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 334
Senate Bill 23
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim 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 as
introduced.
Modifies provisions relating to stalking protective orders.
A BILL FOR AN ACT
Relating to stalking; creating new provisions; and amending ORS
30.866, 40.355, 107.755, 133.310, 135.240, 163.730, 163.732,
163.735, 163.738, 163.741, 163.744, 163.750, 163.755 and
166.291.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 30.866 is amended to read:
30.866. (1) A person may bring a civil action in a circuit
court for { - a court's stalking protective order or for
damages, or both, - } { + damages + } against a person if:
(a) The person intentionally, knowingly or recklessly engages
in repeated and unwanted contact with the other person or a
member of that person's immediate family or household { + , + }
thereby alarming or coercing the other person;
(b) It is objectively reasonable for a person in the victim's
situation to have been alarmed or coerced by the contact; and
(c) The repeated and unwanted contact causes the victim
reasonable apprehension regarding the personal safety of the
victim or a member of the victim's immediate family or household.
{ - (2) At the time the petition is filed, the court, upon a
finding of probable cause based on the allegations in the
petition, shall enter a temporary court's stalking protective
order that may include, but is not limited to, all contact listed
in ORS 163.730. The petition and the temporary order shall be
served upon the respondent with an order requiring the respondent
to personally appear before the court to show cause why the
temporary order should not be continued for an indefinite
period. - }
{ - (3)(a) At the hearing, whether or not the respondent
appears, the court may continue the hearing for up to 30 days or
may proceed to enter a court's stalking protective order and take
other action as provided in ORS 163.738. - }
{ - (b) If respondent fails to appear after being served as
required by subsection (2) of this section, the court may issue a
warrant of arrest as provided in ORS 133.110 in order to ensure
the appearance of the respondent in court. - }
{ - (4) - } { + (2) + } The plaintiff may recover:
(a) Both special and general damages, including damages for
emotional distress;
(b) Punitive damages; and
(c) Reasonable attorney fees and costs.
{ - (5) - } { + (3) + } The court may enter { - an
order - } { + a judgment + } under this section against a minor
{ - respondent - } { + defendant + } without appointment of a
guardian ad litem.
{ - (6) - } { + (4) + } An action under this section must
be commenced within two years of the conduct giving rise to the
claim.
{ - (7) - } { + (5) + } Proof of the claim { - shall
be - } { + is + } by a preponderance of the evidence.
{ - (8) - } { + (6) + } The remedy provided by this section
is in addition to any other remedy, civil or criminal, provided
by law for the conduct giving rise to the claim.
{ - (9) No filing fee, service fee or hearing fee shall be
charged for a proceeding under this section if a court's stalking
order is the only relief sought. - }
{ - (10) If the respondent was provided notice and an
opportunity to be heard, the court shall also include in the
order, when appropriate, terms and findings sufficient under 18
U.S.C. 922 (d)(8) and (g)(8) to affect the respondent's ability
to possess firearms and ammunition or engage in activities
involving firearms. - }
{ - (11) ORS 163.741 applies to protective orders issued
under this section. - }
SECTION 2. { + (1) A person may petition the circuit court for
a stalking protective order against another person if:
(a) The other person intentionally, knowingly or recklessly
engages in repeated and unwanted contact with the person or a
member of that person's immediate family or household, thereby
alarming or coercing the person;
(b) It is objectively reasonable for a person in the victim's
situation to have been alarmed or coerced by the contact; and
(c) The repeated and unwanted contact causes the victim
reasonable apprehension regarding the personal safety of the
victim or a member of the victim's immediate family or household.
(2) A parent may present a petition on behalf of a minor child.
A guardian may present a petition on behalf of a protected
person.
(3) Allegations in the petition must be made under oath or
affirmation.
(4) A petition under this section must be filed in the court
within two years of the conduct giving rise to the claim.
(5) The stalking protective order provided by this section is
in addition to any other remedy, civil or criminal, provided by
law for the conduct giving rise to the petition. Issuance of a
stalking protective order under this section does not prevent the
issuance of a restraining order under ORS 107.718, and the
issuance of a restraining order under ORS 107.718 does not
prevent the issuance of a stalking protective order under this
section.
(6) No filing fee, service fee or hearing fee may be charged
for a proceeding under this section.
(7) In a proceeding under this section, the petitioner may
recover reasonable attorney fees and costs. + }
SECTION 3. { + (1) When a person files a petition under
section 2 of this 2003 Act, the court shall hold an ex parte
hearing in person or by telephone on the day the petition is
filed or on the following judicial day. The court, upon a finding
of probable cause of stalking based on the allegations in the
petition, shall enter a temporary stalking protective order that
may include, but is not limited to, prohibiting all contact with
the petitioner. The petition and the temporary stalking
protective order must be served on the respondent with an order
requiring the respondent to personally appear before the court to
show cause why the temporary stalking protective order should not
be continued for an indefinite period.
(2) An order requiring the respondent to appear issued under
subsection (1) of this section must include, but need not be
limited to:
(a) The name of the court at which the respondent is to appear;
(b) The name of the respondent;
(c) A copy of the petition for a stalking protective order;
(d) The time, date and place at which the respondent is to
appear in court;
(e) Notice to the respondent that failure to appear at the
time, date and place as ordered by the court will result in the
entry of a stalking protective order; and
(f) Notice to the respondent that the respondent is subject to
arrest for failing to appear as ordered by the court and
potential liability under federal law for the possession or
purchase of firearms or firearm ammunition and for other acts
prohibited by 18 U.S.C. 2261 to 2262.
(3) The clerk of the court shall provide an informational
brochure that explains the rights set forth in sections 2 to 4 of
this 2003 Act and shall make the petition, order and related
forms developed under subsection (4) of this section available at
no cost to the petitioner.
(4) The State Court Administrator shall prepare a uniform
petition, a uniform order and any other related forms or
informational materials required by sections 2 to 4 of this 2003
Act. + }
SECTION 4. { + (1) At a hearing required by an order issued
under section 3 of this 2003 Act or a citation issued under ORS
163.735, the petitioner may appear in person or by telephone.
Whether or not the respondent appears, the court may:
(a) Continue the hearing for up to 30 days;
(b) Enter a temporary stalking protective order pending further
proceedings, with a duration not to exceed 90 days and subject to
renewal if the respondent cannot be served; or
(c) Enter a stalking protective order if the court finds by a
preponderance of the evidence that:
(A) The person intentionally, knowingly or recklessly engaged
in repeated and unwanted contact with the other person or a
member of that person's immediate family or household, thereby
alarming or coercing the other person;
(B) It is objectively reasonable for a person in the victim's
situation to have been alarmed or coerced by the contact; and
(C) The repeated and unwanted contact causes the victim
reasonable apprehension regarding the personal safety of the
victim or a member of the victim's immediate family or household.
(2) The court shall specify in any stalking protective order
the conduct from which the respondent is to refrain. The
prohibited conduct may include all contact and any attempt to
make contact. Unless dismissed, the order is effective for an
indefinite period. If the respondent was provided notice and an
opportunity to be heard, the court shall include in the order,
when appropriate, terms and findings sufficient under 18 U.S.C.
922(d)(8) and (g)(8) to affect the respondent's ability to
possess firearms and ammunition or engage in activities involving
firearms.
(3) The court may enter an order under this section against a
minor respondent without appointment of a guardian ad litem.
(4) The court may order the respondent to undergo a mental
health evaluation and, if indicated by the evaluation, treatment.
If the respondent is without sufficient resources to obtain the
evaluation, treatment or both, the court shall refer the
respondent to the mental health agency designated by the
community mental health director for evaluation, treatment or
both.
(5) If the court, the mental health evaluator or any other
person has probable cause to believe that the respondent is
dangerous to self or others or is unable to provide for basic
personal needs, the court shall initiate commitment procedures as
provided in ORS 426.070 or 426.180.
(6) If the respondent fails to appear at the date, time and
place specified in an order under section 3 of this 2003 Act, the
court may proceed under ORS 33.055.
(7) If the petitioner fails to appear at the time, date and
place set for the hearing, the court may dismiss the petition and
terminate any orders issued in the proceeding. + }
SECTION 5. ORS 163.741 is amended to read:
163.741. { + (1) If the court orders relief under section 4 of
this 2003 Act:
(a) The respondent must be personally served with a certified
true copy of the petition and order unless the court finds that
further service is unnecessary because the respondent appeared in
person before the court. The clerk of the court shall provide
without charge the number of certified true copies of the
petition and order necessary to provide the petitioner with one
copy and to effect service. The clerk shall deliver a certified
true copy of the petition and order to the county sheriff for
service on the respondent. Upon request by the petitioner, the
clerk shall also provide the petitioner, without charge, two
exemplified copies of the petition and order.
(b) The county sheriff shall serve the respondent unless the
petitioner elects to have the respondent served by a private
party. Service may also be made by a peace officer who is called
to the scene of a domestic disturbance at which the respondent is
present if the peace officer is able to obtain a copy of the
petition and order within a reasonable amount of time. Proof of
service must be made in accordance with subsection (3) of this
section. When the petition and order do not contain the
respondent's date of birth and service is made by the county
sheriff or other peace officer, the county sheriff or peace
officer shall verify the respondent's date of birth with the
respondent and shall record that date on the order or proof of
service entered into the Law Enforcement Data System under
subsection (3) of this section.
(2) If the county sheriff:
(a) Determines that the petition and order are incomplete, the
county sheriff shall return the petition and order to the clerk
of the court. The clerk of the court shall notify the petitioner,
at the address provided by the petitioner, of the error or
omission.
(b) Cannot complete service within 10 days after accepting the
petition and order, the county sheriff shall notify the
petitioner, at the address provided by the petitioner, that the
documents have not been served. If the petitioner does not
respond within 10 days, the county sheriff shall hold the
petition and order for future service and file a return with the
clerk of the court showing that service was not completed. + }
{ - (1) - } { + (3) + } Whenever a stalking protective
order, as authorized by { - ORS 163.735 or 163.738 - } { +
section 4 of this 2003 Act + }, is issued and the person to be
restrained has actual notice { - thereof - } { + of the
order + }, the person serving the { + petition and + } order
shall { + immediately + } deliver { - forthwith - } to the
county sheriff a true copy of the { + petition and + } order
and an affidavit of proof of service on which it is stated that
personal service of the { + petition and + } order was made on
the respondent. If an order entered by the court recites that the
respondent appeared in person before the court, the necessity for
further service of the order is waived and accompanying proof of
service is not necessary. Upon receipt of proof of service, when
required, and a true copy of the { + petition and + } order, the
county sheriff shall { - forthwith - } { + immediately + }
enter the order into the Law Enforcement Data System
{ - maintained by the Department of State Police - } and into
the databases of the National Crime Information Center of the
United States Department of Justice. The sheriff shall also
provide the { - complainant - } { + petitioner + } with a true
copy of the proof of service. Entry into the Law Enforcement Data
System constitutes notice to all law enforcement agencies of the
existence of such order. Law enforcement agencies shall establish
procedures adequate to ensure that an officer at the scene of an
alleged violation of such order may be informed of the existence
and terms of such order. { - Such order shall be - } { + The
order is + } fully enforceable in any county in the state. The
{ - complainant - } { + petitioner + } may elect to deliver
documents personally to a county sheriff or to have them
delivered by a private person for entry into the Law Enforcement
Data System and the databases of the National Crime Information
Center of the United States Department of Justice.
{ - (2) - } { + (4) + } When a stalking protective order
has been entered into the Law Enforcement Data System and the
databases of the National Crime Information Center of the United
States Department of Justice under subsection { - (1) - }
{ + (3) + } of this section, a county sheriff shall cooperate
with a request from a law enforcement agency from any other
jurisdiction to verify the existence of the stalking protective
order or to transmit a copy of the order to the requesting
jurisdiction.
{ - (3) - } { + (5) + } When a stalking protective order
described in subsection { - (1) - } { + (3) + } of this
section is terminated by order of the court, the clerk of the
court shall { + immediately + } deliver
{ - forthwith - } a true copy of the termination order to the
county sheriff with whom the original order was filed. Upon
receipt of the termination order, the county sheriff shall
promptly remove the original order from the Law Enforcement Data
System and the databases of the National Crime Information Center
of the United States Department of Justice.
SECTION 6. ORS 163.738 is amended to read:
163.738. (1)(a) A citation { - shall - } { + must + }
notify the respondent of a circuit court hearing where the
respondent { - shall - } { + must + } appear at the place and
time set forth in the citation. The citation { - shall - }
{ + must + } contain:
(A) The name of the court at which the respondent is to appear;
(B) The name of the respondent;
(C) A copy of the { + petition for a + } stalking
{ - complaint - } { + citation + };
(D) The date, time and place at which the citation was issued;
(E) The name of the law enforcement officer who issued the
citation;
(F) The time, date and place at which the respondent is to
appear in court;
(G) Notice to the respondent that failure to appear at the
time, date and place set forth in the citation { - shall - }
{ + will + } result in the { - respondent's arrest and - }
entry of a { - court's - } stalking protective order; and
(H) Notice to the respondent { - of potential - } { + that
the respondent is subject to arrest for failing to appear as
directed in the citation and potential + } liability under
federal law for the possession or purchase of firearms or firearm
ammunition and for other acts prohibited by 18 U.S.C. 2261 to
2262.
(b) The officer shall notify the petitioner in writing of the
{ + time, date and + } place { - and time - } set for the
hearing.
{ - (2)(a) The hearing shall be held as indicated in the
citation. At the hearing, the petitioner may appear in person or
by telephonic appearance. The respondent shall be given the
opportunity to show cause why a court's stalking protective order
should not be entered. The hearing may be continued for up to 30
days. The court may enter: - }
{ - (A) A temporary stalking protective order pending further
proceedings; or - }
{ - (B) A court's stalking protective order if the court
finds by a preponderance of the evidence that: - }
{ - (i) The person intentionally, knowingly or recklessly
engages in repeated and unwanted contact with the other person or
a member of that person's immediate family or household thereby
alarming or coercing the other person; - }
{ - (ii) It is objectively reasonable for a person in the
victim's situation to have been alarmed or coerced by the
contact; and - }
{ - (iii) The repeated and unwanted contact causes the victim
reasonable apprehension regarding the personal safety of the
victim or a member of the victim's immediate family or
household. - }
{ - (b) In the order, the court shall specify the conduct
from which the respondent is to refrain, which may include all
contact listed in ORS 163.730 and any attempt to make contact
listed in ORS 163.730. The order is of unlimited duration unless
limited by law. If the respondent was provided notice and an
opportunity to be heard, the court shall also include in the
order, when appropriate, terms and findings sufficient under 18
U.S.C. 922 (d)(8) and (g)(8) to affect the respondent's ability
to possess firearms and ammunition or engage in activities
involving firearms. - }
{ - (3) The circuit court may enter an order under this
section against a minor respondent without appointment of a
guardian ad litem. - }
{ - (4) If the respondent fails to appear at the time, date
and place specified in the citation, the circuit court shall
issue a warrant of arrest as provided in ORS 133.110 in order to
ensure the appearance of the respondent at court and shall enter
a court's stalking protective order. - }
{ - (5) The circuit court may also order the respondent to
undergo mental health evaluation and, if indicated by the
evaluation, treatment. If the respondent is without sufficient
resources to obtain the evaluation or treatment, or both, the
court shall refer the respondent to the mental health agency
designated by the community mental health director for evaluation
or treatment, or both. - }
{ - (6) If the circuit court, the mental health evaluator or
any other persons have probable cause to believe that the
respondent is dangerous to self or others or is unable to provide
for basic personal needs, the court shall initiate commitment
procedures as provided in ORS 426.070 or 426.180. - }
{ - (7) - } { + (2) + } A law enforcement officer shall
report the results of any investigation arising from a
{ - complaint - } { + petition for a stalking citation + }
under ORS 163.744 to the district attorney within three days
after presentation of the { - complaint - } { + petition + }.
SECTION 7. ORS 163.755 is amended to read:
163.755. Nothing in { - ORS 30.866 or 163.730 to 163.750
shall be construed to permit - } { + sections 2 to 4 of this
2003 Act permits + } the issuance of a { - court's - }
stalking protective order under { - ORS 30.866 or 163.738 - }
{ + section 3 or 4 of this 2003 Act + }, a citation under ORS
163.735, a criminal prosecution under ORS 163.732 or a civil
action under ORS 30.866 for conduct that is authorized or
protected by the labor laws of this state or of the United
States.
SECTION 8. ORS 163.732 is amended to read:
163.732. (1) A person commits the crime of stalking if:
(a) The person knowingly alarms or coerces another person or a
member of that person's immediate family or household by engaging
in repeated and unwanted contact with the other person;
(b) It is objectively reasonable for a person in the victim's
situation to have been alarmed or coerced by the contact; and
(c) The repeated and unwanted contact causes the victim
reasonable apprehension regarding the personal safety of the
victim or a member of the victim's immediate family or household.
(2)(a) Stalking is a Class A misdemeanor.
(b) Notwithstanding paragraph (a) of this subsection, stalking
is a Class C felony if the person has a prior conviction for:
(A) Stalking; or
(B) Violating a { - court's - } stalking protective order.
(c) When stalking is a Class C felony pursuant to paragraph (b)
of this subsection, stalking shall be classified as a person
felony and as crime category 8 of the sentencing guidelines grid
of the Oregon Criminal Justice Commission.
SECTION 9. ORS 163.750 is amended to read:
163.750. (1) A person commits the crime of violating a
{ - court's - } stalking protective order when:
(a) The person has been served with a { - court's - }
stalking protective order as provided in ORS { - 30.866 or
163.738 - } { + 163.741 or section 3 of this 2003 Act + } or
{ - if - } further service was waived under ORS 163.741 because
the person appeared before the court;
(b) The person, { - subsequent to the - } { + after + }
service of the order { + or waiver of service + }, has engaged
intentionally, knowingly or recklessly in conduct prohibited by
the order; and
(c) If the conduct is prohibited contact as defined in ORS
163.730 (3)(d), (e), (f), (h) or (i), the subsequent conduct has
created reasonable apprehension regarding the personal safety of
a person protected by the order.
(2)(a) Violating a { - court's - } stalking protective order
is a Class A misdemeanor.
(b) Notwithstanding paragraph (a) of this subsection, violating
a { - court's - } stalking protective order is a Class C
felony if the person has a prior conviction for:
(A) Stalking; or
(B) Violating a { - court's - } stalking protective order.
(c) When violating a { - court's - } stalking protective
order is a Class C felony pursuant to paragraph (b) of this
subsection, violating a { - court's - } stalking protective
order shall be classified as a person felony and as crime
category 8 of the sentencing guidelines grid of the Oregon
Criminal Justice Commission.
{ + (3) Unless otherwise specified by the court, the security
amount for violation of any provision of a stalking protective
order is $5,000. + }
SECTION 10. ORS 107.755 is amended to read:
107.755. (1) { - No later than January 1, 1999, - } Each
judicial district shall:
(a) Provide a mediation orientation session for all parties in
cases in which child custody, parenting time or visitation is in
dispute, and in any other domestic relations case in which
mediation has been ordered. The orientation session may be
structured in any way the circuit court determines best meets the
needs of the parties. The orientation session should be designed
to make the parties aware of:
(A) What mediation is;
(B) Mediation options available to them; and
(C) The advantages and disadvantages of each method of dispute
resolution.
(b) Except in matters tried under ORS 107.097 and 107.138 or
upon a finding of good cause, require parties in all cases
described in paragraph (a) of this subsection to attend a
mediation orientation session prior to any judicial determination
of the issues.
(c) Provide mediation under ORS 107.755 to 107.785 in any case
in which child custody, parenting time and visitation are in
dispute.
(d) Have developed a plan that addresses domestic violence
issues and other power imbalance issues in the context of
mediation orientation sessions and mediation of any issue in
accordance with the following guidelines:
(A) All mediation programs and mediators must recognize that
mediation is not an appropriate process for all cases and that
agreement is not necessarily the appropriate outcome of all
mediation;
(B) Neither the existence of nor the provisions of a
restraining order issued under ORS 107.718 may be mediated;
(C) All mediation programs and mediators must develop and
implement:
(i) A screening and ongoing evaluation process of domestic
violence issues for all mediation cases;
(ii) A provision for opting out of mediation that allows a
party to decline mediation after the party has been informed of
the advantages and disadvantages of mediation or at any time
during the mediation; and
(iii) A set of safety procedures intended to minimize the
likelihood of intimidation or violence in the orientation
session, during mediation or on the way in or out of the building
in which the orientation or mediation occurs;
(D) When a mediator explains the process to the parties, the
mediator shall include in the explanation the disadvantages of
mediation and the alternatives to mediation;
(E) All mediators shall obtain continuing education regarding
domestic violence and related issues; and
(F) Mediation programs shall collect appropriate data.
Mediation programs shall be sensitive to domestic violence issues
when determining what data to collect.
(e) In developing the plan required by paragraph (d) of this
subsection, consult with one or more of the following:
(A) A statewide or local multidisciplinary domestic violence
coordinating council.
(B) A nonprofit private organization funded under ORS 108.620.
(2) Notwithstanding any other provision of law, mediation under
ORS 107.755 to 107.785, including the mediation orientation
session described in subsection (1)(a) of this section, may not
be encouraged or provided in proceedings under ORS 30.866,
107.700 to 107.732 { - , - } { + or + } 124.005 to 124.040 or
{ - 163.738 - } { + section 3 or 4 of this 2003 Act + }.
(3) The court, as provided in ORS 3.220, may make rules
consistent with ORS 107.755 to 107.785 to govern the operation
and procedure of mediation provided under this section.
(4) If a court provides mediation of financial issues, it shall
develop a list of mediators who meet the minimum education and
experience qualifications required by rule of the Dispute
Resolution Commission. The rules must require demonstrated
proficiency in mediation of financial issues. Once the list is
developed, the judicial district shall maintain the list.
Mediation of financial issues is subject to the plan developed
under subsection (1)(d) of this section and to the limitations
imposed by subsection (2) of this section.
(5) A circuit court may provide mediation in connection with
its exercise of conciliation jurisdiction under ORS 107.510 to
107.610, but a circuit court need not provide conciliation
services in order to provide mediation under ORS 107.755 to
107.785.
SECTION 11. ORS 133.310 is amended to read:
133.310. (1) A peace officer may arrest a person without a
warrant if the officer has probable cause to believe that the
person has committed any of the following:
(a) A felony.
(b) A misdemeanor.
(c) An unclassified offense for which the maximum penalty
allowed by law is equal to or greater than the maximum penalty
allowed for a Class C misdemeanor.
(d) Any other crime committed in the officer's presence.
(2) A peace officer may arrest a person without a warrant when
the peace officer is notified by telegraph, telephone, radio or
other mode of communication by another peace officer of any state
that there exists a duly issued warrant for the arrest of a
person within the other peace officer's jurisdiction.
(3) A peace officer shall arrest and take into custody a person
without a warrant when the peace officer has probable cause to
believe that:
(a) There exists an order issued pursuant to ORS
{ - 30.866, - } 107.095 (1)(c) or (d), 107.716, 107.718,
124.015, 124.020 { - , 163.738 - } or 419B.845 { + or section
3 or 4 of this 2003 Act + } restraining the person;
(b) A true copy of the order and proof of service on the person
has been filed as required in ORS 107.720, 124.030, 163.741 or
419B.845; and
(c) The person to be arrested has violated the terms of that
order.
(4) A peace officer shall arrest and take into custody a person
without a warrant if:
(a) The person protected by a foreign restraining order as
defined by ORS 24.190 presents a copy of the foreign restraining
order to the officer and represents to the officer that the order
supplied is the most recent order in effect between the parties
and that the person restrained by the order has been personally
served with a copy of the order or has actual notice of the
order; and
(b) The peace officer has probable cause to believe that the
person to be arrested has violated the terms of the foreign
restraining order.
(5) A peace officer shall arrest and take into custody a person
without a warrant if:
(a) The person protected by a foreign restraining order as
defined by ORS 24.190 has filed a copy of the foreign restraining
order with a court or has been identified by the officer as a
party protected by a foreign restraining order entered in the Law
Enforcement Data System or in the databases of the National Crime
Information Center of the United States Department of Justice;
and
(b) The peace officer has probable cause to believe that the
person to be arrested has violated the terms of the foreign
restraining order.
(6) A peace officer shall arrest and take into custody a person
without a warrant if the peace officer has probable cause to
believe:
(a) The person has been charged with an offense that also
constitutes domestic violence, as defined in ORS 135.230, and is
presently released as to that charge under ORS 135.230 to
135.290; and
(b) The person has failed to comply with the no contact
condition of the release agreement.
SECTION 12. ORS 163.744 is amended to read:
163.744. (1) A person may initiate an action seeking a citation
under ORS 163.735 by presenting a { - complaint - }
{ + petition for a stalking citation + } to a law enforcement
officer or to any law enforcement agency. The { - complaint
shall - } { + petition must + } be a statement setting forth
with particularity the conduct that is the basis for the
{ - complaint - } { + petition + }. The petitioner must affirm
the truth of the facts in the { - complaint - } { +
petition + }.
(2) The Department of State Police shall develop and distribute
the form of the { - complaint - } { + petition + }. The form
{ - shall - } { + must + } include the standards for reviewing
the { - complaint - } { + petition + } and for action. The
form { - shall - } { + must + } be uniform throughout the
state and { - shall - } { + must + } include substantially
the following material:
_________________________________________________________________
{ -
STALKING COMPLAINT - }
{ +
PETITION FOR A STALKING CITATION + }
Name of petitioner (person presenting { - complaint - } { +
petition + }): ______________
Name of person being stalked if other than the petitioner:
____________
__________________
Name of respondent (alleged stalker):
__________________
Description of respondent:
__________________
__________________
__________________
Length of period of conduct:
__________________
__________________
Description of relationship (if any) between petitioner or person
being stalked, if other than the petitioner, and respondent:
__________________
__________________
Description of contact:
__________________
__________________
__________________
__________________
__________________
Subscribed to and affirmed by:
__________________
(signature of petitioner)
(printed name of petitioner)
__________________
Dated: ________
_________________________________________________________________
(3) A parent may present a { - complaint to protect - }
{ + petition on behalf of + }a minor child. A guardian may
present a { - complaint to protect a dependent - }
{ + petition on behalf of a protected + }person.
(4) By signing the { - complaint - } { + petition + }, a
person is making a sworn statement for purposes of ORS 162.055 to
162.425.
SECTION 13. ORS 163.735 is amended to read:
163.735. (1) Upon a { - complaint - } { + petition + }
initiated as provided in ORS 163.744, a law enforcement officer
shall issue a citation ordering the person to appear in court
within three judicial days and show cause why the court should
not enter a
{ - court's - } stalking protective order when the officer has
probable cause to believe that:
(a) The person intentionally, knowingly or recklessly engages
in repeated and unwanted contact with the other person or a
member of that person's immediate family or household { + , + }
thereby alarming or coercing the other person;
(b) It is objectively reasonable for a person in the victim's
situation to have been alarmed or coerced by the contact; and
(c) The repeated and unwanted contact causes the victim
reasonable apprehension regarding the personal safety of the
victim or a member of the victim's immediate family or household.
(2) The Department of State Police shall develop and distribute
a form for the citation. The form { - shall - } { + must + }
be uniform throughout the state and { - shall - } { +
must + } contain substantially the following in addition to any
other material added by the department:
_________________________________________________________________
OFFICER:_____________
AGENCY:_____________
PETITIONER:____________
PERSON TO BE PROTECTED IF OTHER THAN PETITIONER:_________
RESPONDENT:___________
On behalf of petitioner, I affirm that I am a law enforcement
officer in the State of Oregon.
You, the respondent, must appear at __________ (name and
location of court at which respondent is to appear) on _____
(date and time respondent is to appear in court). At this
hearing, you must be prepared to establish why the court should
not enter a { - court's - } stalking protective order which
shall be for an unlimited duration unless limited by law or court
order. If you fail to appear at this hearing, the court
{ - shall immediately - } { + may + } issue a warrant for your
arrest and shall enter a { - court's - } stalking protective
order.
If the court issues a stalking protective order at this
hearing, and while the protective order is in effect, federal law
may prohibit you from:
Traveling across state lines or tribal land lines with the
intent to violate this order and then violating this order.
Causing the person protected by the order, if the person is
your spouse or intimate partner, to cross state lines or tribal
land lines for your purpose of violating the order.
Possessing, receiving, shipping or transporting any firearm or
firearm ammunition.
Whether or not a stalking protective order is in effect,
federal law may prohibit you from:
Traveling across state lines or tribal land lines with the
intent to injure or harass another person and during, or because
of, that travel placing that person in reasonable fear of death
or serious bodily injury to that person or to a member of that
person's immediate family.
Traveling across state lines or tribal land lines with the
intent to injure your spouse or intimate partner and then
intentionally committing a crime of violence causing bodily
injury to that person.
Causing your spouse or intimate partner to travel across state
lines or tribal land lines if your intent is to cause bodily
injury to that person or if the travel results in your causing
bodily injury to that person.
It has been alleged that you have alarmed or coerced the
petitioner, or person to be protected if other than the
petitioner. If you engage in contact that alarms or coerces the
petitioner, or person to be protected if other than the
petitioner, in violation of ORS 163.732, you may be arrested for
the crime of stalking.
Date: _____ Time: _____
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Signed:___
__
(Respondent)
Signed:___
__
(Law enforcement officer).
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
{ + (3) If the respondent fails to appear at the date, time
and place specified in a citation issued under this section, the
court may proceed under ORS 33.055. + }
SECTION 14. ORS 166.291 is amended to read:
166.291. (1) The sheriff of a county, upon a person's
application for an Oregon concealed handgun license, upon receipt
of the appropriate fees and after compliance with the procedures
set out in this section, shall issue the person a concealed
handgun license if the person:
(a)(A) Is a citizen of the United States; or
(B) Is a legal resident alien who can document continuous
residency in the county for at least six months and has declared
in writing to the Immigration and Naturalization Service the
intent to acquire citizenship status and can present proof of the
written declaration to the sheriff at the time of application for
the license;
(b) Is at least 21 years of age;
(c) Has a principal residence in the county in which the
application is made;
(d) Has no outstanding warrants for arrest;
(e) Is not free on any form of pretrial release;
(f) Demonstrates competence with a handgun by any one of the
following:
(A) Completion of any hunter education or hunter safety course
approved by the State Department of Fish and Wildlife or a
similar agency of another state if handgun safety was a component
of the course;
(B) Completion of any National Rifle Association firearms
safety or training course if handgun safety was a component of
the course;
(C) Completion of any firearms safety or training course or
class available to the general public offered by law enforcement,
community college, or private or public institution or
organization or firearms training school utilizing instructors
certified by the National Rifle Association or a law enforcement
agency if handgun safety was a component of the course;
(D) Completion of any law enforcement firearms safety or
training course or class offered for security guards,
investigators, reserve law enforcement officers or any other law
enforcement officers if handgun safety was a component of the
course;
(E) Presents evidence of equivalent experience with a handgun
through participation in organized shooting competition or
military service;
(F) Is licensed or has been licensed to carry a firearm in this
state, unless the license has been revoked; or
(G) Completion of any firearms training or safety course or
class conducted by a firearms instructor certified by a law
enforcement agency or the National Rifle Association if handgun
safety was a component of the course;
(g) Has never been convicted of a felony or found guilty,
except for insanity under ORS 161.295, of a felony;
(h) Has not been convicted of a misdemeanor or found guilty,
except for insanity under ORS 161.295, of a misdemeanor within
the four years prior to the application;
(i) Has not been committed to the Department of Human Services
under ORS 426.130;
(j) Has not been found to be mentally ill and is not 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;
(k) Has been discharged from the jurisdiction of the juvenile
court for more than four years if, while a minor, the person was
found to be within the jurisdiction of the juvenile court for
having committed an act that, if committed by an adult, would
constitute a felony or a misdemeanor involving violence, as
defined in ORS 166.470; and
(L) Is not subject to a citation issued under ORS 163.735 or an
order issued under ORS { - 30.866, - } 107.700 to 107.732 or
{ - 163.738 - } { + section 3 or 4 of this 2003 Act + }.
(2) A person who has been granted relief under ORS 166.274 or
166.293 or 18 U.S.C. 925(c) or has had the person's record
expunged under the laws of this state or equivalent laws of other
jurisdictions is not subject to the disabilities in subsection
(1)(g) to (k) of this section.
(3) Before the sheriff may issue a license:
(a) The application must state the applicant's legal name,
current address and telephone number, date and place of birth,
hair and eye color and height and weight. The application must
also list the applicant's residence address or addresses for the
previous three years. The application must contain a statement by
the applicant that the applicant meets the requirements of
subsection (1) of this section. The application may include the
social security number of the applicant if the applicant
voluntarily provides this number. The application must be signed
by the applicant.
(b) The applicant must submit to fingerprinting and
photographing by the sheriff. The sheriff shall fingerprint and
photograph the applicant and shall conduct any investigation
necessary to corroborate the requirements listed under subsection
(1) of this section.
(4) Application forms for concealed handgun licenses shall be
supplied by the sheriff upon request. The forms shall be uniform
throughout the state in substantially the following form:
_________________________________________________________________
APPLICATION FOR LICENSE TO CARRY CONCEALED HANDGUN
Date_____
I hereby declare as follows:
I am a citizen of the United States or a legal resident alien
who can document continuous residency in the county for at least
six months and have declared in writing to the Immigration and
Naturalization Service my intention to become a citizen and can
present proof of the written declaration to the sheriff at the
time of this application. I am at least 21 years of age. I have
been discharged from the jurisdiction of the juvenile court for
more than four years if, while a minor, I was found to be within
the jurisdiction of the juvenile court for having committed an
act that, if committed by an adult, would constitute a felony or
a misdemeanor involving violence, as defined in ORS 166.470. I
have never been convicted of a felony or found guilty, except for
insanity under ORS 161.295, of a felony in the State of Oregon or
elsewhere. I have not, within the last four years, been convicted
of a misdemeanor or found guilty, except for insanity under ORS
161.295, of a misdemeanor. There are no outstanding warrants for
my arrest and I am not free on any form of pretrial release. I
have not been committed to the Department of Human Services under
ORS 426.130, nor have I been found mentally ill and presently
subject to an order prohibiting me from purchasing or possessing
a firearm because of mental illness. If any of the previous
conditions do apply to me, I have been granted relief or wish to
petition for relief from the disability under ORS 166.274 or
166.293 or 18 U.S.C. 925(c) or have had the records expunged. I
am not subject to a citation issued under ORS 163.735 or an order
issued under ORS { - 30.866, - } 107.700 to 107.732 or
{ - 163.738 - } { + section 3 or 4 of this 2003 Act + }. I
understand I will be fingerprinted and photographed.
Legal name ________
Age ____ Date of birth _____
Place of birth ________
Social Security Number _______
(Disclosure of your social security account number is voluntary.
Solicitation of the number is authorized under ORS 166.291. It
will be used only as a means of identification.)
Proof of identification (Two pieces of current identification are
required, one of which must bear a photograph of the applicant.
The type of identification and the number on the identification
are to be filled in by the sheriff.):
1.________
2.________
Height ___ Weight ___
Hair color ___ Eye color ___
Current address _____
(List residence addresses for the
past three years on the back.)
City ___ County ___ Zip ___
Phone ___
I have read the entire text of this application, and the
statements therein are correct and true. (Making false statements
on this application is a misdemeanor.)
__________
(Signature of Applicant)
Character references.
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
Approved __ Disapproved __ by __
Competence with handgun demonstrated by ___ (to be filled in by
sheriff) Date ___ Fee Paid ___
License No. ___
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(5)(a) Fees for concealed handgun licenses are:
(A) $15 to the Department of State Police for conducting the
fingerprint check of the applicant.
(B) $50 to the sheriff for the issuance or renewal of a
concealed handgun license.
(C) $15 to the sheriff for the duplication of a license because
of loss or change of address.
(b) The sheriff may enter into an agreement with the Department
of Transportation to produce the concealed handgun license.
(6) No civil or criminal liability shall attach to the sheriff
or any authorized representative engaged in the receipt and
review of, or an investigation connected with, any application
for, or in the issuance, denial or revocation of, any license
under ORS 166.291 to 166.295 as a result of the lawful
performance of duties under those sections.
(7) Immediately upon acceptance of an application for a
concealed handgun license, the sheriff shall enter the
applicant's name into the Law Enforcement Data System indicating
that the person is an applicant for a concealed handgun license
or is a license holder.
(8) The county sheriff may waive the residency requirement in
subsection (1)(c) of this section for a resident of a contiguous
state who has a compelling business interest or other legitimate
demonstrated need.
SECTION 15. ORS 135.240 is amended to read:
135.240. (1) Except as provided in subsections (2), (4) and (5)
of this section, a defendant shall be released in accordance with
ORS 135.230 to 135.290.
(2)(a) When the defendant is charged with murder, aggravated
murder or treason, release shall be denied when the proof is
evident or the presumption strong that the person is guilty.
(b) When the defendant is charged with murder or aggravated
murder and the proof is not evident nor the presumption strong
that the defendant is guilty, the court shall determine the issue
of release as provided in subsection (4) of this section. In
determining the issue of release under subsection (4) of this
section, the court may consider any evidence used in making the
determination required by this subsection.
(3) The magistrate may conduct such hearing as the magistrate
considers necessary to determine whether, under subsection (2) of
this section, the proof is evident or the presumption strong that
the person is guilty.
(4)(a) Except as otherwise provided in subsection (5) of this
section, when the defendant is charged with a crime listed in ORS
137.700 or 137.707, other than attempt or conspiracy to commit
murder or attempt or conspiracy to commit aggravated murder,
release shall be denied unless the court determines by clear and
convincing evidence that the defendant will not commit new
criminal offenses while on release.
(b) If the defendant wants to have a hearing on the issue of
release, the defendant must request the hearing at the time of
arraignment in circuit court. If the defendant requests a release
hearing, the court must hold the hearing within five days of the
request.
(c) At the release hearing, unless the state stipulates to the
setting of security or release, the court shall determine whether
probable cause exists to believe the defendant has committed an
offense listed in ORS 137.700 or 137.707, other than attempt or
conspiracy to commit murder or attempt or conspiracy to commit
aggravated murder, and, if so, whether the defendant would commit
new crimes while on release. The state has the burden of
producing evidence at the release hearing subject to ORS 40.015
(4).
(d) The defendant may be represented by counsel and may present
evidence on any relevant issue. However, the hearing may not be
used for purposes of discovery.
(e) If the court determines that the defendant will not commit
new crimes while on release, the court shall set security or
other appropriate conditions of release. If the court does not
determine that the defendant will not commit new crimes while on
release, the court shall deny release.
(f) When a defendant who has been released violates a condition
of release and the violation:
(A) Constitutes a new criminal offense, the court shall cause
the defendant to be taken back into custody and shall order the
defendant held pending trial without release.
(B) Does not constitute a new criminal offense, the court may
order the defendant to be taken back into custody, may order the
defendant held pending trial and may set a security amount of not
less than $250,000.
(5) If the United States Constitution or the Oregon
Constitution prohibits application of subsection (4) of this
section, then notwithstanding any other provision of law, the
court shall set a security amount of not less than $50,000 for a
defendant charged with an offense listed in ORS 137.700 or
137.707 and may not release the defendant on any form of release
other than a security release. In addition to the security
amount, the court may impose any supervisory conditions deemed
necessary for the protection of the victim and the community.
When a defendant who has been released violates a condition of
release and the violation:
(a) Constitutes a new criminal offense, the court shall cause
the defendant to be taken back into custody, shall order the
defendant held pending trial and shall set a security amount of
not less than $250,000.
(b) Does not constitute a new criminal offense, the court may
order the defendant to be taken back into custody, may order the
defendant held pending trial and may set a security amount of not
less than $250,000.
{ + (6) When the defendant is charged with violating any
provision of a stalking protective order issued under section 3
or 4 of this 2003 Act and unless otherwise specified by the
court, the court shall set a security amount of $5,000. + }
SECTION 16. ORS 163.730 is amended to read:
163.730. As used in ORS 30.866 and 163.730 to 163.750 { + and
sections 2 to 4 of this 2003 Act + }, unless the context requires
otherwise:
(1) 'Alarm' means to cause apprehension or fear resulting from
the perception of danger.
(2) 'Coerce' means to restrain, compel or dominate by force or
threat.
(3) 'Contact' includes but is not limited to:
(a) Coming into the visual or physical presence of the other
person;
(b) Following the other person;
(c) Waiting outside the home, property, place of work or school
of the other person or of a member of that person's family or
household;
(d) Sending or making written or electronic communications in
any form to the other person;
(e) Speaking with the other person by any means;
(f) Communicating with the other person through a third person;
(g) Committing a crime against the other person;
(h) Communicating with a third person who has some relationship
to the other person with the intent of affecting the third
person's relationship with the other person;
(i) Communicating with business entities with the intent of
affecting some right or interest of the other person;
(j) Damaging the other person's home, property, place of work
or school; or
(k) Delivering directly or through a third person any object to
the home, property, place of work or school of the other person.
(4) 'Household member' means any person residing in the same
residence as the victim.
(5) 'Immediate family' means father, mother, child, sibling,
parent, spouse, grandparent, stepparent and stepchild.
(6) 'Law enforcement officer' means any person employed in this
state as a police officer by a county sheriff, constable, marshal
or municipal or state police agency.
(7) 'Repeated' means two or more times.
(8) 'School' means a public or private institution of learning
or a child care facility.
SECTION 17. ORS 40.355 is amended to read:
40.355. (1) For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime
shall be admitted if elicited from the witness or established by
public record, but only if the crime:
(a) Was punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted; or
(b) Involved false statement or dishonesty.
(2)(a) If a defendant is charged with one or more of the crimes
listed in paragraph (b) of this subsection, and the defendant is
a witness, evidence that the defendant has been convicted of
committing one or more of the following crimes against a family
or household member, as defined in ORS 135.230, may be elicited
from the defendant, or established by public record, and admitted
into evidence for the purpose of attacking the credibility of the
defendant:
(A) Assault in the fourth degree under ORS 163.160.
(B) Menacing under ORS 163.190.
(C) Harassment under ORS 166.065.
(D) Attempted assault in the fourth degree under ORS 163.160
(1).
(E) Attempted assault in the fourth degree under ORS 163.160
(3).
(b) Evidence may be admitted into evidence for the purpose of
attacking the credibility of a defendant under the provisions of
this subsection only if the defendant is charged with committing
one or more of the following crimes against a family or household
member, as defined in ORS 135.230:
(A) Aggravated murder under ORS 163.095.
(B) Murder under ORS 163.115.
(C) Manslaughter in the first degree under ORS 163.118.
(D) Manslaughter in the second degree under ORS 163.125.
(E) Assault in the first degree under ORS 163.185.
(F) Assault in the second degree under ORS 163.175.
(G) Assault in the third degree under ORS 163.165.
(H) Assault in the fourth degree under ORS 163.160.
(I) Rape in the first degree under ORS 163.375 (1)(a).
(J) Sodomy in the first degree under ORS 163.405 (1)(a).
(K) Unlawful sexual penetration in the first degree under ORS
163.411 (1)(a).
(L) Sexual abuse in the first degree under ORS 163.427
(1)(a)(B).
(M) Kidnapping in the first degree under ORS 163.235.
(N) Kidnapping in the second degree under ORS 163.225.
(O) Burglary in the first degree under ORS 164.225.
(P) Coercion under ORS 163.275.
(Q) Stalking under ORS 163.732.
(R) Violating a { - court's - } stalking protective order
under ORS 163.750.
(S) Menacing under ORS 163.190.
(T) Harassment under ORS 166.065.
(U) Attempting to commit a crime listed in this paragraph.
(3) Evidence of a conviction under this section is not
admissible if:
(a) A period of more than 15 years has elapsed since the date
of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later
date; or
(b) The conviction has been expunged by pardon, reversed, set
aside or otherwise rendered nugatory.
(4) When the credibility of a witness is attacked by evidence
that the witness has been convicted of a crime, the witness shall
be allowed to explain briefly the circumstances of the crime or
former conviction; once the witness explains the circumstances,
the opposing side shall have the opportunity to rebut the
explanation.
(5) The pendency of an appeal therefrom does not render
evidence of a conviction inadmissible. Evidence of the pendency
of an appeal is admissible.
(6) An adjudication by a juvenile court that a child is within
its jurisdiction is not a conviction of a crime.
(7) A conviction of any of the statutory counterparts of
offenses designated as violations as described in ORS 153.008 may
not be used to impeach the character of a witness in any criminal
or civil action or proceeding.
----------