71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2442
A-Engrossed
Senate Bill 472
Ordered by the Senate May 7
Including Senate Amendments dated May 7
Sponsored by Senators COURTNEY, MINNIS; Senator CORCORAN
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Enhances penalty for crime of failure to perform duties of
driver to injured persons if accident results in { + serious
physical injury or + } death. Punishes by maximum of 10 years'
imprisonment, $200,000 fine, or both.
{ + Elevates crime categories for felony driving under the
influence of intoxicants, criminally negligent homicide and
manslaughter in second degree.
Approves certain rules adopted or amended by Oregon Criminal
Justice Commission. Increases membership of commission. + }
A BILL FOR AN ACT
Relating to crime; creating new provisions; and amending ORS
137.225, 137.654, 163.145, 811.705 and 813.012.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 811.705 is amended to read:
811.705. (1) A person commits the offense of failure to perform
the duties of a driver to injured persons if the person is the
driver of any vehicle involved in an accident that results in
injury or death to any person and does not do all of the
following:
(a) Immediately stop the vehicle at the scene of the accident
or as close thereto as possible. Every stop required under this
paragraph shall be made without obstructing traffic more than is
necessary.
(b) Remain at the scene of the accident until the driver has
fulfilled all of the requirements under this subsection.
(c) Give to the other driver or surviving passenger or any
person not a passenger who is injured as a result of the accident
the name and address of the driver and the registration number of
the vehicle that the driver is driving and the name and address
of any other occupants of the vehicle.
(d) Upon request and if available, exhibit and give to the
persons injured or to the occupant of or person attending any
vehicle damaged the number of any document issued as official
evidence of a grant of driving privileges.
(e) Render to any person injured in the accident reasonable
assistance, including the conveying or the making of arrangements
for the conveying of such person to a physician, surgeon or
hospital for medical or surgical treatment, if it is apparent
that such treatment is necessary or if such conveying is
requested by any injured person.
(f) Remain at the scene of an accident until a police officer
has arrived and has received the required information, if all
persons required to be given information under paragraph (c) of
this subsection are killed in the accident or are unconscious or
otherwise incapable of receiving the information. The requirement
of this paragraph to remain at the scene of an accident until a
police officer arrives does not apply to a driver who needs
immediate medical care, who needs to leave the scene in order to
secure medical care for another person injured in the accident or
who needs to leave the scene in order to report the accident to
the authorities, so long as the driver who leaves takes
reasonable steps to return to the scene or to contact the nearest
police agency.
(2) { + (a) Except as otherwise provided in paragraph (b) of
this subsection, + } the offense described in this section,
failure to perform the duties of a driver to injured persons, is
a Class C felony and is applicable on any premises open to the
public.
{ + (b) Failure to perform the duties of a driver to injured
persons is a Class B felony if a person suffers serious physical
injury as defined in ORS 161.015 or dies as a result of the
accident. + }
SECTION 2. { + The Oregon Criminal Justice Commission shall
classify the crime of failure to perform the duties of a driver
to injured persons as crime category 8 of the sentencing
guidelines grid of the commission if a person suffers serious
physical injury as defined in ORS 161.015 or dies as a result of
the accident that forms the basis of the conviction. + }
SECTION 3. ORS 813.012 is amended to read:
813.012. (1) The Oregon Criminal Justice Commission shall
classify a violation of ORS 813.010 that is a felony as crime
category { - 6 - } { + 7 + } of the rules of the { - Oregon
Criminal Justice - } commission.
(2) In determining criminal history for a person convicted of a
felony that has operation of a motor vehicle as an element, or of
a felony that involved death, injury or property damage caused by
the use of a motor vehicle, the commission shall:
(a) Consider two prior convictions of misdemeanor driving while
under the influence of intoxicants to be equivalent to one
conviction of felony driving while under the influence of
intoxicants; and
(b) Consider felony driving while under the influence of
intoxicants to be a person felony and consider misdemeanor
driving while under the influence of intoxicants to be a person
Class A misdemeanor.
SECTION 4. ORS 163.145 is amended to read:
163.145. (1) A person commits the crime of criminally negligent
homicide when, with criminal negligence, the person causes the
death of another person.
(2) Criminally negligent homicide is a Class { - C - } { +
B + } felony.
SECTION 5. { + The Oregon Criminal Justice Commission shall
classify manslaughter in the second degree as described in ORS
163.125 and criminally negligent homicide as described in ORS
163.145 as crime category 9 of the rules of the commission. + }
SECTION 6. ORS 137.225 is amended to read:
137.225. (1)(a) At any time after the lapse of three years from
the date of pronouncement of judgment, any defendant who has
fully complied with and performed the sentence of the court and
whose conviction is described in subsection (5) of this section
by motion may apply to the court wherein that conviction was
entered for entry of an order setting aside the conviction; or
(b) At any time after the lapse of one year from the date of
any arrest, if no accusatory instrument was filed, or at any time
after an acquittal or a dismissal of the charge, the arrested
person may apply to the court which would have jurisdiction over
the crime for which the person was arrested, for entry of an
order setting aside the record of such arrest. For the purpose of
computing the one-year period, time during which the arrested
person has secreted himself or herself within or without the
state shall not be included.
(2)(a) A copy of the motion and a full set of the defendant's
fingerprints shall be served upon the office of the prosecuting
attorney who prosecuted the crime or violation, or who had
authority to prosecute the charge if there was no accusatory
instrument filed, and opportunity be given to contest the motion.
The fingerprint card with the notation 'motion for setting aside
conviction' or 'motion for setting aside arrest record' as the
case may be, shall be forwarded to the Department of State Police
Bureau of Criminal Identification. Information resulting from the
fingerprint search along with the fingerprint card shall be
returned to the prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a
motion to set aside a conviction under this section, the
prosecuting attorney shall provide a copy of the motion and
notice of the hearing date to the victim, if any, of the crime by
mailing a copy of the motion and notice to the victim's
last-known address.
(c) When a person makes a motion under subsection (1)(a) of
this section, the person must pay a fee of $80. The person shall
attach a certified check payable to the Department of State
Police in the amount of $80 to the fingerprint card that is
served upon the prosecuting attorney. The office of the
prosecuting attorney shall forward the check with the fingerprint
card to the Department of State Police Bureau of Criminal
Identification.
(3) Upon hearing the motion, the court may require the filing
of such affidavits and may require the taking of such proofs as
it deems proper. The court shall allow the victim to make a
statement at the hearing. Except as otherwise provided in
subsection (11) of this section, if the court determines that the
circumstances and behavior of the applicant from the date of
conviction, or from the date of arrest as the case may be, to the
date of the hearing on the motion warrant setting aside the
conviction, or the arrest record as the case may be, it shall
enter an appropriate order which shall state the original arrest
charge and the conviction charge, if any and if different from
the original, date of charge, submitting agency and disposition.
The order shall further state that positive identification has
been established by the bureau and further identified as to state
bureau number or submitting agency number. Upon the entry of such
an order, the applicant for purposes of the law shall be deemed
not to have been previously convicted, or arrested as the case
may be, and the court shall issue an order sealing the record of
conviction and other official records in the case, including the
records of arrest whether or not the arrest resulted in a further
criminal proceeding.
(4) The clerk of the court shall forward a certified copy of
the order to such agencies as directed by the court. A certified
copy must be sent to the Department of Corrections when the
person has been in the custody of the Department of Corrections.
Upon entry of such an order, such conviction, arrest or other
proceeding shall be deemed not to have occurred, and the
applicant may answer accordingly any questions relating to their
occurrence.
(5) The provisions of subsection (1)(a) of this section apply
to a conviction of:
(a) A Class C felony, except for criminal mistreatment in the
first degree under ORS 163.205 when it would constitute child
abuse, as defined in ORS 419B.005, or any sex crime.
(b) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
(c) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for:
(A) Any sex crime; and
(B) The following crimes when they would constitute child abuse
as defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(d) A misdemeanor, including a violation of a municipal
ordinance, for which a jail sentence may be imposed, except for
endangering the welfare of a minor under ORS 163.575 (1)(a) when
it would constitute child abuse, as defined in ORS 419B.005, or
any sex crime.
(e) A violation, whether under state law or local ordinance.
(f) An offense committed before January 1, 1972, which if
committed after that date would be:
(A) A Class C felony, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(C) A misdemeanor, except for endangering the welfare of a
minor under ORS 163.575 (1)(a) when it would constitute child
abuse, as defined in ORS 419B.005, or any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the
provisions of subsection (1) of this section do not apply to:
(a) A person convicted of, or arrested for, a state or
municipal traffic offense;
(b) A person convicted, within the 10-year period immediately
preceding the filing of the motion pursuant to subsection (1) of
this section, of any other offense, excluding motor vehicle
violations, whether or not the other conviction is for conduct
associated with the same criminal episode that caused the arrest
or conviction that is sought to be set aside. Notwithstanding
subsection (1) of this section, a conviction which has been set
aside under this section shall be considered for the purpose of
determining whether this paragraph is applicable; or
(c) A person who at the time the motion authorized by
subsection (1) of this section is pending before the court is
under charge of commission of any crime.
(7) The provisions of subsection (1)(b) of this section do not
apply to a person arrested within the three-year period
immediately preceding the filing of the motion for any offense,
excluding motor vehicle violations, and excluding arrests for
conduct associated with the same criminal episode that caused the
arrest that is sought to be set aside.
(8) The provisions of subsection (1) of this section apply to
convictions and arrests which occurred before, as well as those
which occurred after, September 9, 1971. There shall be no time
limit for making such application.
(9) For purposes of any civil action in which truth is an
element of a claim for relief or affirmative defense, the
provisions of subsection (3) of this section providing that the
conviction, arrest or other proceeding be deemed not to have
occurred shall not apply and a party may apply to the court for
an order requiring disclosure of the official records in the case
as may be necessary in the interest of justice.
(10) Upon motion of any prosecutor or defendant in a case
involving records sealed under this section, supported by
affidavit showing good cause, the court with jurisdiction may
order the reopening and disclosure of any records sealed under
this section for the limited purpose of assisting the
investigation of the movant. However, such an order shall have no
other effect on the orders setting aside the conviction or the
arrest record.
(11) Unless the court makes written findings by clear and
convincing evidence that granting the motion would not be in the
best interests of justice, the court shall grant the motion and
enter an order as provided in subsection (3) of this section if
the defendant has been convicted of one of the following crimes
and is otherwise eligible for relief under this section:
(a) Abandonment of a child, ORS 163.535.
(b) Attempted assault in the second degree, ORS 163.175.
(c) Assault in the third degree, ORS 163.165.
(d) Coercion, ORS 163.275.
(e) Criminal mistreatment in the first degree, ORS 163.205.
(f) Attempted escape in the first degree, ORS 162.165.
(g) Incest, ORS 163.525, if the victim was at least 18 years of
age.
(h) Intimidation in the first degree, ORS 166.165.
(i) Attempted kidnapping in the second degree, ORS 163.225.
{ - (j) Criminally negligent homicide, ORS 163.145. - }
{ - (k) - } { + (j) + } Attempted robbery in the second
degree, ORS 164.405.
{ - (L) - } { + (k) + } Robbery in the third degree, ORS
164.395.
{ - (m) - } { + (L) + } Supplying contraband, ORS 162.185.
{ - (n) - } { + (m) + } Unlawful use of a weapon, ORS
166.220.
(12) As used in this section, 'sex crime' has the meaning given
that term in ORS 181.594.
SECTION 7. { + (1) The Seventy-first Legislative Assembly
approves the adoption by the Oregon Criminal Justice Commission
of OAR 213-017-0000, 213-017-0001, 213-017-0002, 213-017-0003,
213-017-0004, 213-017-0005, 213-017-0006, 213-017-0007,
213-017-0008, 213-017-0009, 213-017-0010, 213-017-0011,
213-018-0000, 213-018-0005, 213-018-0010, 213-018-0015,
213-018-0020, 213-018-0025, 213-018-0030, 213-018-0035,
213-018-0040, 213-018-0045, 213-018-0050, 213-018-0055,
213-018-0060, 213-018-0065, 213-018-0070, 213-018-0075,
213-018-0080, 213-018-0085, 213-019-0000, 213-019-0001,
213-019-0002, 213-019-0003 and 213-019-0004.
(2) The Seventy-first Legislative Assembly approves the
amendments by the Oregon Criminal Justice Commission to OAR
213-001-0000, 213-001-0005, 213-003-0001 (14) to (16),
213-004-0002, 213-004-0009, 213-004-0010, 213-005-0001,
213-005-0002, 213-005-0004, 213-005-0007, 213-005-0008,
213-005-0011, 213-008-0003, 213-008-0005, 213-009-0002,
213-010-0002, 213-011-0003, 213-012-0010, 213-012-0020,
213-012-0030 and 213-013-0010. + }
SECTION 8. ORS 137.654 is amended to read:
137.654. (1) There is established the Oregon Criminal Justice
Commission consisting of { - seven members appointed by - }
{ + nine members. + } The Governor { + shall appoint seven
members who are + } { - , - } subject to confirmation by the
Senate pursuant to section 4, Article III of the Oregon
Constitution. { + The President of the Senate shall appoint one
state Senator as a nonvoting member. The Speaker of the House of
Representatives shall appoint one state Representative as a
nonvoting member. + } Members serve at the pleasure of the
{ - Governor - } { + appointing authority + }. The Governor
shall appoint members of the commission consistent with the
following:
(a) Members shall be appointed with consideration of the
different geographic regions of the state.
(b) Not more than four members may belong to the same political
party. Party affiliation is determined by the appropriate entry
on official election registration cards.
(2)(a) The term of office of each member is four years { + or
until the end of a legislative member's legislative term,
whichever occurs first + }. Before the expiration of the term of
a member, the { - Governor - } { + appointing authority + }
shall appoint a successor whose term begins immediately upon the
expiration of the term of the current member. A member is
eligible for reappointment but may serve no more than two
consecutive terms.
(b) In case of a vacancy for any cause, the { - Governor - }
{ + appointing authority + } shall appoint a person to fill the
office for the unexpired term. When a person is appointed under
this paragraph, the unexpired term may not be considered for
purposes of the limitation to two consecutive terms of service.
(3) The Governor shall appoint one of the commissioners as
chairperson, to serve at the pleasure of the Governor. The
members of the commission shall elect from among themselves a
vice chairperson who shall preside over meetings and exercise the
functions of the chairperson during absence or disability of the
chairperson. The chairperson and vice chairperson shall execute
the duties determined by the commission to be necessary.
(4) The chairperson shall appoint one member, subject to the
approval of the commission, to serve on an executive committee
with the chairperson and vice chairperson. The executive
committee may exercise the powers and responsibilities of the
commission between meetings of the commission. All action taken
by the executive committee not previously authorized must be
submitted to the commission for approval at the next regular or
special meeting.
(5) A majority of the { + voting + } members of the commission
constitutes a quorum for the transaction of business.
(6) The commission shall meet at least once a month, at a time
and place determined by the commission. The commission shall also
meet at such other times and places as are specified by the call
of the chairperson. If a majority of members, in writing, request
a special meeting, the chairperson shall designate a time for a
special meeting as requested.
(7) The Governor shall appoint an executive director for the
commission who shall be in the exempt service and who shall be
responsible for the performance of duties assigned by the
commission. Subject to the State Personnel Relations Law, the
executive director may employ appropriate staff to carry out the
duties assigned by the commission.
(8) Members of the commission are entitled to expenses as
provided in ORS 292.495. Subject to the availability of funds,
members of a committee established under ORS 137.658 who are not
commission members may be reimbursed for actual and necessary
travel and other expenses incurred by them in the performance of
their official duties, subject to ORS 292.495 (2). Any
legislative members are entitled to payment of compensation and
expense reimbursement under ORS 171.072, payable from funds
appropriated to the Legislative Assembly.
(9) The commission is subject to the provisions of ORS 291.201
to 291.222 and 291.232 to 291.260.
(10) The commission shall consult with and seek advice and
counsel of the Chief Justice of the Supreme Court and the State
Court Administrator on any matter that impacts the operation of
the courts. The Chief Justice may have a representative
participate in any meeting of the commission.
----------