74th OREGON LEGISLATIVE ASSEMBLY--2008 Special 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 48
A-Engrossed
Senate Bill 1087
Ordered by the Senate February 15
Including Senate Amendments dated February 15
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
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.
{ - Modifies presumptive sentences for certain crimes
committed by persons with previous convictions for specified
crimes. - }
{ - Refers Act to people for their approval or rejection at
next regular general election. - }
{ + Increases term of imprisonment for persons convicted of
specified drug and property crimes under certain circumstances.
Prohibits court from imposing less than presumptive sentence for
persons convicted of specified drug and property crimes under
certain circumstances. Requires Department of Corrections to
provide treatment to certain offenders and to administer grant
program to provide supplemental funding to local governments for
certain purposes.
Refers Act to people for their approval or rejection at next
regular general election. Provides that if both Act and specified
initiative petition receive majority of affirmative votes,
measure receiving fewer affirmative votes is repealed. + }
A BILL FOR AN ACT
Relating to crime; creating new provisions; amending ORS 137.717
and 164.162; and providing that this Act shall be referred to
the people for their approval or rejection.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + The Legislative Assembly finds and declares
that:
(1) The manufacturing and dealing of methamphetamine, heroin,
cocaine and ecstasy are especially damaging to our community.
(2) Many Oregonians are addicted to these drugs. Some of these
drug-addicted persons present a danger to public safety by
committing crimes to feed their addictions.
(3) In order to reduce the risk of future criminal activity,
these drug-addicted offenders need the opportunity to change
their behavior through effective drug treatment.
(4) Sections 2 to 5 and 6 of this 2008 Act and the amendments
to ORS 137.717 and 164.162 by sections 7 and 10 of this 2008 Act
increase the punishment for offenders who commit high-level or
repeat drug and property crimes.
(5) Sections 8 and 9 of this 2008 Act increase the availability
of treatment for drug-addicted offenders and increase punishment
for those drug-addicted offenders who refuse or fail drug
treatment. + }
SECTION 2. { + When a person is convicted of the unlawful
delivery or manufacture of a controlled substance, the court
shall sentence the person to a term of incarceration ranging
from:
(1) 58 months to 130 months, depending on the person's criminal
history, if the delivery or manufacture involves:
(a) 500 grams or more of a mixture or substance containing a
detectable amount of cocaine;
(b) 500 grams or more of a mixture or substance containing a
detectable amount of methamphetamine, its salts, isomers or salts
of its isomers;
(c) 100 grams or more of a mixture or substance containing a
detectable amount of heroin; or
(d) 100 grams or more or 500 or more pills, tablets or capsules
of a mixture or substance containing a detectable amount of
ecstasy.
(2) 34 months to 72 months, depending on the person's criminal
history, if the delivery or manufacture involves:
(a) 100 grams or more of a mixture or substance containing a
detectable amount of cocaine;
(b) 100 grams or more of a mixture or substance containing a
detectable amount of methamphetamine, its salts, isomers or salts
of its isomers;
(c) 50 grams or more of a mixture or substance containing a
detectable amount of heroin; or
(d) 50 grams or more or 250 or more pills, tablets or capsules
of a mixture or substance containing a detectable amount of
ecstasy. + }
SECTION 3. { + (1) When a person is convicted of the unlawful
delivery of cocaine, methamphetamine, heroin or ecstasy to a
person under 18 years of age, the court shall sentence the person
to a term of incarceration ranging from 34 months to 72 months,
depending on the person's criminal history.
(2) The sentence described in subsection (1) of this section
does not apply to a person who is less than three years older
than the person under 18 years of age to whom the controlled
substance was delivered, unless the person has a previous
conviction for delivery of cocaine, methamphetamine, heroin or
ecstasy to a person under 18 years of age. + }
SECTION 4. { + When a person is convicted of aggravated theft
in the first degree under ORS 164.057, the court shall sentence
the person to a term of incarceration ranging from 16 months to
45 months, depending on the person's criminal history, if:
(1) The victim of the theft was 65 years of age or older at the
time of the commission of the offense; and
(2) The value of the property stolen from the victim described
in subsection (1) of this section, in a single or aggregate
transaction, is $10,000 or more. + }
SECTION 5. { + As used in sections 2 to 5 of this 2008 Act:
(1) 'Controlled substance' means:
(a) Cocaine;
(b) Methamphetamine;
(c) Heroin; or
(d) Ecstasy.
(2) 'Ecstasy' means:
(a) 3,4-methylenedioxymethamphetamine;
(b) 3,4-methylenedioxyamphetamine; or
(c) 3,4-methylenedioxy-N-ethylamphetamine.
(3) 'Mixture or substance' means any mixture or substance,
whether or not the mixture or substance is in an ingestible or
marketable form at the time of the offense. + }
SECTION 6. { + (1) When a court sentences a person convicted
of a crime listed in subsection (2) of this section, the court
may not impose a sentence of optional probation or grant a
downward dispositional departure or a downward durational
departure under the rules of the Oregon Criminal Justice
Commission if the person has a previous conviction for any of the
crimes listed in subsection (2) of this section.
(2) The crimes to which subsection (1) of this section applies
are:
(a) Manufacture or delivery of a controlled substance, other
than marijuana, under ORS 475.840 (1);
(b) Creation or delivery of a counterfeit substance, other than
marijuana, under ORS 475.840 (2);
(c) Manufacture or delivery of heroin under ORS 475.846,
475.848, 475.850 or 475.852;
(d) Manufacture or delivery of 3,4-methylenedioxymethamphet-
amine under ORS 475.866, 475.868, 475.870 or 475.872;
(e) Manufacture or delivery of cocaine under ORS 475.876,
475.878, 475.880 or 475.882;
(f) Manufacture or delivery of methamphetamine under ORS
475.886, 475.888, 475.890 or 475.892;
(g) Manufacture or delivery of a controlled substance within
1,000 feet of a school under ORS 475.904;
(h) Delivery of a controlled substance to a person under 18
years of age under ORS 475.906; and
(i) Possession of a precursor substance with intent to
manufacture a controlled substance under ORS 475.967.
(3)(a) For a crime committed on or after November 1, 1989, a
conviction is considered to have occurred upon the pronouncement
in open court of sentence. However, when sentences are imposed
for two or more convictions arising out of the same conduct or
criminal episode, none of the convictions is considered to have
occurred prior to any of the other convictions arising out of the
same conduct or criminal episode.
(b) For a crime committed prior to November 1, 1989, a
conviction is considered to have occurred upon the pronouncement
in open court of a sentence or upon the pronouncement in open
court of the suspended imposition of a sentence.
(4) For purposes of this section, previous convictions must be
proven pursuant to ORS 137.079.
(5) As used in this section, 'previous conviction' means:
(a) Convictions occurring before, on or after the effective
date of this 2008 Act; and
(b) Convictions entered in any other state or federal court for
comparable offenses. + }
SECTION 7. ORS 137.717 is amended to read:
137.717. (1) When a court sentences a person convicted of:
(a) Aggravated theft in the first degree under ORS 164.057,
burglary in the first degree under ORS 164.225 { + , robbery in
the third degree under ORS 164.395, identity theft under ORS
165.800 + } or aggravated identity theft under ORS 165.803, the
presumptive sentence is { - 19 - } { + 24 + } months of
incarceration, unless the rules of the Oregon Criminal Justice
Commission prescribe a longer presumptive sentence, if the person
has:
(A) A previous conviction for aggravated theft in the first
degree under ORS 164.057, burglary in the first degree under ORS
164.225, { + robbery in the third degree under ORS 164.395, + }
robbery in the second degree under ORS 164.405, robbery in the
first degree under ORS 164.415 or aggravated identity theft under
ORS 165.803;
{ - or - }
(B) { - Four - } { + Two + } previous convictions for any
combination of the other crimes listed in subsection (2) of this
section { - . - } { + ; or
(C) A previous conviction for a crime listed in subsection (2)
of this section if the current crime of conviction was committed
less than three years after the date the defendant completed the
period of supervision resulting from the previous conviction. + }
(b) Theft in the first degree under ORS 164.055, unauthorized
use of a vehicle under ORS 164.135, { + mail theft or receipt of
stolen mail under ORS 164.162, + }burglary in the second degree
under ORS 164.215, criminal mischief in the first degree under
ORS 164.365, computer crime under ORS 164.377, forgery in the
first degree under ORS 165.013, { + criminal possession of a
forged instrument in the first degree under ORS 165.022,
fraudulent use of a credit card under ORS 165.055 (4)(b), + }
{ - identity theft under ORS 165.800, - } possession of a
stolen vehicle under ORS 819.300 or trafficking in stolen
vehicles under ORS 819.310, the presumptive sentence is
{ - 13 - } { + 18 + } months of incarceration, unless the
rules of the Oregon Criminal Justice Commission prescribe a
longer presumptive sentence, if the person has:
(A) A previous conviction for aggravated theft in the first
degree under ORS 164.057, unauthorized use of a vehicle under ORS
164.135, burglary in the first degree under ORS 164.225, { +
robbery in the third degree under ORS 164.395, + } robbery in the
second degree under ORS 164.405, robbery in the first degree
under ORS 164.415, possession of a stolen vehicle under ORS
819.300, trafficking in stolen vehicles under ORS 819.310 or
aggravated identity theft under ORS 165.803; { - or - }
(B) { - Four - } { + Two + } previous convictions for any
combination of the other crimes listed in subsection (2) of this
section { - . - } { + ; or + }
{ + (C) A previous conviction for a crime listed in
subsection (2) of this section if the current crime of conviction
was committed less than three years after the date the defendant
completed the period of supervision resulting from the previous
conviction. + }
(2) The crimes to which subsection (1) of this section applies
are:
(a) Theft in the second degree under ORS 164.045;
(b) Theft in the first degree under ORS 164.055;
(c) Aggravated theft in the first degree under ORS 164.057;
(d) Unauthorized use of a vehicle under ORS 164.135;
{ + (e) Mail theft or receipt of stolen mail under ORS
164.162; + }
{ - (e) - } { + (f) + } Burglary in the second degree under
ORS 164.215;
{ - (f) - } { + (g) + } Burglary in the first degree under
ORS 164.225;
{ - (g) - } { + (h) + } Criminal mischief in the second
degree under ORS 164.354;
{ - (h) - } { + (i) + } Criminal mischief in the first
degree under ORS 164.365;
{ - (i) - } { + (j) + } Computer crime under ORS 164.377;
{ - (j) - } { + (k) + } Forgery in the second degree under
ORS 165.007;
{ - (k) - } { + (L) + } Forgery in the first degree under
ORS 165.013;
{ - (L) - } { + (m) + } Criminal possession of a forged
instrument in the second degree under ORS 165.017;
{ - (m) - } { + (n) + } Criminal possession of a forged
instrument in the first degree under ORS 165.022;
{ - (n) - } { + + } { + (o) + } Fraudulent use of a
credit card under ORS 165.055;
{ - (o) - } { + (p) + } Identity theft under ORS 165.800;
{ - (p) - } { + (q) + } Possession of a stolen vehicle
under ORS 819.300;
{ - and - }
{ - (q) - } { + (r) + } Trafficking in stolen vehicles
under ORS 819.310 { - . - } { + ; and
(s) Any attempt to commit a crime listed in this subsection.
(3)(a) A presumptive sentence described in subsection (1) of
this section shall be increased by two months for each previous
conviction the person has that:
(A) Was for any of the crimes listed in subsection (1) or (2)
of this section; and
(B) Was not used as a predicate for the presumptive sentence
under subsection (1) of this section.
(b) Previous convictions may not increase a presumptive
sentence described in subsection (1) of this section by more than
12 months under this subsection. + }
{ - (3) - } { + (4) + } The court may impose a sentence
other than the sentence provided by subsection (1) { + or
(3) + } of this section if the court imposes:
(a) A longer term of incarceration that is otherwise required
or authorized by law; or
(b) A departure sentence authorized by the rules of the Oregon
Criminal Justice Commission based upon findings of substantial
and compelling reasons. Unless the law or the rules of the Oregon
Criminal Justice Commission allow for imposition of a longer
sentence, the maximum departure allowed for a person sentenced
under this subsection is double the presumptive sentence provided
in subsection (1) { + or (3) + } of this section.
{ - (4) As used in this section, 'previous conviction '
includes: - }
{ - (a) Convictions occurring before, on or after July 1,
2003; and - }
{ - (b) Convictions entered in any other state or federal
court for comparable offenses. - }
{ + (5) Notwithstanding subsection (4)(b) of this section,
the court may not sentence a person under subsection (4) of this
section to a term of incarceration that exceeds the period of
time described in ORS 161.605.
(6) The court shall sentence a person under this section to at
least the presumptive sentence described in subsection (1) or (3)
of this section, unless the parties stipulate otherwise or the
court finds that:
(a) The person was not on probation, parole or post-prison
supervision for a crime listed in subsection (1) of this section
at the time of the commission of the current crime of conviction;
(b) The person has not previously received a downward departure
from a presumptive sentence for a crime listed in subsection (1)
of this section;
(c) The harm or loss caused by the crime is not greater than
usual for that type of crime; and
(d) In consideration of the nature of the offense and the harm
to the victim, a downward departure will:
(A) Increase public safety;
(B) Enhance the likelihood that the person will be
rehabilitated; and
(C) Not unduly reduce the appropriate punishment. + }
{ - (5)(a) - } { + (7)(a) + } For a crime committed on or
after November 1, 1989, a conviction is considered to have
occurred upon the pronouncement of sentence in open court.
However, when sentences are imposed for two or more convictions
arising out of the same conduct or criminal episode, none of the
convictions is considered to have occurred prior to any of the
other convictions arising out of the same conduct or criminal
episode.
(b) For a crime committed prior to November 1, 1989, a
conviction is considered to have occurred upon the pronouncement
in open court of a sentence or upon the pronouncement in open
court of the suspended imposition of a sentence.
{ - (6) - } { + (8) + } For purposes of this section,
previous convictions must be proven pursuant to ORS 137.079.
{ + (9) As used in this section:
(a) 'Downward departure' means a downward dispositional
departure or a downward durational departure under the rules of
the Oregon Criminal Justice Commission.
(b) 'Previous conviction' includes:
(A) Convictions occurring before, on or after July 1, 2003; and
(B) Convictions entered in any other state or federal court for
comparable offenses. + }
SECTION 8. { + (1) The Department of Corrections shall:
(a) Provide appropriate treatment services to drug-addicted
persons in the custody of the department who are at a high or
medium risk of reoffending and who have moderate to severe
treatment needs; and
(b) Make grants to counties in order to provide supplemental
funding for:
(A) The operation of local jails;
(B) Appropriate treatment services for drug-addicted persons on
probation, parole or post-prison supervision; or
(C) The intensive supervision of drug-addicted persons on
probation, parole or post-prison supervision, including the
incarceration of drug-addicted persons who have violated the
terms and conditions of probation, parole or post-prison
supervision.
(2) The Oregon Criminal Justice Commission shall make grants to
counties in order to provide supplemental funding for drug courts
for drug-addicted persons, including the costs of appropriate
treatment services and the incarceration of persons who have
violated the terms and conditions of a drug court.
(3)(a) The appropriate legislative committee shall periodically
conduct oversight hearings on the effectiveness of this section.
(b) The Oregon Criminal Justice Commission shall periodically
conduct independent evaluations of the programs funded by this
section for their effectiveness in reducing criminal behavior in
a cost-effective manner.
(4) This section does not create any claim, right of action or
civil liability.
(5) The decision to order treatment is within the discretion of
the court. + }
SECTION 9. { + If a person on probation, parole or post-prison
supervision is required to successfully complete a drug or
alcohol treatment program as a condition of supervision and the
person refuses or otherwise fails to successfully complete the
treatment program, the court or the supervising authority shall
impose swift and certain punishment, including incarceration in
jail. + }
SECTION 10. ORS 164.162 is amended to read:
164.162. (1) A person commits the crime of mail theft or
receipt of stolen mail if the person intentionally:
(a) Takes or, by fraud or deception, obtains mail from a post
office, postal station, mail receptacle, authorized depository or
mail carrier;
(b) Takes from mail any article contained therein;
(c) Secretes, embezzles or destroys mail or any article
contained therein;
(d) Takes or, by fraud or deception, obtains mail that has been
delivered to or left for collection on or adjacent to a mail
receptacle or authorized depository; or
(e) Buys, receives, conceals or possesses mail or any article
contained therein knowing that the mail or article has been
unlawfully taken or obtained.
(2) Mail theft or receipt of stolen mail is a Class { + C
felony + }
{ - A misdemeanor - } .
SECTION 11. { + (1) When a court sentences a person under
sections 2 to 5 of this 2008 Act:
(a) The court shall use the criminal history scale of the
sentencing guidelines grid of the Oregon Criminal Justice
Commission to determine the sentence to impose. The sentence
described in:
(A) Section 2 (1) of this 2008 Act shall be determined
utilizing crime category 10 of the sentencing guidelines grid.
(B) Sections 2 (2) and 3 (1) of this 2008 Act shall be
determined utilizing crime category 9 of the sentencing
guidelines grid.
(C) Section 4 of this 2008 Act shall be determined utilizing
crime category 8 of the sentencing guidelines grid.
(b)(A) Notwithstanding ORS 161.605, the court shall impose the
sentence described in sections 2 to 5 of this 2008 Act and may
not impose a sentence of optional probation or grant a downward
dispositional departure or a downward durational departure under
the rules of the commission.
(B) The court may impose a sentence other than the sentence
described in sections 2 to 5 of this 2008 Act if the court
imposes a longer term of incarceration that is otherwise required
or authorized by law.
(2) A person sentenced under sections 2 to 5 of this 2008 Act
may not receive a reduction in the term of incarceration for
appropriate institutional behavior that exceeds 20 percent of the
sentence imposed. + }
SECTION 12. { + (1) Sections 1 to 6 and 11 of this 2008 Act
and the amendments to ORS 137.717 and 164.162 by sections 7 and
10 of this 2008 Act become operative on January 1, 2009.
(2) Sections 2 to 6 and 11 of this 2008 Act and the amendments
to ORS 137.717 and 164.162 by sections 7 and 10 of this 2008 Act
apply to sentences imposed for crimes committed on or after
January 1, 2009.
(3) Sections 8 and 9 of this 2008 Act become operative on July
1, 2009. + }
SECTION 13. { + If Initiative Petition 40 (2008) is placed on
the ballot at the next regular general election held throughout
this state on November 4, 2008, and both Initiative Petition 40
(2008) and this 2008 Act are enacted or approved by a majority of
the votes cast thereon:
(1) Sections 1 to 6, 8, 9, 11 and 12 of this 2008 Act and the
amendments to ORS 137.717 and 164.162 by sections 7 and 10 of
this 2008 Act are repealed if Initiative Petition 40 (2008)
receives a number of affirmative votes greater than the number of
affirmative votes received by this 2008 Act; or
(2) The preamble and sections 1 to 8 of Initiative Petition 40
(2008) are repealed if this 2008 Act receives a number of
affirmative votes greater than the number of affirmative votes
received by Initiative Petition 40 (2008). + }
SECTION 14. { + This 2008 Act shall be submitted to the people
for their approval or rejection at the next regular general
election held throughout this state. + }
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