Chapter 870 Oregon Laws 2001

AN ACT

HB 2918

Relating to crime; creating new provisions; amending ORS 40.460, 133.069, 138.040, 138.060, 138.071, 138.081, 138.255, 163.547, 163.730, 164.377, 165.800, 166.065, 181.080, 181.360, 419C.085, 419C.106, 475.235 and 475.996; repealing sections 3, 4 and 5, chapter 923, Oregon Laws 1999; appropriating money; and declaring an emergency.

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

SECTION 1. ORS 163.730 is amended to read:

163.730. As used in ORS 30.866 and 163.730 to 163.750, unless the context requires otherwise:

(1) “Alarm” means to cause apprehension or fear resulting from the perception of danger.

(2) “Coerce” means to restrain, compel or dominate by force or threat.

(3) “Contact” includes but is not limited to:

(a) Coming into the visual or physical presence of the other person;

(b) Following the other person;

(c) Waiting outside the home, property, place of work or school of the other person or of a member of that person’s family or household;

(d) Sending or making written or electronic communications in any form to the other person;

(e) Speaking with the other person by any means;

(f) Communicating with the other person through a third person;

(g) Committing a crime against the other person;

(h) Communicating with a third person who has some relationship to the other person with the intent of affecting the third person’s relationship with the other person;

(i) Communicating with business entities with the intent of affecting some right or interest of the other person;

(j) Damaging the other person’s home, property, place of work or school; or

(k) Delivering directly or through a third person any object to the home, property, place of work or school of the other person.

(4) “Household member” means any person residing in the same residence as the victim.

(5) “Immediate family” means father, mother, child, sibling, parent, spouse, grandparent, stepparent and stepchild.

(6) “Law enforcement officer” means any person employed in this state as a police officer by a county sheriff, constable, marshal or municipal or state police agency.

(7) “Repeated” means two or more times.

(8) “School” means a public or private institution of learning or a child care facility.

SECTION 2. ORS 166.065 is amended to read:

166.065. (1) A person commits the crime of harassment if the person intentionally:

(a) Harasses or annoys another person by:

(A) Subjecting such other person to offensive physical contact; or

(B) Publicly insulting such other person by abusive words or gestures in a manner intended and likely to provoke a violent response;

(b) Subjects another to alarm by conveying a false report, known by the conveyor to be false, concerning death or serious physical injury to a person, which report reasonably would be expected to cause alarm; or

(c) Subjects another to alarm by conveying a telephonic, electronic or written threat to inflict serious physical injury on that person or to commit a felony involving the person or property of that person or any member of that person’s family, which threat reasonably would be expected to cause alarm.

(2) A person is criminally liable for harassment if the person knowingly permits any telephone or electronic device under the person’s control to be used in violation of subsection (1) of this section.

(3) Harassment is a Class B misdemeanor.

(4) Notwithstanding subsection (3) of this section, harassment is a Class A misdemeanor if a person violates subsection (1) of this section by subjecting another person to offensive physical contact and the offensive physical contact consists of touching the sexual or other intimate parts of the other person.

SECTION 3. ORS 165.800 is amended to read:

165.800. (1) A person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person’s own use the personal identification of another person.

(2) Identity theft is a Class C felony.

(3) It is an affirmative defense to violating subsection (1) of this section that the person charged with the offense:

(a) Was under 21 years of age at the time of committing the offense and the person used the personal identification of another person solely for the purpose of purchasing alcohol;

(b) Was under 18 years of age at the time of committing the offense and the person used the personal identification of another person solely for the purpose of purchasing tobacco products; or

(c) Used the personal identification of another person solely for the purpose of misrepresenting the person’s age to gain access to a:

(A) Place the access to which is restricted based on age; or

(B) Benefit based on age.

(4) As used in this section:

(a) “Another person” means a real or imaginary person.

(b) “Personal identification” includes, but is not limited to, any written document or electronic data that does, or purports to, provide information concerning:

(A) A person’s name, address or telephone number;

(B) A person’s driving privileges;

(D) A person’s citizenship status or alien identification number;

(E) A person’s employment status, employer or place of employment;

(F) The identification number assigned to a person by a person’s employer;

(G) The maiden name of a person or a person’s mother;

(H) The identifying number of a person’s depository account at a financial institution, as defined in ORS 706.008, or a credit card account;

(I) A person’s signature or a copy of a person’s signature;

(J) A person’s electronic mail name, electronic mail signature, electronic mail address or electronic mail account;

(K) A person’s photograph;

(L) A person’s date of birth; and

(M) A person’s personal identification number.

SECTION 4. ORS 138.060 is amended to read:

138.060. (1) The state may take an appeal from the circuit court to the Court of Appeals from:

[(1)] (a) An order made prior to trial dismissing or setting aside the accusatory instrument;

[(2)] (b) An order arresting the judgment;

[(3)] (c) An order made prior to trial suppressing evidence;

[(4)] (d) An order made prior to trial for the return or restoration of things seized;

[(5)] (e) A judgment of conviction based on the sentence as provided in ORS 138.222;

[(6)] (f) An order in a probation revocation hearing finding that a defendant who was sentenced to probation under ORS 137.712 has not violated a condition of probation by committing a new crime;

[(7)] (g) An order made after a guilty finding dismissing or setting aside the accusatory instrument;

[(8)] (h) An order granting a new trial; or

[(9)] (i) An order dismissing an accusatory instrument under ORS 136.130.

(2) Notwithstanding subsection (1) of this section, when the state chooses to appeal from an order listed in paragraph (a) or (b) of this subsection, the state shall take the appeal from the circuit court to the Supreme Court if the defendant is charged with murder or aggravated murder. The orders to which this subsection applies are:

(a) An order made prior to trial suppressing evidence; and

(b) An order made prior to trial dismissing or setting aside the accusatory instrument.

(3) In an appeal by the state under subsection (2) of this section, the Supreme Court shall issue its decision no later than one year after the date of oral argument or, if the appeal is not orally argued, the date that the State Court Administrator delivers the briefs to the Supreme Court for decision. Failure of the Supreme Court to issue a decision within one year is not a ground for dismissal of the appeal.

SECTION 4a. Section 4b of this 2001 Act is added to and made a part of ORS 138.010 to 138.310.

SECTION 4b. (1) When a defendant is charged with a felony and is in custody pending an appeal under ORS 138.060 (1)(a) or (c), the Court of Appeals and the Supreme Court shall decide the appeal within the time limits prescribed by this section.

(2)(a) Pursuant to rules adopted by the Court of Appeals, the Court of Appeals shall ensure that the appeal is fully briefed no later than 90 days after the date the transcript is settled under ORS 19.370.

(b) Notwithstanding paragraph (a) of this subsection, the Court of Appeals may allow more than 90 days after the transcript is settled to fully brief the appeal if it determines that the ends of justice served by allowing more time outweigh the best interests of the public, the parties and the victim of the crime.

(3) The Court of Appeals shall decide the appeal no later than 180 days after the date of oral argument or, if the appeal is not orally argued, the date that the State Court Administrator delivers the briefs to the Court of Appeals for decision. Any reasonable period of delay incurred by the Court of Appeals on its own motion or at the request of one of the parties is excluded from the 180-day period within which the Court of Appeals is required to issue a decision if the Court of Appeals determines that the ends of justice served by a decision on a later date outweigh the best interests of the public, the parties and the victim of the crime.

(4)(a) In determining whether to allow more than 90 days after the transcript is settled to fully brief the appeal or more than 180 days after oral argument or delivery of the briefs to decide the appeal, the Court of Appeals shall consider whether:

(A) The appeal is unusually complex or presents novel questions of law so that the prescribed time limit is unreasonable; and

(B) The failure to extend the time limit would likely result in a miscarriage of justice.

(b) If the Court of Appeals decides to allow additional time to fully brief the appeal or to decide the appeal, the Court of Appeals shall state the reasons for doing so in writing and shall serve a copy of the writing on the parties.

(5) If the Supreme Court allows review of a decision of the Court of Appeals on an appeal described in subsection (1) of this section, the Supreme Court shall issue its decision on review no later than 180 days after the date of oral argument or, if the review is not orally argued, the date the State Court Administrator delivers the briefs to the Supreme Court for decision. Any reasonable period of delay incurred by the Supreme Court on its own motion or at the request of one of the parties is excluded from the 180-day period within which the Supreme Court is required to issue a decision if the Supreme Court determines that the ends of justice served by a decision on a later date outweigh the best interests of the public, the parties and the victim of the crime.

(6)(a) In determining whether to allow more than 180 days after oral argument or delivery of the briefs to decide the review, the Supreme Court shall consider whether:

(A) The review is unusually complex or presents novel questions of law so that the prescribed time limit is unreasonable; and

(B) The failure to extend the time limit would likely result in a miscarriage of justice.

(b) If the Supreme Court decides to allow additional time to decide the review, the Supreme Court shall state the reasons for doing so in writing and shall serve a copy of the writing on the parties.

(7) Failure of the Court of Appeals or the Supreme Court to decide an appeal or review within the time limits prescribed in this section is not a ground for dismissal of the appeal or review.

(8) Any delay sought or acquiesced in by the defendant does not count against the state with respect to any statutory or constitutional right of the defendant to a speedy trial.

SECTION 4c. ORS 138.255 is amended to read:

138.255. (1) An appeal to the Court of Appeals may be certified to the Supreme Court, and the Supreme Court may accept or deny acceptance of the certified appeal, as provided in ORS 19.405.

(2) At any time before the State Court Administrator sends notice to the parties of the date of oral argument or, if the case is not orally argued, the date that the State Court Administrator delivers the briefs to the Court of Appeals for decision, a party may request the Supreme Court to take and decide an appeal taken by the state under ORS 138.060 (1). In determining whether to accept an appeal under this subsection, the Supreme Court shall consider, in addition to other factors that the Supreme Court deems appropriate:

(a) Whether the defendant is charged with a Class A felony listed under ORS 137.700 or 137.707;

(b) The extent to which the case presents speedy trial concerns; and

(c) The extent to which the case presents a significant issue of law.

SECTION 5. ORS 40.460 is amended to read:

40.460. The following are not excluded by ORS 40.455, even though the declarant is available as a witness:

(1) (Reserved.)

(2) A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) A statement of the declarant’s then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain or bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will.

(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause of external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Evidence that a matter is not included in the memoranda, reports, records, or data compilations, and in any form, kept in accordance with the provisions of subsection (6) of this section, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:

(a) The activities of the office or agency;

(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding however, in criminal cases matters observed by police officers and other law enforcement personnel; or

(c) In civil actions and proceedings and against the government in criminal cases, factual findings, resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(9) Records or data compilations, in any form, of births, fetal deaths, deaths or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with ORS 40.510, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(11) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) A statement of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Statements of facts concerning personal or family history contained in family bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) The record of a document purporting to establish or affect an interest in property, as proof of content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in a document in existence 20 years or more the authenticity of which is established.

(17) Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) (Reserved.)

(18a)(a) A complaint of sexual misconduct or complaint of abuse as defined in ORS 107.705 or 419B.005 made by the witness after the commission of the alleged misconduct or abuse at issue. Except as provided in paragraph (b) of this subsection, such evidence must be confined to the fact that the complaint was made.

(b) A statement made by a person concerning an act of abuse, as defined in ORS 107.705 or 419B.005, is not excluded by ORS 40.455 if the declarant either testifies at the proceeding and is subject to cross-examination or was chronologically or mentally under 12 years of age at the time the statement was made and is unavailable as a witness. However, if a declarant is unavailable, the statement may be admitted in evidence only if the proponent establishes that the time, content and circumstances of the statement provide indicia of reliability, and in a criminal trial that there is corroborative evidence of the act of abuse and of the alleged perpetrator’s opportunity to participate in the conduct and that the statement possesses indicia of reliability as is constitutionally required to be admitted. No statement may be admitted under this paragraph unless the proponent of the statement makes known to the adverse party the proponent’s intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown. For purposes of this paragraph, in addition to those situations described in ORS 40.465 (1), the declarant shall be considered “unavailable” if the declarant has a substantial lack of memory of the subject matter of the statement, is presently incompetent to testify, is unable to communicate about the abuse or sexual conduct because of fear or other similar reason or is substantially likely, as established by expert testimony, to suffer lasting severe emotional trauma from testifying. Unless otherwise agreed by the parties, the court shall examine the declarant in chambers and on the record or outside the presence of the jury and on the record. The examination shall be conducted immediately prior to the commencement of the trial in the presence of the attorney and the legal guardian or other suitable adult as designated by the court. If the declarant is found to be unavailable, the court shall then determine the admissibility of the evidence. The determinations shall be appealable under ORS 138.060 [(3)] (1)(c) or (2)(a). The purpose of the examination shall be to aid the court in making its findings regarding the availability of the declarant as a witness and the reliability of the statement of the declarant. In determining whether a statement possesses indicia of reliability under this paragraph, the court may consider, but is not limited to, the following factors:

(A) The personal knowledge of the declarant of the event;

(B) The age and maturity of the declarant or extent of disability if the declarant is a person with developmental disabilities;

(C) Certainty that the statement was made, including the credibility of the person testifying about the statement and any motive the person may have to falsify or distort the statement;

(D) Any apparent motive the declarant may have to falsify or distort the event, including bias, corruption or coercion;

(E) The timing of the statement of the declarant;

(F) Whether more than one person heard the statement;

(G) Whether the declarant was suffering pain or distress when making the statement;

(H) Whether the declarant’s young age or disability makes it unlikely that the declarant fabricated a statement that represents a graphic, detailed account beyond the knowledge and experience of the declarant;

(I) Whether the statement has internal consistency or coherence and uses terminology appropriate to the declarant’s age or to the extent of the declarant’s disability if the declarant is a person with developmental disabilities;

(J) Whether the statement is spontaneous or directly responsive to questions; and

(K) Whether the statement was elicited by leading questions.

(d) This subsection applies to a child declarant or an adult declarant with developmental disabilities. For the purposes of this subsection, “developmental disabilities” means any disability attributable to mental retardation, autism, cerebral palsy, epilepsy or other disabling neurological condition that requires training or support similar to that required by persons with mental retardation, if either of the following apply:

(A) The disability originates before the person attains 22 years of age, or if the disability is attributable to mental retardation the condition is manifested before the person attains 18 years of age, the disability can be expected to continue indefinitely, and the disability constitutes a substantial handicap to the ability of the person to function in society.

(B) The disability results in a significant subaverage general intellectual functioning with concurrent deficits in adaptive behavior that are manifested during the developmental period.

(19) Reputation among members of a person’s family by blood, adoption or marriage, or among a person’s associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood or adoption or marriage, ancestry, or other similar fact of a person’s personal or family history.

(20) Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.

(21) Reputation of a person’s character among associates of the person or in the community.

(22) Evidence of a final judgment, entered after a trial or upon a plea of guilty, but not upon a plea of no contest, adjudging a person guilty of a crime other than a traffic offense, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(24) Notwithstanding the limits contained in subsection (18a) of this section, in any proceeding in which a child under 12 years of age at the time of trial, or a person with developmental disabilities as described in subsection (18a)(d) of this section, may be called as a witness to testify concerning an act of abuse, as defined in ORS 419B.005, or sexual conduct performed with or on the child or person with developmental disabilities by another, the testimony of the child or person with developmental disabilities taken by contemporaneous examination and cross-examination in another place under the supervision of the trial judge and communicated to the courtroom by closed circuit television or other audiovisual means. Testimony will be allowed as provided in this subsection only if the court finds that there is a substantial likelihood, established by expert testimony, that the child or person with developmental disabilities will suffer severe emotional or psychological harm if required to testify in open court. If the court makes such a finding, the court, on motion of a party, the child, the person with developmental disabilities or the court in a civil proceeding, or on motion of the district attorney, the child or the person with developmental disabilities in a criminal or juvenile proceeding, may order that the testimony of the child or the person with developmental disabilities be taken as described in this subsection. Only the judge, the attorneys for the parties, the parties, individuals necessary to operate the equipment and any individual the court finds would contribute to the welfare and well-being of the child or person with developmental disabilities may be present during the testimony of the child or person with developmental disabilities.

(25)(a) Any document containing data prepared or recorded by the Oregon State Police pursuant to ORS 813.160 (1)(b)(C) or (E), or pursuant to ORS 475.235 (3), if the document is produced by data retrieval from the Law Enforcement Data System or other computer system maintained and operated by the Oregon State Police, and the person retrieving the data attests that the information was retrieved directly from the system and that the document accurately reflects the data retrieved.

(b) Any document containing data prepared or recorded by the Oregon State Police that is produced by data retrieval from the Law Enforcement Data System or other computer system maintained and operated by the Oregon State Police and that is electronically transmitted through public or private computer networks under a digital signature adopted by the Oregon State Police pursuant to ORS 192.825 to 192.855 if the person receiving the data attests that the document accurately reflects the data received.

(c) Notwithstanding any statute or rule to the contrary, in any criminal case in which documents are introduced under the provisions of this subsection, the defendant may subpoena the [criminalist] analyst, as defined in ORS 475.235 (5), or other person that generated or keeps the original document for the purpose of testifying at the preliminary hearing and trial of the issue. Except as provided in ORS 44.550 to 44.566, no charge shall be made to the defendant for the appearance of the [criminalist] analyst or other person.

(26)(a) A statement that purports to narrate, describe, report or explain an incident of domestic violence, as defined in ORS 135.230, made by a victim of the domestic violence within 24 hours after the incident occurred, if the statement:

(A) Was recorded, either electronically or in writing, or was made to a peace officer as defined in ORS 161.015, corrections officer, youth corrections officer, parole and probation officer, emergency medical technician or firefighter; and

(B) Has sufficient indicia of reliability.

(b) In determining whether a statement has sufficient indicia of reliability under paragraph (a) of this subsection, the court shall consider all circumstances surrounding the statement. The court may consider, but is not limited to, the following factors in determining whether a statement has sufficient indicia of reliability:

(A) The personal knowledge of the declarant.

(B) Whether the statement is corroborated by evidence other than statements that are subject to admission only pursuant to this subsection.

(D) Whether the statement was elicited by leading questions.

(E) Subsequent statements made by the declarant. Recantation by a declarant is not sufficient reason for denying admission of a statement under this subsection in the absence of other factors indicating unreliability.

(27)(a) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:

(A) The statement is relevant;

(B) The statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts; and

(C) The general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence.

(b) A statement may not be admitted under this subsection unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that such statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it.

SECTION 6. ORS 138.040 is amended to read:

138.040. Except as provided under ORS 138.050, the defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 in a circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060 [(3)] (1)(c) or (2)(a). The following apply upon such appeal or cross-appeal:

(1) The appellate court may review:

(a) Any decision of the court in an intermediate order or proceeding.

(b) Any disposition described under ORS 138.053 as to whether it:

(A) Exceeds the maximum allowable by law; or

(B) Is unconstitutionally cruel and unusual.

(2) If the appellate court determines the disposition imposed exceeds the maximum allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the disposition that should be imposed.

SECTION 7. ORS 138.071 is amended to read:

138.071. (1) Except as provided in subsections (2), (3) and (4) of this section, the notice of appeal shall be served and filed not later than 30 days after the judgment or order appealed from was entered in the register.

(2) If a motion for new trial or motion in arrest of judgment is served and filed the notice of appeal shall be served and filed within 30 days from the earlier of the following dates:

(a) The date of entry of the order disposing of the motion; or

(b) The date on which the motion is deemed denied, as provided in ORS 136.535.

(3) A defendant cross-appealing shall serve and file the notice of cross-appeal within 10 days of the expiration of the time allowed in subsection (1) of this section.

(4)(a) Upon motion of a defendant, the Court of Appeals shall grant the defendant leave to file a notice of appeal after the time limits described in subsections (1) to (3) of this section if:

(A) The defendant, by clear and convincing evidence, shows that the failure to file a timely notice of appeal is not attributable to the defendant personally; and

(B) The defendant shows a colorable claim of error in the proceeding from which the appeal is taken.

(b) A defendant shall not be entitled to relief under this subsection for failure to file timely notice of cross-appeal when the state appeals pursuant to ORS 138.060 [(3)] (1)(c) or (2)(a).

(c) The request for leave to file a notice of appeal after the time limits prescribed in subsections (1) to (3) of this section shall be filed no later than 90 days after entry of the order or judgment being appealed and shall be accompanied by the notice of appeal sought to be filed. A request for leave under this subsection may be filed by mail and shall be deemed filed on the date of mailing if the request is mailed as provided in ORS 19.260.

(d) The court shall not grant relief under this subsection unless the state has notice and opportunity to respond to the defendant’s request for relief.

(e) The denial of a motion under paragraph (a) of this subsection shall be a bar to post-conviction relief under ORS 138.510 to 138.680 on the same ground, unless the court provides otherwise.

SECTION 8. ORS 138.081 is amended to read:

138.081. (1) An appeal shall be taken by causing a notice of appeal in the form prescribed by ORS 19.250 to be served:

(a)(A) On the district attorney for the county in which the judgment is entered, when the defendant appeals, or if the appeal is under ORS 221.360 on the plaintiff’s attorney; or

(B) On the attorney of record for the defendant, or if the defendant has no attorney of record, on the defendant, when the state appeals; and

(b) On the trial court transcript coordinator if a transcript is required in connection with the appeal; and

(2)(a) The original of the notice shall be filed with the clerk of the court to which the appeal is made.

(b) Proof of service of the notice of appeal shall be indorsed on or affixed to the original filed with the Court of Appeals or the Supreme Court.

SECTION 9. ORS 475.996 is amended to read:

475.996. (1) A violation of ORS 475.992 shall be classified as crime category 8 of the sentencing guidelines grid of the Oregon Criminal Justice Commission if:

(a) The violation constitutes delivery or manufacture of a controlled substance and involves substantial quantities of a controlled substance. For purposes of this paragraph, the following amounts constitute substantial quantities of the following controlled substances:

(A) Five grams or more of a mixture or substance containing a detectable amount of heroin;

(B) Ten grams or more of a mixture or substance containing a detectable amount of cocaine;

(D) One hundred grams or more of a mixture or substance containing a detectable amount of hashish;

(E) One hundred and fifty grams or more of a mixture or substance containing a detectable amount of marijuana;

(F) Two hundred or more user units of a mixture or substance containing a detectable amount of lysergic acid diethylamide; [or]

(G) Sixty grams or more of a mixture or substance containing a detectable amount of psilocybin or psilocin[.]; or

(H) Five grams or more or 25 or more pills, tablets or capsules of a mixture or substance containing a detectable amount of:

(i) 3,4-methylenedioxyamphetamine;

(ii) 3,4-methylenedioxymethamphetamine; or

(iii) 3,4-methylenedioxy-N-ethylamphetamine.

(b) The violation constitutes possession, delivery or manufacture of a controlled substance and the possession, delivery or manufacture is a commercial drug offense. A possession, delivery or manufacture is a commercial drug offense for purposes of this subsection if it is accompanied by at least three of the following factors:

(A) The delivery was of heroin, cocaine, hashish, marijuana, methamphetamine, lysergic acid diethylamide, psilocybin or psilocin and was for consideration;

(B) The offender was in possession of $300 or more in cash;

(C) The offender was unlawfully in possession of a firearm or other weapon as described in ORS 166.270 (2), or the offender used, attempted to use or threatened to use a deadly or dangerous weapon as defined in ORS 161.015, or the offender was in possession of a firearm or other deadly or dangerous weapon as defined in ORS 161.015 for the purpose of using it in connection with a controlled substance offense;

(D) The offender was in possession of materials being used for the packaging of controlled substances such as scales, wrapping or foil, other than the material being used to contain the substance that is the subject of the offense;

(E) The offender was in possession of drug transaction records or customer lists;

(F) The offender was in possession of stolen property;

(G) Modification of structures by painting, wiring, plumbing or lighting to facilitate a controlled substance offense;

(H) The offender was in possession of manufacturing paraphernalia, including recipes, precursor chemicals, laboratory equipment, lighting, ventilating or power generating equipment;

(I) The offender was using public lands for the manufacture of controlled substances;

(J) The offender had constructed fortifications or had taken security measures with the potential of injuring persons; or

(K) The offender was in possession of controlled substances in an amount greater than:

(i) Three grams or more of a mixture or substance containing a detectable amount of heroin;

(ii) Eight grams or more of a mixture or substance containing a detectable amount of cocaine;

(iii) Eight grams or more of a mixture or substance containing a detectable amount of methamphetamine;

(iv) Eight grams or more of a mixture or substance containing a detectable amount of hashish;

(v) One hundred ten grams or more of a mixture or substance containing a detectable amount of marijuana;

(vi) Twenty or more user units of a mixture or substance containing a detectable amount of lysergic acid diethylamide; [or]

(vii) Ten grams or more of a mixture or substance containing a detectable amount of psilocybin or psilocin; or

(viii) Four grams or more or 20 or more pills, tablets or capsules of a mixture or substance containing a detectable amount of:

(I) 3,4-methylenedioxyamphetamine;

(II) 3,4-methylenedioxymethamphetamine; or

(III) 3,4-methylenedioxy-N-ethylamphetamine.

(2) A violation of ORS 475.992 shall be classified as crime category 6 of the sentencing guidelines grid of the Oregon Criminal Justice Commission if:

(a) The violation constitutes delivery of heroin, cocaine, [or] methamphetamine or 3,4-methylenedioxyamphetamine, 3,4-methylenedioxymethamphetamine or 3,4-methylenedioxy-N-ethylamphetamine and is for consideration.

(b) The violation constitutes possession of:

(A) Five grams or more of a mixture or substance containing a detectable amount of heroin;

(B) Ten grams or more of a mixture or substance containing a detectable amount of cocaine;

(D) One hundred grams or more of a mixture or substance containing a detectable amount of hashish;

(E) One hundred fifty grams or more of a mixture or substance containing a detectable amount of marijuana;

(F) Two hundred or more user units of a mixture or substance containing a detectable amount of lysergic acid diethylamide; [or]

(G) Sixty grams or more of a mixture or substance containing a detectable amount of psilocybin or psilocin; or

(H) Five grams or more or 25 or more pills, tablets or capsules of a mixture or substance containing a detectable amount of:

(i) 3,4-methylenedioxyamphetamine;

(ii) 3,4-methylenedioxymethamphetamine; or

(iii) 3,4-methylenedioxy-N-ethylamphetamine.

(3) Any felony violation of ORS 475.992 not contained in subsection (1) or (2) of this section shall be classified as:

(a) Crime category 4 of the sentencing guidelines grid of the Oregon Criminal Justice Commission if the violation involves delivery or manufacture of a controlled substance; or

(b) Crime category 1 of the sentencing guidelines grid of the Oregon Criminal Justice Commission if the violation involves possession of a controlled substance.

(4) In order to prove a commercial drug offense, the state shall plead in the accusatory instrument sufficient factors of a commercial drug offense under subsections (1) and (2) of this section. The state has the burden of proving each factor beyond a reasonable doubt.

SECTION 10. ORS 133.069 is amended to read:

133.069. (1) A criminal citation issued with a form of complaint must contain:

(a) The name of the court at which the cited person is to appear.

(b) The name of the person cited.

(A) The name of the court, the name of the state or of the city or other public body in whose name the action is brought and the name of the defendant.

(B) A statement or designation of the crime that can be readily understood by a person making a reasonable effort to do so and the date, time and place at which the crime is alleged to have been committed.

(C) A form of certificate in which the peace officer must certify that the peace officer has reasonable grounds to believe, and does believe, that the person named in the complaint committed the offense specified in the complaint. A certificate conforming to this subparagraph shall be deemed equivalent to a sworn complaint.

(d) The date on which the citation was issued, and the name of the peace officer who issued the citation.

(e) The date, time and place at which the person cited is to appear in court, and a summons to so appear.

(f) If the arrest was made by a private party, the name of the arresting person.

(2) The district attorney for the county shall review any criminal citation issued with a form of complaint that is to be filed in a circuit or justice court. The review must be done before the complaint is filed.

(3) If the complaint does not conform to the requirements of this section, the court shall set the complaint aside upon motion of the defendant made before entry of a plea. A pretrial ruling on a motion to set aside may be appealed by the state.

(4) A court may amend a complaint at its discretion.

SECTION 11. ORS 163.547 is amended to read:

163.547. (1) A person having custody or control of a child under 16 years of age commits the crime of child neglect in the first degree if the person knowingly leaves the child, or allows the child to stay, in a vehicle where controlled substances are being criminally delivered or manufactured [for consideration or profit] or on premises and in the immediate proximity where controlled substances are criminally delivered or manufactured for consideration or profit. As used in this subsection, “vehicle” and “premises” do not include public places, as defined in ORS 161.015.

(2) Child neglect in the first degree is a Class B felony.

(3) Subsection (1) of this section does not apply if the controlled substance is marijuana and is delivered for no consideration.

SECTION 12. ORS 181.080 is amended to read:

181.080. (1) The Department of State Police may establish [crime detection] forensic laboratories[, to be operated by the department in cooperation with the Oregon Health Sciences University].

[(2) The Oregon Health Sciences University may furnish adequate quarters, heat and light for the laboratory in the buildings of the school at Portland and may assist the personnel of all laboratories with technical advice and assistance.]

[(3)] (2) The laboratories shall furnish service as available to all district attorneys, sheriffs and other peace officers in the state. The services of the laboratories shall also be available to any defendant in a criminal case on order of the court before which the criminal case is pending.

SECTION 13. ORS 181.360 is amended to read:

181.360. The Superintendent of State Police shall appoint:

(1) The director of each [crime detection] forensic laboratory, who shall have charge and supervision over the laboratory under the general supervision of the superintendent.

(2) The assistants necessary for the operation of the laboratories.

SECTION 14. ORS 475.235 is amended to read:

475.235. (1) It is not necessary for the state to negate any exemption or exception in ORS 475.005 to 475.285 and 475.940 to 475.995 in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under ORS 475.005 to 475.285 and 475.940 to 475.995. The burden of proof of any exemption or exception is upon the person claiming it.

(2) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under ORS 475.005 to 475.285 and 475.940 to 475.995, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.

(3) In all prosecutions in which an analysis of a controlled substance or sample was conducted, a certified copy of the analytical report signed by the director of [the] a state police [crime detection] forensic laboratory or the [criminalist] analyst conducting the analysis shall be accepted as prima facie evidence of the results of the analytical findings.

(4) Notwithstanding any statute or rule to the contrary, the defendant may subpoena the [criminalist] analyst to testify at the preliminary hearing and trial of the issue at no cost to the defendant.

(5) As used in this section, “analyst” means a person employed by the Department of State Police to conduct analysis in forensic laboratories established by the department under ORS 181.080.

NOTE: Section 15 was deleted by amendment. Subsequent sections were not renumbered.

SECTION 16. ORS 419C.085 is amended to read:

419C.085. In lieu of taking a youth into custody, a peace officer may issue a citation to a youth for the same offenses and under the same circumstances that a citation may be issued to an adult. Unless the citation is issued for violation of law or ordinance for which an order has been entered pursuant to ORS 419C.370, the citation is returnable to the juvenile court of the county in which the citation is issued. Law enforcement agencies in a county, in consultation with the juvenile court of the county, may develop a form for citations issued pursuant to this section. The peace officer shall send a copy of the citation to the district attorney.

SECTION 17. ORS 419C.106 is amended to read:

419C.106. (1) Except where the youth is taken into custody pursuant to an order of the court, the person taking the youth into custody under ORS 419C.080 and 419C.088 shall promptly file with the court or a counselor a brief written report stating all of the following:

[(1)] (a) The youth’s name, age and address.

[(2)] (b) The name and address of the person having legal or physical custody of the youth.

[(3)] (c) Efforts to notify the person having legal or physical custody of the youth and the results of those efforts.

[(4)] (d) Reasons for and circumstances under which the youth was taken into custody.

[(5)] (e) If the youth is not taken to court, the placement of the youth.

[(6)] (f) If the youth was not released, the reason why the youth was not released.

[(7)] (g) If the youth is not taken to court, why the type of placement was chosen.

(2) The person taking the youth into custody under ORS 419C.080 and 419C.088 shall also send a copy of the report under subsection (1) of this section to the district attorney.

SECTION 18. ORS 164.377 is amended to read:

164.377. (1) As used in this section:

(a) To “access” means to instruct, communicate with, store data in, retrieve data from or otherwise make use of any resources of a computer, computer system or computer network.

(b) “Computer” means, but is not limited to, an electronic, magnetic, optical electrochemical or other high-speed data processing device [which] that performs logical, arithmetic or memory functions by the manipulations of electronic, magnetic or optical signals or impulses, and includes the components of a computer and all input, output, processing, storage, software or communication facilities [which] that are connected or related to such a device in a system or network.

(c) “Computer network” means, but is not limited to, the interconnection of communication lines, including microwave or other means of electronic communication, with a computer through remote terminals or a complex consisting of two or more interconnected computers.

(d) “Computer program” means, but is not limited to, a series of instructions or statements, in a form acceptable to a computer, which permits the functioning of a computer system in a manner designed to provide appropriate products from or usage of such computer system.

(e) “Computer software” means, but is not limited to, computer programs, procedures and associated documentation concerned with the operation of a computer system.

(f) “Computer system” means, but is not limited to, a set of related, connected or unconnected, computer equipment, devices and software. “Computer system” also includes any computer, device or software owned or operated by the Oregon State Lottery or rented, owned or operated by another person or entity under contract to or at the direction of the Oregon State Lottery.

(g) “Data” means a representation of information, knowledge, facts, concepts, computer software, computer programs or instructions. “Data” may be in any form, in storage media, or as stored in the memory of the computer, or in transit, or presented on a display device. “Data” includes, but is not limited to, computer or human readable forms of numbers, text, stored voice, graphics and images.

(h) “Property” includes, but is not limited to, financial instruments, information, including electronically produced data, and computer software and programs in either computer or human readable form, intellectual property and any other tangible or intangible item of value.

(i) “Proprietary information” includes any scientific, technical or commercial information including any design, process, procedure, list of customers, list of suppliers, customers’ records or business code or improvement thereof that is known only to limited individuals within an organization and is used in a business that the organization conducts. The information must have actual or potential commercial value and give the user of the information an opportunity to obtain a business advantage over competitors who do not know or use the information.

(j) “Services” include, but are not limited to, computer time, data processing and storage functions.

(2) Any person commits computer crime who knowingly accesses, attempts to access or uses, or attempts to use, any computer, computer system, computer network or any part thereof for the purpose of:

(a) Devising or executing any scheme or artifice to defraud;

(b) Obtaining money, property or services by means of false or fraudulent pretenses, representations or promises; or

(3) Any person who knowingly and without authorization alters, damages or destroys any computer, computer system, computer network, or any computer software, program, documentation or data contained in such computer, computer system or computer network, commits computer crime.

(4) Any person who knowingly and without authorization uses, accesses or attempts to access any computer, computer system, computer network, or any computer software, program, documentation or data contained in such computer, computer system or computer network, commits computer crime.

(5)(a) A violation of the provisions of subsection (2) or (3) of this section shall be a Class C felony. Except as provided in paragraph (b) of this subsection, a violation of the provisions of subsection (4) of this section shall be a Class A misdemeanor.

(b) Any violation of this section relating to a computer, computer network, computer program, computer software, computer system or data owned or operated by the Oregon State Lottery or rented, owned or operated by another person or entity under contract to or at the direction of the Oregon State Lottery Commission shall be a Class C felony.

SECTION 19. Sections 3 (amending ORS 136.290), 4 (amending ORS 136.295) and 5, chapter 923, Oregon Laws 1999, are repealed.

SECTION 20. ORS 475.996 and 475.999 are added to and made a part of ORS 475.940 to 475.995.

SECTION 21. In addition to and not in lieu of any other appropriation, there is appropriated to the Emergency Board, for the biennium beginning July 1, 2001, out of the General Fund, the amount of $33,545 for allocation to the Department of Corrections, after the April 2002 prison population forecast, for population management issues resulting from implementation of the amendments to ORS 163.547, 165.800 and 475.996 by sections 3, 9 and 11 of this 2001 Act. Any moneys that remain unallocated and unobligated by the Emergency Board on November 1, 2002, become available for any purpose for which the Emergency Board lawfully may allocate funds.

SECTION 22. In addition to and not in lieu of any other appropriation, there is appropriated to the Department of Corrections, for the biennium beginning July 1, 2001, out of the General Fund, the amount of $27,459, which may be expended to cover additional community corrections costs incurred as a result of the implementation of the amendments to ORS 163.547, 165.800 and 475.996 by sections 3, 9 and 11 of this 2001 Act.

SECTION 23. As used in sections 23 to 31 of this 2001 Act:

(1) “Domestic violence” has the meaning given that term in ORS 135.230; and

(2) “Sexual assault” means any unwanted sexual contact as defined in ORS 163.305.

SECTION 24. There is established in the State Treasury, separate and distinct from the General Fund, the Oregon Domestic and Sexual Violence Services Fund. All moneys in the fund are continuously appropriated to the Department of Justice and shall be used by the department to carry out a program of domestic and sexual violence services that:

(1) Provides safety for and assists victims of domestic violence and sexual assault, promotes effective intervention and reduces the incidence of domestic violence and sexual assault;

(2) Advocates for victims and for domestic violence and sexual assault services; and

(3) Promotes and facilitates interagency and interdepartmental cooperation among state agencies, including the Department of Human Services and the Department of State Police, and among different levels of government in this state in the delivery and funding of services.

SECTION 25. (1) If sufficient funds are available in the Oregon Domestic and Sexual Violence Services Fund, the Attorney General or the Attorney General’s designee may make grants from the fund to carry out the plan developed under section 26 of this 2001 Act.

(2) The Attorney General may hire staff necessary to accomplish the purposes of the plan developed under section 26 of this 2001 Act.

(3) In accordance with ORS 183.310 to 183.550, the Attorney General shall adopt rules necessary to carry out the provisions of sections 23 to 31 of this 2001 Act.

SECTION 26. (1) Prior to January 1, 2002, the Department of Justice shall develop a plan for the allocation of funds that are appropriated under section 32 of this 2001 Act in collaboration with:

(a) The Department of Human Services;

(b) The Department of State Police;

(c) The Oregon Coalition Against Domestic and Sexual Violence;

(d) The Governor’s Council on Domestic Violence;

(e) The Attorney General’s Sexual Assault Task Force;

(f) Victims of domestic and sexual violence;

(g) Representatives of county governments and county human services departments;

(h) Representatives of local domestic violence councils;

(i) Representatives of domestic violence victim services providers or advocacy organizations; and

(j) Other interested organizations.

(2) The plan developed under subsection (1) of this section shall:

(a) Set the criteria, procedures and timelines for allocation of funds;

(b) Establish uniform systems for reporting requirements, collecting statistical data and reporting measurable outcomes for programs that receive funding;

(c) Set guidelines for the planning, coordination and delivery of services by programs that receive funding;

(d) Provide a process whereby the Department of Justice may review all findings from data collected from programs that receive funding. If the department conducts a review, the department shall use the information to develop future economic resources and services and to coordinate services; and

(e) Further the purposes set forth in section 24 of this 2001 Act.

SECTION 27. To the extent that funds are available, the Department of Justice may:

(1) Pursue centralized training, technical assistance, policy development and implementation;

(2) Conduct statewide community outreach and public education;

(3) Develop innovative projects based on demonstrated effectiveness that address domestic and sexual violence;

(4) Provide information and policy advice based on current research and demonstrated effectiveness in Oregon and other states, including successful local strategies; and

(5) Compile, analyze and distribute materials to inform and support statewide coordinated planning.

SECTION 28. In administering the Oregon Domestic and Sexual Violence Services Fund, the Department of Justice shall:

(1) Expend no less than 15 percent of moneys distributed under the plan on sexual assault services; and

(2) Expend no more than five percent of the moneys distributed under the plan on administrative costs.

SECTION 29. The Department of Justice, in developing the plan under section 26 of this 2001 Act, shall consider ways to:

(1) Balance funding for intervention, infrastructure and prevention services;

(2) Prioritize services;

(3) Utilize local community plans reflecting local program service needs;

(4) Establish programs and services for victims of both domestic violence and sexual assault;

(5) Establish programs that are culturally specific; and

(6) Ensure that there is a coordinated community response to domestic violence and sexual assault and, to the extent practicable, ensure that domestic violence and sexual assault services are coordinated with other community services.

SECTION 30. (1) After development of the plan described in section 26 of this 2001 Act and presentation of the plan to the appropriate interim legislative committee as required in section 31 of this 2001 Act, there is created an advisory council that shall consist of at least 15, but not more than 20, members. The council shall advise the Department of Justice on the administration of the policies and practices of the domestic and sexual violence services program. Members shall be appointed by and serve at the pleasure of the Attorney General. Membership in the council shall:

(a) Accurately reflect the diversity of the population in Oregon as well as the diversity of individuals needing services;

(b) Be composed of both lay and professionally trained individuals with expertise in domestic violence and sexual assault services;

(c) Include representatives of other state agencies providing services;

(d) Include representatives of professional, civil or other public or private organizations;

(e) Include private citizens interested in service programs; and

(f) Include recipients of assistance or services or their representatives.

(2) Members of the advisory council may not receive compensation for their services. Members of the advisory council other than members employed in full-time public service shall be reimbursed by the Department of Justice for their actual and necessary expenses incurred in the performance of their duties. The reimbursement shall be subject to the provisions of ORS 292.210 to 292.288. Members of the advisory council who are employed in full-time public service may be reimbursed by their employing agencies for their actual and necessary expenses incurred in the performance of their duties.

SECTION 31. The Department of Justice shall present the plan that is developed under section 26 of this 2001 Act to the appropriate legislative interim committees with oversight of domestic and sexual violence services programs and issues of domestic and sexual violence.

SECTION 32. There is appropriated to the Department of Justice, for the biennium beginning July 1, 2001, out of the General Fund, the amount of $2,500,000 for the purpose of carrying out sections 23 to 31 of this 2001 Act.

SECTION 33. Sections 4a, 4b, 19, 20, 21 and 22 of this 2001 Act and the amendments to statutes by sections 1 to 4, 4c, 5 to 14 and 16 to 18 of this 2001 Act become operative on January 1, 2002.

SECTION 34. 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 July 31, 2001

Filed in the office of Secretary of State July 31, 2001

Effective date July 31, 2001

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