Chapter 194
AN ACT
HB 2138
Relating to pretrial release; amending ORS 135.240.
Be It Enacted by the People of
the State of Oregon:
SECTION 1.
ORS 135.240 is amended to read:
135.240. (1) Except as
provided in subsections (2), (4) and (5) of this section, a defendant shall be
released in accordance with ORS 135.230 to 135.290.
(2)(a) When the
defendant is charged with murder, aggravated murder or treason, release shall
be denied when the proof is evident or the presumption strong that the person
is guilty.
(b) When the defendant
is charged with murder or aggravated murder and the proof is not evident nor
the presumption strong that the defendant is guilty, the court shall determine
the issue of release as provided in subsection (4) of this section. In
determining the issue of release under subsection (4) of this section, the
court may consider any evidence used in making the determination required by
this subsection.
(3) The magistrate may
conduct such hearing as the magistrate considers necessary to determine
whether, under subsection (2) of this section, the proof is evident or the
presumption strong that the person is guilty.
(4)(a) Except as
otherwise provided in subsection (5) of this section, when the defendant is
charged with [a crime listed in ORS
137.700 or 137.707, other than attempt or conspiracy to commit murder or
attempt or conspiracy to commit aggravated murder] a violent felony,
release shall be denied [unless the court
determines by clear and convincing evidence that the defendant will not commit
new criminal offenses while on release.] if the court finds:
(A) Except when the
defendant is charged by indictment, that there is probable cause to believe
that the defendant committed the crime; and
(B) By clear and convincing
evidence, that there is a danger of physical injury or sexual victimization to
the victim or members of the public by the defendant while on release.
(b) If the defendant
wants to have a hearing on the issue of release, the defendant must request the
hearing at the time of arraignment in circuit court. If the defendant requests
a release hearing, the court must hold the hearing within five days of the
request.
(c) At the release
hearing, unless the state stipulates to the setting of security or release, the
court shall [determine whether probable
cause exists to believe the defendant has committed an offense listed in ORS
137.700 or 137.707, other than attempt or conspiracy to commit murder or
attempt or conspiracy to commit aggravated murder, and, if so, whether the
defendant would commit new crimes while on release] make the inquiry set
forth in paragraph (a) of this subsection. The state has the burden of
producing evidence at the release hearing subject to ORS 40.015 (4).
(d) The defendant may be
represented by counsel and may present evidence on any relevant issue. However,
the hearing may not be used for purposes of discovery.
(e) If the court
determines that the defendant [will not
commit new crimes while on release] is eligible for release in accordance
with this subsection, the court shall set security or other appropriate
conditions of release. [If the court does
not determine that the defendant will not commit new crimes while on release,
the court shall deny release.]
(f) When a defendant who
has been released violates a condition of release and the violation:
(A) Constitutes a new
criminal offense, the court shall cause the defendant to be taken back into
custody and shall order the defendant held pending trial without release.
(B) Does not constitute
a new criminal offense, the court may order the defendant to be taken back into
custody, may order the defendant held pending trial and may set a security
amount of not less than $250,000.
(5) If the United States
Constitution or the Oregon Constitution prohibits application of subsection (4)
of this section, then notwithstanding any other provision of law, the court
shall set a security amount of not less than $50,000 for a defendant charged
with [an offense listed in ORS 137.700 or
137.707] a violent felony and may not release the defendant on any
form of release other than a security release. In addition to the security
amount, the court may impose any supervisory conditions deemed necessary for
the protection of the victim and the community. When a defendant who has been
released violates a condition of release and the violation:
(a) Constitutes a new
criminal offense, the court shall cause the defendant to be taken back into
custody, shall order the defendant held pending trial and shall set a security
amount of not less than $250,000.
(b) Does not constitute
a new criminal offense, the court may order the defendant to be taken back into
custody, may order the defendant held pending trial and may set a security
amount of not less than $250,000.
(6) For purposes of
this section, “violent felony” means a felony offense in which there was an
actual or threatened serious physical injury to the victim, or a felony sexual
offense.
Approved by the Governor May 30, 2007
Filed in the office of Secretary of State May 31, 2007
Effective date January 1, 2008
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