Relating to criminal forfeiture of weapons; creating new provisions; amending ORS 166.210, 166.250, 166.282, 166.370, 166.410 and 166.460 and section 58, chapter 666, Oregon Laws 2001; and repealing ORS 166.281.

 
 
 
     72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 1179
 
                         House Bill 2728
 
Sponsored by Representative PROZANSKI; 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.
 
  Establishes alternative criminal forfeiture procedure for
weapons subject to forfeiture.
 
                        A BILL FOR AN ACT
Relating to criminal forfeiture of weapons; creating new
  provisions; amending ORS 166.210, 166.250, 166.282, 166.370,
  166.410 and 166.460 and section 58, chapter 666, Oregon Laws
  2001; and repealing ORS 166.281.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2003 Act is added to and made
a part of sections 1 to 18, chapter 666, Oregon Laws 2001. + }
  SECTION 2.  { + (1) Sections 2 to 18, chapter 666, Oregon Laws
2001, do not apply to the criminal forfeiture of a weapon that
was possessed, used or available for use to facilitate a criminal
offense if, upon forfeiture of the weapon:
  (a) The seizing agency destroys the weapon; or
  (b) The weapon is used by a law enforcement agency only for
training, identification or demonstration purposes.
  (2) Subject to the adjudication of third party interests as
provided in subsections (3) and (4) of this section, at the time
of sentencing for any criminal offense in which a weapon was
possessed, used or available for use to facilitate the offense, a
court may order that the weapon be forfeited and:
  (a) Destroyed by, or at the direction of, the seizing agency;
or
  (b) Released to a law enforcement agency to be used only for
training, identification or demonstration purposes.
  (3)(a) When a seizing agency or a prosecuting attorney seeks
forfeiture of a weapon under this section, the seizing agency or
prosecuting attorney shall serve a notice of intent to forfeit on
all persons, other than the defendant, who are known to have an
interest in the weapon. The notice of intent to forfeit must be
served not less than 15 days prior to the sentencing hearing and
must include:
  (A) The name and court number of the case in which forfeiture
will be requested;
  (B) The date, time and location of the sentencing hearing at
which forfeiture will be requested;
  (C) A description of the weapon that will be subject to a
forfeiture order;
  (D) The identity of the seizing agency;
  (E) The location where the weapon was seized; and
  (F) A statement that failure to appear at the sentencing
hearing constitutes a waiver of any claim of rightful ownership
of the weapon.
  (b) Unless another manner of service is authorized by the
court, service of a notice required by this subsection must be
made pursuant to ORCP 7 D.
  (c) Notwithstanding paragraph (a) of this subsection, the court
may approve a date for service of the notice of intent to forfeit
that is later than that set out in paragraph (a) of this
subsection for good cause shown.
  (4) If a person served notice under subsection (3) of this
section appears at the sentencing hearing and asserts an interest
in the weapon, the prosecuting attorney has the burden of proving
by a preponderance of the evidence that the person does not have
a valid claim to rightful possession based on the grounds in ORS
133.643. The court shall determine whether the person has a valid
claim to rightful possession based on one or more of the grounds
in ORS 133.643. The court may hear any evidence that it deems
necessary to the fair adjudication of the person's interests.
  (5) When a weapon has been forfeited and released to a law
enforcement agency under subsection (2)(b) of this section, the
law enforcement agency shall destroy the weapon when the weapon
is no longer needed for the purpose for which it was
released. + }
  SECTION 3.  { + (1) As used in this section:
  (a) 'Law enforcement agency' means any agency that employs
police officers or prosecutes criminal cases.
  (b) 'Seizing agency' means a law enforcement agency that has
seized property for criminal forfeiture.
  (c) 'Weapon' means any instrument of offensive or defensive
combat or anything used, or designed to be used, to destroy,
defeat or injure a person.
  (2) Subject to the adjudication of third party interests as
provided in subsections (3) and (4) of this section, at the time
of sentencing for any criminal offense in which a weapon was
possessed, used or available for use to facilitate the offense, a
court may order that the weapon be forfeited and:
  (a) Destroyed by, or at the direction of, the seizing agency;
or
  (b) Released to a law enforcement agency to be used only for
training, identification or demonstration purposes.
  (3)(a) When a seizing agency or a prosecuting attorney seeks
forfeiture of a weapon under this section, the seizing agency or
prosecuting attorney shall serve a notice of intent to forfeit on
all persons, other than the defendant, who are known to have an
interest in the weapon. The notice of intent to forfeit must be
served not less than 15 days prior to the sentencing hearing and
must include:
  (A) The name and court number of the case in which forfeiture
will be requested;
  (B) The date, time and location of the sentencing hearing at
which forfeiture will be requested;
  (C) A description of the weapon that will be subject to a
forfeiture order;
  (D) The identity of the seizing agency;
  (E) The location where the weapon was seized; and
  (F) A statement that failure to appear at the sentencing
hearing constitutes a waiver of any claim of rightful ownership
of the weapon.
  (b) Unless another manner of service is authorized by the
court, service of a notice required by this subsection must be
made pursuant to ORCP 7 D.
  (c) Notwithstanding paragraph (a) of this subsection, the court
may approve a date for service of the notice of intent to forfeit
 
that is later than that set out in paragraph (a) of this
subsection for good cause shown.
  (4) If a person served notice under subsection (3) of this
section appears at the sentencing hearing and asserts an interest
in the weapon, the prosecuting attorney has the burden of proving
by a preponderance of the evidence that the person does not have
a valid claim to rightful possession based on the grounds in ORS
133.643. The court shall determine whether the person has a valid
claim to rightful possession based on one or more of the grounds
in ORS 133.643. The court may hear any evidence that it deems
necessary to the fair adjudication of the person's interests.
  (5) When a weapon has been forfeited and released to a law
enforcement agency under subsection (2)(b) of this section, the
law enforcement agency shall destroy the weapon when the weapon
is no longer needed for the purpose for which it was
released. + }
  SECTION 4. ORS 166.282, as amended by section 37, chapter 666,
Oregon Laws 2001, 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 166.281 - } .
  SECTION 5. ORS 166.370, as amended by section 36, chapter 666,
Oregon Laws 2001, 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.
  (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 166.281 - }  { +
section 3 of this 2003 Act + }.
  (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.
  (8) As used in this section, 'dangerous weapon' means a
dangerous weapon as that term is defined in ORS 161.015.
  SECTION 6. ORS 166.210, as amended by section 44, chapter 666,
Oregon Laws 2001, is amended to read:
  166.210. As used in ORS 166.250 to 166.270,   { - 166.281, - }
166.291 to 166.295 and 166.410 to 166.470:
  (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 7. ORS 166.250, as amended by section 45, chapter 666,
Oregon Laws 2001, is amended to read:
  166.250. (1) Except as otherwise provided in this section or
ORS 166.260, 166.270, 166.274,   { - 166.281, - }  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 Department of Human Services 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 8. ORS 166.410, as amended by section 46, chapter 666,
Oregon Laws 2001, 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,   { - 166.281, - }  166.291, 166.292 and 166.425 to
166.470, shall be guilty of a Class B felony.
  SECTION 9. ORS 166.460, as amended by section 47, chapter 666,
Oregon Laws 2001, is amended to read:
  166.460. (1) ORS 166.250, 166.260,   { - 166.281, - }  166.291
to 166.295, 166.410, 166.412, 166.425, 166.434, 166.438 and
166.450 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 10.  { + Section 2 of this 2003 Act applies to weapons
seized on or after the effective date of this 2003 Act.
   + }  { +  SECTION 11. + } Section 58, chapter 666, Oregon Laws
2001, is amended to read:
 
 
   { +  Sec. 58. + } (1) Sections 49 to 52 and 54 { + , chapter
666, Oregon Laws 2001, + }   { - of this 2001 Act - }   { + and
section 3 of this 2003 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 { + ,
chapter 666, Oregon Laws 2001, + }   { - of this 2001 Act - }
 { + and sections 4 and 5 of this 2003 Act + } become operative
on July 31, 2005.
  SECTION 12.  { + ORS 166.281 is repealed. + }
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