Chapter 843 Oregon Laws 2005

AN ACT

SB 232

Relating to juveniles; creating new provisions; amending ORS 21.010, 40.015, 137.290, 137.712, 151.216, 161.375, 161.385, 181.595, 181.607, 419A.004, 419B.100, 419C.005, 419C.285, 419C.400, 419C.411, 419C.501 and 419C.626; and appropriating money.

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

SECTION 1. ORS 419A.004 is amended to read:

419A.004. As used in this chapter and ORS chapters 419B and 419C, unless the context requires otherwise:

(1) “CASA Volunteer Program” means a program approved or sanctioned by the juvenile court to recruit, train and supervise volunteer persons to serve as court appointed special advocates.

(2) “Child care center” means a residential facility for wards or youth offenders that is licensed under the provisions of ORS 418.240.

(3) “Community service” has the meaning given that term in ORS 137.126.

(4) “Conflict of interest” means a person appointed to a local citizen review board who has a personal or pecuniary interest in a case being reviewed by that board.

(5) “Counselor” means a juvenile department counselor.

(6) “Court” means the juvenile court.

(7) “Court appointed special advocate” or “CASA” means a person appointed by the court pursuant to a CASA Volunteer Program to act as special advocate pursuant to ORS 419A.170.

(8) “Court facility” has the meaning given that term in ORS 166.360.

(9) “Department” means the Department of Human Services.

(10) “Detention” or “detention facility” means a facility established under ORS 419A.010 to 419A.020 and 419A.050 to 419A.063 for the detention of children, wards, youths or youth offenders pursuant to a judicial commitment or order.

(11) “Director” means the director of a juvenile department established under ORS 419A.010 to 419A.020 and 419A.050 to 419A.063.

(12) “Guardian” means guardian of the person and not guardian of the estate.

(13) “Indian child” means any unmarried person less than 18 years of age who is:

(a) A member of an Indian tribe; or

(b) Eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

(14) “Juvenile court” means the court having jurisdiction of juvenile matters in the several counties of this state.

(15) “Local citizen review board” means the board specified by ORS 419A.090 and 419A.092.

(16) “Parent” means the biological or adoptive mother and the legal or adoptive father of the child, ward, youth or youth offender. A legal father includes:

(a) A nonimpotent, nonsterile man who was cohabiting with his wife, who is the mother of the child, ward, youth or youth offender, at the time of conception;

(b) A man married to the mother of the child, ward, youth or youth offender at the time of birth, when there is no judgment of separation and the presumption of paternity has not been disputed;

(c) A biological father who marries the mother of the child, ward, youth or youth offender after the birth of the child, ward, youth or youth offender;

(d) A biological father who has established or declared paternity through filiation proceedings or under ORS 416.400 to 416.470; and

(e) A biological father who has, with the mother, established paternity through a voluntary acknowledgment of paternity under ORS 109.070.

(17) “Permanent foster care” means an out-of-home placement in which there is a long-term contractual foster care agreement between the foster parents and the department that is approved by the juvenile court and in which the foster parents commit to raise a ward in substitute care or youth offender until the age of majority.

(18) “Planned permanent living arrangement” means an out-of-home placement other than by adoption, placement with a relative or placement with a legal guardian that is consistent with the case plan and in the best interests of the ward.

(19) “Public building” has the meaning given that term in ORS 166.360.

(20) “Reasonable time” means a period of time that is reasonable given a child or ward’s emotional and developmental needs and ability to form and maintain lasting attachments.

(21) “Records” means any information in written form, pictures, photographs, charts, graphs, recordings or documents pertaining to a case.

(22) “Resides” or “residence,” when used in reference to the residence of a child, ward, youth or youth offender, means the place where the child, ward, youth or youth offender is actually living or the jurisdiction in which wardship or jurisdiction has been established.

(23) “Restitution” has the meaning given that term in ORS 137.103.

(24) “Serious physical injury” means:

(a) A serious physical injury as defined in ORS 161.015; or

(b) A physical injury that:

(A) Has a permanent or protracted significant effect on a child’s daily activities;

(B) Results in substantial and recurring pain; or

(25) “Shelter care” means a home or other facility suitable for the safekeeping of a child, ward, youth or youth offender who is taken into temporary custody pending investigation and disposition.

(26) “Short-term detention facility” means a facility established under ORS 419A.050 (3) for holding children, youths and youth offenders pending further placement.

(27) “Substitute care” means an out-of-home placement directly supervised by the department or other agency, including placement in a foster family home, group home or other child caring institution or facility. “Substitute care” does not include care in:

(a) A detention facility, forestry camp or youth correction facility;

(b) A family home that the court has approved as a ward’s permanent placement, when a private child caring agency has been appointed guardian of the ward and when the ward’s care is entirely privately financed; or

(28) “Surrogate” means a person appointed by the court to protect the right of the child, ward, youth or youth offender to receive procedural safeguards with respect to the provision of free appropriate public education.

(29) “Tribal court” means a court with jurisdiction over child custody proceedings and that is either a Court of Indian Offenses, a court established and operated under the code of custom of an Indian tribe or any other administrative body of a tribe that is vested with authority over child custody proceedings.

(30) “Ward” means a person within the jurisdiction of the juvenile court under ORS 419B.100.

(31) “Young person” means a person who has been found responsible except for insanity under ORS 419C.411 and placed under the jurisdiction of the Psychiatric Security Review Board.

[(31)] (32) “Youth” means a person under 18 years of age who is alleged to have committed an act that is a violation, or, if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city.

[(32)] (33) “Youth care center” has the meaning given that term in ORS 420.855.

[(33)] (34) “Youth offender” means a person who has been found to be within the jurisdiction of the juvenile court under ORS 419C.005 for an act committed when the person was under 18 years of age.

SECTION 2. Sections 3 to 6 of this 2005 Act are added to and made a part of ORS chapter 419C.

SECTION 3. As used in ORS 419C.411 and sections 4 to 6 and 13 to 19 of this 2005 Act:

(1) “Conditional release” includes but is not limited to the monitoring of mental and physical health treatment.

(2) “Mental disease or defect” does not include:

(a) An abnormality:

(A) Manifested only by repeated criminal or otherwise antisocial conduct;

(B) Constituting solely a personality disorder; or

(C) Constituting solely a conduct disorder; or

(b) A mental defect manifesting in significantly subaverage general intellectual functioning that is accompanied by significant limitations in adaptive functioning in at least two areas or characterized by severe and pervasive impairment manifested during the developmental period.

(3) “Serious mental condition” means a condition that requires supervision and treatment services for the safety of others and is:

(a) A mental illness of major depression;

(b) A mental illness of bipolar disorder; or

(c) A mental illness of psychotic disorder.

SECTION 4. Mental disease or defect constituting insanity under ORS 419C.411 (2) is an affirmative defense.

SECTION 5. (1) A youth may not introduce evidence on the issue of the defense set forth in section 4 of this 2005 Act unless the youth gives notice of intent to do so in the manner provided in subsection (2) of this section.

(2) A youth who is required under subsection (1) of this section to give notice must do so by filing a written notice of intent. A youth who is not in detention must file the notice of intent no later than 60 days after the petition is filed unless the court finds good cause to extend the time. If the youth fails to file notice timely, the youth may not introduce evidence for the establishment of the defense set forth in section 4 of this 2005 Act unless the court permits the evidence to be introduced when just cause for failure to file the notice is shown.

(3) Just cause for failure to file notice timely exists if the youth was not represented by counsel until after the filing period.

(4) The filing of a notice of intent under this section by a youth in detention constitutes express consent of the youth for continued detention under ORS 419C.150.

SECTION 6. Upon the filing of a written notice of intent or the introduction of evidence by the youth as provided in section 5 of this 2005 Act, the state may have at least one psychiatrist certified, or eligible to be certified, by the Board of Medical Examiners in child psychiatry or licensed psychologist with expertise in child psychology of its selection examine the youth. Unless the court finds good cause to extend the time, the state must obtain an examination under this section no later than 60 days after the notice of intent was filed or the evidence was introduced. The state shall file notice with the court of its intention to have the youth examined. Upon filing of the notice, the court shall order the youth to participate in an examination. If the youth objects to the examiner chosen by the state, the court for good cause shown may direct the state to select a different examiner. The examiner shall provide a copy of the report generated from the examination to the state. A report generated from an examination under this section is a report relating to the youth’s history and prognosis under ORS 419A.255 (2).

SECTION 7. ORS 419C.005 is amended to read:

419C.005. (1) Except as otherwise provided in ORS 137.707, the juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and who has committed an act that is a violation, or that if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city.

(2) The provisions of subsection (1) of this section do not prevent a court of competent jurisdiction from entertaining a civil action or suit involving a youth.

(3) The court does not have jurisdiction as provided in subsection (1) of this section after a minor has been emancipated pursuant to ORS 419B.550 to 419B.558.

(4) The court’s jurisdiction over a person under this section or ORS 419C.067 continues until one of the following occurs:

(a) The court dismisses a petition filed under this chapter or waives the case under ORS 419C.340. If jurisdiction is based on a previous adjudication, then dismissal or waiver of a later case does not terminate jurisdiction under the previous case unless the court so orders.

(b) The court transfers jurisdiction of the case as provided in ORS 419C.053, 419C.056 and 419C.059.

(d) The person becomes 25 years of age.

(e) The court places the person under the jurisdiction of the Psychiatric Security Review Board as provided in section 13 of this 2005 Act. If the court also has jurisdiction over the person based on a previous adjudication under this chapter or ORS chapter 419B, placing a person under the jurisdiction of the board in a later case does not terminate wardship under the previous case unless the court so orders.

SECTION 8. ORS 419C.285 is amended to read:

419C.285. (1) At the adjudication stage of a delinquency proceeding, the parties to the proceeding are the youth and the state, represented by the district attorney or the juvenile department. At the dispositional stage of a delinquency proceeding, the following are also parties:

(a) The parents or guardian of the youth;

(b) A court appointed special advocate, if appointed;

(d) An intervenor who petitions or files a motion on the basis of a child-parent relationship under ORS 109.119.

(2) The rights of the parties include, but are not limited to:

(a) The right to notice of the proceeding and copies of the pleadings;

(b) The right to appear with counsel and to have counsel appointed if otherwise provided by law;

(d) The right to appeal; [and]

(e) The right to request a hearing; and

(f) The right to notice of any proceeding before the Psychiatric Security Review Board.

(3)(a) Persons who are not parties under subsection (1) of this section may petition the court for rights of limited participation. The petition must be filed and served on all parties no later than two weeks before a proceeding in the case in which participation is sought. The petition must state:

(A) The reason the participation is sought;

(B) How the person’s involvement is in the best interest of the youth or the administration of justice;

(D) What specific relief is being sought.

(b) If the court finds that the petition is well founded, the court may grant rights of limited participation as specified by the court.

(4) In all delinquency proceedings, interpreters shall be appointed in the manner specified by ORS 45.275 and 45.285 for the parties to the proceeding, any person granted rights of limited participation, and any parent or guardian of the youth without regard to whether the parent or guardian is a party to the proceeding.

SECTION 9. ORS 419C.400 is amended to read:

419C.400. (1) The hearing shall be held by the court without a jury and may be continued from time to time.

(2) The facts alleged in the petition showing the youth to be within the jurisdiction of the court as provided in ORS 419C.005, unless admitted, must be established beyond a reasonable doubt.

(3) If the youth files written notice of intent to rely on the defense set forth in section 4 of this 2005 Act, the youth has the burden of proving the defense by a preponderance of the evidence.

[(3)] (4) For the purpose of determining proper disposition of the youth, testimony, reports or other material relating to the youth’s mental, physical and social history and prognosis may be received by the court without regard to their competency or relevancy under the rules of evidence.

[(4)] (5) An adjudication by a juvenile court that a youth is within its jurisdiction is not a conviction of a crime or offense.

SECTION 10. ORS 419C.411 is amended to read:

419C.411. (1) At the termination of the hearing or hearings in the proceeding or after entry of an order under ORS 419C.067, the court shall enter an appropriate order directing the disposition to be made of the case.

(2) The court shall find a youth responsible except for insanity if:

(a) The youth asserted mental disease or defect as a defense as provided in section 5 of this 2005 Act; and

(b) The court determined by a preponderance of the evidence that, as a result of mental disease or defect at the time the youth committed the act alleged in the petition, the youth lacked substantial capacity either to appreciate the nature and quality of the act or to conform the youth’s conduct to the requirements of law.

[(2)] (3) Except as otherwise provided in subsections (6) and (7) of this section, in determining the disposition of the case, the court shall consider each of the following:

(a) The gravity of the loss, damage or injury caused or attempted during, or as part of, the conduct that is the basis for jurisdiction under ORS 419C.005;

(b) Whether the manner in which the youth offender engaged in the conduct was aggressive, violent, premeditated or willful;

(d) The immediate and future protection required by the victim, the victim’s family and the community; and

(e) The youth offender’s juvenile court record and response to the requirements and conditions imposed by previous juvenile court orders.

[(3)] (4) In addition to the factors listed in subsection [(2)] (3) of this section, the court may consider the following:

(a) Whether the youth offender has made any efforts toward reform or rehabilitation or making restitution;

(b) The youth offender’s educational status and school attendance record;

(d) The disposition proposed by the youth offender;

(e) The recommendations of the district attorney and the juvenile court counselor and the statements of the victim and the victim’s family;

(f) The youth offender’s mental, emotional and physical health and the results of the mental health or substance abuse treatment; and

(g) Any other relevant factors or circumstances raised by the parties.

[(4)] (5) The court’s consideration of matters under this section may be addressed on appeal only if raised by a party at a dispositional hearing or by a motion to modify or set aside under ORS 419C.610.

(6) When a youth is found responsible except for insanity, the court shall order a disposition under section 13 of this 2005 Act if the court finds by a preponderance of the evidence that, at the time of disposition, the youth:

(a) Has a serious mental condition; or

(b) Has a mental disease or defect other than a serious mental condition and presents a substantial danger to others.

(7) When a youth is found responsible except for insanity and the court does not make a finding described in subsection (6) of this section, the court may:

(a) Enter an order finding the youth to be within the court’s jurisdiction under ORS 419B.100 and make any disposition authorized by ORS chapter 419B;

(b) Initiate civil commitment proceedings; or

(c) Enter an order of discharge.

SECTION 11. ORS 419C.501 is amended to read:

419C.501. (1) The court shall fix the duration of any disposition made pursuant to this chapter [shall be fixed by the court] and the duration may be for an indefinite period. Any placement in the legal custody of the Department of Human Services or the Oregon Youth Authority under ORS 419C.478 or placement under the jurisdiction of the Psychiatric Security Review Board under section 13 of this 2005 Act shall be for an indefinite period. However, [in cases under ORS 419C.005,] the period of institutionalization or commitment may not exceed:

(a) The period of time specified in the statute defining the crime for an act that would constitute an unclassified misdemeanor if committed by an adult;

(b) Thirty days for an act that would constitute a Class C misdemeanor if committed by an adult;

(d) One year for an act that would constitute a Class A misdemeanor if committed by an adult;

(e) Five years for an act that would constitute a Class C felony if committed by an adult;

(f) Ten years for an act that would constitute a Class B felony if committed by an adult; [and]

(g) Twenty years for an act that would constitute a Class A felony if committed by an adult; and

(h) Life for a young person who was found to have committed an act that, if committed by an adult would constitute murder or any aggravated form of murder under ORS 163.095 or 163.115.

(2) Except as provided in subsection (1)(h) of this section, the period of any disposition may not extend beyond the date on which the young person or youth offender becomes 25 years of age.

SECTION 12. Sections 13 to 19 of this 2005 Act are added to and made a part of ORS chapter 419C.

SECTION 13. (1) After the entry of a jurisdictional order under ORS 419C.411 (2), if the court finds by a preponderance of the evidence that the young person, at the time of disposition, has a serious mental condition or has a mental disease or defect other than a serious mental condition and presents a substantial danger to others, requiring conditional release or commitment to a hospital or facility designated by the Department of Human Services, the court shall order the young person placed under the jurisdiction of the Psychiatric Security Review Board.

(2) The court shall determine whether the young person should be committed to a hospital or facility designated by the department or conditionally released pending a hearing before the juvenile panel of the Psychiatric Security Review Board as follows:

(a) If the court finds that the young person is not a proper subject for conditional release, the court shall order the young person committed to a hospital or facility designated by the department for custody, supervision and treatment pending a hearing before the juvenile panel in accordance with sections 14, 15, 16, 17 and 18 of this 2005 Act and shall order the young person placed under the jurisdiction of the board.

(b) If the court finds that the young person can be adequately controlled with supervision and treatment services if conditionally released and that necessary supervision and treatment services are available, the court may order the young person conditionally released, subject to those supervisory orders of the court that are in the best interests of justice and the young person. The court shall designate a qualified mental health treatment provider or state, county or local agency to supervise the young person on release, subject to those conditions as the court directs in the order for conditional release. Prior to the designation, the court shall notify the qualified mental health treatment provider or agency to whom conditional release is contemplated and provide the qualified mental health treatment provider or agency an opportunity to be heard before the court. After receiving an order entered under this paragraph, the qualified mental health treatment provider or agency designated shall assume supervision of the young person subject to the direction of the juvenile panel. The qualified mental health treatment provider or agency designated as supervisor shall report in writing no less than once per month to the juvenile panel concerning the supervised young person’s compliance with the conditions of release.

(c) For purposes of determining whether to order commitment to a hospital or facility or conditional release, the primary concern of the court is the protection of society.

(3) In determining whether a young person should be conditionally released, the court may order examinations or evaluations deemed necessary.

(4) Upon placing a young person on conditional release and ordering the young person placed under the jurisdiction of the board, the court shall notify the juvenile panel in writing of the court’s conditional release order, the supervisor designated and all other conditions of release pending a hearing before the juvenile panel in accordance with sections 14, 15, 16, 17 and 18 of this 2005 Act.

(5) When making an order under this section, the court shall:

(a) Determine whether the parent or guardian of the young person is able and willing to assist the young person in obtaining necessary mental health services and is willing to acquiesce in the decisions of the juvenile panel. If the court finds that the parent or guardian:

(A) Is able and willing to do so, the court shall order the parent or guardian to sign an irrevocable consent form in which the parent agrees to any placement decision made by the juvenile panel.

(B) Is unable or unwilling to do so, the court shall order that the young person be placed in the legal custody of the Department of Human Services for the purpose of obtaining necessary mental health services.

(b) Make specific findings on whether there is a victim and, if so, whether the victim wishes to be notified of any board hearings concerning the young person and of any conditional release, discharge or escape of the young person.

(c) Include in the order a list of the persons who wish to be notified of any board hearing concerning the young person.

(d) Determine on the record the act committed by the young person for which the young person was found responsible except for insanity.

(e) State on the record the mental disease or defense on which the young person relied for the responsible except for insanity defense.

SECTION 14. (1) The juvenile panel of the Psychiatric Security Review Board shall conduct hearings on an application for discharge, conditional release, commitment or modification filed under or required by section 16, 17 or 18 of this 2005 Act, and shall make findings on the issues before the juvenile panel.

(2) In every hearing before the juvenile panel, the juvenile panel shall determine whether the young person:

(a) Has a serious mental condition; or

(b) Has a mental disease or defect other than a serious mental condition and presents a substantial danger to others.

(3) The juvenile panel shall order a young person discharged from commitment or conditional release if the juvenile panel finds that the young person:

(a) No longer has a mental disease or defect; or

(b) Has a mental disease or defect other than a serious mental condition but no longer presents a substantial danger to others.

(4) The juvenile panel shall order a young person conditionally released subject to section 16 of this 2005 Act if the juvenile panel finds that:

(a) The young person:

(A) Has a serious mental condition; or

(B) Has a mental disease or defect other than a serious mental condition and presents a substantial danger to others;

(b) The young person can be adequately controlled with treatment services as a condition of release; and

(c) Necessary supervision and treatment services are available.

(5) The juvenile panel shall order a young person committed to, or retained in, a hospital or facility designated by the Department of Human Services for custody, supervision and treatment subject to section 17 of this 2005 Act if the juvenile panel finds that the young person:

(a)(A) Has a serious mental condition; or

(B) Has a mental disease or defect other than a serious mental condition and presents a substantial danger to others; and

(b) Cannot be adequately controlled if conditionally released.

(6) In determining whether a young person should be committed to or retained in a hospital or facility, conditionally released or discharged, the primary concern of the juvenile panel is the protection of society.

(7) In a hearing before the juvenile panel, a young person who has a mental disease or defect in a state of remission is considered to have a mental disease or defect if the mental disease or defect may, with reasonable medical probability, occasionally become active.

(8) At any time, the juvenile panel may appoint a psychiatrist certified, or eligible to be certified, by the Board of Medical Examiners in child psychiatry or a licensed psychologist with expertise in child psychology to examine the young person and submit a written report to the juvenile panel. Reports filed with the juvenile panel pursuant to the examination must include, but need not be limited to, an opinion as to whether the young person:

(a)(A) Has a serious mental condition; or

(B) Has a mental disease or defect other than a serious mental condition and presents a substantial danger to others; and

(b) Could be adequately controlled with treatment services as a condition of release.

(9) The juvenile panel may make a determination regarding discharge or conditional release based upon the written report submitted under subsection (8) of this section or section 17 (3) of this 2005 Act. If a member of the juvenile panel desires further information from the examining psychiatrist or licensed psychologist who submitted the report, the juvenile panel shall summon the psychiatrist or psychologist to give testimony.

(10) The juvenile panel shall consider all available evidence that is material, relevant and reliable regarding the issues before the juvenile panel. Evidence may include, but is not limited to, the record of the juvenile court adjudication, information supplied by the attorney representing the state or by any other interested person, including the young person, information concerning the young person’s mental condition and the entire psychiatric and juvenile court history of the young person. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible at the hearings. Testimony must be taken upon oath or affirmation of the witness from whom received. The officer presiding at the hearing shall administer oaths and affirmations to witnesses.

(11) The standard of proof on all issues at a hearing of the juvenile panel is by a preponderance of the evidence.

(12)(a) The juvenile panel shall furnish written notice of any hearing pending under this section within a reasonable time prior to the hearing to:

(A) The young person about whom the hearing is being conducted;

(B) The attorney representing the young person;

(C) The young person’s parents or guardians, if known;

(D) The person having legal custody of the young person;

(E) The Attorney General or other attorney representing the state, if any; and

(F) The district attorney and the court or juvenile department of the county in which the young person was adjudicated.

(b) The juvenile panel shall include in the notice required by paragraph (a) of this subsection:

(A) The time, place and location of the hearing;

(B) The nature of the hearing, the specific action for which the hearing has been requested, the issues to be considered at the hearing and a reference to the particular sections of the statutes and rules involved;

(C) A statement of the authority and jurisdiction under which the hearing is to be held; and

(D) A statement of all rights under subsection (13) of this section.

(13) A young person about whom a hearing is being held has the right:

(a) To appear at all proceedings held under this section, except juvenile panel deliberations.

(b) To cross-examine all witnesses appearing to testify at the hearing.

(c) To subpoena witnesses and documents as provided in ORS 161.395.

(d) To be represented by suitable legal counsel possessing skills and experience commensurate with the nature and complexity of the case, to consult with counsel prior to the hearing and, if financially eligible, to have suitable counsel appointed at state expense.

(e) To examine all information, documents and reports that the juvenile panel considers and, if the information, documents and reports are available to the juvenile panel before the hearing, to examine them prior to the hearing.

(14) Except for deliberations of the juvenile panel, the juvenile panel shall keep a record of all hearings before the juvenile panel.

(15) Upon request of a person listed in subsection (12)(a) of this section or on its own motion, the juvenile panel may continue a hearing for a reasonable period not to exceed 60 days to obtain additional information or testimony or for other good cause shown.

(16) Within 15 days after the conclusion of the hearing, the juvenile panel shall provide written notice of the juvenile panel’s decision to the young person, the attorney representing the young person, the young person’s parents or guardians, if known, the person having legal custody of the young person, the district attorney of the county in which the young person was adjudicated and the Attorney General or other attorney representing the state, if any.

(17) The juvenile panel shall maintain and keep current the medical, social and delinquency history of all young persons. The juvenile panel shall determine the confidentiality of records maintained by the juvenile panel pursuant to ORS 192.501 to 192.505.

SECTION 15. (1) If the juvenile panel of the Psychiatric Security Review Board determines that a young person about whom a hearing under section 14 of this 2005 Act is being held is financially eligible, the juvenile panel shall appoint suitable counsel to represent the young person. Counsel appointed must be an attorney who satisfies the professional qualification standards established by the Public Defense Services Commission under ORS 151.216. The public defense services executive director shall determine and allow fair compensation for counsel appointed under this subsection and the reasonable expenses of the young person in respect to the hearing. Compensation payable to appointed counsel may not be less than the applicable compensation level established under ORS 151.216. The public defense services executive director shall pay compensation and expenses allowed from funds available for that purpose.

(2) When the juvenile panel appoints counsel to represent the young person, the juvenile panel may order the young person, if able, parent, if able, or guardian of the estate, if the estate is able, to pay to the Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part, the administrative costs of determining the ability of the young person, parent or estate to pay for legal services and the costs of the legal and other services that are related to the provision of appointed counsel. The juvenile panel’s order of payment may be entered in the County Clerk Lien Record and enforced as provided in ORS 205.126.

(3) The test of the young person’s, parent’s or estate’s ability to pay costs under subsection (2) of this section is the same test as applied to appointment of counsel for defendants under ORS 135.050 or under the rules adopted under ORS 151.216. If counsel is provided at state expense, the juvenile panel shall apply this test in accordance with the guidelines adopted by the Public Defense Services Commission under ORS 151.485.

(4) If counsel is provided at state expense, the juvenile panel shall determine the amount the young person, parent or estate is required to pay for the costs of administrative, legal and other services related to the provision of appointed counsel in the same manner as this amount is determined under ORS 151.487.

(5) The Attorney General may represent the state at contested hearings before the juvenile panel unless the district attorney of the county in which the young person was adjudicated elects to represent the state. The district attorney of the county in which the young person was adjudicated shall cooperate with the Attorney General in securing the material necessary for presenting a contested hearing before the juvenile panel. If the district attorney elects to represent the state, the district attorney shall give timely written notice to the Attorney General, the juvenile panel and the attorney representing the young person.

SECTION 16. (1) When the juvenile panel of the Psychiatric Security Review Board orders a young person conditionally released under section 14 (4) of this 2005 Act, the juvenile panel may designate a qualified mental health treatment provider or state, county or local agency to supervise the young person on release subject to those conditions as the juvenile panel directs in the order for conditional release. Prior to the designation, the juvenile panel shall notify the qualified mental health treatment provider or agency to whom conditional release is contemplated and provide the qualified mental health treatment provider or agency an opportunity to be heard before the juvenile panel. After receiving an order entered under section 14 (4) of this 2005 Act, the qualified mental health treatment provider or agency designated shall assume supervision of the young person pursuant to the direction of the juvenile panel.

(2) Conditions of release contained in orders entered under section 14 (4) of this 2005 Act may be modified from time to time and conditional release may be terminated by order of the juvenile panel as provided in sections 14 and 18 of this 2005 Act.

(3)(a) As a condition of release, the juvenile panel may require the young person to report to any state, county or local mental health facility for evaluation. Whenever medical, psychiatric or psychological treatment is recommended, the juvenile panel may order the young person, as a condition of release, to cooperate with and accept the treatment of the facility.

(b) The facility to which the young person has been referred for evaluation shall perform the evaluation and submit a written report of its findings to the juvenile panel. If the facility finds that treatment of the young person is appropriate, the facility shall include its recommendations for treatment in the report to the juvenile panel.

(c) Whenever treatment is provided by the facility, the facility shall furnish reports to the juvenile panel on a regular basis concerning the progress of the young person.

(d) The facility shall comply with any other conditions of release prescribed by order of the juvenile panel.

(4) If at any time it appears to the juvenile panel or the chairperson of the juvenile panel that a young person has violated the terms of conditional release or that the mental health of the young person has changed, the juvenile panel or the chairperson of the juvenile panel may order the young person returned to a hospital or facility designated by the Department of Human Services for evaluation and treatment. A written order of the juvenile panel, or the chairperson of the juvenile panel on behalf of the juvenile panel, is sufficient warrant for any peace officer to take the young person into custody and transport the young person accordingly. A peace officer shall execute the order, and the young person shall be returned as soon as practicable to a facility designated by the department. Within 20 days following the return of the young person to the facility designated by the department, the juvenile panel shall conduct a hearing. At a hearing required by this subsection, the state has the burden of proving the young person’s lack of fitness for conditional release.

(5) The community mental health and developmental disabilities program director, the director of the facility providing treatment for the young person on conditional release, a peace officer or a person responsible for the supervision of a young person on conditional release may take a young person into custody or request that the young person be taken into custody if there is reasonable cause to believe the young person presents a substantial danger to others and that the young person is in need of immediate custody, supervision and treatment. A young person taken into custody under this subsection must immediately be transported to a hospital or facility designated by the department. Within 20 days following the return of the young person to the facility designated by the department, the juvenile panel shall conduct a hearing. At a hearing required by this subsection, the state has the burden of proving the young person’s lack of fitness for conditional release.

(6)(a) A young person conditionally released under section 14 (4) of this 2005 Act may apply to the juvenile panel for discharge from or modification of an order of conditional release on the ground that the young person no longer has a mental disease or defect or, if affected by a mental disease or defect other than a serious mental condition, no longer presents a substantial danger to others and no longer requires supervision or treatment services. Within 60 days after receiving an application under this paragraph, the juvenile panel shall conduct a hearing. At a hearing required by this paragraph, the young person has the burden of proving the young person’s fitness for discharge or modification of the order of conditional release. A young person may not apply for discharge or modification of conditional release more often than once every six months.

(b) Upon application by any qualified mental health treatment provider or state, county or local agency responsible for supervision or treatment services pursuant to an order of conditional release, the juvenile panel shall conduct a hearing to determine if the conditions of release should be continued, modified or terminated. The application must be accompanied by a report setting forth the facts supporting the application. At a hearing required by this paragraph, the state has the burden of proving the young person’s lack of fitness for discharge or modification of the order of conditional release.

SECTION 17. (1) The director of a hospital or facility to which a young person was committed under section 14 (5) of this 2005 Act shall apply to the juvenile panel of the Psychiatric Security Review Board for an order of discharge or conditional release of the young person if, at any time after the commitment, the director is of the opinion that the young person:

(a) No longer has a mental disease or defect;

(b) Has a mental disease or defect other than a serious mental condition but no longer presents a substantial danger to others; or

(c) Can be controlled with proper supervision and treatment services if conditionally released.

(2) The director shall include in an application under subsection (1) of this section a report setting forth the facts that support the opinion of the director. If the application is for conditional release, the director shall also include a verified conditional release plan. The juvenile panel shall hold a hearing on an application under subsection (1) of this section within 30 days of its receipt. Not less than 10 days prior to the hearing before the juvenile panel, copies of the report must be sent to the Attorney General or other attorney representing the state, if any, the district attorney of the county in which the young person was adjudicated, the young person, the young person’s attorney, the young person’s parents or guardians, if known, and the person having legal custody of the young person.

(3) The attorney representing the state may choose a psychiatrist certified, or eligible to be certified, by the Board of Medical Examiners in child psychiatry or a licensed psychologist with expertise in child psychology to examine the young person prior to any decision of the juvenile panel on discharge or conditional release. The results of the examination must be in writing and filed with the juvenile panel and must include, but need not be limited to, an opinion as to whether the young person:

(a)(A) Has a serious mental condition; or

(B) Has a mental disease or defect other than a serious mental condition and presents a substantial danger to others; and

(b) Could be adequately controlled with treatment services as a condition of release.

(4) A young person who has been committed to a hospital or facility under section 14 (5) of this 2005 Act or the young person’s parents or guardians acting on the young person’s behalf may apply to the juvenile panel for an order of discharge or conditional release upon the grounds that the young person:

(a) No longer has a mental disease or defect;

(b) Has a mental disease or defect other than a serious mental condition but no longer presents a substantial danger to others; or

(c) Can be controlled with proper supervision and treatment services if conditionally released.

(5) When an application is made under subsection (4) of this section, the juvenile panel shall require a report from the director of the hospital or facility. The director shall prepare and transmit the report as provided in subsection (2) of this section.

(6) At a hearing on an application under subsection (4) of this section:

(a) The applicant has the burden of proving the young person’s fitness for discharge or conditional release; or

(b) If more than two years have passed since the state had the burden of proving the young person’s lack of fitness for discharge or conditional release, the state has the burden of proving the young person’s lack of fitness for discharge or conditional release.

(7) A person may not file an application for discharge or conditional release under subsection (4) of this section:

(a) Sooner than 90 days after the initial juvenile panel hearing concerning the young person.

(b) If another application for discharge or conditional release of the young person was filed during the immediately preceding 90 days.

(8) The juvenile panel shall hold a hearing on an application under subsection (4) of this section within 30 days after the application is filed.

SECTION 18. (1) A young person committed by the court under section 13 of this 2005 Act to a hospital or facility designated by the Department of Human Services may not be held in the hospital or facility for more than 90 days from the date of the court’s commitment order without an initial hearing before the juvenile panel of the Psychiatric Security Review Board to determine whether the young person should be discharged or conditionally released.

(2) A young person may not be held pursuant to an order under section 14 (5) of this 2005 Act for a period of time exceeding one year without a hearing before the juvenile panel to determine whether the young person should be discharged or conditionally released.

(3) When a young person has spent three years on conditional release, the juvenile panel shall bring the young person before the juvenile panel no later than 30 days after the expiration of the three-year period. The juvenile panel shall review the young person’s status and determine whether the young person should be discharged from the jurisdiction of the board.

(4) Notwithstanding the fact that a young person who is brought before the juvenile panel under subsection (3) of this section continues to have a serious mental condition, the juvenile panel may discharge the young person if the young person did not exhibit behaviors that presented a substantial danger to others during the period of conditional release and no longer requires supervision by the juvenile panel.

SECTION 19. (1) When a young person attains 18 years of age, the juvenile panel of the Psychiatric Security Review Board shall transfer the young person’s case to the adult panel of the board if the act that brought the young person within the board’s jurisdiction would constitute murder or any aggravated form of murder if committed by an adult.

(2) At any time after a young person not described in subsection (1) of this section attains 18 years of age, the juvenile panel of the board may hold a hearing to determine whether it is in the young person’s best interest to transfer the young person’s case to the adult panel of the board. The juvenile panel of the board shall transfer the young person’s case to the adult panel of the board unless good cause is shown for retaining the young person’s case with the juvenile panel.

SECTION 20. ORS 161.385 is amended to read:

161.385. (1) There is hereby created a Psychiatric Security Review Board consisting of [five] 10 members appointed by the Governor and subject to confirmation by the Senate under section 4, Article III of the Oregon Constitution.

(2) The membership of the board [shall] may not include any district attorney, deputy district attorney or public defender.[, but the membership shall be composed of] The Governor shall appoint:

(a) A psychiatrist experienced in the criminal justice system and not otherwise employed on a full-time basis by the Department of Human Services or a community mental health and developmental disabilities program;

(b) A licensed psychologist experienced in the criminal justice system and not otherwise employed on a full-time basis by the Department of Human Services or a community mental health and developmental disabilities program;

[(d) A member of the general public; and]

[(e)] (d) A lawyer with substantial experience in criminal trial practice;

(e) A psychiatrist certified, or eligible to be certified, by the Board of Medical Examiners in child psychiatry who is experienced in the juvenile justice system and not employed on a full-time basis by the Department of Human Services or a community mental health and developmental disabilities program;

(f) A licensed psychologist who is experienced in child psychology and the juvenile justice system and not employed on a full-time basis by the Department of Human Services or a community mental health and developmental disabilities program;

(g) A member with substantial experience in the processes of juvenile parole and probation;

(h) A lawyer with substantial experience in juvenile law practice; and

(i) Two members of the general public.

(3) The term of office of each member is four years. The Governor at any time may remove any member for inefficiency, neglect of duty or malfeasance in office. Before the expiration of the term of a member, the Governor shall appoint a successor whose term begins on July 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term.

(4) A member of the board not otherwise employed full-time by the state[,] shall be paid on a per diem basis an amount equal to [$212] $289.22, adjusted according to the executive pay plan for the biennium, for each day during which the member is engaged in the performance of official duties, including necessary travel time. In addition, subject to ORS 292.220 to 292.250 regulating travel and other expenses of state officers and employees, the member shall be reimbursed for actual and necessary travel and other expenses incurred in the performance of official duties.

(5) Subject to any applicable provision of the State Personnel Relations Law, the board may hire employees to aid it in performing its duties.

(6) The board consists of two five-member panels. The adult panel is responsible for persons placed under the board’s jurisdiction under ORS 161.327 and section 19 of this 2005 Act and consists of those members appointed under subsection (2)(a) to (d) of this section and one of the public members. The juvenile panel is responsible for young persons placed under the board’s jurisdiction under section 13 of this 2005 Act and consists of those members appointed under subsection (2)(e) to (h) of this section and the other public member.

[(6)(a)] (7)(a) [The board] Each panel shall select one of its members as chairperson to serve for a one-year term with such duties and powers as the [board] panel determines.

(b) A majority of the voting members of [the board] a panelconstitutes a quorum for the transaction of business of the panel.

[(7)] (8) [The board] Each panel shall meet at least twice every month, unless the chairperson determines that there is not sufficient business before the [board] panel to warrant a meeting at the scheduled time. The [board] panel shall also meet at other times and places specified by the call of the chairperson or of a majority of the members of the [board] panel.

[(8)(a)] (9)(a) When a person over whom a panel of the board exercises its jurisdiction is adversely affected or aggrieved by a final order of the [board] panel, the person is entitled to judicial review of the final order. The person is entitled on judicial review to suitable counsel possessing skills and experience commensurate with the nature and complexity of the case. If the person is financially eligible, suitable counsel shall be appointed by the reviewing court in the manner provided in ORS 138.500 (1). If the person is financially eligible, the public defense services executive director shall determine and pay, as provided in ORS 138.500, the cost of briefs, any other expenses of the person necessary to the review and compensation for counsel appointed for the person. The costs, expenses and compensation so allowed shall be paid as provided in ORS 138.500.

(b) The order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 60 days of the order for which review is sought. The [board] panel shall submit to the court the record of the proceeding or, if the person agrees, a shortened record. The record may include a certified true copy of a tape recording of the proceedings at a hearing in accordance with ORS 161.346. A copy of the record transmitted shall be delivered to the person by the [board] panel.

(d) The filing of the petition [shall] does not stay the [board’s] panel’s order, but the [board] panel or the Court of Appeals may order a stay upon application on such terms as are deemed proper.

SECTION 21. ORS 137.290 is amended to read:

137.290. (1) In all cases of conviction for the commission of a crime or violation, excluding parking violations, the trial court, whether a circuit, justice or municipal court, shall impose upon the defendant, in addition to any other monetary obligation imposed, a unitary assessment under this section. Except when the person successfully asserts the defense set forth in section 4 of this 2005 Act, the unitary assessment shall also be imposed by the circuit court and county court in juvenile cases under ORS 419C.005 (1). The unitary assessment is a penal obligation in the nature of a fine and shall be in an amount as follows:

(a) $107 in the case of a felony.

(b) $67 in the case of a misdemeanor.

(d) $37 in the case of a violation as described in ORS 153.008.

(2) The unitary assessment shall include, in addition to the amount in subsection (1) of this section:

(a) $42 if the defendant was driving a vehicle that requires a commercial driver license to operate and the conviction was for violating:

(A) ORS 811.100 by driving at a speed at least 10 miles per hour greater than is reasonable and prudent under the circumstances; or

(B) ORS 811.111 (1)(b) by driving at least 65 miles per hour; and

(b) $500 if the crime of conviction is a crime found in ORS chapter 163.

(3) Subject to subsection (4) of this section, the court in any case may waive payment of the unitary assessment, in whole or in part, if, upon consideration, the court finds that payment of the assessment or portion thereof would impose upon the defendant a total monetary obligation inconsistent with justice in the case. In making its determination under this subsection, the court shall consider:

(a) The financial resources of the defendant and the burden that payment of the unitary assessment will impose, with due regard to the other obligations of the defendant; and

(b) The extent to which such burden can be alleviated by allowing the defendant to pay the monetary obligations imposed by the court on an installment basis or on other conditions to be fixed by the court.

(4) If a defendant is convicted of an offense, the court may waive all or part of the unitary assessment required under subsections (1) and (2)(a) of this section only if the court imposes no fine on the defendant.

SECTION 22. ORS 137.712 is amended to read:

137.712. (1)(a) Notwithstanding ORS 137.700 and 137.707, when a person is convicted of manslaughter in the second degree as defined in ORS 163.125, assault in the second degree as defined in ORS 163.175 (1)(b), kidnapping in the second degree as defined in ORS 163.225, rape in the second degree as defined in ORS 163.365, sodomy in the second degree as defined in ORS 163.395, unlawful sexual penetration in the second degree as defined in ORS 163.408, sexual abuse in the first degree as defined in ORS 163.427 (1)(a)(A) or robbery in the second degree as defined in ORS 164.405, the court may impose a sentence according to the rules of the Oregon Criminal Justice Commission that is less than the minimum sentence that otherwise may be required by ORS 137.700 or 137.707 if the court, on the record at sentencing, makes the findings set forth in subsection (2) of this section and finds that a substantial and compelling reason under the rules of the Oregon Criminal Justice Commission justifies the lesser sentence. When the court imposes a sentence under this subsection, the person is eligible for a reduction in the sentence as provided in ORS 421.121 and any other statute.

(b) In order to make a dispositional departure under this section, the court must make the following additional findings on the record:

(A) There exists a substantial and compelling reason not relied upon in paragraph (a) of this subsection;

(B) A sentence of probation will be more effective than a prison term in reducing the risk of offender recidivism; and

(2) A conviction is subject to subsection (1) of this section only if the sentencing court finds on the record by a preponderance of the evidence:

(a) If the conviction is for manslaughter in the second degree:

(A) That the defendant is the mother or father of the victim;

(B) That the death of the victim was the result of an injury or illness that was not caused by the defendant;

(C) That the defendant treated the injury or illness solely by spiritual treatment in accordance with the religious beliefs or practices of the defendant and based on a good faith belief that spiritual treatment would bring about the victim’s recovery from the injury or illness;

(D) That no other person previously under the defendant’s care has died or sustained significant physical injury as a result of or despite the use of spiritual treatment, regardless of whether the spiritual treatment was used alone or in conjunction with medical care; and

(E) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section or for criminal mistreatment in the second degree.

(b) If the conviction is for assault in the second degree:

(A) That the victim was not physically injured by means of a deadly weapon;

(B) That the victim did not suffer a significant physical injury; and

(A) That the victim was at least 12 years of age at the time the crime was committed; and

(B) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.

(d) If the conviction is for robbery in the second degree:

(A) That the victim did not suffer a significant physical injury;

(B) That, if the defendant represented by words or conduct that the defendant was armed with a dangerous weapon, the representation did not reasonably put the victim in fear of imminent significant physical injury;

(C) That, if the defendant represented by words or conduct that the defendant was armed with a deadly weapon, the representation did not reasonably put the victim in fear of imminent physical injury; and

(D) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.

(e) If the conviction is for rape in the second degree, sodomy in the second degree or sexual abuse in the first degree:

(A) That the victim was at least 12 years of age, but under 14 years of age, at the time of the offense;

(B) That the defendant does not have a prior conviction for a crime listed in subsection (4) of this section;

(C) That the defendant has not been previously found to be within the jurisdiction of a juvenile court for an act that would have been a felony sexual offense if the act had been committed by an adult;

(D) That the defendant was no more than five years older than the victim at the time of the offense;

(E) That the offense did not involve sexual contact with any minor other than the victim; and

(F) That the victim’s lack of consent was due solely to incapacity to consent by reason of being under 18 years of age at the time of the offense.

(f) If the conviction is for unlawful sexual penetration in the second degree:

(A) That the victim was 12 years of age or older at the time of the offense;

(B) That the defendant does not have a prior conviction for a crime listed in subsection (4) of this section;

(D) That the defendant was no more than five years older than the victim at the time of the offense;

(E) That the offense did not involve sexual contact with any minor other than the victim;

(F) That the victim’s lack of consent was due solely to incapacity to consent by reason of being under 18 years of age at the time of the offense; and

(G) That the object used to commit the unlawful sexual penetration was the hand or any part thereof of the defendant.

(3) In making the findings required by subsections (1) and (2) of this section, the court may consider any evidence presented at trial and may receive and consider any additional relevant information offered by either party at sentencing.

(4) The crimes to which subsection (2)(a)(E), (b)(C), (c)(B), (d)(D), (e)(B) and (f)(B) of this section refer are:

(a) A crime listed in ORS 137.700 (2) or 137.707 (4);

(b) Escape in the first degree, as defined in ORS 162.165;

(d) Criminally negligent homicide, as defined in ORS 163.145;

(e) Assault in the third degree, as defined in ORS 163.165;

(f) Criminal mistreatment in the first degree, as defined in ORS 163.205 (1)(b)(A);

(g) Rape in the third degree, as defined in ORS 163.355;

(h) Sodomy in the third degree, as defined in ORS 163.385;

(i) Sexual abuse in the second degree, as defined in ORS 163.425;

(j) Stalking, as defined in ORS 163.732;

(k) Burglary in the first degree, as defined in ORS 164.225, when it is classified as a person felony under the rules of the Oregon Criminal Justice Commission;

(L) Arson in the first degree, as defined in ORS 164.325;

(m) Robbery in the third degree, as defined in ORS 164.395;

(n) Intimidation in the first degree, as defined in ORS 166.165;

(o) Promoting prostitution, as defined in ORS 167.012; and

(p) An attempt or solicitation to commit any Class A or B felony listed in paragraphs (a) to (L) of this subsection.

(5) Notwithstanding ORS 137.545 (5)(b), if a person sentenced to probation under this section violates a condition of probation by committing a new crime, the court shall revoke the probation and impose the presumptive sentence of imprisonment under the rules of the Oregon Criminal Justice Commission.

(6) As used in this section:

(a) “Conviction” includes, but is not limited to:

(A) A juvenile court adjudication finding a person within the court’s jurisdiction under ORS 419C.005, if the person was at least 15 years of age at the time the person committed the offense that brought the person within the jurisdiction of the juvenile court. “Conviction” does not include a juvenile court adjudication described in this subparagraph if the person successfully asserted the defense set forth in section 4 of this 2005 Act.

(B) A conviction in another jurisdiction for a crime that if committed in this state would constitute a crime listed in subsection (4) of this section.

(b) “Previous conviction” means a conviction that was entered prior to imposing sentence on the current crime provided that the prior conviction is based on a crime committed in a separate criminal episode. “Previous conviction” does not include a conviction for a Class C felony, including an attempt or solicitation to commit a Class B felony, or a misdemeanor, unless the conviction was entered within the 10-year period immediately preceding the date on which the current crime was committed.

(A) Creates a risk of death that is not a remote risk;

(B) Causes a serious and temporary disfigurement;

(D) Causes a prolonged impairment of health or the function of any bodily organ.

SECTION 23. ORS 151.216 is amended to read:

151.216. (1) The Public Defense Services Commission shall:

(a) Establish and maintain a public defense system that ensures the provision of public defense services in the most cost-efficient manner consistent with the Oregon Constitution, the United States Constitution and Oregon and national standards of justice.

(b) Establish an office of public defense services and appoint a public defense services executive director who serves at the pleasure of the commission.

(c) Submit the budget of the commission and the office of public defense services to the Legislative Assembly after the budget is submitted to the commission by the director and approved by the commission. The Chief Justice of the Supreme Court and the chairperson of the commission shall present the budget to the Legislative Assembly.

(d) Review and approve any public defense services contract negotiated by the director before the contract can become effective.

(e) Adopt a compensation plan, classification system and personnel plan for the office of public defense services that are commensurate with other state agencies.

(f) Adopt policies, procedures, standards and guidelines regarding:

(A) The determination of financial eligibility of persons entitled to be represented by appointed counsel at state expense;

(B) The appointment of counsel;

(C) The fair compensation of counsel appointed to represent a person financially eligible for appointed counsel at state expense;

(D) Appointed counsel compensation disputes;

(E) Any other costs associated with the representation of a person by appointed counsel in the state courts that are required to be paid by the state under ORS 34.355, 135.055, 138.500, 138.590, 161.346, 161.365, 161.385, 419A.211, 419B.201, 419B.208, 419B.518, 419B.908, 419C.206, 419C.209, 419C.408, 426.100, 426.135, 426.250, 426.307, 427.265, 427.295, 436.265 or 436.315 or section 15 of this 2005 Act or any other provision of law that expressly provides for payment of such compensation, costs or expenses by the commission;

(F) Professional qualifications for counsel appointed to represent public defense clients;

(G) Performance for legal representation;

(H) The contracting of public defense services;

(I) Contracting with expert witnesses to allow contracting with out-of-state expert witnesses only if in-state expert witnesses are not available or are more expensive than out-of-state expert witnesses; and

(J) Any other matters necessary to carry out the duties of the commission.

(g) Establish a peer review system for the approval of nonroutine fees and expenses incurred in cases involving aggravated murder and the crimes listed in ORS 137.700 and 137.707. The review shall be conducted by a panel of attorneys who practice in the area of criminal defense.

(h) Establish a complaint process that allows district attorneys, criminal defense counsel and the public to file complaints concerning the payment from public funds of nonroutine fees and expenses incurred in cases.

(i) Reimburse the State Court Administrator from funds deposited in the subaccount established under ORS 151.225 for the costs of personnel and other costs associated with location of eligibility verification and screening personnel pursuant to ORS 151.489 by the State Court Administrator.

(2) Policies, procedures, standards and guidelines adopted by the commission supersede any conflicting rules, policies or procedures of the Public Defender Committee, State Court Administrator, circuit courts, the Court of Appeals, the Supreme Court and the Psychiatric Security Review Board related to the exercise of the commission’s administrative responsibilities under this section and transferred duties, functions and powers as they occur.

(3) The commission may accept gifts, grants or contributions from any source, whether public or private. However, the commission may not accept a gift, grant or contribution if acceptance would create a conflict of interest. Moneys accepted under this subsection shall be deposited in the Public Defense Services Account created in ORS 151.225 and expended for the purposes for which given or granted.

(4) The commission may not:

(a) Make any decision regarding the handling of any individual case;

(b) Have access to any case file; or

(c) Interfere with the director or any member of the staff of the director in carrying out professional duties involving the legal representation of public defense clients.

SECTION 24. ORS 161.375 is amended to read:

161.375. (1) When a patient, who has been placed at the Oregon State Hospital for evaluation, care, custody and treatment under the jurisdiction of the Psychiatric Security Review Board or by court order under ORS 161.315, 161.365 or 161.370 or section 6 of this 2005 Act, has escaped or is absent without authorization from the Oregon State Hospital or from the custody of any person in whose charge the superintendent has placed the patient, the superintendent may order the arrest and detention of the patient.

(2) The superintendent may issue an order under this section based upon a reasonable belief that grounds exist for issuing the order. When reasonable, the superintendent shall investigate to ascertain whether such grounds exist.

(3) Any order issued by the superintendent as authorized by this section constitutes full authority for the arrest and detention of the patient and all laws applicable to warrant or arrest apply to the order. An order issued by the superintendent under this section expires 72 hours after being signed by the superintendent.

(4) As used in this section, “superintendent” means the superintendent of the Oregon State Hospital or the superintendent’s authorized representative.

SECTION 24a. If Senate Bill 1059 becomes law, section 24 of this 2005 Act (amending ORS 161.375) is repealed and ORS 161.375, as amended by section 7, chapter 685, Oregon Laws 2005 (Enrolled Senate Bill 1059), is amended to read:

161.375. (1) When a patient, who has been placed at the Oregon State Hospital for evaluation, care, custody and treatment under the jurisdiction of the Psychiatric Security Review Board or by court order under ORS 161.315, 161.365 or 161.370, has escaped or is absent without authorization from the Oregon State Hospital or from the custody of any person in whose charge the superintendent has placed the patient, the superintendent may order the arrest and detention of the patient.

(2) When a patient, who has been placed at a secure intensive community inpatient facility for evaluation, care, custody and treatment under the jurisdiction of the Psychiatric Security Review Board or by court order under ORS 161.315, 161.365 or 161.370 or section 6 of this 2005 Act, has escaped or is absent without authorization from the facility or from the custody of any person in whose charge the director of the facility has placed the patient, the director of the facility shall notify the Director of Human Services. The Director of Human Services may order the arrest and detention of the patient.

(3) The superintendent or the Director of Human Services may issue an order under this section based upon a reasonable belief that grounds exist for issuing the order. When reasonable, the superintendent or the Director of Human Services shall investigate to ascertain whether such grounds exist.

(4) Any order issued by the superintendent or the Director of Human Services as authorized by this section constitutes full authority for the arrest and detention of the patient and all laws applicable to warrant or arrest apply to the order. An order issued by the superintendent or the Director of Human Services under this section expires 72 hours after being signed by the superintendent or the Director of Human Services.

(5) As used in this section, “superintendent” means the superintendent of the Oregon State Hospital or the superintendent’s authorized representative.

SECTION 25. ORS 40.015 is amended to read:

40.015. (1) The Oregon Evidence Code applies to all courts in this state except for:

(a) A tax court small claims procedure or a hearing or mediation before a magistrate of the Oregon Tax Court as provided by ORS 305.501;

(b) The small claims department of a circuit court as provided by ORS 46.415; and

(2) The Oregon Evidence Code applies generally to civil actions, suits and proceedings, criminal actions and proceedings and to contempt proceedings except those in which the court may act summarily.

(3) ORS 40.225 to 40.295 relating to privileges apply at all stages of all actions, suits and proceedings.

(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in the following situations:

(a) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under ORS 40.030.

(b) Proceedings before grand juries, except as required by ORS 132.320.

(d) Sentencing proceedings, except proceedings under ORS 138.012 and 163.150 or as required by ORS 137.090.

(e) Proceedings to revoke probation, except as required by ORS 137.090.

(f) Issuance of warrants of arrest, bench warrants or search warrants.

(g) Proceedings under ORS chapter 135 relating to conditional release, security release, release on personal recognizance, or preliminary hearings, subject to ORS 135.173.

(h) Proceedings to determine proper disposition of a child in accordance with ORS 419B.325 (2) and 419C.400 [(3)] (4).

(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230, 813.250 and 813.255 to determine whether a driving while under the influence of intoxicants diversion agreement should be allowed or terminated.

SECTION 26. ORS 419C.626 is amended to read:

419C.626. (1) Upon receiving any report required by ORS 419C.620, the court may hold a hearing to review the youth offender’s condition and circumstances and to determine if the court should continue jurisdiction over the youth offender or order modifications in the care, placement and supervision of the youth offender. The court shall hold a hearing if requested by the youth offender, the attorney for the youth offender, if any, the parents or the public or private agency having guardianship or legal custody of the youth offender within 30 days of receipt of the notice provided in ORS 419C.629.

(2) The hearing provided in subsection (1) of this section shall be conducted in the manner provided in ORS 419C.400 (1), 419C.405 and 419C.408, except that the court may receive testimony and reports as provided in ORS 419C.400 [(3)] (4). At the conclusion of the hearing, the court shall enter findings of fact if the decision is to continue the youth offender in substitute care. Such findings shall specifically state:

(a) Why continued care is necessary as opposed to returning the youth offender to the youth offender’s home or prompt action to secure another permanent placement; or

(b) The expected timetable for return or other permanent placement.

(3) Any final decision of the court made pursuant to the hearing provided in subsection (1) of this section is appealable under ORS 419A.200.

NOTE: Section 27 was deleted by amendment. Subsequent sections were not renumbered.

SECTION 28. Section 29 of this 2005 Act is added to and made a part of ORS chapter 419A.

SECTION 29. (1)(a) Once each month, the Department of Human Services shall provide to each school district a list of all young persons enrolled in a school in the school district who are on conditional release. The department shall include in the list the name and business telephone number of the caseworker assigned to each case.

(b) When a young person who is on conditional release transfers from one school district to a different school district, the caseworker assigned to the case shall notify the superintendent of the school district to which the young person has transferred of the young person’s status. The caseworker shall make the notification no later than 72 hours after the caseworker knows of the transfer.

(2) Upon request by the school district, the department shall provide additional information, including the offense that brought the young person within the jurisdiction of the juvenile court and such other information that is subject to disclosure under ORS 419A.255 (5).

(3) In addition to the general notification required by subsection (1) of this section, the department:

(a) Shall notify the school district of the specific offense if the act that brought the young person within the jurisdiction of the juvenile court involved a firearm or delivery of a controlled substance.

(b) May notify the school district of the specific offense if the act that brought the young person within the jurisdiction of the juvenile court involved a violation of ORS 163.355 to 163.445 or 163.465 or any other offense if the department believes the young person represents a risk to other students or school staff.

(4) ORS 419A.015 (4) and (5) apply to persons sending or receiving records under this section.

SECTION 30. ORS 181.607 is amended to read:

181.607. (1)(a) No sooner than two years, but no later than five years, after the termination of juvenile court jurisdiction or, if the person was placed under the jurisdiction of the Psychiatric Security Review Board under section 13 of this 2005 Act, board jurisdiction over a person required to report under ORS 181.595, 181.596 or 181.597, the person may file a petition for relief from the duty to report. The person must file the petition in the juvenile court in which the person was adjudicated for the act that requires reporting.

(b) The juvenile court in which a petition under this section is filed may transfer the matter to the juvenile court of the county that last supervised the person if the court determines that the convenience of the parties, the victim and witnesses require the transfer.

(d) The person, the district attorney and the juvenile department are parties to a hearing on a petition filed under this section.

(2) When a person files a petition under this section and the petition was filed:

(a) No later than three years after the termination of juvenile court jurisdiction or, if the person was placed under the jurisdiction of the Psychiatric Security Review Board under section 13 of this 2005 Act, board jurisdiction, the state has the burden of proving by clear and convincing evidence that the person is not rehabilitated and continues to pose a threat to the safety of the public.

(b) More than three years, but no later than five years, after the termination of juvenile court jurisdiction or, if the person was placed under the jurisdiction of the Psychiatric Security Review Board under section 13 of this 2005 Act, board jurisdiction, the person has the burden of proving by clear and convincing evidence that the person is rehabilitated and does not pose a threat to the safety of the public.

(3) In determining whether the state or the person has met the burden of proof established in subsection (2) of this section, the juvenile court may consider but need not be limited to considering:

(a) The extent and impact of any physical or emotional injury to the victim;

(b) The nature of the act that subjected the person to the duty of reporting as a sex offender;

(d) Whether the act was premeditated;

(e) Whether the person took advantage of a position of authority or trust in committing the act;

(f) The age of any victim at the time of the act, the age difference between any victim and the person and the number of victims;

(g) The vulnerability of the victim;

(h) Other acts committed by the person that would be crimes if committed by an adult and criminal activities engaged in by the person before and after the adjudication;

(i) Statements, documents and recommendations by or on behalf of the victim or the parents of the victim;

(j) The person’s willingness to accept personal responsibility for the act and personal accountability for the consequences of the act;

(k) The person’s ability and efforts to pay the victim’s expenses for counseling and other trauma-related expenses or other efforts to mitigate the effects of the act;

(L) Whether the person has participated in and satisfactorily completed a sex offender treatment program or any other intervention, and if so the juvenile court may also consider:

(A) The availability, duration and extent of the treatment activities;

(B) Reports and recommendations from the providers of the treatment;

(D) The quality and thoroughness of the treatment program;

(m) The person’s academic and employment history;

(n) The person’s use of drugs or alcohol before and after the adjudication;

(o) The person’s history of public or private indecency;

(p) The person’s compliance with and success in completing the terms of supervision;

(q) The results of psychological examinations of the person;

(r) The protection afforded the public by the continued existence of the records; and

(s) Any other relevant factors.

(4) In a hearing under this section, the juvenile court may receive testimony, reports and other evidence without regard to whether the evidence is admissible under ORS 40.010 to 40.210 and 40.310 to 40.585 if the evidence is relevant to the determination and findings required under this section. As used in this subsection, “relevant evidence” has the meaning given that term in ORS 40.150.

(5) When a petition is filed under this section, the state has the right to have a psychosexual evaluation of the person conducted. The state shall file notice with the juvenile court of its intention to have the person evaluated. If the person objects to the evaluator chosen by the state, the juvenile court for good cause shown may direct the state to select a different evaluator.

(6) As soon as practicable after a petition has been filed under this section, the district attorney shall make a reasonable effort to notify the victim of the crime that the person has filed a petition seeking relief under this section.

(7)(a) When a petition has been filed under this section and the petition was filed:

(A) No later than three years after the termination of juvenile court jurisdiction or, if the person was placed under the jurisdiction of the Psychiatric Security Review Board under section 13 of this 2005 Act, board jurisdiction, the court shall hold a hearing on the petition no sooner than 60 days and no later than 120 days after the date of filing.

(B) More than three years, but no later than five years, after the termination of juvenile court jurisdiction or, if the person was placed under the jurisdiction of the Psychiatric Security Review Board under section 13 of this 2005 Act, board jurisdiction, the court shall hold a hearing no sooner than 90 days and no later than 150 days after the date of filing.

(b) Notwithstanding paragraph (a) of this subsection, upon a showing of good cause, the court may extend the period of time in which a hearing on the petition must be held.

(8) When the state has the burden of proof under subsection (2) of this section and proves by clear and convincing evidence that the person is not rehabilitated and continues to pose a threat to the safety of the public, the court shall deny the petition. When the person has the burden of proof under subsection (2) of this section and proves by clear and convincing evidence that the person is rehabilitated and does not pose a threat to the safety of the public, the court shall grant the petition.

(9) When a juvenile court enters an order relieving a person of the requirement to report under ORS 181.595, 181.596 or 181.597, the person is responsible for sending a certified copy of the juvenile court order to the Department of State Police.

(10) If a person commits an act that could be charged as a sex crime listed in ORS 137.707 and the person is 15, 16 or 17 years of age at the time the act is committed, the state and the person may stipulate that the person may not petition for relief under this section as part of an agreement that the person be subject to the jurisdiction of the juvenile court rather than being prosecuted as an adult under ORS 137.707.

SECTION 31. ORS 419B.100 is amended to read:

419B.100. (1) Except as otherwise provided in subsection (6) of this section and ORS 107.726, the juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:

(a) Who is beyond the control of the person’s parents, guardian or other person having custody of the person;

(b) Whose behavior is such as to endanger the welfare of the person or of others;

(d) Who is dependent for care and support on a public or private child-caring agency that needs the services of the court in planning for the best interest of the person;

(e) Whose parents or any other person or persons having custody of the person have:

(A) Abandoned the person;

(B) Failed to provide the person with the care or education required by law;

(D) Failed to provide the person with the care, guidance and protection necessary for the physical, mental or emotional well-being of the person;

(f) Who has run away from the home of the person; [or]

(g) Who has filed a petition for emancipation pursuant to ORS 419B.550 to 419B.558; or

(h) Who is subject to an order entered under ORS 419C.411 (7)(a).

(2) The court shall have jurisdiction under subsection (1) of this section even though the child is receiving adequate care from the person having physical custody of the child.

(3) The practice of a parent who chooses for the parent or the child of the parent treatment by prayer or spiritual means alone [shall] may not be construed as a failure to provide physical care within the meaning of this chapter, but [shall] doesn’t prevent a court of competent jurisdiction from exercising that jurisdiction under subsection (1)(c) of this section.

(4) The provisions of subsection (1) of this section do not prevent a court of competent jurisdiction from entertaining a civil action or suit involving a child.

(5) The court [shall have no] does not have further jurisdiction as provided in subsection (1) of this section after a minor has been emancipated pursuant to ORS 419B.550 to 419B.558.

(6)(a) An Indian tribe has exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of the tribe, except where the jurisdiction is otherwise vested in the state by existing federal law.

(b) Upon the petition of either parent, the Indian custodian or the Indian child’s tribe, the juvenile court, absent good cause to the contrary and absent objection by either parent, shall transfer a proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, to the jurisdiction of the tribe.

(c) The juvenile court shall give full faith and credit to the public acts, records and judicial proceedings of an Indian tribe applicable to an Indian child custody proceeding to the same extent that the juvenile court gives full faith and credit to the public acts, records and judicial proceedings of any other entity.

NOTE: Section 32 was deleted by amendment. Subsequent sections were not renumbered.

SECTION 33. ORS 21.010, as amended by section 3, chapter 737, Oregon Laws 2003, is amended to read:

21.010. (1) Except as provided in subsection (2) of this section, the appellant in an appeal or the petitioner in a judicial review in the Supreme Court or the Court of Appeals shall pay a filing fee of $154 in the manner prescribed by ORS 19.265. The respondent in such case and any other person appearing in the appeal, upon entering first appearance or filing first brief in the court, shall pay to the State Court Administrator the sum of $92. The party entitled to costs and disbursements on such appeal shall recover from the opponent the amount so paid.

(2) Filing and appearance fees shall not be assessed in appeals from habeas corpus proceedings under ORS 34.710, post-conviction relief proceedings under ORS 138.650, juvenile court under ORS 419A.200 and the involuntary commitment of allegedly mentally ill persons under ORS 426.135 or allegedly mentally retarded persons under ORS 427.295, or on judicial review of orders of the Psychiatric Security Review Board under ORS 161.385 [(8)] (9) or orders of the State Board of Parole and Post-Prison Supervision.

(3) Filing and appearance fees shall be assessed in an appeal from an appeal to a circuit court from a justice court or municipal court in an action alleging commission of a state offense designated as a violation or an action alleging violation of a city charter or ordinance, but not in an action alleging commission of a state crime.

(4) Filing and appearance fees shall only be assessed in an appeal in a contempt proceeding seeking imposition of remedial sanctions under the provisions of ORS 33.055.

SECTION 34. ORS 181.595 is amended to read:

181.595. (1)(a) Except as otherwise provided in paragraph (b) of this subsection, the agency or official to whom a person reports under subsection (3) of this section shall complete a sex offender registration form concerning the person when the person reports under subsection (3) of this section.

(b) When a person who is under supervision reports to the agency supervising the person, the supervising agency may require the person to report instead to the Department of State Police, a chief of police or a county sheriff and provide the supervising agency with proof of the completed registration.

(2) Subsection (3) of this section applies to a person who:

(a) Is discharged, paroled or released on any form of supervised or conditional release from a jail, prison or other correctional facility or detention facility in this state at which the person was confined as a result of:

(A) Conviction of a sex crime;

(B) Having been found guilty except for insanity of a sex crime; or

(C) Having been found to be within the jurisdiction of the juvenile court for having committed an act that if committed by an adult would constitute a sex crime;

(b) Is paroled to this state under ORS 144.610 after being convicted in another jurisdiction of a crime that would constitute a sex crime if committed in this state;

(c) Is paroled to or otherwise placed in this state after having been found by a court in another jurisdiction to have committed an act while the person was under 18 years of age that would constitute a sex crime if committed in this state by an adult; [or]

(d) Is discharged or placed on conditional release by the juvenile panel of the Psychiatric Security Review Board after having been found to be responsible except for insanity under ORS 419C.411 for an act that would constitute a sex crime if committed by an adult; or

[(d)] (e) Is discharged by the court under ORS 161.329 after having been found guilty except for insanity of a sex crime.

(3)(a) Within 10 days following discharge, release on parole, post-prison supervision or other supervised or conditional release, the person shall report, in person, to the Department of State Police, a chief of police or a county sheriff or to the supervising agency, if any. Thereafter, the person shall report, in person:

(A) Within 10 days of a change of residence; and

(B) Once each year within 10 days of the person’s birth date, regardless of whether the person changed residence.

(b) The person shall make the reports required by paragraph (a)(A) and (B) of this subsection to the department, a chief of police, a county sheriff or the supervising agency, if any.

(c) If the person required to report under this subsection is a youth offender or young person, as defined in ORS 419A.004, who is under supervision, the person shall make the reports required by paragraph (a) of this subsection to the agency supervising the person.

(d) The obligation to report under this section terminates if the conviction or adjudication that gave rise to the obligation is reversed or vacated or if the registrant is pardoned.

(4) As part of the registration requirement under this section, the Department of State Police, the chief of police, the county sheriff or the supervising agency:

(a) Shall photograph the person and obtain the signature of the person; and

(b) May fingerprint the person.

SECTION 35. (1) The Governor shall appoint the five members of the Psychiatric Security Review Board added to the board by the amendments to ORS 161.385 by section 20 of this 2005 Act before the operative date of section 4 of this 2005 Act.

(2) Notwithstanding the terms of office specified in ORS 161.385, of the members appointed to the board under subsection (1) of this section:

(a) One shall serve for a term ending January 1, 2008.

(b) One shall serve for a term ending January 1, 2009.

(c) One shall serve for a term ending January 1, 2010.

(d) Two shall serve for terms ending January 1, 2011.

SECTION 36. There is appropriated to the Psychiatric Security Review Board, for the biennium beginning July 1, 2005, out of the General Fund, the amount of $15,000 for the purpose of carrying out the duties, functions and powers of the board relating to persons found responsible except for insanity under ORS 419C.411.

SECTION 37. The dispositions described in section 13 of this 2005 Act apply to any proceeding initiated by a petition alleging jurisdiction under ORS 419C.005 for which the court has not entered an order directing disposition of the case before the operative date of section 4 of this 2005 Act.

SECTION 38. (1) Sections 35 to 37 of this 2005 Act and the amendments to ORS 21.010 and 161.385 by sections 20 and 33 of this 2005 Act become operative on January 1, 2007.

(2) Sections 2 to 6, 12 to 19, 28 and 29 of this 2005 Act and the amendments to ORS 40.015, 137.290, 137.712, 151.216, 161.375, 181.595, 181.607, 419A.004, 419B.100, 419C.005, 419C.285, 419C.400, 419C.411, 419C.501 and 419C.626 by sections 1, 7 to 11, 21 to 26, 30, 31 and 34 of this 2005 Act become operative on July 1, 2007.

SECTION 39. (1) The Department of Human Services shall study the issue of how to allow a child with developmental disabilities to assert the affirmative defense of mental disease or defect constituting insanity when the child is alleged to be within the jurisdiction of the juvenile court under ORS chapter 419C.

(2) The department shall submit a written report to the Legislative Assembly no later than January 1, 2007, summarizing the results of the study required by this section. The report shall contain recommendations for legislation if the department finds that legislation is required.

Approved by the Governor September 2, 2005

Filed in the office of Secretary of State September 2, 2005

Effective date January 1, 2006

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