Chapter 635 Oregon Laws 2001

AN ACT

SB 133

Relating to crime; creating new provisions; amending ORS 135.380, 135.385, 135.390 and 135.405; and declaring an emergency.

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

SECTION 1. As used in this section and sections 2 and 3 of this 2001 Act:

(1) “Body armor” means any clothing or equipment designed in whole or in part to minimize the risk of injury from a deadly weapon.

(2) “Deadly weapon” has the meaning given that term in ORS 161.015.

(3) “Misdemeanor involving violence” has the meaning given that term in ORS 166.470.

SECTION 2. (1) A person commits the crime of felon in possession of body armor if the person:

(a) Has been convicted of a felony or misdemeanor involving violence under the law of any state or the United States; and

(b) Knowingly is in possession or control of body armor.

(2) Felon in possession of body armor is a Class C felony.

(3) For purposes of subsection (1) of this section, a person who has been found to be within the jurisdiction of a juvenile court for having committed an act that would constitute a felony or misdemeanor involving violence has been convicted of a felony or misdemeanor involving violence.

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

(a) A person who is wearing body armor provided by a peace officer for the person’s safety or protection while the person is being transported or accompanied by a peace officer; or

(b) A person who has been convicted of only one felony under the law of this state or any other state, or who has been convicted of only one felony under the law of the United States, which felony did not involve criminal homicide, as defined in ORS 163.005, and who has been discharged from imprisonment, parole or probation for the offense for a period of 15 years prior to the date of the alleged violation of subsection (1) of this section.

(5) It is an affirmative defense to a charge of violating subsection (1) of this section that a protective order or restraining order has been entered to the benefit of the person. The affirmative defense created by this subsection is not available if the person possesses the body armor while committing or attempting to commit a crime.

SECTION 3. (1) A person commits the crime of unlawful possession of body armor if the person, while committing or attempting to commit a felony or misdemeanor involving violence, knowingly:

(a) Wears body armor; and

(b) Possesses a deadly weapon.

(2) Unlawful possession of body armor is a Class B felony.

SECTION 4. Section 5 of this 2001 Act is added to and made a part of ORS chapter 811.

SECTION 5. (1) For the purposes of this section, “recklessly” has the meaning given that term in ORS 161.085.

(2) A person commits the offense of vehicular assault of a bicyclist or pedestrian if:

(a) The person recklessly operates a vehicle upon a highway in a manner that results in contact between the person’s vehicle and a bicycle operated by a person, a person operating a bicycle or a pedestrian; and

(b) The contact causes physical injury to the person operating a bicycle or the pedestrian.

(3) The offense described in this section, vehicular assault of a bicyclist or pedestrian, is a Class A misdemeanor.

SECTION 6. To effectuate the purposes set out in section 7 of this 2001 Act, 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.

SECTION 7. 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.

SECTION 8. An early disposition program established under section 6 of this 2001 Act 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.

SECTION 9. (1) Once each biennium, a local public safety coordinating council or its designee shall submit a report about early disposition programs in the jurisdiction to the Oregon Criminal Justice Commission. The council or designee shall include in the report:

(a) Descriptions of the programs offered;

(b) The number of offenders who were offered participation in the programs;

(c) The number of offenders who entered into the programs;

(d) The number of offenders who successfully completed the programs; and

(e) The amount of costs avoided and saved through use of the programs.

(2) The commission shall compile the reports received under subsection (1) of this section and submit the compilation to the Legislative Assembly.

SECTION 10. ORS 135.405 is amended to read:

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 court-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)(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 section 6 of this 2001 Act.

(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.

SECTION 11. ORS 135.390 is amended to read:

135.390. (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 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.

(4)(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.

SECTION 12. ORS 135.385 is amended to read:

135.385. (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

(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.

SECTION 13. ORS 135.380 is amended to read:

135.380. (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 [with counsel] 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.

SECTION 14. (1)(a) A district attorney may provide an offer and agreed disposition recommendation under an early disposition program established under section 6 of this 2001 Act 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.

SECTION 15. Nothing in sections 6 to 9 and 14 of this 2001 Act or in the amendments to ORS 135.380, 135.385, 135.390 and 135.405 by sections 10 to 13 of this 2001 Act prevents the implementation or continuation of an early disposition program other than one established under section 6 of this 2001 Act.

SECTION 16. (1) For the 2001-2003 biennium, there is created a planning and advisory committee to make recommendations on how to increase family bonding for children who have incarcerated parents.

(2) The planning and advisory committee shall have one representative from each of the following:

(a) The Department of Corrections, appointed by the Director of the Department of Corrections;

(b) The Oregon Youth Authority, appointed by the Director of the Oregon Youth Authority;

(c) The State Court Administrator, appointed by the administrator;

(d) The State Commission on Children and Families, appointed by the staff director of the State Commission on Children and Families;

(e) The Department of Education, appointed by the Superintendent of Public Instruction; and

(f) The Department of Human Services, appointed by the Director of Human Services.

(3) In addition to the representatives listed in subsection (2) of this section, the State Court Administrator and the staff director of the State Commission on Children and Families shall appoint to the planning and advisory committee representatives from:

(a) Local public safety coordinating councils;

(b) Local family law advisory committees;

(c) Local commissions on children and families;

(d) Local public health agencies; and

(e) Research and advocacy groups that are deemed appropriate by the administrator and the staff director.

(4) In making the appointments under subsection (3) of this section, the administrator and the staff director shall ensure that the planning and advisory committee reflects the diversity of communities throughout the state.

(5) The planning and advisory committee members shall jointly designate facilitators for the committee.

(6)(a) The planning and advisory committee shall develop recommendations on how to increase family bonding for children who have parents incarcerated in the state or community corrections systems for the purposes of reducing antisocial behavior and attachment disorder and reducing the intergenerational cycle of criminality.

(b) No later than October 1, 2002, the planning and advisory committee shall submit its recommendations to the appropriate legislative interim committees and to the agencies listed in subsection (2) of this section.

(7) The planning and advisory committee may organize county implementation teams to implement the recommendations of the planning and advisory committee for family bonding strategies for children who have parents incarcerated in the state or community corrections systems. The teams may include representatives from local public safety coordinating councils, local family law advisory committees, local commissions on children and families, local public health agencies, community corrections systems and the Department of Human Services.

(8) A member of the planning and advisory committee shall be entitled to compensation and expenses as provided in ORS 292.495. Claims for expenses incurred in performing functions of the planning and advisory committee shall be paid by the agencies listed in subsection (2) of this section.

(9) The Department of Corrections shall provide staff support for the planning and advisory committee. The agencies listed in subsection (2) of this section shall provide funds to cover other administrative costs of the planning and advisory committee.

SECTION 17. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor June 27, 2001

Filed in the office of Secretary of State June 27, 2001

Effective date June 27, 2001

__________