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 1323
B-Engrossed
Senate Bill 347
Ordered by the House June 4
Including Senate Amendments dated May 8 and House Amendments
dated
June 4
Sponsored by Senator PROZANSKI (Presession filed.)
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.
{ + Specifies information that district attorney must
disclose to represented defendant regarding prosecutions for
violation of driving under influence of intoxicants. + }
Provides that certain information relating to test instruments
is not discoverable { - or admissible - } in criminal { - or
administrative - } proceeding brought against person whose
breath, blood or urine was tested with instrument to determine
alcoholic content of person's blood { - or to determine
presence of controlled substance or inhalant - } . { + Provides
that driving under influence of intoxicants prosecution may not
be dismissed solely on unavailability of private witness
subpoenaed by defendant with respect to instrument. + }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to test instruments; amending ORS 135.815, 135.855,
136.567 and 419C.270; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 135.815 is amended to read:
135.815. (1) Except as otherwise provided in ORS 135.855 and
135.873, the district attorney shall disclose to a represented
defendant the following material and information within the
possession or control of the district attorney:
(a) The names and addresses of persons whom the district
attorney intends to call as witnesses at any stage of the trial,
together with their relevant written or recorded statements or
memoranda of any oral statements of such persons.
(b) Any written or recorded statements or memoranda of any oral
statements made by the defendant, or made by a codefendant if the
trial is to be a joint one.
(c) Any reports or statements of experts, made in connection
with the particular case, including results of physical or mental
examinations and of scientific tests, experiments or comparisons
which the district attorney intends to offer in evidence at the
trial.
(d) Any books, papers, documents, photographs or tangible
objects:
(A) Which the district attorney intends to offer in evidence at
the trial; or
(B) Which were obtained from or belong to the defendant.
(e) If actually known to the district attorney, any record of
prior criminal convictions of persons whom the district attorney
intends to call as witnesses at the trial; and the district
attorney shall make a good faith effort to determine if such
convictions have occurred.
(f) All prior convictions of the defendant known to the state
that would affect the determination of the defendant's criminal
history for sentencing under rules of the Oregon Criminal Justice
Commission.
{ + (2) Except as otherwise provided in ORS 135.855 and
135.873, in prosecutions for violation of ORS 813.010 in which an
instrument was used to test a person's breath, blood or urine to
determine the alcoholic content of the person's blood the
district attorney shall disclose to a represented defendant at
least the following material and information within the
possession or control of the district attorney:
(a) Any report prepared by a police officer relating to field
tests, interviews, observations and other information relating to
the charged offense;
(b) Any report relating to the test results;
(c) A copy of the form provided to the defendant under ORS
813.100 (3)(b); and
(d) Any checklist prepared by the operator of the instrument
for the test. + }
{ - (2)(a) - } { + (3)(a) + } If a defendant is not
represented by a lawyer, the district attorney shall disclose to
the defendant all of the information described in
{ - subsection (1) - } { + subsections (1) and (2) + } of this
section except for the personal identifiers of the victim and any
witnesses.
(b) Notwithstanding paragraph (a) of this subsection, the
district attorney shall disclose the personal identifiers of the
victim and any witnesses if the trial court orders the
disclosure. A trial court shall order the district attorney to
disclose the personal identifiers of the victim and any witnesses
if the trial court finds that:
(A) The defendant has requested the information; and
(B)(i) The victim or witness is a business or institution and
disclosure of the information would not represent a risk of harm
to the victim or witness; or
(ii) The need for the information cannot reasonably be met by
other means.
{ - (3)(a) - } { + (4)(a) + } Unless authorized by the
trial court to disclose the information, a lawyer representing a
defendant, or a representative of the lawyer, may not disclose to
the defendant personal identifiers of a victim or witness
obtained under
{ - subsection (1) - } { + subsections (1) and (2) + } of
this section.
(b) The trial court shall order the lawyer, or representative
of the lawyer, to disclose to the defendant the personal
identifiers of a victim or witness if the court finds that:
(A) The defendant's lawyer has requested the district attorney
to disclose the information to the defendant;
(B) The district attorney has refused to disclose the
information to the defendant; and
(C) The need for the information cannot reasonably be met by
other means.
{ - (4) - } { + (5) + } As used in this section:
(a) 'Personal identifiers' means a person's address, telephone
number, Social Security number and date of birth and the
identifying number of a person's depository account at a
financial institution, as defined in ORS 706.008, or credit card
account.
(b) 'Representative of the lawyer' has the meaning given that
term in ORS 40.225.
(c) 'Represented defendant' means a defendant who is
represented by a lawyer in a criminal action.
SECTION 2. ORS 135.855 is amended to read:
135.855. (1) The following material and information shall not
be subject to discovery under ORS 135.805 to 135.873:
(a) Work product, legal research, records, correspondence,
reports or memoranda to the extent that they contain the
opinions, theories or conclusions of the attorneys, peace
officers or their agents in connection with the investigation,
prosecution or defense of a criminal action.
(b) The identity of a confidential informant where the identity
of the informant is a prosecution secret and a failure to
disclose will not infringe the constitutional rights of the
defendant. Except as provided in ORS 135.873, disclosure shall
not be denied hereunder of the identity of witnesses to be
produced at trial.
(c) Transcripts, recordings or memoranda of testimony of
witnesses before the grand jury, except transcripts or recordings
of statements made by the defendant.
{ + (d) Schematics, source codes or software of an instrument
that was used to test a person's breath, blood or urine to
determine the alcoholic content of the person's blood that are
not in the actual possession or control of the state. + }
(2) When some parts of certain material are discoverable under
ORS 135.805 to 135.873 or 135.970, and other parts not
discoverable, as much of the material shall be disclosed as is
consistent with the provisions thereof.
SECTION 3. ORS 136.567 is amended to read:
136.567. (1) A defendant in a criminal action is entitled, at
the expense of the state or city, to have subpoenas issued for
not to exceed 10 witnesses within the state. A defendant is
entitled, at the expense of the defendant, to have subpoenas
issued for any number of additional witnesses without an order of
the court. The defendant is responsible for the costs of serving
the subpoenas and for the costs, as provided in ORS 136.602, of
witness per diem and mileage and for expenses allowed under ORS
136.603.
(2) Any subpoena that a defendant in a criminal action is
entitled to have issued shall be issued:
(a) Upon application of the defendant, by the clerk of the
court in which the criminal action is pending for trial, and in
blank, under the seal of the court and subscribed by the clerk;
or
(b) By an attorney of record of the defendant, and subscribed
by the attorney.
{ + (3) A prosecution for violation of ORS 813.010 may not be
dismissed based solely on the unavailability of a witness who was
subpoenaed by the defendant to provide testimony with respect to
an instrument that was used to test a person's breath, blood or
urine to determine the alcoholic content of the person's blood.
This subsection does not apply to the subpoena of an officer or
employee of a public body, as defined in ORS 174.109. + }
SECTION 4. ORS 419C.270 is amended to read:
419C.270. In all proceedings brought under ORS 419C.005, the
following rules of criminal procedure apply:
(1) ORS 133.673, 133.693 and 133.703;
(2) ORS 135.455, 135.465 and 135.470;
(3) ORS 135.610, 135.630 (3) to (6), 135.640 and 135.670;
(4) ORS 135.711, 135.713, 135.715, 135.717, 135.720, 135.725,
135.727, 135.730, 135.733, 135.735, 135.737, 135.740 and 135.743;
(5) ORS 135.805 and 135.815 (1)(a) to (e) { + and (2) + };
(6) ORS 135.825, 135.835, 135.845 and 135.855 to 135.873;
(7) ORS 135.970; and
(8) ORS 136.432, 147.417, 147.419 and 147.421.
SECTION 5. { + This 2007 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2007 Act takes effect on its
passage. + }
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