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 1696
House Bill 2314
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary for Oregon Criminal Defense Lawyers Association)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies certain crimes predicated on person's status as felon.
A BILL FOR AN ACT
Relating to felons; creating new provisions; and amending ORS
166.250, 166.270 and 475.900.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 166.250 is amended to read:
166.250. (1) Except as otherwise provided in this section or
ORS 166.260, 166.270, 166.274, 166.291, 166.292 or 166.410 to
166.470, a person commits the crime of unlawful possession of a
firearm if the person knowingly:
(a) Carries any firearm concealed upon the person;
(b) Possesses a handgun that is concealed and readily
accessible to the person within any vehicle; or
(c) Possesses a firearm and:
(A) Is under 18 years of age;
(B)(i) While a minor, was found to be within the jurisdiction
of the juvenile court for having committed an act which, if
committed by an adult, would constitute a felony or a misdemeanor
involving violence, as defined in ORS 166.470; and
(ii) Was discharged from the jurisdiction of the juvenile court
within four years prior to being charged under this section;
(C) Has been convicted of a felony or found guilty { - , - }
except for insanity under ORS 161.295 { - , - } of a
felony { + and the person knew of the conviction or finding at
the time the person possessed the firearm + };
(D) Was committed to the Department of Human Services under ORS
426.130; or
(E) Was found to be mentally ill and subject to an order under
ORS 426.130 that the person be prohibited from purchasing or
possessing a firearm as a result of that mental illness.
(2) This section does not prohibit:
(a) A minor, who is not otherwise prohibited under subsection
(1)(c) of this section, from possessing a firearm:
(A) Other than a handgun, if the firearm was transferred to the
minor by the minor's parent or guardian or by another person with
the consent of the minor's parent or guardian; or
(B) Temporarily for hunting, target practice or any other
lawful purpose; or
(b) Any citizen of the United States over the age of 18 years
who resides in or is temporarily sojourning within this state,
and who is not within the excepted classes prescribed by ORS
166.270 and subsection (1) of this section, from owning,
possessing or keeping within the person's place of residence or
place of business any handgun, and no permit or license to
purchase, own, possess or keep any such firearm at the person's
place of residence or place of business is required of any such
citizen. As used in this subsection, 'residence' includes a
recreational vessel or recreational vehicle while used, for
whatever period of time, as residential quarters.
(3) Firearms carried openly in belt holsters are not concealed
within the meaning of this section.
(4) Unlawful possession of a firearm is a Class A misdemeanor.
SECTION 2. ORS 166.270 is amended to read:
166.270. (1) { + A person commits the crime of felon in
possession of a firearm if the person:
(a) Has been convicted of a felony; and
(b) Possesses a firearm while knowing that the person has been
convicted of a felony. + } { - Any person who has been
convicted of a felony under the law of this state or any other
state, or who has been convicted of a felony under the laws of
the Government of the United States, who owns or has in the
person's possession or under the person's custody or control any
firearm commits the crime of felon in possession of a
firearm. - }
(2) { + A person commits the crime of possession of a
restricted weapon if the person:
(a) Has been convicted of a felony; and
(b) Carries a dirk, dagger or stiletto, or possesses a weapon
described in subsection (3) of this section, while knowing that
the person has been convicted of a felony. + } { - Any person
who has been convicted of a felony under the law of this state or
any other state, or who has been convicted of a felony under the
laws of the Government of the United States, who owns or has in
the person's possession or under the person's custody or
control - }
{ + (3) Subsection (2) of this section applies to:
(a) + } { - Any - } { + An + } instrument or weapon having
a blade that projects or swings into position by force of a
spring or by centrifugal force { + ; + } or
{ + (b) + } { - Any - } { + A + } blackjack, slungshot,
sandclub, sandbag, sap glove or metal knuckles { - , or who
carries a dirk, dagger or stiletto, commits the crime of felon in
possession of a restricted weapon - } .
{ - (3) For the purposes of this section, a person 'has been
convicted of a felony' if, at the time of conviction for an
offense, that offense was a felony under the law of the
jurisdiction in which it was committed. Such conviction shall not
be deemed a conviction of a felony if: - }
{ - (a) The court declared the conviction to be a misdemeanor
at the time of judgment; or - }
{ - (b) The offense was possession of marijuana and the
conviction was prior to January 1, 1972. - }
(4) Subsection (1) of this section does not apply to any person
who has been:
(a) Convicted of only one felony { - under the law of this
state or any other state, or who has been convicted of only one
felony under the laws of the United States, which felony - }
{ + that + } did not involve criminal homicide, as defined in
ORS 163.005, or the possession or use of a firearm or a weapon
having a blade that projects or swings into position by force of
a spring or by centrifugal force, and who has been discharged
from imprisonment, parole or probation for said offense for a
period of 15 years prior to the date of alleged violation of
subsection (1) of this section; or
(b) Granted relief from the disability under 18 U.S.C. 925(c)
or has had the person's record expunged under the laws of this
state or equivalent laws of another jurisdiction.
(5) Felon in possession of a firearm is a Class C felony.
Felon in possession of a restricted weapon is a Class A
misdemeanor.
{ + (6) As used in this section:
(a) 'Has been convicted of a felony' means that a person has
been convicted of an offense that, at the time of the conviction,
was a felony under the law of the jurisdiction in which it was
committed. 'Has been convicted of a felony' does not include a
conviction:
(A) That the court declares to be a misdemeanor; or
(B) For possession of marijuana prior to January 1, 1972.
(b) 'Possesses' means to have physical possession or otherwise
to exercise dominion or control over property. + }
SECTION 3. ORS 475.900 is amended to read:
475.900. (1) A violation of ORS 475.840, 475.846 to 475.894,
475.904 or 475.906 shall be classified as crime category 8 of the
sentencing guidelines grid of the Oregon Criminal Justice
Commission if:
(a) The violation constitutes delivery or manufacture of a
controlled substance and involves substantial quantities of a
controlled substance. For purposes of this paragraph, the
following amounts constitute substantial quantities of the
following controlled substances:
(A) Five grams or more of a mixture or substance containing a
detectable amount of heroin;
(B) Ten grams or more of a mixture or substance containing a
detectable amount of cocaine;
(C) Ten grams or more of a mixture or substance containing a
detectable amount of methamphetamine, its salts, isomers or salts
of its isomers;
(D) One hundred grams or more of a mixture or substance
containing a detectable amount of hashish;
(E) One hundred and fifty grams or more of a mixture or
substance containing a detectable amount of marijuana;
(F) Two hundred or more user units of a mixture or substance
containing a detectable amount of lysergic acid diethylamide;
(G) Sixty grams or more of a mixture or substance containing a
detectable amount of psilocybin or psilocin; or
(H) Five grams or more or 25 or more pills, tablets or capsules
of a mixture or substance containing a detectable amount of:
(i) 3,4-methylenedioxyamphetamine;
(ii) 3,4-methylenedioxymethamphetamine; or
(iii) 3,4-methylenedioxy-N-ethylamphetamine.
(b) The violation constitutes possession, delivery or
manufacture of a controlled substance and the possession,
delivery or manufacture is a commercial drug offense. A
possession, delivery or manufacture is a commercial drug offense
for purposes of this subsection if it is accompanied by at least
three of the following factors:
(A) The delivery was of heroin, cocaine, hashish, marijuana,
methamphetamine, lysergic acid diethylamide, psilocybin or
psilocin and was for consideration;
(B) The offender was in possession of $300 or more in cash;
(C) The offender was unlawfully in possession of a firearm or
other weapon as described in ORS 166.270 { - (2) - } , or the
offender used, attempted to use or threatened to use a deadly or
dangerous weapon as defined in ORS 161.015, or the offender was
in possession of a firearm or other deadly or dangerous weapon as
defined in ORS 161.015 for the purpose of using it in connection
with a controlled substance offense;
(D) The offender was in possession of materials being used for
the packaging of controlled substances such as scales, wrapping
or foil, other than the material being used to contain the
substance that is the subject of the offense;
(E) The offender was in possession of drug transaction records
or customer lists;
(F) The offender was in possession of stolen property;
(G) Modification of structures by painting, wiring, plumbing or
lighting to facilitate a controlled substance offense;
(H) The offender was in possession of manufacturing
paraphernalia, including recipes, precursor chemicals, laboratory
equipment, lighting, ventilating or power generating equipment;
(I) The offender was using public lands for the manufacture of
controlled substances;
(J) The offender had constructed fortifications or had taken
security measures with the potential of injuring persons; or
(K) The offender was in possession of controlled substances in
an amount greater than:
(i) Three grams or more of a mixture or substance containing a
detectable amount of heroin;
(ii) Eight grams or more of a mixture or substance containing a
detectable amount of cocaine;
(iii) Eight grams or more of a mixture or substance containing
a detectable amount of methamphetamine;
(iv) Eight grams or more of a mixture or substance containing a
detectable amount of hashish;
(v) One hundred ten grams or more of a mixture or substance
containing a detectable amount of marijuana;
(vi) Twenty or more user units of a mixture or substance
containing a detectable amount of lysergic acid diethylamide;
(vii) Ten grams or more of a mixture or substance containing a
detectable amount of psilocybin or psilocin; or
(viii) Four grams or more or 20 or more pills, tablets or
capsules of a mixture or substance containing a detectable amount
of:
(I) 3,4-methylenedioxyamphetamine;
(II) 3,4-methylenedioxymethamphetamine; or
(III) 3,4-methylenedioxy-N-ethylamphetamine.
(c) The violation constitutes a violation of ORS 475.848,
475.852, 475.858, 475.862, 475.868, 475.872, 475.878, 475.882,
475.888, 475.892 or 475.904.
(d) The violation constitutes manufacturing methamphetamine and
the manufacturing consists of:
(A) A chemical reaction involving one or more precursor
substances for the purpose of manufacturing methamphetamine; or
(B) Grinding, soaking or otherwise breaking down a precursor
substance for the purpose of manufacturing methamphetamine.
(e) The violation constitutes a violation of ORS 475.860 (4)(a)
or 475.906 (1) or (2).
(2) A violation of ORS 475.840 or 475.846 to 475.894 shall be
classified as crime category 6 of the sentencing guidelines grid
of the Oregon Criminal Justice Commission if:
(a) The violation constitutes delivery of heroin, cocaine,
methamphetamine or 3,4-methylenedioxyamphetamine,
3,4-methylenedioxymethamphetamine or
3,4-methylenedioxy-N-ethylamphetamine and is for consideration.
(b) The violation constitutes possession of:
(A) Five grams or more of a mixture or substance containing a
detectable amount of heroin;
(B) Ten grams or more of a mixture or substance containing a
detectable amount of cocaine;
(C) Ten grams or more of a mixture or substance containing a
detectable amount of methamphetamine;
(D) One hundred grams or more of a mixture or substance
containing a detectable amount of hashish;
(E) One hundred fifty grams or more of a mixture or substance
containing a detectable amount of marijuana;
(F) Two hundred or more user units of a mixture or substance
containing a detectable amount of lysergic acid diethylamide;
(G) Sixty grams or more of a mixture or substance containing a
detectable amount of psilocybin or psilocin; or
(H) Five grams or more or 25 or more pills, tablets or capsules
of a mixture or substance containing a detectable amount of:
(i) 3,4-methylenedioxyamphetamine;
(ii) 3,4-methylenedioxymethamphetamine; or
(iii) 3,4-methylenedioxy-N-ethylamphetamine.
(3) Any felony violation of ORS 475.840 or 475.846 to 475.894
not contained in subsection (1) or (2) of this section shall be
classified as:
(a) Crime category 4 of the sentencing guidelines grid of the
Oregon Criminal Justice Commission if the violation involves
delivery or manufacture of a controlled substance; or
(b) Crime category 1 of the sentencing guidelines grid of the
Oregon Criminal Justice Commission if the violation involves
possession of a controlled substance.
(4) In order to prove a commercial drug offense, the state
shall plead in the accusatory instrument sufficient factors of a
commercial drug offense under subsections (1) and (2) of this
section. The state has the burden of proving each factor beyond a
reasonable doubt.
(5) As used in this section, '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 4. { + The amendments to ORS 166.250, 166.270 and
475.900 by sections 1 to 3 of this 2009 Act apply to conduct
occurring on or after the effective date of this 2009 Act. + }
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