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 2221
House Bill 3314
Sponsored by COMMITTEE ON JUDICIARY (at the request of Bicycle
Transportation Alliance)
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 offense of infliction of serious physical injury or
death to vulnerable user of public way. Punishes by maximum of
one year's imprisonment, $6,250 fine, or both.
Creates driving diversion agreement.
A BILL FOR AN ACT
Relating to vehicular contact with vulnerable user of a public
way; creating new provisions; and amending ORS 135.905 and
809.411.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2007 Act is added to and made
a part of the Oregon Vehicle Code. + }
SECTION 2. { + (1) For the purposes of this section:
(a) 'Serious physical injury' has the meaning given in ORS
161.015.
(b) 'Vulnerable user of a public way' means a pedestrian, a
person riding an animal or a person operating any of the
following on a public way, crosswalk or shoulder of the highway:
(A) A vehicle registered as a farm vehicle under ORS 805.300
without an enclosed shell;
(B) A skateboard;
(C) Roller skates;
(D) In-line skates; or
(E) A bicycle.
(2) A person commits the offense of infliction of serious
physical injury or death to a vulnerable user of a public way if:
(a) The person operates a motor vehicle upon the highway in a
manner that results in contact between the person's motor vehicle
and a vulnerable user of a public way; and
(b) The contact causes serious physical injury or death to the
vulnerable user of a public way.
(3) The offense described in this section, infliction of
serious physical injury or death to a vulnerable user of a public
way, is a Class A misdemeanor.
(4) In addition to any other penalty, a person convicted of
infliction of serious physical injury or death to a vulnerable
user of a public way is subject to suspension of driving
privileges as provided in ORS 809.411. + }
SECTION 3. ORS 809.411 is amended to read:
809.411. (1)(a) Upon receipt of a record of conviction for an
offense described in this section, the Department of
Transportation shall suspend the driving privileges of the person
convicted.
(b) A person is entitled to administrative review under ORS
809.440 of a suspension under this section.
(c) Except as otherwise provided in subsections (7), (8),
(9) { + , + } { - and - } (10) { + and (11) + } of this
section, the suspension shall be for the period of time described
in Schedule I of ORS 809.428, except that the department may not
reinstate driving privileges of any person whose privileges are
suspended under this section until the person complies with
future responsibility filings.
(2) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of any degree
of recklessly endangering another person, menacing or criminal
mischief resulting from the operation of a motor vehicle.
(3) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of reckless
driving under ORS 811.140.
(4) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of failure to
perform duties of a driver when property is damaged under ORS
811.700.
(5) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of fleeing or
attempting to elude a police officer under ORS 811.540.
(6) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of reckless
endangerment of highway workers under ORS 811.231 (1).
(7) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of theft
under ORS 164.043, 164.045 or 164.055 when the theft was of
gasoline. A suspension under this subsection shall continue for a
period of six months from the date of suspension.
(8) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of criminal
trespass under ORS 164.245 that involves the operation of a motor
vehicle. A suspension under this subsection shall continue for a
period of six months from the date of suspension.
(9) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of an offense
described in ORS 809.310. A suspension under this subsection
shall continue for a period of one year from the date of the
suspension.
(10)(a) The department shall take action under subsection (1)
of this section upon receipt of a record of conviction of assault
in the second, third or fourth degree resulting from the
operation of a motor vehicle.
(b) A person who is convicted of assault in the second degree
and whose driving privileges are suspended under this subsection
may apply for reinstatement of driving privileges eight years
from the date the person is released from incarceration for the
conviction, if the sentence includes incarceration. If the
sentence for the conviction does not include incarceration, the
person may apply for reinstatement of driving privileges eight
years from the date the department suspended the privileges under
this subsection.
(c) A person who is convicted of assault in the third degree
and whose driving privileges are suspended under this subsection
may apply for reinstatement of driving privileges five years from
the date the person is released from incarceration for the
conviction, if the sentence includes incarceration. If the
sentence for the conviction does not include incarceration, the
person may apply for reinstatement of driving privileges five
years from the date the department suspended the privileges under
this subsection.
(d) A person who is convicted of assault in the fourth degree
and whose driving privileges are suspended under this subsection
may apply for reinstatement of driving privileges one year from
the date the person is released from incarceration for the
conviction, if the sentence includes incarceration. If the
sentence for the conviction does not include incarceration, the
person may apply for reinstatement of driving privileges one year
from the date the department suspended the privileges under this
subsection.
{ + (11) The department shall take action under subsection
(1) of this section upon receipt of a record of conviction of
infliction of serious physical injury or death to a vulnerable
user of a public way under section 2 of this 2007 Act. A
suspension under this subsection shall be for the period of time
described in Schedule II of ORS 809.428 unless the person
participates in a driving diversion agreement under section 4 of
this 2007 Act. If the person participates in a driving diversion
agreement, then the period of suspension shall be for the period
of time described in Schedule I of ORS 809.428. + }
SECTION 4. { + (1) The court shall inform at arraignment a
defendant charged with the offense of infliction of serious
physical injury or death to a vulnerable user of a public way
that a driving diversion agreement may be available if the
offense for which the defendant is before the court is the
defendant's first offense of infliction of serious physical
injury or death to a vulnerable user of a public way and the
defendant files with the court a petition for a driving diversion
agreement.
(2) The petition form for a driving diversion agreement shall
be available to a defendant at the court.
(3) The form of the petition for a driving diversion agreement
and the information and blanks contained therein shall be
determined by the Supreme Court under ORS 1.525. The petition
form made available to a defendant by any state court shall
conform to the requirements adopted by the Supreme Court.
(4) In addition to any other information required by the
Supreme Court to be contained in a petition for a driving
diversion agreement, the petition shall include:
(a) A waiver by the defendant of the right to a speedy trial or
sentencing in any subsequent action upon the charge;
(b) An agreement by the defendant to complete a driver
improvement program that includes training in the safe operation
of a motor vehicle when vulnerable users of a public way are in
the vicinity. The driver improvement program shall be conducted
by the Department of Transportation or other rehabilitative
program;
(c) An agreement by the defendant to comply fully with the laws
of this state regarding the operation of a motor vehicle;
(d) An agreement by the defendant to complete a program of
community service approved by the court that includes at least
200 hours of activities related to driver improvement and
providing public education on traffic safety;
(e) A notice to the defendant that the diversion agreement will
be considered to be violated if the court receives notice that
the defendant at any time during the diversion period committed a
violation of the traffic laws of this state;
(f) An agreement by the defendant to keep the court advised of
the defendant's current mailing address at all times during the
diversion period;
(g) An agreement by the defendant to demonstrate to the
department that the defendant is qualified to safely operate a
motor vehicle by completing the procedures in ORS 807.090 for
establishing eligibility for a driver license notwithstanding a
mental or physical condition or impairment; and
(h) A waiver by the defendant of any former jeopardy rights
under the federal and state Constitutions and ORS 131.505 to
131.525 in any subsequent action upon the charge or any other
offenses based upon the same criminal episode. + }
SECTION 5. { + (1) After an accusatory instrument has been
filed charging the defendant with the offense of infliction of
serious physical injury or death to a vulnerable user of a public
way, a defendant may file with the court a petition for a driving
diversion agreement described in section 4 of this 2007 Act. The
petition:
(a) Must be filed within 30 days after the date of the
defendant's first appearance on the summons, unless a later
filing date is allowed by the court upon a showing of good cause.
(b) Notwithstanding paragraph (a) of this subsection, may not
be filed after entry of a guilty plea or a no contest plea or
after commencement of any trial on the charge whether or not a
new trial or retrial is ordered for any reason.
(2) The defendant shall pay to the court, at the time of filing
a petition for a driving diversion agreement, a filing fee as
specified in ORS 135.921. The court may make provision for
payment of the filing fee by the defendant on an installment
basis. The court may waive all or part of the filing fee in cases
involving indigent defendants. The filing fee paid to the court
under this subsection shall be retained by the court if the
petition is allowed. The filing fee shall be distributed as
provided in ORS 135.921.
(3) The defendant shall cause a copy of the petition for a
driving diversion agreement to be served upon the district
attorney. The district attorney may file with the court, within
15 days after the date of service, a written objection to the
petition and a request for a hearing. + }
SECTION 6. { + After the time for requesting a hearing under
section 5 of this 2007 Act has expired with no request for a
hearing, or after a hearing requested under section 5 of this
2007 Act, the court shall allow the petition for a driving
diversion agreement if the court finds that the offense for which
the defendant is before the court is the defendant's first
offense of infliction of serious physical injury or death to a
vulnerable user of a public way. + }
SECTION 7. { + (1) When the court allows a petition for a
driving diversion agreement filed as provided in section 5 of
this 2007 Act, the judge taking that action shall sign the
petition and indicate thereon the date of allowance of the
diversion period, the length of the diversion period and the date
upon which the infliction of serious physical injury or death to
a vulnerable user of a public way offense occurred. The petition,
when signed and dated, becomes the diversion agreement between
the defendant and the court. The court shall make the agreement a
part of the record of the case.
(2) A driving diversion agreement shall be for a period of one
year after the date the court allows the petition. During the
diversion period, the court shall stay the infliction of serious
physical injury or death to a vulnerable user of a public way
offense proceeding pending completion of the diversion agreement
or its termination.
(3) When the court denies a petition for a driving diversion
agreement, it shall continue the offense proceeding against the
defendant. + }
SECTION 8. { + (1) At any time after the conclusion of the
period of a driving diversion agreement described in section 7 of
this 2007 Act, a defendant who has fully complied with and
performed the conditions of the diversion agreement may apply by
motion to the court wherein the diversion agreement was entered
for an order dismissing the charge with prejudice.
(2) The defendant shall cause to be served on the district
attorney a copy of the motion for entry of an order dismissing
with prejudice the charge of infliction of serious physical
injury or death to a vulnerable user of a public way. The motion
shall be served on the district attorney at the time it is filed
with the court. The district attorney may contest the motion.
(3) If the defendant does not appear as provided by subsection
(1) of this section within six months after the conclusion of the
diversion period, and if the court finds that the defendant fully
complied with and performed the conditions of the driving
diversion agreement, and if it gives notice of that finding to
the district attorney, the court may on its own motion enter an
order dismissing the charge of infliction of serious physical
injury or death to a vulnerable user of a public way with
prejudice. + }
SECTION 9. { + (1) At any time before the court dismisses with
prejudice the charge of infliction of serious physical injury or
death to a vulnerable user of a public way, the court on its own
motion or on the motion of the district attorney may issue an
order requiring the defendant to appear and show cause why the
court should not terminate the driving diversion agreement. The
order to show cause shall state the reasons for the proposed
termination and shall set an appearance date.
(2) The order to show cause shall be served on the defendant
and on the defendant's attorney, if any. Service may be made by
first class mail, postage paid, addressed to the defendant at the
mailing address shown on the diversion petition and agreement or
at any other address that the defendant provides in writing to
the court.
(3) The court shall terminate the driving diversion agreement
and continue the offense proceeding if:
(a) At the hearing on the order to show cause, the court finds
by a preponderance of the evidence that any of the reasons for
termination described in this section exist; or
(b) The defendant fails to appear at the hearing on the order
to show cause.
(4) If the court terminates the driving diversion agreement and
continues the offense proceeding, the court:
(a) On the defendant's motion and for good cause shown, may
reinstate the diversion agreement at any time before conviction,
acquittal or dismissal with prejudice.
(b) If the defendant is convicted, may take into account at
time of sentencing any partial fulfillment by the defendant of
the terms of the diversion agreement.
(5) The court shall terminate a driving diversion agreement
under this subsection for any of the following reasons:
(a) If the defendant has failed to fulfill the terms of the
diversion agreement.
(b) If the defendant did not qualify for the diversion
agreement. + }
SECTION 10. ORS 135.905 is amended to read:
135.905. (1) Whenever a defendant accused of committing a crime
participates in a diversion agreement under ORS 135.881 to
135.901 or under ORS 813.210, 813.215, 813.220 and 813.230 { +
or under sections 4 to 9 of this 2007 Act + }, the defendant, as
a condition of the diversion, shall pay the unitary assessment
for which the defendant would have been liable under ORS 137.290
if the defendant had been convicted. The district attorney, or
the city attorney if the case is prosecuted by the city attorney,
shall include in the diversion agreement a provision setting
forth the defendant's obligation. If the diversion is terminated
and criminal proceedings are resumed against defendant, any
payment made by the defendant under this subsection shall be
refunded upon subsequent acquittal of the defendant or dismissal
of the case.
(2) Assessments under this section shall be paid within 90 days
of imposition, unless the court allows payment at a later time.
The assessments shall be paid to the clerk of the court, who
shall account for and distribute the moneys as provided in ORS
137.293 and 137.295.
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