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 2839
B-Engrossed
House Bill 2865
Ordered by the Senate June 17
Including House Amendments dated April 29 and Senate Amendments
dated June 17
Sponsored by COMMITTEE ON JUDICIARY
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.
Allows district attorney to treat certain nonperson felonies as
Class A misdemeanors. { + Allows court to impose maximum
$100,000 fine. + } Allows information in official police report
to be presented to grand jury by peace officer involved in
investigation other than officer who made report. Provides that
defendant who refuses to provide true name may not be released
except upon payment of full security amount.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to criminal procedure; creating new provisions; amending
ORS 132.320, 132.580, 135.060, 135.065 and 135.245; and
declaring an emergency.
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 ORS 161.505 to 161.585. + }
SECTION 2. { + (1) As used in this section, 'nonperson felony
' has the meaning given that term in the rules of the Oregon
Criminal Justice Commission.
(2) A district attorney may elect to treat a Class C nonperson
felony or a violation of ORS 475.992 (4)(a) as a Class A
misdemeanor. The election must be made by the district attorney
orally or in writing at the time of the first appearance of the
defendant. If a district attorney elects to treat a Class C
felony or a violation of ORS 475.992 (4)(a) as a Class A
misdemeanor under this subsection, the court shall amend the
accusatory instrument to reflect the charged offense as a Class A
misdemeanor.
(3) If, at some time after the first appearance of a defendant
charged with a Class C nonperson felony or a violation of ORS
475.992 (4)(a), the district attorney and the defendant agree to
treat the charged offense as a Class A misdemeanor, the court may
allow the offense to be treated as a Class A misdemeanor by
stipulation of the parties.
(4) If a Class C felony or a violation of ORS 475.992 (4)(a) is
treated as a Class A misdemeanor under this section, the court
shall clearly denominate the offense as a Class A misdemeanor in
any judgment entered in the matter.
(5) If no election or stipulation is made under this section,
the case proceeds as a felony.
(6) Before a district attorney may make an election under
subsection (2) of this section, the district attorney shall adopt
written guidelines for determining when and under what
circumstances the election may be made. The district attorney
shall apply the guidelines uniformly.
(7) Notwithstanding ORS 161.635, the maximum fine that a court
may impose for an offense treated as a Class A misdemeanor under
this section is $100,000. + }
SECTION 3. ORS 132.320 is amended to read:
132.320. (1) Except as provided in subsections (2) to
{ - (6) - } { + (7) + } of this section, in the investigation
of a charge for the purpose of indictment, the grand jury shall
receive no other evidence than such as might be given on the
trial of the person charged with the crime in question.
(2) A report or a copy of a report made by a physicist,
chemist, medical examiner, physician, firearms identification
expert, examiner of questioned documents, fingerprint technician,
or an expert or technician in some comparable scientific or
professional field, concerning the results of an examination,
comparison or test performed by such person in connection with a
case which is the subject of a grand jury proceeding, shall, when
certified by such person as a report made by such person or as a
true copy thereof, be received in evidence in the grand jury
proceeding.
(3) An affidavit of a witness who is unable to appear before
the grand jury shall be received in evidence in the grand jury
proceeding if, upon application by the district attorney, the
presiding judge for the judicial district in which the grand jury
is sitting authorizes such receipt after good cause has been
shown for the witness' inability to appear. An affidavit taken in
another state or territory of the United States, the District of
Columbia or in a foreign country must be authenticated as
provided in ORS 194.505 to 194.575 before it can be used in this
state.
(4) A grand jury that is investigating a charge of criminal
driving while suspended or revoked under ORS 811.182 may receive
in evidence an affidavit of a peace officer with a report or copy
of a report of the peace officer concerning the peace officer's
investigation of the violation of ORS 811.182 by the defendant.
(5) A grand jury may receive testimony of a witness by means of
simultaneous television transmission allowing the grand jury and
district attorney to observe and communicate with the witness and
the witness to observe and communicate with the grand jury and
the district attorney.
(6) A grand jury that is investigating a charge of failure to
appear under ORS 133.076, 153.992, 162.195 or 162.205 may receive
in evidence an affidavit of a court employee certifying that the
defendant failed to appear as required by law and setting forth
facts sufficient to support that conclusion.
{ + (7)(a) Except as otherwise provided in this subsection, a
grand jury may receive in evidence through the testimony of one
peace officer involved in the criminal investigation under grand
jury inquiry information from an official report of another peace
officer involved in the same criminal investigation concerning
the other peace officer's investigation of the matter before the
grand jury. The statement of a person suspected of committing an
offense or inadmissible hearsay of persons other than the peace
officer who compiled the official report may not be presented to
a grand jury under this paragraph.
(b) If the official report contains evidence other than chain
of custody, venue or the name of the person suspected of
committing an offense, the grand jurors must be notified that the
evidence is being submitted by report and that the peace officer
who compiled the report will be made available for testimony at
the request of the grand jury. When a grand jury requests the
testimony of a peace officer under this paragraph, the peace
officer may present sworn testimony by telephone if requiring the
peace officer's presence before the grand jury would constitute
an undue hardship on the peace officer or the agency that employs
or utilizes the peace officer. + }
{ - (7) - } { + (8) + } The grand jury is not bound to hear
evidence for the defendant, but it shall weigh all the evidence
submitted to it; and when it believes that other evidence within
its reach will explain away the charge, it should order such
evidence to be produced, and for that purpose may require the
district attorney to issue process for the witnesses.
{ - (8) - } { + (9) + } A grand jury that is investigating
a charge of driving while under the influence of intoxicants in
violation of ORS 813.010 may receive in evidence an affidavit of
a peace officer regarding any or all of the following:
(a) Whether the defendant was driving.
(b) Whether the defendant took or refused to take tests under
any provision of ORS chapter 813.
(c) The administration of tests under any provision of ORS
chapter 813 and the results of such tests.
(d) The officer's observations of physical or mental impairment
of the defendant.
SECTION 4. ORS 135.060 is amended to read:
135.060. { + (1) + } When the defendant is arraigned, the
defendant shall be informed that { + :
(a) + } If the name by which the defendant is charged in the
accusatory instrument is not the true name of the defendant the
defendant must then declare the true name { - or be proceeded
against by the name in the accusatory instrument - } { + ; and
(b) If the defendant does not declare the true name as required
by paragraph (a) of this subsection, the defendant is ineligible
for any form of release other than a security release under ORS
135.265 + }.
{ + (2) The defendant or the attorney for the defendant may
acknowledge the true name of the defendant at arraignment and the
acknowledgment may not be used against the defendant at trial on
the underlying charge or any other criminal charge or fugitive
complaint except that:
(a) The use of different names can be used in determining the
defendant's release status if the defendant has used different
names in different proceedings; and
(b) A defendant who intentionally falsifies the defendant's
name under this section or ORS 135.065 while under oath or
affirmation is subject to prosecution under ORS 162.065.
(3) As used in this section and ORS 135.065, 'true name '
means:
(a) The name on the defendant's birth certificate;
(b) The defendant's birth name; or
(c) If the defendant's name has been changed by court order or
by operation of law, the name as changed by court order or
operation of law. + }
SECTION 5. ORS 135.065 is amended to read:
135.065. (1) If the defendant gives no other name, the court
may proceed { - accordingly - } { + against the defendant by
the name in the accusatory instrument + }. If the defendant is
charged by indictment or information and alleges that another
name is the true name of the defendant, the court shall direct an
entry thereof to be made in its register, and the subsequent
proceedings on the accusatory instrument may be had against the
defendant by that name, referring also to the name by which the
defendant is charged. { + Before proceeding against the
defendant as provided in this subsection, the court shall attempt
to determine the true name of the defendant. If a birth
certificate for the defendant was never created, the court shall
ask the defendant, under oath or affirmation, to give the
defendant's true name. The court shall proceed under the name
given unless the court is persuaded by a preponderance of the
evidence that the name is not the defendant's true name. + }
(2) Upon motion of the defendant, all names, other than the
true name of the defendant, shall be stricken from any accusatory
instrument read or submitted to the jury.
{ + (3)(a) The following may file a motion requesting that a
false name used by a defendant be stricken from an accusatory
instrument, warrant of arrest or judgment and that the
defendant's true name, if known, be substituted:
(A) The district attorney; or
(B) A person whose name is the same as the false name used by
the defendant.
(b) Before the court may grant a motion filed under paragraph
(a)(B) of this subsection, the court must provide the district
attorney with notice of the motion and an opportunity to respond.
(c) If the court grants a motion under this subsection, the
court shall order that the false name be stricken from the
accusatory instrument, warrant of arrest or judgment and that the
defendant's true name be substituted. In addition, the court
shall order that any warrant of arrest of the defendant reflect
that the defendant uses a name other than the defendant's true
name. + }
SECTION 6. ORS 135.245 is amended to read:
135.245. (1) Except as provided in ORS 135.240, a person in
custody { - shall have - } { + has + } the
{ - immediate - } right to { + immediate + } security release
or { - shall - } { + to + } be taken before a magistrate
without undue delay. If the person is not released under ORS
135.270, or otherwise released before arraignment, the magistrate
shall advise the person of the right of the person to a security
release as provided in ORS 135.265.
(2) If a person in custody does not request a security release
at the time of arraignment, the magistrate shall make a release
decision regarding the person within 48 hours after the
arraignment.
(3) If the magistrate, having given priority to the primary
release criteria, decides to release a defendant or to set
security, the magistrate shall impose the least onerous condition
reasonably likely to ensure the safety of the public and the
victim and the person's later appearance and, if the person is
charged with an offense involving domestic violence, ensure that
the person does not engage in domestic violence while on release.
A person in custody, otherwise having a right to release, shall
be released upon the personal recognizance unless { + :
(a) + } Release criteria show to the satisfaction of the
magistrate that such a release is unwarranted { + ; or
(b) Subsection (6) of this section applies to the person + }.
(4) Upon a finding that release of the person on personal
recognizance is unwarranted, the magistrate shall impose either
conditional release or security release.
(5)(a) At the release hearing:
(A) The district attorney has a right to be heard in relation
to issues relevant to the release decision; and
(B) The victim has the right:
(i) Upon request made within the time period prescribed in the
notice required by ORS 147.417, to be notified by the district
attorney of the release hearing;
(ii) To appear personally at the hearing; and
(iii) If present, to reasonably express any views relevant to
the issues before the magistrate.
(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.
{ + (6) If a person refuses to provide a true name under the
circumstances described in ORS 135.060 and 135.065, the
magistrate may not release the person on personal recognizance or
on conditional release. The magistrate may release the person on
security release under ORS 135.265 except that the magistrate
shall require the person to deposit the full security amount set
by the magistrate. + }
{ - (6) - } { + (7) + } This section shall be liberally
construed to carry out the purpose of relying upon criminal
sanctions instead of financial loss to assure the appearance of
the defendant.
SECTION 7. { + If a defendant, on or after the effective date
of this 2003 Act, fails to provide the defendant's true name
under ORS 135.060 or 135.065 and is on personal recognizance,
conditional release or security release having deposited less
than the full security amount set by the magistrate, the
magistrate who released the defendant, upon a motion filed by the
district attorney and supported by probable cause, shall cause
the defendant to be brought before the magistrate. The magistrate
shall conduct a hearing to establish release according to ORS
135.245. + }
SECTION 8. ORS 132.580 is amended to read:
132.580. (1) When an indictment is found, the names of the
witnesses examined before the grand jury that returned the
indictment, either by testimony in the presence of the grand
jury, by affidavit { + , + } { - or - } by means of
simultaneous television transmission under ORS 132.320 (5) { +
or by telephone under ORS 132.320 (7) + }, and the names of those
whose reports were received by such grand jury pursuant to ORS
132.320 (2) must be inserted at the foot of the indictment, or
indorsed thereon, before it is filed. The indorsement shall show
whether the witness gave testimony before the grand jury in
person, by affidavit { + , + } { - or - } by means of
simultaneous television transmission { + or by telephone + } or
filed a report.
(2) A witness examined before the grand jury whose name is not
indorsed on the indictment shall not be permitted to testify at
trial without the consent of the defendant, unless the court
finds that:
(a) The name of the witness was omitted from the indictment by
inadvertence; { - and - }
(b) The name of the witness was furnished to the defendant by
the state at least 10 days before trial; and
(c) The defendant will not be prejudiced by the omission.
SECTION 9. { + This 2003 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2003 Act takes effect on its
passage. + }
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