75th OREGON LEGISLATIVE ASSEMBLY--2009 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 209
B-Engrossed
House Bill 2290
Ordered by the Senate June 8
Including House Amendments dated April 30 and Senate Amendments
dated June 8
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House 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.
{ - Allows peace officer to issue citation to person who
casts artificial light from motor vehicle while in physical
presence of bow and arrow or firearm. - }
{ - Adopts uniform definition of 'firearm' for certain
provisions relating to crime. - }
{ - Makes certified copy of certain analytical reports of
analysis of controlled substance or sample prima facie evidence
of results of analysis. - }
{ + Limits length of term of incarceration that may be
imposed for revocation of probation under certain circumstances.
Authorizes reduction in period of probation for persons who
comply with conditions of probation and supervision plan.
Authorizes placement of persons sentenced to term of
incarceration of 12 months or less on inactive post-prison
supervision after certain period of time.
Modifies procedures related to reprieves, commutations and
pardons under certain circumstances.
Punishes possession of controlled substance as Class A
misdemeanor under certain circumstances. Punishes by maximum of
one year's imprisonment, $6,250 fine, or both. Imposes special
assessment of $100 on person convicted of possessing controlled
substance.
Declares emergency, effective on passage. + }
A BILL FOR AN ACT
Relating to crime; creating new provisions; amending ORS 137.545,
475.840, 475.854, 475.874, 475.884 and 475.894; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 137.545 is amended to read:
137.545. (1) Subject to the limitations in ORS 137.010 and to
rules of the Oregon Criminal Justice Commission for felonies
committed on or after November 1, 1989:
(a) The period of probation shall be as the court determines
and may, in the discretion of the court, be continued or
extended.
(b) The court may at any time discharge a person from
probation.
(2) At any time during the probation period, the court may
issue a warrant and cause a defendant to be arrested for
violating any of the conditions of probation. Any parole and
probation officer, police officer or other officer with power of
arrest may arrest a probationer without a warrant for violating
any condition of probation, and a statement by the parole and
probation officer or arresting officer setting forth that the
probationer has, in the judgment of the parole and probation
officer or arresting officer, violated the conditions of
probation is sufficient warrant for the detention of the
probationer in the county jail until the probationer can be
brought before the court or until the parole and probation
officer or supervisory personnel impose and the offender agrees
to structured, intermediate sanctions in accordance with the
rules adopted under ORS 137.595. Disposition shall be made during
the first 36 hours in custody, excluding Saturdays, Sundays and
holidays, unless later disposition is authorized by supervisory
personnel. If authorized by supervisory personnel, the
disposition shall take place in no more than five judicial days.
If the offender does not consent to structured, intermediate
sanctions imposed by the parole and probation officer or
supervisory personnel in accordance with the rules adopted under
ORS 137.595, the parole and probation officer, as soon as
practicable, but within one judicial day, shall report the arrest
or detention to the court that imposed the probation. The parole
and probation officer shall promptly submit to the court a report
showing in what manner the probationer has violated the
conditions of probation.
(3) Except for good cause shown or at the request of the
probationer, the probationer shall be brought before a magistrate
during the first 36 hours of custody, excluding holidays,
Saturdays and Sundays. That magistrate, in the exercise of
discretion, may order the probationer held pending a violation or
revocation hearing or pending transfer to the jurisdiction of
another court where the probation was imposed. In lieu of an
order that the probationer be held, the magistrate may release
the probationer upon the condition that the probationer appear in
court at a later date for a probation violation or revocation
hearing. If the probationer is being held on an out-of-county
warrant, the magistrate may order the probationer released
subject to an additional order to the probationer that the
probationer report within seven calendar days to the court that
imposed the probation.
(4) When a probationer has been sentenced to probation in more
than one county and the probationer is being held on an
out-of-county warrant for a probation violation, the court may
consider consolidation of some or all pending probation violation
proceedings pursuant to rules made and orders issued by the Chief
Justice of the Supreme Court under ORS 137.547:
(a) Upon the motion of the district attorney or defense counsel
in the county in which the probationer is held; or
(b) Upon the court's own motion.
(5)(a) For defendants sentenced for felonies committed prior to
November 1, 1989, and for any misdemeanor, the court that imposed
the probation, after summary hearing, may revoke the probation
and:
(A) If the execution of some other part of the sentence has
been suspended, the court shall cause the rest of the sentence
imposed to be executed.
(B) If no other sentence has been imposed, the court may impose
any other sentence which originally could have been imposed.
(b) For defendants sentenced for felonies committed on or after
November 1, 1989, the court that imposed the probationary
sentence may revoke probation supervision and impose a sanction
as provided by rules of the Oregon Criminal Justice Commission.
{ + If the defendant was sentenced to a presumptive period of
probation or a period of probation following a downward departure
from a presumptive term of incarceration of 12 months or less,
the court may not impose a term of incarceration that exceeds 60
days as a revocation sanction unless the revocation is the result
of the defendant's conviction for a new crime. + }
(6) Except for good cause shown, if the revocation hearing is
not conducted within 14 calendar days following the arrest or
detention of the probationer, the probationer shall be released
from custody.
(7) A defendant who has been previously confined in the county
jail as a condition of probation pursuant to ORS 137.540 or as
part of a probationary sentence pursuant to the rules of the
Oregon Criminal Justice Commission may be given credit for all
time thus served in any order or judgment of confinement
resulting from revocation of probation.
(8) In the case of any defendant whose sentence has been
suspended but who has not been sentenced to probation, the court
may issue a warrant and cause the defendant to be arrested and
brought before the court at any time within the maximum period
for which the defendant might originally have been sentenced.
Thereupon the court, after summary hearing, may revoke the
suspension of sentence and cause the sentence imposed to be
executed.
(9) If a probationer fails to appear or report to a court for
further proceedings as required by an order under subsection (3)
of this section, the failure to appear may be prosecuted in the
county to which the probationer was ordered to appear or report.
(10) The probationer may admit or deny the violation by being
physically present at the hearing or by means of simultaneous
electronic transmission as described in ORS 131.045.
(11)(a) The victim has the right:
(A) Upon request made within the time period prescribed in the
notice required by ORS 147.417, to be notified by the district
attorney of any hearing before the court that may result in the
revocation of the defendant's probation;
(B) To appear personally at the hearing; and
(C) If present, to reasonably express any views relevant to the
issues before the court.
(b) Failure of the district attorney to notify the victim under
paragraph (a) of this subsection or failure of the victim to
appear at the hearing does not affect the validity of the
proceeding.
SECTION 2. { + (1) Each person convicted of a felony and
sentenced to probation under the rules of the Oregon Criminal
Justice Commission is eligible for a reduction in the period of
probation for compliance with the conditions of probation and the
person's supervision plan, as defined by rule of the Department
of Corrections.
(2) The maximum reduction in the period of probation may not
exceed 50 percent of the period of probation imposed by the
court.
(3) The department shall adopt rules to establish a process for
granting, retracting and restoring probation credits earned by
offenders under this section. A community corrections agency
shall comply with the rules adopted under this section. + }
SECTION 3. { + Section 4 of this 2009 Act is added to and made
a part of ORS chapter 144. + }
SECTION 4. { + (1) All persons sentenced to the legal and
physical custody of the supervisory authority under ORS 137.124
(2) shall serve active periods of post-prison supervision as
follows:
(a) Six months of active post-prison supervision for crimes in
crime categories 1 to 3; and
(b) Twelve months of active post-prison supervision for crimes
in crime categories 4 to 10.
(2) Except as authorized in subsections (3) and (4) of this
section, when an offender has served the active period of
post-prison supervision established under subsection (1) of this
section, the supervisory authority shall place the offender on
inactive supervision status.
(3) No sooner than 30 days prior to the expiration of an
offender's active post-prison supervision period as provided in
subsection (1) of this section, the parole and probation officer
responsible for supervising the offender may send to the
supervisory authority a report requesting the supervisory
authority to extend the active post-prison supervision period or
to return the offender to active supervision status, not to
exceed the supervision term imposed by the sentencing court under
the rules of the Oregon Criminal Justice Commission and
applicable laws, if the offender has not substantially fulfilled
the supervision conditions or has failed to complete payment of
restitution. The report shall include:
(a) An evaluation of the offender's compliance with supervision
conditions;
(b) The status of the offender's court-ordered monetary
obligations, including fines and restitution, if any;
(c) The offender's employment status;
(d) The offender's address;
(e) Treatment program outcome;
(f) Any new criminal activity; and
(g) A recommendation that the supervisory authority extend the
supervision period or return the offender to active supervision
status.
(4) After reviewing the report submitted under subsection (3)
of this section, the supervisory authority may extend the active
post-prison supervision period or return the offender to active
supervision status, not to exceed the supervision term imposed by
the sentencing court under the rules of the Oregon Criminal
Justice Commission and applicable laws, if the supervisory
authority finds that the offender has not substantially fulfilled
the supervision conditions or has failed to complete payment of
restitution.
(5) During the pendency of any violation proceedings, the
running of the supervision period and the sentence is stayed, and
the supervisory authority has jurisdiction over the offender
until the proceedings are resolved.
(6) The supervisory authority shall send written notification
to the supervised offender of the expiration of the sentence.
(7) The Department of Corrections may adopt rules to carry out
the provisions of this section. A community corrections agency
shall comply with the rules adopted under this subsection. + }
SECTION 5. { + (1) The provisions of ORS 144.650 and 144.660
do not apply to a reprieve, commutation or pardon granted by the
Governor to a person:
(a) Who is incarcerated for an offense other than a person
felony or person Class A misdemeanor, as those terms are defined
in the rules of the Oregon Criminal Justice Commission;
(b) Who has served at least one-half of the sentence imposed;
(c) Who is subject to an outstanding United States Immigration
and Customs Enforcement final order of removal, deportation or
exclusion;
(d) Who has agreed to waive objections to deportation; and
(e) Whom United States Immigration and Customs Enforcement has
agreed to detain pending the execution of the final order of
removal, deportation or exclusion.
(2) The Governor may:
(a) Enter into a written agreement with United States
Immigration and Customs Enforcement concerning the removal,
deportation or exclusion of persons described in subsection (1)
of this section; and
(b) File a motion in circuit court requesting the appointment
of counsel for a person described in subsection (1) of this
section, for the limited purpose of advising the person regarding
the waiver of any statutory or constitutional rights related to
the state criminal conviction. Upon receipt of the motion, the
court shall appoint counsel for a financially eligible
person. + }
SECTION 6. ORS 475.854 is amended to read:
475.854. (1) It is unlawful for any person knowingly or
intentionally to possess heroin.
(2) { + (a) + } Unlawful possession of heroin is a Class B
felony.
{ + (b) Notwithstanding paragraph (a) of this subsection,
unlawful possession of heroin is a Class A misdemeanor if:
(A) The amount possessed is one-half gram or less of a mixture
or substance containing a detectable amount of heroin; or
(B) The amount possessed is two grams or less of a mixture or
substance containing a detectable amount of heroin and the person
has not previously been convicted of a felony for the unlawful
possession, delivery or manufacture of a controlled
substance. + }
SECTION 7. ORS 475.874 is amended to read:
475.874. (1) It is unlawful for any person knowingly or
intentionally to possess 3,4-methylenedioxymethamphetamine.
(2) { + (a) + } Unlawful possession of
3,4-methylenedioxymethamphetamine is a Class B felony.
{ + (b) Notwithstanding paragraph (a) of this subsection,
unlawful possession of 3,4-methylenedioxymethamphetamine is a
Class A misdemeanor if:
(A) The amount possessed is one-half gram or less of a mixture
or substance containing a detectable amount of
3,4-methylenedioxymethamphetamine; or
(B) The amount possessed is two grams or less of a mixture or
substance containing a detectable amount of
3,4-methylenedioxymethamphetamine and the person has not
previously been convicted of a felony for the unlawful
possession, delivery or manufacture of a controlled
substance. + }
SECTION 8. ORS 475.884 is amended to read:
475.884. (1) It is unlawful for any person knowingly or
intentionally to possess cocaine unless the substance was
obtained directly from, or pursuant to, a valid prescription or
order of a practitioner while acting in the course of
professional practice, or except as otherwise authorized by ORS
475.005 to 475.285 and 475.840 to 475.980.
(2) { + (a) + } Unlawful possession of cocaine is a Class C
felony.
{ + (b) Notwithstanding paragraph (a) of this subsection,
unlawful possession of cocaine is a Class A misdemeanor if:
(A) The amount possessed is one-half gram or less of a mixture
or substance containing a detectable amount of cocaine; or
(B) The amount possessed is two grams or less of a mixture or
substance containing a detectable amount of cocaine and the
person has not previously been convicted of a felony for the
unlawful possession, delivery or manufacture of a controlled
substance. + }
SECTION 9. ORS 475.894 is amended to read:
475.894. (1) It is unlawful for any person knowingly or
intentionally to possess methamphetamine unless the substance was
obtained directly from, or pursuant to, a valid prescription or
order of a practitioner while acting in the course of
professional practice, or except as otherwise authorized by ORS
475.005 to 475.285 and 475.840 to 475.980.
(2) { + (a) + } Unlawful possession of methamphetamine is a
Class C felony.
{ + (b) Notwithstanding paragraph (a) of this subsection,
unlawful possession of methamphetamine is a Class A misdemeanor
if:
(A) The amount possessed is one-half gram or less of a mixture
or substance containing a detectable amount of methamphetamine;
or
(B) The amount possessed is two grams or less of a mixture or
substance containing a detectable amount of methamphetamine and
the person has not previously been convicted of a felony for the
unlawful possession, delivery or manufacture of a controlled
substance. + }
SECTION 10. ORS 475.840 is amended to read:
475.840. (1) Except as authorized by ORS 475.005 to 475.285 and
475.840 to 475.980, it is unlawful for any person to manufacture
or deliver a controlled substance. Any person who violates this
subsection with respect to:
(a) A controlled substance in Schedule I, is guilty of a Class
A felony, except as otherwise provided in ORS 475.860.
(b) A controlled substance in Schedule II, is guilty of a Class
B felony, except as otherwise provided in ORS 475.878, 475.880,
475.882, 475.888, 475.890, 475.892, 475.904 and 475.906.
(c) A controlled substance in Schedule III, is guilty of a
Class C felony, except as otherwise provided in ORS 475.904 and
475.906.
(d) A controlled substance in Schedule IV, is guilty of a Class
B misdemeanor.
(e) A controlled substance in Schedule V, is guilty of a Class
C misdemeanor.
(2) Except as authorized in ORS 475.005 to 475.285 and 475.840
to 475.980, it is unlawful for any person to create or deliver a
counterfeit substance. Any person who violates this subsection
with respect to:
(a) A counterfeit substance in Schedule I, is guilty of a Class
A felony.
(b) A counterfeit substance in Schedule II, is guilty of a
Class B felony.
(c) A counterfeit substance in Schedule III, is guilty of a
Class C felony.
(d) A counterfeit substance in Schedule IV, is guilty of a
Class B misdemeanor.
(e) A counterfeit substance in Schedule V, is guilty of a Class
C misdemeanor.
(3) It is unlawful for any person knowingly or intentionally to
possess a controlled substance unless the substance was obtained
directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of professional practice,
or except as otherwise authorized by ORS 475.005 to 475.285 and
475.840 to 475.980. Any person who violates this subsection with
respect to:
(a) A controlled substance in Schedule I, is guilty of a Class
B felony, except as otherwise provided in ORS 475.864.
(b) A controlled substance in Schedule II, is guilty of a Class
C felony.
(c) A controlled substance in Schedule III, is guilty of a
Class A misdemeanor.
(d) A controlled substance in Schedule IV, is guilty of a Class
C misdemeanor.
(e) A controlled substance in Schedule V, is guilty of a
violation.
{ + (4) Notwithstanding subsection (3)(a) or (b) of this
section, a person who violates subsection (3) of this section
with respect to a controlled substance in Schedule I or II, is
guilty of a Class A misdemeanor if:
(a) The amount possessed is one-half gram or less of a mixture
or substance containing a detectable amount of the controlled
substance; or
(b) The amount possessed is two grams or less of a mixture or
substance containing a detectable amount of the controlled
substance and the person has not previously been convicted of a
felony for the unlawful possession, delivery or manufacture of a
controlled substance. + }
{ - (4) - } { + (5) + } In any prosecution under this
section for manufacture, possession or delivery of that plant of
the genus Lophophora commonly known as peyote, it is an
affirmative defense that the peyote is being used or is intended
for use:
(a) In connection with the good faith practice of a religious
belief;
(b) As directly associated with a religious practice; and
(c) In a manner that is not dangerous to the health of the user
or others who are in the proximity of the user.
{ - (5) - } { + (6) + } The affirmative defense created in
subsection { - (4) - } { + (5) + } of this section is not
available to any person who has possessed or delivered the peyote
while incarcerated in a correctional facility in this state.
SECTION 11. { + When a person is convicted of violating ORS
475.840 (3), 475.854, 475.874, 475.884 or 475.894, the court
shall impose upon the person, in addition to any other monetary
obligation imposed, a special assessment in the amount of $100.
The special assessment shall be deposited in the Oregon Criminal
Justice Commission Account established under ORS 137.662 for
disbursement to drug court programs described in ORS 3.450. + }
SECTION 12. { + (1) The amendments to ORS 137.545 by section 1
of this 2009 Act apply to revocations of probation that occur on
or after the effective date of this 2009 Act.
(2) Section 2 of this 2009 Act applies to persons convicted
before, on or after the effective date of this 2009 Act and who
are on probation on or after the effective date of the rules
adopted by the Department of Corrections under section 2 (3) of
this 2009 Act.
(3) Except as provided in subsection (4) of this section,
section 4 of this 2009 Act applies to persons sentenced to the
legal and physical custody of the supervisory authority under ORS
137.124 (2) who are released on post-prison supervision before,
on or after the effective date of this 2009 Act.
(4)(a) A person sentenced to the legal and physical custody of
the supervisory authority under ORS 137.124 (2) shall serve an
active period of post-prison supervision of at least two
additional months if, on the effective date of this 2009 Act, the
person has served:
(A) Four months or more of active post-prison supervision for
crimes in crime categories 1 to 3; or
(B) Ten months or more of active post-prison supervision for
crimes in crime categories 4 to 10.
(b) Except as provided in paragraph (c) of this subsection, the
supervisory authority shall place an offender described in
paragraph (a) of this subsection on inactive supervision status
on the date that is two months after the effective date of this
2009 Act.
(c) At any time before the date that is two months after the
effective date of this 2009 Act:
(A) The parole and probation officer responsible for
supervising an offender described in paragraph (a) of this
subsection may send a report described in section 4 (3) of this
2009 Act to the supervisory authority for review; and
(B) After reviewing the report, the supervisory authority may
extend the active post-prison supervision period in accordance
with section 4 (4) of this 2009 Act.
(d) Section 4 of this 2009 Act and the provisions of this
subsection do not apply to a person sentenced to the legal and
physical custody of the supervisory authority under ORS 137.124
(2) whose term of supervision imposed by the sentencing court
expires on or before the date that is two months after the
effective date of this 2009 Act.
(5) Section 11 of this 2009 Act and the amendments to ORS
475.840, 475.854, 475.874, 475.884 and 475.894 by sections 6 to
10 of this 2009 Act apply to conduct occurring on or after the
effective date of this 2009 Act. + }
SECTION 13. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
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