72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
SA to A-Eng. HB 2770
LC 1702/HB 2770-A13
SENATE AMENDMENTS TO
A-ENGROSSED HOUSE BILL 2770
By COMMITTEE ON JUDICIARY
June 23
On page 1 of the printed A-engrossed bill, line 2, after '
124.105,' insert '133.726,' and after '135.951,' insert '
137.545, 162.365, 164.225, 164.235,'.
In line 3, after '167.320' insert 'and section 19, chapter 666,
Oregon Laws 2001'.
Delete lines 14 through 26.
On page 5, after line 32, insert:
' { + SECTION 9. + } ORS 164.235 is amended to read:
' 164.235. (1) A person commits the crime of possession of
{ - burglar's tools if the person possesses any burglar tool
with the intent to use the tool or knowing that some person
intends to use the tool to commit or facilitate a forcible entry
into premises or theft by a physical taking - } { + a burglary
tool or theft device if the person possesses a burglary tool or
theft device and the person:
' (a) Intends to use the tool or device to commit or facilitate
a forcible entry into premises or a theft by a physical taking;
or
' (b) Knows that another person intends to use the tool or
device to commit or facilitate a forcible entry into premises or
a theft by a physical taking + }.
' (2) { - ' Burglar tool' - } { + For purposes of this
section, ' burglary tool or theft device' + } means an acetylene
torch, electric arc, burning bar, thermal lance, oxygen lance or
other similar device capable of burning through steel, concrete
or other solid material, or nitroglycerine, dynamite, gunpowder
or any other explosive, tool, instrument or other article adapted
or designed for committing or facilitating a forcible entry into
premises or theft by a physical taking.
' (3) Possession of { - burglar's tools - } { + a burglary
tool or theft device + } is a Class A misdemeanor.
' { + SECTION 10. + } ORS 164.225 is amended to read:
' 164.225. (1) A person commits the crime of burglary in the
first degree if the person violates ORS 164.215 and the building
is a dwelling, or if in effecting entry or while in a building or
in immediate flight therefrom the person:
' (a) Is armed with a { - burglar's tool - } { + burglary
tool or theft device + } as defined in ORS 164.235 or a deadly
weapon; { - or - }
' (b) Causes or attempts to cause physical injury to any
person; or
' (c) Uses or threatens to use a dangerous weapon.
' (2) Burglary in the first degree is a Class A felony.
' { + SECTION 11. + } Section 19, chapter 666, Oregon Laws
2001, as amended by section 5, chapter 696, Oregon Laws 2001, is
amended to read:
' { + Sec. 19. + } The crimes to which section 1 (11)(b),
chapter 666, Oregon Laws 2001, 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.
' (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 - } { + a burglary
tool or theft device + }, 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.
' (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.
' (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.
' (131) Unlawful distribution of cigarettes, as defined in
{ - section 3 of this 2001 Act - } { + ORS 323.482 + }.
' (132) An attempt, conspiracy or solicitation to commit a
crime in subsections (1) to (131) of this section if the attempt,
conspiracy or solicitation is a felony or a Class A misdemeanor.
' { + SECTION 12. + } ORS 162.365 is amended to read:
' 162.365. (1) A person commits the crime of criminal
impersonation if with intent to obtain a benefit or to
injure { + , deceive + } or defraud another the person falsely
impersonates a public servant and does an act in such assumed
character.
' (2) It is no defense to a prosecution for criminal
impersonation that:
' (a) The office, position or title that the person pretended
to hold did not in fact exist; or
' (b) The unit of government that the person pretended to
represent did not in fact exist.
' (3)(a) Criminal impersonation is a Class A misdemeanor.
' (b) Notwithstanding paragraph (a) of this subsection,
criminal impersonation is a Class C felony if the public servant
impersonated is a peace officer, judge or justice of the peace.
' { + SECTION 13. + } ORS 133.726 is amended to read:
' 133.726. (1) Notwithstanding ORS 133.724, under the
circumstances described in this section, a law enforcement
officer is authorized to intercept an oral communication to which
the officer or someone under the direct supervision of the
officer is a party, without obtaining an order for the
interception of a wire, electronic or oral communication under
ORS 133.724.
' (2) For purposes of this section and ORS 133.736, a person is
a party to an oral communication if the oral communication is
made in the person's immediate presence and is audible to the
person regardless of whether the communication is specifically
directed to the person.
' (3) An ex parte order for intercepting an oral communication
in any county of this state under this section may be issued by
any judge as defined in ORS 133.525 upon written application made
upon oath or affirmation of the district attorney or a deputy
district attorney authorized by the district attorney for the
county in which the order is sought or upon the oath or
affirmation of any peace officer as defined in ORS 133.005. The
application shall include:
' (a) The name of the applicant and the applicant's authority
to make the application;
' (b) A statement demonstrating that there is probable cause to
believe that a person whose oral communication is to be
intercepted is engaged in committing, has committed or is about
to commit a particular felony, or a misdemeanor under ORS
167.007, and that intercepting the oral communication will yield
evidence thereof; and
' (c) The identity of the person, if known, suspected of
committing the crime and whose oral communication is to be
intercepted.
' (4) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
' (5) Upon examination of the application and evidence, the
judge may enter an ex parte order, as requested or as modified,
authorizing or approving the interception of an oral
communication within the state if the judge determines on the
basis of the facts submitted by the applicant that:
' (a) There is probable cause to believe that a person is
engaged in committing, has committed or is about to commit a
particular felony, or a misdemeanor under ORS 167.007; and
' (b) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime.
' (6) An order authorizing or approving the interception of an
oral communication under this section must specify:
' (a) The identity of the person, if known, whose oral
communication is to be intercepted;
' (b) A statement identifying the particular crime to which the
oral communication is expected to relate;
' (c) The agency authorized under the order to intercept the
oral communication;
' (d) The name and office of the applicant and the signature
and title of the issuing judge;
' (e) A period of time after which the order shall expire; and
' (f) A statement that the order authorizes only the
interception of an oral communication to which a law enforcement
officer or someone under the direct supervision of a law
enforcement officer is a party.
' (7) An order under ORS 133.724 or this section is not
required when a law enforcement officer intercepts an oral
communication to which the officer or someone under the direct
supervision of the officer is a party if the oral communication
is made by a person whom the officer has probable cause to
believe has committed, is engaged in committing or is about to
commit:
' (a) A crime punishable as a felony under ORS 475.992 or
475.995 or as a misdemeanor under ORS 167.007; or
' (b) Any other crime punishable as a felony if the
circumstances at the time the oral communication is intercepted
are of such exigency that it would be unreasonable to obtain a
court order under ORS 133.724 or this section.
' (8) A law enforcement officer who intercepts an oral
communication pursuant to this section may not intentionally fail
to record and preserve the oral communication in its entirety. A
law enforcement officer, or a person under the direct supervision
of the officer, who is authorized under this section to intercept
an oral communication is not required to exclude from the
interception an oral communication made by a person for whom
probable cause does not exist if the officer or person under the
officer's direct supervision is a party to the oral
communication.
' (9) A law enforcement officer may not divulge the contents of
an oral communication intercepted under this section before a
preliminary hearing or trial in which an oral communication is
going to be introduced as evidence against a person except:
' (a) To a superior officer or other official with whom the law
enforcement officer is cooperating in the enforcement of { + the
criminal + } laws { - creating felonies - } { + of this state
or the United States + };
' (b) To a magistrate;
' (c) In a presentation to a federal or state grand jury; or
' (d) In compliance with a court order.
' (10) A law enforcement officer may intercept an oral
communication under this section only when acting within the
scope of the officer's employment and as a part of assigned
duties.
' (11) As used in this section, 'law enforcement officer '
means an officer employed by the United States, this state or a
municipal government within this state, or a political
subdivision, agency, department or bureau of those governments,
to enforce criminal laws.
' (12) Violation of subsection (9) of this section is a Class A
misdemeanor.
' { + SECTION 14. + } ORS 137.545 is amended to read:
' 137.545. (1) Subject to the limitations in ORS 137.010 and to
rules of the Oregon Criminal Justice Commission for felonies
committed on or after November 1, 1989:
' (a) The period of probation shall be such as the court
determines and may, in the discretion of the court, be continued
or extended.
' (b) The court may at any time discharge a person from
probation.
' (2) At any time during the probation period, the court may
issue a warrant and cause a defendant to be arrested for
violating any of the conditions of probation. Any probation
officer, police officer or other officer with power of arrest may
arrest a probationer without a warrant for violating any
condition of probation, and a statement by the probation officer
{ + or arresting officer + } setting forth that the probationer
has, in the judgment of the probation officer { + or arresting
officer + }, violated the conditions of probation is sufficient
warrant for the detention of the probationer in the county jail
until the probationer can be brought before the court or until
the probation officer or supervisory personnel impose and the
offender agrees to structured, intermediate sanctions in
accordance with the rules adopted under ORS 137.595. Such
disposition shall be made during the first 36 hours in custody,
excluding Saturdays, Sundays and holidays, unless later
disposition is authorized by supervisory personnel. If authorized
by supervisory personnel, the disposition shall take place in no
more than five judicial days. If the offender does not consent to
structured, intermediate sanctions imposed by the probation
officer or supervisory personnel in accordance with the rules
adopted under ORS 137.595, the probation officer, as soon as
practicable, but within one judicial day, shall report such
arrest or detention to the court that imposed the probation. The
probation officer shall promptly submit to the court a report
showing in what manner the probationer has violated the
conditions of probation.
' (3) Except for good cause shown or at the request of the
probationer, the probationer shall be brought before a magistrate
during the first 36 hours of custody, excluding holidays,
Saturdays and Sundays. That magistrate, in the exercise of
discretion, may order the probationer held pending a violation or
revocation hearing or pending transfer to the jurisdiction of
another court where the probation was imposed. In lieu of an
order that the probationer be held, the magistrate may release
the probationer upon the condition that the probationer appear in
court at a later date for a probation violation or revocation
hearing. If the probationer is being held on an out-of-county
warrant, the magistrate may order the probationer released
subject to an additional order to the probationer that the
probationer report within seven calendar days to the court that
imposed the probation.
' (4) When a probationer has been sentenced to probation in
more than one county and the probationer is being held on an
out-of-county warrant for a probation violation, the court may
consider consolidation of some or all pending probation violation
proceedings pursuant to rules made and orders issued by the Chief
Justice of the Supreme Court under ORS 137.547:
' (a) Upon the motion of the district attorney or defense
counsel in the county in which the probationer is held; or
' (b) Upon the court's own motion.
' (5)(a) For defendants sentenced for felonies committed prior
to November 1, 1989, and for any misdemeanor, the court that
imposed the probation, after summary hearing, may revoke the
probation and:
' (A) If the execution of some other part of the sentence has
been suspended, the court shall cause the rest of the sentence
imposed to be executed.
' (B) If no other sentence has been imposed, the court may
impose any other sentence which originally could have been
imposed.
' (b) For defendants sentenced for felonies committed on or
after November 1, 1989, the court that imposed the probationary
sentence may revoke probation supervision and impose a sanction
as provided by rules of the Oregon Criminal Justice Commission.
' (6) Except for good cause shown, if the revocation hearing is
not conducted within 14 calendar days following the arrest or
detention of the probationer, the probationer shall be released
from custody.
' (7) A defendant who has been previously confined in the
county jail as a condition of probation pursuant to ORS 137.540
or as part of a probationary sentence pursuant to the rules of
the Oregon Criminal Justice Commission may be given credit for
all time thus served in any order or judgment of confinement
resulting from revocation of probation.
' (8) In the case of any defendant whose sentence has been
suspended but who has not been sentenced to probation, the court
may issue a warrant and cause the defendant to be arrested and
brought before the court at any time within the maximum period
for which the defendant might originally have been sentenced.
Thereupon the court, after summary hearing, may revoke the
suspension of sentence and cause the sentence imposed to be
executed.
' (9) If a probationer fails to appear or report to a court for
further proceedings as required by an order under subsection (3)
of this section, the failure to appear may be prosecuted in the
county to which the probationer was ordered to appear or report.
' (10)(a) If requested by the probationer and agreed to by the
court, the probationer may admit or deny the violation without
being physically present at the hearing if the probationer
appears before the court by means of simultaneous television
transmission allowing the court to observe and communicate with
the defendant and the defendant to observe and communicate with
the court.
' (b) Notwithstanding paragraph (a) of this subsection,
appearance by simultaneous television transmission shall not be
permitted unless the facilities used enable the defendant to
consult privately with defense counsel during the proceedings.
' (11)(a) The victim has the right:
' (A) Upon request made within the time period prescribed in
the notice required by ORS 147.417, to be notified by the
district attorney of any hearing before the court that may result
in the revocation of the defendant's probation;
' (B) To appear personally at the hearing; and
' (C) If present, to reasonably express any views relevant to
the issues before the court.
' (b) Failure of the district attorney to notify the victim
under paragraph (a) of this subsection or failure of the victim
to appear at the hearing does not affect the validity of the
proceeding.'.
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