Chapter 564 Oregon Laws 2005

AN ACT

HB 2230

Relating to restitution; creating new provisions; and amending ORS 137.103, 137.106, 137.109, 137.295, 163.245, 163.257 and 163.577.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 137.103 is amended to read:

137.103. As used in ORS 137.101 to 137.109, 137.540, 161.675 and 161.685:

(1) “Criminal activities” means any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.

(2) [“Pecuniary damages” means all special damages, but not general damages, which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant’s criminal activities and shall include, but not be limited to, the money equivalent of property taken, destroyed, broken or otherwise harmed, and losses such as medical expenses and costs of psychological treatment or counseling.] “Economic damages” has the meaning given that term in ORS 31.710, except that “economic damages” does not include future impairment of earning capacity.

(3) “Restitution” means full, partial or nominal payment of [pecuniary] economic damages to a victim. Restitution is independent of and may be awarded in addition to a compensatory fine awarded under ORS 137.101.

(4) “Victim” means:

(a) The person against whom the defendant committed the criminal offense, if the court determines that the person has suffered economic damages as a result of the offense.

(b) Any person not described in paragraph (a) of this subsection whom the court determines has suffered [pecuniary] economic damages as a result of the defendant’s criminal activities.[;]

(c) The Criminal Injuries Compensation Account, if it has expended moneys on behalf of a victim described in paragraph (a) of this subsection.

(d) An insurance carrier, if it has expended moneys on behalf of a victim described in paragraph (a) of this subsection.

(5) “Victim” [shall] does not include any coparticipant in the defendant’s criminal activities.

SECTION 2. ORS 137.106 is amended to read:

137.106. (1) When a person is convicted of a crime, or a violation as described in ORS 153.008, that has resulted in [pecuniary] economic damages, the district attorney shall investigate and present to the court, prior to the time of sentencing, evidence of the nature and amount of [such] the damages. If the court finds from the evidence presented that a victim suffered [pecuniary] economic damages, in addition to any other sanction it may impose, the court shall:

(a) Include in the judgment a requirement that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s [pecuniary] economic damages as determined by the court; or

(b) Include in the judgment a requirement that the defendant pay the victim restitution, and that the specific amount of restitution will be established by a supplemental judgment based upon a determination made by the court within 90 days of entry of the judgment. In the supplemental judgment, the court shall establish a specific amount of restitution that equals the full amount of the victim’s [pecuniary] economic damages as determined by the court. The court may extend the time within which the determination and supplemental judgment may be completed for good cause. The lien, priority of the lien and ability to enforce the specific amount of restitution established under this paragraph by a supplemental judgment relates back to the date of the original judgment that is supplemented.

(2) After the district attorney makes a presentation described in subsection (1) of this section, if the court is unable to find from the evidence presented that a victim suffered [pecuniary] economic damages, the court shall make a finding on the record to that effect.

(3) No finding made by the court or failure of the court to make a finding under this section limits or impairs the rights of a person injured to sue and recover damages in a civil action as provided in ORS 137.109.

(4) If a judgment or supplemental judgment described in subsection (1) of this section includes restitution, a court may delay the enforcement of the monetary sanctions, including restitution, only if the defendant alleges and establishes to the satisfaction of the court the defendant’s inability to pay the judgment in full at the time the judgment is entered. If the court finds that the defendant is unable to pay, the court may establish or allow an appropriate supervising authority to establish a payment schedule, taking into consideration the financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant.

(5) If the defendant objects to the imposition, amount or distribution of the restitution, the court shall allow the defendant to be heard on such issue at the time of sentencing or at the time the court determines the amount of restitution.

SECTION 3. ORS 137.109 is amended to read:

137.109. (1) Nothing in ORS 137.103 to 137.109, 137.540, 144.102, 144.275, 161.675 and 161.685 limits or impairs the right of a person injured by a defendant’s commission of a crime, or by a defendant’s commission of a violation described in ORS 153.008, to sue and recover damages from the defendant in a civil action. Evidence that the defendant has paid or been ordered to pay restitution pursuant to ORS 137.103 to 137.109, 137.540, 144.102, 144.275, 161.675 and 161.685 may not be introduced in any civil action arising out of the facts or events [which] that were the basis for the restitution. However, the court shall credit any restitution paid by the defendant to a victim against any judgment in favor of the victim in such civil action.

(2) If conviction in a criminal trial necessarily decides the issue of a defendant’s liability for [pecuniary] economic damages of a victim, that issue is conclusively determined as to the defendant if it is involved in a subsequent civil action.

SECTION 4. ORS 137.295 is amended to read:

137.295. (1) When a defendant convicted of a crime or violation in the circuit, justice or municipal court, or allowed diversion in such a case, makes a payment of money to be credited against monetary obligations imposed as a result of that conviction or diversion, the clerk shall distribute the payment as provided in this section.

(2) There are four categories of monetary obligations. The categories are as follows:

(a) Category 1 consists of compensatory fines under ORS 137.101.

(b) Category 2 consists of restitution as defined in ORS 137.103 and restitution under ORS 419C.450 and a monetary obligation imposed under ORS 811.706.

(c) Category 3 consists of the unitary assessment imposed under ORS 137.290, costs imposed under ORS 151.505 or 161.665 and those fines, costs, forfeited security amounts and other monetary obligations payable to the state or to the General Fund of the state in criminal and quasi-criminal cases for which moneys the law does not expressly provide other disposition.

(d) Category 4 consists of monetary obligations imposed upon the defendant as a result of the conviction, but which do not fall under category 1, category 2 or category 3 of the obligation categories. These include, but are not limited to, fines and other monetary obligations that the law expressly directs be paid to an agency, person or political subdivision of the state, and any other obligation to reimburse for payment of a reward under ORS 131.897.

(3) So long as there remains unpaid any obligation under category 1, the clerk shall credit toward category 1 all of each payment received.

(4) After the total obligation has been credited under category 1, then so long as there remains unpaid any obligation under both categories 2 and 3, the clerk shall credit toward each such category 50 percent of each payment received.

(5) The clerk shall monthly transfer the moneys credited under category 1 and under category 2 to the victims for whose benefit moneys under that category were ordered paid. If there are multiple victims for whose benefit moneys have been ordered paid under category 2, the clerk shall first transfer moneys credited under category 2 to the victim, as defined in ORS 137.103 (4)(a). When the moneys due the victim, as defined in ORS 137.103 (4)(a), have been fully paid, the clerk shall transfer moneys credited under category 2 to the Criminal Injuries Compensation Account if moneys have been ordered paid to the account under category 2. When the moneys due the account have been fully paid, the clerk shall transfer moneys credited under category 2 to any other victims, as defined in ORS 137.103 (4)(b) or (d), for whose benefit moneys under that category were ordered paid in proportion to the amounts ordered. The clerk of a circuit court shall monthly transfer the moneys credited under category 3 as directed by the State Court Administrator for deposit in the State Treasury to the credit of the Criminal Fine and Assessment Account established under ORS 137.300. The clerk of a justice or municipal court shall monthly transfer the moneys credited under category 3 to the Department of Revenue as provided in ORS 305.830.

(6) When the entire amount owing for purposes of either category 2 or category 3 has been credited, further payments by the defendant shall be credited by the clerk entirely to the unpaid balance of whichever of those categories remains unpaid, until both category 2 and category 3 have been entirely paid.

(8) Notwithstanding subsection (5) of this section, the clerk of a circuit court shall monthly transfer the moneys attributable to parking violations to the State Treasurer for deposit in the General Fund.

(9) The clerk of a justice or municipal court must make the transfers required by this section not later than the last day of the month immediately following the month in which a payment is made.

SECTION 5. ORS 137.295, as amended by section 1, chapter 1064, Oregon Laws 1999, section 23, chapter 823, Oregon Laws 2001, and section 3, chapter 687, Oregon Laws 2003, is amended to read:

(2) There are four categories of monetary obligations. The categories are as follows:

(a) Category 1 consists of compensatory fines under ORS 137.101.

(b) Category 2 consists of restitution as defined in ORS 137.103 and restitution under ORS 419C.450 and a monetary obligation imposed under ORS 811.706.

(3) As long as there remains unpaid any obligation under category 1, including any interest accrued on that obligation, the clerk shall credit toward category 1 all of each payment received.

(4) After the total obligation has been credited under category 1, then as long as there remains unpaid any obligation under both categories 2 and 3, including any interest accrued on those obligations, the clerk shall credit toward each such category 50 percent of each payment received.

(5) The clerk shall monthly transfer the principal amount of the moneys credited under category 1 and under category 2, and all interest that has accrued on those principal amounts, to the victims for whose benefit moneys under that category were ordered paid. If there are multiple victims for whose benefit moneys have been ordered paid under category 2, the clerk shall first transfer moneys credited under category 2 to the victim, as defined in ORS 137.103 (4)(a). When the moneys due the victim, as defined in ORS 137.103 (4)(a), have been fully paid, the clerk shall transfer moneys credited under category 2 to the Criminal Injuries Compensation Account if moneys have been ordered paid to the account under category 2. When the moneys due the account have been fully paid, the clerk shall transfer moneys credited under category 2 to any other victims, as defined in ORS 137.103 (4)(b) or (d), for whose benefit moneys under that category were ordered paid in proportion to the amounts ordered. The clerk of a circuit court shall monthly transfer the principal amount of the moneys credited under category 3 as directed by the State Court Administrator for deposit in the State Treasury to the credit of the Criminal Fine and Assessment Account established under ORS 137.300. The clerk of a justice or municipal court shall monthly transfer the principal amount of the moneys credited under category 3 to the Department of Revenue as provided in ORS 305.830. The clerk shall transfer all interest on the principal amount of the moneys credited under category 3 to the State Court Administrator for deposit in the Court Facilities Account established under ORS 1.190.

(6) When the entire amount owing for purposes of either category 2 or category 3 has been credited, including any interest that has accrued on the amount, further payments by the defendant shall be credited by the clerk entirely to the unpaid balance of whichever of those categories remains unpaid, until both category 2 and category 3 have been entirely paid.

(7) When category 1, category 2 and category 3 have been entirely paid and any obligation remains owing under category 4, the clerk shall credit further payments by the defendant to the obligations under category 4 and shall monthly transfer the principal amount of the moneys so received to the appropriate recipient, giving first priority to counties and cities entitled to revenues generated by prosecutions in justice and municipal courts and giving last priority to persons entitled to moneys as reimbursement for reward under ORS 131.897. The clerk shall transfer all interest on the principal amount of the moneys credited under category 4 to the agency, person or political subdivision of the state entitled to the principal amount. All interest on monetary obligations owing to the state under category 4 shall be transferred to the State Court Administrator for deposit in the Court Facilities Account established under ORS 1.190.

(9) The clerk of a justice or municipal court must make the transfers required by this section not later than the last day of the month immediately following the month in which a payment is made.

SECTION 6. ORS 163.245 is amended to read:

163.245. (1) A person commits the crime of custodial interference in the second degree if, knowing or having reason to know that the person has no legal right to do so, the person takes, entices or keeps another person from the other person’s lawful custodian or in violation of a valid joint custody order with intent to hold the other person permanently or for a protracted period.

(2) Expenses incurred by a lawful custodial parent or a parent enforcing a valid joint custody order in locating and regaining physical custody of the person taken, enticed or kept in violation of this section are “[pecuniary] economic damages” for purposes of restitution under ORS 137.103 to 137.109.

(3) Custodial interference in the second degree is a Class C felony.

SECTION 7. ORS 163.257 is amended to read:

163.257. (1) A person commits the crime of custodial interference in the first degree if the person violates ORS 163.245 and:

(a) Causes the person taken, enticed or kept from the lawful custodian or in violation of a valid joint custody order to be removed from the state; or

(b) Exposes that person to a substantial risk of illness or physical injury.

(3) Custodial interference in the first degree is a Class B felony.

SECTION 8. ORS 163.577 is amended to read:

163.577. (1) A person commits the offense of failing to supervise a child if the person is the parent, lawful guardian or other person lawfully charged with the care or custody of a child under 15 years of age and the child:

(a) Commits an act that brings the child within the jurisdiction of the juvenile court under ORS 419C.005;

(b) Violates a curfew law of a county or any other political subdivision; or

(2) Nothing in this section applies to a child-caring agency as defined in ORS 418.205 or to foster parents.

(3) In a prosecution of a person for failing to supervise a child under subsection (1)(a) of this section, it is an affirmative defense that the person:

(a) Is the victim of the act that brings the child within the jurisdiction of the juvenile court; or

(b) Reported the act to the appropriate authorities.

(4) In a prosecution of a person for failing to supervise a child under subsection (1) of this section, it is an affirmative defense that the person took reasonable steps to control the conduct of the child at the time the person is alleged to have failed to supervise the child.

(5)(a) Except as provided in subsection (6) or (7) of this section, in a prosecution of a person for failing to supervise a child under subsection (1)(a) of this section, the court shall order the person to pay restitution under ORS 137.103 to 137.109 to a victim for [pecuniary] economic damages arising from the act of the child that brings the child within the jurisdiction of the juvenile court.

(b) The amount of restitution ordered under this subsection may not exceed $2,500.

(6) If a person pleads guilty or is found guilty of failing to supervise a child under this section and if the person has not previously been convicted of failing to supervise a child, the court:

(a) Shall warn the person of the penalty for future convictions of failing to supervise a child and shall suspend imposition of sentence.

(b) May not order the person to pay restitution under this section.

(7)(a) If a person pleads guilty or is found guilty of failing to supervise a child under this section and if the person has only one prior conviction for failing to supervise a child, the court, with the consent of the person, may suspend imposition of sentence and order the person to complete a parent effectiveness program approved by the court. Upon the person’s completion of the parent effectiveness program to the satisfaction of the court, the court may discharge the person. If the person fails to complete the parent effectiveness program to the satisfaction of the court, the court may impose a sentence authorized by this section.

(b) There may be only one suspension of sentence under this subsection with respect to a person.

(8) The juvenile court has jurisdiction over a first offense of failing to supervise a child under this section.

(9) Failing to supervise a child is a Class A violation.

SECTION 9. The amendments to ORS 137.103, 137.106, 137.109, 137.295, 163.245, 163.257 and 163.577 by sections 1 to 8 of this 2005 Act apply to judgments imposing awards of restitution that are entered as described by ORS 18.075 on or after the effective date of this 2005 Act.

Approved by the Governor July 20, 2005

Filed in the office of Secretary of State July 20, 2005

Effective date January 1, 2006

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