Chapter 269
Oregon Laws 2011
AN ACT
SB 396
Relating to
protective orders; creating new provisions; and amending ORS 107.720, 107.723,
107.730, 124.022, 124.030, 163.741, 419B.845 and 419B.846.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 107.720 is amended to
read:
107.720. (1)(a) Whenever a restraining
order, as authorized by ORS 107.095 (1)(c) or (d), 107.716 or 107.718 [which], that includes a security
amount and an expiration date pursuant to ORS 107.095, 107.716 or 107.718 and
this section, is issued and the person to be restrained has actual notice [thereof] of the order, the clerk
of the court or any other person serving the petition and order shall immediately
deliver [forthwith] to a county
sheriff a true copy of the affidavit of proof of service, on which it is
stated that personal service of the petition and order was served on the
respondent, [a copy] and copies
of the petition and [a true copy of the]
order. If an order entered by the court recites that the respondent appeared in
person before the court, the necessity for [further]
service of the order and an affidavit of proof of service is waived [and an accompanying proof of service is not
necessary]. Upon receipt of a [true]
copy of the order and notice of completion of any required service by
a member of a law enforcement agency, the county sheriff shall [forthwith] immediately enter the
order into the Law Enforcement Data System maintained by the Department of
State Police and into the databases of the National Crime Information Center of
the United States Department of Justice. If the petition and order were
served on the respondent by a person other than a member of a law enforcement
agency, the county sheriff shall enter the order into the Law Enforcement Data
System and databases of the National Crime Information Center upon receipt of a
true copy of the affidavit of proof of service. The sheriff shall [also] provide the petitioner with a true
copy of [the] any required
proof of service. Entry into the Law Enforcement Data System constitutes notice
to all law enforcement agencies of the existence of [such] the order. Law enforcement agencies shall establish
procedures adequate to ensure that an officer at the scene of an alleged
violation of [such] the order
may be informed of the existence and terms of [such] the order. [Such]
The order [shall be] is
fully enforceable in any county or tribal land in [the] this state. [The
petitioner may elect to deliver documents personally to a county sheriff or to
have them delivered by a private person for entry into the Law Enforcement Data
System and the databases of the National Crime Information Center of the United
States Department of Justice.]
(b) When a restraining order has been
entered into the Law Enforcement Data System and the databases of the National
Crime Information Center of the United States Department of Justice under
paragraph (a) of this subsection, a county sheriff shall cooperate with a
request from a law enforcement agency from any other jurisdiction to verify the
existence of the restraining order or to transmit a copy of the order to the
requesting jurisdiction.
(2)(a) A restraining order shall
remain in effect until the order expires or is terminated by court order.
(b) When a restraining order has been
entered under ORS 107.718, the restraining order shall not be terminated upon a
motion for dismissal by the petitioner unless the motion is notarized.
(3) In any situation where a
restraining order described in subsection (1) of this section is terminated
before the expiration date, the clerk of the court shall immediately
deliver [forthwith] a [true] copy of the termination order to
the county sheriff with whom the original order was filed. Upon receipt of [such] the termination order,
the county sheriff shall promptly remove the original order from the Law
Enforcement Data System and the databases of the National Crime Information
Center of the United States Department of Justice.
(4) Pending a contempt hearing for
alleged violation of a restraining order issued [pursuant to] under ORS 107.095 (1)(c) or (d), 107.716 or
107.718, a person arrested and taken into custody pursuant to ORS 133.310 may
be released as provided in ORS 135.230 to 135.290. Whenever [such] a restraining order is
issued under ORS 107.095 (1)(c) or (d), 107.716 or 107.718, the issuing
court shall set a security amount for the violation of [such] the order.
SECTION 2. ORS 107.723 is amended to
read:
107.723. (1) A sheriff may serve a
restraining order issued under ORS [107.718]
107.700 to 107.735 in the county in which the sheriff was elected and in
any [other] county that is adjacent
to the county in which the sheriff was elected.
(2) A sheriff may serve and enter into
the Law Enforcement Data System a [facsimile
of a certified true] copy of a restraining order under ORS [107.718] 107.700 to 107.735 that
was transmitted to the sheriff by a [trial
court administrator or another sheriff using a telephonic facsimile
communication device] court or law enforcement agency using an electronic
communication device. [A copy of the
facsimile must be attached to the sheriff’s return of service.] Before
transmitting a copy of a restraining order to a sheriff under this
subsection by telephonic facsimile or electronic mail, the person
sending the [facsimile] copy
must receive confirmation [by telephone]
from the sheriff’s office that [a
telephonic facsimile] an electronic communication device is
available and operating. For purposes of this subsection, “electronic
communication device” means a device by which any kind of electronic
communication can be made, including but not limited to communication by
telephonic facsimile and electronic mail.
SECTION 3. ORS 107.730 is amended to
read:
107.730. (1) At any time after an
order has been issued under ORS 107.700 to 107.735 and after the time period
set forth in ORS 107.718 (10)(a):
(a) A party may request that the court
modify terms in the order that were entered under ORS 107.718 (1)(a), (b), (g)
or (i) for good cause shown.
(b) A petitioner may request that the
court modify by removing or making less restrictive terms in the order that
were entered under ORS 107.718 (1)(b), (g) or (i) for good cause shown.
Application to the court under this paragraph may be by ex parte motion.
(2) The clerk of the court shall
provide without charge the number of certified true copies of the request for
modification of the order and notice of hearing necessary to effect service
and, at the election of the party requesting the modification, shall have a
true copy of the request and notice delivered to the county sheriff for service
upon the other party.
[(3)
Service shall be in the manner provided by law for service of summons. The
county sheriff shall serve the other party personally unless the party
requesting the modification elects to have the other party served personally by
a private party.]
(3) The county sheriff shall
personally serve the other party with a request under subsection (1)(a) of this
section, unless the party requesting the modification under subsection (1)(a)
of this section elects to have the other party personally served by a private
party or unless otherwise ordered by the court.
(4) The provisions of ORS 107.716 (5)
apply to a modification of an order under this section.
(5) The clerk of the court shall
deliver a copy of an order of modification entered under subsection (1) of this
section to the county sheriff for service and entry into the Law Enforcement
Data System as provided in ORS 107.723.
(6)(a) The county sheriff shall serve a
copy of an order of modification:
(A) Entered under subsection (1)(a) of
this section by personal service on the nonrequesting party.
(B) Entered under subsection (1)(b) of
this section by mailing a copy of the order to the nonrequesting party by first
class mail.
(b) If the order of modification
recites that the respondent appeared in person before the court, the necessity
for service of the order and an affidavit of proof of service is waived.
[(5)]
(7) The court may assess against either party a reasonable attorney fee and
[such] costs [as] that may be incurred in the proceeding.
SECTION 4. ORS 124.022 is amended to
read:
124.022. (1) A sheriff may serve a
restraining order issued under ORS 124.020 in the county in which the
sheriff was elected and in any [other]
county that is adjacent to the county in which the sheriff was elected.
(2) A sheriff may serve and enter into
the Law Enforcement Data System a [facsimile
of a certified true] copy of a restraining order under ORS 124.020 that was
transmitted to the sheriff by a [trial
court administrator or another sheriff using a telephonic facsimile
communication device] court or law enforcement agency using an
electronic communication device. [A
copy of the facsimile must be attached to the sheriff’s return of service.]
Before transmitting a restraining order to a sheriff under this subsection
by telephonic facsimile or electronic mail, the person sending the [facsimile] copy must receive
confirmation [by telephone] from the
sheriff’s office that [a telephonic
facsimile] an electronic communication device is available and
operating. For purposes of this subsection, “electronic communication device”
means a device by which any kind of electronic communication can be made,
including but not limited to communication by telephonic facsimile and
electronic mail.
SECTION 5. ORS 124.030 is amended to
read:
124.030. (1) Whenever a restraining
order, as authorized by ORS 124.015 or 124.020, that includes a security amount
and an expiration date pursuant to ORS 124.015 and 124.020 and this section, is
issued and the person to be restrained has actual notice [thereof] of the order, the clerk of the court or any other
person serving the petition and order shall immediately deliver [forthwith] to a county sheriff a true
copy of the affidavit of proof of service, on which it is stated that
personal service of the petition and order was served on the respondent, [a copy] and copies of the
petition and [a true copy of the]
order. If an order entered by the court recites that the respondent appeared in
person before the court, the necessity for [further]
service of the order and an affidavit of proof of service is waived [and an accompanying proof of service is not
necessary]. Upon receipt of a [true]
copy of the order and notice of completion of any required service by
a member of a law enforcement agency, the county sheriff shall [forthwith] immediately enter the
order into the Law Enforcement Data System maintained by the Department of
State Police. If the petition and order were served on the respondent by a
person other than a member of a law enforcement agency, the county sheriff
shall enter the order into the Law Enforcement Data System upon receipt of a
true copy of the affidavit of proof of service. Entry into the Law
Enforcement Data System constitutes notice to all law enforcement agencies of
the existence of [such] the
order. Law enforcement agencies shall establish procedures adequate to ensure
that an officer at the scene of an alleged violation of [such] the order may be informed of the existence and terms
of [such] the order. [Such] The order [shall be] is fully enforceable in
any county in [the] this
state. [The petitioner or guardian
petitioner may elect to deliver documents personally to a county sheriff or to
have them delivered by a private person for entry into the Law Enforcement Data
System.]
(2)(a) A restraining order shall
remain in effect until the order expires or is terminated by court order.
(b) When a restraining order has been
entered under ORS 124.020, the restraining order shall not be terminated upon a
motion for dismissal by the petitioner or guardian petitioner unless the motion
is notarized.
(3) In any situation where a
restraining order described in subsection (1) of this section is terminated
before the expiration date, the clerk of the court shall immediately
deliver [forthwith] a [true] copy of the termination order to
the county sheriff with whom the original order was filed. Upon receipt of [such] the termination order,
the county sheriff shall promptly remove the original order from the Law
Enforcement Data System.
(4) Pending a contempt hearing for an
alleged violation of a restraining order issued [pursuant to] under ORS 124.015 or 124.020, a person arrested
and taken into custody pursuant to ORS 133.310 may be released as provided in
ORS 135.230 to 135.290. Whenever [such]
a restraining order is issued under ORS 124.015 or 124.020, the
issuing court shall set a security amount for the violation of [such] the order.
SECTION 6. ORS 163.741 is amended to
read:
163.741. (1) Service of a stalking
protective order shall be made by personal delivery of a copy of the order to
the respondent. The respondent need not be served if an order of the court
indicates that the respondent appeared in person before the court.
(2) Whenever a stalking protective
order, as authorized by ORS 163.735 or 163.738, is served on a respondent, the
person serving the order shall immediately deliver [forthwith] to the county sheriff a true copy of the [order and an] affidavit of proof of
service, on which it is stated that personal service of the order was
made on the respondent, and a copy of the order. If service of the order
is not required under subsection (1) of this section, a copy of the order [shall] must be delivered to the
sheriff by the court. Upon receipt of a copy of the order and notice
of completion of any required [proof
of] service by a member of a law enforcement agency, the county
sheriff shall [forthwith] immediately
enter the order into the Law Enforcement Data System maintained by the
Department of State Police and into the databases of the National Crime
Information Center of the United States Department of Justice. If the order
was served on the respondent by a person other than a member of a law
enforcement agency, the county sheriff shall enter the order into the Law
Enforcement Data System and databases of the National Crime Information Center
upon receipt of a true copy of the affidavit of proof of service. The
sheriff shall [also] provide the
complainant with a true copy of any required proof of service. Entry into the
Law Enforcement Data System constitutes notice to all law enforcement agencies
of the existence of [such] the
order. Law enforcement agencies shall establish procedures adequate to ensure
that an officer at the scene of an alleged violation of [such] the order may be informed of the existence and terms
of [such] the order. [Such] The order [shall be] is fully enforceable in
any county in [the] this
state. [The complainant may elect to
deliver documents personally to a county sheriff or to have them delivered by a
private person for entry into the Law Enforcement Data System and the databases
of the National Crime Information Center of the United States Department of Justice.]
(3) When a stalking protective order
has been entered into the Law Enforcement Data System and the databases of the
National Crime Information Center of the United States Department of Justice
under subsection (1) of this section, a county sheriff shall cooperate with a
request from a law enforcement agency from any other jurisdiction to verify the
existence of the stalking protective order or to transmit a copy of the order
to the requesting jurisdiction.
(4) When a stalking protective order
is terminated by order of the court, the clerk of the court shall immediately
deliver [forthwith] a [true] copy of the termination order to
the county sheriff with whom the original order was filed. Upon receipt of the
termination order, the county sheriff shall promptly remove the original order
from the Law Enforcement Data System and the databases of the National Crime
Information Center of the United States Department of Justice.
SECTION 7. ORS 419B.845 is amended to
read:
419B.845. (1)(a) When a petition has
been filed alleging that the child has been physically or sexually abused, the
court may enter an order restraining the alleged perpetrator of the abuse from
having contact with the child or attempting to contact the child and requiring
the alleged perpetrator to move from the household in which the child resides.
The court may issue a restraining order only if the court finds that:
(A) There is probable cause to believe
the abuse occurred and that the person to be restrained committed the abuse;
and
(B) The order is in the best interest
of the child.
(b) Upon finding that to do so would
aid in protecting the victim of the alleged abuse, the court may enter, in
addition to a restraining order described in paragraph (a) of this subsection,
other appropriate orders including, but not limited to, orders that control
contact between the alleged abuser and other children in the household.
(c) The court shall include in an
order entered under this subsection the following information about the person
to be restrained:
(A) Name;
(B) Address;
(C) Age and birth date;
(D) Race;
(E) Sex;
(F) Height and weight; and
(G) Color of hair and eyes.
(d) The court may include in the order
a provision that a peace officer accompany the restrained person to the household
when it is necessary for the [restrained]
person to remove [personal property.]
the person’s essential personal effects including, but not limited to,
clothing, toiletries, medications, Social Security cards, birth certificates,
identification and tools of the trade. The restrained person is entitled to
remove the person’s essential personal effects under this paragraph on one
occasion only and is required to be accompanied by a peace officer. The
restrained person and the peace officer shall remain for no longer than 20
minutes and the peace officer may temporarily interrupt the removal of
essential personal effects at any time. Nothing in this paragraph affects a
peace officer’s duty to arrest under ORS 133.055 and 133.310. A peace officer
who accompanies a restrained person under this paragraph has immunity from any
liability, civil or criminal, for any actions the person commits during the
removal of the person’s essential personal effects.
(2) If the court enters an order under
this section:
(a) The clerk of the court shall
provide without charge the number of certified [true] copies of the petition and order necessary to effect service
and shall have a [true] copy of the
petition and order delivered to the sheriff or other person qualified to serve
the order for service upon the person to be restrained; and
(b) The sheriff or other person
qualified to serve the order shall serve the person to be restrained personally
unless that person is present at the hearing. After accepting the order, if the
sheriff or other person cannot complete service within 10 days, the sheriff or
other person shall hold the order for future service and file a return to the
clerk of the court showing that service was not completed.
(3) Within 30 days after an order is served
under this section, the restrained person may file a written request with the
court and receive a court hearing on any portion of the order. If the
restrained person requests a hearing under this subsection:
(a) The clerk of the court shall
notify the parties and, if the restrained person is not a party, the restrained
person of the date and time of the hearing; and
(b) The court shall hold the hearing
within 21 days after the request and may cancel or modify the order.
(4) Upon receipt of a copy of
the order and notice of completion of any required service by a
member of a law enforcement agency, the sheriff shall immediately enter the
order into the Law Enforcement Data System maintained by the Department of
State Police. If the order was served on the person to be restrained by a
person other than a member of a law enforcement agency, the county sheriff
shall enter the order into the Law Enforcement Data System upon receipt of a
true copy of the affidavit of proof of service. Entry into the Law Enforcement
Data System constitutes notice to all law enforcement agencies of the existence
of the order. Law enforcement agencies shall establish procedures adequate to
ensure that an officer at the scene of an alleged violation of the order may be
informed of the existence and terms of the order. The order [shall be] is fully enforceable in
any county in this state.
(5) A restraining order issued
pursuant to this section remains in effect for a period of one year or until
the order is modified, amended or terminated by court order.
(6) A court that issued a restraining
order under this section may renew the order for a period of up to one year if
the court finds that there is probable cause to believe the renewal is in the
best interest of the child. The court may renew the order on motion alleging
facts supporting the required finding. If the renewal order is granted,
subsections (2) and (3) of this section apply.
(7) If a restraining order issued
pursuant to this section is terminated before its expiration date, the clerk of
the court shall [promptly] immediately
deliver a [true] copy of the
termination order to the sheriff. The sheriff shall promptly remove the
original order from the Law Enforcement Data System.
(8) Pending a contempt hearing for
alleged violation of a restraining order issued under this section, a person
arrested and taken into custody pursuant to ORS 133.310 may be released as
provided in ORS 135.230 to 135.290. Unless the order provides otherwise, the
security amount for release shall be $5,000.
(9) When a restraining order entered
under this section prohibits the restrained person from contacting the
protected person in writing, the restrained person does not violate the
restraining order by serving on the protected person a copy of a notice of
appeal of the restraining order or any other document required by law to be
served on the adverse party to an appeal if:
(a) Neither the restrained person nor
the protected person is represented by counsel;
(b) The restrained person serves the
document by mail; and
(c) The contents of the document are
not intended to harass or intimidate the protected person.
SECTION 8. ORS 419B.846 is amended to
read:
419B.846. (1) A sheriff may serve a
restraining order issued under ORS 419B.845 in the county in which the
sheriff was elected and in any [other]
county that is adjacent to the county in which the sheriff was elected.
(2) A sheriff may serve and enter into
the Law Enforcement Data System a [facsimile
of a certified true] copy of a restraining order under ORS 419B.845 that
was transmitted to the sheriff by a [trial
court administrator or another sheriff using a telephonic facsimile
communication device] court or law enforcement agency using an
electronic communication device. [A
copy of the facsimile must be attached to the sheriff’s return of service.]
Before transmitting a restraining order to a sheriff under this subsection
by telephonic facsimile or electronic mail, the person sending the [facsimile] copy must receive
confirmation [by telephone] from the
sheriff’s office that [a telephonic
facsimile] an electronic communication device is available and
operating. For purposes of this subsection, “electronic communication device”
means a device by which any kind of electronic communication can be made,
including but not limited to communication by telephonic facsimile and
electronic mail.
SECTION 9. The amendments to ORS
107.720, 107.723, 107.730, 124.022, 124.030, 163.741, 419B.845 and 419B.846 by
sections 1 to 8 of this 2011 Act apply to protective orders entered on or after
the effective date of this 2011 Act.
Approved by
the Governor June 7, 2011
Filed in the
office of Secretary of State June 7, 2011
Effective date
January 1, 2012
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