72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
Senate Bill 59
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 Senator Bev Clarno for
Asset Forfeiture Oversight Advisory Committee)
CHAPTER ................
AN ACT
Relating to criminal forfeiture; creating new provisions;
amending ORS 166.210, 166.250, 166.282, 166.370, 166.410 and
166.460 and sections 8, 57 and 58, chapter 666, Oregon Laws
2001; repealing ORS 166.281; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Section 8, chapter 666, Oregon Laws 2001, is amended
to read:
{ + Sec. 8. + } (1) As soon as practicable after seizure for
criminal forfeiture, the seizing agency shall review the
inventory prepared by the police officer under section 5 { + ,
chapter 666, Oregon Laws 2001 + } { - of this 2001 Act - } .
Within { - 15 - } { + 30 + } days after seizure for criminal
forfeiture, the forfeiture counsel shall file a criminal
information or an indictment alleging facts sufficient to
establish that the property is subject to criminal forfeiture.
Within { - 15 - } { + 30 + } days after seizure for criminal
forfeiture, the seizing agency or forfeiture counsel shall
prepare a notice of seizure for criminal forfeiture containing a
copy of the inventory prepared pursuant to section 5 { + ,
chapter 666, Oregon Laws 2001, + } { - of this 2001 Act, - }
the identity of the person from whom the property was seized, the
name, address and telephone number of the seizing agency and the
address and telephone number of the office or other place where
further information concerning the seizure and criminal
forfeiture may be obtained, and shall make reasonable efforts to
serve the notice of seizure for criminal forfeiture on all
persons, other than the defendant, known to have an interest in
the seized property. A person may be served as provided in ORCP 7
D except that the notice must also include information regarding
the right to file a claim under subsection (2) of this section,
if applicable, and the deadline for filing the claim. If the
property is cash in the amount of $1,000 or less or if the fair
market value of the property is $1,000 or less, the seizing
agency may publish notice of seizure for criminal forfeiture in a
newspaper as provided in ORCP 7 D(6)(b) to D(6)(d). In all other
cases, the seizing agency shall publish notice of seizure for
criminal forfeiture in a newspaper as provided in ORCP 7 D(6)(b)
to D(6)(d). The seizing agency shall provide a copy of the
Enrolled Senate Bill 59 (SB 59-B) Page 1
notice, inventory and estimate of value to the forfeiture
counsel.
(2) Except as otherwise provided in section 11 (1) to (3) { + ,
chapter 666, Oregon Laws 2001, + } { - of this 2001 Act, - }
if notice of seizure for criminal forfeiture:
(a) Is given in a manner other than by publication, any person,
other than the defendant, claiming an interest in the property
must file a claim with the forfeiture counsel within 21 days
after service of notice of seizure for criminal forfeiture.
(b) Is published, any person, other than the defendant,
claiming an interest in the property must file a claim with the
forfeiture counsel within 21 days after the last publication
date.
(3) An extension for the filing of a claim under subsection (2)
of this section may not be granted. The claim must be signed by
the claimant under penalty of perjury and must set forth all of
the following:
(a) The true name of the claimant;
(b) The address at which the claimant will accept future
mailings from the court or the forfeiture counsel; and
(c) A statement that the claimant has an interest in the seized
property.
(4) If a seizing agency publishes notice of seizure for
criminal forfeiture in a newspaper in the manner provided by
subsection (1) of this section, the agency may include in a
single publication as many notices of criminal forfeiture as the
agency considers convenient. The publication may contain a single
statement of matters from the notices of criminal forfeiture that
are common to all of the notices and that would otherwise result
in needless repetition. The publication must contain for each
notice of criminal forfeiture a separate copy of the inventory
prepared pursuant to section 5 { + , chapter 666, Oregon Laws
2001, + } { - of this 2001 Act - } and a separate statement of
the identity of the person from whose custody the property was
seized. The published inventory need not contain estimates of
value for the property seized.
SECTION 2. Section 57, chapter 666, Oregon Laws 2001, is
amended to read:
{ + Sec. 57. + } Sections 1 to 19 { + , chapter 666, Oregon
Laws 2001, and section 3 of this 2003 Act + } { - of this 2001
Act - } are repealed on July 31, 2005.
SECTION 3. { + (1) Except as provided in subsection (4) of
this section, sections 1 to 18, chapter 666, Oregon Laws 2001, do
not apply to the forfeiture of a firearm or other deadly weapon
that was possessed, used or available for use to facilitate a
criminal offense.
(2) Except as provided in subsection (3) of this section, at
the time of sentencing for any criminal offense in which a
firearm or other deadly weapon was possessed, used or available
for use to facilitate the offense, the court shall declare the
weapon to be contraband and order that the weapon be forfeited.
(3) If a firearm or other deadly weapon that was possessed,
used or available for use to facilitate a criminal offense was
stolen from its lawful owner and was recovered from a person
other than the lawful owner, the court may not order that the
weapon be forfeited but shall order that the weapon be restored
to the lawful owner as soon as the weapon is no longer needed for
evidentiary purposes.
(4) The court shall release a firearm or other deadly weapon
forfeited under subsection (2) of this section to the law
Enrolled Senate Bill 59 (SB 59-B) Page 2
enforcement agency that seized the weapon. The law enforcement
agency may destroy or sell the weapon, use the weapon as a
service weapon or use the weapon for training, identification or
demonstration purposes. When a weapon is sold pursuant to this
subsection, the law enforcement agency shall pay the proceeds
from the sale, less the costs of the sale, as provided in
sections 16 and 17, chapter 666, Oregon Laws 2001.
(5) As used in this section, 'deadly weapon' has the meaning
given that term in ORS 161.015. + }
SECTION 4. { + (1) Except as provided in subsection (2) of
this section, at the time of sentencing for any criminal offense
in which a firearm or other deadly weapon was possessed, used or
available for use to facilitate the offense, the court shall
declare the weapon to be contraband and order that the weapon be
forfeited.
(2) If a firearm or other deadly weapon that was possessed,
used or available for use to facilitate a criminal offense was
stolen from its lawful owner and was recovered from a person
other than the lawful owner, the court may not order that the
weapon be forfeited but shall order that the weapon be restored
to the lawful owner as soon as the weapon is no longer needed for
evidentiary purposes.
(3) The court shall release a firearm or other deadly weapon
forfeited under subsection (1) of this section to the law
enforcement agency that seized the weapon. The law enforcement
agency may destroy or sell the weapon, use the weapon as a
service weapon or use the weapon for training, identification or
demonstration purposes. When a weapon is sold pursuant to this
subsection, the law enforcement agency shall pay the proceeds
from the sale, less the costs of the sale, as follows:
(a) When the seizing agency is not the state:
(A) Three percent to the Asset Forfeiture Oversight Account
established in ORS 475A.160;
(B) Seven percent to the Illegal Drug Cleanup Fund established
in ORS 475.495;
(C) Ten percent to the state General Fund;
(D) Forty percent to the Mental Health Alcoholism and Drug
Services Account established in ORS 430.380; and
(E) Forty percent to the general fund of the political
subdivision that operates the law enforcement agency, to be used
for law enforcement purposes; or
(b) When the seizing agency is the state:
(A) Three percent to the Asset Forfeiture Oversight Account
established in ORS 475A.160;
(B) Seven percent to the Illegal Drug Cleanup Fund established
in ORS 475.495;
(C) Ten percent to the state General Fund;
(D) Forty percent to be distributed equitably between the
agencies that participated in the seizure, to be used by those
agencies for law enforcement purposes; and
(E) Forty percent to the Mental Health Alcoholism and Drug
Services Account established in ORS 430.380.
(4) As used in this section, 'deadly weapon' has the meaning
given that term in ORS 161.015. + }
SECTION 5. ORS 166.282, as amended by section 37, chapter 666,
Oregon Laws 2001, is amended to read:
166.282. (1) A political subdivision in this state that sells a
weapon described in subsection (2) of this section shall pay the
proceeds from the sale of the weapon, less the costs of the sale,
to the account of the police agency that received { - or
Enrolled Senate Bill 59 (SB 59-B) Page 3
seized - } the weapon, to be used for purposes of public safety,
law enforcement and crime prevention and detection.
(2) Subsection (1) of this section applies to a weapon that is
{ - : - }
{ - (a) - } donated to the police agency { - ; or - }
{ - (b) Seized by the police agency under ORS 166.281 - } .
SECTION 6. ORS 166.370, as amended by section 36, chapter 666,
Oregon Laws 2001, is amended to read:
166.370. (1) Any person who intentionally possesses a loaded or
unloaded firearm or any other instrument used as a dangerous
weapon, while in or on a public building, shall upon conviction
be guilty of a Class C felony.
(2)(a) Except as otherwise provided in paragraph (b) of this
subsection, a person who intentionally possesses:
(A) A firearm in a court facility is guilty, upon conviction,
of a Class C felony. A person who intentionally possesses a
firearm in a court facility shall surrender the firearm to a law
enforcement officer.
(B) A weapon, other than a firearm, in a court facility may be
required to surrender the weapon to a law enforcement officer or
to immediately remove it from the court facility. A person who
fails to comply with this subparagraph is guilty, upon
conviction, of a Class C felony.
(b) The presiding judge of a judicial district may enter an
order permitting the possession of specified weapons in a court
facility.
(3) Subsection (1) of this section does not apply to:
(a) A sheriff, police officer, other duly appointed peace
officers or a corrections officer while acting within the scope
of employment.
(b) A person summoned by a peace officer to assist in making an
arrest or preserving the peace, while the summoned person is
engaged in assisting the officer.
(c) An active or reserve member of the military forces of this
state or the United States, when engaged in the performance of
duty.
(d) A person who is licensed under ORS 166.291 and 166.292 to
carry a concealed handgun.
(e) A person who is authorized by the officer or agency that
controls the public building to possess a firearm or dangerous
weapon in that public building.
(f) Possession of a firearm on school property if the firearm:
(A) Is possessed by a person who is not otherwise prohibited
from possessing the firearm; and
(B) Is unloaded and locked in a motor vehicle.
(4) The exceptions listed in subsection (3)(b) to (f) of this
section constitute affirmative defenses to a charge of violating
subsection (1) of this section.
(5)(a) Any person who knowingly, or with reckless disregard for
the safety of another, discharges or attempts to discharge a
firearm at a place that the person knows is a school shall upon
conviction be guilty of a Class C felony.
(b) Paragraph (a) of this subsection does not apply to the
discharge of a firearm:
(A) As part of a program approved by a school in the school by
an individual who is participating in the program; or
(B) By a law enforcement officer acting in the officer's
official capacity.
Enrolled Senate Bill 59 (SB 59-B) Page 4
(6) Any weapon carried in violation of this section is subject
to the forfeiture provisions of { - ORS 166.281 - } { +
section 4 of this 2003 Act + }.
(7) Notwithstanding the fact that a person's conduct in a
single criminal episode constitutes a violation of both
subsections (1) and (5) of this section, the district attorney
may charge the person with only one of the offenses.
(8) As used in this section, 'dangerous weapon' means a
dangerous weapon as that term is defined in ORS 161.015.
SECTION 7. ORS 166.210, as amended by section 44, chapter 666,
Oregon Laws 2001, is amended to read:
166.210. As used in ORS 166.250 to 166.270, { - 166.281, - }
166.291 to 166.295 and 166.410 to 166.470:
(1) 'Antique firearm' means:
(a) Any firearm, including any firearm with a matchlock,
flintlock, percussion cap or similar type of ignition system,
manufactured in or before 1898; and
(b) Any replica of any firearm described in paragraph (a) of
this subsection if the replica:
(A) Is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition; or
(B) Uses rimfire or conventional centerfire fixed ammunition
that is no longer manufactured in the United States and that is
not readily available in the ordinary channels of commercial
trade.
(2) 'Firearm' means a weapon, by whatever name known, which is
designed to expel a projectile by the action of powder and which
is readily capable of use as a weapon.
(3) 'Firearms silencer' means any device for silencing,
muffling or diminishing the report of a firearm.
(4) 'Handgun' means any pistol or revolver using a fixed
cartridge containing a propellant charge, primer and projectile,
and designed to be aimed or fired otherwise than from the
shoulder.
(5) 'Machine gun' means a weapon of any description by whatever
name known, loaded or unloaded, which is designed or modified to
allow two or more shots to be fired by a single pressure on the
trigger device.
(6) 'Minor' means a person under 18 years of age.
(7) 'Parole and probation officer' has the meaning given that
term in ORS 181.610.
(8) 'Short-barreled rifle' means a rifle having one or more
barrels less than 16 inches in length and any weapon made from a
rifle if the weapon has an overall length of less than 26 inches.
(9) 'Short-barreled shotgun' means a shotgun having one or more
barrels less than 18 inches in length and any weapon made from a
shotgun if the weapon has an overall length of less than 26
inches.
SECTION 8. ORS 166.250, as amended by section 45, chapter 666,
Oregon Laws 2001, is amended to read:
166.250. (1) Except as otherwise provided in this section or
ORS 166.260, 166.270, 166.274, { - 166.281, - } 166.291,
166.292 or 166.410 to 166.470, a person commits the crime of
unlawful possession of a firearm if the person knowingly:
(a) Carries any firearm concealed upon the person;
(b) Possesses a handgun that is concealed and readily
accessible to the person within any vehicle; or
(c) Possesses a firearm and:
(A) Is under 18 years of age;
Enrolled Senate Bill 59 (SB 59-B) Page 5
(B)(i) While a minor, was found to be within the jurisdiction
of the juvenile court for having committed an act which, if
committed by an adult, would constitute a felony or a misdemeanor
involving violence, as defined in ORS 166.470; and
(ii) Was discharged from the jurisdiction of the juvenile court
within four years prior to being charged under this section;
(C) Has been convicted of a felony or found guilty, except for
insanity under ORS 161.295, of a felony;
(D) Was committed to the Department of Human Services under ORS
426.130; or
(E) Was found to be mentally ill and subject to an order under
ORS 426.130 that the person be prohibited from purchasing or
possessing a firearm as a result of that mental illness.
(2) This section does not prohibit:
(a) A minor, who is not otherwise prohibited under subsection
(1)(c) of this section, from possessing a firearm:
(A) Other than a handgun, if the firearm was transferred to the
minor by the minor's parent or guardian or by another person with
the consent of the minor's parent or guardian; or
(B) Temporarily for hunting, target practice or any other
lawful purpose; or
(b) Any citizen of the United States over the age of 18 years
who resides in or is temporarily sojourning within this state,
and who is not within the excepted classes prescribed by ORS
166.270 and subsection (1) of this section, from owning,
possessing or keeping within the person's place of residence or
place of business any handgun, and no permit or license to
purchase, own, possess or keep any such firearm at the person's
place of residence or place of business is required of any such
citizen. As used in this subsection, 'residence' includes a
recreational vessel or recreational vehicle while used, for
whatever period of time, as residential quarters.
(3) Firearms carried openly in belt holsters are not concealed
within the meaning of this section.
(4) Unlawful possession of a firearm is a Class A misdemeanor.
SECTION 9. ORS 166.410, as amended by section 46, chapter 666,
Oregon Laws 2001, is amended to read:
166.410. Any person who manufactures or causes to be
manufactured within this state, or who imports into this state,
or offers, exposes for sale, or sells or transfers a handgun,
short-barreled rifle, short-barreled shotgun, firearms silencer
or machine gun, otherwise than in accordance with ORS 166.250 to
166.270, { - 166.281, - } 166.291, 166.292 and 166.425 to
166.470, shall be guilty of a Class B felony.
SECTION 10. ORS 166.460, as amended by section 47, chapter 666,
Oregon Laws 2001, is amended to read:
166.460. (1) ORS 166.250, 166.260, { - 166.281, - } 166.291
to 166.295, 166.410, 166.412, 166.425, 166.434, 166.438 and
166.450 do not apply to antique firearms.
(2) Notwithstanding the provisions of subsection (1) of this
section, possession of an antique firearm by a person described
in ORS 166.250 (1)(c)(B), (C) or (D) constitutes a violation of
ORS 166.250.
SECTION 11. { + Section 3 of this 2003 Act applies to weapons
seized on or after the effective date of this 2003 Act. + }
SECTION 12. Section 58, chapter 666, Oregon Laws 2001, as
amended by section 14d, chapter 926, Oregon Laws 2001, is amended
to read:
Enrolled Senate Bill 59 (SB 59-B) Page 6
{ + Sec. 58. + } (1) Sections 49 to 52 and 54, chapter 666,
Oregon Laws 2001, { + and section 4 of this 2003 Act + } become
operative on July 31, 2005.
(2) The amendments to ORS 133.643, 137.138, 164.864, 164.866,
166.210, 166.250, 166.282, 166.370, 166.410, 166.460, 166.660 and
475A.155 by sections 21, 23 and 36 to 47, chapter 666, Oregon
Laws 2001, { + and sections 5 to 10 of this 2003 Act + } become
operative on July 31, 2005.
SECTION 13. { + ORS 166.281 is repealed. + }
SECTION 14. { + 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. + }
----------
Passed by Senate February 12, 2003
Repassed by Senate July 14, 2003
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House July 10, 2003
...........................................................
Speaker of House
Enrolled Senate Bill 59 (SB 59-B) Page 7
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled Senate Bill 59 (SB 59-B) Page 8