75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2285
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary)
CHAPTER ................
AN ACT
Relating to crime; creating new provisions; amending ORS 40.460,
40.510, 161.610, 161.705, 164.055, 166.210, 166.660, 166.663,
475.235 and 475.860; and repealing section 5, chapter 636,
Oregon Laws 2007.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 475.860 is amended to read:
475.860. (1) It is unlawful for any person to deliver
marijuana.
(2) Unlawful delivery of marijuana is a { + :
(a) + } Class B felony if the delivery is for consideration.
{ + (b) Class C felony if the delivery is for no
consideration. + }
(3) Notwithstanding subsection (2) of this section, unlawful
delivery of marijuana is a:
(a) Class A misdemeanor, if the delivery is for no
consideration and consists of less than one avoirdupois ounce of
the dried leaves, stems and flowers of the plant Cannabis family
Moraceae; or
(b) Violation, if the delivery is for no consideration and
consists of less than five grams of the dried leaves, stems and
flowers of the plant Cannabis family Moraceae. A violation under
this paragraph is punishable by a fine of not less than $500 and
not more than $1,000. Fines collected under this paragraph shall
be forwarded to the Department of Revenue for deposit in the
Criminal Fine and Assessment Account established in ORS 137.300.
(4) Notwithstanding subsections (2) and (3) of this section,
unlawful delivery of marijuana is a:
(a) Class A felony, if the delivery is to a person under 18
years of age and the defendant is at least 18 years of age and is
at least three years older than the person to whom the marijuana
is delivered; or
(b) Class C misdemeanor, if the delivery:
(A) Is for no consideration;
(B) Consists of less than five grams of the dried leaves, stems
and flowers of the plant Cannabis family Moraceae;
(C) Takes place in a public place, as defined in ORS 161.015,
that is within 1,000 feet of the real property comprising a
public or private elementary, secondary or career school attended
primarily by minors; and
(D) Is to a person who is 18 years of age or older.
Enrolled House Bill 2285 (HB 2285-B) Page 1
SECTION 2. ORS 161.705 is amended to read:
161.705. Notwithstanding ORS 161.525, the court may enter
judgment of conviction for a Class A misdemeanor and make
disposition accordingly when:
(1)(a) A person is convicted of any Class C felony;
(b) A person is convicted of a Class B felony pursuant to ORS
475.860 (2) { + (a) + };
(c) A person is convicted of the Class B felony of possession
of marijuana pursuant to ORS 475.864 (2); or
(d) A person convicted of any of the felonies described in
paragraphs (a) to (c) of this subsection, or of a Class A felony
pursuant to ORS 166.720, has successfully completed a sentence of
probation; and
(2) The court, considering the nature and circumstances of the
crime and the history and character of the defendant, believes
that it would be unduly harsh to sentence the defendant for a
felony.
SECTION 3. ORS 166.663 is amended to read:
166.663. (1) { - No person shall - } { + A person may
not + } cast from a motor vehicle an artificial light while there
is in the possession or in the immediate physical presence of the
person a bow and arrow or a rifle, gun, revolver or other
firearm.
(2) Subsection (1) of this section does not apply to a person
casting an artificial light:
(a) From the headlights of a motor vehicle that is being
operated on a road in the usual manner.
(b) When the bow and arrow, rifle, gun, revolver or other
firearm that the person has in the possession or immediate
physical presence of the person is disassembled or stored, or in
the trunk or storage compartment of the motor vehicle.
(c) When the ammunition or arrows are stored separate from the
weapon.
(d) On land owned or lawfully occupied by that person.
(e) On publicly owned land when that person has an agreement
with the public body to use that property.
(f) When the person is a peace officer or government employee
engaged in the performance of official duties.
(g) When the person has been issued a license under ORS 166.291
and 166.292 to carry a concealed weapon.
{ + (3) A peace officer may issue a citation to a person for
a violation of subsection (1) of this section when the violation
is committed in the presence of the peace officer or when the
peace officer has probable cause to believe that a violation has
occurred based on a description of the vehicle or other
information received from a peace officer who observed the
violation. + }
{ - (3) - } { + (4) + } Violation of subsection (1) of this
section is punishable as a Class B violation.
{ + (5) As used in this section, 'peace officer' has the
meaning given that term in ORS 161.015. + }
SECTION 4. ORS 166.210 is amended to read:
166.210. As used in ORS 166.250 to 166.270, 166.291 to 166.295
and 166.410 to 166.470:
(1) 'Antique firearm' means:
(a) Any firearm, including any firearm with a matchlock,
flintlock, percussion cap or similar type of ignition system,
manufactured in or before 1898; and
(b) Any replica of any firearm described in paragraph (a) of
this subsection if the replica:
Enrolled House Bill 2285 (HB 2285-B) Page 2
(A) Is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition; or
(B) Uses rimfire or conventional centerfire fixed ammunition
that is no longer manufactured in the United States and that is
not readily available in the ordinary channels of commercial
trade.
(2) 'Corrections officer' has the meaning given that term in
ORS 181.610.
(3) 'Firearm' means a weapon, by whatever name known, which is
designed to expel a projectile by the action of powder { - and
which is readily capable of use as a weapon - } .
(4) 'Firearms silencer' means any device for silencing,
muffling or diminishing the report of a firearm.
(5) 'Handgun' means any pistol or revolver using a fixed
cartridge containing a propellant charge, primer and projectile,
and designed to be aimed or fired otherwise than from the
shoulder.
(6) 'Machine gun' means a weapon of any description by whatever
name known, loaded or unloaded, which is designed or modified to
allow two or more shots to be fired by a single pressure on the
trigger device.
(7) 'Minor' means a person under 18 years of age.
(8) 'Offense' has the meaning given that term in ORS 161.505.
(9) 'Parole and probation officer' has the meaning given that
term in ORS 181.610.
(10) 'Peace officer' has the meaning given that term in ORS
133.005.
(11) 'Short-barreled rifle' means a rifle having one or more
barrels less than 16 inches in length and any weapon made from a
rifle if the weapon has an overall length of less than 26 inches.
(12) 'Short-barreled shotgun' means a shotgun having one or
more barrels less than 18 inches in length and any weapon made
from a shotgun if the weapon has an overall length of less than
26 inches.
SECTION 5. ORS 161.610 is amended to read:
161.610. (1) As used in this section, 'firearm' { - means a
weapon which is designed to expel a projectile by the action of
black powder or smokeless powder - } { + has the meaning given
that term in ORS 166.210 + }.
(2) The use or threatened use of a firearm, whether operable or
inoperable, by a defendant during the commission of a felony may
be pleaded in the accusatory instrument and proved at trial as an
element in aggravation of the crime as provided in this section.
When a crime is so pleaded, the aggravated nature of the crime
may be indicated by adding the words 'with a firearm' to the
title of the offense. The unaggravated crime shall be considered
a lesser included offense.
(3) Notwithstanding the provisions of ORS 161.605 or 137.010
(3) and except as otherwise provided in subsection (6) of this
section, if a defendant is convicted of a felony having as an
element the defendant's use or threatened use of a firearm during
the commission of the crime, the court shall impose at least the
minimum term of imprisonment as provided in subsection (4) of
this section. Except as provided in ORS 144.122 and 144.126 and
subsection (5) of this section, in no case shall any person
punishable under this section become eligible for work release,
parole, temporary leave or terminal leave until the minimum term
of imprisonment is served, less a period of time equivalent to
any reduction of imprisonment granted for good time served or
Enrolled House Bill 2285 (HB 2285-B) Page 3
time credits earned under ORS 421.121, nor shall the execution of
the sentence imposed upon such person be suspended by the court.
(4) The minimum terms of imprisonment for felonies having as an
element the defendant's use or threatened use of a firearm in the
commission of the crime shall be as follows:
(a) Except as provided in subsection (5) of this section, upon
the first conviction for such felony, five years, except that if
the firearm is a machine gun, short-barreled rifle,
short-barreled shotgun or is equipped with a firearms silencer,
the term of imprisonment shall be 10 years.
(b) Upon conviction for such felony committed after punishment
pursuant to paragraph (a) of this subsection or subsection (5) of
this section, 10 years, except that if the firearm is a machine
gun, short-barreled rifle, short-barreled shotgun or is equipped
with a firearms silencer, the term of imprisonment shall be 20
years.
(c) Upon conviction for such felony committed after
imprisonment pursuant to paragraph (b) of this subsection, 30
years.
(5) If it is the first time that the defendant is subject to
punishment under this section, rather than impose the sentence
otherwise required by subsection (4)(a) of this section, the
court may:
(a) For felonies committed prior to November 1, 1989, suspend
the execution of the sentence or impose a lesser term of
imprisonment, when the court expressly finds mitigating
circumstances justifying such lesser sentence and sets forth
those circumstances in its statement on sentencing; or
(b) For felonies committed on or after November 1, 1989, impose
a lesser sentence in accordance with the rules of the Oregon
Criminal Justice Commission.
(6) When a defendant who is convicted of a felony having as an
element the defendant's use or threatened use of a firearm during
the commission of the crime is a person who was waived from
juvenile court under ORS 137.707 (5)(b)(A), 419C.349, 419C.352,
419C.364 or 419C.370, the court is not required to impose a
minimum term of imprisonment under this section.
SECTION 6. ORS 164.055 is amended to read:
164.055. (1) A person commits the crime of theft in the first
degree if, by other than extortion, the person commits theft as
defined in ORS 164.015 and:
(a) The total value of the property in a single or aggregate
transaction is $200 or more in a case of theft by receiving, and
$750 or more in any other case;
(b) The theft is committed during a riot, fire, explosion,
catastrophe or other emergency in an area affected by the riot,
fire, explosion, catastrophe or other emergency;
(c) The theft is theft by receiving committed by buying,
selling, borrowing or lending on the security of the property;
(d) The subject of the theft is a firearm or explosive;
(e) The subject of the theft is a livestock animal, a companion
animal or a wild animal removed from habitat or born of a wild
animal removed from habitat, pursuant to ORS 497.308 (2)(c); or
(f) The subject of the theft is a precursor substance.
(2) As used in this section:
(a) 'Companion animal' means a dog or cat possessed by a
person, business or other entity for purposes of companionship,
security, hunting, herding or providing assistance in relation to
a physical disability.
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(b) 'Explosive' means a chemical compound, mixture or device
that is commonly used or intended for the purpose of producing a
chemical reaction resulting in a substantially instantaneous
release of gas and heat, including but not limited to dynamite,
blasting powder, nitroglycerin, blasting caps and nitrojelly, but
excluding fireworks as defined in ORS 480.110 (1), black powder,
smokeless powder, small arms ammunition and small arms ammunition
primers.
(c) 'Firearm' { - means a weapon, by whatever name known,
which is designed to expel a projectile by the action of black
powder or smokeless powder and which is readily capable of use as
a weapon - } { + has the meaning given that term in ORS
166.210 + }.
(d) 'Livestock animal' means a ratite, psittacine, horse,
gelding, mare, stallion, colt, mule, ass, jenny, bull, steer,
cow, calf, goat, sheep, lamb, llama, pig or hog.
(e) 'Precursor substance' has the meaning given that term in
ORS 475.940.
(3) Theft in the first degree is a Class C felony.
SECTION 7. ORS 166.660 is amended to read:
166.660. (1) A person commits the crime of unlawful
paramilitary activity if the person:
(a) Exhibits, displays or demonstrates to another person the
use, application or making of any firearm, explosive or
incendiary device or any technique capable of causing injury or
death to persons and intends or knows that such firearm,
explosive or incendiary device or technique will be unlawfully
employed for use in a civil disorder; or
(b) Assembles with one or more other persons for the purpose of
training with, practicing with or being instructed in the use of
any firearm, explosive or incendiary device or technique capable
of causing injury or death to persons with the intent to
unlawfully employ such firearm, explosive or incendiary device or
technique in a civil disorder.
(2)(a) Nothing in this section makes unlawful any act of any
law enforcement officer performed in the otherwise lawful
performance of the officer's official duties.
(b) Nothing in this section makes unlawful any activity of the
State Department of Fish and Wildlife, or any activity intended
to teach or practice self-defense or self-defense techniques,
such as karate clubs or self-defense clinics, and similar lawful
activity, or any facility, program or lawful activity related to
firearms instruction and training intended to teach the safe
handling and use of firearms, or any other lawful sports or
activities related to the individual recreational use or
possession of firearms, including but not limited to hunting
activities, target shooting, self-defense, firearms collection or
any organized activity including, but not limited to any hunting
club, rifle club, rifle range or shooting range which does not
include a conspiracy as defined in ORS 161.450 or the knowledge
of or the intent to cause or further a civil disorder.
(3) Unlawful paramilitary activity is a Class C felony.
(4) As used in this section:
(a) 'Civil disorder' means acts of physical violence by
assemblages of three or more persons which cause damage or
injury, or immediate danger thereof, to the person or property of
any other individual.
(b) 'Firearm' { - means a weapon, by whatever name known,
which is designed to expel a projectile by the action of black
powder or smokeless black powder and which is readily capable of
Enrolled House Bill 2285 (HB 2285-B) Page 5
use as a weapon - } { + has the meaning given that term in ORS
166.210 + }.
(c) 'Explosive' means a chemical compound, mixture or device
that is commonly used or intended for the purpose of producing a
chemical reaction resulting in a substantially instantaneous
release of gas and heat, including but not limited to dynamite,
blasting powder, nitroglycerin, blasting caps and nitrojelly, but
excluding fireworks as defined in ORS 480.110 (1), black powder,
smokeless powder, small arms ammunition and small arms ammunition
primers.
(d) 'Law enforcement officer' means any duly constituted police
officer of the United States, any state, any political
subdivision of a state or the District of Columbia, and also
includes members of the military reserve forces or National Guard
as defined in 10 U.S.C. 101 (9), members of the organized militia
of any state or territory of the United States, the Commonwealth
of Puerto Rico or the District of Columbia not included within
the definition of National Guard as defined by 10 U.S.C. 101 (9),
members of the Armed Forces of the United States and such persons
as are defined in ORS 161.015 (4) when in the performance of
official duties.
SECTION 8. ORS 475.235, as amended by section 2, chapter 636,
Oregon Laws 2007, is amended to read:
475.235. (1) It is not necessary for the state to negate any
exemption or exception in ORS 475.005 to 475.285 and 475.840 to
475.980 in any complaint, information, indictment or other
pleading or in any trial, hearing or other proceeding under ORS
475.005 to 475.285 and 475.840 to 475.980. The burden of proof of
any exemption or exception is upon the person claiming it.
(2) In the absence of proof that a person is the duly
authorized holder of an appropriate registration or order form
issued under ORS 475.005 to 475.285 and 475.840 to 475.980, the
person is presumed not to be the holder of the registration or
form. The burden of proof is upon the person to rebut the
presumption.
(3)(a) When a controlled substance is at issue in a criminal
proceeding before a grand jury, at a preliminary hearing, in a
proceeding on a district attorney's information or for purposes
of an early disposition program, it is prima facie evidence of
the identity of the controlled substance if:
(A) A sample of the controlled substance is tested using a
presumptive test for controlled substances;
(B) The test is conducted by a law enforcement officer trained
to use the test or by a forensic scientist; and
(C) The test is positive for the particular controlled
substance.
(b) When the identity of a controlled substance is established
using a presumptive test for purposes of a criminal proceeding
before a grand jury, a preliminary hearing, a proceeding on a
district attorney's information or an early disposition program,
the defendant, upon notice to the district attorney, may request
that the controlled substance be sent to a state police forensic
laboratory for analysis.
{ + (4) Notwithstanding any other provision of law, in all
prosecutions in which an analysis of a controlled substance or
sample was conducted, a certified copy of the analytical report
signed by the director of a state police forensic laboratory or
the analyst or forensic scientist conducting the analysis shall
be admitted as prima facie evidence of the results of the
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analytical findings unless the defendant has provided notice of
an objection in accordance with subsection (5) of this section.
(5) If the defendant intends to object at trial to the
admission of a certified copy of an analytical report as provided
in subsection (4) of this section, not less than 15 days prior to
trial the defendant shall file written notice of the objection
with the court and serve a copy on the district attorney. + }
{ - (4) - } { + (6) + } As used in this section { - , - }
{ + :
(a) 'Analyst' means a person employed by the Department of
State Police to conduct analysis in forensic laboratories
established by the department under ORS 181.080.
(b) + } 'Presumptive test' includes, but is not limited to,
chemical tests using Marquis reagent, Duquenois-Levine reagent,
Scott reagent system or modified Chen's reagent.
SECTION 9. ORS 40.460, as amended by section 3, chapter 636,
Oregon Laws 2007, is amended to read:
40.460. The following are not excluded by ORS 40.455, even
though the declarant is available as a witness:
(1) (Reserved.)
(2) A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by
the event or condition.
(3) A statement of the declarant's then existing state of mind,
emotion, sensation or physical condition, such as intent, plan,
motive, design, mental feeling, pain or bodily health, but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution,
revocation, identification, or terms of the declarant's will.
(4) Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
(5) A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection
to enable the witness to testify fully and accurately, shown to
have been made or adopted by the witness when the matter was
fresh in the memory of the witness and to reflect that knowledge
correctly. If admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit unless
offered by an adverse party.
(6) A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made
at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice
of that business activity to make the memorandum, report, record,
or data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the source of
information or the method of circumstances of preparation
indicate lack of trustworthiness. The term 'business' as used in
this subsection includes business, institution, association,
profession, occupation, and calling of every kind, whether or not
conducted for profit.
(7) Evidence that a matter is not included in the memoranda,
reports, records, or data compilations, and in any form, kept in
accordance with the provisions of subsection (6) of this section,
to prove the nonoccurrence or nonexistence of the matter, if the
matter was of a kind of which a memorandum, report, record, or
Enrolled House Bill 2285 (HB 2285-B) Page 7
data compilation was regularly made and preserved, unless the
sources of information or other circumstances indicate lack of
trustworthiness.
(8) Records, reports, statements or data compilations, in any
form, of public offices or agencies, including federally
recognized American Indian tribal governments, setting forth:
(a) The activities of the office or agency;
(b) Matters observed pursuant to duty imposed by law as to
which matters there was a duty to report, excluding, in criminal
cases, matters observed by police officers and other law
enforcement personnel; or
(c) In civil actions and proceedings and against the government
in criminal cases, factual findings, resulting from an
investigation made pursuant to authority granted by law, unless
the sources of information or other circumstances indicate lack
of trustworthiness.
(9) Records or data compilations, in any form, of births, fetal
deaths, deaths or marriages, if the report thereof was made to a
public office, including a federally recognized American Indian
tribal government, pursuant to requirements of law.
(10) To prove the absence of a record, report, statement or
data compilation, in any form, or the nonoccurrence or
nonexistence of a matter of which a record, report, statement or
data compilation, in any form, was regularly made and preserved
by a public office or agency, including a federally recognized
American Indian tribal government, evidence in the form of a
certification in accordance with ORS 40.510, or testimony, that
diligent search failed to disclose the record, report, statement
or data compilation, or entry.
(11) Statements of births, marriages, divorces, deaths,
legitimacy, ancestry, relationship by blood or marriage, or other
similar facts of personal or family history, contained in a
regularly kept record of a religious organization.
(12) A statement of fact contained in a certificate that the
maker performed a marriage or other ceremony or administered a
sacrament, made by a member of the clergy, a public official, an
official of a federally recognized American Indian tribal
government or any other person authorized by the rules or
practices of a religious organization or by law to perform the
act certified, and purporting to have been issued at the time of
the act or within a reasonable time thereafter.
(13) Statements of facts concerning personal or family history
contained in family bibles, genealogies, charts, engravings on
rings, inscriptions on family portraits, engravings on urns,
crypts, or tombstones, or the like.
(14) The record of a document purporting to establish or affect
an interest in property, as proof of content of the original
recorded document and its execution and delivery by each person
by whom it purports to have been executed, if the record is a
record of a public office, including a federally recognized
American Indian tribal government, and an applicable statute
authorizes the recording of documents of that kind in that
office.
(15) A statement contained in a document purporting to
establish or affect an interest in property if the matter stated
was relevant to the purpose of the document, unless dealings with
the property since the document was made have been inconsistent
with the truth of the statement or the purport of the document.
(16) Statements in a document in existence 20 years or more the
authenticity of which is established.
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(17) Market quotations, tabulations, lists, directories, or
other published compilations, generally used and relied upon by
the public or by persons in particular occupations.
(18) (Reserved.)
(18a)(a) A complaint of sexual misconduct, complaint of abuse
as defined in ORS 107.705 or 419B.005, complaint of abuse of an
elderly person, as those terms are defined in ORS 124.050, or a
complaint relating to a violation of ORS 163.205 or 164.015 in
which a person 65 years of age or older is the victim, made by
the witness after the commission of the alleged misconduct or
abuse at issue. Except as provided in paragraph (b) of this
subsection, such evidence must be confined to the fact that the
complaint was made.
(b) A statement made by a person concerning an act of abuse as
defined in ORS 107.705 or 419B.005, a statement made by a person
concerning an act of abuse of an elderly person, as those terms
are defined in ORS 124.050, or a statement made by a person
concerning a violation of ORS 163.205 or 164.015 in which a
person 65 years of age or older is the victim, is not excluded by
ORS 40.455 if the declarant either testifies at the proceeding
and is subject to cross-examination, or is unavailable as a
witness but was chronologically or mentally under 12 years of age
when the statement was made or was 65 years of age or older when
the statement was made. However, if a declarant is unavailable,
the statement may be admitted in evidence only if the proponent
establishes that the time, content and circumstances of the
statement provide indicia of reliability, and in a criminal trial
that there is corroborative evidence of the act of abuse and of
the alleged perpetrator's opportunity to participate in the
conduct and that the statement possesses indicia of reliability
as is constitutionally required to be admitted. No statement may
be admitted under this paragraph unless the proponent of the
statement makes known to the adverse party the proponent's
intention to offer the statement and the particulars of the
statement no later than 15 days before trial, except for good
cause shown. For purposes of this paragraph, in addition to those
situations described in ORS 40.465 (1), the declarant shall be
considered 'unavailable' if the declarant has a substantial lack
of memory of the subject matter of the statement, is presently
incompetent to testify, is unable to communicate about the abuse
or sexual conduct because of fear or other similar reason or is
substantially likely, as established by expert testimony, to
suffer lasting severe emotional trauma from testifying. Unless
otherwise agreed by the parties, the court shall examine the
declarant in chambers and on the record or outside the presence
of the jury and on the record. The examination shall be conducted
immediately prior to the commencement of the trial in the
presence of the attorney and the legal guardian or other suitable
person as designated by the court. If the declarant is found to
be unavailable, the court shall then determine the admissibility
of the evidence. The determinations shall be appealable under ORS
138.060 (1)(c) or (2)(a). The purpose of the examination shall be
to aid the court in making its findings regarding the
availability of the declarant as a witness and the reliability of
the statement of the declarant. In determining whether a
statement possesses indicia of reliability under this paragraph,
the court may consider, but is not limited to, the following
factors:
(A) The personal knowledge of the declarant of the event;
Enrolled House Bill 2285 (HB 2285-B) Page 9
(B) The age and maturity of the declarant or extent of
disability if the declarant is a person with a developmental
disability;
(C) Certainty that the statement was made, including the
credibility of the person testifying about the statement and any
motive the person may have to falsify or distort the statement;
(D) Any apparent motive the declarant may have to falsify or
distort the event, including bias, corruption or coercion;
(E) The timing of the statement of the declarant;
(F) Whether more than one person heard the statement;
(G) Whether the declarant was suffering pain or distress when
making the statement;
(H) Whether the declarant's young age or disability makes it
unlikely that the declarant fabricated a statement that
represents a graphic, detailed account beyond the knowledge and
experience of the declarant;
(I) Whether the statement has internal consistency or coherence
and uses terminology appropriate to the declarant's age or to the
extent of the declarant's disability if the declarant is a person
with a developmental disability;
(J) Whether the statement is spontaneous or directly responsive
to questions; and
(K) Whether the statement was elicited by leading questions.
(c) This subsection applies to all civil, criminal and juvenile
proceedings.
(d) This subsection applies to a child declarant, a declarant
who is an elderly person as defined in ORS 124.050 or an adult
declarant with a developmental disability. For the purposes of
this subsection, 'developmental disability' means any disability
attributable to mental retardation, autism, cerebral palsy,
epilepsy or other disabling neurological condition that requires
training or support similar to that required by persons with
mental retardation, if either of the following apply:
(A) The disability originates before the person attains 22
years of age, or if the disability is attributable to mental
retardation the condition is manifested before the person attains
18 years of age, the disability can be expected to continue
indefinitely, and the disability constitutes a substantial
handicap to the ability of the person to function in society.
(B) The disability results in a significant subaverage general
intellectual functioning with concurrent deficits in adaptive
behavior that are manifested during the developmental period.
(19) Reputation among members of a person's family by blood,
adoption or marriage, or among a person's associates, or in the
community, concerning a person's birth, adoption, marriage,
divorce, death, legitimacy, relationship by blood or adoption or
marriage, ancestry, or other similar fact of a person's personal
or family history.
(20) Reputation in a community, arising before the controversy,
as to boundaries of or customs affecting lands in the community,
and reputation as to events of general history important to the
community or state or nation in which located.
(21) Reputation of a person's character among associates of the
person or in the community.
(22) Evidence of a final judgment, entered after a trial or
upon a plea of guilty, but not upon a plea of no contest,
adjudging a person guilty of a crime other than a traffic
offense, to prove any fact essential to sustain the judgment, but
not including, when offered by the government in a criminal
prosecution for purposes other than impeachment, judgments
Enrolled House Bill 2285 (HB 2285-B) Page 10
against persons other than the accused. The pendency of an appeal
may be shown but does not affect admissibility.
(23) Judgments as proof of matters of personal, family or
general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.
(24) Notwithstanding the limits contained in subsection (18a)
of this section, in any proceeding in which a child under 12
years of age at the time of trial, or a person with a
developmental disability as described in subsection (18a)(d) of
this section, may be called as a witness to testify concerning an
act of abuse, as defined in ORS 419B.005, or sexual conduct
performed with or on the child or person with a developmental
disability by another, the testimony of the child or person with
a developmental disability taken by contemporaneous examination
and cross-examination in another place under the supervision of
the trial judge and communicated to the courtroom by
closed-circuit television or other audiovisual means. Testimony
will be allowed as provided in this subsection only if the court
finds that there is a substantial likelihood, established by
expert testimony, that the child or person with a developmental
disability will suffer severe emotional or psychological harm if
required to testify in open court. If the court makes such a
finding, the court, on motion of a party, the child, the person
with a developmental disability or the court in a civil
proceeding, or on motion of the district attorney, the child or
the person with a developmental disability in a criminal or
juvenile proceeding, may order that the testimony of the child or
the person with a developmental disability be taken as described
in this subsection. Only the judge, the attorneys for the
parties, the parties, individuals necessary to operate the
equipment and any individual the court finds would contribute to
the welfare and well-being of the child or person with a
developmental disability may be present during the testimony of
the child or person with a developmental disability.
(25)(a) Any document containing data prepared or recorded by
the Oregon State Police pursuant to ORS 813.160 (1)(b)(C) or
(E) { + , or pursuant to ORS 475.235 (4), + } if the document is
produced by data retrieval from the Law Enforcement Data System
or other computer system maintained and operated by the Oregon
State Police, and the person retrieving the data attests that the
information was retrieved directly from the system and that the
document accurately reflects the data retrieved.
(b) Any document containing data prepared or recorded by the
Oregon State Police that is produced by data retrieval from the
Law Enforcement Data System or other computer system maintained
and operated by the Oregon State Police and that is
electronically transmitted through public or private computer
networks under an electronic signature adopted by the Oregon
State Police if the person receiving the data attests that the
document accurately reflects the data received.
(c) Notwithstanding any statute or rule to the contrary, in any
criminal case in which documents are introduced under the
provisions of this subsection, the defendant may subpoena the
{ + analyst, as defined in ORS 475.235 (6), or other + } person
that generated or keeps the original document for the purpose of
testifying at the preliminary hearing and trial of the issue.
Except as provided in ORS 44.550 to 44.566, no charge shall be
made to the defendant for the appearance of the { + analyst or
other + } person.
Enrolled House Bill 2285 (HB 2285-B) Page 11
(26)(a) A statement that purports to narrate, describe, report
or explain an incident of domestic violence, as defined in ORS
135.230, made by a victim of the domestic violence within 24
hours after the incident occurred, if the statement:
(A) Was recorded, either electronically or in writing, or was
made to a peace officer as defined in ORS 161.015, corrections
officer, youth correction officer, parole and probation officer,
emergency medical technician or firefighter; and
(B) Has sufficient indicia of reliability.
(b) In determining whether a statement has sufficient indicia
of reliability under paragraph (a) of this subsection, the court
shall consider all circumstances surrounding the statement. The
court may consider, but is not limited to, the following factors
in determining whether a statement has sufficient indicia of
reliability:
(A) The personal knowledge of the declarant.
(B) Whether the statement is corroborated by evidence other
than statements that are subject to admission only pursuant to
this subsection.
(C) The timing of the statement.
(D) Whether the statement was elicited by leading questions.
(E) Subsequent statements made by the declarant. Recantation by
a declarant is not sufficient reason for denying admission of a
statement under this subsection in the absence of other factors
indicating unreliability.
(27) A report prepared by a forensic scientist that contains
the results of a presumptive test conducted by the forensic
scientist as described in ORS 475.235, if the forensic scientist
attests that the report accurately reflects the results of the
presumptive test.
(28)(a) A statement not specifically covered by any of the
foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that:
(A) The statement is relevant;
(B) The statement is more probative on the point for which it
is offered than any other evidence that the proponent can procure
through reasonable efforts; and
(C) The general purposes of the Oregon Evidence Code and the
interests of justice will best be served by admission of the
statement into evidence.
(b) A statement may not be admitted under this subsection
unless the proponent of it makes known to the adverse party the
intention to offer the statement and the particulars of it,
including the name and address of the declarant, sufficiently in
advance of the trial or hearing, or as soon as practicable after
it becomes apparent that such statement is probative of the
issues at hand, to provide the adverse party with a fair
opportunity to prepare to meet it.
SECTION 10. ORS 40.510, as amended by section 4, chapter 636,
Oregon Laws 2007, is amended to read:
40.510. (1) Extrinsic evidence of authenticity as a condition
precedent to admissibility is not required with respect to the
following:
(a) A document bearing a seal purporting to be that of the
United States, or of any state, district, commonwealth,
territory, or insular possession thereof, or the Panama Canal
Zone, or the Trust Territory of the Pacific Islands, or of a
political subdivision, department, officer, or agency thereof,
and a signature purporting to be an attestation or execution.
Enrolled House Bill 2285 (HB 2285-B) Page 12
(b) A document purporting to bear the signature, in an official
capacity, of an officer or employee of any entity included in
subsection (1)(a) of this section, having no seal, if a public
officer having a seal and having official duties in the district
or political subdivision of the officer or employee certifies
under seal that the signer has the official capacity and that the
signature is genuine.
(c) A document purporting to be:
(A) Executed or attested in an official capacity by a person
authorized by the laws of a foreign country to make the execution
or attestation; and
(B) Accompanied by a final certification as provided in
subsection (3) of this section as to the genuineness of the
signature and official position of:
(i) The executing or attesting person; or
(ii) Any foreign official whose certificate of genuineness of
signature and official position relates to the execution or
attestation or is in a chain of certificates of genuineness of
signature and official position relating to the execution or
attestation.
(d) A copy of an official record or report or entry therein, or
of a document authorized by law to be recorded or filed and
actually recorded or filed in a public office, including data
compilations in any form, certified as correct by the custodian
or other person authorized to make the certification, by
certificate complying with subsection (1)(a), (b) or (c) of this
section or otherwise complying with any law or rule prescribed by
the Supreme Court.
(e) Books, pamphlets or other publications purporting to be
issued by public authority.
(f) Printed materials purporting to be newspapers or
periodicals.
(g) Inscriptions, signs, tags or labels purporting to have been
affixed in the course of business and indicating ownership,
control or origin.
(h) Documents accompanied by a certificate of acknowledgment
executed in the manner provided by law by a notary public or
other officer authorized by law to take acknowledgments.
(i) Commercial paper, signatures thereon and documents relating
thereto to the extent provided by the Uniform Commercial Code or
ORS chapter 83.
(j) Any signature, documents or other matter declared by law to
be presumptively or prima facie genuine or authentic.
(k)(A) A document bearing a seal purporting to be that of a
federally recognized Indian tribal government or of a political
subdivision, department, officer, or agency thereof, and a
signature purporting to be an attestation or execution.
(B) A document purporting to bear the signature, in an official
capacity, of an officer or employee of any entity included in
subparagraph (A) of this paragraph, having no seal, if a public
officer having a seal and having official duties in the district
or political subdivision or the officer or employee certifies
under seal that the signer has the official capacity and that the
signature is genuine.
(L)(A) Any document containing data prepared or recorded by the
Oregon State Police pursuant to ORS 813.160 (1)(b)(C) or
(E) { + , or pursuant to ORS 475.235 (4), + } if the document is
produced by data retrieval from the Law Enforcement Data System
or other computer system maintained and operated by the Oregon
State Police, and the person retrieving the data attests that the
Enrolled House Bill 2285 (HB 2285-B) Page 13
information was retrieved directly from the system and that the
document accurately reflects the data retrieved.
(B) Any document containing data prepared or recorded by the
Oregon State Police that is produced by data retrieval from the
Law Enforcement Data System or other computer system maintained
and operated by the Oregon State Police and that is
electronically transmitted through public or private computer
networks under an electronic signature adopted by the Oregon
State Police if the person receiving the data attests that the
document accurately reflects the data received.
(m) A report prepared by a forensic scientist that contains the
results of a presumptive test conducted by the forensic scientist
as described in ORS 475.235, if the forensic scientist attests
that the report accurately reflects the results of the
presumptive test.
(2) For the purposes of this section, 'signature' includes any
symbol executed or adopted by a party with present intention to
authenticate a writing.
(3) A final certification for purposes of subsection (1)(c) of
this section may be made by a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent of the
United States, or a diplomatic or consular official of the
foreign country assigned or accredited to the United States. If
reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of official documents,
the court may, for good cause shown, order that they be treated
as presumptively authentic without final certification or permit
them to be evidenced by an attested summary with or without final
certification.
SECTION 11. { + The amendments to ORS 161.610, 161.705,
164.055, 166.210, 166.660, 166.663 and 475.860 by sections 1 to 7
of this 2009 Act apply to conduct occurring on or after the
effective date of this 2009 Act. + }
SECTION 12. { + Section 5, chapter 636, Oregon Laws 2007, is
repealed. + }
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Passed by House May 8, 2009
Repassed by House June 10, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 9, 2009
...........................................................
President of Senate
Enrolled House Bill 2285 (HB 2285-B) Page 14
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2285 (HB 2285-B) Page 15