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 3595
 
                         Senate Bill 754
 
Sponsored by Senator METSGER, Representative WESTLUND; Senator
  MINNIS
 
 
                             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 as
introduced.
 
  Expands murder to include deaths caused by person fleeing or
attempting to elude police officer or, under some circumstances,
by person driving while under influence of intoxicants. Expands
assault in first and second degrees to include injuries caused by
person fleeing or attempting to elude police officer or, under
some circumstances, by person driving while under influence of
intoxicants.
 
                        A BILL FOR AN ACT
Relating to crime; amending ORS 163.115, 163.175 and 163.185.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 163.115 is amended to read:
  163.115. (1) Except as provided in ORS 163.118 and 163.125,
criminal homicide constitutes murder:
  (a) When it is committed intentionally, except that it is an
affirmative defense that, at the time of the homicide, the
defendant was under the influence of an extreme emotional
disturbance;
  (b) When it is committed by a person, acting either alone or
with one or more persons, who commits or attempts to commit any
of the following crimes and in the course of and in furtherance
of the crime the person is committing or attempting to commit, or
during the immediate flight therefrom, the person, or another
participant if there be any, causes the death of a person other
than one of the participants:
  (A) Arson in the first degree as defined in ORS 164.325;
  (B) Criminal mischief in the first degree by means of an
explosive as defined in ORS 164.365;
  (C) Burglary in the first degree as defined in ORS 164.225;
  (D) Escape in the first degree as defined in ORS 162.165;
  (E) Kidnapping in the second degree as defined in ORS 163.225;
  (F) Kidnapping in the first degree as defined in ORS 163.235;
  (G) Robbery in the first degree as defined in ORS 164.415;
  (H) Any felony sexual offense in the first degree defined in
this chapter;
  (I) Compelling prostitution as defined in ORS 167.017;
 { - or - }
  (J) Assault in the first degree, as defined in ORS 163.185, and
the victim is under 14 years of age, or assault in the second
 
degree, as defined in ORS 163.175 (1)(a) or (b), and the victim
is under 14 years of age; or
   { +  (K) Fleeing or attempting to elude a police officer as
defined in ORS 811.540; + }
  (c) By abuse when a person, recklessly under circumstances
manifesting extreme indifference to the value of human life,
causes the death of a child under 14 years of age or a dependent
person, as defined in ORS 163.205, and:
  (A) The person has previously engaged in a pattern or practice
of assault or torture of the victim or another child under 14
years of age or a dependent person; or
  (B) The person causes the death by neglect or
maltreatment { + ; or
  (d) When it is committed by a person who is driving while under
the influence of intoxicants and who previously:
  (A) Has been convicted of driving while under the influence of
intoxicants;
  (B) Has been charged with driving while under the influence of
intoxicants and is either in diversion or has completed diversion
under ORS 813.200 to 813.270; or
  (C) Has been charged with driving while under the influence of
intoxicants and has failed to appear on the charge + }.
  (2) An accusatory instrument alleging murder by abuse under
subsection (1)(c) of this section need not allege specific
incidents of assault or torture.
  (3) It is an affirmative defense to a charge of violating
subsection (1)(b) of this section that the defendant:
  (a) Was not the only participant in the underlying crime;
  (b) Did not commit the homicidal act or in any way solicit,
request, command, importune, cause or aid in the commission
thereof;
  (c) Was not armed with a dangerous or deadly weapon;
  (d) Had no reasonable ground to believe that any other
participant was armed with a dangerous or deadly weapon; and
  (e) Had no reasonable ground to believe that any other
participant intended to engage in conduct likely to result in
death.
  (4) It is an affirmative defense to a charge of violating
subsection (1)(c)(B) of this section that the child or dependent
person was under care or treatment solely by spiritual means
pursuant to the religious beliefs or practices of the child or
person or the parent or guardian of the child or person.
  (5)(a) A person convicted of murder, who was at least 15 years
of age at the time of committing the murder, shall be punished by
imprisonment for life.
  (b) When a defendant is convicted of murder under this section,
the court shall order that the defendant shall be confined for a
minimum of 25 years without possibility of parole, release to
post-prison supervision, release on work release or any form of
temporary leave or employment at a forest or work camp.
  (c) At any time after completion of a minimum period of
confinement pursuant to paragraph (b) of this subsection, the
State Board of Parole and Post-Prison Supervision, upon the
petition of a prisoner so confined, shall hold a hearing to
determine if the prisoner is likely to be rehabilitated within a
reasonable period of time. The sole issue shall be whether or not
the prisoner is likely to be rehabilitated within a reasonable
period of time. The proceeding shall be conducted in the manner
prescribed for a contested case hearing under ORS 183.310 to
183.550 except that:
  (A) The prisoner shall have the burden of proving by a
preponderance of the evidence the likelihood of rehabilitation
within a reasonable period of time; and
  (B) The prisoner shall have the right, if the prisoner is
without sufficient funds to employ an attorney, to be represented
by legal counsel, appointed by the board, at board expense.
  (d) If, upon hearing all of the evidence, the board, upon a
unanimous vote of all of its members, finds that the prisoner is
capable of rehabilitation and that the terms of the prisoner's
confinement should be changed to life imprisonment with the
possibility of parole, release to post-prison supervision or work
release, it shall enter an order to that effect and the order
shall convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole, release to
post-prison supervision or work release and may set a release
date. Otherwise, the board shall deny the relief sought in the
petition.
  (e) Not less than two years after the denial of the relief
sought in a petition under paragraph (c) of this subsection, the
prisoner may petition again for a change in the terms of
confinement. Further petitions for a change may be filed at
intervals of not less than two years thereafter.
  (6) As used in this section:
  (a) 'Assault' means to intentionally, knowingly or recklessly
cause physical injury to another person. 'Assault ' does not
include the causing of physical injury in a motor vehicle
accident that occurs by reason of the reckless conduct of a
defendant.
  (b) 'Neglect or maltreatment' means a violation of ORS 163.535,
163.545 or 163.547 or a failure to provide adequate food,
clothing, shelter or medical care that is likely to endanger the
health or welfare of a child under 14 years of age or a dependent
person. This paragraph is not intended to replace or affect the
duty or standard of care required under ORS chapter 677.
  (c) 'Pattern or practice' means one or more previous episodes.
  (d) 'Torture' means to intentionally inflict intense physical
pain upon an unwilling victim as a separate objective apart from
any other purpose.
  SECTION 2. ORS 163.175 is amended to read:
  163.175. (1) A person commits the crime of assault in the
second degree if the person:
  (a) Intentionally or knowingly causes serious physical injury
to another;   { - or - }
  (b) Intentionally or knowingly causes physical injury to
another by means of a deadly or dangerous weapon;   { - or - }
  (c) Recklessly causes serious physical injury to another by
means of a deadly or dangerous weapon under circumstances
manifesting extreme indifference to the value of human life { + ;
  (d) Causes physical injury to another while in the course of or
in furtherance of fleeing or attempting to elude a police officer
as defined in ORS 811.540; or
  (e) Causes physical injury to another while driving while under
the influence of intoxicants and previously has been:
  (A) Convicted of driving while under the influence of
intoxicants;
  (B) Charged with driving while under the influence of
intoxicants and is either in diversion or has completed diversion
under ORS 813.200 to 813.270; or
  (C) Charged with driving while under the influence of
intoxicants and has failed to appear on the charge + }.
  (2) Assault in the second degree is a Class B felony.
  SECTION 3. ORS 163.185 is amended to read:
  163.185. (1) A person commits the crime of assault in the first
degree if the person { + :
  (a) + } Intentionally causes serious physical injury to another
by means of a deadly or dangerous weapon { + ;
  (b) Causes serious physical injury to another while in the
course of or in furtherance of fleeing or attempting to elude a
police officer as defined in ORS 811.540; or
  (c) Causes serious physical injury to another while driving
while under the influence of intoxicants and previously has been:
 
  (A) Convicted of driving while under the influence of
intoxicants;
  (B) Charged with driving while under the influence of
intoxicants and is either in diversion or has completed diversion
under ORS 813.200 to 813.270; or
  (C) Charged with driving while under the influence of
intoxicants and has failed to appear on the charge + }.
  (2) Assault in the first degree is a Class A felony.
                         ----------