Chapter 135 — Arraignment and Pretrial Provisions

 

ORS sections in this chapter were amended or repealed by the Legislative Assembly during its 2018 regular session. See the table of ORS sections amended or repealed during the 2018 regular session: 2018 A&R Tables

 

New sections of law were added by legislative action to this ORS chapter or to a series within this ORS chapter by the Legislative Assembly during its 2018 regular session. See sections in the following 2018 Oregon Laws chapters: 2018 Session Laws 0037

 

New sections of law were enacted by the Legislative Assembly during its 2018 regular session and pertain to or are likely to be compiled in this ORS chapter. See sections in the following 2018 Oregon Laws chapters: 2018 Session Laws 0037

 

 

2017 EDITION

 

 

ARRAIGNMENT AND PRETRIAL PROVISIONS

 

PROCEDURE IN CRIMINAL MATTERS GENERALLY

 

ARRAIGNMENT

 

(Generally)

 

135.010     Time and place

 

135.020     Scope of proceedings

 

135.030     When presence of defendant is required; appearance by counsel

 

135.035     Bringing in defendant not yet arrested or held to answer

 

135.037     Omnibus hearing; when held; subject; ruling of court; counsel required

 

(Counsel; Name Used)

 

135.040     Right to counsel

 

135.045     Court appointment of counsel; waiver of counsel; appointment of legal advisor

 

135.050     Eligibility for court-appointed counsel; financial statement; termination; civil liability

 

135.055     Compensation and expenses of appointed counsel

 

135.060     Informing defendant as to use of name in accusatory instrument; effect of acknowledging true name at arraignment

 

135.065     Name used in further proceedings; motion to strike false name

 

135.067     Effect of failure to provide true name of defendant on certain types of release

 

PRELIMINARY HEARING

 

(Generally)

 

135.070     Informing defendant as to charge, right to counsel, use of statement and preliminary hearing

 

135.073     Statement by defendant when not advised of rights

 

135.075     Obtaining counsel

 

135.085     Subpoenaing witnesses

 

135.090     Examination of adverse witnesses

 

135.095     Right of defendant to make or waive making a statement

 

135.100     Statement of defendant

 

135.105     Use of statement before grand jury or on trial

 

135.115     Waiver of right to make statement

 

135.125     Examination of defendant’s witnesses

 

135.135     Exclusion of witnesses during examination of others

 

135.139     Notice of availability of testing for HIV and other communicable diseases to person charged with crime; when court may order test; victim’s rights; disclosure of test results; penalties

 

135.145     Testimony of witnesses

 

135.155     Retention of record and statements by magistrate; inspection

 

135.165     Counsel for complainant; district attorney

 

135.173     Oregon Evidence Code to apply in preliminary hearings; exception

 

(Discharge or Commitment)

 

135.175     Discharge

 

135.185     Holding defendant to answer; use of hearsay evidence

 

135.195     Commitment

 

135.205     Indorsement in certain cases

 

135.215     Direction to sheriff; detention of defendant

 

135.225     Forwarding of papers by magistrate

 

RELEASE OF DEFENDANT

 

135.230     Definitions for ORS 135.230 to 135.290

 

135.235     Release assistance officer; appointment; duties

 

135.240     Releasable offenses

 

135.242     Security release for certain methamphetamine offenses

 

135.245     Release decision

 

135.246     Release conditions related to medical use of cannabis

 

135.247     Order prohibiting contact with victim of sex crime or domestic violence

 

135.250     General conditions of release agreement

 

135.252     Release agreement conditions related to medical use of cannabis

 

135.255     Release agreement

 

135.260     Conditional release

 

135.265     Security release

 

135.270     Taking of security

 

135.275     Seizure of security by law enforcement agency

 

135.280     Arrest warrant; forfeiture

 

135.285     Modification of release decision

 

135.290     Punishment by contempt of court

 

135.295     Application of ORS 135.230 to 135.290 to certain traffic offenses

 

PLEADINGS

 

(Defendant’s Answer Generally)

 

135.305     Types of answer

 

135.315     Types of pleading

 

135.325     Pleading a judgment

 

(Plea)

 

135.335     Pleading by defendant; conditional pleas

 

135.345     Legal effect of plea of no contest

 

135.355     Presentation of plea; entry in register; forms

 

135.360     Special provisions relating to presentation of plea of guilty or no contest

 

135.365     Withdrawal of plea of guilty or no contest

 

135.370     Not guilty plea as denial of allegations of accusatory instrument

 

135.375     Pleading to offenses in other counties

 

135.380     Time of entering plea; aid of counsel

 

135.385     Defendant to be advised by court

 

135.390     Determining voluntariness of plea; nature of plea agreement

 

135.395     Determining accuracy of plea

 

(Plea Discussions and Agreements)

 

135.405     Plea discussions and plea agreements

 

135.407     Plea agreement must contain defendant’s criminal history classification; stipulations

 

135.415     Criteria to be considered in plea discussions and plea agreements

 

135.425     Responsibilities of defense counsel

 

135.432     Judge involvement in plea discussions; responsibilities of trial judge

 

135.435     Discussion and agreement not admissible

 

135.445     Withdrawn plea or statement not admissible

 

(Related Procedure)

 

135.455     Notice prior to trial of intention to rely on alibi evidence; content of notice; effect of failure to supply notice

 

135.465     Defect in accusatory instrument as affecting acquittal on merits

 

PRETRIAL MOTIONS

 

135.470     Motion to dismiss accusatory instrument on grounds of former jeopardy

 

135.510     Grounds for motion to set aside the indictment

 

135.520     Time of making motion; hearing

 

135.530     Effect of allowance of motion

 

135.540     Effect of resubmission of case

 

135.560     Order to set aside is no bar to future prosecution

 

DEMURRERS

 

135.610     Demurrer; generally

 

135.630     Grounds of demurrer

 

135.640     When objections that are grounds for demurrer may be taken

 

135.650     Hearing of objections specified by demurrer

 

135.660     Judgment on demurrer; entry in register

 

135.670     Allowance of demurrer

 

135.680     Procedure if resubmission of case not allowed

 

135.690     Resubmission of case

 

135.700     Disallowance of demurrer

 

COMPROMISE

 

135.703     Crimes subject to being compromised; exceptions

 

135.705     Satisfaction of injured person; dismissal of charges

 

135.707     Discharge as bar to prosecution

 

135.709     Exclusiveness of procedure

 

SUFFICIENCY OF ACCUSATORY INSTRUMENTS

 

135.711     Facts constituting crime or subcategory of crime required

 

135.713     Necessity of stating presumptions of law and matters judicially noticed

 

135.715     Effect of nonprejudicial defects in form of accusatory instrument

 

135.717     Time of crime

 

135.720     Place of crime in certain cases

 

135.725     Person injured or intended to be injured

 

135.727     Description of animal

 

135.730     Judgments; facts conferring jurisdiction

 

135.733     Defamation

 

135.735     Forgery; misdescription of forged instrument

 

135.737     Perjury

 

135.740     Construction of words and phrases used

 

135.743     Fictitious or erroneous name; insertion of true name

 

SPEEDY TRIAL PROVISIONS

 

135.745     Delay in finding an indictment or filing an information

 

135.746     Time period within which trial must commence

 

135.748     Periods of time excluded from time limits

 

135.750     Where there is reason for delay

 

135.752     When trial not commenced within time limit

 

DISMISSAL OF ACTION

 

135.753     Effect of dismissal

 

135.755     Dismissal on motion of court or district attorney

 

135.757     Nolle prosequi; discontinuance by district attorney

 

PROSECUTION OF PRISONERS

 

135.760     Notice requesting early trial on pending charge

 

135.763     Trial within 90 days of notice unless continuance granted

 

135.765     Dismissal of criminal proceeding not brought to trial within allowed time; exceptions

 

135.767     Presence of prisoner at proceedings

 

135.770     Release of prisoner prohibited

 

135.773     District attorney to furnish certain documents

 

DETAINER

 

135.775     Agreement on Detainers

 

135.777     Definition for ORS 135.775

 

135.779     Enforcement of ORS 135.775 by public agencies

 

135.783     Effect of escape from custody in another state

 

135.785     Surrender of custody under ORS 135.775

 

135.787     Administrator of agreement; appointment; duties

 

135.789     Notice of request for temporary custody; prisoner’s rights

 

135.791     Request for final disposition of detainer from prisoner in another state

 

135.793     Procedure where untried instrument pending against prisoner in another state

 

PRETRIAL DISCOVERY

 

135.805     Applicability; scope of disclosure

 

135.815     Disclosure to defendant

 

135.825     Other disclosure to defense; special conditions

 

135.835     Disclosure to the state

 

135.845     Time of disclosure

 

135.855     Material and information not subject to discovery

 

135.857     Disclosure to victim; conditions

 

135.865     Effect of failure to comply with discovery requirements

 

135.873     Protective orders

 

DIVERSION

 

(Generally)

 

135.881     Definitions for ORS 135.881 to 135.901

 

135.886     Requirements for diversion; factors considered

 

135.891     Conditions of diversion agreement; dismissal of criminal charges; scope of agreement; program fee

 

135.893     Diversion conditions related to medical use of cannabis

 

135.896     Stay of criminal proceedings during period of agreement; limitation on stay; extension of stay

 

135.898     Diversion agreement involving servicemember charged with domestic violence

 

135.901     Effect of compliance or noncompliance with agreement; effect of partial compliance in subsequent criminal proceedings; record of participation in program

 

(Bad Check)

 

135.925     Bad check diversion program; fees

 

EARLY DISPOSITION PROGRAMS

 

135.941     Early disposition programs

 

135.942     Purposes of program

 

135.943     Provisions of program

 

135.948     Availability to probationers

 

135.949     Other programs authorized

 

MEDIATING CRIMINAL OFFENSES

 

135.951     Authorization; determining when appropriate; exclusions

 

135.953     How mediation may be used

 

135.955     Notifying victims and person charged with crime of mediation opportunities

 

135.957     Application of ORS 36.220 to 36.238 to mediation of criminal offenses; information to parties

 

135.959     Authority to contract with dispute resolution programs

 

MISCELLANEOUS

 

135.970     Information required when victim contacted by defense; deposition of victim; when contact with victim prohibited; effect of threats by defendant

 

135.973     Medication use by specialty court entrant

 

135.980     Rehabilitative programs directory; compilation; availability

 

PENALTIES

 

135.990     Penalties

 

ARRAIGNMENT

 

(Generally)

 

      135.010 Time and place. When the accusatory instrument has been filed, and if the defendant has been arrested, or as soon thereafter as the defendant may be arrested, the defendant shall be arraigned thereon as provided in ORS 135.030 before the court in which it is found. Except for good cause shown or at the request of the defendant, if the defendant is in custody, the arraignment shall be held during the first 36 hours of custody, excluding holidays, Saturdays and Sundays. In all other cases, except as provided for in ORS 133.060, the arraignment shall be held within 96 hours after the arrest. [Amended by 1973 c.836 §130; 1983 c.344 §1; 1983 c.661 §12]

 

      135.020 Scope of proceedings. The arraignment shall be made by the court, or by the clerk or the district attorney under its direction, as provided in ORS 135.030. The arraignment consists of reading the accusatory instrument to the defendant, causing delivery to the defendant of a copy thereof and indorsements thereon, including the list of witnesses indorsed on it or appended thereto if the accusatory instrument is an indictment, asking the defendant how the defendant pleads to the charge. [Amended by 1973 c.836 §131; 1983 c.344 §2]

 

      135.030 When presence of defendant is required; appearance by counsel. (1) When the accusatory instrument charges a crime punishable as a felony, the defendant shall appear in person at the arraignment.

      (2) When the accusatory instrument charges a crime punishable as a misdemeanor, the defendant may appear in person or by counsel.

      (3) The court may require a defendant to appear at the arraignment by simultaneous electronic transmission as provided in ORS 131.045 without the agreement of the state or defendant if the type of simultaneous electronic transmission available allows the defendant to observe the court and the court to observe the defendant. [Formerly 135.110; 1983 c.344 §3; 2005 c.566 §5]

 

      135.035 Bringing in defendant not yet arrested or held to answer. When an accusatory instrument is filed in court, if the defendant has not been arrested and held to answer the charge, unless the defendant voluntarily appears for arraignment, the court shall issue a warrant of arrest as provided in ORS 133.110. [Formerly 135.140]

 

      135.037 Omnibus hearing; when held; subject; ruling of court; counsel required. (1) At any time after the filing of the accusatory instrument in circuit court and before the commencement of trial thereon, the court upon motion of any party shall, and upon its own motion may, order an omnibus hearing.

      (2) The purpose of an omnibus hearing shall be to rule on all pretrial motions and requests, including but not limited to the following issues:

      (a) Suppression of evidence.

      (b) Challenges to identification procedures used by the prosecution.

      (c) Challenges to voluntariness of admissions or confession.

      (d) Challenges to the accusatory instrument.

      (3) The court, at the time of the omnibus hearing, may also consider any matters that will facilitate trial by avoiding unnecessary proof or by simplifying the issues to be tried, or that are otherwise appropriate under the circumstances to facilitate disposition of the proceeding.

      (4) At the conclusion of the hearing and prior to trial the court shall prepare and file an order setting forth all rulings of the court on issues raised under subsection (2) of this section. The court shall further prepare and file a memorandum of other matters agreed upon at the hearing. Except in a prosecution of the defendant for perjury or false swearing, or impeachment of the defendant, admissions made by the defendant or the attorney of the defendant at the hearing may not be used against the defendant unless the admissions are reduced to writing and signed by the defendant and the attorney.

      (5) This section may not be applied in any proceeding or at any stage of any proceeding where the defendant is not represented by counsel. [1973 c.550 §2; 2009 c.11 §9]

 

(Counsel; Name Used)

 

      135.040 Right to counsel. If the defendant appears for arraignment without counsel, the defendant shall be informed by the court that it is the right of the defendant to have counsel before being arraigned and shall be asked if the defendant desires the aid of counsel. [Formerly 135.310]

 

      135.045 Court appointment of counsel; waiver of counsel; appointment of legal advisor. (1)(a) If the defendant in a criminal action appears without counsel at arraignment or thereafter, the court shall determine whether the defendant wishes to be represented by counsel.

      (b) If the defendant does wish to be represented by counsel, the court, in accordance with ORS 135.050, shall appoint counsel to represent the defendant.

      (c) If the defendant wishes to waive counsel, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense.

      (d) If the court accepts a defendant’s waiver of counsel, the court may allow an attorney to serve as the defendant’s legal advisor and may, in accordance with ORS 135.050, appoint an attorney as the defendant’s legal advisor.

      (2) Appointment of counsel, including a legal advisor, under this section is subject to ORS 135.050, 135.055 and 151.485 to 151.497. [Formerly 135.320; 1987 c.803 §13; 1989 c.171 §16; 1989 c.1053 §1a; 1991 c.790 §11; 2001 c.472 §1; 2001 c.962 §24]

 

      135.050 Eligibility for court-appointed counsel; financial statement; termination; civil liability. (1) Suitable counsel for a defendant shall be appointed by a municipal, county or justice court if:

      (a) The defendant is before a court on a matter described in subsection (5) of this section;

      (b) The defendant requests aid of counsel;

      (c) The defendant provides to the court a written and verified financial statement; and

      (d) It appears to the court that the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant’s dependent family.

      (2) Suitable counsel for a defendant shall be appointed by a circuit court if:

      (a) The defendant is before the court on a matter described in subsection (5) of this section;

      (b) The defendant requests aid of counsel;

      (c) The defendant provides to the court a written and verified financial statement; and

      (d)(A) The defendant is determined to be financially eligible under ORS 151.485 and the standards established by the Public Defense Services Commission under ORS 151.216; or

      (B) The court finds, on the record, substantial and compelling reasons why the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant’s dependent family despite the fact that the defendant does not meet the financial eligibility standards established by the commission.

      (3) Appointed counsel may not be denied to any defendant merely because the defendant’s friends or relatives have resources adequate to retain counsel or because the defendant has deposited or is capable of depositing security for release. However, appointed counsel may be denied to a defendant if the defendant’s spouse has adequate resources which the court determines should be made available to retain counsel.

      (4) The defendant’s financial statement under subsection (1) or (2) of this section shall include, but not be limited to:

      (a) A list of bank accounts in the name of defendant or defendant’s spouse, and the balance in each;

      (b) A list of defendant’s interests in real property and those of defendant’s spouse;

      (c) A list of automobiles and other personal property of significant value belonging to defendant or defendant’s spouse;

      (d) A list of debts in the name of defendant or defendant’s spouse, and the total of each; and

      (e) A record of earnings and other sources of income in the name of defendant or defendant’s spouse, and the total of each.

      (5) Counsel must be appointed for a defendant who meets the requirements of subsection (1) or (2) of this section and who is before a court on any of the following matters:

      (a) Charged with a crime.

      (b) For a hearing to determine whether an enhanced sentence should be imposed when such proceedings may result in the imposition of a felony sentence.

      (c) For extradition proceedings under the provisions of the Uniform Criminal Extradition Act.

      (d) For any proceeding concerning an order of probation, including but not limited to the revoking or amending thereof.

      (6) Unless otherwise ordered by the court, the appointment of counsel under this section shall continue during all criminal proceedings resulting from the defendant’s arrest through acquittal or the imposition of punishment. The court having jurisdiction of the case may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines of the Public Defense Services Commission under ORS 151.216.

      (7) If, at any time after the appointment of counsel, the court having jurisdiction of the case finds that the defendant is financially able to obtain counsel, the court may terminate the appointment of counsel. If, at any time during criminal proceedings, the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom the defendant has retained, the court may appoint counsel as provided in this section.

      (8) The court may order the defendant in a circuit court to pay to the Public Defense Services Account established by ORS 151.225, through the clerk of the court, in full or in part the administrative costs of determining the eligibility of the defendant for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel under ORS 151.487.

      (9) In addition to any criminal prosecution, a civil proceeding may be initiated by any public body which has expended moneys for the defendant’s legal assistance within two years of judgment if the defendant was not qualified in accordance with subsection (1) or (2) of this section for legal assistance.

      (10) The civil proceeding shall be subject to the exemptions from execution as provided for by law.

      (11) As used in this section unless the context requires otherwise, “counsel” includes a legal advisor appointed under ORS 135.045. [Formerly 133.625; 1981 c.3 §118; 1985 c.710 §1; 1989 c.1053 §1b; 1997 c.761 §8; 2001 c.472 §4; 2001 c.962 §25; 2003 c.449 §49; 2012 c.107 §41]

 

      135.053 [1979 c.806 §1; 1981 s.s. c.3 §124; repealed by 1985 c.502 §28]

 

      135.055 Compensation and expenses of appointed counsel. (1) Counsel appointed pursuant to ORS 135.045 or 135.050 shall be paid fair compensation for representation in the case:

      (a) By the county, subject to the approval of the governing body of the county, in a proceeding in a county or justice court.

      (b) By the public defense services executive director from funds available for the purpose, in a proceeding in a circuit court.

      (2) Except for counsel appointed pursuant to contracts or counsel employed by the public defense services executive director, compensation payable to appointed counsel under subsection (1) of this section:

      (a) In a proceeding in a county or justice court may not be less than $30 per hour.

      (b) In a proceeding in a circuit court is subject to the applicable compensation established under ORS 151.216.

      (3)(a) A person determined to be eligible for appointed counsel is entitled to necessary and reasonable fees and expenses for investigation, preparation and presentation of the case for trial, negotiation and sentencing. The person or the counsel for the person shall upon written request secure preauthorization to incur fees and expenses that are not routine to representation but are necessary and reasonable in the investigation, preparation and presentation of the case, including but not limited to nonroutine travel, photocopying or other reproduction of nonroutine documents, necessary costs associated with obtaining the attendance of witnesses for the defense, investigator fees and expenses, expert witness fees and expenses and fees for interpreters and assistive communication devices necessary for the purpose of communication between counsel and a client or witness in the case. Preauthorization to incur a fee or expense does not guarantee that a fee or expense incurred pursuant to the preauthorization will be determined to be necessary or reasonable when the fee or expense is submitted for payment.

      (b) In a county or justice court, the request must be in the form of a motion to the court. The motion must be accompanied by a supporting affidavit that sets out in detail the purpose of the requested expenditure, the name of the service provider or other recipient of the funds, the dollar amount of the requested expenditure that may not be exceeded without additional authorization and the date or dates during which the service will be rendered or events will occur for which the expenditure is requested.

      (c) In a circuit court, the request must be in the form and contain the information that is required by the policies, procedures, standards and guidelines of the Public Defense Services Commission. If the public defense services executive director denies a request for preauthorization to incur nonroutine fees and expenses, the person making the request may appeal the decision to the presiding judge of the circuit court. The presiding judge has final authority to preauthorize incurring nonroutine fees and expenses under this paragraph.

      (d) Entitlement under subsection (7) of this section to payment for fees and expenses in circuit court is subject to the policies, procedures, standards and guidelines adopted under ORS 151.216. Entitlement to payment of nonroutine fees and expenses is dependent upon obtaining preauthorization from the court, if the case is in county or justice court, or from the public defense services executive director, if the case is in circuit court, except as otherwise provided in paragraph (c) of this subsection and in the policies, procedures, standards and guidelines adopted under ORS 151.216. Fees and expenses shall be paid:

      (A) By the county, in respect to a proceeding in a county or justice court.

      (B) By the public defense services executive director from funds available for the purpose, in respect to a proceeding in a circuit court.

      (C) By the city, in respect to a proceeding in municipal court.

      (4) Upon completion of all services by the counsel of a person determined to be eligible for appointed counsel, the counsel shall submit a statement of all necessary and reasonable fees and expenses of investigation, preparation and presentation and, if counsel was appointed by the court, a statement of all necessary and reasonable fees and expenses for legal representation, supported by appropriate receipts or vouchers and certified by the counsel to be true and accurate.

      (5) In a county or justice court, the total fees and expenses payable under this section must be submitted to the court by counsel or other providers and are subject to the review of the court. The court shall certify that such amount is fair reimbursement for fees and expenses for representation in the case as provided in subsection (6) of this section. Upon certification and any verification as provided under subsection (6) of this section, the amount of the fees and expenses approved by the court and not already paid shall be paid by the county.

      (6) In a county or justice court, the court shall certify to the administrative authority responsible for paying fees and expenses under this section that the amount for payment is reasonable and that the amount is properly payable out of public funds.

      (7) In a circuit court, the total fees and expenses payable under this section must be submitted to and are subject to review by the public defense services executive director. The public defense services executive director shall determine whether the amount is necessary, reasonable and properly payable from public funds for fees and expenses for representation in the case as provided by the policies, procedures, standards and guidelines of the Public Defense Services Commission. The public defense services executive director shall pay the amount of the fees and expenses determined necessary, reasonable and properly payable out of public funds. The court shall provide any information identified and requested by the public defense services executive director as needed for audit, statistical or any other purpose pertinent to ensure the proper disbursement of state funds or pertinent to the provision of appointed counsel compensated at state expense.

      (8) If the public defense services executive director denies, in whole or in part, fees and expenses submitted for review and payment, the person who submitted the payment request may appeal the decision to the presiding judge of the circuit court. The presiding judge or the designee of the presiding judge shall review the public defense services executive director’s decision for abuse of discretion. The decision of the presiding judge or the designee of the presiding judge is final.

      (9) The following may not be disclosed to the district attorney prior to the conclusion of a case:

      (a) Requests and administrative or court orders for preauthorization to incur nonroutine fees and expenses in the investigation, preparation and presentation of the case; and

      (b) Billings for such fees and expenses submitted by counsel or other providers.

      (10) Notwithstanding subsection (9) of this section, the total amount of moneys determined to be necessary and reasonable for nonroutine fees and expenses may be disclosed to the district attorney at the conclusion of the trial in the circuit court.

      (11) As used in this section unless the context requires otherwise, “counsel” includes a legal advisor appointed under ORS 135.045. [Formerly 135.330; 1979 c.867 §1; 1981 s.s. c.3 §§122,123; 1985 c.502 §19; 1985 c.710 §2; 1987 c.606 §4; 1987 c.803 §§14,14a; 1989 c.1053 §2; 1991 c.724 §25; 1991 c.750 §8; 1993 c.33 §297; 1995 c.677 §1; 1995 c.781 §39; 1997 c.761 §9; 1999 c.163 §8; 1999 c.583 §1; 2001 c.962 §§26,107; 2003 c.449 §§5,43]

 

      135.060 Informing defendant as to use of name in accusatory instrument; effect of acknowledging true name at arraignment. (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; 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 certified copy of the record of live birth;

      (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. [Formerly 135.340; 2003 c.645 §4; 2013 c.366 §64]

 

      135.065 Name used in further proceedings; motion to strike false name. (1) If the defendant gives no other name, the court may proceed 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 certified copy of the record of live birth for the defendant was never issued, 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. [Formerly 135.350; 1985 c.540 §31; 2003 c.645 §5; 2013 c.366 §65]

 

      135.067 Effect of failure to provide true name of defendant on certain types of release. If a defendant, on or after August 12, 2003, 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. [2003 c.645 §7]

 

      Note: 135.067 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

PRELIMINARY HEARING

 

(Generally)

 

      135.070 Informing defendant as to charge, right to counsel, use of statement and preliminary hearing. When the defendant against whom an information has been filed in a preliminary proceeding appears before a magistrate on a charge of having committed a crime punishable as a felony, before any further proceedings are had the magistrate shall read to the defendant the information and shall inform the defendant:

      (1) Of the defendant’s right to the aid of counsel, that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant.

      (2) That the defendant is entitled to a preliminary hearing and of the nature of a preliminary hearing. If a preliminary hearing is requested, it shall be held as soon as practicable but in any event within five judicial days if the defendant is in custody or within 30 days if the defendant is not in custody. The time may be extended for good cause shown.

      (3) That if the defendant is on parole, evidence received and the order of the court at the preliminary hearing may be used by the State Board of Parole and Post-Prison Supervision to establish that probable cause exists to believe that a violation of a condition of parole has occurred; and further, that should the defendant waive the defendant’s right to a preliminary hearing, such waiver shall also constitute a waiver of a hearing by the board to determine whether there is probable cause to believe that a violation of one or more of the conditions of parole has occurred. [Formerly 133.610; 1981 c.644 §2; 1997 c.823 §1; 2013 c.74 §1]

 

      135.073 Statement by defendant when not advised of rights. Evidence obtained directly or indirectly as a result of failure of a magistrate to comply with ORS 135.070 shall not be admissible before the grand jury. [1973 c.836 §61]

 

      135.075 Obtaining counsel. The magistrate shall allow the defendant a reasonable time to obtain counsel and shall adjourn the proceeding for that purpose. A defendant who is committed pending examination shall be given a reasonable opportunity to obtain counsel, including but not limited to a reasonable use of the telephone. As used in this section, “counsel” includes a legal advisor appointed under ORS 135.045. [Formerly 133.620; 2001 c.472 §6]

 

      135.080 [Formerly 133.635; repealed by 1979 c.867 §18]

 

      135.085 Subpoenaing witnesses. (1) The magistrate shall issue subpoenas for any witness within the state when requested by the district attorney or the defendant for the preliminary hearing.

      (2) If either party desires to subpoena more than five witnesses, application therefor shall be made in the manner provided in ORS 136.570. [Formerly 133.660; 1987 c.606 §1]

 

      135.090 Examination of adverse witnesses. The witnesses shall be examined in the presence of the defendant and may be cross-examined in behalf of the defendant or against the defendant. [Formerly 133.670]

 

      135.095 Right of defendant to make or waive making a statement. When the examination of the witnesses on the part of the state is closed, the magistrate shall inform the defendant that it is the right of the defendant to make a statement in relation to the charge against the defendant; that the statement is designed to enable the defendant, if the defendant sees fit, to answer the charge and explain the facts alleged against the defendant; that the defendant is at liberty to waive making a statement; and that the waiver of the defendant cannot be used against the defendant on the trial. [Formerly 133.680]

 

      135.100 Statement of defendant. If the defendant chooses to make a statement, the magistrate shall take it in a recorded proceeding without oath, and shall put to the defendant the following questions only:

      (1) What is your name and age?

      (2) Where were you born?

      (3) Where do you reside and how long have you resided there?

      (4) What is your business or occupation?

      (5) Give any explanation you think proper of the circumstances appearing in the testimony against you and state any facts which you think will tend to your exculpation. [Formerly 133.690; 1991 c.790 §12]

 

      135.105 Use of statement before grand jury or on trial. The statement of the defendant is competent testimony to be laid before the grand jury and may be given in evidence at the trial. [Formerly 133.700]

 

      135.110 [Amended by 1973 c.836 §132; renumbered 135.030]

 

      135.115 Waiver of right to make statement. If the defendant waives the right of the defendant to make a statement, the fact of the waiver of the defendant cannot be used against the defendant on the trial. [Formerly 133.710; 1991 c.790 §13]

 

      135.120 [Repealed by 1973 c.836 §358]

 

      135.125 Examination of defendant’s witnesses. After the waiver of the defendant to make a statement or after the defendant has made it, the witnesses of the defendant, if the defendant produces any, shall be sworn and examined. [Formerly 133.720]

 

      135.130 [Repealed by 1973 c.836 §358]

 

      135.135 Exclusion of witnesses during examination of others. The magistrate may exclude the witnesses who have not been examined during the examination of the defendant or of a witness for the state or the defendant. [Formerly 133.730]

 

      135.139 Notice of availability of testing for HIV and other communicable diseases to person charged with crime; when court may order test; victim’s rights; disclosure of test results; penalties. (1) When a person has been charged with a crime in which it appears from the nature of the charge that the transmission of body fluids from one person to another may have been involved, the district attorney, upon the request of the victim or the parent or guardian of a minor or incapacitated victim, shall seek the consent of the person charged to submit to a test for HIV and any other communicable disease. In the absence of such consent or failure to submit to the test, the district attorney may petition the court for an order requiring the person charged to submit to a test for HIV and any other communicable disease.

      (2)(a) At the time of an appearance before a circuit court judge on a criminal charge, the judge shall inform every person arrested and charged with a crime, in which it appears from the nature of the charge that the transmission of body fluids from one person to another may have been involved, of the availability of testing for HIV and other communicable diseases and shall cause the alleged victim of such a crime, if any, or a parent or guardian of the victim, if any, to be notified that testing for HIV and other communicable diseases is available. The judge shall inform the person arrested and charged and the victim, or parent or guardian of the victim, of the availability of counseling under the circumstances described in subsection (7) of this section.

      (b) Notwithstanding the provisions of ORS 433.045, if the district attorney files a petition under subsection (1) of this section, the court shall order the person charged to submit to testing if the court determines there is probable cause to believe that:

      (A) The person charged committed the crime; and

      (B) The victim has received a substantial exposure, as defined by rule of the Oregon Health Authority.

      (3) Notwithstanding the provisions of ORS 433.045, upon conviction of a person for any crime in which the court determines from the facts that the transmission of body fluids from one person to another was involved and if the person has not been tested pursuant to subsection (2) of this section, the court shall seek the consent of the convicted person to submit to a test for HIV and other communicable diseases. In the absence of such consent or failure to submit to the test, the court shall order the convicted person to submit to the test if the victim of the crime, or a parent or guardian of the victim, requests the court to make such order.

      (4) When a test is ordered under subsection (2) or (3) of this section, the victim of the crime or a parent or guardian of the victim, shall designate an attending physician, a physician assistant licensed under ORS 677.505 to 677.525 or a nurse practitioner licensed under ORS 678.375 to 678.390 to receive such information on behalf of the victim.

      (5) If an HIV test results in a negative reaction, the court may order the person to submit to another HIV test six months after the first test was administered.

      (6) The result of any test ordered under this section is not a public record and shall be available only to:

      (a) The victim.

      (b) The parent or guardian of a minor or incapacitated victim.

      (c) The attending physician, physician assistant or nurse practitioner.

      (d) The Oregon Health Authority.

      (e) The person tested.

      (7) If an HIV test ordered under this section results in a positive reaction, the individual subject to the test shall receive post-test counseling as required by the Oregon Health Authority by rule. The results of HIV tests ordered under this section shall be reported to the authority. Counseling and referral for appropriate health care, testing and support services as directed by the Director of the Oregon Health Authority shall be provided to the victim or victims at the request of the victim or victims, or the parent or guardian of a minor or incapacitated victim.

      (8) The costs of testing and counseling provided under subsections (2), (3) and (7) of this section shall be paid through the compensation for crime victims program authorized by ORS 147.005 to 147.367 from amounts appropriated for such purposes. Restitution to the state for payment of the costs of any counseling provided under this section and for payment of the costs of any test ordered under this section shall be included by the court in any order requiring the convicted person to pay restitution.

      (9) When a court orders a convicted person to submit to a test under this section, the withdrawal of blood may be performed only by a physician licensed under ORS chapter 677, a physician assistant licensed under ORS 677.505 to 677.525 or a nurse practitioner licensed under ORS 678.375 to 678.390, or by another licensed health care provider acting within the provider’s licensed scope of practice or acting under the supervision of a physician licensed under ORS chapter 677, a physician assistant licensed under ORS 677.505 to 677.525 or a nurse practitioner licensed under ORS 678.375 to 678.390.

      (10) No person authorized by subsection (9) of this section to withdraw blood, no person assisting in the performance of the test nor any medical care facility where blood is withdrawn or tested that has been ordered by the court to withdraw or test blood shall be liable in any civil or criminal action when the act is performed in a reasonable manner according to generally accepted medical practices.

      (11) The results of tests or reports, or information therein, obtained under this section shall be confidential and shall not be divulged to any person not authorized by this section to receive the information. Any violation of this subsection is a Class C misdemeanor.

      (12) As used in this section:

      (a) “HIV test” means a test as defined in ORS 433.045.

      (b) “Parent or guardian of the victim” means a custodial parent or legal guardian of a victim who is a minor or incapacitated person.

      (c) “Positive reaction” means a positive HIV test with a positive confirmatory test result as specified by the Oregon Health Authority.

      (d) “Transmission of body fluids” means the transfer of blood, semen, vaginal secretions or other body fluids identified by rule of the authority, from the perpetrator of a crime to the mucous membranes or potentially broken skin of the victim.

      (e) “Victim” means the person or persons to whom transmission of body fluids from the perpetrator of the crime occurred or was likely to have occurred in the course of the crime. [1989 c.568 §1; 1993 c.331 §1; 1999 c.967 §1; 2009 c.595 §92; 2014 c.45 §21]

 

      Note: 135.139 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      135.140 [Amended by 1973 c.836 §133; renumbered 135.035]

 

      135.145 Testimony of witnesses. The testimony of the witnesses in a preliminary hearing shall be recorded. [Formerly 133.740; 1991 c.790 §14]

 

      135.150 [Repealed by 1973 c.836 §358]

 

      135.155 Retention of record and statements by magistrate; inspection. The magistrate shall keep the record of the preliminary hearing and the statement of the defendant, if any, until the record is returned to the proper court and shall not permit the record to be inspected by any person, except the district attorney of the county or the attorney who acts for the district attorney and the defendant and the counsel of the defendant. [Formerly 133.750; 1991 c.790 §15]

 

      135.160 [Repealed by 1973 c.836 §358]

 

      135.165 Counsel for complainant; district attorney. The complainant may employ counsel to appear against the defendant in every stage of the preliminary hearing; but the district attorney for the county, either in person or by some attorney authorized to act for the district attorney, is entitled to appear on behalf of the state and control and direct the prosecution. [Formerly 133.760]

 

      135.170 [Repealed by 1973 c.836 §358]

 

      135.173 Oregon Evidence Code to apply in preliminary hearings; exception. The Oregon Evidence Code shall apply in any preliminary hearing under this chapter, except that hearsay may be admitted if the court determines that it would impose an unreasonable hardship on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing, and if the witness furnishes information bearing on the informant’s reliability and, as far as possible, the means by which the information was obtained. [1981 c.892 §88b]

 

(Discharge or Commitment)

 

      135.175 Discharge. After hearing the evidence and the statement of the defendant, if the defendant has made one, unless there is a showing of probable cause that a crime has been committed and that the defendant committed it, the magistrate shall dismiss the information and order the defendant to be discharged. [Formerly 133.810]

 

      135.180 [Repealed by 1973 c.836 §358]

 

      135.185 Holding defendant to answer; use of hearsay evidence. If it appears from the preliminary hearing that there is probable cause to believe that a crime has been committed and that the defendant committed it, the magistrate shall make a written order holding the defendant for further proceedings on the charge. When hearsay evidence was admitted at the preliminary hearing, the magistrate, in determining the existence of probable cause, shall consider:

      (1) The extent to which the hearsay quality of the evidence affects the weight it should be given; and

      (2) The likelihood of evidence other than hearsay being available at trial to provide the information furnished by hearsay at the preliminary hearing. [Formerly 133.820; 1981 c.892 §88c; 2007 c.71 §33]

 

      135.190 [Repealed by 1973 c.836 §358]

 

      135.195 Commitment. If the magistrate orders the defendant to be held to answer, the magistrate shall make out a commitment, signed by the magistrate with the name of office of the magistrate, and deliver it with the defendant to the officer to whom the defendant is committed or, if that officer is not present, to any peace officer, who shall immediately deliver the defendant into the proper custody, together with the commitment. [Formerly 133.830]

 

      135.200 [Repealed by 1973 c.836 §358]

 

      135.205 Indorsement in certain cases. When the magistrate delivers the defendant to a peace officer other than the one to whom the defendant is committed, the magistrate shall first make an indorsement on the commitment directing the officer to deliver the defendant and the commitment to the custody of the appropriate sheriff. [Formerly 133.840]

 

      135.210 [Repealed by 1973 c.836 §358]

 

      135.215 Direction to sheriff; detention of defendant. The commitment shall be directed to the sheriff of the county in which the magistrate is sitting. Such sheriff shall receive and detain the defendant, as thereby commanded, in a jail located in the county of the sheriff or, if there is no sufficient jail in the county, by such means as may be necessary and proper therefor or by confining the defendant in the jail of an adjoining county within or without the state. [Formerly 133.850; 1987 c.550 §2]

 

      135.225 Forwarding of papers by magistrate. When the magistrate has held the defendant to answer, the magistrate shall at once forward to the court in which the defendant would be triable:

      (1) The warrant, if any;

      (2) The information;

      (3) The statement of the defendant, if the defendant made one;

      (4) The memoranda mentioned in ORS 135.115 and 135.145;

      (5) The release agreement or security release of the defendant; and

      (6) If applicable, any security taken for the appearance of witnesses. [Formerly 133.860; 2005 c.22 §108]

 

RELEASE OF DEFENDANT

 

      135.230 Definitions for ORS 135.230 to 135.290. As used in ORS 135.230 to 135.290, unless the context requires otherwise:

      (1) “Abuse” means:

      (a) Attempting to cause or intentionally, knowingly or recklessly causing physical injury;

      (b) Intentionally, knowingly or recklessly placing another in fear of imminent serious physical injury; or

      (c) Committing sexual abuse in any degree as defined in ORS 163.415, 163.425 and 163.427.

      (2) “Conditional release” means a nonsecurity release which imposes regulations on the activities and associations of the defendant.

      (3) “Domestic violence” means abuse between family or household members.

      (4) “Family or household members” means any of the following:

      (a) Spouses.

      (b) Former spouses.

      (c) Adult persons related by blood or marriage.

      (d) Persons cohabiting with each other.

      (e) Persons who have cohabited with each other or who have been involved in a sexually intimate relationship.

      (f) Unmarried parents of a minor child.

      (5) “Magistrate” has the meaning provided for this term in ORS 133.030.

      (6) “Personal recognizance” means the release of a defendant upon the promise of the defendant to appear in court at all appropriate times.

      (7) “Primary release criteria” includes the following:

      (a) The reasonable protection of the victim or public;

      (b) The nature of the current charge;

      (c) The defendant’s prior criminal record, if any, and, if the defendant previously has been released pending trial, whether the defendant appeared as required;

      (d) Any facts indicating the possibility of violations of law if the defendant is released without regulations; and

      (e) Any other facts tending to indicate that the defendant is likely to appear.

      (8) “Release” means temporary or partial freedom of a defendant from lawful custody before judgment of conviction or after judgment of conviction if defendant has appealed.

      (9) “Release agreement” means a sworn writing by the defendant stating the terms of the release and, if applicable, the amount of security.

      (10) “Release decision” means a determination by a magistrate, using primary and secondary release criteria, which establishes the form of the release most likely to ensure the safety of the public and the victim, the defendant’s court appearance and that the defendant does not engage in domestic violence while on release.

      (11) “Secondary release criteria” includes the following:

      (a) The defendant’s employment status and history and financial condition;

      (b) The nature and extent of the family relationships of the defendant;

      (c) The past and present residences of the defendant;

      (d) Names of persons who agree to assist the defendant in attending court at the proper time; and

      (e) Any facts tending to indicate that the defendant has strong ties to the community.

      (12) “Security release” means a release conditioned on a promise to appear in court at all appropriate times which is secured by cash, stocks, bonds or real property.

      (13) “Surety” is one who executes a security release and binds oneself to pay the security amount if the defendant fails to comply with the release agreement. [1973 c.836 §146; 1993 c.731 §4; 1997 c.313 §18]

 

      135.235 Release assistance officer; appointment; duties. (1) If directed by the presiding judge for a judicial district, a release assistance officer, and release assistance deputies who shall be responsible to the release assistance officer, shall be appointed under a personnel plan established by the Chief Justice of the Supreme Court.

      (2) The release assistance officer shall, except when impracticable, interview every person detained pursuant to law and charged with an offense.

      (3) The release assistance officer shall verify release criteria information and may either:

      (a) Timely submit a written report to the magistrate containing, but not limited to, an evaluation of the release criteria and a recommendation for the form of release; or

      (b) If delegated release authority by the presiding judge for the judicial district, make the release decision. [1973 c.836 §147; 1981 s.s. c.3 §37; 1995 c.781 §40]

 

      135.240 Releasable offenses. (1) Except as provided in subsections (2), (4) and (5) of this section, a defendant shall be released in accordance with ORS 135.230 to 135.290.

      (2)(a) When the defendant is charged with murder, aggravated murder or treason, release shall be denied when the proof is evident or the presumption strong that the person is guilty.

      (b) When the defendant is charged with murder or aggravated murder and the proof is not evident nor the presumption strong that the defendant is guilty, the court shall determine the issue of release as provided in subsection (4) of this section. In determining the issue of release under subsection (4) of this section, the court may consider any evidence used in making the determination required by this subsection.

      (3) The magistrate may conduct such hearing as the magistrate considers necessary to determine whether, under subsection (2) of this section, the proof is evident or the presumption strong that the person is guilty.

      (4)(a) Except as otherwise provided in subsection (5) of this section, when the defendant is charged with a violent felony, release shall be denied if the court finds:

      (A) Except when the defendant is charged by indictment, that there is probable cause to believe that the defendant committed the crime; and

      (B) By clear and convincing evidence, that there is a danger of physical injury or sexual victimization to the victim or members of the public by the defendant while on release.

      (b) If the defendant wants to have a hearing on the issue of release, the defendant must request the hearing at the time of arraignment in circuit court. If the defendant requests a release hearing, the court must hold the hearing within five days of the request.

      (c) At the release hearing, unless the state stipulates to the setting of security or release, the court shall make the inquiry set forth in paragraph (a) of this subsection. The state has the burden of producing evidence at the release hearing subject to ORS 40.015 (4).

      (d) The defendant may be represented by counsel and may present evidence on any relevant issue. However, the hearing may not be used for purposes of discovery.

      (e) If the court determines that the defendant is eligible for release in accordance with this subsection, the court shall set security or other appropriate conditions of release.

      (f) When a defendant who has been released violates a condition of release and the violation:

      (A) Constitutes a new criminal offense, the court shall cause the defendant to be taken back into custody and shall order the defendant held pending trial without release.

      (B) Does not constitute a new criminal offense, the court may order the defendant to be taken back into custody, may order the defendant held pending trial and may set a security amount of not less than $250,000.

      (5)(a) Notwithstanding any other provision of law, the court shall set a security amount of not less than $50,000 for a defendant charged with an offense listed in ORS 137.700 or 137.707 unless the court determines that amount to be unconstitutionally excessive, and may not release the defendant on any form of release other than a security release if:

      (A) The United States Constitution or the Oregon Constitution prohibits the denial of release under subsection (4) of this section;

      (B) The court determines that the defendant is eligible for release under subsection (4) of this section; or

      (C) The court finds that the offense is not a violent felony.

      (b) In addition to the security amount described in paragraph (a) of this subsection, the court may impose any supervisory conditions deemed necessary for the protection of the victim and the community. When a defendant who has been released violates a condition of release and the violation:

      (A) Constitutes a new criminal offense, the court shall cause the defendant to be taken back into custody, shall order the defendant held pending trial and shall set a security amount of not less than $250,000.

      (B) Does not constitute a new criminal offense, the court may order the defendant to be taken back into custody, may order the defendant held pending trial and may set a security amount of not less than $250,000.

      (6) For purposes of this section, “violent felony” means a felony offense in which there was an actual or threatened serious physical injury to the victim, or a felony sexual offense. [1973 c.836 §148; 1997 c.313 §19; 2001 c.104 §45; 2007 c.194 §1; 2007 c.879 §9]

 

      135.242 Security release for certain methamphetamine offenses. (1) When a defendant is charged with an offense described in subsection (7) of this section, the court may not release the defendant on any form of release other than a security release and shall set a security amount of not less than $500,000 if the court finds:

      (a) Except when the defendant is charged by indictment, that there is probable cause to believe that the defendant committed the crime; and

      (b) By clear and convincing evidence that there is a danger that the defendant will:

      (A) Fail to appear in court at all appropriate times;

      (B) Commit a new criminal offense; or

      (C) Pose a threat to the reasonable protection of the public.

      (2) If the defendant wants to have a hearing on the issue of release, the defendant must request the hearing at the time of arraignment in circuit court. If the defendant requests a release hearing, the court must hold the hearing within five days of the request.

      (3) At the release hearing, unless the state stipulates to the setting of a security amount less than $500,000, the court shall make the inquiry set forth in subsection (1) of this section. The state has the burden of producing evidence at the release hearing subject to ORS 40.015 (4).

      (4) The defendant may be represented by counsel and may present evidence on any relevant issue. However, the hearing may not be used for purposes of discovery.

      (5) If the court determines that the defendant is eligible for a security amount of less than $500,000, the court shall reduce the security amount to an amount not less than $50,000 and may set other appropriate conditions of release.

      (6) When a defendant who has been released after posting the security amount described in subsection (5) of this section violates a condition of release and the violation:

      (a) Constitutes a new criminal offense, the court shall cause the defendant to be taken back into custody and shall impose a security amount of not less than $500,000.

      (b) Does not constitute a new criminal offense, the court may order the defendant to be taken back into custody, may order the defendant held pending trial and may set a security amount of not less than $250,000.

      (7) The offenses to which subsection (1) of this section applies are:

      (a) Manufacture of methamphetamine under ORS 475.886.

      (b) Manufacture of methamphetamine within 1,000 feet of a school under ORS 475.888.

      (c) Delivery of methamphetamine within 1,000 feet of a school under ORS 475.892.

      (d) Delivery of methamphetamine under ORS 475.890 if the delivery involves:

      (A) Substantial quantities of methamphetamine under ORS 475.900 (1)(a)(C); or

      (B) A commercial drug offense under ORS 475.900 (1)(b).

      (e) Delivery of methamphetamine to a minor under ORS 475.906.

      (8) Nothing in this section affects the ability of a county court or board of commissioners of a county to adopt or implement a jail capacity limit and action plan under ORS 169.042 to 169.046. [2008 c.52 §1]

 

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

      (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 the release hearing;

      (B) To appear personally at the hearing; and

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

      (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.

      (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. [1973 c.836 §149; 1993 c.731 §5; 1997 c.313 §20; 2003 c.645 §6; 2009 c.178 §27]

 

      135.246 Release conditions related to medical use of cannabis. (1) As used in this section, “cannabinoid concentrate,” “cannabinoid extract,” “medical cannabinoid product,” “registry identification card” and “usable marijuana” have the meanings given those terms in ORS 475B.791.

      (2) Notwithstanding ORS 135.245, the conditions of release of a person who holds a registry identification card and is released from custody related to the use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as conditions of release of a person released from custody related to prescription drugs. [2016 c.24 §53b]

 

      135.247 Order prohibiting contact with victim of sex crime or domestic violence. (1) When a release assistance officer or a release assistance deputy makes a release decision under ORS 135.235 involving a defendant charged with a sex crime or a crime constituting domestic violence, the release assistance officer or deputy shall include in the decision an order that the defendant be prohibited from contacting or attempting to contact the victim, either directly or through a third party, while the defendant is in custody. The release assistance officer or deputy shall provide the defendant with a written copy of the order.

      (2) When a defendant who is charged with a sex crime or a crime that constitutes domestic violence is arraigned, the court shall enter an order continuing an order issued under subsection (1) of this section or, if no such order has been entered, enter an order prohibiting the defendant from contacting or attempting to contact the victim, either directly or through a third party, while the defendant is in custody.

      (3) Except as provided in subsection (4) of this section, an order described in subsection (1) or (2) of this section:

      (a) Shall apply at any time during which the defendant is held in custody on the charge; and

      (b) Shall remain valid until the defendant is sentenced for the crime, the charge is dismissed or the defendant is acquitted of the crime.

      (4) Upon petition of the victim, the court may enter an order terminating an order entered under subsection (1) or (2) of this section if the court finds, after a hearing on the petition, that terminating the order is in the best interests of the parties and the community.

      (5) An order described in subsection (1) or (2) of this section shall not limit contact with the victim by the defense attorney, or an agent of the defense attorney other than the defendant, in the manner prescribed by ORS 135.970 (2).

      (6) As used in this section:

      (a) “Domestic violence” has the meaning given that term in ORS 135.230.

      (b) “Sex crime” has the meaning given that term in ORS 163A.005. [2011 c.232 §1; 2015 c.264 §1]

 

      Note: 135.247 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      135.250 General conditions of release agreement. (1) If a defendant is released before judgment, the conditions of the release agreement shall be that the defendant will:

      (a) Appear to answer the charge in the court having jurisdiction on a day certain and thereafter as ordered by the court until the defendant is discharged or the judgment is entered;

      (b) Submit to the orders and process of the court;

      (c) Not depart this state without leave of the court; and

      (d) Comply with such other conditions as the court may impose.

      (2)(a) In addition to the conditions listed in subsection (1) of this section, if the defendant is charged with an offense that also constitutes domestic violence, the court shall include as a condition of the release agreement that the defendant not contact the victim of the violence.

      (b) Notwithstanding paragraph (a) of this subsection, the court may enter an order waiving the condition that the defendant have no contact with the victim if:

      (A) The victim petitions the court for a waiver; and

      (B) The court finds, after a hearing on the petition, that waiving the condition is in the best interests of the parties and the community.

      (c) If the defendant was provided notice and an opportunity to be heard, the court shall also include in the agreement, when appropriate, terms and findings sufficient under 18 U.S.C. 922 (d)(8) and (g)(8) to affect the defendant’s ability to possess firearms and ammunition or engage in activities involving firearms.

      (d) ORS 107.720 applies to release agreements executed by defendants charged with an offense that constitutes domestic violence, except that proof of service of the release agreement is not required and the agreement may not be terminated at the request of the victim without a hearing. [1973 c.836 §150; 1991 c.111 §10; 1993 c.731 §6; 1999 c.617 §3; 2013 c.151 §2]

 

      135.252 Release agreement conditions related to medical use of cannabis. (1) As used in this section, “cannabinoid concentrate,” “cannabinoid extract,” “medical cannabinoid product,” “registry identification card” and “usable marijuana” have the meanings given those terms in ORS 475B.791.

      (2) Notwithstanding any other provision of ORS 135.230 to 135.290, the conditions of a release agreement of a person who holds a registry identification card and is released before judgment related to the use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of a release agreement of a person who is released before judgment related to the use of prescription drugs. [2016 c.24 §53f]

 

      135.255 Release agreement. (1) The defendant shall not be released from custody unless the defendant files with the clerk of the court in which the magistrate is presiding a release agreement duly executed by the defendant containing the conditions ordered by the releasing magistrate or deposits security in the amount specified by the magistrate in accordance with ORS 135.230 to 135.290.

      (2) A failure to appear as required by the release agreement shall be punishable as provided in ORS 162.195 or 162.205.

      (3) “Custody” for purposes of a release agreement does not include temporary custody under the citation procedures of ORS 133.055 to 133.076. [1973 c.836 §151]

 

      135.260 Conditional release. (1) Conditional release may include one or more of the following conditions:

      (a) Release of the defendant into the care of a qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court. The supervisor shall not be required to be financially responsible for the defendant, nor to forfeit money in the event the defendant fails to appear in court. The supervisor, however, shall notify the court immediately in the event that the defendant breaches the conditional release.

      (b) Reasonable regulations on the activities, movements, associations and residences of the defendant, including, if the court finds it appropriate, restriction of the defendant to the defendant’s own residence or to the premises thereof.

      (c) Release of the defendant from custody during working hours.

      (d) Any other reasonable restriction designed to assure the defendant’s appearance.

      (2) Except as otherwise provided in ORS 135.250 (2)(b), conditional release shall include a prohibition against contacting the victim if the defendant is charged with an offense that also constitutes domestic violence. [1973 c.836 §152; 1985 c.818 §1; 1993 c.731 §7]

 

      135.265 Security release. (1) If the defendant is not released on personal recognizance under ORS 135.255, or granted conditional release under ORS 135.260, or fails to agree to the provisions of the conditional release, the magistrate shall set a security amount that will reasonably assure the defendant’s appearance. The defendant shall execute the security release in the amount set by the magistrate.

      (2) The defendant shall execute a release agreement and deposit with the clerk of the court before which the proceeding is pending a sum of money equal to 10 percent of the security amount, but in no event shall such deposit be less than $25. The clerk shall issue a receipt for the sum deposited. Upon depositing this sum the defendant shall be released from custody subject to the condition that the defendant appear to answer the charge in the court having jurisdiction on a day certain and thereafter as ordered by the court until discharged or final order of the court. Once security has been given and a charge is pending or is thereafter filed in or transferred to a court of competent jurisdiction the latter court shall continue the original security in that court subject to ORS 135.280 and 135.285. When conditions of the release agreement have been performed and the defendant has been discharged from all obligations in the cause, the clerk of the court shall return to the person shown by the receipt to have made the deposit, unless the court orders otherwise, 85 percent of the sum which has been deposited and shall retain as security release costs 15 percent, but not less than $5 nor more than $750, of the amount deposited. The interest that has accrued on the full amount deposited shall also be retained by the clerk. The amount retained by the clerk of a circuit court shall be paid over as directed by the State Court Administrator for deposit in the General Fund. The amount retained by a justice of the peace shall be deposited in the county treasury. The amount retained by the clerk of a municipal court shall be deposited in the municipal corporation treasury. At the request of the defendant the court may order whatever amount is repayable to defendant from such security amount to be paid to defendant’s attorney of record.

      (3) Instead of the security deposit provided for in subsection (2) of this section the defendant may deposit with the clerk of the court an amount equal to the security amount in cash, stocks, bonds, or real or personal property situated in this state with equity not exempt owned by the defendant or sureties worth double the amount of security set by the magistrate. The stocks, bonds, real or personal property shall in all cases be justified by affidavit. The magistrate may further examine the sufficiency of the security as the magistrate considers necessary. [1973 c.836 §153; 1979 c.878 §1; 1981 c.837 §1; 1981 s.s. c.3 §112; 1983 c.763 §44; 1987 c.905 §14; 2009 c.659 §§9,11; 2011 c.595 §§158,159]

 

      135.270 Taking of security. (1) When a security amount has been set by a magistrate for a particular offense or for a defendant’s release, any person designated by the magistrate may take the security and release the defendant to appear in accordance with the conditions of the release agreement. The person designated by the magistrate shall give a receipt to the defendant for the security so taken and within a reasonable time deposit the security with the clerk of the court having jurisdiction of the offense.

      (2) If a magistrate has designated a person to take security and release defendants under subsection (1) of this section, the clerk of the court shall continue to accept the security release deposits described in ORS 135.265 during the normal business hours of the court. [1973 c.836 §154; 2015 c.493 §3]

 

      135.275 Seizure of security by law enforcement agency. (1) A law enforcement agency may not seize any cash, cashier’s checks, money orders, credit cards, stocks, bonds or real or personal property that a person deposits, or attempts to deposit, with the clerk of the court, or a person designated by a magistrate to take security under ORS 135.270, in order to obtain security release as described in ORS 135.265 unless the law enforcement agency first obtains:

      (a) A search warrant issued pursuant to ORS 133.545 authorizing seizure of the cash, cashier’s checks, money orders, credit cards, stocks, bonds or real or personal property as items subject to search and seizure as described in ORS 133.535; or

      (b) A court order under ORS 131A.060 directing seizure of the cash, cashier’s checks, money orders, credit cards, stocks, bonds or real or personal property as property subject to forfeiture under ORS 131A.020.

      (2) After seizing cash, cashier’s checks, money orders, credit cards, stocks, bonds or real or personal property under subsection (1) of this section, a law enforcement agency may not further transfer or distribute the cash, cashier’s checks, money orders, credit cards, stocks, bonds or real or personal property to any person or entity without a court order specifically authorizing the transfer or distribution.

      (3) As used in this section, “law enforcement agency” has the meaning given that term in ORS 131A.005. [2015 c.493 §2]

 

      135.280 Arrest warrant; forfeiture. (1) Upon failure of a person to comply with any condition of a release agreement or personal recognizance, the court having jurisdiction may, in addition to any other action provided by law, issue a warrant for the arrest of the person at liberty upon a personal recognizance, conditional or security release.

      (2) A warrant issued under subsection (1) of this section by a municipal judge may be executed by any peace officer authorized to execute arrest warrants.

      (3) If the defendant does not comply with the conditions of the release agreement, the court having jurisdiction shall enter an order declaring the entire security amount to be forfeited. Notice of the order of forfeiture shall be given forthwith by personal service, by mail or by such other means as are reasonably calculated to bring to the attention of the defendant and, if applicable, of the sureties the order of forfeiture. If, within 30 days after the court declares the forfeiture, the defendant does not appear or satisfy the court having jurisdiction that appearance and surrender by the defendant was, or still is, impossible and without fault of the defendant, the court shall enter judgment for the state, or appropriate political subdivision thereof, against the defendant and, if applicable, the sureties for the entire security amount set under ORS 135.265 and the costs of the proceedings. At any time before or after entry of the judgment, the defendant or the sureties may apply to the court for a remission of the forfeiture or to modify or set aside the judgment. The court, upon good cause shown, may remit the forfeiture or any part thereof or may modify or set aside the judgment as in other criminal cases, except the portion of the security deposit that the court ordered to be applied to child support under subsection (4) of this section, as the court considers reasonable under the circumstances of the case. The court shall adopt procedures to ensure that the amount deposited under ORS 135.265 is available for a reasonable period of time for disposition under subsection (4) of this section.

      (4) After entry of a judgment for the state, the court, upon a motion filed under ORS 25.715, may order that a portion of the security deposit be applied to any unsatisfied child support award owed by the defendant and to provide security for child support payments in accordance with ORS 25.230. The portion of the security deposit that may be applied to the child support award:

      (a) Is limited to the amount deposited under ORS 135.265 (2);

      (b) May not exceed 66 percent of the entire security amount set under ORS 135.265 if the deposit has been made under ORS 135.265 (3); and

      (c) Does not reduce the money award in the judgment entered under subsection (3) of this section that is owed to the state.

      (5) When judgment is entered in favor of the state, or any political subdivision of the state, on any security given for a release, the judgment may be enforced as a judgment in a civil action. If entered in circuit court, the judgment shall be entered in the register, and the clerk of the court shall note in the register that the judgment creates a judgment lien. The district attorney, county counsel or city attorney may have execution issued on the judgment and deliver same to the sheriff to be executed by levy on the deposit or security amount made in accordance with ORS 135.265, or may collect the judgment as otherwise provided by law. The proceeds of any execution or collection shall be used to satisfy the judgment and costs and paid into the treasury of the municipal corporation wherein the security was taken if the offense was defined by an ordinance of a political subdivision of this state, or paid into the treasury of the county wherein the security was taken if the offense was defined by a statute of this state and the judgment was entered by a justice court, or paid over as directed by the State Court Administrator for deposit in the Criminal Fine Account, if the offense was defined by a statute of this state and the judgment was entered by a circuit court. The provisions of this section shall not apply to amounts deposited upon appearance under ORS 153.061.

      (6) When the judgment of forfeiture is entered, the security deposit or deposit with the clerk is, by virtue of the judgment alone and without requiring further execution, forfeited to and may be kept by the state or its appropriate political subdivision. Except as provided in subsection (4) of this section, the clerk shall reduce, by the value of the deposit so forfeited, the debt remaining on the judgment and shall cause the amount on deposit to be transferred to the revenue account of the state or political subdivision thereof entitled to receive the proceeds of execution under this section.

      (7) The stocks, bonds, personal property and real property shall be sold in the same manner as in execution sales in civil actions and the proceeds of such sale shall be used to satisfy all court costs, prior encumbrances, if any, and from the balance a sufficient amount to satisfy the judgment shall be paid into the treasury of the municipal corporation wherein the security was taken if the offense was defined by an ordinance of a political subdivision of this state, or paid into the treasury of the county wherein the security was taken if the offense was defined by a statute of this state and the judgment was entered by a justice court, or deposited in the General Fund available for general governmental expenses if the offense was defined by a statute of this state and the judgment was entered by a circuit court. The balance shall be returned to the owner. The real property sold may be redeemed in the same manner as real estate may be redeemed after judicial or execution sales in civil actions. [1973 c.836 §155; 1981 s.s. c.3 §113; 1983 c.763 §45; 1987 c.710 §1; 1987 c.905 §15; 1995 c.658 §74; 1997 c.801 §64; 1999 c.1051 §250; 2001 c.705 §2; 2001 c.829 §10b; 2003 c.576 §161; 2005 c.700 §5; 2011 c.597 §41]

 

      135.285 Modification of release decision. If circumstances concerning the defendant’s release change, the court, on its own motion or upon request by the district attorney or defendant, may modify the release agreement or the security release. [1973 c.836 §156; 1995 c.658 §75; 2013 c.151 §3]

 

      135.290 Punishment by contempt of court. (1) A supervisor of a defendant on conditional release who knowingly aids the defendant in breach of the conditional release or who knowingly fails to report the defendant’s breach is punishable by contempt.

      (2) A defendant may be punished by contempt if the defendant knowingly:

      (a) Breaches any of the regulations in the release agreement imposed pursuant to ORS 135.260; or

      (b) Violates an order entered under ORS 135.247. [1973 c.836 §157; 2011 c.232 §2]

 

      135.295 Application of ORS 135.230 to 135.290 to certain traffic offenses. Provision for release contained in ORS 135.230 to 135.290 shall not apply to any traffic offenses as defined for the Oregon Vehicle Code except the following:

      (1) Reckless driving under ORS 811.140.

      (2) Driving while under the influence of intoxicants under ORS 813.010.

      (3) Failure to perform the duties of a driver under ORS 811.700 or 811.705.

      (4) Criminal driving while suspended or revoked under ORS 811.182.

      (5) Fleeing or attempting to elude a police officer under ORS 811.540. [1974 c.35 §1; 1981 c.818 §3; 1983 c.338 §888; 1987 c.730 §5; 1991 c.208 §3]

 

PLEADINGS

 

(Defendant’s Answer Generally)

 

      135.305 Types of answer. If the defendant does not require time, as provided in ORS 135.380, or if the defendant does, then on the next day or at such further day as the court may have allowed the defendant, the defendant may, in answer to the arraignment, move against the accusatory instrument or demur or plead thereto. [Formerly 135.420]

 

      135.310 [Renumbered 135.040]

 

      135.315 Types of pleading. The only pleadings on the part of the defendant are the demurrer and plea. [Formerly 135.430]

 

      135.320 [Amended by 1961 c.696 §2; 1967 c.475 §2; 1973 c.836 §134; renumbered 135.045]

 

      135.325 Pleading a judgment. In pleading a judgment or other determination of or proceeding before a court or officer of special jurisdiction, it is not necessary for the defendant to state the facts conferring jurisdiction; but the judgment, determination, or proceeding may be stated to have been duly given or made. The facts conferring jurisdiction, however, must be established on the trial. [Formerly 135.450]

 

      135.330 [Amended by 1961 c.698 §1; 1967 c.628 §1; 1971 c.677 §1; renumbered 135.055]

 

(Plea)

 

      135.335 Pleading by defendant; conditional pleas. (1) The kinds of plea to an indictment, information or complaint, or each count thereof, are:

      (a) Guilty.

      (b) Not guilty.

      (c) No contest.

      (2) A defendant may plead no contest only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.

      (3) With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea. [1973 c.836 §159; 1999 c.134 §1]

 

      135.340 [Amended by 1973 c.836 §136; renumbered 135.060]

 

      135.345 Legal effect of plea of no contest. A judgment following entry of a no contest plea is a conviction of the offense to which the plea is entered. [1973 c.836 §160]

 

      135.350 [Amended by 1973 c.836 §137; renumbered 135.065]

 

      135.355 Presentation of plea; entry in register; forms. (1) Every plea shall be oral and shall be entered in the register of the court in substantially one of the following forms:

      (a) “The defendant pleads that defendant is guilty of the offense charged in this accusatory instrument.”

      (b) “The defendant pleads that defendant is not guilty of the offense charged in this accusatory instrument.”

      (c) “The defendant pleads no contest to the offense charged in this accusatory instrument.”

      (2) When a defendant enters a conditional plea of guilty or no contest, the entry in the register of the court shall so indicate.

      (3) For purposes of this section, an oral plea includes a plea made orally by means of simultaneous electronic transmission as described in ORS 131.045. [Formerly 135.830; 1985 c.540 §32; 1999 c.134 §2; 2005 c.566 §6]

 

      135.360 Special provisions relating to presentation of plea of guilty or no contest. (1) Except as provided in subsection (2) of this section, a plea of guilty or no contest to a crime punishable as a felony shall in all cases be put in by the defendant in person in open court unless upon an accusatory instrument against a corporation, in which case it may be put in by counsel.

      (2) Any circuit judge may, within any county in the own district of the judge other than the county where the accusation is pending, accept pleas of guilty or no contest from persons charged with a crime punishable as a felony and pass sentence thereon upon written request of the accused and the attorney of the accused and upon not less than one day’s notice to the district attorney. Judgments based upon such pleas and sentences entered upon the pleas are as effective as though heard and determined in open court in the county where the accusation is pending. Judges accepting the pleas shall transmit the pleas to the clerk of the court in the county where the accusation is pending, whereupon the clerk shall file and enter the pleas to become effective from the date of filing.

      (3) A judge may accept a plea of guilty or no contest under subsection (1) of this section by simultaneous electronic transmission, as defined in ORS 131.045, without the agreement of the state or the defendant if the plea is entered at arraignment and the type of simultaneous electronic transmission available allows the defendant to observe the court and the court to observe the defendant. [Formerly 135.840; 2005 c.566 §7]

 

      135.365 Withdrawal of plea of guilty or no contest. The court may at any time before judgment, upon a plea of guilty or no contest, permit it to be withdrawn and a plea of not guilty substituted therefor. [Formerly 135.850]

 

      135.370 Not guilty plea as denial of allegations of accusatory instrument. The plea of not guilty controverts and is a denial of every material allegation in the accusatory instrument. [Formerly 135.860]

 

      135.375 Pleading to offenses in other counties. (1) As used in this section:

      (a) “Initiating county” means the county in which the defendant appears for the purpose of entering a plea to a criminal charge.

      (b) “Responding county” means a county in which another criminal charge is pending against the defendant entering a plea in the initiating county.

      (2) Upon entry of a plea of guilty or no contest, or after conviction on a plea of not guilty, if a charge is pending against the defendant for a crime that is within the jurisdiction of a coordinate court of a responding county in the state, the defendant may state in writing that the defendant desires:

      (a) To waive venue and trial in the responding county;

      (b) To waive indictment by the grand jury of the responding county;

      (c) To plead guilty or no contest; and

      (d) To consent to disposition of the case by the court in the initiating county.

      (3) Upon receipt of the request and the written approval of the district attorney of the initiating county, the clerk of the court of the initiating county shall notify the court and the district attorney of the responding county.

      (4) Upon receipt of written approval from the district attorney of the responding county, the court of the initiating county may allow the defendant to enter the plea.

      (5) The original judgment entered by the court of the initiating county after the defendant enters a plea under subsection (4) of this section is the same for all purposes as a judgment of the court of the responding county. [1973 c.836 §165; 1991 c.111 §11; 2017 c.252 §15]

 

      135.380 Time of entering plea; aid of counsel. (1) A defendant shall not be required to plead to an offense punishable by imprisonment until the defendant is represented by counsel, unless the defendant knowingly waives the right of the defendant to counsel.

      (2) A defendant may plead guilty or no contest on the day of arraignment or any time thereafter except that a defendant without counsel shall not be allowed to plead guilty or no contest to a felony on the day of arraignment.

      (3) Upon completion of the arraignment, unless the defendant enters a plea in the manner provided in ORS 135.305 to 135.325, 135.335, 135.355, 135.360 and 135.375, the defendant shall be considered to have entered a plea of not guilty. [1973 c.836 §166; 2001 c.635 §13]

 

      135.385 Defendant to be advised by court. (1) The court shall not accept a plea of guilty or no contest to a felony or other charge on which the defendant appears in person without first addressing the defendant personally and determining that the defendant understands the nature of the charge.

      (2) The court shall inform the defendant:

      (a) That by a plea of guilty or no contest the defendant waives the right:

      (A) To trial by jury;

      (B) Of confrontation; and

      (C) Against self-incrimination.

      (b) Of the maximum possible sentence on the charge, including the maximum possible sentence from consecutive sentences.

      (c) When the offense charged is one for which a different or additional penalty is authorized by reason of the fact that the defendant may be adjudged a dangerous offender, that this fact may be established after a plea in the present action, thereby subjecting the defendant to different or additional penalty.

      (d) That if the defendant is not a citizen of the United States conviction of a crime may result, under the laws of the United States, in deportation, exclusion from admission to the United States or denial of naturalization.

      (e) That if the defendant is entering a guilty plea pursuant to a plea offer and agreed disposition recommendation under ORS 135.405, the court will agree to impose sentence as provided in the agreed disposition recommendation.

      (f) That if the defendant enters a plea of guilty or no contest to an offense involving domestic violence, as defined in ORS 135.230, and is convicted of the offense, federal law may prohibit the defendant from possessing, receiving, shipping or transporting any firearm or firearm ammunition and that the conviction may negatively affect the defendant’s ability to serve in the Armed Forces of the United States as defined in ORS 348.282 or to be employed in law enforcement. [1973 c.836 §167; 1979 c.118 §1; 2001 c.635 §12; 2007 c.220 §1]

 

      135.390 Determining voluntariness of plea; nature of plea agreement. (1) The court shall not accept a plea of guilty or no contest without first determining that the plea is voluntary and intelligently made.

      (2) The court shall determine whether the plea is the result of prior plea discussions and a plea agreement. If the plea is the result of a plea agreement, the court shall determine the nature of the agreement.

      (3) If the plea agreement includes an agreement that the district attorney will seek or not oppose dismissal of a charge in exchange for the defendant’s plea of guilty or no contest to another charge, the court may not accept the plea of guilty or no contest unless:

      (a) The agreement includes a written provision that indicates whether the court is required to reinstate charges that are dismissed pursuant to the agreement if the plea of guilty or no contest is withdrawn under ORS 135.365 or the judgment of conviction is subsequently reversed, vacated or set aside; and

      (b) If the agreement requires the court to reinstate charges under the circumstances described in paragraph (a) of this subsection, the defendant has provided the court with a written waiver of the statute of limitations and any statutory or constitutional speedy trial or double jeopardy rights, applicable to the dismissed charges.

      (4) If the district attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court shall advise the defendant personally that the recommendations of the district attorney are not binding on the court.

      (5)(a) If the district attorney has provided a plea offer and agreed disposition recommendation to the defendant as provided in ORS 135.405 and the defendant is entering a guilty plea based on the plea offer and agreed disposition recommendation, the court shall determine whether the plea is voluntarily made. Except as otherwise provided in paragraph (b) of this subsection, if the court finds that the plea is voluntarily made, the court shall impose sentence as provided in the agreed disposition recommendation.

      (b) If the court determines that the agreed disposition recommendation is inappropriate in a particular case, the court shall so advise the parties and allow the defendant an opportunity to withdraw the plea. [1973 c.836 §168; 2001 c.635 §11; 2009 c.356 §1]

 

      135.395 Determining accuracy of plea. After accepting a plea of guilty or no contest, the court shall not enter a judgment without making such inquiry as may satisfy the court that there is a factual basis for the plea. [1973 c.836 §169]

 

(Plea Discussions and Agreements)

 

      135.405 Plea discussions and plea agreements. (1) In cases in which it appears that the interest of the public in the effective administration of criminal justice would thereby be served, and in accordance with the criteria set forth in ORS 135.415, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.

      (2) The district attorney shall engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when, as a matter of record, the defendant has effectively waived the right of the defendant to counsel or, if the defendant is not eligible for appointed counsel, has not retained counsel.

      (3) The district attorney in reaching a plea agreement may agree to, but is not limited to, one or more of the following, as required by the circumstances of the individual case:

      (a) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged;

      (b) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant’s conduct; or

      (c) To seek or not to oppose dismissal of other charges or to refrain from bringing potential charges if the defendant enters a plea of guilty or no contest to the offense charged.

      (4) Similarly situated defendants should be afforded equal plea agreement opportunities.

      (5) The district attorney may not condition a plea offer on a requirement that the defendant waive:

      (a) The disclosure obligation of ORS 135.815 (1)(g); or

      (b) The ability to receive the audio recording of grand jury proceedings as permitted under ORS 132.270, if the indictment has been indorsed “a true bill.”

      (6)(a) A district attorney may provide a plea offer and agreed disposition recommendation to the defendant at the time of arraignment or first appearance of the defendant for a crime in open court under an early disposition program established under ORS 135.941.

      (b) Unless extended by the court, a plea offer and agreed disposition recommendation made under paragraph (a) of this subsection expire upon completion of the arraignment. Except for good cause, a court may not extend a plea offer and agreed disposition recommendation under this paragraph for more than seven days for a misdemeanor or 21 days for a felony. [1973 c.836 §170; 2001 c.635 §10; 2001 c.962 §79; 2013 c.525 §2; 2017 c.650 §8]

 

      Note: The amendments to 135.405 by section 8, chapter 650, Oregon Laws 2017, become operative March 1, 2018. See section 18, chapter 650, Oregon Laws 2017. The text that is operative until March 1, 2018, is set forth for the user’s convenience.

      135.405. (1) In cases in which it appears that the interest of the public in the effective administration of criminal justice would thereby be served, and in accordance with the criteria set forth in ORS 135.415, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.

      (2) The district attorney shall engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when, as a matter of record, the defendant has effectively waived the right of the defendant to counsel or, if the defendant is not eligible for appointed counsel, has not retained counsel.

      (3) The district attorney in reaching a plea agreement may agree to, but is not limited to, one or more of the following, as required by the circumstances of the individual case:

      (a) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged;

      (b) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant’s conduct; or

      (c) To seek or not to oppose dismissal of other charges or to refrain from bringing potential charges if the defendant enters a plea of guilty or no contest to the offense charged.

      (4) Similarly situated defendants should be afforded equal plea agreement opportunities.

      (5) The district attorney may not condition a plea offer on a requirement that the defendant waive the disclosure obligation of ORS 135.815 (1)(g).

      (6)(a) A district attorney may provide a plea offer and agreed disposition recommendation to the defendant at the time of arraignment or first appearance of the defendant for a crime in open court under an early disposition program established under ORS 135.941.

      (b) Unless extended by the court, a plea offer and agreed disposition recommendation made under paragraph (a) of this subsection expire upon completion of the arraignment. Except for good cause, a court may not extend a plea offer and agreed disposition recommendation under this paragraph for more than seven days for a misdemeanor or 21 days for a felony.

 

      135.406 [1997 c.313 §3; repealed by 2009 c.178 §35]

 

      135.407 Plea agreement must contain defendant’s criminal history classification; stipulations. In cases arising from felonies committed on or after November 1, 1989:

      (1) Whenever a plea agreement is presented to the sentencing judge, the defendant’s criminal history classification, as set forth in the rules of the Oregon Criminal Justice Commission, shall be accurately represented to the trial judge in the plea agreement. If a controversy exists as to whether a prior conviction or juvenile adjudication should be included in the defendant’s criminal history, or as to its classification under rules of the Oregon Criminal Justice Commission, the district attorney and the defendant may stipulate to the inclusion, exclusion or classification of the conviction or adjudication as part of the plea agreement subject to approval of the court.

      (2) The district attorney and the defendant may stipulate to the grid block classification within the sentencing guidelines grid established by the rules of the Oregon Criminal Justice Commission that will provide the presumptive sentence range for the offender. The sentencing judge may accept the stipulated classification and impose the presumptive sentence provided in the rules of the Oregon Criminal Justice Commission for that grid block.

      (3) If the district attorney and the defendant stipulate to a grid block classification within the sentencing guidelines grid, and the sentencing judge accepts the stipulated classification but imposes a sentence other than the presumptive sentence provided by rules of the Oregon Criminal Justice Commission, the sentence is a departure sentence and is subject to rules of the Oregon Criminal Justice Commission related to departures.

      (4) The district attorney and defendant may stipulate to a specific sentence within the presumptive range provided by rules of the Oregon Criminal Justice Commission for the stipulated offender classification. If the sentencing judge accepts the plea agreement, the judge shall impose the stipulated sentence.

      (5) The district attorney and the defendant may stipulate to a sentence outside the presumptive sentence range for a stipulated grid block classification. The sentencing judge may accept an agreement for an optional probationary sentence or a departure sentence as provided in rules of the Oregon Criminal Justice Commission. [1989 c.790 §2]

 

      135.410 [Repealed by 1973 c.836 §358]

 

      135.415 Criteria to be considered in plea discussions and plea agreements. In determining whether to engage in plea discussions for the purpose of reaching a plea agreement, the district attorney may take into account, but is not limited to, any of the following considerations:

      (1) The defendant by the plea of the defendant has aided in insuring the prompt and certain applications of correctional measures to the defendant.

      (2) The defendant has acknowledged guilt and shown a willingness to assume responsibility for the conduct of the defendant.

      (3) The concessions made by the state will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction.

      (4) The defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial.

      (5) The defendant has given or offered cooperation when the cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct.

      (6) The defendant by the plea of the defendant has aided in avoiding delay in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders. [1973 c.836 §171]

 

      135.420 [Amended by 1973 c.836 §158; renumbered 135.305]

 

      135.425 Responsibilities of defense counsel. (1) Defense counsel shall conclude a plea agreement only with the consent of the defendant, and shall insure that the decision whether to enter a plea of guilty or no contest is ultimately made by the defendant.

      (2) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, shall advise the defendant of the alternatives available and of factors considered important by the defense counsel or the defendant in reaching a decision. [1973 c.836 §172]

 

      135.430 [Renumbered 135.315]

 

      135.432 Judge involvement in plea discussions; responsibilities of trial judge. (1)(a) The trial judge may not participate in plea discussions, except:

      (A) To inquire of the parties about the status of any discussions;

      (B) To participate in a tentative plea agreement as provided in subsections (2) to (4) of this section;

      (C) To make the inquiries required by ORS 147.512; or

      (D) As provided in subsection (5) of this section.

      (b) Any other judge, at the request of both the prosecution and the defense, or at the direction of the presiding judge, may participate in plea discussions. Participation by a judge in the plea discussion process shall be advisory, and shall in no way bind the parties. If no plea is entered pursuant to these discussions, the advice of the participating judge shall not be reported to the trial judge. If the discussion results in a plea of guilty or no contest, the parties, if they both agree to do so, may proceed with the plea before a judge involved in the discussion. This plea may be entered pursuant to a tentative plea agreement as provided in subsections (2) to (4) of this section.

      (2) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or no contest in the expectation that charge or sentence concessions will be granted, the trial judge, upon request of the parties, may permit the disclosure to the trial judge of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. The trial judge may then advise the district attorney and defense counsel whether the trial judge will concur in the proposed disposition if the information in the presentence report or other information available at the time for sentencing is consistent with the representations made to the trial judge.

      (3) If the trial judge concurs, but later decides that the final disposition of the case should not include the sentence concessions contemplated by the plea agreement, the trial judge shall so advise the defendant and allow the defendant a reasonable period of time in which to either affirm or withdraw a plea of guilty or no contest.

      (4) When a plea of guilty or no contest is tendered or received as a result of a prior plea agreement, the trial judge shall give the agreement due consideration, but notwithstanding its existence, the trial judge is not bound by it, and may reach an independent decision on whether to grant sentence concessions under the criteria set forth in ORS 135.415.

      (5) With the consent of the parties and upon receipt of a written waiver executed by the defendant, the trial judge may participate in plea discussions. [1973 c.836 §173; 1987 c.202 §1; 1997 c.313 §4; 2009 c.178 §33]

 

      135.435 Discussion and agreement not admissible. (1) Except as provided in subsection (2) of this section, none of the following shall be received in evidence for or against a defendant in any criminal or civil action or administrative proceeding:

      (a) The fact that the defendant or the counsel of the defendant and the district attorney engaged in plea discussions.

      (b) The fact that the defendant or the attorney of the defendant made a plea agreement with the district attorney.

      (c) Any statement or admission made by the defendant or the attorney of the defendant to the district attorney and as a part of the plea discussion or agreement.

      (2) The provisions of subsection (1) of this section shall not apply if, subsequent to the plea discussions or plea agreement, the defendant enters a plea of guilty or no contest which is not withdrawn. [1973 c.836 §174]

 

      135.440 [Repealed by 1973 c.836 §358]

 

      135.445 Withdrawn plea or statement not admissible. (1) A plea of guilty or no contest which is not accepted or has been withdrawn shall not be received against the defendant in any criminal proceeding.

      (2) No statement or admission made by a defendant or the attorney of the defendant during any proceeding relating to a plea of guilty or no contest which is not accepted or has been withdrawn shall be received against the defendant in any criminal proceeding. [1973 c.836 §175]

 

      135.450 [Renumbered 135.325]

 

(Related Procedure)

 

      135.455 Notice prior to trial of intention to rely on alibi evidence; content of notice; effect of failure to supply notice. (1) If the defendant in a criminal action proposes to rely in any way on alibi evidence, the defendant shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of the purpose to offer such evidence, which notice shall state specifically the place or places where the defendant claims to have been at the time or times of the alleged offense together with the name and residence or business address of each witness upon whom the defendant intends to rely for alibi evidence. If the defendant fails to file and serve such notice, the defendant shall not be permitted to introduce alibi evidence at the trial of the cause unless the court for good cause orders otherwise.

      (2) As used in this section “alibi evidence” means evidence that the defendant in a criminal action was, at the time of commission of the alleged offense, at a place other than the place where such offense was committed. [Formerly 135.875]

 

      135.460 [Repealed by 1973 c.836 §358]

 

      135.465 Defect in accusatory instrument as affecting acquittal on merits. When the defendant is acquitted on the merits, the defendant is considered acquitted of the offense charged in the accusatory instrument, notwithstanding a defect in form or substance in the accusatory instrument on which the defendant is acquitted. [Formerly 135.880]

 

PRETRIAL MOTIONS

 

      135.470 Motion to dismiss accusatory instrument on grounds of former jeopardy. (1) The court shall dismiss the accusatory instrument if, upon motion of the defendant, it appears, as a matter of law, that a former prosecution bars the prosecution for the offense charged.

      (2) The time of making the motion and its effect shall be as provided for a motion to set aside the indictment in ORS 135.520 and 135.530.

      (3) An order to dismiss the accusatory instrument on grounds of former jeopardy is a bar to a future prosecution of the defendant for the offense charged in the accusatory instrument. [1973 c.836 §177]

 

      135.510 Grounds for motion to set aside the indictment. (1) The indictment shall be set aside by the court upon the motion of the defendant in either of the following cases:

      (a) When it is not found, indorsed and presented as prescribed in ORS 132.360, 132.400 to 132.430 and 132.580.

      (b) When the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon.

      (2) Nothing in subsection (1)(b) of this section shall affect the application of ORS 132.580. [Amended by 1959 c.426 §2; 1973 c.836 §178]

 

      135.520 Time of making motion; hearing. A motion to set aside the indictment or dismiss the accusatory instrument shall be made and heard at the time of the arraignment or within 10 days thereafter, unless for good cause the court allows additional time. If not so made, the defendant is precluded from afterwards taking the objections to the indictment or accusatory instrument. [Amended by 1973 c.836 §179]

 

      135.530 Effect of allowance of motion. (1) If the motion to set aside or dismiss is allowed, the court shall order that the defendant, if in custody, be discharged therefrom or, if the defendant has been released, that the release agreement be discharged and the security deposit be refunded as provided by law, unless the court allows the case to be refiled or resubmitted to the same or another grand jury.

      (2) If the court allows the case to be resubmitted or refiled, it must be resubmitted or refiled by the state within 30 days from the date on which the court enters the order. If the case is not resubmitted or refiled within that time, the defendant shall be released from custody or the release agreement discharged or the security deposit returned. [Amended by 1973 c.836 §180]

 

      135.540 Effect of resubmission of case. Subject to the limitations of ORS 135.530 (2), if the court allows the case to be resubmitted or refiled, the defendant, if then in custody, shall so remain, unless the defendant is released as provided by law. If the defendant has already been released, the release agreement or any security deposited as provided by law, shall continue to insure the appearance of the defendant to answer a new indictment or information, if one is filed. [Amended by 1973 c.836 §181]

 

      135.550 [Repealed by 1973 c.836 §358]

 

      135.560 Order to set aside is no bar to future prosecution. Except for an order dismissing an accusatory instrument on grounds of former jeopardy, an order to set aside an indictment or to dismiss an accusatory instrument is no bar to a future prosecution for the same crime. [Amended by 1973 c.836 §182]

 

DEMURRERS

 

      135.610 Demurrer; generally. (1) The demurrer shall be entered either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.

      (2) The demurrer shall be in writing, signed by the defendant or the attorney of the defendant and filed. It shall distinctly specify the ground of objection to the accusatory instrument. [Amended by 1973 c.836 §183]

 

      135.620 [Repealed by 1973 c.836 §358]

 

      135.630 Grounds of demurrer. The defendant may demur to the accusatory instrument when it appears upon the face thereof:

      (1) If the accusatory instrument is an indictment, that the grand jury by which it was found had no legal authority to inquire into the crime charged because the same is not triable within the county;

      (2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;

      (3) That the accusatory instrument charges more than one offense not separately stated;

      (4) That the facts stated do not constitute an offense;

      (5) That the accusatory instrument contains matter which, if true, would constitute a legal justification or excuse of the offense charged or other legal bar to the action; or

      (6) That the accusatory instrument is not definite and certain. [Amended by 1973 c.836 §184]

 

      135.640 When objections that are grounds for demurrer may be taken. When the objections mentioned in ORS 135.630 appear upon the face of the accusatory instrument, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the accusatory instrument, or that the facts stated do not constitute an offense, may be taken at the trial, under the plea of not guilty and in arrest of judgment. [Amended by 1973 c.836 §185]

 

      135.650 Hearing of objections specified by demurrer. Upon the filing of the demurrer, the objections presented thereby shall be heard either immediately or at such time as the court may direct.

 

      135.660 Judgment on demurrer; entry in register. Upon considering the demurrer, the court shall give judgment, either allowing or disallowing it, and an entry to that effect shall be made in the register. [Amended by 1985 c.540 §33]

 

      135.670 Allowance of demurrer. (1) If the demurrer is allowed, the judgment is final upon the accusatory instrument demurred to and is a bar to another action for the same crime unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new accusatory instrument, allows the case to be resubmitted or refiled.

      (2) If the court allows the case to be resubmitted or refiled, it must be resubmitted or refiled by the state within 30 days from the date on which the court enters the order. If the case is not resubmitted or refiled within that time, the defendant shall be discharged from custody or the release agreement discharged or the security deposit returned as provided in ORS 135.680. [Amended by 1973 c.836 §186]

 

      135.680 Procedure if resubmission of case not allowed. If the court does not allow the case to be resubmitted or an amended complaint or information filed, the defendant, if in custody, shall be discharged. If the defendant has been released, the release agreement shall be discharged. If the defendant has deposited any security, the security shall be returned to the defendant as provided by law. [Amended by 1973 c.836 §187]

 

      135.690 Resubmission of case. If the court allows the case to be resubmitted, the same proceedings shall be had thereon as are prescribed in ORS 135.540. [Amended by 1973 c.836 §188]

 

      135.700 Disallowance of demurrer. If the demurrer is disallowed, the court shall permit the defendant, at the election of the defendant, to plead, which the defendant must do forthwith or at such time as the court may allow; but if the defendant does not plead, a plea of not guilty shall be entered. [Amended by 1973 c.836 §189]

 

COMPROMISE

 

      135.703 Crimes subject to being compromised; exceptions. (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;

      (c) With an intent to commit a crime punishable only as a felony; or

      (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 person or a person with a disability 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;

      (C) Menacing under ORS 163.190;

      (D) Recklessly endangering another person under ORS 163.195;

      (E) Harassment under ORS 166.065; or

      (F) Strangulation under ORS 163.187.

      (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. [Formerly 134.010; 1991 c.938 §1; 1995 c.657 §21; 1995 c.666 §26; 1999 c.738 §9; 2003 c.264 §9; 2003 c.577 §5; 2007 c.70 §35]

 

      135.705 Satisfaction of injured person; dismissal of charges. (1)(a) If the person injured acknowledges in writing, at any time before trial on an accusatory instrument for the crime, that the person has received satisfaction for the injury, the court may, in its discretion, on payment of the costs and expenses incurred, enter a judgment dismissing the accusatory instrument.

      (b) For purposes of paragraph (a) of this subsection, a written acknowledgment that a civil penalty under ORS 30.875 has been paid is not evidence that the person injured has received full satisfaction for the injury and is not a compromise under this section.

      (2) As used in this section, “costs” includes those expenses specially incurred by the state in prosecuting the defendant, including costs under ORS 151.505 for the compensation of counsel appointed pursuant to ORS 135.045 or 135.050 and fees and expenses paid under ORS 135.055. [Formerly 134.020; 1981 s.s. c.3 §121; 1985 c.540 §34; 1985 c.710 §4; 1987 c.803 §25; 1999 c.925 §1; 2003 c.449 §28; 2009 c.484 §9]

 

      135.707 Discharge as bar to prosecution. A judgment entered under ORS 135.705 is a bar to another prosecution for the same crime. [Formerly 134.030; 2009 c.484 §10]

 

      135.709 Exclusiveness of procedure. No crime can be compromised nor can any proceeding for the prosecution or punishment thereof be stayed upon a compromise, except as provided in ORS 135.703 to 135.709 and 135.745 to 135.757. [Formerly 134.040]

 

SUFFICIENCY OF ACCUSATORY INSTRUMENTS

 

      135.711 Facts constituting crime or subcategory of crime required. For any felony committed on or after November 1, 1989, the accusatory instrument shall allege facts sufficient to constitute a crime or a specific subcategory of a crime in the Crime Seriousness Scale established by the rules of the Oregon Criminal Justice Commission. [1989 c.790 §4]

 

      135.713 Necessity of stating presumptions of law and matters judicially noticed. Neither presumptions of law nor matters of which judicial notice is taken need be stated in an accusatory instrument. [Formerly 132.570]

 

      135.715 Effect of nonprejudicial defects in form of accusatory instrument. No accusatory instrument is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. [Formerly 132.590]

 

      135.717 Time of crime. The precise time at which the offense was committed need not be stated in the accusatory instrument, but it may be alleged to have been committed at any time before the finding thereof and within the time in which an action may be commenced therefor, except where the time is a material element in the offense. [Formerly 132.610]

 

      135.720 Place of crime in certain cases. In an accusatory instrument for an offense committed as described in ORS 131.315 and 131.325, it is sufficient to allege that the offense was committed within the county where the accusatory instrument is found. [Formerly 132.620]

 

      135.725 Person injured or intended to be injured. When a crime involves the commission of or an attempt to commit a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material. [Formerly 132.630]

 

      135.727 Description of animal. When an offense involves the taking of or injury to an animal, the accusatory instrument is sufficiently certain in that respect if it describes the animal by the common name of its class. [Formerly 132.640]

 

      135.730 Judgments; facts conferring jurisdiction. In pleading in an accusatory instrument a judgment or other determination of or proceeding before a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment, determination or proceeding may be stated to have been duly given or made. The facts conferring jurisdiction, however, must be established on the trial. [Formerly 132.660]

 

      135.733 Defamation. An accusatory instrument for criminal defamation need not set forth any extrinsic facts for the purpose of showing the application to the party defamed of the defamatory matter on which the accusatory instrument is founded; but it is sufficient to state generally that the same was published concerning the party; and the fact that it was so published must be established on the trial. [Formerly 132.670]

 

      135.735 Forgery; misdescription of forged instrument. When an instrument which is the subject of an accusatory instrument for forgery has been destroyed or withheld by the act or procurement of the defendant and the fact of the destruction or withholding is alleged in the accusatory instrument and established on the trial, the misdescription of the instrument is immaterial. [Formerly 132.680]

 

      135.737 Perjury. In an accusatory instrument for perjury, attempted perjury, solicitation of perjury or conspiracy to commit perjury it is sufficient to set forth the substance of the controversy or matter in respect to which the crime was committed, in what court or before whom the oath alleged to be false was taken and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the accusatory instrument need set forth neither the pleadings, record or proceedings with which the oath is connected nor the commission or authority of the court or person before whom the perjury was committed. [Formerly 132.690]

 

      135.740 Construction of words and phrases used. The words used in an accusatory instrument must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning. [Formerly 132.710]

 

      135.743 Fictitious or erroneous name; insertion of true name. When a defendant is charged in an accusatory instrument by a fictitious or erroneous name and in any stage of the proceedings the true name of the defendant is discovered, it may be inserted in the subsequent proceedings, referring to the fact of the defendant being charged by the name mentioned in the accusatory instrument. [Formerly 132.720]

 

SPEEDY TRIAL PROVISIONS

 

      135.745 Delay in finding an indictment or filing an information. When a person has been held to answer for a crime, if an indictment is not found against the person within 30 days or the district attorney does not file an information in circuit court within 30 days after the person is held to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary is shown. [Formerly 134.110]

 

      135.746 Time period within which trial must commence. (1) Except as provided in ORS 135.748:

      (a) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a misdemeanor must commence within two years from the date of the filing of the charging instrument.

      (b) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a felony must commence within three years from the date of the filing of the charging instrument.

      (c) A trial in which two or more charges have been consolidated pursuant to ORS 132.560 must commence within the applicable time period required in this subsection for the most serious offense alleged in the charging instrument.

      (d) A joint trial in which two or more defendants are charged in the same charging instrument must commence within the applicable time period required in this subsection for the most serious offense alleged in the charging instrument.

      (2) The time limits required in subsection (1) of this section cease to apply to a defendant who fails to appear at the date and time scheduled for trial.

      (3) If a trial date is scheduled by the court for a defendant represented by counsel and neither the defendant nor the defendant’s counsel objects within seven days of the notice of the trial date to the fact that the scheduled trial date is not within the time limit required in subsection (1) of this section, the time limit is extended until the scheduled trial date, and may be further extended as provided in ORS 135.748. [2014 c.73 §1]

 

      Note: 135.746, 135.748 and 135.752 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      135.747 [Formerly 134.120; repealed by 2013 c.431 §1]

 

      135.748 Periods of time excluded from time limits. (1) All applicable periods of elapsed time as follows are excluded from the time limits described in ORS 135.746:

      (a) A period of time during which the defendant is:

      (A) Under observation or examination for fitness to proceed under ORS 161.365, beginning when the issue of the defendant’s possible lack of fitness to proceed has been raised by the defendant or the defendant’s counsel, until a final determination regarding the defendant’s fitness to proceed has been made by the court;

      (B) Determined to be unfit to proceed by the court pursuant to ORS 161.360 and 161.370;

      (C) Under observation or examination after notice of the issue of the defendant’s qualifying mental disorder, partial responsibility, diminished capacity, insanity or other mental defense is raised by the defendant or the defendant’s counsel, until the trial date; or

      (D) Unable to appear by reason of illness or physical disability.

      (b) A period of time following the filing of an interlocutory appeal or an appeal from the dismissal of the charge or charging instrument, or that results from a stay issued by an appellate court in a mandamus or habeas proceeding, until the appellate judgment is issued or the stay is lifted by the appellate court.

      (c) A period of time between a scheduled court appearance at which the defendant fails to appear and the next scheduled court appearance other than an appearance that occurs for the purpose of addressing a warrant resulting from the defendant’s failure to appear.

      (d) A period of time during which the defendant’s location is known but the defendant’s presence for trial cannot be obtained, or during which the defendant is outside this state and resists being returned to this state for trial.

      (e) A period of time during which the defendant’s location is unknown and:

      (A) The defendant has attempted to avoid apprehension or prosecution; or

      (B) The defendant’s location cannot be determined by due diligence.

      (f) A period of time while the defendant is on trial or engaged in court proceedings in an unrelated matter, whether in the same court or a different court, and was therefore physically unavailable for trial.

      (g) A period of time between a mistrial on the charging instrument and a subsequent trial on the charging instrument, not to exceed three months for each mistrial. The three-month limit may be extended by the court for good cause upon request from either party or upon the court’s own motion.

      (h) A period of time between a continuance or a rescheduling of a trial date, granted at the request of, or with the consent of, the defendant or the defendant’s counsel, and the new trial date. A defendant who is proceeding without counsel may not consent to a continuance or a rescheduling unless the court has advised the defendant of the defendant’s right to a speedy trial within the time limit required in ORS 135.746 and the consequences of the defendant’s consent to the continuance or rescheduling.

      (2) Any period of time excluded pursuant to subsection (1) of this section from the time limits described in ORS 135.746 that applies to a defendant shall apply to all other defendants charged in the charging instrument. However, if the court finds that it is clearly inappropriate to apply the time exclusion to all of the other defendants, the court may order any relief that justice requires. [2014 c.73 §2; 2017 c.634 §2]

 

      Note: See note under 135.746.

 

      135.750 Where there is reason for delay. If the defendant is not proceeded against as provided in ORS 135.745, and sufficient reason therefor is shown, the court may order the action to be continued and in the meantime may release the defendant from custody as provided in ORS 135.230 to 135.290, for the appearance of the defendant to answer the charge or action. [Formerly 134.130; 2013 c.431 §2]

 

      135.752 When trial not commenced within time limit. If a trial is not commenced as required by ORS 135.746, the court shall order the charging instrument to be dismissed without prejudice unless the court finds on the record substantial and compelling reasons to allow the proceeding to continue. [2014 c.73 §3]

 

      Note: See note under 135.746.

 

DISMISSAL OF ACTION

 

      135.753 Effect of dismissal. (1) If the court directs the charge or action to be dismissed, the defendant, if in custody, shall be discharged. If the defendant has been released, the release agreement is exonerated and security deposited shall be refunded to the defendant.

      (2) An order for the dismissal of a charge or action, as provided in ORS 135.703 to 135.709 and 135.745 to 135.757, is a bar to another prosecution for the same crime if the crime is a Class B or C misdemeanor; but it is not a bar if the crime charged is a Class A misdemeanor or a felony.

      (3) If any charge or action is dismissed for the purpose of consolidation with one or more other charges or actions, then any such dismissal shall not be a bar to another prosecution for the same offense. [Formerly 134.140; 1975 c.198 §1]

 

      135.755 Dismissal on motion of court or district attorney. The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order the proceedings to be dismissed. The reasons for the dismissal shall be set forth in the order, which shall be entered in the register. [Formerly 134.150; 1985 c.540 §35]

 

      135.757 Nolle prosequi; discontinuance by district attorney. The entry of a nolle prosequi is abolished, and the district attorney cannot discontinue or abandon a prosecution for a crime, except as provided in ORS 135.755. [Formerly 134.160]

 

PROSECUTION OF PRISONERS

 

      135.760 Notice requesting early trial on pending charge. (1) Any inmate in the custody of the Department of Corrections or of the supervisory authority of a county pursuant to a commitment under ORS 137.124 (2) against whom there is pending at the time of commitment or against whom there is filed at any time during imprisonment, in any court of this state, an indictment, information or criminal complaint charging the inmate with the commission of a crime, may give written notice to the district attorney of the county in which the inmate is so charged requesting the district attorney to prosecute and bring the inmate to trial on the charge forthwith.

      (2) The notice provided for in subsection (1) of this section shall be signed by the inmate and set forth the place and term of imprisonment. A copy of the notice shall be sent to the court in which the inmate has been charged by indictment, information or complaint. [Formerly 134.510; 1987 c.320 §19; 1995 c.423 §9b]

 

      135.763 Trial within 90 days of notice unless continuance granted. (1) The district attorney, after receiving a notice requesting trial under ORS 135.760, shall, within 90 days of receipt of the notice, bring the inmate to trial upon the pending charge.

      (2) The court shall grant any reasonable continuance with the consent of the defendant. Notwithstanding the defendant’s lack of consent, the court may grant a continuance on motion of the district attorney or on its own motion, for good cause shown. The fact of imprisonment is not good cause for the purposes of this subsection. [Formerly 134.520; 1993 c.542 §1]

 

      135.765 Dismissal of criminal proceeding not brought to trial within allowed time; exceptions. (1) On motion of the defendant or the counsel of the defendant, or on its own motion, the court shall dismiss any criminal proceeding not brought to trial in accordance with ORS 135.763.

      (2) This section shall not apply:

      (a) When failure to bring the inmate to trial within 90 days after the district attorney receives notice under ORS 135.760 was the result of motions filed on behalf of the inmate, or of a grant by the court of a continuance on motion of the district attorney or on its own motion, for good cause shown; or

      (b) When the inmate is unavailable for trial, other than by imprisonment, or because of other pending criminal proceedings against the inmate. [Formerly 134.530; 1993 c.542 §2]

 

      135.767 Presence of prisoner at proceedings. (1) Whenever the presence of an inmate in the custody of the Department of Corrections or of the supervisory authority of a county pursuant to a commitment under ORS 137.124 (2) is necessary in any criminal proceeding under ORS 135.760 to 135.773, the court wherein the inmate is charged with the commission of a crime may:

      (a) Issue an order directing the Director of the Department of Corrections or the supervisory authority of a county to surrender the inmate to the sheriff of the county where the inmate is to be tried; or

      (b) Ensure that arrangements for the inmate to appear by simultaneous electronic transmission as described in ORS 131.045 have been made.

      (2) The county where an inmate is charged with commission of a crime shall pay the costs of:

      (a) Transportation and maintenance of the inmate removed under this section; or

      (b) Providing for the inmate to appear by simultaneous electronic transmission.

      (3) If an inmate is transported under this section for a criminal proceeding under ORS 135.760 to 135.773, at the conclusion of the proceeding, notwithstanding the provisions of ORS 137.167, the inmate shall be returned by the sheriff to the custody of the Department of Corrections or the supervisory authority of the county in which the inmate is imprisoned.

      (4) The time during which an inmate is in the custody of the sheriff under this section is part of and shall be counted as time served under the original sentence. [Formerly 134.540; 1983 c.740 §14; 1987 c.320 §20; 1995 c.423 §9c; 2005 c.566 §8]

 

      135.770 Release of prisoner prohibited. No inmate in the custody of a sheriff under ORS 135.767 shall be released pending a criminal proceeding under ORS 135.760 to 135.773 or any appeal therefrom. [Formerly 134.550]

 

      135.773 District attorney to furnish certain documents. The district attorney shall, in all proceedings against inmates under ORS 135.760 to 135.773, obtain for and furnish to the court a certified copy of the judgment, sentence or commitment order pursuant to which the inmate is imprisoned. [Formerly 134.560]

 

DETAINER

 

      135.775 Agreement on Detainers. The Agreement on Detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows:

______________________________________________________________________________

AGREEMENT ON DETAINERS

      The contracting states solemnly agree that:

ARTICLE I

      The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

ARTICLE II

      As used in this agreement:

      (a) “State” shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.

      (b) “Sending state” shall mean a state in which a prisoner is incarcerated at the time that the prisoner initiates a request for final disposition pursuant to Article III of this agreement or at the time that a request for custody or availability is initiated pursuant to Article IV of this agreement.

      (c) “Receiving state” shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV of this agreement.

      (d) “Department of Corrections institution” of this state shall mean any institution operated by the Department of Corrections.

ARTICLE III

      (a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, the prisoner shall be brought to trial within 180 days after the prisoner shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of imprisonment and the request of the prisoner for a final disposition to be made of the indictment, information or complaint: Provided, that for good cause shown in open court, the prisoner or the counsel of the prisoner being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

      (b) The written notice and request for final disposition referred to in paragraph (a) of this Article shall be given or sent by the prisoner to the warden or other official having custody of the prisoner, who shall promptly forward it together with the certificate to the prosecuting official and court by registered or certified mail, return receipt requested.

      (c) The warden or other official having custody of the prisoner shall promptly inform the prisoner of the source and contents of any detainer lodged against the prisoner and shall also inform the prisoner of the right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.

      (d) Any request for final disposition made by a prisoner pursuant to paragraph (a) of this Article shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner’s written notice, request and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

      (e) Any request for final disposition made by a prisoner pursuant to paragraph (a) of this Article shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) of this Article, and a waiver of extradition to the receiving state to serve any sentence there imposed upon the prisoner, after completion of the term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of the body of the prisoner in any court where the presence of the prisoner may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.

      (f) Escape from custody by the prisoner subsequent to the execution of the request for final disposition referred to in paragraph (a) of this Article shall void the request.

ARTICLE IV

      (a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom the officer has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with paragraph (a) of Article V of this agreement upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: Provided, that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; And provided further, that there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon the own motion of the governor or upon motion of the prisoner.

      (b) Upon receipt of the officer’s written request as provided in paragraph (a) of this Article, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the state parole agency relating to the prisoner. Such authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.

      (c) In respect of any proceeding made possible by this Article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or the counsel of the prisoner being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

      (d) Nothing contained in this Article shall be construed to deprive any prisoner of any right which the prisoner may have to contest the legality of the delivery of the prisoner as provided in paragraph (a) of this Article, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.

      (e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to paragraph (e) of Article V of this agreement, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

ARTICLE V

      (a) In response to a request made under Article III or Article IV of this agreement, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in Article III of this agreement. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner’s presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.

      (b) The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:

      (1) Proper identification and evidence of authority to act for the state into whose temporary custody the prisoner is to be given.

      (2) A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.

      (c) If the appropriate authority shall refuse or fail to accept temporary custody of such prisoner, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV of this agreement, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.

      (d) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for attendance of the prisoner at court and while being transported to or from any place at which the presence of the prisoner may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.

      (e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.

      (f) During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.

      (g) For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.

      (h) From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one or more untried indictments, informations or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing contained in this paragraph shall be construed to alter or affect any internal relationship among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor.

ARTICLE VI

      (a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of such time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.

      (b) No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be a person with mental illness.

ARTICLE VII

      Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide within and without the state, information necessary to the effective operation of this agreement.

ARTICLE VIII

      This agreement shall enter into full force and effect as to a party state when such state has enacted the agreement into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the agreement. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by prisoners or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.

ARTICLE IX

      This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party to this agreement, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

______________________________________________________________________________ [Formerly 134.605; 1987 c.320 §20a; 2013 c.360 §5]

 

      135.777 Definition for ORS 135.775. As used in the Agreement on Detainers, the term “appropriate court” means any court of this state that has criminal jurisdiction. [Formerly 134.615]

 

      135.779 Enforcement of ORS 135.775 by public agencies. All courts, departments, agencies, officers and employees of this state and its political subdivisions are hereby directed to enforce the Agreement on Detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purposes. [Formerly 134.625]

 

      135.783 Effect of escape from custody in another state. Escape from custody while in another state pursuant to the Agreement on Detainers is an offense against the laws of this state to the same extent and degree as an escape from the institution in which the prisoner was confined immediately prior to having been sent to another state pursuant to the provision of the Agreement on Detainers and shall be punishable in the same manner as an escape from such institution. [Formerly 134.635]

 

      135.785 Surrender of custody under ORS 135.775. The official in charge of a Department of Corrections institution in this state shall give over the person of any inmate thereof whenever so required by the operation of the Agreement on Detainers. [Formerly 134.645; 1987 c.320 §21]

 

      135.787 Administrator of agreement; appointment; duties. The Governor may appoint an administrator who shall perform the duties and functions and exercise the powers conferred upon such person by Article VII of the Agreement on Detainers. [Formerly 134.655]

 

      135.789 Notice of request for temporary custody; prisoner’s rights. In order to implement paragraph (a) of Article IV of the Agreement on Detainers, and in furtherance of its purposes, the appropriate authorities having custody of the prisoner shall, promptly upon receipt of the officer’s written request, notify the prisoner and the Governor in writing that a request for temporary custody has been made and such notification shall describe the source and contents of such request. The authorities having custody of the prisoner shall also advise the prisoner in writing of the rights of the prisoner to counsel, to make representations to the Governor within 30 days, and to contest the legality of the delivery of the prisoner. [Formerly 134.665]

 

      135.791 Request for final disposition of detainer from prisoner in another state. When the district attorney of any county shall have received written notice from a prisoner in another state of the prisoner’s request for final disposition to be made of any untried accusatory instrument which is the basis of a detainer against the prisoner, the district attorney promptly shall give written notice to the Governor that such request has been received. The notice to the Governor shall describe the charge pending against the prisoner and shall recite the crime of which the prisoner was convicted in the other state, the sentence imposed and the date the sentence commenced, or so much of such information as may be known to the district attorney. The notice to the Governor shall be accompanied by a summary of the evidence against the prisoner on the untried charge. Within 10 days after receiving the notice and summary of evidence, the Governor shall send written direction to the district attorney either to proceed with prosecution of the prisoner when the prisoner is made available, or to move the court for dismissal of the untried indictment, information or complaint and to remove the detainer against the prisoner. The written direction may be signed by the Governor or by a person authorized by the Governor to perform extradition functions. The decision of the Governor shall be final, and the district attorney shall act as so directed. [1973 c.632 §2]

 

      135.793 Procedure where untried instrument pending against prisoner in another state. Any officer of a jurisdiction in this state in which an untried accusatory instrument is pending against a prisoner in another state, and who desires to have the prisoner returned for trial, shall give written notice and a summary of the evidence against the prisoner to the Governor in the manner provided in ORS 135.791. The Governor shall, within 10 days after receiving the notice and summary, send written direction to such officer either approving or disapproving the return of the prisoner. The direction by the Governor shall be final, and may be signed as provided in ORS 135.791. The officer desiring return of a prisoner shall not seek the court approval provided for in paragraph (a) of Article IV of the Agreement on Detainers prior to receiving approval by the Governor. [1973 c.632 §3]

 

PRETRIAL DISCOVERY

 

      135.805 Applicability; scope of disclosure. (1) The provisions of ORS 135.805 to 135.873 are applicable to all criminal prosecutions in which the charging instrument has been brought in a court of record.

      (2) As used in ORS 135.805 to 135.873, “disclose” means to afford the adverse party an opportunity to inspect or copy the material. [1973 c.836 §213; 1977 c.617 §1]

 

      135.810 [Repealed by 1973 c.836 §358]

 

      135.815 Disclosure to defendant. (1) Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to a represented defendant the following material and information within the possession or control of the district attorney:

      (a) The names and addresses of persons whom the district attorney intends to call as witnesses at any stage of the trial, together with their relevant written or recorded statements or memoranda of any oral statements of such persons.

      (b) Any written or recorded statements or memoranda of any oral statements made by the defendant, or made by a codefendant if the trial is to be a joint one.

      (c) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons which the district attorney intends to offer in evidence at the trial.

      (d) Any books, papers, documents, photographs or tangible objects:

      (A) Which the district attorney intends to offer in evidence at the trial; or

      (B) Which were obtained from or belong to the defendant.

      (e) If actually known to the district attorney, any record of prior criminal convictions of persons whom the district attorney intends to call as witnesses at the trial; and the district attorney shall make a good faith effort to determine if such convictions have occurred.

      (f) All prior convictions of the defendant known to the state that would affect the determination of the defendant’s criminal history for sentencing under rules of the Oregon Criminal Justice Commission.

      (g) Any material or information that tends to:

      (A) Exculpate the defendant;

      (B) Negate or mitigate the defendant’s guilt or punishment; or

      (C) Impeach a person the district attorney intends to call as a witness at the trial.

      (2)(a) The disclosure required by subsection (1)(g) of this section shall occur without delay after arraignment and prior to the entry of any guilty plea pursuant to an agreement with the state. If the existence of the material or information is not known at that time, the disclosure shall be made upon discovery without regard to whether the represented defendant has entered or agreed to enter a guilty plea.

      (b) Nothing in subsection (1)(g) of this section:

      (A) Expands any obligation under a statutory provision or the Oregon or United States Constitution to disclose, or right to disclosure of, personnel or internal affairs files of law enforcement officers.

      (B) Imposes any obligation on the district attorney to provide material or information beyond the obligation imposed by the Oregon and United States Constitutions.

      (3) Except as otherwise provided in ORS 135.855 and 135.873, in prosecutions for violation of ORS 813.010 in which an instrument was used to test a person’s breath, blood or urine to determine the alcoholic content of the person’s blood the district attorney shall disclose to a represented defendant at least the following material and information within the possession or control of the district attorney:

      (a) Any report prepared by a police officer relating to field tests, interviews, observations and other information relating to the charged offense;

      (b) Any report relating to the test results;

      (c) A copy of the form provided to the defendant under ORS 813.100 (3)(b); and

      (d) Any checklist prepared by the operator of the instrument for the test.

      (4)(a) If a defendant is not represented by a lawyer, the district attorney shall disclose to the defendant all of the information described in subsections (1) and (3) of this section except for the personal identifiers of the victim and any witnesses.

      (b) Notwithstanding paragraph (a) of this subsection, the district attorney shall disclose the personal identifiers of the victim and any witnesses if the trial court orders the disclosure. A trial court shall order the district attorney to disclose the personal identifiers of the victim and any witnesses if the trial court finds that:

      (A) The defendant has requested the information; and

      (B)(i) The victim or witness is a business or institution and disclosure of the information would not represent a risk of harm to the victim or witness; or

      (ii) The need for the information cannot reasonably be met by other means.

      (5)(a) Unless authorized by the trial court to disclose the information, a lawyer representing a defendant, or a representative of the lawyer, may not disclose to the defendant personal identifiers of a victim or witness obtained under subsections (1) and (3) of this section.

      (b) The trial court shall order the lawyer, or representative of the lawyer, to disclose to the defendant the personal identifiers of a victim or witness if the court finds that:

      (A) The defendant’s lawyer has requested the district attorney to disclose the information to the defendant;

      (B) The district attorney has refused to disclose the information to the defendant; and

      (C) The need for the information cannot reasonably be met by other means.

      (6) As used in this section:

      (a) “Personal identifiers” means:

      (A) In relation to a witness, the witness’s address, telephone number, Social Security number and date of birth and the identifying number of the witness’s depository account at a financial institution, as defined in ORS 706.008, or credit card account.

      (B) In relation to a victim, the victim’s address, electronic mail address, telephone number, Social Security number, date of birth, any user names or other identifying information associated with the victim’s social media accounts and the identifying number of the victim’s depository account at a financial institution, as defined in ORS 706.008, or credit card account.

      (b) “Representative of the lawyer” has the meaning given that term in ORS 40.225.

      (c) “Represented defendant” means a defendant who is represented by a lawyer in a criminal action.

      (d) “Social media” has the meaning given that term in ORS 659A.330. [1973 c.836 §214; 1989 c.790 §5; 1993 c.469 §2; 1999 c.304 §1; 2005 c.545 §1; 2007 c.581 §1; 2013 c.525 §1; 2017 c.171 §1]

 

      135.820 [Repealed by 1973 c.836 §358]

 

      135.825 Other disclosure to defense; special conditions. Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to the defense:

      (1) The occurrence of a search or seizure; and

      (2) Upon written request by the defense, any relevant material or information obtained thereby, the circumstances of the search or seizure, and the circumstances of the acquisition of any specified statements from the defendant. [1973 c.836 §215; 1999 c.304 §2]

 

      135.830 [Amended by 1973 c.836 §161; renumbered 135.355]

 

      135.835 Disclosure to the state. Except as otherwise provided in ORS 135.855 and 135.873, the defense shall disclose to the district attorney the following material and information within the possession or control of the defense:

      (1) The names and addresses of persons, including the defendant, whom the defense intends to call as witnesses at the trial, together with relevant written or recorded statements or memoranda of any oral statements of such persons other than the defendant.

      (2) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons, that the defense intends to offer in evidence at the trial.

      (3) Any books, papers, documents, photographs or tangible objects that the defense intends to offer in evidence at the trial. [1973 c.836 §216; 1999 c.304 §3]

 

      135.840 [Amended by 1973 c.836 §162; renumbered 135.360]

 

      135.845 Time of disclosure. (1) The obligations to disclose shall be performed as soon as practicable following the filing of an indictment or information in the circuit court or the filing of a complaint or information charging a misdemeanor or violation of a city ordinance. The court may supervise the exercise of discovery to the extent necessary to insure that it proceeds properly and expeditiously.

      (2) If, after complying with the provisions of ORS 135.805 to 135.873 and 135.970, a party finds, either before or during trial, additional material or information which is subject to or covered by these provisions, the party must promptly notify the other party of the additional material or information. [1973 c.836 §217; 1999 c.304 §4]

 

      135.850 [Amended by 1973 c.836 §163; renumbered 135.365]

 

      135.855 Material and information not subject to discovery. (1) The following material and information shall not be subject to discovery under ORS 135.805 to 135.873:

      (a) Work product, legal research, records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the attorneys, peace officers or their agents in connection with the investigation, prosecution or defense of a criminal action.

      (b) The identity of a confidential informant where the identity of the informant is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the defendant. Except as provided in ORS 135.873, disclosure shall not be denied hereunder of the identity of witnesses to be produced at trial.

      (c) Transcripts, recordings or memoranda of testimony of witnesses before the grand jury, except transcripts or recordings of statements made by the defendant.

      (d) Schematics, source codes or software of an instrument that was used to test a person’s breath, blood or urine to determine the alcoholic content of the person’s blood that are not in the actual possession or control of the state.

      (2) When some parts of certain material are discoverable under ORS 135.805 to 135.873 or 135.970, and other parts not discoverable, as much of the material shall be disclosed as is consistent with the provisions thereof. [1973 c.836 §218; 1999 c.304 §5; 2007 c.581 §2]

 

      135.857 Disclosure to victim; conditions. (1) In any criminal prosecution arising from an automobile collision in which the defendant is alleged to have been under the influence of alcohol or drugs, the district attorney prosecuting the action shall make available, upon request, to the victim or victims and to their attorney, or to the survivors of the victim or victims and to their attorney, all reports and information disclosed to the defendant pursuant to ORS 135.805 to 135.873. The reports and information shall be made available at the same time as it is disclosed to the defendant or as soon thereafter as may be practicable after a request is received. The district attorney may impose such conditions as may be reasonable and necessary to prevent the release of the reports and information from interfering with the trial of the defendant. The district attorney may apply to the court for an order requiring any person receiving such reports and information to comply with the conditions of release.

      (2) For the purpose of this section:

      (a) “District attorney” has that meaning given in ORS 131.005.

      (b) “Drug” has that meaning given in ORS 475.005. [1991 c.229 §2]

 

      135.860 [Amended by 1973 c.836 §164; renumbered 135.370]

 

      135.865 Effect of failure to comply with discovery requirements. Upon being apprised of any breach of the duty imposed by the provisions of ORS 135.805 to 135.873 and 135.970, the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate. [1973 c.836 §219; 1999 c.304 §6]

 

      135.870 [Amended by 1971 c.743 §321; repealed by 1973 c.836 §358]

 

      135.873 Protective orders. (1) As used in this section:

      (a) “Local government” has the meaning given that term in ORS 174.116.

      (b) “Sexual offense” includes but is not limited to a sex crime as defined in ORS 163A.005.

      (c) “State government” has the meaning given that term in ORS 174.111.

      (d) “Victim” has the meaning given that term in ORS 131.007.

      (2) Upon a showing of good cause, the court may at any time order that specified disclosures be denied, restricted or deferred, or make such other order as is appropriate.

      (3) Upon request of any party, the court may permit a showing of good cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings.

      (4) If the court enters an order granting relief following a showing in camera, the entire record of the showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal. Except for information or materials subject to an order that has been entered under subsection (5) or (6) of this section, the trial court, in its discretion, may, after the case has been concluded, unseal matters previously sealed.

      (5) Upon the request of a district attorney or the victim, the court shall enter a protective order prohibiting any party to or attorney in, or the agent of a party to or attorney in, criminal proceedings involving a sexual offense, an offense involving the visual or audio recording of sexual conduct by a child or invasion of personal privacy under ORS 163.700 or 163.701 from copying or disseminating any information of a sexually explicit nature including, but not limited to, photographs depicting a person in a state of nudity, photographs of human genitalia, any information of the prior sexual history of the victim and any visual or audio recording of the sexual victimization.

      (6) Upon the request of a district attorney or the victim, unless the court finds good cause to do otherwise, the court shall enter a protective order prohibiting any party to or attorney in, or the agent of a party to or attorney in, criminal proceedings involving a sexual offense, an offense involving the visual or audio recording of sexual conduct by a child or invasion of personal privacy under ORS 163.700 or 163.701 from copying or disseminating a visual or audio recording of the victim describing the victim’s sexual victimization.

      (7) Notwithstanding a protective order entered under subsection (5) or (6) of this section, information or materials described in subsections (5) and (6) may be copied or disseminated for the purpose of:

      (a) Providing discovery;

      (b) Submitting evidence to a grand jury, a court, an agency of state government, a local government or a federal agency for use in judicial or administrative proceedings;

      (c) Having the information or materials examined by an expert witness for the court, the state or any party;

      (d) Providing copies of the information or materials to the parties’ attorneys or agents; or

      (e) Sharing the information or materials with an agency of state government for use in carrying out duties imposed on the agency by statute.

      (8) Upon the request of the victim, the court may order that the victim be provided with a copy of information or materials described in subsections (5) and (6) of this section. [1973 c.836 §220; 2005 c.531 §1; 2009 c.713 §10; 2015 c.645 §6]

 

      135.875 [1969 c.293 §1; renumbered 135.455]

 

      135.880 [Amended by 1973 c.836 §176; renumbered 135.465]

 

DIVERSION

 

(Generally)

 

      135.881 Definitions for ORS 135.881 to 135.901. As used in ORS 135.881 to 135.901:

      (1) “District attorney” has the meaning given that term in ORS 131.005.

      (2) “Diversion” means referral of a defendant in a criminal case to a supervised performance program prior to adjudication.

      (3) “Diversion agreement” means the specification of formal terms and conditions which a defendant must fulfill in order to have the charges against the defendant dismissed.

      (4) “Servicemember” means a person who:

      (a) Is a member of the Armed Forces of the United States, the reserve components of the Armed Forces of the United States or the National Guard; or

      (b)(A) Served as a member of the Armed Forces of the United States, the reserve components of the Armed Forces of the United States or the National Guard; and

      (B) Received an honorable discharge, a general discharge under honorable conditions or a discharge under other than honorable conditions. [1977 c.373 §1; 2010 c.25 §1]

 

      135.886 Requirements for diversion; factors considered. (1) After an accusatory instrument has been filed charging a defendant with commission of a crime other than driving while under the influence of intoxicants as defined in ORS 813.010, and after the district attorney has considered the factors listed in subsection (2) of this section, if it appears to the district attorney that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the district attorney may propose a diversion agreement to the defendant the terms of which are established by the district attorney in conformance with ORS 135.891. A diversion agreement under this section is not available to a defendant charged with the crime of driving while under the influence of intoxicants as defined in ORS 813.010.

      (2) In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider at least the following factors:

      (a) The nature of the offense; however, except as provided in subsection (3) of this section, the offense must not have involved physical injury to another person;

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

      (c) Whether the defendant is a first-time offender; if the offender has previously participated in diversion, according to the certification of the Department of Justice, diversion may not be offered;

      (d) Whether there is a probability that the defendant will cooperate with and benefit from alternative treatment;

      (e) Whether the available program is appropriate to the needs of the offender;

      (f) The impact of diversion upon the community;

      (g) Recommendations, if any, of the involved law enforcement agency;

      (h) Recommendations, if any, of the victim;

      (i) Provisions for restitution; and

      (j) Any mitigating circumstances.

      (3) In determining whether diversion of a defendant who is a servicemember is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider all of the factors listed in subsection (2) of this section, including the nature of the offense, except that diversion may not be offered if the offense:

      (a) Involved serious physical injury to another person;

      (b) Is classified as a Class A or B felony and involved physical injury to another person;

      (c) Is described in ORS 163.365, 163.375, 163.395, 163.405, 163.408, 163.411 or 163.427; or

      (d) Involved domestic violence as defined in ORS 135.230 and, at the time the offense was committed, the defendant was subject to a protective order in favor of the victim of the offense.

      (4) As used in this section:

      (a) “Physical injury” and “serious physical injury” have the meanings given those terms in ORS 161.015.

      (b) “Protective order” means:

      (A) An order issued under ORS 30.866, 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750; or

      (B) A condition of probation, parole or post-prison supervision, or a release agreement under ORS 135.250, that prohibits the defendant from contacting the victim. [1977 c.373 §2; 1981 c.64 §1; 1981 c.803 §2; 1983 c.338 §889; 2010 c.25 §2]

 

      135.890 [Repealed by 1973 c.836 §358]

 

      135.891 Conditions of diversion agreement; dismissal of criminal charges; scope of agreement; program fee. (1) A diversion agreement carries the understanding that if the defendant fulfills the obligations of the program described therein, the criminal charges filed against the defendant will be dismissed with prejudice. It shall include specifically the waiver of the right to a speedy trial. It may include, but is not limited to, admissions by the defendant, stipulation of facts, stipulation that depositions of witnesses may be taken pursuant to ORS 136.080 to 136.100, payment of costs as defined in ORS 135.705, restitution, performance of community service, residence in a halfway house or similar facility, maintenance of gainful employment, and participation in programs offering medical, educational, vocational, social and psychological services, corrective and preventive guidance and other rehabilitative services.

      (2) As a condition of entering into a diversion agreement under ORS 135.881 to 135.901, the defendant must pay a program fee of $100. The court may waive all or part of the fee in cases involving indigent defendants, or may provide for payment of the fee on an installment basis. A fee collected under this subsection in the circuit court shall be deposited by the clerk of the court in the Criminal Fine Account. If the fee is collected in a municipal or justice court, $35 of the fee shall be forwarded by the court to the Department of Revenue for deposit in the Criminal Fine Account, and the remainder of the fee shall be paid to the city or county treasurer. [1977 c.373 §3; 1985 c.710 §5; 2012 c.81 §1]

 

      135.893 Diversion conditions related to medical use of cannabis. (1) As used in this section, “cannabinoid concentrate,” “cannabinoid extract,” “medical cannabinoid product,” “registry identification card” and “usable marijuana” have the meanings given those terms in ORS 475B.791.

      (2) Notwithstanding ORS 135.891, the conditions of diversion of a person who holds a registry identification card and enters into a diversion agreement related to the use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of diversion of a person who enters into a diversion agreement related to prescription drugs. [2016 c.24 §53d]

 

      135.896 Stay of criminal proceedings during period of agreement; limitation on stay; extension of stay. (1) If the district attorney elects to offer diversion in lieu of further criminal proceedings and the defendant, with the advice of counsel, agrees to the terms of the proposed agreement, including a waiver of the right to a speedy trial, the court shall stay further criminal proceedings for a definite period. Except as provided in ORS 135.898 and subsection (2) of this section, the stay shall not exceed 270 days in the case of a defendant charged with commission of a felony, and shall not exceed 180 days in the case of a defendant charged with the commission of a misdemeanor. If the defendant declines diversion, the court shall resume criminal proceedings.

      (2) Prior to the end of the stay of criminal proceedings described in subsection (1) of this section, the defendant may request that the district attorney approve an extension of the stay for a period up to 270 days in the case of a defendant charged with the commission of a felony and up to 180 days in the case of a defendant charged with the commission of a misdemeanor. If the district attorney approves the extension, the district attorney shall notify the court and the court shall order an extension of the stay of criminal proceedings for the approved period of time. [1977 c.373 §4; 2010 c.25 §3; 2015 c.258 §1]

 

      135.898 Diversion agreement involving servicemember charged with domestic violence. When a diversion agreement authorized under ORS 135.886 (3) involves domestic violence as defined in ORS 135.230, in addition to a waiver of the right to a speedy trial, the agreement must require the servicemember to enter a plea of guilty or no contest to each domestic violence offense charged in the accusatory instrument. If the servicemember, with the advice of counsel, agrees to the terms of the agreement and enters a plea of guilty or no contest to each domestic violence offense charged in the accusatory instrument, the court shall stay further criminal proceedings involving the domestic violence offenses for a definite period not to exceed two years. [2010 c.25 §5]

 

      135.900 [Repealed by 1973 c.836 §358]

 

      135.901 Effect of compliance or noncompliance with agreement; effect of partial compliance in subsequent criminal proceedings; record of participation in program. (1) If the district attorney finds at the termination of the diversion period or any time prior thereto that the divertee has failed to fulfill the terms of the diversion agreement, the district attorney shall terminate diversion and the court shall resume criminal proceedings. However, if the former divertee is adjudicated guilty as a result thereof, the court may take into consideration at the time of the sentencing any partially successful fulfillment by such person of the terms of agreement.

      (2) If the district attorney informs the court at the termination of the diversion period that the defendant has fulfilled the terms of the diversion agreement, the court shall dismiss with prejudice the criminal charges filed against the defendant.

      (3) A record of the fact that an individual has participated in diversion shall be forwarded to and kept by the Department of Justice, and shall be made available upon request to any district attorney who subsequently considers diversion of such person. [1977 c.373 §5; 1981 c.64 §2]

 

      135.905 [1987 c.905 §10; 1999 c.59 §27; repealed by 2012 c.81 §7]

 

      135.907 [1989 c.1075 §5; repealed by 2017 c.21 §126]

 

      135.909 [1989 c.1075 §6; 1993 c.13 §2; repealed by 2017 c.21 §126]

 

      135.911 [1989 c.1075 §7; repealed by 2017 c.21 §126]

 

      135.913 [1989 c.1075 §8; repealed by 2017 c.21 §126]

 

      135.915 [1989 c.1075 §9; repealed by 2017 c.21 §126]

 

      135.917 [1989 c.1075 §11; 2009 c.595 §93; repealed by 2017 c.21 §126]

 

      135.919 [1989 c.1075 §10; 2015 c.258 §2; repealed by 2017 c.21 §126]

 

      135.921 [1989 c.1075 §12; 1991 c.460 §19; 1991 c.818 §4; 1993 c.13 §3; 2003 c.737 §§62,63; 2005 c.702 §§73,74,75; 2007 c.71 §34; 2011 c.595 §165; repealed by 2017 c.21 §126]

 

(Bad Check)

 

      135.925 Bad check diversion program; fees. (1) As used in this section, “bad check diversion program” means a program established under subsection (2) of this section.

      (2) A district attorney may establish a bad check diversion program within the office of the district attorney.

      (3) If a district attorney has established a bad check diversion program, upon receipt of a case alleging a violation of ORS 165.065, the district attorney shall determine if the case is appropriate to be referred to the bad check diversion program. In determining whether to refer the case to the bad check diversion program, the district attorney shall consider, in addition to any other factors the district attorney deems appropriate, the following:

      (a) The amount of the bad check;

      (b) Whether the person alleged to have negotiated the bad check has a prior criminal record or has previously participated in a bad check diversion program;

      (c) The number of violations of ORS 165.065 the person is alleged to have committed in the current or prior allegations;

      (d) Whether current charges of violating ORS 165.065 are pending against the person; and

      (e) The strength of the evidence of intent to defraud the victim.

      (4) When a case is referred to the bad check diversion program, the district attorney shall send a notice to the person who is alleged to have violated ORS 165.065. The notice must contain:

      (a) The date and amount of the bad check;

      (b) The name of the payee;

      (c) The date before which the person is required to contact the district attorney, or a person designated by the district attorney, concerning the bad check; and

      (d) The penalty for a violation of ORS 165.065.

      (5) The district attorney may enter into a written agreement with the person alleged to have violated ORS 165.065 to forgo prosecution of the violation if the person agrees to do the following within a six-month period:

      (a) Complete a class conducted by the district attorney, or by a private entity under contract to the district attorney, relating to writing checks;

      (b) Make full restitution to the payee; and

      (c) Pay any collection fee imposed by the district attorney under subsection (6) of this section.

      (6) A district attorney may collect a fee if the district attorney collects and processes a bad check. The amount of the fee may not exceed $35 for each bad check in addition to the actual amount of any bank charge incurred by the victim as a result of the bad check.

      (7) The district attorney may not require a person alleged to have violated ORS 165.065 to make an admission of guilt as a prerequisite to participating in a bad check diversion program.

      (8) The following are not admissible in any civil or criminal action against a person arising from negotiating a bad check:

      (a) A statement, or any information derived from the statement, made by the person in connection with the determination of the person’s eligibility to participate in a bad check diversion program.

      (b) A statement, or any information derived from the statement, made by the person after the person is determined to be eligible to participate in a bad check diversion program.

      (c) A statement, or any information derived from the statement, made by the person while participating in a bad check diversion program.

      (d) Information about the person’s participation in a bad check diversion program.

      (9) A district attorney may not authorize a private entity to use the seal, letterhead or name of the district attorney or district attorney’s office to collect debt, including restitution, pursuant to a bad check diversion program. [2001 c.433 §1; 2013 c.551 §2]

 

      Note: 135.925 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      135.930 [1983 c.487 §1; 1987 c.320 §22; repealed by 1987 c.908 §4]

 

      135.935 [1983 c.487 §2; 1987 c.320 §23; repealed by 1987 c.908 §4]

 

      135.940 [1983 c.487 §3; 1987 c.320 §24; repealed by 1987 c.908 §4]

 

EARLY DISPOSITION PROGRAMS

 

      135.941 Early disposition programs. To effectuate the purposes set out in ORS 135.942, each local public safety coordinating council established under ORS 423.560:

      (1) Shall establish early disposition programs for first-time offenders who have committed a nonperson offense and for persons charged with probation violations. As used in this subsection, “nonperson offense” means an offense other than:

      (a) A Class A or B felony; and

      (b) A person felony or person Class A misdemeanor, as those terms are defined in the rules of the Oregon Criminal Justice Commission.

      (2) May establish early disposition programs for other offenders. [2001 c.635 §6]

 

      Note: 135.941 to 135.949 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      135.942 Purposes of program. The purposes of an early disposition program are to:

      (1) Hold offenders accountable for their actions;

      (2) Ensure a prompt resolution of criminal matters;

      (3) Protect the rights of the public and the offender;

      (4) Maximize use of community resources to provide alternative sanctions for criminal behavior; and

      (5) Reduce the costs to the criminal justice system that are incurred when traditional sanctions are the only option available to district attorneys and courts. [2001 c.635 §7]

 

      Note: See note under 135.941.

 

      135.943 Provisions of program. An early disposition program established under ORS 135.941 must provide, but need not be limited to, the following:

      (1) Written criteria for eligibility to participate in the program.

      (2) Victim notification and appearance.

      (3) A process to ensure legal representation and provision of discovery for offenders who are eligible for the early disposition program.

      (4) Specific evaluation criteria and an evaluation schedule. The evaluation criteria must address, but need not be limited to, the following:

      (a) Cost avoidance;

      (b) Cost savings; and

      (c) Outcomes. [2001 c.635 §8]

 

      Note: See note under 135.941.

 

      135.945 [1983 c.487 §4; 1987 c.320 §25; repealed by 1987 c.908 §4]

 

      135.946 [2001 c.635 §9; repealed by 2005 c.308 §1]

 

      135.948 Availability to probationers. (1)(a) A district attorney may provide an offer and agreed disposition recommendation under an early disposition program established under ORS 135.941 to a probationer at the time of the first appearance of the probationer in court for a probation violation.

      (b) Unless extended by the court, an offer and agreed disposition recommendation made under paragraph (a) of this subsection expire upon completion of the appearance. Except for good cause, a court may not extend an offer and agreed disposition recommendation under this paragraph for more than seven days for a misdemeanor or 21 days for a felony.

      (2) If the court determines that the agreed disposition recommendation is inappropriate in a particular case, the court shall so advise the parties and allow the probationer an opportunity to withdraw the admission. [2001 c.635 §14]

 

      Note: See note under 135.941.

 

      135.949 Other programs authorized. Nothing in ORS 135.941, 135.942, 135.943 and 135.948 or in the amendments to ORS 135.380, 135.385, 135.390 and 135.405 by sections 10 to 13, chapter 635, Oregon Laws 2001, prevents the implementation or continuation of an early disposition program other than one established under ORS 135.941. [2001 c.635 §15]

 

      Note: See note under 135.941.

 

      135.950 [1983 c.487 §5; repealed by 1987 c.908 §4]

 

MEDIATING CRIMINAL OFFENSES

 

      135.951 Authorization; determining when appropriate; exclusions. (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;

      (c) Whether the offender has previously participated in mediation;

      (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 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 ORS 163.187; or

      (b) Offenses that involve sex crimes, as defined in ORS 163A.005. [1995 c.323 §1; 2003 c.577 §6]

 

      Note: 135.951 to 135.959 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      135.953 How mediation may be used. (1) A defendant may participate in mediation as part of a diversion agreement under ORS 135.881 to 135.901.

      (2) A court, including, but not limited to, a justice court, may:

      (a) Authorize, in a pretrial release order, contact between a defendant and a victim as part of mediation between the defendant and the victim;

      (b) Consider mediation as the basis of a compromise of crimes under ORS 135.703; or

      (c) Include participation in mediation as a condition of probation under ORS 137.540.

      (3) A district attorney or city attorney:

      (a) May suspend prosecution of a case referred to mediation and dismiss the charges in the referred case if the defendant successfully completes the terms of the agreement resulting from the mediation; or

      (b) May include, with a defendant, mediation between the defendant and the victim as part of a plea agreement entered into under ORS 135.405.

      (4) A county juvenile department may include mediation between a child and a victim as one of the terms of a formal accountability agreement under ORS 419C.230 or an authorized diversion program under ORS 419C.225.

      (5) The Department of Corrections may use mediation for the purposes of rehabilitation and treatment.

      (6) Mediation may be used in any other appropriate manner in resolving disputes involving criminal matters. [1995 c.323 §2; 2007 c.609 §4]

 

      Note: See note under 135.951.

 

      135.955 Notifying victims and person charged with crime of mediation opportunities. (1) Law enforcement agencies, district attorneys and city attorneys may inform:

      (a) The victim of a crime of:

      (A) Any mediation opportunities that may be available to the victim in the victim’s community, within or as an alternative to the criminal justice system; and

      (B) How to request mediation; and

      (b) A person charged with a crime of:

      (A) Any mediation opportunities that may be available to the person in the person’s community, within or as an alternative to the criminal justice system; and

      (B) How to request mediation.

      (2) No party to a dispute may be compelled to participate in mediation. [1995 c.323 §3]

 

      Note: See note under 135.951.

 

      135.957 Application of ORS 36.220 to 36.238 to mediation of criminal offenses; information to parties. The provisions of ORS 36.220 to 36.238 do not apply to a mediation conducted under ORS 135.951 or 135.953 unless the parties to the mediation enter into a written agreement for confidentiality of the mediation. If the parties enter into a written agreement for confidentiality of the mediation, a court may not receive in evidence in any proceeding any mediation communications or mediation agreement to the extent provided by ORS 36.220 to 36.238. The parties participating in mediation must be informed:

      (1) Of the right to enter into a written agreement concerning confidentiality of the mediation proceedings; and

      (2) That mediation communications or agreements may not be used as an admission of guilt or as evidence against the offender in any adjudicatory proceeding. [1995 c.323 §4; 1997 c.670 §13]

 

      Note: See note under 135.951.

 

      135.959 Authority to contract with dispute resolution programs. A law enforcement agency, city attorney, district attorney, county juvenile department or court may contract with dispute resolution programs to provide mediation services under ORS 135.951 or 135.953. The programs must meet the standards for dispute resolution programs established by the Dean of the University of Oregon School of Law under ORS 36.175. [1995 c.323 §5; 2003 c.791 §§26,26a; 2005 c.817 §5]

 

      Note: See note under 135.951.

 

MISCELLANEOUS

 

      135.970 Information required when victim contacted by defense; deposition of victim; when contact with victim prohibited; effect of threats by defendant. (1) If the victim or a witness requests, the court shall order that the victim’s or witness’s address and phone number not be given to the defendant unless good cause is shown to the court.

      (2) If contacted by the defense or any agent of the defense, the victim must be clearly informed by the defense or other contacting agent, either in person or in writing, of the identity and capacity of the person contacting the victim, that the victim does not have to talk to the defendant’s attorney, or other agents of the defendant, or provide other discovery unless the victim wishes, and that the victim may have a district attorney, assistant attorney general or other attorney or advocate present during any interview or other contact.

      (3) A victim may not be required to be interviewed or deposed by or give discovery to the defendant, the defendant’s attorney or any agent of the defense unless the victim consents. This subsection does not prohibit the defendant from:

      (a) Subpoenaing or examining the victim at trial or in a pretrial proceeding when the purpose is other than for discovery; or

      (b) Subpoenaing books, papers or documents as provided in ORS 136.580.

      (4)(a) Any pretrial release order must prohibit any contact with the victim, either directly or indirectly, unless specifically authorized by the court having jurisdiction over the criminal charge. This subsection shall not limit contact by the defense attorney, or an agent of the defense attorney, other than the defendant, in the manner set forth in subsection (2) of this section.

      (b) If a victim notifies the district attorney that the defendant, either directly or indirectly, threatened or intimidated the victim, the district attorney shall notify the court with jurisdiction over the criminal matter and the defense attorney. If the defendant is not in custody and the court finds there is probable cause to believe the victim has been threatened or intimidated by the defendant, either directly or indirectly, the court shall immediately issue an order to show cause why defendant’s release status should not be revoked. After conducting such hearing as it deems appropriate, if the court finds that the victim has been threatened or intimidated by the defendant, either directly or indirectly, the defendant’s release status shall be revoked and the defendant shall be held in custody with a security amount set in an amount sufficient to ensure the safety of the victim and the community.

      (5) As used in this section, “victim” means the person or persons who have suffered financial, social, psychological or physical harm as a result of a crime against the person or a third person and includes, in the case of a homicide or abuse of corpse in any degree, a member of the immediate family of the decedent and, in the case of a minor victim, the legal guardian of the minor. In no event shall the criminal defendant be considered a victim. [1987 c.2 §3; 1997 c.313 §7; 1999 c.1051 §251; 2013 c.144 §1]

 

      135.973 Medication use by specialty court entrant. (1) As used in this section, “specialty court” has the meaning given that term in ORS 137.680.

      (2) An individual may not be denied entry into a specialty court in this state solely for the reason that the individual is taking, or intends to take, medication prescribed by a licensed health care practitioner for the treatment of drug abuse or dependency. [2017 c.683 §6]

 

      Note: 135.973 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      135.975 [1987 c.475 §2; repealed by 1989 c.790 §74]

 

      135.980 Rehabilitative programs directory; compilation; availability. (1) The Director of the Department of Corrections shall maintain a directory of public and private rehabilitative programs known and available to corrections agencies of the state and of each county. For purposes of this subsection, “rehabilitative program” means a planned activity, in a custodial or noncustodial context, designed and implemented to treat drug or alcohol abuse, to prevent criminal sexual behavior, to modify a propensity to commit crimes against persons or property or to achieve restitution for losses caused by an offender and includes programs that employ the device of mediation between the victim and offender. Rehabilitative programs included in the directory that are designed and implemented to treat drug or alcohol abuse must meet minimum standards adopted by the Oregon Health Authority under ORS 430.357. The director shall include:

      (a) The name, address and telephone number of the program and the identity of its director or other principal contact;

      (b) The geographical jurisdiction of the program;

      (c) The types of offenders that the program claims to be able to serve and the criteria that the program applies in selecting or soliciting cases;

      (d) The claims of the program regarding its effectiveness in reducing recidivism, achieving restitution or otherwise serving correctional objectives;

      (e) An assessment by the relevant corrections agency of the actual effectiveness of the program; and

      (f) The capacity of the program for new cases.

      (2) The Director of the Department of Corrections shall make the directory available to the Oregon Criminal Justice Commission and to judges in a form that will allow sentencing judges to determine what rehabilitative programs are appropriate and available to the offender during any period of probation, imprisonment or local incarceration and post-prison supervision. The Director of the Department of Corrections shall also make the directory available to its employees who prepare presentence reports and proposed release plans for submission to the State Board of Parole and Post-Prison Supervision.

      (3) The directory shall be updated as frequently as is practical, but no less often than every six months. [1989 c.790 §7a; 2011 c.673 §4]

 

      Note: 135.980 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

PENALTIES

 

      135.990 Penalties. Violation of ORS 135.155 is punishable as a contempt by the court having jurisdiction of the crime charged against the defendant. [Formerly 133.990]

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