71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 3642
Sponsored by Representative WINTERS (at the request of Oregon
District Attorneys Association, Oregon Chiefs of Police
Association, Oregon Sheriffs Association)
CHAPTER ................
AN ACT
Relating to criminal forfeitures; creating new provisions;
amending ORS 133.643, 137.138, 164.864, 164.866, 166.210,
166.250, 166.282, 166.370, 166.410, 166.460, 166.660, 167.350
and 475A.155; and repealing ORS 163.695, 164.876, 165.585,
166.280 and 167.380.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 18 of this 2001 Act,
unless the context requires otherwise:
(1) 'Acquiesce in prohibited conduct' means that a person knew
of the prohibited conduct and knowingly failed to take reasonable
action under the circumstances to terminate or avoid the use of
the property in the course of prohibited conduct. For purposes of
this subsection, 'reasonable action under the circumstances'
includes, but is not limited to:
(a) Reporting the prohibited conduct to a law enforcement
agency;
(b) Commencing action that will assert the rights of the
affiant as to the property interest;
(c) Terminating a rental agreement; or
(d) Seeking an abatement order under the provisions of ORS
105.505 to 105.520 or 105.550 to 105.600, or under any ordinance
or regulation allowing abatement of nuisances.
(2) 'All persons known to have an interest' means:
(a) Any person who has, prior to the time the property is
seized for criminal forfeiture, filed notice of interest with any
public office as may be required or permitted by law to be filed
with respect to the property that has been seized for criminal
forfeiture;
(b) Any person from whose custody the property was seized; or
(c) Any person who has an interest in the property, including
all owners and occupants of the property, whose identity and
address is known or is ascertainable upon diligent inquiry and
whose rights and interest in the property may be affected by the
action.
(3) 'Attorney fees' has the meaning given that term in ORCP 68
A.
(4) 'Financial institution' means any person lawfully
conducting business as:
(a) A financial institution or trust company, as those terms
are defined in ORS 706.008;
Enrolled House Bill 3642 (HB 3642-A) Page 1
(b) A consumer finance company subject to the provisions of ORS
chapter 725;
(c) A mortgage banker or a mortgage broker as those terms are
defined in ORS 59.840, a mortgage servicing company or other
mortgage company;
(d) An officer, agency, department or instrumentality of the
federal government, including but not limited to:
(A) The Secretary of Housing and Urban Development;
(B) The Federal Housing Administration;
(C) The Veterans Administration;
(D) The Farmers Home Administration;
(E) The Federal National Mortgage Association;
(F) The Government National Mortgage Association;
(G) The Federal Home Loan Mortgage Association;
(H) The Federal Agricultural Mortgage Corporation; and
(I) The Small Business Administration;
(e) An agency, department or instrumentality of this state,
including but not limited to:
(A) The Housing and Community Services Department;
(B) Any entity established by the Director of Veterans' Affairs
to carry out the provisions of ORS chapter 407; and
(C) The Public Employees Retirement System;
(f) An agency, department or instrumentality of any
municipality in this state, including but not limited to such
agencies as the Portland Development Commission;
(g) An insurer as defined in ORS 731.106;
(h) A private mortgage insurance company;
(i) A pension plan or fund or other retirement plan; and
(j) A broker-dealer or investment adviser representative as
defined in ORS 59.015.
(5) 'Forfeiture counsel' means an attorney designated to
represent a seizing agency in criminal forfeiture actions or
proceedings.
(6) 'Instrumentality' means property that is used or intended
for use in prohibited conduct or that facilitates prohibited
conduct.
(7) 'Law enforcement agency' means any agency that employs
police officers or prosecutes criminal cases.
(8) 'Official law enforcement use' means a use that may
reasonably be expected to result in the identification,
apprehension or conviction of criminal offenders.
(9) 'Police officer' has the meaning given that term in ORS
133.525.
(10) 'Proceeds of prohibited conduct' means property derived
directly or indirectly from, maintained by or realized through an
act or omission that constitutes prohibited conduct, and includes
any benefit, interest or property of any kind without reduction
for expenses of acquiring or maintaining it or incurred for any
other reason.
(11) 'Prohibited conduct':
(a) For purposes of proceeds, means a felony or a Class A
misdemeanor.
(b) For purposes of instrumentalities, means any crime listed
in section 19 of this 2001 Act.
(12) 'Property' means any interest in anything of value,
including the whole of any lot or tract of land and tangible and
intangible personal property, including currency, instruments or
securities or any other kind of privilege, interest, claim or
right whether due or to become due.
Enrolled House Bill 3642 (HB 3642-A) Page 2
(13) 'Seizing agency' means a law enforcement agency that has
seized property for criminal forfeiture.
(14) 'Weapon' means any instrument of offensive or defensive
combat or anything used, or designed to be used, to destroy,
defeat or injure a person. + }
SECTION 2. { + (1) The Legislative Assembly finds that:
(a) Prohibited conduct is undertaken in the course of
activities that result in, and are facilitated by, the
acquisition, possession or transfer of property subject to
criminal forfeiture under sections 1 to 18 of this 2001 Act;
(b) Transactions involving property subject to criminal
forfeiture under sections 1 to 18 of this 2001 Act escape
taxation;
(c) Perpetrators of crimes should not be allowed to keep the
proceeds and instrumentalities of their crimes;
(d) Governments attempting to respond to prohibited conduct
require additional resources to meet their needs; and
(e) There is a need to provide for the forfeiture of certain
property subject to criminal forfeiture under sections 1 to 18 of
this 2001 Act, to provide for the protection of the rights and
interests of affected persons and to provide for uniformity
throughout this state with respect to the laws of this state that
pertain to the criminal forfeiture of real and personal property
based upon prohibited conduct.
(2) Sections 1 to 18 of this 2001 Act do not impair the right
of any city or county to enact ordinances providing for the
criminal forfeiture of property based upon prohibited conduct if:
(a) The property was used to commit the conduct described in
the ordinances, or constitutes proceeds of the conduct; and
(b) The criminal forfeiture is subject to procedures and
limitations set forth in sections 1 to 18 of this 2001 Act.
(3) Nothing in sections 1 to 18 of this 2001 Act may be
construed to limit or impair any right or remedy that any person
or entity may have under ORS 166.715 to 166.735. Criminal
forfeiture is a remedy separate and apart from any other criminal
penalty and from civil forfeiture or any other civil penalty. + }
SECTION 3. { + Subject to sections 1 to 18 of this 2001 Act,
all right, title and interest in property forfeited under
sections 1 to 18 of this 2001 Act vest in the seizing agency upon
commission of the prohibited conduct. + }
SECTION 4. { + The following are subject to criminal
forfeiture:
(1) All controlled substances that have been manufactured,
distributed, dispensed, possessed or acquired in the course of
prohibited conduct;
(2) All raw materials, products and equipment of any kind that
are used, or intended for use, in providing, manufacturing,
compounding, processing, delivering, importing or exporting any
service or substance in the course of prohibited conduct;
(3) All property that is used, or intended for use, as a
container for property described in subsection (1) or (2) of this
section;
(4) All conveyances, including aircraft, vehicles and vessels,
that are used, or are intended for use, to transport or
facilitate the transportation, sale, receipt, possession or
concealment of property described in subsection (1) or (2) of
this section, and all conveyances, including aircraft, vehicles
and vessels, that are used or intended for use in prohibited
conduct or to facilitate prohibited conduct, except that:
Enrolled House Bill 3642 (HB 3642-A) Page 3
(a) No conveyance used by any person as a common carrier in the
transaction of business as a common carrier is subject to
criminal forfeiture under the provisions of this section unless
the owner or other person in charge of such conveyance was a
consenting party or knew of and acquiesced in the prohibited
conduct; and
(b) No conveyance is subject to criminal forfeiture under the
provisions of this section by reason of any act or omission
established by the owner thereof to have been committed or
omitted by any person other than such owner while such conveyance
was unlawfully in the possession of a person other than the owner
in violation of the criminal laws of the United States or of any
state;
(5) All books, records, computers and research, including
formulae, microfilm, tapes and data that are used or intended for
use to facilitate prohibited conduct;
(6) All moneys, negotiable instruments, balances in deposit or
other accounts, securities or other things of value furnished or
intended to be furnished by any person in the course of
prohibited conduct, all proceeds of or from prohibited conduct,
and all moneys, negotiable instruments, balances in deposit and
other accounts and securities used or intended to be used to
facilitate any prohibited conduct;
(7) All real property, including any right, title and interest
in the whole of any lot or tract of land and any appurtenances or
improvements, that is used or intended to be used to commit or
facilitate the commission of prohibited conduct;
(8) All weapons possessed, used or available for use to
facilitate conduct giving rise to criminal forfeiture;
(9) All property described in this section that is intended for
use in committing or facilitating an attempt to commit a crime as
described in ORS 161.405, a solicitation as described in ORS
161.435 or a conspiracy as described in ORS 161.450; and
(10) All personal property that is used or intended to be used
to commit or facilitate prohibited conduct. + }
SECTION 5. { + (1) A person who delivers property in obedience
to an order or direction to deliver the property under this
section is not liable:
(a) To any person on account of obedience to the order or
direction; or
(b) For any costs incurred on account of any contamination of
the delivered property. This includes, but is not limited to, any
disposal costs for any property forfeited under section 4 of this
2001 Act, any hazardous waste or material, any contraband or any
other contamination contained in property seized under this
section.
(2) In addition to seizures authorized by ORS 133.535, a police
officer may seize property without a court order if the police
officer has probable cause to believe that the property is
subject to criminal forfeiture.
(3) Except as provided in section 6 of this 2001 Act, with
regard to cash or other assets that at the time of seizure are
held in any form of account in a financial institution, if the
property is in whole or in part intangible, the person having
control or custody of the property shall deliver the same over to
the police officer.
(4)(a) A police officer may seize property pursuant to an order
of the court. Forfeiture counsel or a seizing agency may apply
for an ex parte order directing seizure of specified property.
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(b) Application may be made to any judge as defined in ORS
133.525. The application must be supported by one or more
affidavits setting forth the facts and circumstances tending to
show where the objects of the seizure are to be found. The court
shall issue the order upon a finding of probable cause to believe
that the described property is subject to criminal forfeiture.
The order may be set out on the face of a search warrant.
(c) Except as provided in section 6 of this 2001 Act, with
regard to cash or other assets that at the time of seizure are
held in any form of account in a financial institution, if the
property is in whole or in part intangible, the order shall
direct any person having control or custody of the property to
deliver the same over to the seizing agency or to the court to
abide judgment.
(5) Property may be constructively seized by posting notice of
seizure for criminal forfeiture on it or by filing notice of
seizure for criminal forfeiture or notice of pending criminal
forfeiture in the public records that impart constructive notice
of matters relating to such property. A notice that is filed must
include a description of the property that is the subject of the
seizure. Real property, including interests arising out of land
sale contracts, may be seized only upon recording a notice of
seizure containing a legal description of the property in the
mortgage records of the county in which the real property is
located.
(6) Promptly upon seizure, the officer who seized the property
shall make an inventory of the property seized and shall deliver
a receipt embodying the inventory to the person from whose
possession the property is taken or to the person in apparent
control of the property at the time it is seized. If the property
is unoccupied or there is no one present in apparent control, the
officer shall leave the receipt suitably affixed to the property.
If the property is physically removed from the location of
seizure and it is unoccupied or there is no one present in
apparent control, then the officer shall promptly file the
receipt in the public records of the seizing agency. Every
receipt prepared under this subsection shall contain, in addition
to an inventory of the property seized, the following
information:
(a) The identity of the seizing agency; and
(b) The address and telephone number of the office or other
place where the person may obtain further information concerning
the criminal forfeiture.
(7) In the event that property is seized from the possession of
a person who asserts a possessory lien over such property
pursuant to applicable law, notwithstanding any other provision
of law, any lien of the person from whom the property was seized
remains in effect and is enforceable as fully as though the
person had retained possession of the property. + }
SECTION 6. { + (1)(a) Except as otherwise provided in sections
1 to 18 of this 2001 Act, property seized for criminal forfeiture
is not subject to replevin, conveyance, sequestration or
attachment. The seizure of property or the commencement of a
criminal forfeiture proceeding under sections 1 to 18 of this
2001 Act does not abate, impede or in any way delay the
initiation or prosecution of a suit or action by a financial
institution for the possession of seized property in which the
financial institution has or purports to have a lien or security
interest or for the foreclosure of such lien or security
interest. A financial institution may proceed with any suit or
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action involving property in which it has a lien or security
interest even though a seizure has occurred and criminal
forfeiture proceedings have been or will be commenced. If
property that may be subject to criminal forfeiture is sold prior
to the conclusion of the forfeiture proceedings, the sheriff,
trustee or other person who is conducting the sale and who has
actual notice of the forfeiture proceedings shall distribute the
sale proceeds as follows:
(A) To the expenses of the sale;
(B) To the payment of the obligations owed to the foreclosing
financial institution that are secured by the property and to any
other person whose lien or security interest in the property has
been foreclosed in the suit or action in the order determined by
the court; and
(C) The surplus, if any, shall be distributed to the seizing
agency, or to the court in which the forfeiture proceedings are
pending.
(b) The sheriff, trustee or other person who distributes the
sale proceeds as provided in this subsection is not liable to any
person who has or asserts an interest in the property.
(2) Within 30 days following seizure of property for criminal
forfeiture, the seizing agency, in consultation with the district
attorney of the county in which the property was seized for
forfeiture, shall determine whether it will seek the forfeiture
of the property. If the seizing agency elects not to seek
forfeiture, it shall pay all costs and expenses relating to
towing and storage of the property, and shall cause to be
discharged any possessory chattel liens arising under ORS 87.152
to 87.162 that have attached to the property since its seizure
and release the property. The property may be released to a
person other than the person from whose custody or control the
property was taken if the seizing agency or forfeiture counsel
first mails to the last-known addresses of all persons known to
have an interest in the property a notice of intent to release
the property. The notice must specify the person to whom the
property is to be released and must detail the time and place of
the release. An agency that complies with the provisions of this
subsection by paying costs and expenses of towing and storage,
discharging possessory liens, mailing any required notices and
releasing the property is not liable for its actions under this
subsection or for any consequences thereof.
(3) A seizing agency shall, pending criminal forfeiture and
final disposition and subject to the need to retain the property
in any criminal proceeding, provide that property in the physical
custody of the seizing agency be serviced or maintained as may be
reasonably appropriate to preserve the value of the property.
(4) A seizing agency may, pending criminal forfeiture and final
disposition and subject to the need to retain seized property in
any criminal proceeding:
(a) Provide that the seized property be transferred for
criminal forfeiture to any city, county, state or federal agency
with criminal forfeiture authority, provided that no such
transfer may have the effect of diminishing or reducing the
rights of any third party under sections 1 to 18 of this 2001
Act.
(b) Apply to the court for an order providing that the seized
property may be sold, leased, rented or operated in the manner
and on the terms that may be specified in the court's order. The
court shall deny any application unless the sale, lease, rental
or operation of the property will be conducted in a commercially
Enrolled House Bill 3642 (HB 3642-A) Page 6
reasonable manner and will not result in a material reduction of
the property's value. The court may enter an order only:
(A) After notice and opportunity to be heard is provided to all
persons known to have or to claim an interest in the property;
and
(B) With the consent of all persons holding security interests
of record in the property.
(c) Provide that the seized property be removed to a storage
area for safekeeping.
(5) Unless otherwise ordered by the court, the seizing agency
shall hold the proceeds of the sale, leasing, renting or
operation under subsection (4) of this section and the rights of
holders of security interests of record in the property attach to
the proceeds of the sale, leasing, renting or operation in the
same order of priority as interests attached to the property.
(6)(a) Except as provided in paragraph (b) of this subsection
and except for currency with apparent or known intrinsic
collector value, all cash seized for criminal forfeiture,
together with all cash received from the sale, leasing, renting
or operation of the property, must be immediately deposited in an
insured interest-bearing forfeiture trust account or accounts
maintained by the seizing agency exclusively for this purpose.
Cash may be retained as evidence in a criminal proceeding but
must be deposited immediately when the need to retain it as
evidence is discharged.
(b) Notwithstanding paragraph (a) of this subsection, all cash
seized for criminal forfeiture that at the time of seizure is
deposited in any form of account in a financial institution may
remain in the account in the financial institution. From the time
of seizure until the criminal forfeiture proceeding is abandoned,
or until a court ultimately enters a judgment granting or denying
criminal forfeiture or enters a judgment of dismissal, all
deposits except the deposit of interest by the financial
institution, withdrawals or other transactions involving the
account are prohibited, unless approved by the court.
(c) Subject to any court order, interest earned upon cash
deposited in a forfeiture trust account or held in an account in
a financial institution under this subsection must be disbursed
as follows:
(A) If the criminal forfeiture proceeding is abandoned, or if
the court ultimately enters a judgment denying criminal
forfeiture or a judgment of dismissal, the seizing agency shall
pay any interest earned, together with the cash deposited in the
forfeiture trust account in connection with the seizure in
question, to the person from whom it was seized, and the seizing
agency shall release any interest earned, together with the cash
deposited in an account in a financial institution, to the person
from whom it was seized.
(B) If a judgment of criminal forfeiture is entered, but
parties other than the seizing agency establish rights to
portions of the amount that are in the aggregate larger than or
equal to the cash on deposit plus interest earned thereon, the
seizing agency shall disburse the interest, together with the
cash on deposit, to the parties in the order of their priority.
(C) If a judgment of criminal forfeiture is entered and the
total amount arising out of the seizure that is on deposit in the
forfeiture trust account or in an account in a financial
institution, including interest earned on moneys deposited, is
greater than the aggregate amount needed to satisfy the
established interests of security interest holders, lienholders
Enrolled House Bill 3642 (HB 3642-A) Page 7
and other claimants, the seizing agency shall retain the balance
remaining after payment by the seizing agency to parties.
(7) If the property seized for criminal forfeiture consists of
stocks, bonds, promissory notes or other security or evidence of
indebtedness, and the property is held in some form of account in
a financial institution, the property may remain in the account
pending a final decision in the criminal forfeiture proceedings.
Unless otherwise allowed by order of the court, no transactions
involving the account may be permitted other than the deposit or
reinvestment of dividends or other normally recurring payments on
the property. Any accrual to the value of the property during the
pendency of criminal forfeiture proceedings must be disbursed in
the manner provided for the disbursement of interest under
subsection (6) of this section.
(8) When property has been seized for criminal forfeiture or a
notice of criminal forfeiture has been filed, an owner of or
interest holder in the property may file a motion seeking an
order to show cause. The motion must be filed no later than 15
days after the owner or interest holder received notice or actual
knowledge of the seizure, whichever is earlier. At the time a
person files a motion under this subsection, the person must
serve a copy of the motion on the forfeiture counsel and the
defendant, if any. When a motion is filed under this subsection,
the court shall issue an order to show cause to the seizing
agency for a hearing on the sole issue of whether probable cause
for criminal forfeiture of the property exists. If the court
finds that there is no probable cause for criminal forfeiture of
the property, the property seized for criminal forfeiture or
subjected to the notice of criminal forfeiture must be released
pending the outcome of a judicial proceeding under section 12 of
this 2001 Act. As used in this subsection, 'owner' or 'interest
holder' does not include the defendant. + }
SECTION 7. { + (1) Whenever a seizing agency intends to
forfeit any real property under sections 1 to 18 of this 2001
Act, the seizing agency may have recorded by the county clerk or
other recorder of deeds of every county in which any part of the
premises or real property lies a notice of intent to forfeit real
property under ORS 205.246. The notice must contain the legal
description of the real property, the common address of the
property, if any, and the name of the forfeiture counsel. From
the time of recording the notice, and from that time only, the
intent to forfeit is notice to purchasers and holders of
encumbrances of the rights and equities in the premises of the
party filing the notice. The notice must be recorded in the same
book and in the same manner in which mortgages are recorded and
may be discharged in like manner as mortgages are discharged,
either by such party or the attorney signing the notice.
(2) Unless otherwise prescribed by law, a seizing agency
recording a notice of intent to forfeit shall use substantially
the following form: + }
_________________________________________________________________
{ +
NOTICE OF INTENT + }
{ +
TO FORFEIT + }
{ + Pursuant to section 7 of this 2001 Act, the undersigned
states:
Enrolled House Bill 3642 (HB 3642-A) Page 8
That I, __________ do declare that it is my intent to initiate
criminal forfeiture proceedings on the following described real
property: + }
{ + 1. The description of the real property to be affected
is: + }
________________
________________
________________
________________
________________
{ + 2. The common address of the property, if any, is: + }
________________
________________
________________
{ + Dated this __ day of ________, _____. + }
{ + This notice of intent to file forfeiture will expire on
the ___ day of __________, _____, absent future filings. + }
{ + Name of agency seeking forfeiture + }
________________
{ + Name of Forfeiture Counsel + }
________________
{ + Address + }
________________
________________
________________
{ + Telephone Number + }
________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
State of Oregon)
) ss. + }
{ +
County of ___
) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + The foregoing instrument was acknowledged before me
this __ day of ________, _____. + }
__________
{ + Notary Public for Oregon + }
{ + My commission expires _____. + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
{ + (3) The notice of intent to forfeit property expires 30
days after the date of filing absent future filings to
perfect. + }
Enrolled House Bill 3642 (HB 3642-A) Page 9
SECTION 8. { + (1) As soon as practicable after seizure for
criminal forfeiture, the seizing agency shall review the
inventory prepared by the police officer under section 5 of this
2001 Act. Within 15 days after seizure for criminal forfeiture,
the forfeiture counsel shall file a criminal information or an
indictment alleging facts sufficient to establish that the
property is subject to criminal forfeiture. Within 15 days after
seizure for criminal forfeiture, the seizing agency or forfeiture
counsel shall prepare a notice of seizure for criminal forfeiture
containing a copy of the inventory prepared pursuant to section 5
of this 2001 Act, the identity of the person from whom the
property was seized, the name, address and telephone number of
the seizing agency and the address and telephone number of the
office or other place where further information concerning the
seizure and criminal forfeiture may be obtained, and shall make
reasonable efforts to serve the notice of seizure for criminal
forfeiture on all persons, other than the defendant, known to
have an interest in the seized property. A person may be served
as provided in ORCP 7 D except that the notice must also include
information regarding the right to file a claim under subsection
(2) of this section, if applicable, and the deadline for filing
the claim. If the property is cash in the amount of $1,000 or
less or if the fair market value of the property is $1,000 or
less, the seizing agency may publish notice of seizure for
criminal forfeiture in a newspaper as provided in ORCP 7 D(6)(b)
to (d). In all other cases, the seizing agency shall publish
notice of seizure for criminal forfeiture in a newspaper as
provided in ORCP 7 D(6)(b) to (d). The seizing agency shall
provide a copy of the notice, inventory and estimate of value to
the forfeiture counsel.
(2) Except as otherwise provided in section 11 (1) to (3) of
this 2001 Act, if notice of seizure for criminal forfeiture:
(a) Is given in a manner other than by publication, any person,
other than the defendant, claiming an interest in the property
must file a claim with the forfeiture counsel within 21 days
after service of notice of seizure for criminal forfeiture.
(b) Is published, any person, other than the defendant,
claiming an interest in the property must file a claim with the
forfeiture counsel within 21 days after the last publication
date.
(3) An extension for the filing of a claim under subsection (2)
of this section may not be granted. The claim must be signed by
the claimant under penalty of perjury and must set forth all of
the following:
(a) The true name of the claimant;
(b) The address at which the claimant will accept future
mailings from the court or the forfeiture counsel; and
(c) A statement that the claimant has an interest in the seized
property.
(4) If a seizing agency publishes notice of seizure for
criminal forfeiture in a newspaper in the manner provided by
subsection (1) of this section, the agency may include in a
single publication as many notices of criminal forfeiture as the
agency considers convenient. The publication may contain a single
statement of matters from the notices of criminal forfeiture that
are common to all of the notices and that would otherwise result
in needless repetition. The publication must contain for each
notice of criminal forfeiture a separate copy of the inventory
prepared pursuant to section 5 of this 2001 Act and a separate
statement of the identity of the person from whose custody the
Enrolled House Bill 3642 (HB 3642-A) Page 10
property was seized. The published inventory need not contain
estimates of value for the property seized. + }
SECTION 9. { + (1) A person, other than the defendant,
claiming an interest in property seized under sections 1 to 18 of
this 2001 Act may file a petition for an expedited hearing within
15 days after notice of seizure for criminal forfeiture or within
such further time as the court may allow for good cause shown.
(2) A petition for an expedited hearing must contain a claim if
no claim has previously been filed. The petition must reflect
whether the petitioner seeks one or more of the following:
(a) A determination at the hearing that the petitioner is a
bona fide purchaser for value and did not acquiesce in the
prohibited conduct.
(b) An order restoring custody of seized property to the
petitioner during the pendency of the proceedings if the court
finds, by a preponderance of the evidence, that it is probable
that the property will remain available for forfeiture at the
completion of the proceedings and that there is a reasonable
possibility that the petitioner will ultimately prevail in the
proceeding.
(c) Appointment of a receiver.
(3) A person filing a petition under this section shall serve a
copy of the petition on all persons known to have an interest.
Service must be accomplished as provided in ORCP 7 D. Service by
publication is not required prior to an expedited hearing.
(4) The court shall hold a hearing within 15 days after service
of all persons known to have an interest or at such later time as
the court may allow for good cause shown. The hearing is limited
to:
(a) Deciding whether the petitioner can prove that the
petitioner is a bona fide purchaser for value and did not
acquiesce in the prohibited conduct;
(b) Determining whether an order should be entered directing
the return of the seized property to the claimant during the
pendency of the hearing; and
(c) Determining whether an order should be entered directing
the appointment of a receiver to manage property seized pursuant
to sections 1 to 18 of this 2001 Act pending a final
determination as to the disposition of the property, if the
petitioner or the seizing agency requests that order.
(5) The parties to a proceeding under section 12 of this 2001
Act may at any time stipulate to the entry of an order restoring
custody of seized property to a petitioner who claims an interest
in the property. The order must comply with the requirements of
section 10 (1) of this 2001 Act. + }
SECTION 10. { + (1) An order restoring custody to a petitioner
under section 9 of this 2001 Act shall:
(a) Prohibit the petitioner from using the property in unlawful
conduct of any kind, or from allowing the property to be used by
any other person in unlawful conduct;
(b) Require the petitioner to service and maintain the property
as may be reasonably appropriate to preserve the value of the
property; and
(c) Require the petitioner to inform the court of the exact
location of the property at the time of any judicial proceeding
under section 12 of this 2001 Act and to deliver the property to
the seizing agency immediately upon the issuance of a judgment of
criminal forfeiture.
(2) An order restoring custody to a petitioner under section 9
of this 2001 Act may include such other requirements as the court
Enrolled House Bill 3642 (HB 3642-A) Page 11
finds appropriate pending a final determination as to the
disposition of the property.
(3) An order restoring custody to a petitioner under section 9
of this 2001 Act is enforceable by a contempt proceeding brought
on the relation of forfeiture counsel, by a further order
directing the petitioner to deliver the property to the custody
of the seizing agency, by an order awarding to the seizing agency
its reasonably incurred attorney fees, costs and investigative
expenses, and by such other remedies or relief as the court finds
appropriate. + }
SECTION 11. { + (1)(a) A financial institution holding an
interest in property seized under sections 1 to 18 of this 2001
Act shall respond to a notice of seizure for criminal forfeiture
by filing an affidavit with the court establishing that the
financial institution's interest in the property was acquired:
(A) In the regular course of business as a financial
institution;
(B) For valuable consideration;
(C) Without knowledge of the prohibited conduct;
(D) In good faith and without intent to defeat the interest of
any potential seizing agency; and
(E) With respect to personal property, prior to the seizure of
the property, or with respect to real property, recorded prior to
the recording of notice of the seizure of the real property in
the mortgage records of the county in which the real property is
located.
(b) Failure to file an affidavit constitutes a default. The
affidavit must be filed within 30 days from the date of service
under section 8 of this 2001 Act.
(2) Notwithstanding the provisions of subsection (1) of this
section, any person, other than a financial institution, who
transfers or conveys an interest in real property pursuant to a
contract for transfer or conveyance of an interest in real
property as defined in ORS 93.905 and who retains an interest in
the real property, or any successor in interest, may respond to a
notice of seizure for criminal forfeiture by filing an affidavit
with the court establishing that the person:
(a) Received the interest in return for valuable consideration
or by way of devise or intestate succession;
(b) Had no knowledge at the time of transfer or conveyance of
the prohibited conduct;
(c) Acted in good faith and without intent to defeat the
interest of any potential seizing agency;
(d) Recorded the interest in the mortgage records of the county
in which the real property is located prior to the recording of
any notice of intent to seize or notice of seizure; and
(e) Continued to hold the interest without acquiescing in the
prohibited conduct.
(3) The affidavit permitted by subsection (2) of this section
must be filed within 30 days from the date of service under
section 8 of this 2001 Act. Failure to file an affidavit as set
forth in subsection (2) of this section constitutes a default.
(4) In response to an affidavit filed under subsection (2) of
this section, the seizing agency may controvert any or all of the
assertions made in the affidavit. The affidavit of the seizing
agency must be filed with the court within 20 days after the date
the affidavit is filed under subsection (2) of this section. The
transferor, conveyor or successor in interest may respond, within
five days after the filing of the affidavit of the seizing
agency, with a supplemental affidavit limited to the matters
Enrolled House Bill 3642 (HB 3642-A) Page 12
stated in the affidavit of the seizing agency. If the seizing
agency does not file an affidavit within the time allowed, the
transferor, conveyor or successor in interest is considered to be
a financial institution for all purposes under sections 1 to 18
of this 2001 Act.
(5) If the seizing agency files an affidavit under subsection
(4) of this section, the court shall decide the issues raised in
the affidavit in a proceeding under section 12 of this 2001
Act. + }
SECTION 12. { + (1) If a district attorney decides to proceed
with a criminal forfeiture, the district attorney must present
the criminal forfeiture to the grand jury for indictment. The
indictment must allege facts sufficient to establish that the
property is subject to criminal forfeiture and must comply with
ORS 132.510, 132.540, 132.550, 132.557, 132.560 and 132.580.
(2) If the grand jury returns an indictment for criminal
forfeiture, the defendant may admit or deny that the property is
subject to criminal forfeiture. If the defendant fails to admit
or deny that the property is subject to forfeiture, the court
shall enter a denial on behalf of the defendant.
(3) When the underlying criminal conduct is a Class A
misdemeanor, a city or county attorney may prosecute a criminal
forfeiture by filing an information in the municipal or justice
court.
(4) A criminal forfeiture proceeding and the underlying
criminal case must be tried in the same proceeding.
(5) The criminal procedure laws of this state apply to criminal
forfeiture proceedings.
(6) The court shall enter a judgment of criminal forfeiture if
the forfeiture counsel proves beyond a reasonable doubt that the
property for which forfeiture is sought is an instrumentality or
the proceeds of the crime of conviction or past prohibited
conduct that is similar to the crime of conviction.
(7) No later than 21 days after the entry of a judgment of
criminal forfeiture under this section, the forfeiture counsel
shall notify by mail all persons who filed claims under section 8
of this 2001 Act or affidavits under section 11 of this 2001 Act
of the judgment of criminal forfeiture. The notice must inform
the person of the requirements of subsection (8) of this section.
(8) If a person who receives notice under subsection (7) of
this section wishes to assert the person's interest in the
property but was not eligible to file an affidavit under section
11 of this 2001 Act, the person must file an affidavit with the
trial court, and must serve the forfeiture counsel with a copy of
the affidavit, no later than 21 days after the date the notice
required by subsection (7) of this section was mailed. The person
must allege facts in an affidavit filed under this subsection
that if true would prove that the person took the property or the
interest that the person holds in the property:
(a)(A) Before it was seized for criminal forfeiture; and
(B) In good faith and without intent to defeat the interest of
any seizing agency; or
(b) As a bona fide purchaser for value without acquiescing in
the prohibited conduct.
(9)(a) If an affidavit is timely filed under subsection (8) of
this section and the forfeiture counsel:
(A) Does not contest the affidavit, the forfeiture counsel
shall submit a form of judgment to the court for entry under
section 14 of this 2001 Act.
Enrolled House Bill 3642 (HB 3642-A) Page 13
(B) Does contest the affidavit, the forfeiture counsel shall
request a hearing with the trial court no later than 21 days
after receiving the affidavit.
(b) If no affidavit is filed under subsection (8) of this
section but the seizing agency filed an affidavit under section
11 (4) of this 2001 Act, the forfeiture counsel shall request a
hearing with the trial court no later than 21 days after the last
date for receiving affidavits under subsection (8) of this
section.
(10)(a) A hearing pursuant to subsection (9) of this section is
an ancillary proceeding and the Oregon Rules of Civil Procedure
apply. At the hearing:
(A) Forfeiture counsel has the burden of proving by a
preponderance of the evidence that the person claiming an
interest in the property:
(i) Took the property with the intent to defeat the interest of
a seizing agency; or
(ii) Is not a bona fide purchaser for value or acquiesced in
the prohibited conduct.
(B) Forfeiture counsel may present evidence and witnesses and
cross-examine witnesses who appear at the hearing.
(C) The person claiming an interest in the property may
testify, present evidence and witnesses and cross-examine
witnesses who appear at the hearing.
(b) In addition to testimony and evidence presented at the
hearing, the court shall consider relevant portions of the record
of the criminal case that resulted in the judgment of criminal
forfeiture.
(c) The court shall amend the judgment of criminal forfeiture
in accordance with its determination if, after the hearing, the
court determines that the claimant:
(A) Did take the property before it was seized for criminal
forfeiture and in good faith and without intent to defeat the
interest of the seizing agency; or
(B) Is a bona fide purchaser for value of the right, title or
interest in the property and did not acquiesce in the prohibited
conduct.
(d) Notwithstanding ORS 19.255 (1), a person may file a notice
of appeal within 30 days after entry in the register of an order
disposing of the matters at issue in the ancillary proceeding. An
appeal under this paragraph is governed by the provisions of ORS
chapter 19 relating to appeals in civil actions.
(11) When a court enters a judgment of criminal forfeiture
under this section, the jurisdiction of the court continues for
purposes of subsection (10) of this section and the property
continues to be subject to the court's jurisdiction. + }
SECTION 13. { + (1) The court shall enter judgment to the
extent that the property is proceeds of the crime of conviction
or of past prohibited conduct that is similar to the crime of
conviction.
(2) With respect to property that is an instrumentality of the
crime of conviction or of past prohibited conduct that is similar
to the crime of conviction, the court shall consider:
(a) Whether the property constitutes the defendant's lawful
livelihood or means of earning a living.
(b) Whether the property is the defendant's residence.
(c) The degree of relationship between the property and the
prohibited conduct, including the extent to which the property
facilitated the prohibited conduct or could facilitate future
prohibited conduct.
Enrolled House Bill 3642 (HB 3642-A) Page 14
(d) The monetary value of the property in relation to the risk
of injury to the public from the prohibited conduct.
(e) The monetary value of the property in relation to the
actual injury to the public from the prohibited conduct.
(f) The monetary value of the property in relation to objective
measures of the potential or actual criminal culpability of the
person or persons engaging in the prohibited conduct, including:
(A) The inherent gravity of the prohibited conduct;
(B) The potential sentence for similar prohibited conduct under
Oregon law;
(C) The defendant's prior criminal history; and
(D) The sentence actually imposed on the defendant.
(g) Any additional relevant evidence. + }
SECTION 14. { + (1) If no financial institution has filed the
affidavit described in section 11 (1) of this 2001 Act, and if
the court has failed to uphold the claim or affidavit of any
other person claiming an interest in the property, the effect of
the judgment is that:
(a) Title to the property passes to the seizing agency free of
any interest or encumbrance thereon in favor of any person who
has been given notice;
(b) The seizing agency may transfer good and sufficient title
to any subsequent purchaser or transferee, and all courts, the
state and the departments and agencies of this state, and any
political subdivision shall recognize the title. In the case of
real property, the seizing agency shall warrant the title against
constitutional defect. A warranty under this paragraph is limited
to the purchase price of the real property; and
(c) Any department, agency or officer of this state or any
political subdivision whose official functions include the
issuance of certificates or other evidence of title is immune
from civil or criminal liability when such issuance is pursuant
to a judgment of criminal forfeiture.
(2) If an affidavit is filed by a financial institution under
section 11 (1) of this 2001 Act, or if a person files an
affidavit under section 11 (2) of this 2001 Act:
(a) The court shall foreclose all security interests, liens and
vendor's interests of financial institutions and claimants as to
which the court determines that there is a legal or equitable
basis for foreclosure; and
(b) All other interests applicable to the property that are not
foreclosed or otherwise eliminated through a judgment and decree
of foreclosure, if and to the extent that they are valid and
subsisting, remain in effect and the property remains subject to
them upon completion of the criminal forfeiture proceeding.
(3) Notwithstanding any other provision of law, if a financial
institution or other person has filed an affidavit described in
section 11 of this 2001 Act, or if the court has upheld the claim
of any claimant, then as to each item of property seized:
(a) If the court has determined that the property should not be
forfeited and has not foreclosed the security interests, liens or
other interests covering the property, the court shall render
judgment in favor of the owner of the property, the property must
be returned to the owner and all security interests, liens and
other interests applicable to the property remain in effect as
though the property had never been seized. Upon the return of the
property to the owner, the seizing agency shall pay all costs and
expenses relating to towing and storage of the property and shall
cause to be discharged any possessory chattel liens on the
Enrolled House Bill 3642 (HB 3642-A) Page 15
property arising under ORS 87.152 to 87.162 that have attached to
the property since the seizure.
(b) If the court has determined that the property should not be
forfeited and has foreclosed one or more interests covering the
property, including security interests or liens covering the
property or contracts for the transfer or conveyance of the
property, the seizing agency shall pay all costs and expenses
relating to towing and storage of the property and shall cause to
be discharged any possessory chattel liens on the property
arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure, and the court shall order the
property sold pursuant to a sheriff's sale or other sale
authorized by the court within such time as may be prescribed by
the court following entry of the judgment. If any interests
covering the property have not been foreclosed, including any
liens or security interests of a claimant whose claim has been
upheld, or of a financial institution that has filed the
affidavit described in section 11 of this 2001 Act, the property
must be sold subject to those interests. The judgment shall order
the proceeds of the sale applied in the following order:
(A) To the payment of the costs of the sale;
(B) To the satisfaction of the foreclosed liens, security
interests and contracts in order of their priority; and
(C) The excess, if any, to the owner of the property.
(c) If the court has determined that the property should be
forfeited and has foreclosed one or more security interests,
liens, contracts or other interests covering the property, the
seizing agency shall pay all costs and expenses relating to
towing and storage of the property and shall cause to be
discharged any possessory chattel liens on the property arising
under ORS 87.152 to 87.162 that have attached to the property
since the seizure, and the court shall order the property sold
pursuant to a sheriff's sale or other sale authorized by the
court. If any interest in the property was claimed by a financial
institution or other claimant and the interest was upheld but not
foreclosed, the property must be sold subject to the interest.
The sale of the property must be held within such time as may be
prescribed by the court following entry of the judgment. The
judgment shall also order the proceeds of such sale applied in
the following order:
(A) To the payment of the costs of the sale;
(B) To the satisfaction of the foreclosed liens, security
interests and contracts in the order of their priority; and
(C) The excess, if any, to the seizing agency to be disposed of
as provided in section 16 or 17 of this 2001 Act.
(d) If the court has determined that the property should be
forfeited and has not foreclosed the interests of any party in
the property, the seizing agency shall pay all costs and expenses
relating to towing and storage of the property and shall cause to
be discharged any possessory chattel liens on the property
arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure. The court shall enter a judgment
awarding the property to the seizing agency, subject to the
interests of any claimants whose claims or affidavits were upheld
by the court, and subject to the interests of any financial
institutions that filed affidavits under section 11 (1) of this
2001 Act that remain in full force and effect.
(4) The court may include in the judgment of criminal
forfeiture an order that directs the seizing agency to distribute
Enrolled House Bill 3642 (HB 3642-A) Page 16
to the victim of the crime of conviction a portion of any
proceeds from property received by the seizing agency if:
(a) The crime of conviction was a person felony or person Class
A misdemeanor as those terms are defined by rule of the Oregon
Criminal Justice Commission; and
(b) The court included an order of restitution in the criminal
judgment.
(5) The seizing agency is not liable to any person as a
consequence of obedience to a judgment directing conveyance to a
financial institution.
(6) The forfeiture counsel shall send a copy of the judgment to
the Asset Forfeiture Oversight Advisory Committee.
(7)(a) On entry of judgment for a claimant in any proceeding to
forfeit property under sections 1 to 18 of this 2001 Act, unless
the court has foreclosed one or more security interests, liens or
other interests covering the property, the property or interest
in property must be returned or conveyed immediately to the
claimant designated by the court.
(b) If it appears that there was reasonable suspicion that the
property was subject to criminal forfeiture, the court shall
cause a finding to be entered and no claimant or financial
institution is entitled to damages nor is the person who made the
seizure, the seizing agency or forfeiture counsel liable to suit
or judgment on account of the seizure or action. An order
directing seizure issued under section 5 of this 2001 Act
constitutes a finding of reasonable suspicion that the property
was subject to criminal forfeiture.
(8) Nothing in this section prevents a claimant or financial
institution from obtaining any deficiency to which the claimant
or financial institution would otherwise be entitled.
(9) Nothing in this section or in section 6 of this 2001 Act
prevents a seizing agency from entering into an agreement with a
claimant or other person for the reimbursement of the seizing
agency for the costs and expenses relating to towing and storage
of property or the cost of discharging any possessory chattel
lien on the property arising under ORS 87.152 to 87.162 that
attached to the property in the period between the seizure of the
property and the release or criminal forfeiture of the
property. + }
SECTION 15. { + Distribution of property or proceeds in
accordance with sections 1 to 18 of this 2001 Act must be made
equitably and may be made pursuant to intergovernmental agreement
under ORS chapter 190. Intergovernmental agreements providing for
such distributions and in effect on the effective date of this
2001 Act remain valid unless changed by the parties. The
equitable distribution of proceeds targeted for law enforcement
must involve sharing the proceeds between the seizing agency and
forfeiture counsel. + }
SECTION 16. { + (1) After the seizing agency distributes
property under section 14 of this 2001 Act and when the seizing
agency is not the state, the seizing agency shall dispose of and
distribute property as follows:
(a) The seizing agency shall pay costs first from the property
or its proceeds. As used in this subsection, 'costs ' includes
the expenses of publication, service of notices, towing, storage
and servicing or maintaining the seized property under section 6
of this 2001 Act.
(b) After costs have been paid, the seizing agency shall
distribute to the victim any amount the seizing agency was
ordered to distribute under section 14 (4) of this 2001 Act.
Enrolled House Bill 3642 (HB 3642-A) Page 17
(c) After costs have been paid and distributions under
paragraph (b) of this subsection have been made, the seizing
agency shall distribute the rest of the property to the general
fund of the political subdivision that operates the seizing
agency.
(2) Of the property distributed under subsection (1)(c) of this
section, the political subdivision shall distribute:
(a) Three percent to the Asset Forfeiture Oversight Account
established in ORS 475A.160;
(b) Seven percent to the Illegal Drug Cleanup Fund established
in ORS 475.495 for the purposes specified in ORS 475.495 (5); and
(c) Ten percent to the state General Fund.
(3) Of the property distributed under subsection (1)(c) of this
section that remains in the general fund of the political
subdivision after the distributions required by subsection (2) of
this section have been made:
(a) Fifty percent must be for official law enforcement use; and
(b) Fifty percent must be used for substance abuse treatment.
(4) Except as otherwise provided by intergovernmental
agreement, the seizing agency may:
(a) Sell, lease, lend or transfer the property or proceeds to
any federal, state or local law enforcement agency or district
attorney.
(b) Sell the forfeited property by public or other commercially
reasonable sale and pay from the proceeds the expenses of keeping
and selling the property.
(c) Retain the property.
(d) With written authorization from the district attorney for
the seizing agency's jurisdiction, destroy any firearms or
controlled substances.
(5) A political subdivision may sell as much property as may be
needed to make the distributions required by subsections (1) and
(2) of this section. A political subdivision shall make
distributions to the Asset Forfeiture Oversight Account, the
Illegal Drug Cleanup Fund and the state General Fund that are
required by subsection (2) of this section once every three
months. The distributions are due within 20 days of the end of
each quarter. Interest does not accrue on amounts that are paid
within the period specified by this subsection.
(6) A seizing agency may donate growing equipment and
laboratory equipment that was used, or intended for use, in
manufacturing of controlled substances to a public school,
community college or state institution of higher education.
(7) This section applies only to criminal forfeiture proceeds
arising out of prohibited conduct. + }
SECTION 17. { + (1) After the seizing agency distributes
property under section 14 of this 2001 Act and when the seizing
agency is the state or when the state is the recipient of
property forfeited under sections 1 to 18 of this 2001 Act, the
seizing agency shall dispose of and distribute property as
follows:
(a) The seizing agency shall pay costs first from the property
or its proceeds. As used in this subsection, 'costs ' includes
the expenses of publication, service of notices, towing, storage
and servicing or maintaining the seized property under section 6
of this 2001 Act.
(b) After costs have been paid, the seizing agency shall
distribute to the victim any amount the seizing agency was
ordered to distribute under section 14 (4) of this 2001 Act.
Enrolled House Bill 3642 (HB 3642-A) Page 18
(c) Of the property remaining after costs have been paid under
paragraph (a) of this subsection and distributions have been made
under paragraph (b) of this subsection, the seizing agency shall
distribute:
(A) Three percent to the Asset Forfeiture Oversight Account
established in ORS 475A.160;
(B) Seven percent to the Illegal Drug Cleanup Fund established
in ORS 475.495 for the purposes specified in ORS 475.495 (5);
(C) Ten percent to the state General Fund;
(D) Subject to subsection (5) of this section, 40 percent to
the Department of State Police or the Department of Justice for
official law enforcement use; and
(E) Forty percent to the office of Alcohol and Drug Abuse
Programs to be used for substance abuse treatment.
(2)(a) Any amount paid to or retained by the Department of
Justice under subsection (1) of this section must be deposited in
the Criminal Justice Revolving Account in the State Treasury.
(b) Any amount paid to or retained by the Department of State
Police under subsection (1) of this section must be deposited in
the State Police Account.
(3) The state may:
(a) With written authorization from the district attorney for
the jurisdiction in which the property was seized, destroy any
firearms or controlled substances.
(b) Sell the forfeited property by public or other commercially
reasonable sale and pay from the proceeds the expenses of keeping
and selling the property.
(c) Retain any vehicles, firearms or other equipment usable for
law enforcement purposes, for official law enforcement use
directly by the state.
(d) Lend or transfer any vehicles, firearms or other equipment
usable for law enforcement purposes to any federal, state or
local law enforcement agency or district attorney for official
law enforcement use directly by the transferee entity.
(4) When the state has entered into an intergovernmental
agreement with one or more political subdivisions under section
15 of this 2001 Act, or when a law enforcement agency of this
state has entered into an agreement with another law enforcement
agency of this state, an equitable portion of the forfeited
property distributed under subsection (1)(c)(D) of this section
must be distributed to each agency participating in the seizure
or criminal forfeiture as provided by the agreement.
(5) The property distributed under subsection (1)(c)(D) of this
section, including any proceeds received by the state under an
intergovernmental agreement or under an agreement between state
law enforcement agencies, must be divided as follows:
(a) When no law enforcement agency other than the Department of
Justice participated in the seizure or forfeiture, or when the
Department of Justice has entered into an agreement under
subsection (4) of this section, the property must be deposited in
the Criminal Justice Revolving Account.
(b) When no law enforcement agency other than the Department of
State Police participated in the seizure or forfeiture, or when
the Department of State Police has entered into an agreement
under subsection (4) of this section, the property must be
deposited in the State Police Account.
(6) The seizing agency may sell as much property as may be
needed to make the distributions required by subsection (1) of
this section. The seizing agency shall make distributions to the
Asset Forfeiture Oversight Account and the Illegal Drug Cleanup
Enrolled House Bill 3642 (HB 3642-A) Page 19
Fund that are required by subsection (1) of this section once
every three months. The distributions are due within 20 days of
the end of each quarter. Interest does not accrue on amounts that
are paid within the period specified by this subsection. + }
SECTION 18. { + (1) A seizing agency and any agency that
receives forfeited property or proceeds from the sale of
forfeited property under sections 1 to 18 of this 2001 Act shall
maintain written documentation of each sale, decision to retain,
transfer or other disposition of forfeited property.
(2) Forfeiture counsel shall report each criminal forfeiture to
the Asset Forfeiture Oversight Advisory Committee as soon as
reasonably possible after the conclusion of criminal forfeiture
proceedings, whether or not the forfeiture results in an entry of
judgment under section 14 of this 2001 Act. The committee shall
develop and make available forms for the purpose of reporting
criminal forfeitures.
(3) Law enforcement agencies shall supply to forfeiture counsel
all information requested by forfeiture counsel necessary for the
preparation of the report required by subsection (2) of this
section.
(4) Political subdivisions of this state that receive
forfeiture proceeds under section 16 of this 2001 Act shall
submit a report to the committee for any year in which those
proceeds are received. The committee shall develop and make
available forms for the purpose of those reports. The forms must
require the political subdivision to report how proceeds received
by the political subdivision have been or will be used and any
other information requested by the committee. A political
subdivision shall submit a report required by this subsection by
December 15 for the last ending fiscal year of the political
subdivision. + }
SECTION 19. { + The crimes to which section 1 (11)(b) of this
2001 Act applies are:
(1) Bribe giving, as defined in ORS 162.015.
(2) Bribe receiving, as defined in ORS 162.025.
(3) Public investment fraud, as defined in ORS 162.117.
(4) Bribing a witness, as defined in ORS 162.265.
(5) Bribe receiving by a witness, as defined in ORS 162.275.
(6) Simulating legal process, as defined in ORS 162.355.
(7) Official misconduct in the first degree, as defined in ORS
162.415.
(8) Custodial interference in the second degree, as defined in
ORS 163.245.
(9) Custodial interference in the first degree, as defined in
ORS 163.257.
(10) Buying or selling a person under 18 years of age, as
defined in ORS 163.537.
(11) Using a child in a display of sexually explicit conduct,
as defined in ORS 163.670.
(12) Encouraging child sexual abuse in the first degree, as
defined in ORS 163.684.
(13) Encouraging child sexual abuse in the second degree, as
defined in ORS 163.686.
(14) Encouraging child sexual abuse in the third degree, as
defined in ORS 163.687.
(15) Possession of materials depicting sexually explicit
conduct of a child in the first degree, as defined in ORS
163.688.
Enrolled House Bill 3642 (HB 3642-A) Page 20
(16) Possession of materials depicting sexually explicit
conduct of a child in the second degree, as defined in ORS
163.689.
(17) Theft in the second degree, as defined in ORS 164.045.
(18) Theft in the first degree, as defined in ORS 164.055.
(19) Aggravated theft in the first degree, as defined in ORS
164.057.
(20) Theft by extortion, as defined in ORS 164.075.
(21) Theft by deception, as defined in ORS 164.085, if it is a
felony or a Class A misdemeanor.
(22) Theft by receiving, as defined in ORS 164.095, if it is a
felony or a Class A misdemeanor.
(23) Theft of services, as defined in ORS 164.125, if it is a
felony or a Class A misdemeanor.
(24) Unauthorized use of a vehicle, as defined in ORS 164.135.
(25) Mail theft or receipt of stolen mail, as defined in ORS
164.162.
(26) Laundering a monetary instrument, as defined in ORS
164.170.
(27) Engaging in a financial transaction in property derived
from unlawful activity, as defined in ORS 164.172.
(28) Burglary in the second degree, as defined in ORS 164.215.
(29) Burglary in the first degree, as defined in ORS 164.225.
(30) Possession of burglar's tools, as defined in ORS 164.235.
(31) Unlawful entry into a motor vehicle, as defined in ORS
164.272.
(32) Arson in the second degree, as defined in ORS 164.315.
(33) Arson in the first degree, as defined in ORS 164.325.
(34) Computer crime, as defined in ORS 164.377.
(35) Robbery in the third degree, as defined in ORS 164.395.
(36) Robbery in the second degree, as defined in ORS 164.405.
(37) Robbery in the first degree, as defined in ORS 164.415.
(38) Unlawful labeling of a sound recording, as defined in ORS
164.868.
(39) Unlawful recording of a live performance, as defined in
ORS 164.869.
(40) Unlawful labeling of a videotape recording, as defined in
ORS 164.872.
(41) A violation of ORS 164.877.
(42) Endangering aircraft, as defined in ORS 164.885.
(43) Interference with agricultural operations, as defined in
ORS 164.887.
(44) Forgery in the second degree, as defined in ORS 165.007.
(45) Forgery in the first degree, as defined in ORS 165.013.
(46) Criminal possession of a forged instrument in the second
degree, as defined in ORS 165.017.
(47) Criminal possession of a forged instrument in the first
degree, as defined in ORS 165.022.
(48) Criminal possession of a forgery device, as defined in ORS
165.032.
(49) Criminal simulation, as defined in ORS 165.037.
(50) Fraudulently obtaining a signature, as defined in ORS
165.042.
(51) Fraudulent use of a credit card, as defined in ORS
165.055.
(52) Negotiating a bad check, as defined in ORS 165.065.
(53) Possessing a fraudulent communications device, as defined
in ORS 165.070.
(54) Unlawful factoring of a credit card transaction, as
defined in ORS 165.074.
Enrolled House Bill 3642 (HB 3642-A) Page 21
(55) Falsifying business records, as defined in ORS 165.080.
(56) Sports bribery, as defined in ORS 165.085.
(57) Sports bribe receiving, as defined in ORS 165.090.
(58) Misapplication of entrusted property, as defined in ORS
165.095.
(59) Issuing a false financial statement, as defined in ORS
165.100.
(60) Obtaining execution of documents by deception, as defined
in ORS 165.102.
(61) A violation of ORS 165.543.
(62) Cellular counterfeiting in the third degree, as defined in
ORS 165.577.
(63) Cellular counterfeiting in the second degree, as defined
in ORS 165.579.
(64) Cellular counterfeiting in the first degree, as defined in
ORS 165.581.
(65) Identity theft, as defined in ORS 165.800.
(66) A violation of ORS 166.190.
(67) Unlawful use of a weapon, as defined in ORS 166.220.
(68) A violation of ORS 166.240.
(69) Unlawful possession of a firearm, as defined in ORS
166.250.
(70) A violation of ORS 166.270.
(71) Unlawful possession of a machine gun, short-barreled
rifle, short-barreled shotgun or firearms silencer, as defined in
ORS 166.272.
(72) A violation of ORS 166.275.
(73) Unlawful possession of armor piercing ammunition, as
defined in ORS 166.350.
(74) A violation of ORS 166.370.
(75) Unlawful possession of a destructive device, as defined in
ORS 166.382.
(76) Unlawful manufacture of a destructive device, as defined
in ORS 166.384.
(77) Possession of a hoax destructive device, as defined in ORS
166.385.
(78) A violation of ORS 166.410.
(79) Providing false information in connection with a transfer
of a handgun, as defined in ORS 166.416.
(80) Improperly transferring a handgun, as defined in ORS
166.418.
(81) Unlawfully purchasing a firearm, as defined in ORS
166.425.
(82) A violation of ORS 166.429.
(83) A violation of ORS 166.470.
(84) A violation of ORS 166.480.
(85) A violation of ORS 166.635.
(86) A violation of ORS 166.638.
(87) Unlawful paramilitary activity, as defined in ORS 166.660.
(88) A violation of ORS 166.720.
(89) Prostitution, as defined in ORS 167.007.
(90) Promoting prostitution, as defined in ORS 167.012.
(91) Compelling prostitution, as defined in ORS 167.017.
(92) Exhibiting an obscene performance to a minor, as defined
in ORS 167.075.
(93) Unlawful gambling in the second degree, as defined in ORS
167.122.
(94) Unlawful gambling in the first degree, as defined in ORS
167.127.
Enrolled House Bill 3642 (HB 3642-A) Page 22
(95) Possession of gambling records in the second degree, as
defined in ORS 167.132.
(96) Possession of gambling records in the first degree, as
defined in ORS 167.137.
(97) Possession of a gambling device, as defined in ORS
167.147.
(98) Possession of a gray machine, as defined in ORS 167.164.
(99) Cheating, as defined in ORS 167.167.
(100) Tampering with drug records, as defined in ORS 167.212.
(101) A violation of ORS 167.262.
(102) Research and animal interference, as defined in ORS
167.312.
(103) Animal abuse in the first degree, as defined in ORS
167.320.
(104) Aggravated animal abuse in the first degree, as defined
in ORS 167.322.
(105) Animal neglect in the first degree, as defined in ORS
167.330.
(106) Interfering with an assistance, a search and rescue or a
therapy animal, as defined in ORS 167.352.
(107) Involvement in animal fighting, as defined in ORS
167.355.
(108) Dogfighting, as defined in ORS 167.365.
(109) Participation in dogfighting, as defined in ORS 167.370.
(110) Unauthorized use of a livestock animal, as defined in ORS
167.385.
(111) Interference with livestock production, as defined in ORS
167.388.
(112) A violation of ORS 167.390.
(113) A violation of ORS 471.410.
(114) Failure to report missing precursor substances, as
defined in ORS 475.955.
(115) Illegally selling drug equipment, as defined in ORS
475.960.
(116) Providing false information on a precursor substances
report, as defined in ORS 475.965.
(117) Unlawful delivery of an imitation controlled substance,
as defined in ORS 475.991.
(118) A violation of ORS 475.992, if it is a felony or a Class
A misdemeanor.
(119) A violation of ORS 475.993, if it is a felony or a Class
A misdemeanor.
(120) A violation of ORS 475.994.
(121) A violation of ORS 475.995, if it is a felony or a Class
A misdemeanor.
(122) A violation of ORS 475.999 (1)(a).
(123) Misuse of an identification card, as defined in ORS
807.430.
(124) Unlawful production of identification cards, licenses,
permits, forms or camera cards, as defined in ORS 807.500.
(125) Transfer of documents for the purposes of
misrepresentation, as defined in ORS 807.510.
(126) Using an invalid license, as defined in ORS 807.580.
(127) Permitting misuse of a license, as defined in ORS
807.590.
(128) Using another's license, as defined in ORS 807.600.
(129) Criminal driving while suspended or revoked, as defined
in ORS 811.182, when it is a felony.
(130) Driving while under the influence of intoxicants, as
defined in ORS 813.010, when it is a felony.
Enrolled House Bill 3642 (HB 3642-A) Page 23
(131) An attempt, conspiracy or solicitation to commit a crime
in subsections (1) to (130) of this section if the attempt,
conspiracy or solicitation is a felony or a Class A
misdemeanor. + }
SECTION 20. ORS 475A.155 is amended to read:
475A.155. (1) The Asset Forfeiture Oversight Advisory Committee
is created. The committee consists of 12 members to be appointed
as follows:
(a) The President of the Senate and the Speaker of the House of
Representatives shall appoint six legislators to the committee.
Three shall be Senators appointed by the President. Three shall
be Representatives appointed by the Speaker.
(b) The Governor shall appoint three members to the committee.
(c) The Attorney General shall appoint three members to the
committee.
(2) The term of a legislative member of the committee shall be
two years. The term of all other members shall be four years.
Members of the committee may be reappointed. If a vacancy occurs
on the committee for any reason during the term of membership,
the official who appointed the member to the vacant position
shall appoint a new member to serve the remainder of the term. A
member of the committee may be removed from the committee at any
time by the official who appointed the member.
(3)(a) The members of the committee shall select from among
themselves a chairperson and vice chairperson.
(b) The committee shall meet at such times and places as
determined by the chairperson.
(4) Legislative members shall be entitled to payment of
compensation and expense reimbursement under ORS 171.072, payable
from funds appropriated to the Legislative Assembly.
(5) The committee shall:
(a) Prepare reports detailing the number and nature of
forfeitures carried out under this chapter { + and sections 1 to
18 of this 2001 Act + }, including the disposition and use of the
proceeds from the forfeitures. The reports shall be submitted on
or before March 31 of each year to the Speaker of the House of
Representatives, President of the Senate, Attorney General and
Governor.
(b) In consultation with forfeiture counsel, review and, if
necessary, modify the reports required from forfeiture counsel
and political subdivisions to ensure that information necessary
for oversight is being obtained and is gathered in an efficient
and effective manner.
(c) Make any recommendations it deems necessary to increase the
effectiveness, fairness and efficiency of forfeiture actions
brought under this chapter { + and sections 1 to 18 of this 2001
Act + }.
(d) Make any recommendations for additional legislation
governing forfeiture actions brought under this chapter { + and
sections 1 to 18 of this 2001 Act + }.
(e) Conduct studies or other activities as necessary to
accomplish the purposes of this subsection.
(6) The Executive Director of the Oregon Criminal Justice
Commission shall provide the committee with staff, subject to
funds available for that purpose.
{ + (7) For purposes of this section, 'forfeiture counsel '
includes forfeiture counsel as defined in section 1 of this 2001
Act. + }
SECTION 21. ORS 475A.155, as amended by section 20 of this 2001
Act, is amended to read:
Enrolled House Bill 3642 (HB 3642-A) Page 24
475A.155. (1) The Asset Forfeiture Oversight Advisory Committee
is created. The committee consists of 12 members to be appointed
as follows:
(a) The President of the Senate and the Speaker of the House of
Representatives shall appoint six legislators to the committee.
Three shall be Senators appointed by the President. Three shall
be Representatives appointed by the Speaker.
(b) The Governor shall appoint three members to the committee.
(c) The Attorney General shall appoint three members to the
committee.
(2) The term of a legislative member of the committee shall be
two years. The term of all other members shall be four years.
Members of the committee may be reappointed. If a vacancy occurs
on the committee for any reason during the term of membership,
the official who appointed the member to the vacant position
shall appoint a new member to serve the remainder of the term. A
member of the committee may be removed from the committee at any
time by the official who appointed the member.
(3)(a) The members of the committee shall select from among
themselves a chairperson and vice chairperson.
(b) The committee shall meet at such times and places as
determined by the chairperson.
(4) Legislative members shall be entitled to payment of
compensation and expense reimbursement under ORS 171.072, payable
from funds appropriated to the Legislative Assembly.
(5) The committee shall:
(a) Prepare reports detailing the number and nature of
forfeitures carried out under this chapter { - and sections 1
to 18 of this 2001 Act - } , including the disposition and use of
the proceeds from the forfeitures. The reports shall be submitted
on or before March 31 of each year to the Speaker of the House of
Representatives, President of the Senate, Attorney General and
Governor.
(b) In consultation with forfeiture counsel, review and, if
necessary, modify the reports required from forfeiture counsel
and political subdivisions to ensure that information necessary
for oversight is being obtained and is gathered in an efficient
and effective manner.
(c) Make any recommendations it deems necessary to increase the
effectiveness, fairness and efficiency of forfeiture actions
brought under this chapter { - and sections 1 to 18 of this
2001 Act - } .
(d) Make any recommendations for additional legislation
governing forfeiture actions brought under this chapter { - and
sections 1 to 18 of this 2001 Act - } .
(e) Conduct studies or other activities as necessary to
accomplish the purposes of this subsection.
(6) The Executive Director of the Oregon Criminal Justice
Commission shall provide the committee with staff, subject to
funds available for that purpose.
{ - (7) For purposes of this section, 'forfeiture counsel '
includes forfeiture counsel as defined in section 1 of this 2001
Act. - }
SECTION 22. ORS 133.643 is amended to read:
133.643. A motion for the return or restoration of things
seized shall be based on the ground that the movant has a valid
claim to rightful possession thereof, because:
(1) The things had been stolen or otherwise converted, and the
movant is the owner or rightful possessor; { - or - }
Enrolled House Bill 3642 (HB 3642-A) Page 25
(2) The things seized were not in fact subject to seizure under
ORS 133.525 to 133.703 { + or sections 1 to 18 of this 2001
Act + };
{ - or - }
(3) The movant, by license or otherwise, is lawfully entitled
to possess things otherwise subject to seizure under ORS 133.525
to 133.703; { - or - }
(4) Although the things seized were subject to seizure under
ORS 133.525 to 133.703, the movant is or will be entitled to
their return or restoration upon the court's determination that
they are no longer needed for evidentiary purposes; or
(5) The parties in the case have stipulated that the things
seized may be returned to the movant.
SECTION 23. ORS 133.643, as amended by section 22 of this 2001
Act, is amended to read:
133.643. A motion for the return or restoration of things
seized shall be based on the ground that the movant has a valid
claim to rightful possession thereof, because:
(1) The things had been stolen or otherwise converted, and the
movant is the owner or rightful possessor;
(2) The things seized were not in fact subject to seizure under
ORS 133.525 to 133.703 { - or sections 1 to 18 of this 2001
Act - } ;
(3) The movant, by license or otherwise, is lawfully entitled
to possess things otherwise subject to seizure under ORS 133.525
to 133.703;
(4) Although the things seized were subject to seizure under
ORS 133.525 to 133.703, the movant is or will be entitled to
their return or restoration upon the court's determination that
they are no longer needed for evidentiary purposes; or
(5) The parties in the case have stipulated that the things
seized may be returned to the movant.
SECTION 24. ORS 166.370 is amended to read:
166.370. (1) Any person who intentionally possesses a loaded or
unloaded firearm or any other instrument used as a dangerous
weapon, while in or on a public building, shall upon conviction
be guilty of a Class C felony.
(2)(a) Except as otherwise provided in paragraph (b) of this
subsection, a person who intentionally possesses:
(A) A firearm in a court facility is guilty, upon conviction,
of a Class C felony. A person who intentionally possesses a
firearm in a court facility shall surrender the firearm to a law
enforcement officer.
(B) A weapon, other than a firearm, in a court facility may be
required to surrender the weapon to a law enforcement officer or
to immediately remove it from the court facility. A person who
fails to comply with this subparagraph is guilty, upon
conviction, of a Class C felony.
(b) The presiding judge of a judicial district may enter an
order permitting the possession of specified weapons in a court
facility.
(3) Subsection (1) of this section does not apply to:
(a) A sheriff, police officer, other duly appointed peace
officers or a corrections officer while acting within the scope
of employment.
(b) A person summoned by a peace officer to assist in making an
arrest or preserving the peace, while the summoned person is
engaged in assisting the officer.
Enrolled House Bill 3642 (HB 3642-A) Page 26
(c) An active or reserve member of the military forces of this
state or the United States, when engaged in the performance of
duty.
(d) A person who is licensed under ORS 166.291 and 166.292 to
carry a concealed handgun.
(e) A person who is authorized by the officer or agency that
controls the public building to possess a firearm or dangerous
weapon in that public building.
(f) Possession of a firearm on school property if the firearm:
(A) Is possessed by a person who is not otherwise prohibited
from possessing the firearm; and
(B) Is unloaded and locked in a motor vehicle.
(4) The exceptions listed in subsection (3)(b) to (f) of this
section constitute affirmative defenses to a charge of violating
subsection (1) of this section.
(5)(a) Any person who knowingly, or with reckless disregard for
the safety of another, discharges or attempts to discharge a
firearm at a place that the person knows is a school shall upon
conviction be guilty of a Class C felony.
(b) Paragraph (a) of this subsection does not apply to the
discharge of a firearm:
(A) As part of a program approved by a school in the school by
an individual who is participating in the program; or
(B) By a law enforcement officer acting in the officer's
official capacity.
{ - (6) Any weapon carried in violation of this section is
subject to the forfeiture provisions of ORS 166.280. - }
{ - (7) - } { + (6) + } Notwithstanding the fact that a
person's conduct in a single criminal episode constitutes a
violation of both subsections (1) and (5) of this section, the
district attorney may charge the person with only one of the
offenses.
{ - (8) - } { + (7) + } As used in this section, 'dangerous
weapon' means a dangerous weapon as that term is defined in ORS
161.015.
SECTION 25. ORS 166.282 is amended to read:
166.282. (1) A political subdivision in this state that sells a
weapon described in subsection (2) of this section shall pay the
proceeds from the sale of the weapon, less the costs of the sale,
to the account of the police agency that received or seized the
weapon, to be used for purposes of public safety, law enforcement
and crime prevention and detection.
(2) Subsection (1) of this section applies to a weapon that is
{ - : - }
{ - (a) - } donated to the police agency { - ; or - }
{ - (b) Seized by the police agency under ORS 166.280 - } .
SECTION 26. ORS 166.660 is amended to read:
166.660. (1) A person commits the crime of unlawful
paramilitary activity if the person:
(a) Exhibits, displays or demonstrates to another person the
use, application or making of any firearm, explosive or
incendiary device or any technique capable of causing injury or
death to persons and intends or knows that such firearm,
explosive or incendiary device or technique will be unlawfully
employed for use in a civil disorder; or
(b) Assembles with one or more other persons for the purpose of
training with, practicing with or being instructed in the use of
any firearm, explosive or incendiary device or technique capable
of causing injury or death to persons with the intent to
Enrolled House Bill 3642 (HB 3642-A) Page 27
unlawfully employ such firearm, explosive or incendiary device or
technique in a civil disorder.
(2)(a) Nothing in this section makes unlawful any act of any
law enforcement officer performed in the otherwise lawful
performance of the officer's official duties.
(b) Nothing in this section makes unlawful any activity of the
State Department of Fish and Wildlife, or any activity intended
to teach or practice self-defense or self-defense techniques,
such as karate clubs or self-defense clinics, and similar lawful
activity, or any facility, program or lawful activity related to
firearms instruction and training intended to teach the safe
handling and use of firearms, or any other lawful sports or
activities related to the individual recreational use or
possession of firearms, including but not limited to hunting
activities, target shooting, self-defense, firearms collection or
any organized activity including, but not limited to any hunting
club, rifle club, rifle range or shooting range which does not
include a conspiracy as defined in ORS 161.450 or the knowledge
of or the intent to cause or further a civil disorder.
(3) Unlawful paramilitary activity is a Class C felony.
{ - In addition to any other penalty imposed pursuant to this
section, the court may order forfeited to the State of Oregon for
the benefit of the Common School Fund any firearm or explosive or
incendiary device used in any activity in violation of this
section. - }
(4) As used in this section:
(a) 'Civil disorder' means acts of physical violence by
assemblages of three or more persons which cause damage or
injury, or immediate danger thereof, to the person or property of
any other individual.
(b) 'Firearm' means a weapon, by whatever name known, which is
designed to expel a projectile by the action of black powder or
smokeless black powder and which is readily capable of use as a
weapon.
(c) 'Explosive' means a chemical compound, mixture or device
that is commonly used or intended for the purpose of producing a
chemical reaction resulting in a substantially instantaneous
release of gas and heat, including but not limited to dynamite,
blasting powder, nitroglycerin, blasting caps and nitrojelly, but
excluding fireworks as defined in ORS 480.110 (1), black powder,
smokeless powder, small arms ammunition and small arms ammunition
primers.
(d) 'Law enforcement officer' means any duly constituted police
officer of the United States, any state, any political
subdivision of a state or the District of Columbia, and also
includes members of the military reserve forces or National Guard
as defined in 10 U.S.C. 101 (9), members of the organized militia
of any state or territory of the United States, the Commonwealth
of Puerto Rico or the District of Columbia not included within
the definition of National Guard as defined by 10 U.S.C. 101 (9),
members of the Armed Forces of the United States and such persons
as are defined in ORS 161.015 (4) when in the performance of
official duties.
SECTION 27. ORS 137.138 is amended to read:
137.138. (1) In addition to and not in lieu of any other
sentence it may impose, a court shall require a defendant
convicted under ORS 164.365, 166.663, 167.315, { - 167.320,
167.322, - } 498.056 or 498.146 or other state, county or
municipal laws, for an act involving or connected with injuring,
damaging, mistreating or killing a livestock animal, to forfeit
Enrolled House Bill 3642 (HB 3642-A) Page 28
any rights in weapons used in connection with the act underlying
the conviction.
(2) In addition to and not in lieu of any other sentence it may
impose, a court shall revoke any hunting license possessed by a
defendant convicted as described in subsection (1) of this
section.
(3) The State Fish and Wildlife Director shall refuse to issue
a hunting license to a defendant convicted as described under
subsection (1) of this section for a period of two years
following the conviction.
(4) As used in this section, 'livestock animal' has the meaning
given in ORS 164.055.
{ + NOTE: + } Section 28 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 29. ORS 167.350 is amended to read:
167.350. (1) In addition to and not in lieu of any other
sentence it may impose, a court may require a defendant convicted
under ORS 167.315 to 167.330 { - and - } { + or + } 167.340
to forfeit any rights of the defendant in the animal subjected to
abuse, neglect or abandonment, and to repay the reasonable costs
incurred by any person or agency prior to judgment in caring for
each animal subjected to abuse, neglect or abandonment.
(2) When the court orders the defendant's rights in the animal
to be forfeited, the court may further order that those rights be
given over to an appropriate person or agency demonstrating a
willingness to accept and care for the animal or to the county or
an appropriate animal care agency for further disposition in
accordance with accepted practices for humane treatment of
animals. This subsection shall not constitute or authorize any
limitation upon the right of the person or agency to whom rights
are granted to resell or otherwise make disposition of the
animal. A transfer of rights under this subsection constitutes a
transfer of ownership.
(3) In addition to and not in lieu of any other sentence it may
impose, a court may order the owner or person having custody of
an animal to repay the reasonable costs incurred by any person or
agency in providing water, food or first aid treatment under ORS
167.345 (1).
(4) A court may order a person convicted under ORS 167.315 to
167.330 { - and - } { + or + } 167.340 to participate in
available animal cruelty prevention programs or education
programs, or both, or to obtain psychological counseling for
treatment of mental health disorders that, in the court's
judgment, contributed to the commission of the crime. The person
shall bear any costs incurred by the person for participation in
counseling or treatment programs under this subsection.
{ + (5) Sections 1 to 18 of this 2001 Act do not apply to the
forfeiture of an animal subjected to abuse, neglect or
abandonment in violation of ORS 167.315 to 167.330 or 167.340.
Any such animal is subject to forfeiture as provided in
subsections (1) to (3) of this section. + }
SECTION 30. ORS 164.864 is amended to read:
164.864. As used in ORS 164.865, 164.866, 164.868, 164.869,
164.872, 164.873 { - , - } { + and + } 164.875 { - ,
164.876 - } and this section, unless the context requires
otherwise:
(1) 'Commercial enterprise' means a business operating in
intrastate or interstate commerce for profit. 'Commercial
enterprise' does not include:
Enrolled House Bill 3642 (HB 3642-A) Page 29
(a) Activities by schools, libraries or religious
organizations;
(b) Activities incidental to a bona fide scholastic or critical
endeavor;
(c) Activities incidental to the marketing or sale of recording
devices; and
(d) Activities involving the recording of school or religious
events or activities.
(2) 'Fixed' means embodied in a recording or other tangible
medium of expression, by or under the authority of the author, so
that the matter embodied is sufficiently permanent or stable to
permit it to be perceived, reproduced or otherwise communicated
for a period of more than transitory duration.
(3) 'Live performance' means a recitation, rendering or playing
of musical instruments or vocal arrangements in an audible
sequence in a public performance.
(4) 'Manufacturer' means the entity authorizing the duplication
of a specific recording, but shall not include the manufacturer
of the cartridge or casing itself.
(5) 'Master recording' means the master disk, master tape,
master film or other device used for reproducing recorded sound
from which a sound recording is directly or indirectly derived.
(6) 'Motion picture' includes any motion picture, regardless of
length or content, that is exhibited in a motion picture theater
to paying customers, exhibited on television to paying customers
or under the sponsorship of a paying advertiser or produced and
exhibited for scientific research or educational purposes.
'Motion picture' does not include motion pictures exhibited at
home or movies or amateur films that are shown free or at cost to
friends, neighbors or civic groups.
(7) 'Owner' means a person who owns the sounds fixed in a
master phonograph record, master disk, master tape, master film
or other recording on which sound is or can be recorded and from
which the transferred recorded sounds are directly or indirectly
derived.
(8) 'Recording' means a tangible medium on which information,
sounds or images, or any combination thereof, are recorded or
otherwise stored. Medium includes, but is not limited to, an
original phonograph record, disk, tape, audio or video cassette,
wire, film or other medium now existing or developed later on
which sounds, images or both are or can be recorded or otherwise
stored or a copy or reproduction that duplicates in whole or in
part the original.
(9) 'Sound recording' means any reproduction of a master
recording.
(10) 'Videotape' means a reel of tape upon which a motion
picture is electronically or magnetically imprinted by means of
an electronic video recorder and which may be used in video
playback equipment to project or display the motion picture on a
television screen.
SECTION 31. ORS 164.866 is amended to read:
164.866. Nothing in ORS 164.864, 164.865, 164.868, 164.869,
164.872, 164.873 { - , - } { + or + } 164.875 { - or
164.876 - } or this section limits or impairs the right of a
person injured by the criminal acts of a defendant to sue and
recover damages from the defendant in a civil action.
SECTION 32. ORS 166.210 is amended to read:
166.210. As used in ORS 166.250 to 166.270, { - 166.280, - }
166.291 to 166.295 and 166.410 to 166.470:
(1) 'Antique firearm' means:
Enrolled House Bill 3642 (HB 3642-A) Page 30
(a) Any firearm, including any firearm with a matchlock,
flintlock, percussion cap or similar type of ignition system,
manufactured in or before 1898; and
(b) Any replica of any firearm described in paragraph (a) of
this subsection if the replica:
(A) Is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition; or
(B) Uses rimfire or conventional centerfire fixed ammunition
that is no longer manufactured in the United States and that is
not readily available in the ordinary channels of commercial
trade.
(2) 'Firearm' means a weapon, by whatever name known, which is
designed to expel a projectile by the action of powder and which
is readily capable of use as a weapon.
(3) 'Firearms silencer' means any device for silencing,
muffling or diminishing the report of a firearm.
(4) 'Handgun' means any pistol or revolver using a fixed
cartridge containing a propellant charge, primer and projectile,
and designed to be aimed or fired otherwise than from the
shoulder.
(5) 'Machine gun' means a weapon of any description by whatever
name known, loaded or unloaded, which is designed or modified to
allow two or more shots to be fired by a single pressure on the
trigger device.
(6) 'Minor' means a person under 18 years of age.
(7) 'Parole and probation officer' has the meaning given that
term in ORS 181.610.
(8) 'Short-barreled rifle' means a rifle having one or more
barrels less than 16 inches in length and any weapon made from a
rifle if the weapon has an overall length of less than 26 inches.
(9) 'Short-barreled shotgun' means a shotgun having one or more
barrels less than 18 inches in length and any weapon made from a
shotgun if the weapon has an overall length of less than 26
inches.
SECTION 33. ORS 166.250 is amended to read:
166.250. (1) Except as otherwise provided in this section
{ - , - } { + or + } ORS 166.260, 166.270, 166.274,
{ - 166.280, - } 166.291, 166.292 or 166.410 to 166.470, a
person commits the crime of unlawful possession of a firearm if
the person knowingly:
(a) Carries any firearm concealed upon the person;
(b) Possesses a handgun that is concealed and readily
accessible to the person within any vehicle; or
(c) Possesses a firearm and:
(A) Is under 18 years of age;
(B)(i) While a minor, was found to be within the jurisdiction
of the juvenile court for having committed an act which, if
committed by an adult, would constitute a felony or a misdemeanor
involving violence, as defined in ORS 166.470; and
(ii) Was discharged from the jurisdiction of the juvenile court
within four years prior to being charged under this section;
(C) Has been convicted of a felony or found guilty, except for
insanity under ORS 161.295, of a felony;
(D) Was committed to the Mental Health and Developmental
Disability Services Division under ORS 426.130; or
(E) Was found to be mentally ill and subject to an order under
ORS 426.130 that the person be prohibited from purchasing or
possessing a firearm as a result of that mental illness.
(2) This section does not prohibit:
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(a) A minor, who is not otherwise prohibited under subsection
(1)(c) of this section, from possessing a firearm:
(A) Other than a handgun, if the firearm was transferred to the
minor by the minor's parent or guardian or by another person with
the consent of the minor's parent or guardian; or
(B) Temporarily for hunting, target practice or any other
lawful purpose; or
(b) Any citizen of the United States over the age of 18 years
who resides in or is temporarily sojourning within this state,
and who is not within the excepted classes prescribed by ORS
166.270 and subsection (1) of this section, from owning,
possessing or keeping within the person's place of residence or
place of business any handgun, and no permit or license to
purchase, own, possess or keep any such firearm at the person's
place of residence or place of business is required of any such
citizen. As used in this subsection, 'residence' includes a
recreational vessel or recreational vehicle while used, for
whatever period of time, as residential quarters.
(3) Firearms carried openly in belt holsters are not concealed
within the meaning of this section.
(4) Unlawful possession of a firearm is a Class A misdemeanor.
SECTION 34. ORS 166.410 is amended to read:
166.410. Any person who manufactures or causes to be
manufactured within this state, or who imports into this state,
or offers, exposes for sale, or sells or transfers a handgun,
short-barreled rifle, short-barreled shotgun, firearms silencer
or machine gun, otherwise than in accordance with ORS 166.250 to
166.270, { - 166.280, - } 166.291, 166.292 and 166.425 to
166.470, shall be guilty of a Class B felony.
SECTION 35. ORS 166.460, as amended by section 11, chapter 1,
Oregon Laws 2001, is amended to read:
166.460. (1) ORS 166.250, 166.260, { - 166.280, - } 166.291
to 166.295, 166.410, 166.412, 166.425 and 166.450 and sections 5
and 7, chapter 1, Oregon Laws 2001, do not apply to antique
firearms.
(2) Notwithstanding the provisions of subsection (1) of this
section, possession of an antique firearm by a person described
in ORS 166.250 (1)(c)(B), (C) or (D) constitutes a violation of
ORS 166.250.
SECTION 36. ORS 166.370, as amended by section 24 of this 2001
Act, is amended to read:
166.370. (1) Any person who intentionally possesses a loaded or
unloaded firearm or any other instrument used as a dangerous
weapon, while in or on a public building, shall upon conviction
be guilty of a Class C felony.
(2)(a) Except as otherwise provided in paragraph (b) of this
subsection, a person who intentionally possesses:
(A) A firearm in a court facility is guilty, upon conviction,
of a Class C felony. A person who intentionally possesses a
firearm in a court facility shall surrender the firearm to a law
enforcement officer.
(B) A weapon, other than a firearm, in a court facility may be
required to surrender the weapon to a law enforcement officer or
to immediately remove it from the court facility. A person who
fails to comply with this subparagraph is guilty, upon
conviction, of a Class C felony.
(b) The presiding judge of a judicial district may enter an
order permitting the possession of specified weapons in a court
facility.
(3) Subsection (1) of this section does not apply to:
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(a) A sheriff, police officer, other duly appointed peace
officers or a corrections officer while acting within the scope
of employment.
(b) A person summoned by a peace officer to assist in making an
arrest or preserving the peace, while the summoned person is
engaged in assisting the officer.
(c) An active or reserve member of the military forces of this
state or the United States, when engaged in the performance of
duty.
(d) A person who is licensed under ORS 166.291 and 166.292 to
carry a concealed handgun.
(e) A person who is authorized by the officer or agency that
controls the public building to possess a firearm or dangerous
weapon in that public building.
(f) Possession of a firearm on school property if the firearm:
(A) Is possessed by a person who is not otherwise prohibited
from possessing the firearm; and
(B) Is unloaded and locked in a motor vehicle.
(4) The exceptions listed in subsection (3)(b) to (f) of this
section constitute affirmative defenses to a charge of violating
subsection (1) of this section.
(5)(a) Any person who knowingly, or with reckless disregard for
the safety of another, discharges or attempts to discharge a
firearm at a place that the person knows is a school shall upon
conviction be guilty of a Class C felony.
(b) Paragraph (a) of this subsection does not apply to the
discharge of a firearm:
(A) As part of a program approved by a school in the school by
an individual who is participating in the program; or
(B) By a law enforcement officer acting in the officer's
official capacity.
{ + (6) Any weapon carried in violation of this section is
subject to the forfeiture provisions of section 52 of this 2001
Act. + }
{ - (6) - } { + (7) + } Notwithstanding the fact that a
person's conduct in a single criminal episode constitutes a
violation of both subsections (1) and (5) of this section, the
district attorney may charge the person with only one of the
offenses.
{ - (7) - } { + (8) + } As used in this section, 'dangerous
weapon' means a dangerous weapon as that term is defined in ORS
161.015.
SECTION 37. ORS 166.282, as amended by section 25 of this 2001
Act, is amended to read:
166.282. (1) A political subdivision in this state that sells a
weapon described in subsection (2) of this section shall pay the
proceeds from the sale of the weapon, less the costs of the sale,
to the account of the police agency that received or seized the
weapon, to be used for purposes of public safety, law enforcement
and crime prevention and detection.
(2) Subsection (1) of this section applies to a weapon that
is { + :
(a) + } Donated to the police agency { + ; or
(b) Seized by the police agency under section 52 of this 2001
Act + }.
SECTION 38. ORS 166.660, as amended by section 26 of this 2001
Act, is amended to read:
166.660. (1) A person commits the crime of unlawful
paramilitary activity if the person:
Enrolled House Bill 3642 (HB 3642-A) Page 33
(a) Exhibits, displays or demonstrates to another person the
use, application or making of any firearm, explosive or
incendiary device or any technique capable of causing injury or
death to persons and intends or knows that such firearm,
explosive or incendiary device or technique will be unlawfully
employed for use in a civil disorder; or
(b) Assembles with one or more other persons for the purpose of
training with, practicing with or being instructed in the use of
any firearm, explosive or incendiary device or technique capable
of causing injury or death to persons with the intent to
unlawfully employ such firearm, explosive or incendiary device or
technique in a civil disorder.
(2)(a) Nothing in this section makes unlawful any act of any
law enforcement officer performed in the otherwise lawful
performance of the officer's official duties.
(b) Nothing in this section makes unlawful any activity of the
State Department of Fish and Wildlife, or any activity intended
to teach or practice self-defense or self-defense techniques,
such as karate clubs or self-defense clinics, and similar lawful
activity, or any facility, program or lawful activity related to
firearms instruction and training intended to teach the safe
handling and use of firearms, or any other lawful sports or
activities related to the individual recreational use or
possession of firearms, including but not limited to hunting
activities, target shooting, self-defense, firearms collection or
any organized activity including, but not limited to any hunting
club, rifle club, rifle range or shooting range which does not
include a conspiracy as defined in ORS 161.450 or the knowledge
of or the intent to cause or further a civil disorder.
(3) Unlawful paramilitary activity is a Class C felony. { + In
addition to any other penalty imposed pursuant to this section,
the court may order forfeited to the State of Oregon for the
benefit of the Common School Fund any firearm or explosive or
incendiary device used in any activity in violation of this
section. + }
(4) As used in this section:
(a) 'Civil disorder' means acts of physical violence by
assemblages of three or more persons which cause damage or
injury, or immediate danger thereof, to the person or property of
any other individual.
(b) 'Firearm' means a weapon, by whatever name known, which is
designed to expel a projectile by the action of black powder or
smokeless black powder and which is readily capable of use as a
weapon.
(c) 'Explosive' means a chemical compound, mixture or device
that is commonly used or intended for the purpose of producing a
chemical reaction resulting in a substantially instantaneous
release of gas and heat, including but not limited to dynamite,
blasting powder, nitroglycerin, blasting caps and nitrojelly, but
excluding fireworks as defined in ORS 480.110 (1), black powder,
smokeless powder, small arms ammunition and small arms ammunition
primers.
(d) 'Law enforcement officer' means any duly constituted police
officer of the United States, any state, any political
subdivision of a state or the District of Columbia, and also
includes members of the military reserve forces or National Guard
as defined in 10 U.S.C. 101 (9), members of the organized militia
of any state or territory of the United States, the Commonwealth
of Puerto Rico or the District of Columbia not included within
the definition of National Guard as defined by 10 U.S.C. 101 (9),
Enrolled House Bill 3642 (HB 3642-A) Page 34
members of the Armed Forces of the United States and such persons
as are defined in ORS 161.015 (4) when in the performance of
official duties.
SECTION 39. ORS 137.138, as amended by section 27 of this 2001
Act, is amended to read:
137.138. (1) In addition to and not in lieu of any other
sentence it may impose, a court shall require a defendant
convicted under ORS 164.365, 166.663, 167.315, { + 167.320,
167.322, + } 498.056 or 498.146 or other state, county or
municipal laws, for an act involving or connected with injuring,
damaging, mistreating or killing a livestock animal, to forfeit
any rights in weapons used in connection with the act underlying
the conviction.
(2) In addition to and not in lieu of any other sentence it may
impose, a court shall revoke any hunting license possessed by a
defendant convicted as described in subsection (1) of this
section.
(3) The State Fish and Wildlife Director shall refuse to issue
a hunting license to a defendant convicted as described under
subsection (1) of this section for a period of two years
following the conviction.
(4) As used in this section, 'livestock animal' has the meaning
given in ORS 164.055.
{ + NOTE: + } Section 40 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 41. ORS 167.350, as amended by section 29 of this 2001
Act, is amended to read:
167.350. (1) In addition to and not in lieu of any other
sentence it may impose, a court may require a defendant convicted
under ORS 167.315 to 167.330 or 167.340 to forfeit any rights of
the defendant in the animal subjected to abuse, neglect or
abandonment, and to repay the reasonable costs incurred by any
person or agency prior to judgment in caring for each animal
subjected to abuse, neglect or abandonment.
(2) When the court orders the defendant's rights in the animal
to be forfeited, the court may further order that those rights be
given over to an appropriate person or agency demonstrating a
willingness to accept and care for the animal or to the county or
an appropriate animal care agency for further disposition in
accordance with accepted practices for humane treatment of
animals. This subsection shall not constitute or authorize any
limitation upon the right of the person or agency to whom rights
are granted to resell or otherwise make disposition of the
animal. A transfer of rights under this subsection constitutes a
transfer of ownership.
(3) In addition to and not in lieu of any other sentence it may
impose, a court may order the owner or person having custody of
an animal to repay the reasonable costs incurred by any person or
agency in providing water, food or first aid treatment under ORS
167.345 (1).
(4) A court may order a person convicted under ORS 167.315 to
167.330 or 167.340 to participate in available animal cruelty
prevention programs or education programs, or both, or to obtain
psychological counseling for treatment of mental health disorders
that, in the court's judgment, contributed to the commission of
the crime. The person shall bear any costs incurred by the person
for participation in counseling or treatment programs under this
subsection.
{ - (5) Sections 1 to 18 of this 2001 Act do not apply to the
forfeiture of an animal subjected to abuse, neglect or
Enrolled House Bill 3642 (HB 3642-A) Page 35
abandonment in violation of ORS 167.315 to 167.330 or 167.340.
Any such animal is subject to forfeiture as provided in
subsections (1) to (3) of this section. - }
SECTION 42. ORS 164.864, as amended by section 30 of this 2001
Act, is amended to read:
164.864. As used in ORS 164.865, 164.866, 164.868, 164.869,
164.872, 164.873 and 164.875 and this section { + and section 50
of this 2001 Act + }, unless the context requires otherwise:
(1) 'Commercial enterprise' means a business operating in
intrastate or interstate commerce for profit. 'Commercial
enterprise' does not include:
(a) Activities by schools, libraries or religious
organizations;
(b) Activities incidental to a bona fide scholastic or critical
endeavor;
(c) Activities incidental to the marketing or sale of recording
devices; and
(d) Activities involving the recording of school or religious
events or activities.
(2) 'Fixed' means embodied in a recording or other tangible
medium of expression, by or under the authority of the author, so
that the matter embodied is sufficiently permanent or stable to
permit it to be perceived, reproduced or otherwise communicated
for a period of more than transitory duration.
(3) 'Live performance' means a recitation, rendering or playing
of musical instruments or vocal arrangements in an audible
sequence in a public performance.
(4) 'Manufacturer' means the entity authorizing the duplication
of a specific recording, but shall not include the manufacturer
of the cartridge or casing itself.
(5) 'Master recording' means the master disk, master tape,
master film or other device used for reproducing recorded sound
from which a sound recording is directly or indirectly derived.
(6) 'Motion picture' includes any motion picture, regardless of
length or content, that is exhibited in a motion picture theater
to paying customers, exhibited on television to paying customers
or under the sponsorship of a paying advertiser or produced and
exhibited for scientific research or educational purposes.
'Motion picture' does not include motion pictures exhibited at
home or movies or amateur films that are shown free or at cost to
friends, neighbors or civic groups.
(7) 'Owner' means a person who owns the sounds fixed in a
master phonograph record, master disk, master tape, master film
or other recording on which sound is or can be recorded and from
which the transferred recorded sounds are directly or indirectly
derived.
(8) 'Recording' means a tangible medium on which information,
sounds or images, or any combination thereof, are recorded or
otherwise stored. Medium includes, but is not limited to, an
original phonograph record, disk, tape, audio or video cassette,
wire, film or other medium now existing or developed later on
which sounds, images or both are or can be recorded or otherwise
stored or a copy or reproduction that duplicates in whole or in
part the original.
(9) 'Sound recording' means any reproduction of a master
recording.
(10) 'Videotape' means a reel of tape upon which a motion
picture is electronically or magnetically imprinted by means of
an electronic video recorder and which may be used in video
Enrolled House Bill 3642 (HB 3642-A) Page 36
playback equipment to project or display the motion picture on a
television screen.
SECTION 43. ORS 164.866, as amended by section 31 of this 2001
Act, is amended to read:
164.866. Nothing in ORS 164.864, 164.865, 164.868, 164.869,
164.872, 164.873 or 164.875 or this section { + or section 50 of
this 2001 Act + } limits or impairs the right of a person injured
by the criminal acts of a defendant to sue and recover damages
from the defendant in a civil action.
SECTION 44. ORS 166.210, as amended by section 32 of this 2001
Act, is amended to read:
166.210. As used in ORS 166.250 to 166.270, 166.291 to 166.295
and 166.410 to 166.470 { + and section 52 of this 2001 Act + }:
(1) 'Antique firearm' means:
(a) Any firearm, including any firearm with a matchlock,
flintlock, percussion cap or similar type of ignition system,
manufactured in or before 1898; and
(b) Any replica of any firearm described in paragraph (a) of
this subsection if the replica:
(A) Is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition; or
(B) Uses rimfire or conventional centerfire fixed ammunition
that is no longer manufactured in the United States and that is
not readily available in the ordinary channels of commercial
trade.
(2) 'Firearm' means a weapon, by whatever name known, which is
designed to expel a projectile by the action of powder and which
is readily capable of use as a weapon.
(3) 'Firearms silencer' means any device for silencing,
muffling or diminishing the report of a firearm.
(4) 'Handgun' means any pistol or revolver using a fixed
cartridge containing a propellant charge, primer and projectile,
and designed to be aimed or fired otherwise than from the
shoulder.
(5) 'Machine gun' means a weapon of any description by whatever
name known, loaded or unloaded, which is designed or modified to
allow two or more shots to be fired by a single pressure on the
trigger device.
(6) 'Minor' means a person under 18 years of age.
(7) 'Parole and probation officer' has the meaning given that
term in ORS 181.610.
(8) 'Short-barreled rifle' means a rifle having one or more
barrels less than 16 inches in length and any weapon made from a
rifle if the weapon has an overall length of less than 26 inches.
(9) 'Short-barreled shotgun' means a shotgun having one or more
barrels less than 18 inches in length and any weapon made from a
shotgun if the weapon has an overall length of less than 26
inches.
SECTION 45. ORS 166.250, as amended by section 33 of this 2001
Act, is amended to read:
166.250. (1) Except as otherwise provided in this section or
ORS 166.260, 166.270, 166.274, 166.291, 166.292 or 166.410 to
166.470 { + or section 52 of this 2001 Act + }, a person commits
the crime of unlawful possession of a firearm if the person
knowingly:
(a) Carries any firearm concealed upon the person;
(b) Possesses a handgun that is concealed and readily
accessible to the person within any vehicle; or
(c) Possesses a firearm and:
(A) Is under 18 years of age;
Enrolled House Bill 3642 (HB 3642-A) Page 37
(B)(i) While a minor, was found to be within the jurisdiction
of the juvenile court for having committed an act which, if
committed by an adult, would constitute a felony or a misdemeanor
involving violence, as defined in ORS 166.470; and
(ii) Was discharged from the jurisdiction of the juvenile court
within four years prior to being charged under this section;
(C) Has been convicted of a felony or found guilty, except for
insanity under ORS 161.295, of a felony;
(D) Was committed to the Mental Health and Developmental
Disability Services Division under ORS 426.130; or
(E) Was found to be mentally ill and subject to an order under
ORS 426.130 that the person be prohibited from purchasing or
possessing a firearm as a result of that mental illness.
(2) This section does not prohibit:
(a) A minor, who is not otherwise prohibited under subsection
(1)(c) of this section, from possessing a firearm:
(A) Other than a handgun, if the firearm was transferred to the
minor by the minor's parent or guardian or by another person with
the consent of the minor's parent or guardian; or
(B) Temporarily for hunting, target practice or any other
lawful purpose; or
(b) Any citizen of the United States over the age of 18 years
who resides in or is temporarily sojourning within this state,
and who is not within the excepted classes prescribed by ORS
166.270 and subsection (1) of this section, from owning,
possessing or keeping within the person's place of residence or
place of business any handgun, and no permit or license to
purchase, own, possess or keep any such firearm at the person's
place of residence or place of business is required of any such
citizen. As used in this subsection, 'residence' includes a
recreational vessel or recreational vehicle while used, for
whatever period of time, as residential quarters.
(3) Firearms carried openly in belt holsters are not concealed
within the meaning of this section.
(4) Unlawful possession of a firearm is a Class A misdemeanor.
SECTION 46. ORS 166.410, as amended by section 34 of this 2001
Act, is amended to read:
166.410. Any person who manufactures or causes to be
manufactured within this state, or who imports into this state,
or offers, exposes for sale, or sells or transfers a handgun,
short-barreled rifle, short-barreled shotgun, firearms silencer
or machine gun, otherwise than in accordance with ORS 166.250 to
166.270, 166.291, 166.292 and 166.425 to 166.470 { + and section
52 of this 2001 Act + }, shall be guilty of a Class B felony.
SECTION 47. ORS 166.460, as amended by section 11, chapter 1,
Oregon Laws 2001, and as amended by section 35 of this 2001 Act,
is amended to read:
166.460. (1) ORS 166.250, 166.260, 166.291 to 166.295, 166.410,
166.412, 166.425 and 166.450 and sections 5 and 7, chapter 1,
Oregon Laws 2001, { + and section 52 of this 2001 Act + } do not
apply to antique firearms.
(2) Notwithstanding the provisions of subsection (1) of this
section, possession of an antique firearm by a person described
in ORS 166.250 (1)(c)(B), (C) or (D) constitutes a violation of
ORS 166.250.
SECTION 48. { + Section 49 of this 2001 Act is added to and
made a part of ORS 163.670 to 163.695. + }
SECTION 49. { + (1) The following materials shall be forfeited
to the state in the same manner and with like effect as provided
in ORS 471.660 and 471.666:
Enrolled House Bill 3642 (HB 3642-A) Page 38
(a) Any photograph, motion picture, videotape or other visual
recording of sexually explicit conduct involving a child.
(b) All raw materials, equipment and other tangible personal
property of any kind used or intended to be used to manufacture
or process any photograph, motion picture, videotape or other
visual recording of sexually explicit conduct involving a child.
(c) All conveyances, including aircraft, boats, vehicles and
vessels that are used or intended to be used by or with the
knowledge of the owner, operator or person in charge thereof to
transport or in any way to facilitate the transportation of a
visual recording dealt with, transported or possessed in
violation of ORS 163.684, 163.686 or 163.687.
(2) No conveyance used by any person as a common carrier in the
transaction of business as a common carrier is subject to
forfeiture under this section unless it appears that the owner or
other person in charge of the conveyance is a consenting party or
privy to the violation of ORS 163.684, 163.686 or 163.687. + }
SECTION 50. { + (1) When a person is convicted of violating
any provision of ORS 164.868, 164.869 (1) and (2) or 164.872, the
court shall include in its judgment of conviction, in addition to
any other penalty imposed, an order directing the forfeiture and
destruction, or other disposition, of all articles that were used
in connection with or were a part of the violation for which the
person was convicted. The articles include, but are not limited
to, phonograph records, discs, wires, tapes, films, labels or
other articles upon which sounds or images can be recorded or
stored and any electronic, mechanical or other devices for
manufacturing, reproducing or assembling the articles.
(2) The district attorney may institute forfeiture proceedings
for any recordings recorded or labeled in violation of ORS
164.868, 164.869 (1) and (2) or 164.872, regardless of lack of
knowledge or intent on the part of the manufacturer, distributor
or retail seller. + }
SECTION 51. { + (1) In addition to any other sentence the
court may impose upon a conviction under ORS 165.577, 165.579 or
165.581, the court may order the forfeiture of any cloning
paraphernalia used in violating ORS 165.577, 165.579 or 165.581.
(2) A prosecution under ORS 165.577, 165.579 or 165.581 does
not preclude civil liability under any applicable provision of
law. + }
SECTION 52. { + (1) The unlawful concealed carrying upon the
person or within the vehicle of the carrier of any machine gun,
pistol, revolver, other firearm capable of being concealed upon
the person, or any firearm or any dangerous weapon described in
ORS 161.015, used during the commission of any felony or
misdemeanor is a nuisance. Any such weapons taken from the person
or vehicle of any person unlawfully carrying the same are
nuisances, and shall be surrendered to the magistrate before whom
the person is taken, except that in any city, county, town or
other municipal corporation the weapons shall be surrendered to
the head of the police force or police department.
(2) The officers to whom the weapons are surrendered, except as
provided under subsection (4) of this section or upon the
certificate of a judge of a court of record or of the district
attorney of the county that their preservation is necessary or
proper to the ends of justice, shall have authority and be
responsible, subject to applicable laws, for selling such weapons
or shall destroy the weapons to such extent that they are wholly
and entirely ineffective and useless for the purpose for which
they were manufactured.
Enrolled House Bill 3642 (HB 3642-A) Page 39
(3) Upon the certificate of a judge or of the district attorney
that the ends of justice will be subserved thereby, such weapon
shall be preserved until the necessity for its use ceases, at
which time, except as provided under subsection (4) of this
section, the court shall order that the weapons be delivered to
the officials having responsibility under applicable laws and
subsection (2) of this section for selling such weapons, or
destroying the weapons to such extent that they are wholly and
entirely ineffective and useless for the purpose for which they
were manufactured.
(4) In the event any such weapon has been stolen and is
thereafter recovered from the thief or the thief's transferee, it
may not be destroyed but shall be restored to its lawful owner as
soon as its use as evidence has been served, upon identification
of the weapon and proof of ownership.
(5) The sale of any weapons under this section shall be by
public auction. The agency holding the weapons shall conduct the
auction annually. The agency shall publish notice of the time and
place of the auction in the principal local newspaper no less
than 20 nor more than 30 days before the date of the auction.
Written or printed notice of the auction shall also be posted in
three public places of the county where the sale is to take
place, not less than 10 days successively. The agency shall
permit public inspection of the weapons to be auctioned. Items
shall be sold individually unless there is no interested bidder,
in which case they may be sold in lots.
(6) Notwithstanding the provisions of subsections (2) to (5) of
this section, weapons described in subsection (1) of this section
may be disposed of in accordance with ORS 98.245.
(7) The proceeds of a sale of a weapon under this section shall
be subject to ORS 166.282. + }
SECTION 53. { + Section 54 of this 2001 Act is added to and
made a part of ORS 167.360 to 167.380. + }
SECTION 54. { + (1) In addition to and not in lieu of any
other penalty it may impose upon a person convicted of
dogfighting under ORS 167.365 or participating in dogfighting
under ORS 167.370, the court shall, as a part of the judgment,
order to be forfeited to the city or county wherein the crime
occurred, as the case may be, the person's rights in any fighting
dogs or property proved to have been used by the defendant as an
instrumentality in the commission of the crime.
(2) A fighting dog is a public nuisance, regardless of whether
or not a person has been convicted of animal fighting with
respect to the dog, and a dog proved by a preponderance of the
evidence to be a fighting dog in a forfeiture proceeding shall be
forfeited to the county in which the dog was found, to be
destroyed as provided in this section.
(3) When a court orders a fighting dog to be forfeited, the dog
shall be destroyed by a method consistent with such state law
regulating methods to be used for destruction of animals. No
forfeited fighting dog shall be released or given to any person
or agency other than for purposes of destruction in accordance
with this subsection. + }
SECTION 55. { + Sections 1 to 19 of this 2001 Act and the
amendments to and repeal of statutes by sections 20, 22, 24 to 35
and 56 of this 2001 Act apply to property seized for criminal
forfeiture on or after the operative date of this section. + }
SECTION 56. { + ORS 163.695, 164.876, 165.585, 166.280 and
167.380 are repealed. + }
Enrolled House Bill 3642 (HB 3642-A) Page 40
SECTION 57. { + Sections 1 to 19 of this 2001 Act are repealed
on July 31, 2005. + }
SECTION 58. { + (1) Sections 49 to 52 and 54 of this 2001 Act
become operative on July 31, 2005.
(2) The amendments to ORS 133.643, 137.138, 164.864, 164.866,
166.210, 166.250, 166.282, 166.370, 166.410, 166.460, 166.660,
167.350 and 475A.155 by sections 21, 23 and 36 to 47 of this 2001
Act become operative on July 31, 2005. + }
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Passed by House June 7, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 14, 2001
...........................................................
President of Senate
Enrolled House Bill 3642 (HB 3642-A) Page 41
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 3642 (HB 3642-A) Page 42