73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1809
House Bill 2485
Sponsored by Representatives BROWN, JENSON, P SMITH (at the
request of Rob Bovett and Oregon Narcotics Enforcement
Association)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Creates crime of criminal mistreatment in first degree.
Punishes by maximum of 10 years' imprisonment, $250,000 fine, or
both. Reclassifies existing crimes of criminal mistreatment.
Creates crime of endangering welfare of minor in first degree.
Punishes by maximum of 20 years' imprisonment, $375,000 fine, or
both.
Expands circumstances under which murder is aggravated murder.
Creates crime of dumping methamphetamine waste. Punishes by
maximum of 20 years' imprisonment, $375,000 fine, or both.
Creates crime of operating methamphetamine laboratory.
Punishes by maximum of 20 years' imprisonment, $375,000 fine, or
both.
Creates crime of distribution of equipment, solvent, reagent or
precursor substance with intent to facilitate manufacture of
controlled substance. Punishes by maximum of 10 years'
imprisonment, $250,000 fine, or both.
Creates crime of unlawful possession of lithium metal or sodium
metal. Punishes by maximum of one year's imprisonment, $6,250
fine, or both.
Provides that person possesses controlled substance if person
is under influence of controlled substance.
Expands crime of theft in first degree to include theft of
precursor substance.
Deletes prohibition against unlawful distribution of ephedrine
or phenylpropanolamine. Modifies crime of unlawful distribution
of pseudoephedrine. Imposes requirements on sale or transfer of
products containing pseudoephedrine. Requires pharmacies to
retain records obtained in sale or transfer of products
containing pseudoephedrine and to send copies of records to
certain agencies. Punishes failure to do so by maximum of one
year's imprisonment, $6,250 fine, or both.
Modifies crime of unlawful possession of iodine in its
elemental form to prohibit possession of any amount of iodine in
its elemental form.
Expands recording requirements for sales or transfers of iodine
in its elemental form and iodine matrix. Increases punishment for
failure to comply with recording requirements to maximum of one
year's imprisonment, $6,250 fine, or both.
Creates crime of unlawful distribution of iodine in its
elemental form. Punishes by maximum of one year's imprisonment,
$6,250 fine, or both.
Creates crime of unlawful distribution of iodine matrix.
Punishes by maximum of one year's imprisonment, $6,250 fine, or
both.
Expands definitions of 'abuse' and 'public or private official'
for purposes of child abuse reporting laws.
Requires health care providers to provide protected health
information to law enforcement agencies and Department of Human
Services under certain circumstances.
Expands list of places declared to be public nuisances subject
to enjoinder and abatement.
A BILL FOR AN ACT
Relating to controlled substances; creating new provisions; and
amending ORS 105.555, 124.105, 131.125, 137.225, 137.712,
163.095, 163.200, 163.205, 163.505, 163.575, 164.055, 342.143,
419A.260, 419B.005, 419B.050, 431.840, 453.882, 475.940,
475.950, 475.973, 475.975, 475.976, 475.978 and 475.992.
(1) Whereas the Legislative Assembly finds that:
(a) Methamphetamine use and addiction in Oregon have reached
epidemic proportions;
(b) The nature and cycle of methamphetamine use and addiction
have many negative and severe impacts on the livability of
communities throughout Oregon including, but not limited to:
(A) Endangering children exposed to a methamphetamine
laboratory or methamphetamine house environment;
(B) Increasing the rate of property crimes such as theft,
identity theft and burglary;
(C) Increasing the rate of violent crimes such as homicide,
robbery, assault and sexual abuse;
(D) Creation and dumping of toxic waste from methamphetamine
laboratories; and
(E) Methamphetamine-induced mental illness, psychosis and
death;
(c) Recent developments in methamphetamine manufacturing
methods, purity levels and methods of ingestion have
substantially contributed to the extremely addictive nature and
expanded use of methamphetamine;
(d) An adequate response to the methamphetamine epidemic
sweeping Oregon and many parts of the nation will require a
coordinated and significantly enhanced effort to effectively use
scarce prevention, enforcement and treatment resources;
(e) Prevention, enforcement and treatment providers in every
community in Oregon need to work together in an effort to raise
community awareness about, and reduce the incidence of
manufacturing, distribution and use of, methamphetamine; and
(f) Establishing the following priorities is critical to the
effort to remedy the methamphetamine epidemic:
(A) Prevention efforts including:
(i) Community education and awareness; and
(ii) Mobilization of community prevention coalitions;
(B) Enforcement efforts including:
(i) Enhanced and stabilized funding for law enforcement
agencies;
(ii) Enhanced control of critical precursor substances;
(iii) Stabilized funding for cleanup of unlawful
methamphetamine laboratories;
(iv) Establishment of effective programs to address the
problems of drug-endangered children; and
(v) Early intervention in and prosecution of all
methamphetamine cases in order to encourage early methamphetamine
addiction treatment; and
(C) Treatment efforts including:
(i) Use of effective methamphetamine addiction treatment to
improve public safety;
(ii) Enhanced and stabilized funding for methamphetamine
addiction treatment resources;
(iii) Standardization of the best practices for methamphetamine
addiction treatment; and
(iv) Enhanced and stabilized funding for secondary treatment
services such as those provided to the children and other family
members of a person undergoing methamphetamine addiction
treatment; and
(2) Whereas law enforcement and social service agencies in
Oregon should be encouraged to develop and implement written
protocols for taking appropriate action when a child is present
in a home where methamphetamine is manufactured, distributed or
used, which protocols should reflect that exposing a child to the
manufacture, distribution or use of methamphetamine is criminal
conduct and that a response coordinated by law enforcement and
social service agencies is essential to the health and welfare of
the child; and
(3) Whereas the needs of a drug-endangered child are best
served through written protocols encouraging:
(a) The arrest of the person responsible for exposing the child
to the drug endangering environment;
(b) The provision of health and mental health services to the
child; and
(c) The placement of the child in a safe and nurturing
environment; and
(4) Whereas protocols that encourage a dependency investigation
to occur at the same time as a law enforcement investigation at a
methamphetamine crime scene involving a child are consistent with
the child's best interest; and
(5) Whereas communities in Oregon should be encouraged to form
multiagency and multijurisdictional groups that include law
enforcement officers, prosecutors, public health professionals
and social workers to address the welfare of children endangered
by parental methamphetamine manufacturing, distribution and use;
and
(6) Whereas multiagency and multijurisdictional groups formed
by communities should be encouraged to develop protocols
addressing:
(a) Arrests for methamphetamine-related crimes;
(b) The immediate response of child protective social workers
to a methamphetamine crime scene involving a child;
(c) The assignment of child protective social workers to work
with law enforcement agencies charged with responding to
methamphetamine crime scenes;
(d) Child dependency investigations involving methamphetamine
laboratories;
(e) Forensic methamphetamine and toxic chemical exposure
testing;
(f) Decontamination of children found in a methamphetamine
laboratory setting;
(g) Medical examinations and developmental evaluations of
children found in a methamphetamine laboratory setting;
(h) The creation of drug-endangered children awareness
training; and
(i) Short-term and long-term medical, social and psychological
follow-up for drug-endangered children; now, therefore,
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2005 Act is added to and made
a part of ORS 163.160 to 163.208. + }
SECTION 2. { + (1) A person commits the crime of criminal
mistreatment in the first degree if the person intentionally or
knowingly exposes a dependent person to any of the following and
the exposure results in physical injury to the dependent person:
(a) A controlled substance that was not prescribed by a
licensed physician for use by the dependent person.
(b) A precursor substance used or intended for use in the
unlawful manufacture of a controlled substance.
(c) A waste product resulting from the unlawful manufacture of
a controlled substance.
(d) Paraphernalia used to ingest, inject or inhale a controlled
substance.
(2) As used in this section:
(a) 'Controlled substance' has the meaning given that term in
ORS 475.005.
(b) 'Dependent person' has the meaning given that term in ORS
163.205.
(c) 'Precursor substance' has the meaning given that term in
ORS 475.940.
(3) Criminal mistreatment in the first degree is a Class B
felony. + }
SECTION 3. ORS 163.200 is amended to read:
163.200. (1) A person commits the crime of criminal
mistreatment in the { - second - } { + third + } degree if,
with criminal negligence and:
(a) In violation of a legal duty to provide care for another
person, the person withholds necessary and adequate food,
physical care or medical attention from that person; or
(b) Having assumed the permanent or temporary care, custody or
responsibility for the supervision of another person, the person
withholds necessary and adequate food, physical care or medical
attention from that person.
(2) Criminal mistreatment in the { - second - } { +
third + } degree is a Class A misdemeanor.
(3) As used in this section, 'legal duty' includes but is not
limited to a duty created by familial relationship, court order,
contractual agreement or statutory or case law.
SECTION 4. ORS 163.205 is amended to read:
163.205. (1) A person commits the crime of criminal
mistreatment in the { - first - } { + second + } degree if:
(a) The person, in violation of a legal duty to provide care
for another person, or having assumed the permanent or temporary
care, custody or responsibility for the supervision of another
person, intentionally or knowingly withholds necessary and
adequate food, physical care or medical attention from that other
person; or
(b) The person, in violation of a legal duty to provide care
for a dependent person or elderly person, or having assumed the
permanent or temporary care, custody or responsibility for the
supervision of a dependent person or elderly person,
intentionally or knowingly:
(A) Causes physical injury or injuries to the dependent person
or elderly person;
(B) Deserts the dependent person or elderly person in a place
with the intent to abandon that person;
(C) Leaves the dependent person or elderly person unattended at
a place for such a period of time as may be likely to endanger
the health or welfare of that person;
(D) Hides the dependent person's or elderly person's money or
property or takes the money or property for, or appropriates the
money or property to, any use or purpose not in the due and
lawful execution of the person's responsibility; or
(E) Takes charge of a dependent or elderly person for the
purpose of fraud.
(2) As used in this section:
(a) 'Dependent person' means a person who because of either age
or a physical or mental disability is dependent upon another to
provide for the person's physical needs.
(b) 'Elderly person' means a person 65 years of age or older.
(c) 'Legal duty' includes but is not limited to a duty created
by familial relationship, court order, contractual agreement or
statutory or case law.
(3) Criminal mistreatment in the { - first - } { +
second + } degree is a Class C felony.
SECTION 5. { + Section 6 of this 2005 Act is added to and made
a part of ORS 163.505 to 163.575. + }
SECTION 6. { + (1) A person commits the crime of endangering
the welfare of a minor in the first degree if the person
knowingly:
(a) Permits a person under 18 years of age to enter or remain
in a place where a chemical reaction involving one or more
precursor substances is occurring for the purpose of unlawfully
manufacturing a controlled substance or preparing a precursor
substance for the unlawful manufacture of a controlled substance;
or
(b) Causes or permits a person under 18 years of age to
participate in obtaining a precursor substance for the purpose of
unlawfully manufacturing a controlled substance or preparing a
precursor substance for the unlawful manufacture of a controlled
substance.
(2) Endangering the welfare of a minor in the first degree is a
Class A felony. + }
SECTION 7. ORS 163.575 is amended to read:
163.575. (1) A person commits the crime of endangering the
welfare of a minor { + in the second degree + } if the person
knowingly:
(a) Induces, causes or permits an unmarried person under 18
years of age to witness an act of sexual conduct or
sadomasochistic abuse as defined by ORS 167.060; { - or - }
(b) Permits a person under 18 years of age to enter or remain
in a place where unlawful activity involving controlled
substances is maintained or conducted; { - or - }
(c) Induces, causes or permits a person under 18 years of age
to participate in gambling as defined by ORS 167.117;
{ - or - }
(d) Distributes, sells, or causes to be sold, tobacco in any
form to a person under 18 years of age; or
(e) Sells to a person under 18 years of age any device in which
tobacco, marijuana, cocaine or any controlled substance { - , as
defined in ORS 475.005, - } is burned and the principal design
and use of which is directly or indirectly to deliver tobacco
smoke, marijuana smoke, cocaine smoke or smoke from any
controlled substance into the human body including but not
limited to:
(A) Pipes, water pipes, hookahs, wooden pipes, carburetor
pipes, electric pipes, air driven pipes, corncob pipes,
meerschaum pipes and ceramic pipes, with or without screens,
permanent screens, hashish heads or punctured metal bowls;
(B) Carburetion tubes and devices, including carburetion masks;
(C) Bongs;
(D) Chillums;
(E) Ice pipes or chillers;
(F) Cigarette rolling papers and rolling machines; and
(G) Cocaine free basing kits.
(2) Endangering the welfare of a minor { + in the second
degree + } by violation of subsection (1)(a), (b), (c) or (e) of
this section, involving other than a device for smoking tobacco,
is a Class A misdemeanor.
(3) Endangering the welfare of a minor { + in the second
degree + } by violation of subsection (1)(d) of this section or
by violation of subsection (1)(e) of this section, involving a
device for smoking tobacco, is a Class A violation and the court
shall impose a fine of not less than $100.
SECTION 8. ORS 163.505 is amended to read:
163.505. As used in ORS 163.505 to 163.575, unless the context
requires otherwise:
{ + (1) 'Controlled substance' has the meaning given that
term in ORS 475.005. + }
{ - (1) - } { + (2) + } 'Descendant' includes persons
related by descending lineal consanguinity, step-children and
lawfully adopted children.
{ + (3) 'Precursor substance' has the meaning given that term
in ORS 475.940. + }
{ - (2) - } { + (4) + } 'Support' includes, but is not
limited to, necessary and proper shelter, food, clothing, medical
attention and education.
SECTION 9. ORS 163.095 is amended to read:
163.095. As used in ORS 163.105 and this section, ' aggravated
murder' means murder as defined in ORS 163.115 which is committed
under, or accompanied by, any of the following circumstances:
(1)(a) The defendant committed the murder pursuant to an
agreement that the defendant receive money or other thing of
value for committing the murder.
(b) The defendant solicited another to commit the murder and
paid or agreed to pay the person money or other thing of value
for committing the murder.
(c) The defendant committed murder after having been convicted
previously in any jurisdiction of any homicide, the elements of
which constitute the crime of murder as defined in ORS 163.115 or
manslaughter in the first degree as defined in ORS 163.118.
(d) There was more than one murder victim in the same criminal
episode as defined in ORS 131.505.
(e) The homicide occurred in the course of or as a result of
intentional maiming or torture of the victim.
(f) The victim of the intentional homicide was a person under
{ - the age of - } 14 years { + of age + }.
{ + (g) The victim was a person under 14 years of age and the
homicide occurred as the result of manufacturing, or attempting
to manufacture, methamphetamine. + }
(2)(a) The victim was one of the following and the murder was
related to the performance of the victim's official duties in the
justice system:
(A) A police officer as defined in ORS 181.610;
(B) A correctional, parole or probation officer or other person
charged with the duty of custody, control or supervision of
convicted persons;
(C) A member of the Oregon State Police;
(D) A judicial officer as defined in ORS 1.210;
(E) A juror or witness in a criminal proceeding;
(F) An employee or officer of a court of justice; or
(G) A member of the State Board of Parole and Post-Prison
Supervision.
(b) The defendant was confined in a state, county or municipal
penal or correctional facility or was otherwise in custody when
the murder occurred.
(c) The defendant committed murder by means of an explosive as
defined in ORS 164.055.
(d) Notwithstanding ORS 163.115 (1)(b), the defendant
personally and intentionally committed the homicide under the
circumstances set forth in ORS 163.115 (1)(b).
(e) The murder was committed in an effort to conceal the
commission of a crime, or to conceal the identity of the
perpetrator of a crime.
(f) The murder was committed after the defendant had escaped
from a state, county or municipal penal or correctional facility
and before the defendant had been returned to the custody of the
facility.
SECTION 10. { + Sections 11 to 15 of this 2005 Act are added
to and made a part of ORS 475.940 to 475.999. + }
SECTION 11. { + (1) A person commits the crime of dumping
methamphetamine waste if the person knowingly deposits on any
property a precursor substance, chemical waste or debris, used in
or resulting from the manufacture of methamphetamine or the
preparation of a precursor substance for the manufacture of
methamphetamine.
(2) Subsection (1) of this section does not apply to the
disposal of waste products:
(a) By a licensed pharmaceutical company in the normal course
of business; or
(b) Pursuant to state or federal laws regulating the cleanup or
disposal of waste products from unlawful methamphetamine
manufacturing.
(3) Dumping methamphetamine waste is a Class A felony. + }
SECTION 12. { + (1) A person commits the crime of operating a
methamphetamine laboratory if the person knowingly causes a
chemical reaction involving one or more precursor substances for
the purpose of manufacturing methamphetamine or preparing a
precursor substance for the manufacture of methamphetamine.
(2) Subsection (1) of this section does not apply to the
manufacture of methamphetamine by a licensed pharmaceutical
company in the normal course of business.
(3) Operating a methamphetamine laboratory is a Class A
felony. + }
SECTION 13. { + A person who reports the possession of a
precursor substance or a transaction involving a precursor
substance to a law enforcement agency is immune from any civil or
criminal liability that might otherwise be incurred or imposed
with respect to the making or the content of the report if the
person has reasonable grounds for suspecting the possession or
transaction is prohibited under ORS 475.940 to 475.999. + }
SECTION 14. { + (1) A person commits the crime of distribution
of equipment, a solvent, a reagent or a precursor substance with
intent to facilitate the manufacture of a controlled substance if
the person sells or otherwise transfers equipment, a solvent, a
reagent or a precursor substance to another person with knowledge
that the equipment, solvent, reagent or precursor substance is
intended to be used to manufacture a controlled substance in
violation of ORS 475.992.
(2) Distribution of equipment, a solvent, a reagent or a
precursor substance with intent to facilitate the manufacture of
a controlled substance is a Class B felony. + }
SECTION 15. { + (1) Except as otherwise provided in subsection
(2) of this section, a person commits the crime of unlawful
possession of lithium metal or sodium metal if the person
knowingly possesses lithium metal or sodium metal.
(2) Subsection (1) of this section does not apply to:
(a) A person who is conducting a lawful manufacturing operation
that involves the use of lithium metal or sodium metal;
(b) A person who possesses lithium metal or sodium metal in
conjunction with experiments conducted in a chemistry or
chemistry related laboratory maintained by a:
(A) Regularly established public or private secondary school;
or
(B) Public or private institution of higher education that is
accredited by a regional or national accrediting agency
recognized by the United States Department of Education;
(c) A retail distributor, wholesaler, manufacturer,
warehouseman or common carrier, or an agent of any of these
persons, who possesses lithium metal or sodium metal in the
regular course of lawful business activities; or
(d) A person who possesses lithium metal or sodium metal as a
component of a lawful product including, but not limited to,
rechargeable batteries.
(3) Unlawful possession of lithium metal or sodium metal is a
Class A misdemeanor. + }
SECTION 16. ORS 475.992 is amended to read:
475.992. (1) Except as authorized by ORS 475.005 to 475.285 and
475.940 to 475.999, it is unlawful for any person to manufacture
or deliver a controlled substance. Any person who violates this
subsection with respect to:
(a) A controlled substance in Schedule I, is guilty of a Class
A felony.
(b) A controlled substance in Schedule II, is guilty of a Class
B felony.
(c) A controlled substance in Schedule III, is guilty of a
Class C felony.
(d) A controlled substance in Schedule IV, is guilty of a Class
B misdemeanor.
(e) A controlled substance in Schedule V, is guilty of a Class
C misdemeanor.
(2) Notwithstanding the placement of marijuana in a schedule of
controlled substances under ORS 475.005 to 475.285 and 475.940 to
475.999:
(a) Any person who delivers marijuana for consideration is
guilty of a Class B felony.
(b) Any person who delivers, for no consideration, less than
one avoirdupois ounce of the dried leaves, stems and flowers of
the plant Cannabis family Moraceae is guilty of a Class A
misdemeanor, except that any person who delivers, for no
consideration, less than five grams of the dried leaves, stems
and flowers of the plant Cannabis family Moraceae is guilty of a
violation, punishable by a fine of not less than $500 and not
more than $1,000. Fines collected under this paragraph shall be
forwarded to the Department of Revenue for deposit in the
Criminal Fine and Assessment Account established in ORS 137.300.
(3) Except as authorized in ORS 475.005 to 475.285 and 475.940
to 475.999, it is unlawful for any person to create or deliver a
counterfeit substance. Any person who violates this subsection
with respect to:
(a) A counterfeit substance in Schedule I, is guilty of a Class
A felony.
(b) A counterfeit substance in Schedule II, is guilty of a
Class B felony.
(c) A counterfeit substance in Schedule III, is guilty of a
Class C felony.
(d) A counterfeit substance in Schedule IV, is guilty of a
Class B misdemeanor.
(e) A counterfeit substance in Schedule V, is guilty of a Class
C misdemeanor.
(4) It is unlawful for any person knowingly or intentionally to
possess a controlled substance unless the substance was obtained
directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of professional practice,
or except as otherwise authorized by ORS 475.005 to 475.285 and
475.940 to 475.999. Any person who violates this subsection with
respect to:
(a) A controlled substance in Schedule I, is guilty of a Class
B felony.
(b) A controlled substance in Schedule II, is guilty of a Class
C felony.
(c) A controlled substance in Schedule III, is guilty of a
Class A misdemeanor.
(d) A controlled substance in Schedule IV, is guilty of a Class
C misdemeanor.
(e) A controlled substance in Schedule V, is guilty of a
violation.
(f) Notwithstanding the placement of marijuana in a schedule of
controlled substances under ORS 475.005 to 475.285 and 475.940 to
475.999, any person who knowingly or intentionally is in unlawful
possession of less than one avoirdupois ounce of the dried
leaves, stems and flowers of the plant Cannabis family Moraceae
is guilty of a violation, punishable by a fine of not less than
$500 and not more than $1,000. Fines collected under this
paragraph shall be forwarded to the Department of Revenue for
deposit in the Criminal Fine and Assessment Account established
under ORS 137.300.
(5) In any prosecution under this section for manufacture,
possession or delivery of that plant of the genus Lophophora
commonly known as peyote, it is an affirmative defense that the
peyote is being used or is intended for use:
(a) In connection with the good faith practice of a religious
belief;
(b) As directly associated with a religious practice; and
(c) In a manner that is not dangerous to the health of the user
or others who are in the proximity of the user.
(6) The affirmative defense created in subsection (5) of this
section is not available to any person who has possessed or
delivered the peyote while incarcerated in a correctional
facility in this state.
{ + (7) As used in this section, 'possess' means:
(a) To have physical possession of or otherwise to exercise
dominion or control over something.
(b) To be under the influence of something. + }
SECTION 17. ORS 164.055 is amended to read:
164.055. (1) A person commits the crime of theft in the first
degree if, by other than extortion, the person commits theft as
defined in ORS 164.015 and:
(a) The total value of the property in a single or aggregate
transaction is $200 or more in a case of theft by receiving, and
$750 or more in any other case; { - or - }
(b) The theft is committed during a riot, fire, explosion,
catastrophe or other emergency in an area affected { - thereby;
or - } { + by the riot, fire, explosion, catastrophe or other
emergency; + }
(c) The theft is theft by receiving committed by buying,
selling, borrowing or lending on the security of the property;
{ - or - }
(d) The subject of the theft is a firearm or explosive;
{ - or - }
(e) The subject of the theft is a livestock animal, a companion
animal or a wild animal removed from habitat or born of a wild
animal removed from habitat, pursuant to ORS 497.308 (2)(c) { + ;
or
(f) The subject of the theft is a precursor substance + }.
(2) As used in this section:
(a) 'Companion animal' means a dog or cat possessed by a
person, business or other entity for purposes of companionship,
security, hunting, herding or providing assistance in relation to
a physical disability.
(b) 'Explosive' means a chemical compound, mixture or device
that is commonly used or intended for the purpose of producing a
chemical reaction resulting in a substantially instantaneous
release of gas and heat, including but not limited to dynamite,
blasting powder, nitroglycerin, blasting caps and nitrojelly, but
excluding fireworks as defined in ORS 480.110 (1), black powder,
smokeless powder, small arms ammunition and small arms ammunition
primers.
(c) 'Firearm' means a weapon, by whatever name known, which is
designed to expel a projectile by the action of black powder or
smokeless powder and which is readily capable of use as a weapon.
(d) 'Livestock animal' means a ratite, psittacine, horse,
gelding, mare, stallion, colt, mule, ass, jenny, bull, steer,
cow, calf, goat, sheep, lamb, llama, pig or hog.
{ + (e) 'Precursor substance' has the meaning given that term
in ORS 475.940. + }
(3) Theft in the first degree is a Class C felony.
SECTION 18. ORS 475.973 is amended to read:
475.973. (1)(a) Except as otherwise provided in paragraphs (b)
{ - and (c) - } { + to (d) + } of this subsection, a person
commits the crime of unlawful possession of ephedrine,
pseudoephedrine or phenylpropanolamine if the person knowingly
possesses more than nine grams of ephedrine, pseudoephedrine or
phenylpropanolamine, the salts, isomers or salts of isomers of
ephedrine, pseudoephedrine or phenylpropanolamine or a
combination of any of these substances.
(b) Paragraph (a) of this subsection does not apply to a
veterinarian, physician, pharmacist, retail distributor,
wholesaler, manufacturer, warehouseman or common carrier or an
agent of any of these persons if the possession is in the regular
course of lawful business activities.
(c) Paragraph (a) of this subsection does not apply to a person
in possession of less than 24 grams of ephedrine, pseudoephedrine
or phenylpropanolamine, or the salts, isomers or salts of isomers
of ephedrine, pseudoephedrine or phenylpropanolamine, in the home
or residence of the person under circumstances that are
consistent with typical medicinal or household use, as indicated
by factors that include but are not limited to storage location,
purchase date, possession of the products in a variety of
strengths, brands, types or purposes and expiration date. The
exception under this paragraph does not apply if the substances,
in excess of nine grams, were all purchased within a period of
seven consecutive days.
{ + (d) Paragraph (a) of this subsection does not apply to a
person in possession of pseudoephedrine pursuant to a
prescription issued by a licensed veterinarian or physician. + }
{ - (2)(a) A person commits the crime of unlawful
distribution of ephedrine, pseudoephedrine or phenylpropanolamine
if the person sells or otherwise transfers more than nine grams
of ephedrine, pseudoephedrine or phenylpropanolamine, the salts,
isomers or salts of isomers of ephedrine, pseudoephedrine or
phenylpropanolamine or a combination of any of these substances
to a person other than a veterinarian, physician, pharmacist,
retail distributor, wholesaler, manufacturer, warehouseman or
common carrier or an agent of any of these persons in the regular
course of lawful business activities. - }
{ - (b) Paragraph (a) of this subsection does not apply to
pediatric products primarily intended for administration,
according to label instructions, to children under 12 years of
age, either: - }
{ - (A) In solid dosage form when individual dosage units do
not exceed 15 milligrams of ephedrine, pseudoephedrine or
phenylpropanolamine; or - }
{ - (B) In liquid form when recommended dosage units,
according to label instructions, do not exceed 15 milligrams of
ephedrine, pseudoephedrine or phenylpropanolamine per five
milliliters of liquid product. - }
{ - (c) Paragraph (a) of this subsection does not apply to
pediatric products in liquid form that are primarily intended for
administration to children under two years of age for whom the
recommended dosage does not exceed two milliliters and that have
a total package content of not more than one fluid ounce. - }
{ + (2)(a) When a person sells or otherwise transfers a
product containing pseudoephedrine or the salts, isomers or salts
of isomers of pseudoephedrine, the person:
(A) Shall make the sale or transfer from the prescription area
of a licensed pharmacy;
(B) May not sell or transfer products containing more than nine
grams of pseudoephedrine or the salts, isomers or salts of
isomers of pseudoephedrine to the same transferee within a 30-day
period;
(C) Shall require the transferee to provide photographic
identification showing the transferee's date of birth; and
(D) Shall require the transferee to sign a document or
instrument, approved by the Department of State Police, showing
the date of the transaction, the name of the transferee, the type
and number of the identification provided under subparagraph (C)
of this paragraph, the name, amount and cost of the product and
the method of payment.
(b) A person commits the crime of unlawful distribution of
pseudoephedrine if the person fails to comply with paragraph (a)
of this subsection.
(c) Paragraph (a) of this subsection does not apply to sales or
transfers to a veterinarian, physician, pharmacist, retail
distributor, wholesaler, manufacturer, warehouseman or common
carrier or an agent of any of these persons in the regular course
of lawful business activities.
(d) Paragraph (a) of this subsection does not apply to the sale
or transfer of a product:
(A) That is in liquid, liquid capsule or gel capsule form;
(B) In which pseudoephedrine is not the only active ingredient;
and
(C) That may be lawfully sold or transferred without a
prescription.
(3) A pharmacy that obtains records under subsection (2)(a)(D)
of this section shall retain the records for at least three
years. The pharmacy shall make the records available for
inspection by the State Board of Pharmacy and any law enforcement
agency. If requested by the State Board of Pharmacy or the
Department of State Police, the pharmacy shall send copies of the
records to the state board or department.
(4) If the State Board of Pharmacy implements a program to
collect and track information obtained under subsection (2)(a)(D)
of this section and to share the information among pharmacies,
the nine gram limitation established in subsection (2)(a)(B) of
this section is the total amount that can be sold or transferred
collectively from all pharmacies that have access to the
information. + }
{ - (3) - } { + (5) + } This section does not apply to
products that the State Board of Pharmacy, upon application of a
manufacturer, exempts by rule because the product is formulated
to effectively prevent conversion of the active ingredient into
methamphetamine or its salts or precursors. Upon notification
from the Department of State Police that the department has
probable cause to believe that a product exempted under this
subsection does not effectively prevent conversion of the active
ingredient into methamphetamine or its salts or precursors, the
State Board of Pharmacy may issue an emergency rule revoking the
exemption for the product pending a full hearing.
{ - (4) - } { + (6) + } This section does not apply to
dietary supplements, herbs or natural products, including
concentrates or extracts, that are not otherwise prohibited by
law and that contain naturally occurring ephedrine alkaloids in a
matrix of organic material such that the substances do not exceed
15 percent of the total weight of the dietary supplement, herb or
natural product.
{ - (5)(a) - } { + (7)(a) + } Unlawful possession of
ephedrine, pseudoephedrine or phenylpropanolamine is a Class A
misdemeanor.
(b) Unlawful distribution of { - ephedrine, - }
pseudoephedrine { - or phenylpropanolamine - } is a Class A
misdemeanor.
{ + (c) Failure to retain a record, or send a copy of a
record, as required by subsection (3) of this section is a Class
A misdemeanor. + }
SECTION 19. ORS 475.975 is amended to read:
475.975. (1) Except as otherwise provided in subsection (2) of
this section, a person commits the crime of unlawful possession
of iodine in its elemental form if the person knowingly possesses
{ - more than two ounces of - } iodine in its elemental form.
(2) Subsection (1) of this section does not apply to:
(a) A physician, pharmacist, retail distributor, wholesaler,
manufacturer, warehouseman or common carrier or an agent of any
of these persons who possesses iodine in its elemental form in
the regular course of lawful business activities;
(b) A person who possesses iodine in its elemental form in
conjunction with experiments conducted in a chemistry or
chemistry related laboratory maintained by a:
(A) Regularly established public or private secondary school;
(B) Public or private institution of higher education that is
accredited by a regional or national accrediting agency
recognized by the United States Department of Education; or
(C) Manufacturing, government agency or research facility in
the course of lawful business activities;
(c) A licensed veterinarian; { - or - }
(d) A person working in a general hospital who possesses iodine
in its elemental form in the regular course of employment at the
hospital { + ; or
(e) A person who possesses iodine in its elemental form as a
prescription drug, pursuant to a prescription issued by a
licensed veterinarian or physician + }.
(3) { + Except as otherwise provided in subsection (4) of this
section, + } a person who sells or otherwise transfers iodine in
its elemental form to { - a physician, pharmacist, retail
distributor, wholesaler, manufacturer, warehouseman, common
carrier, chemistry laboratory, licensed veterinarian or general
hospital or an agent of any of these persons or entities - }
{ + another person + } shall make a record of each sale or
transfer. The record must be made on a form provided by the
Department of State Police { + , must be completed pursuant to
instructions provided by the department + } and must be retained
by the person for at least three years { + or sent to the
department if directed to do so by the department + }. Failure to
make { + , + } { - or - } retain { + or send + } a record
required under this subsection is a Class A { - violation - }
{ + misdemeanor + }.
{ + (4) A licensed veterinarian is not required to make a
record of a sale or transfer of iodine in its elemental form
under subsection (3) of this section if the veterinarian makes a
record of the sale or transfer under other applicable laws or
rules regarding the prescribing and dispensing of regulated or
controlled substances by veterinarians.
(5) A person commits the crime of unlawful distribution of
iodine in its elemental form if the person knowingly sells or
otherwise transfers iodine in its elemental form to a person not
listed in subsection (2) of this section. + }
{ - (4) - } { + (6) + } Unlawful possession of iodine in
its elemental form is a Class A misdemeanor.
{ + (7) Unlawful distribution of iodine in its elemental form
in a Class A misdemeanor. + }
SECTION 20. ORS 475.976 is amended to read:
475.976. (1) Except as otherwise provided in subsection (2) of
this section, a person commits the crime of unlawful possession
of an iodine matrix if the person knowingly possesses an iodine
matrix.
(2) Subsection (1) of this section does not apply to:
(a) A person who possesses an iodine matrix as a prescription
drug, pursuant to a prescription issued by a licensed
veterinarian or physician;
(b) A person who is actively engaged in the practice of animal
husbandry of livestock as defined in ORS 609.125;
(c) A person who possesses an iodine matrix in conjunction with
experiments conducted in a chemistry or chemistry related
laboratory maintained by a:
(A) Regularly established public or private secondary school;
(B) Public or private institution of higher education that is
accredited by a regional or national accrediting agency
recognized by the United States Department of Education; or
(C) Manufacturing, government agency or research facility in
the course of lawful business activities;
(d) A veterinarian, physician, pharmacist, retail distributor,
wholesaler, manufacturer, warehouseman or common carrier or an
agent of any of these persons who possesses an iodine matrix in
the regular course of lawful business activities; or
(e) A person working in a general hospital who possesses an
iodine matrix in the regular course of employment at the
hospital.
(3) { + Except as otherwise provided in subsection (4) of this
section, + } a person who sells or otherwise transfers an iodine
matrix to { - a person pursuant to a prescription issued by a
licensed veterinarian or physician, to a person engaged in the
practice of animal husbandry of livestock, to a chemistry or
chemistry related laboratory, to a general hospital or to a
veterinarian, physician, pharmacist, retail distributor,
wholesaler, manufacturer, warehouseman or common carrier or an
agent of any of these persons or entities, - } { + another
person + } shall make a record of each sale or transfer. The
record must be made on a form provided by the Department of State
Police { + , must be completed pursuant to instructions provided
by the department + } and must be retained by the person for at
least three years { + or sent to the department if directed to
do so by the department + }. Failure to make { + , + }
{ - or - } retain { + or send + } a record required under this
subsection is a Class A { - violation - } { +
misdemeanor + }.
{ + (4) A licensed veterinarian is not required to make a
record of a sale or transfer of an iodine matrix under subsection
(3) of this section if the veterinarian makes a record of the
sale or transfer under other applicable laws or rules regarding
the prescribing and dispensing of regulated or controlled
substances by veterinarians.
(5) A person commits the crime of unlawful distribution of an
iodine matrix if the person knowingly sells or otherwise
transfers an iodine matrix to a person not listed in subsection
(2) of this section. + }
{ - (4) - } { + (6) + } Unlawful possession of an iodine
matrix is a Class A misdemeanor.
{ + (7) Unlawful distribution of an iodine matrix is a Class
A misdemeanor. + }
SECTION 21. ORS 475.978 is amended to read:
475.978. (1) A person who sells or otherwise transfers more
than the amount permitted by administrative rule adopted by the
Department of State Police of methyl sulfonyl methane to a person
other than a physician, pharmacist, veterinarian, retail
distributor, wholesaler, manufacturer, warehouseman or common
carrier or an agent of any of these persons shall make a record
of each such sale or transfer. The record must be made on a form
provided by the department { + , must be completed pursuant to
instructions provided by the department + } and must be retained
by the person for at least three years. Failure to make or retain
a record required under this subsection is a Class A violation.
(2) The department shall adopt a rule establishing the minimum
amount of methyl sulfonyl methane the sale or transfer of which
requires a report under subsection (1) of this section. In
establishing the minimum amount, the department shall determine
an amount that is reasonably designed not to infringe upon
legitimate uses of methyl sulfonyl methane but that discourages
the use of methyl sulfonyl methane in the illicit production and
distribution of methamphetamine.
(3) This section applies to the sale or transfer of bulk methyl
sulfonyl methane in its powder form only, and does not apply to
the sale or transfer of products containing methyl sulfonyl
methane in other forms including, but not limited to, liquids,
tablets, capsules not containing methyl sulfonyl methane in pure
powder form, ointments, creams, cosmetics, foods and beverages.
SECTION 22. ORS 475.940 is amended to read:
475.940. As used in ORS 475.940 to 475.999:
(1) 'Iodine matrix' means iodine at a concentration greater
than two percent by weight in a matrix or solution.
(2) 'Matrix' means something, as a substance, in which
something else originates, develops, or is contained.
(3) 'Precursor substance' means:
(a) Phenyl-2-propanone.
(b) Methylamine.
(c) D-lysergic acid.
(d) Ergotamine.
(e) Diethyl Malonate.
(f) Malonic acid.
(g) Ethyl Malonate.
(h) Barbituric acid.
(i) Piperidine.
(j) N-acetylanthranilic acid.
(k) Ethylamine.
(L) Pyrolidine.
(m) Phenylacetic acid.
(n) Anthranilic acid.
(o) Morpholine.
(p) Ephedrine.
(q) Pseudoephedrine.
(r) Norpseudoephedrine.
(s) Phenylpropanolamine.
(t) Benzyl cyanide.
(u) Ergonovine.
(v) 3,4-Methylenedioxyphenyl-2-propanone.
(w) Propionic anhydride.
(x) Insosafrole (Isosafrole).
(y) Safrole.
(z) Piperonal.
(aa) N-methylephedrine.
(bb) N-ethylephedrine.
(cc) N-methylpseudoephedrine.
(dd) N-ethylpseudoephedrine.
(ee) Hydriotic acid.
(ff) Gamma butyrolactone (GBL), including butyrolactone,
1,2-butanolide, 2-oxanol-one, tetrahydro-2-furanone,
dihydro-2(3H)-furanone and tetramethylene glycol, but not
including gamma aminobutyric acid (GABA).
(gg) 1,4-butanediol.
(hh) Any salt, isomer or salt of an isomer of the chemicals
listed in paragraphs (a) to (gg) of this subsection.
(ii) Iodine in its elemental form.
(jj) Iodine matrix.
(kk) Red phosphorus, white phosphorus, yellow phosphorus or
hypophosphorus acid and its salts.
(LL) Anhydrous ammonia.
{ + (mm) Lithium metal.
(nn) Sodium metal. + }
{ - (mm) - } { + (oo) + } Any substance established as a
precursor substance by rule under authority granted in ORS
475.945.
SECTION 23. ORS 475.950 is amended to read:
475.950. (1) A person commits the offense of failure to report
a precursor substances transaction if the person does any of the
following:
(a) Sells, transfers or otherwise furnishes any precursor
substance described in ORS 475.940 (3)(a) to (hh) and
{ - (mm) - } { + (oo) + } and does not, at least three days
before delivery of the substance, submit to the Department of
State Police a report that meets the reporting requirements
established by rule under ORS 475.945.
(b) Receives any precursor substance described in ORS 475.940
(3)(a) to (hh) and { - (mm) - } { + (oo) + } and does not,
within 10 days after receipt of the substance, submit to the
Department of State Police a report that meets the reporting
requirements established by rule under ORS 475.945.
(2) This section does not apply to any of the following:
(a) Any pharmacist or other authorized person who sells or
furnishes a precursor substance upon the prescription of a
physician, dentist, podiatric physician and surgeon or
veterinarian.
(b) Any practitioner, as defined in ORS 475.005, who
administers or furnishes a precursor substance to patients upon
prescription.
(c) Any person licensed by the State Board of Pharmacy who
sells, transfers or otherwise furnishes a precursor substance to
a licensed pharmacy, physician, dentist, podiatric physician and
surgeon or veterinarian for distribution to patients upon
prescription.
(d) Any person who is authorized by rule under ORS 475.945 to
report in an alternate manner if the person complies with the
alternate reporting requirements.
(e) Any patient of a practitioner, as defined in ORS 475.005,
who obtains a precursor substance from a licensed pharmacist,
physician, dentist, podiatric physician and surgeon or
veterinarian pursuant to a prescription.
(f) Any person who sells or transfers { - ephedrine, - }
pseudoephedrine { - or phenylpropanolamine - } in compliance
with ORS 475.973.
(g) Any practitioner, as defined in ORS 475.005, who dispenses
a precursor substance to a person with whom the practitioner has
a doctor-patient or doctor-client relationship.
(h) Any person who obtains a precursor substance from a
practitioner, as defined in ORS 475.005, with whom the person has
a doctor-patient or doctor-client relationship.
(3) Penalties related to providing false information on a
report required under this section are provided under ORS
475.965.
(4) The Department of State Police and any law enforcement
agency may inspect { + and remove + } the sales records of any
retail or wholesale distributor of methyl sulfonyl methane or a
precursor substance during the normal business hours of the
retail or wholesale distributor. { + Instead of removing records
under this subsection, the department or law enforcement agency
may require the distributor to provide copies of the records. + }
(5) { - The offense described in this section, - } Failure
to report a precursor substances transaction, is a Class A
misdemeanor.
SECTION 24. ORS 419B.005 is amended to read:
419B.005. As used in ORS 418.747, 418.748, 418.749 and 419B.005
to 419B.050, unless the context requires otherwise:
(1)(a) 'Abuse' means:
(A) Any assault, as defined in ORS chapter 163, of a child and
any physical injury to a child which has been caused by other
than accidental means, including any injury which appears to be
at variance with the explanation given of the injury.
(B) Any mental injury to a child, which shall include only
observable and substantial impairment of the child's mental or
psychological ability to function caused by cruelty to the child,
with due regard to the culture of the child.
(C) Rape of a child, which includes but is not limited to rape,
sodomy, unlawful sexual penetration and incest, as those acts are
defined in ORS chapter 163.
(D) Sexual abuse, as defined in ORS chapter 163.
(E) Sexual exploitation, including but not limited to:
(i) Contributing to the sexual delinquency of a minor, as
defined in ORS chapter 163, and any other conduct which allows,
employs, authorizes, permits, induces or encourages a child to
engage in the performing for people to observe or the
photographing, filming, tape recording or other exhibition which,
in whole or in part, depicts sexual conduct or contact, as
defined in ORS 167.002 or described in ORS 163.665 and 163.670,
sexual abuse involving a child or rape of a child, but not
including any conduct which is part of any investigation
conducted pursuant to ORS 419B.020 or which is designed to serve
educational or other legitimate purposes; and
(ii) Allowing, permitting, encouraging or hiring a child to
engage in prostitution, as defined in ORS chapter 167.
(F) Negligent treatment or maltreatment of a child, including
but not limited to the failure to provide adequate food,
clothing, shelter or medical care that is likely to endanger the
health or welfare of the child.
(G) Threatened harm to a child, which means subjecting a child
to a substantial risk of harm to the child's health or welfare.
(H) Buying or selling a person under 18 years of age as
described in ORS 163.537.
(I) Permitting a person under 18 years of age to enter or
remain in a place where methamphetamines are being manufactured.
{ + (J) Prenatal exposure to a controlled substance, as
defined in ORS 475.005, that results in a newborn child being a
drug-affected child. + }
(b) 'Abuse' does not include reasonable discipline unless the
discipline results in one of the conditions described in
paragraph (a) of this subsection.
(2) 'Child' means an unmarried person who is under 18 years of
age.
(3) 'Public or private official' means:
(a) Physician, including any intern or resident.
(b) Dentist.
(c) School employee.
(d) Licensed practical nurse or registered nurse.
(e) Employee of the Department of Human Services, State
Commission on Children and Families, Child Care Division of the
Employment Department, the Oregon Youth Authority, a county
health department, a community mental health and developmental
disabilities program, a county juvenile department, a licensed
child-caring agency or an alcohol and drug treatment program.
(f) Peace officer.
(g) Psychologist.
(h) Member of the clergy.
(i) Licensed clinical social worker.
(j) Optometrist.
(k) Chiropractor.
(L) Certified provider of foster care, or an employee thereof.
(m) Attorney.
(n) Naturopathic physician.
(o) Licensed professional counselor.
(p) Licensed marriage and family therapist.
(q) Firefighter or emergency medical technician.
(r) A court appointed special advocate, as defined in ORS
419A.004.
(s) A child care provider registered or certified under ORS
657A.030 and 657A.250 to 657A.450.
(t) Member of the Legislative Assembly.
{ + (u) Direct entry midwife licensed under ORS 687.405 to
687.495. + }
(4) 'Law enforcement agency' means:
(a) Any city or municipal police department.
(b) Any county sheriff's office.
(c) The Oregon State Police.
(d) A county juvenile department.
SECTION 25. ORS 419B.050 is amended to read:
419B.050. (1) Upon notice by either a law enforcement agency or
the Department of Human Services that a child abuse investigation
is being conducted under ORS 419B.020, a health care
provider { + :
(a) + } May permit the law enforcement agency or the department
to inspect and copy { - medical records, including, but not
limited to, prenatal and birth records, - } { + protected
health information + }of the child involved in the investigation
without the consent of the child, or the parent or guardian of
the child.
{ + (b) Shall permit the law enforcement agency or the
department to inspect and copy protected health information of
the child involved in the investigation without the consent of
the child, or the parent or guardian of the child, if the abuse
being investigated consists of the child having been present in a
location where methamphetamine was being manufactured or used.
(2) + } A health care provider who in good faith
{ - disclosed medical records - } { + discloses protected
health information + } under this section is not civilly or
criminally liable for the disclosure.
{ - (2)(a) - } { + (3) + } As used in this section, 'health
care provider' { + and 'protected health information' have the
meanings given those terms in ORS 192.519. + } { - means a
person licensed by one of the following agencies, or any employee
of a person licensed by one of the following agencies: - }
{ - (A) State Board of Examiners for Speech-Language
Pathology and Audiology; - }
{ - (B) State Board of Chiropractic Examiners; - }
{ - (C) State Board of Clinical Social Workers; - }
{ - (D) Oregon Board of Licensed Professional Counselors and
Therapists; - }
{ - (E) Oregon Board of Dentistry; - }
{ - (F) State Board of Denture Technology; - }
{ - (G) Board of Examiners of Licensed Dietitians; - }
{ - (H) State Board of Massage Therapists; - }
{ - (I) State Mortuary and Cemetery Board; - }
{ - (J) Board of Naturopathic Examiners; - }
{ - (K) Oregon State Board of Nursing; - }
{ - (L) Board of Examiners of Nursing Home
Administrators; - }
{ - (M) Oregon Board of Optometry; - }
{ - (N) State Board of Pharmacy; - }
{ - (O) Board of Medical Examiners; - }
{ - (P) Occupational Therapy Licensing Board; - }
{ - (Q) Physical Therapist Licensing Board; - }
{ - (R) State Board of Psychologist Examiners; or - }
{ - (S) Board of Radiologic Technology. - }
{ - (b) For the purposes of this section, 'health care
provider' includes a health care facility as defined in ORS
442.015 and emergency medical technicians certified by the
Department of Human Services. - }
SECTION 26. ORS 105.555 is amended to read:
105.555. (1) The following are declared to be nuisances and
shall be enjoined and abated as provided in ORS 105.550 to
105.600:
(a) Any place that, as a regular course of business, is used
for the purpose of prostitution and any place where acts of
prostitution occur;
(b) Any place which is used and maintained for profit and for
the purpose of gambling or a lottery, as defined in ORS 167.117,
by any person, partnership or corporation organized for profit
and wherein take place any of the acts or wherein are kept,
stored or located any of the games, devices or things which are
forbidden by or made punishable by ORS 167.108 to 167.164;
{ - and - }
{ + (c) Any place that has been determined to be not fit for
use under ORS 453.876 and that has not been decontaminated and
certified as fit for use under ORS 453.885 within 180 days after
the determination under ORS 453.876; and + }
{ - (c) - } { + (d) + } Any place where activity involving
the unauthorized delivery, manufacture or possession of a
controlled substance, as defined in ORS 475.005, occurs or any
place wherein are kept, stored or located any of the devices,
equipment, things or substances used for unauthorized delivery,
manufacture or possession of a controlled substance. As used in
this { - subsection - } { + paragraph, + } 'devices, equipment
and things' does not include hypodermic syringes or needles. This
{ - subsection shall - } { + paragraph does + } not apply to
acts which constitute violations under ORS 475.992 (2)(b) and
(4)(f).
(2) Nothing in ORS 105.550 to 105.600, 166.715 and 167.158
applies to property to the extent that the devices, equipment,
things or substances that are used for delivery, manufacture or
possession of a controlled substance are kept, stored or located
in or on the property for the purpose of lawful sale or use of
these items.
SECTION 27. ORS 453.882 is amended to read:
453.882. The owner of property { - that has been determined
to be not fit for use pursuant to ORS 453.855 to 453.912 who
allows such property to be used as if it were fit for use - }
shall be considered to be maintaining a public nuisance subject
to being enjoined or abated under ORS 105.550 to 105.600 { + if
the property has been determined to be not fit for use under ORS
453.876 and the owner:
(1) Allows the property to be used as if it were fit for use;
or
(2) Fails to have the property decontaminated and certified as
fit for use under ORS 453.885 within 180 days after the
determination under ORS 453.876 + }.
SECTION 28. ORS 124.105 is amended to read:
124.105. (1) An action may be brought under ORS 124.100 for
physical abuse if the defendant engaged in conduct against an
elderly or incapacitated person that would constitute any of the
following:
(a) Assault, under the provisions of ORS 163.160, 163.165,
163.175 and 163.185.
(b) Menacing, under the provisions of ORS 163.190.
(c) Recklessly endangering another person, under the provisions
of ORS 163.195.
(d) Criminal mistreatment, under the provisions of ORS 163.200
and 163.205 { + and section 2 of this 2005 Act + }.
(e) Rape, under the provisions of ORS 163.355, 163.365 and
163.375.
(f) Sodomy, under the provisions of ORS 163.385, 163.395 and
163.405.
(g) Unlawful sexual penetration, under the provisions of ORS
163.408 and 163.411.
(h) Sexual abuse, under the provisions of ORS 163.415, 163.425
and 163.427.
(i) Strangulation, under ORS 163.187.
(2) An action may be brought under ORS 124.100 for physical
abuse if the defendant used any unreasonable physical constraint
on the plaintiff or subjected the plaintiff to prolonged or
continued deprivation of food or water.
(3) An action may be brought under ORS 124.100 for physical
abuse if the defendant used a physical or chemical restraint, or
psychotropic medication on the plaintiff without an order from a
physician licensed in the State of Oregon or under any of the
following conditions:
(a) For the purpose of punishing the elderly or incapacitated
person.
(b) For any purpose not consistent with the purposes authorized
by a physician.
(c) For a period significantly beyond that for which the
restraint or medication was authorized by a physician.
SECTION 29. ORS 131.125 is amended to read:
131.125. (1) A prosecution for aggravated murder, murder,
attempted murder or aggravated murder, conspiracy or solicitation
to commit aggravated murder or murder or any degree of
manslaughter may be commenced at any time after the commission of
the attempt, conspiracy or solicitation to commit aggravated
murder or murder, or the death of the person killed.
(2) A prosecution for any of the following felonies may be
commenced within six years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 24 years of age or within six
years after the offense is reported to a law enforcement agency
or other governmental agency, whichever occurs first:
{ + (a) Criminal mistreatment in the first degree under
section 2 of this 2005 Act. + }
{ - (a) - } { + (b) + } Criminal mistreatment in the
{ - first - } { + second + } degree under ORS 163.205.
{ - (b) - } { + (c) + } Rape in the third degree under ORS
163.355.
{ - (c) - } { + (d) + } Rape in the second degree under ORS
163.365.
{ - (d) - } { + (e) + } Rape in the first degree under ORS
163.375.
{ - (e) - } { + (f) + } Sodomy in the third degree under
ORS 163.385.
{ - (f) - } { + (g) + } Sodomy in the second degree under
ORS 163.395.
{ - (g) - } { + (h) + } Sodomy in the first degree under
ORS 163.405.
{ - (h) - } { + (i) + } Unlawful sexual penetration in the
second degree under ORS 163.408.
{ - (i) - } { + (j) + } Unlawful sexual penetration in the
first degree under ORS 163.411.
{ - (j) - } { + (k) + } Sexual abuse in the second degree
under ORS 163.425.
{ - (k) - } { + (L) + } Sexual abuse in the first degree
under ORS 163.427.
{ - (L) - } { + (m) + } Using a child in a display of
sexual conduct under ORS 163.670.
{ - (m) - } { + (n) + } Encouraging child sexual abuse in
the first degree under ORS 163.684.
{ - (n) - } { + (o) + } Incest under ORS 163.525.
{ - (o) - } { + (p) + } Promoting prostitution under ORS
167.012.
{ - (p) - } { + (q) + } Compelling prostitution under ORS
167.017.
(3) A prosecution for any of the following misdemeanors may be
commenced within four years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 22 years of age or within four
years after the offense is reported to a law enforcement agency
or other governmental agency, whichever occurs first:
(a) Sexual abuse in the third degree under ORS 163.415.
(b) Furnishing obscene materials to minors under ORS 167.065.
(c) Sending obscene materials to minors under ORS 167.070.
(d) Exhibiting an obscene performance to a minor under ORS
167.075.
(e) Displaying obscene materials to minors under ORS 167.080.
(4) In the case of crimes described in subsection
{ - (2)(L) - } { + (2)(m) + } of this section, the 'victim' is
the child engaged in sexual conduct. In the case of the crime
described in subsection
{ - (2)(n) - } { + (2)(o) + } of this section, the 'victim'
is the party to the incest other than the party being prosecuted.
In the case of crimes described in subsection { - (2)(o) and
(p) - } { + (2)(p) and (q) + } of this section, the 'victim' is
the child whose acts of prostitution are promoted or compelled.
(5) A prosecution for arson in any degree may be commenced
within six years after the commission of the crime.
(6) Except as provided in subsection (7) of this section or as
otherwise expressly provided by law, prosecutions for other
offenses must be commenced within the following periods of
limitations after their commission:
(a) For any other felony, three years.
(b) For any misdemeanor, two years.
(c) For a violation, six months.
(7) If the period prescribed in subsection (6) of this section
has expired, a prosecution nevertheless may be commenced as
follows:
(a) If the offense has as a material element either fraud or
the breach of a fiduciary obligation, prosecution may be
commenced within one year after discovery of the offense by an
aggrieved party or by a person who has a legal duty to represent
an aggrieved party and who is not a party to the offense, but in
no case shall the period of limitation otherwise applicable be
extended by more than three years;
(b) If the offense is based upon misconduct in office by a
public officer or employee, prosecution may be commenced at any
time while the defendant is in public office or employment or
within two years thereafter, but in no case shall the period of
limitation otherwise applicable be extended by more than three
years; or
(c) If the offense is an invasion of personal privacy under ORS
163.700, prosecution may be commenced within one year after
discovery of the offense by the person aggrieved by the offense,
by a person who has a legal duty to represent the person
aggrieved by the offense or by a law enforcement agency, but in
no case shall the period of limitation otherwise applicable be
extended by more than three years.
(8) Notwithstanding subsection (2) of this section, a
prosecution for rape in the first or second degree or sodomy in
the first or second degree may be commenced within 12 years after
the commission of the crime if the defendant is identified after
the period described in subsection (2) of this section on the
basis of DNA (deoxyribonucleic acid) sample comparisons.
SECTION 30. ORS 137.225 is amended to read:
137.225. (1)(a) At any time after the lapse of three years from
the date of pronouncement of judgment, any defendant who has
fully complied with and performed the sentence of the court and
whose conviction is described in subsection (5) of this section
by motion may apply to the court wherein that conviction was
entered for entry of an order setting aside the conviction; or
(b) At any time after the lapse of one year from the date of
any arrest, if no accusatory instrument was filed, or at any time
after an acquittal or a dismissal of the charge, the arrested
person may apply to the court which would have jurisdiction over
the crime for which the person was arrested, for entry of an
order setting aside the record of such arrest. For the purpose of
computing the one-year period, time during which the arrested
person has secreted himself or herself within or without the
state shall not be included.
(2)(a) A copy of the motion and a full set of the defendant's
fingerprints shall be served upon the office of the prosecuting
attorney who prosecuted the crime or violation, or who had
authority to prosecute the charge if there was no accusatory
instrument filed, and opportunity be given to contest the motion.
The fingerprint card with the notation 'motion for setting aside
conviction' or 'motion for setting aside arrest record' as the
case may be, shall be forwarded to the Department of State Police
Bureau of Criminal Identification. Information resulting from the
fingerprint search along with the fingerprint card shall be
returned to the prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a
motion to set aside a conviction under this section, the
prosecuting attorney shall provide a copy of the motion and
notice of the hearing date to the victim, if any, of the crime by
mailing a copy of the motion and notice to the victim's
last-known address.
(c) When a person makes a motion under subsection (1)(a) of
this section, the person must pay a fee of $80. The person shall
attach a certified check payable to the Department of State
Police in the amount of $80 to the fingerprint card that is
served upon the prosecuting attorney. The office of the
prosecuting attorney shall forward the check with the fingerprint
card to the Department of State Police Bureau of Criminal
Identification.
(3) Upon hearing the motion, the court may require the filing
of such affidavits and may require the taking of such proofs as
it deems proper. The court shall allow the victim to make a
statement at the hearing. Except as otherwise provided in
subsection (11) of this section, if the court determines that the
circumstances and behavior of the applicant from the date of
conviction, or from the date of arrest as the case may be, to the
date of the hearing on the motion warrant setting aside the
conviction, or the arrest record as the case may be, it shall
enter an appropriate order which shall state the original arrest
charge and the conviction charge, if any and if different from
the original, date of charge, submitting agency and disposition.
The order shall further state that positive identification has
been established by the bureau and further identified as to state
bureau number or submitting agency number. Upon the entry of such
an order, the applicant for purposes of the law shall be deemed
not to have been previously convicted, or arrested as the case
may be, and the court shall issue an order sealing the record of
conviction and other official records in the case, including the
records of arrest whether or not the arrest resulted in a further
criminal proceeding.
(4) The clerk of the court shall forward a certified copy of
the order to such agencies as directed by the court. A certified
copy must be sent to the Department of Corrections when the
person has been in the custody of the Department of Corrections.
Upon entry of such an order, such conviction, arrest or other
proceeding shall be deemed not to have occurred, and the
applicant may answer accordingly any questions relating to their
occurrence.
(5) The provisions of subsection (1)(a) of this section apply
to a conviction of:
(a) A Class C felony, except for criminal mistreatment in the
{ - first - } { + second + } degree under ORS 163.205 when it
would constitute child abuse, as defined in ORS 419B.005, or any
sex crime.
(b) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
(c) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for:
(A) Any sex crime; and
(B) The following crimes when they would constitute child abuse
as defined in ORS 419B.005:
(i) Criminal mistreatment in the { - first - } { +
second + } degree under ORS 163.205; and
(ii) Endangering the welfare of a minor { + in the second
degree + } under ORS 163.575 (1)(a).
(d) A misdemeanor, including a violation of a municipal
ordinance, for which a jail sentence may be imposed, except for
endangering the welfare of a minor { + in the second degree + }
under ORS 163.575 (1)(a) when it would constitute child abuse, as
defined in ORS 419B.005, or any sex crime.
(e) A violation, whether under state law or local ordinance.
(f) An offense committed before January 1, 1972, which if
committed after that date would be:
(A) A Class C felony, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the { - first - } { +
second + } degree under ORS 163.205; and
(ii) Endangering the welfare of a minor { + in the second
degree + } under ORS 163.575 (1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the { - first - } { +
second + } degree under ORS 163.205; and
(ii) Endangering the welfare of a minor { + in the second
degree + } under ORS 163.575 (1)(a).
(C) A misdemeanor, except for endangering the welfare of a
minor { + in the second degree + } under ORS 163.575 (1)(a) when
it would constitute child abuse, as defined in ORS 419B.005, or
any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the
provisions of subsection (1) of this section do not apply to:
(a) A person convicted of, or arrested for, a state or
municipal traffic offense;
(b) A person convicted, within the 10-year period immediately
preceding the filing of the motion pursuant to subsection (1) of
this section, of any other offense, excluding motor vehicle
violations, whether or not the other conviction is for conduct
associated with the same criminal episode that caused the arrest
or conviction that is sought to be set aside. Notwithstanding
subsection (1) of this section, a conviction which has been set
aside under this section shall be considered for the purpose of
determining whether this paragraph is applicable; or
(c) A person who at the time the motion authorized by
subsection (1) of this section is pending before the court is
under charge of commission of any crime.
(7) The provisions of subsection (1)(b) of this section do not
apply to a person arrested within the three-year period
immediately preceding the filing of the motion for any offense,
excluding motor vehicle violations, and excluding arrests for
conduct associated with the same criminal episode that caused the
arrest that is sought to be set aside.
(8) The provisions of subsection (1) of this section apply to
convictions and arrests which occurred before, as well as those
which occurred after, September 9, 1971. There shall be no time
limit for making such application.
(9) For purposes of any civil action in which truth is an
element of a claim for relief or affirmative defense, the
provisions of subsection (3) of this section providing that the
conviction, arrest or other proceeding be deemed not to have
occurred shall not apply and a party may apply to the court for
an order requiring disclosure of the official records in the case
as may be necessary in the interest of justice.
(10) Upon motion of any prosecutor or defendant in a case
involving records sealed under this section, supported by
affidavit showing good cause, the court with jurisdiction may
order the reopening and disclosure of any records sealed under
this section for the limited purpose of assisting the
investigation of the movant. However, such an order shall have no
other effect on the orders setting aside the conviction or the
arrest record.
(11) Unless the court makes written findings by clear and
convincing evidence that granting the motion would not be in the
best interests of justice, the court shall grant the motion and
enter an order as provided in subsection (3) of this section if
the defendant has been convicted of one of the following crimes
and is otherwise eligible for relief under this section:
(a) Abandonment of a child, ORS 163.535.
(b) Attempted assault in the second degree, ORS 163.175.
(c) Assault in the third degree, ORS 163.165.
(d) Coercion, ORS 163.275.
(e) Criminal mistreatment in the { - first - } { +
second + } degree, ORS 163.205.
(f) Attempted escape in the first degree, ORS 162.165.
(g) Incest, ORS 163.525, if the victim was at least 18 years of
age.
(h) Intimidation in the first degree, ORS 166.165.
(i) Attempted kidnapping in the second degree, ORS 163.225.
(j) Criminally negligent homicide, ORS 163.145.
(k) Attempted robbery in the second degree, ORS 164.405.
(L) Robbery in the third degree, ORS 164.395.
(m) Supplying contraband, ORS 162.185.
(n) Unlawful use of a weapon, ORS 166.220.
(12) As used in this section, 'sex crime' has the meaning given
that term in ORS 181.594.
SECTION 31. 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
(C) A sentence of probation will better serve to protect
society.
(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 - } { + third + } 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
(C) That the defendant does not have a previous conviction for
a crime listed in subsection (4) of this section.
(c) If the conviction is for kidnapping in the second degree:
(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;
(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;
(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;
(c) Aggravated murder, as defined in ORS 163.095;
(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 - } { +
second + } 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.
(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.
(c) 'Significant physical injury' means a physical injury that:
(A) Creates a risk of death that is not a remote risk;
(B) Causes a serious and temporary disfigurement;
(C) Causes a protracted disfigurement; or
(D) Causes a prolonged impairment of health or the function of
any bodily organ.
SECTION 32. ORS 342.143 is amended to read:
342.143. (1) No teaching, personnel service or administrative
license shall be issued to any person until the person has
attained the age of 18 years and has furnished satisfactory
evidence of proper educational training.
(2) The Teacher Standards and Practices Commission may also
require an applicant for a teaching, personnel service or
administrative license to furnish evidence satisfactory to the
commission of good moral character, mental and physical health,
and such other evidence as it may deem necessary to establish the
applicant's fitness to serve as a teacher.
(3) Without limiting the powers of the Teacher Standards and
Practices Commission under subsection (2) of this section and
notwithstanding ORS 670.280:
(a) No teaching, personnel service or administrative license or
registration as a public charter school teacher shall be issued
to any person who:
(A) Has been convicted of a crime listed in ORS 163.095,
163.115, 163.185, 163.235, 163.355, 163.365, 163.375, 163.385,
163.395, 163.405, 163.408, 163.411, 163.415, 163.425, 163.427,
163.435, 163.445, 163.465, 163.515, 163.525, 163.547, 163.575,
163.670, 163.675 (1985 Replacement Part), 163.680 (1993 Edition),
163.684, 163.686, 163.687, 163.688, 163.689, 164.325, 164.415,
166.005, 166.087, 167.007, 167.012, 167.017, 167.062, 167.065,
167.070, 167.075, 167.080, 167.087, 167.090, 475.995 or
475.999 { + or section 6 of this 2005 Act + };
(B) Has been convicted under ORS 161.405 of an attempt to
commit any of the crimes listed in subparagraph (A) of this
paragraph; or
(C) Has been convicted in another jurisdiction of a crime that
is substantially equivalent, as defined by rule, to any of the
crimes listed in subparagraphs (A) and (B) of this paragraph.
(b) The Teacher Standards and Practices Commission may refuse
to issue a license or registration to any person who has been
convicted of a crime involving the illegal use, sale or
possession of controlled substances.
(4) In denying the issuance of a license or registration under
this section, the commission shall follow the procedure set forth
in ORS 342.176 and 342.177.
(5) The Department of Education shall provide school districts
and public charter schools a copy of the list contained in
subsection (3) of this section.
SECTION 33. ORS 419A.260 is amended to read:
419A.260. (1) As used in this section and ORS 419A.262:
(a) 'Contact' means any instance in which a person's act or
behavior, or alleged act or behavior, which could result in a
juvenile court's assumption of jurisdiction under ORS 419B.100
(1)(a) to (c) and (f) or 419C.005 comes to the attention of an
agency specified in paragraph (d) of this subsection.
(b) 'Expunction' means:
(A) The removal and destruction or sealing of a judgment or
order related to a contact and all records and references; and
(B) Where a record is kept by the Department of Human Services
or the Oregon Youth Authority, either the sealing of such record
by the department or the Oregon Youth Authority or, in a
multiperson file, the affixing to the front of the file, by the
department or the youth authority, a stamp or statement
identifying the name of the individual, the date of expunction
and instruction that no further reference shall be made to the
material that is subject to the expunction order except upon an
order of a court of competent jurisdiction.
(c) 'Person' includes a person under 18 years of age.
(d) 'Record' includes a fingerprint or photograph file, report,
exhibit or other material which contains information relating to
a person's contact with any law enforcement agency or juvenile
court or juvenile department and is kept manually, through the
use of electronic data processing equipment, or by any other
means by a law enforcement or public investigative agency, a
juvenile court or juvenile department or an agency of the State
of Oregon. 'Record' does not include:
(A) A transcript of a student's Youth Corrections Education
Program academic record;
(B) Material on file with a public agency which is necessary
for obtaining federal financial participation regarding financial
assistance or services on behalf of a person who has had a
contact;
(C) Records kept or disseminated by the Department of
Transportation, State Marine Board and State Fish and Wildlife
Commission pursuant to juvenile or adult order or recommendation;
(D) Police and court records related to an order of waiver
where the matter is still pending in the adult court or on appeal
therefrom, or to any disposition as an adult pursuant to such
order;
(E) Records related to a support obligation;
(F) Medical records;
(G) Records of a proposed or adjudicated termination of
parental rights and adoptions;
(H) Any law enforcement record of a person who currently does
not qualify for expunction or of current investigations or cases
waived to the adult court;
(I) Records and case reports of the Oregon Supreme Court and
the Oregon Court of Appeals;
(J) Any records in cases under ORS 419C.005 in which a juvenile
court found a person to be within the jurisdiction of the court
based upon the person's commission of an act which if done by an
adult would constitute one of the following offenses:
(i) Aggravated murder under ORS 163.095;
(ii) Murder under ORS 163.115;
(iii) Attempt, solicitation or conspiracy to commit murder or
aggravated murder;
(iv) Manslaughter in the first degree under ORS 163.118;
(v) Manslaughter in the second degree under ORS 163.125;
(vi) Criminally negligent homicide under ORS 163.145;
(vii) Assault in the first degree under ORS 163.185;
{ + (viii) Criminal mistreatment in the first degree under
section 2 of this 2005 Act; + }
{ - (viii) - } { + (ix) + } Criminal mistreatment in the
{ - first - } { + second + } degree under ORS 163.205;
{ - (ix) - } { + (x) + } Kidnapping in the first degree
under ORS 163.235;
{ - (x) - } { + (xi) + } Rape in the third degree under ORS
163.355;
{ - (xi) - } { + (xii) + } Rape in the second degree under
ORS 163.365;
{ - (xii) - } { + (xiii) + } Rape in the first degree under
ORS 163.375;
{ - (xiii) - } { + (xiv) + } Sodomy in the third degree
under ORS 163.385;
{ - (xiv) - } { + (xv) + } Sodomy in the second degree
under ORS 163.395;
{ - (xv) - } { + (xvi) + } Sodomy in the first degree under
ORS 163.405;
{ - (xvi) - } { + (xvii) + } Unlawful sexual penetration in
the second degree under ORS 163.408;
{ - (xvii) - } { + (xviii) + } Unlawful sexual penetration
in the first degree under ORS 163.411;
{ - (xviii) - } { + (xix) + } Sexual abuse in the third
degree under ORS 163.415;
{ - (xix) - } { + (xx) + } Sexual abuse in the second
degree under ORS 163.425;
{ - (xx) - } { + (xxi) + } Sexual abuse in the first degree
under ORS 163.427;
{ - (xxi) - } { + (xxii) + } Promoting prostitution under
ORS 167.012;
{ - (xxii) - } { + (xxiii) + } Compelling prostitution
under ORS 167.017; or
{ - (xxiii) - } { + (xxiv) + } An attempt to commit a crime
listed in this subparagraph other than manslaughter in the second
degree and criminally negligent homicide;
(K) Blood samples, buccal samples and other physical evidence
and identification information obtained, stored or maintained by
the Department of State Police under authority of ORS 137.076,
181.085 or 419C.473; or
(L) Records maintained in the Law Enforcement Data System under
ORS 181.592.
(e) 'Termination' means:
(A) For a person who is the subject of a record kept by a
juvenile court or juvenile department, the final disposition of a
case by informal means, by a decision not to place the person on
probation or make the person a ward of the court after the person
has been found to be within the court's jurisdiction, or by a
discontinuance of probation or of the court's wardship.
(B) For a person who is the subject of a record kept by a law
enforcement or public investigative agency, a juvenile court or
juvenile department or an agency of the State of Oregon, the
final disposition of the person's most recent contact with a law
enforcement agency.
(2) The juvenile court or juvenile department shall make
reasonable effort to provide written notice to a child who is
within the court's jurisdiction under ORS 419B.100 (1)(a) to (c)
and (f) or to a youth who is within the court's jurisdiction
under ORS 419C.005, and to the child's or youth's parent, of the
procedures for expunction of a record, the right to counsel under
this chapter, the legal effect of an expunction order and the
procedures for seeking relief from the duty to report as a sex
offender provided under ORS 181.607, at the following times:
(a) At any dispositional hearing or at the time of entering
into a formal accountability agreement;
(b) At the time of termination;
(c) Upon notice to the subject of an expunction pending
pursuant to application of a juvenile department or motion on a
juvenile court; and
(d) At the time of notice of execution of an expunction order.
SECTION 34. ORS 431.840 is amended to read:
431.840. (1) It shall be unlawful to do any of the following:
(a) To distribute free tobacco products to persons under 18
years of age as part of a marketing strategy to encourage the use
of tobacco products.
(b) To fail as a retailer to post a notice substantially
similar to that set forth in subsection (3) of this section in a
location clearly visible to the seller and the purchaser that
sale of tobacco products to persons under 18 years of age is
prohibited.
(c) To sell cigarettes in any form other than a sealed package.
(2) As used in this section 'tobacco products' means bidis,
cigars, cheroots, stogies, periques, granulated, plug cut, crimp
cut, ready rubbed and other smoking tobacco, snuff, snuff flour,
cavendish, plug and twist tobacco, fine-cut and other chewing
tobaccos, shorts, refuse scraps, clippings, cuttings and
sweepings of tobacco and other kinds and forms of tobacco,
prepared in such manner as to be suitable for chewing or smoking
in a pipe or otherwise, or both for chewing and smoking, and
shall include cigarettes as defined in ORS 323.010 (1).
(3) The notice shall be substantially as follows:
_________________________________________________________________
NOTICE
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
The sale of tobacco in any form to persons under 18 years of
age is prohibited by law. Any person who knowingly sells, or
causes to be sold, tobacco to a person under 18 years of age
commits the crime of endangering the welfare of a minor { + in
the second degree + }, pursuant to ORS 163.575.
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