74th OREGON LEGISLATIVE ASSEMBLY--2007 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 1020
House Bill 2138
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Attorney General Hardy
Myers for Department of Justice)
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.
Bars pretrial release of defendant charged with violent felony
if defendant presents danger of physical injury or sexual
victimization to victim or public if released.
A BILL FOR AN ACT
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. + }
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