
conviction for a crime listed in subsection (2) of this section if the current
crime of conviction was committed while the defendant was on supervision for
the previous conviction or less than three years after the date the defendant
completed the period of supervision for the previous conviction.
(2) The crimes to which
subsection (1) of this section applies are:
(a) Theft in the second
degree under ORS 164.045;
(b) Theft in the first
degree under ORS 164.055;
(c) Aggravated theft in
the first degree under ORS 164.057;
(d) Unauthorized use of
a vehicle under ORS 164.135;
(e) Mail theft or
receipt of stolen mail under ORS 164.162;
[(e)] (f) Burglary in the second degree under ORS 164.215;
[(f)] (g) Burglary in the first degree under ORS 164.225;
[(g)] (h) Criminal mischief in the second degree under ORS
164.354;
[(h)] (i) Criminal mischief in the first degree under ORS
164.365;
[(i)] (j) Computer crime under ORS 164.377;
[(j)] (k) Forgery in the second degree under ORS 165.007;
[(k)] (L) Forgery in the first degree under ORS 165.013;
[(L)] (m) Criminal possession of a forged instrument in the
second degree under ORS 165.017;
[(m)] (n) Criminal possession of a forged instrument in the
first degree under ORS 165.022;
[(n)] (o) Fraudulent use of a credit card under ORS 165.055;
[(o)] (p) Identity theft under ORS 165.800;
[(p)] (q) Possession of a stolen vehicle under ORS 819.300; [and]
[(q)] (r) Trafficking in stolen vehicles under ORS 819.310[.]; and
(s) Any attempt to
commit a crime listed in this subsection.
(3)(a) A presumptive
sentence described in subsection (1) of this section shall be increased by two
months for each previous conviction the person has that:
(A) Was for any of the
crimes listed in subsection (1) or (2) of this section; and
(B) Was not used as a
predicate for the presumptive sentence under subsection (1) of this section.
(b) Previous convictions
may not increase a presumptive sentence described in subsection (1) of this
section by more than 12 months under this subsection.
[(3)] (4) The court may impose a sentence other than the
sentence provided by subsection (1) or (3) of this section if the court
imposes:
(a) A longer term of
incarceration that is otherwise required or authorized by law; or
(b) A departure sentence
authorized by the rules of the Oregon Criminal Justice Commission based upon
findings of substantial and compelling reasons. Unless the law or the rules of
the Oregon Criminal Justice Commission allow for imposition of a longer
sentence, the maximum departure allowed for a person sentenced under this subsection
is double the presumptive sentence provided in subsection (1) or (3) of
this section.
[(4) As used in this section, “previous conviction” includes:]
[(a) Convictions occurring before, on or after July 1, 2003; and]
[(b) Convictions entered in any other state or federal court for
comparable offenses.]
(5) Notwithstanding
subsection (4)(b) of this section, the court may not sentence a person under
subsection (4) of this section to a term of incarceration that exceeds the
period of time described in ORS 161.605.
(6) The court shall
sentence a person under this section to at least the presumptive sentence
described in subsection (1) or (3) of this section, unless the parties
stipulate otherwise or the court finds that:
(a) The person was not
on probation, parole or post-prison supervision for a crime listed in
subsection (1) of this section at the time of the commission of the current
crime of conviction;
(b) The person has not
previously received a downward departure from a presumptive sentence for a
crime listed in subsection (1) of this section;
(c) The harm or loss
caused by the crime is not greater than usual for that type of crime; and
(d) In consideration of
the nature of the offense and the harm to the victim, a downward departure
will:
(A) Increase public
safety;
(B) Enhance the
likelihood that the person will be rehabilitated; and
(C) Not unduly reduce
the appropriate punishment.
[(5)(a)] (7)(a) For a crime committed on or after November 1,
1989, a conviction is considered to have occurred upon the pronouncement of
sentence in open court. However, when sentences are imposed for two or more
convictions arising out of the same conduct or criminal episode, none of the
convictions is considered to have occurred prior to any of the other convictions
arising out of the same conduct or criminal episode.
(b) For a crime
committed prior to November 1, 1989, a conviction is considered to have
occurred upon the pronouncement in open court of a sentence or upon the
pronouncement in open court of the suspended imposition of a sentence.
[(6)] (8) For purposes of this section, previous convictions
must be proven pursuant to ORS 137.079.
(9) As used in this
section:
(a) “Downward departure”
means a downward dispositional departure or a downward durational departure
under the rules of the
(b) “Previous conviction”
includes:
(A) Convictions
occurring before, on or after July 1, 2003; and
(B) Convictions entered
in any other state or federal court for comparable offenses.
SECTION 8. (1)
The Department of Corrections shall:
(a) Provide appropriate
treatment services to drug-addicted persons in the custody of the department
who are at a high or medium risk of reoffending and who have moderate to severe
treatment needs; and
(b) Make grants to
counties in order to provide supplemental funding for:
(A) The operation of
local jails;
(B) Appropriate
treatment services for drug-addicted persons on probation, parole or
post-prison supervision; or
(C) The intensive
supervision of drug-addicted persons on probation, parole or post-prison
supervision, including the incarceration of drug-addicted persons who have
violated the terms and conditions of probation, parole or post-prison
supervision.
(2) The Oregon Criminal
Justice Commission shall make grants to counties in order to provide
supplemental funding for drug courts for drug-addicted persons, including the
costs of appropriate treatment services and the incarceration of persons who
have violated the terms and conditions of a drug court.
(3)(a) The appropriate
legislative committee shall periodically conduct oversight hearings on the
effectiveness of this section.
(b) The
(4) Nothing in section
1, 2 to 5, 6, 8, 9 or 11 of this 2008 Act or the amendments to ORS 137.717 or
164.162 by sections 7 and 10 of this 2008 Act:
(a) Creates any claim,
right of action or civil liability; or
(b) Requires a
supervisory authority or the Department of Corrections to provide treatment to
any individual under the authority’s supervision or in the department’s
custody.
SECTION 9. If
a person on probation, parole or post-prison supervision is required to
successfully complete a drug or alcohol treatment program as a condition of
supervision and the person refuses or otherwise fails to successfully complete
the treatment program, the court or the supervising authority shall impose
swift and certain punishment, including incarceration in jail.
SECTION 10.
ORS 164.162 is amended to read:
164.162. (1) A person
commits the crime of mail theft or receipt of stolen mail if the person intentionally:
(a) Takes or, by fraud
or deception, obtains mail from a post office, postal station, mail receptacle,
authorized depository or mail carrier;
(b) Takes from mail any
article contained therein;
(c) Secretes, embezzles
or destroys mail or any article contained therein;
(d) Takes or, by fraud
or deception, obtains mail that has been delivered to or left for collection on
or adjacent to a mail receptacle or authorized depository; or
(e) Buys, receives,
conceals or possesses mail or any article contained therein knowing that the
mail or article has been unlawfully taken or obtained.
(2) Mail theft or
receipt of stolen mail is a Class C felony [A misdemeanor].
SECTION 11. (1)
When a court sentences a person under sections 2 to 5 of this 2008 Act:
(a) The court shall use
the criminal history scale of the sentencing guidelines grid of the
(A) Section 2 (1) of
this 2008 Act shall be determined utilizing crime category 10 of the sentencing
guidelines grid.
(B) Sections 2 (2) and 3
(1) of this 2008 Act shall be determined utilizing crime category 9 of the
sentencing guidelines grid.
(C) Section 4 of this
2008 Act shall be determined utilizing crime category 8 of the sentencing
guidelines grid.
(b)(A) Notwithstanding
ORS 161.605, the court shall impose the sentence described in sections 2 to 5
of this 2008 Act and may not impose a sentence of optional probation or grant a
downward dispositional departure or a downward durational departure under the
rules of the commission.
(B) The court may impose
a sentence other than the sentence described in sections 2 to 5 of this 2008
Act if the court imposes a longer term of incarceration that is otherwise
required or authorized by law.
(2) A person sentenced
under sections 2 to 5 of this 2008 Act may not receive a reduction in the term
of incarceration for appropriate institutional behavior that exceeds 20 percent
of the sentence imposed.
SECTION 12. (1)
Sections 1 to 6 and 11 of this 2008 Act and the amendments to ORS 137.717 and
164.162 by sections 7 and 10 of this 2008 Act become operative on January 1,
2009.
(2) Sections 2 to 6 and
11 of this 2008 Act and the amendments to ORS 137.717 and 164.162 by sections 7
and 10 of this 2008 Act apply to sentences imposed for crimes committed on or
after January 1, 2009.
(3) Sections 8 and 9 of
this 2008 Act become operative on July 1, 2009.
SECTION 13. If
Initiative Petition 40 (2008) is placed on the ballot at the next regular
general election held throughout this state on November 4, 2008, and both
Initiative Petition 40 (2008) and this 2008 Act are enacted or approved by a
majority of the votes cast thereon:
(1) Sections 1 to 6, 8,
9, 11 and 12 of this 2008 Act and the amendments to ORS 137.717 and 164.162 by
sections 7 and 10 of this 2008 Act are repealed if Initiative Petition 40
(2008) receives a number of affirmative votes greater than the number of
affirmative votes received by this 2008 Act; or
(2) The preamble and
sections 1 to 8 of Initiative Petition 40 (2008) are repealed if this 2008 Act
receives a number of affirmative votes greater than the number of affirmative
votes received by Initiative Petition 40 (2008).
SECTION 14. If
any part of sections 1 to 6 and 11 of this 2008 Act and the amendments to ORS
137.717 and 164.162 by sections 7 and 10 of this 2008 Act is held to be
unconstitutional or otherwise invalid, all remaining parts of sections 1 to 6
and 11 of this 2008 Act and the amendments to ORS 137.717 and 164.162 by
sections 7 and 10 of this 2008 Act shall not be affected by the holding and
shall remain in full force and effect.
SECTION 15. This
2008 Act shall be submitted to the people for their approval or rejection at
the next regular general election held throughout this state.
Approved by the Governor March 5, 2008
NOTE:
Chapter 14, Oregon Laws 2008 (Enrolled Senate Bill 1087), was referred to the
people at the regular general election on November 4, 2008. If approved, the
Act takes effect 30 days after the election.
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