75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
HA to HB 2502
LC 1074/HB 2502-2
HOUSE AMENDMENTS TO
HOUSE BILL 2502
By COMMITTEE ON JUDICIARY
April 29
On page 1 of the printed bill, line 2, after the second
semicolon delete the rest of the line and insert 'amending ORS
131.588, 133.575 and 136.595; and declaring an emergency.'.
Delete lines 4 through 28 and delete page 2 and insert:
' { + SECTION 1. + } { + (1) Notwithstanding ORS 136.557,
136.563, 136.565 or 136.567 and subject to ORS 136.580 (2),
criminal process authorizing or commanding the seizure or
production of papers, documents, records or other things may be
issued to a recipient outside the State of Oregon, regardless of
the location where the recipient receives service or where the
records are physically located, if the court has jurisdiction
over the criminal matter under ORS 131.205 to 131.235.
' (2) Criminal process that authorizes or commands the seizure
or production of papers, documents, records or other things from
a recipient may be served by delivering a copy to the recipient
personally or by sending a copy by mail, facsimile or electronic
transmission if the copy is sent in a manner that allows for
proof of delivery.
' (3) When criminal process is served under subsection (2) of
this section, the recipient shall provide the applicant, or if
the process is described in ORS 136.447 or 136.580 (2), the
court, with all of the papers, documents, records or other things
described in the criminal process within 20 business days from
the date the criminal process is received, unless:
' (a) The court, for good cause shown, includes in the process
a requirement for production within a period of time that is less
than 20 business days;
' (b) The court, for good cause shown, extends the time for
production to a period of time that is more than 20 business
days; or
' (c) The applicant consents to a request from the recipient
for additional time to comply with the process.
' (4) Criminal process issued under this section must contain a
notice on the first page of the document that indicates the date
before which the recipient must respond to the process and that
states that the process was issued under this section.
' (5) A recipient who seeks to quash or otherwise challenge the
criminal process must seek relief from the court that issued the
process within the time required for production. The court shall
hear and decide the issue as soon as practicable. The consent of
the applicant to additional time to comply with the process under
subsection (3)(c) of this section does not extend the date by
which a recipient must seek relief under this subsection.
' (6) Upon order of the court or the written request of the
applicant, the recipient of the process shall verify the
authenticity of the papers, documents, records or other things
that the recipient produces in response to the criminal process
by providing an affidavit or declaration that includes contact
information for the custodian or other qualified person
completing the document and attests to the nature of the papers,
documents, records or other things. An affidavit or declaration
that complies with this subsection satisfies the requirements of
ORS 40.460 (6), 40.505 and 132.320.
' (7) A party that intends to offer a paper, document, record
or other thing into evidence under this section must file written
notice of that intention with the court and must disclose the
affidavit or declaration sufficiently in advance of offering the
paper, document, record or other thing into evidence to provide
the adverse party with an opportunity to challenge the affidavit
or declaration. A motion opposing admission of the paper,
document, record or other thing into evidence must be filed and
determined by the court before trial and with sufficient time to
allow the party offering the paper, document, record or other
thing, if the motion is granted, to produce the custodian of the
record or other qualified person at trial, without creating a
hardship on the party or the custodian or other qualified person.
' (8) Failure by a party to timely file a motion opposing
admission of the paper, document, record or other thing
constitutes a waiver of objection to the admission of the
evidence, unless the court finds good cause to grant relief from
the waiver. If the court grants relief from the waiver, the court
shall order the trial continued upon the request of the proponent
of the evidence and allow the proponent sufficient time to
arrange for the necessary witness to appear.
' (9) A recipient of criminal process under this section or any
individual that responds to the process is immune from civil and
criminal liability for complying with the process and for any
failure to provide notice of any disclosure to a person who is
the subject of, or identified in, the disclosure.
' (10) Nothing in this section limits the authority of a court
to issue criminal process under any other provision of law or
prohibits a party from calling the custodian of the evidence or
other qualified person to testify regarding the evidence.
' (11) As used in this section:
' (a) 'Applicant' means:
' (A) A police officer or district attorney who applies for a
search warrant or other court order or seeks to issue a subpoena
under this section; or
' (B) A defense attorney who applies for a court order or seeks
to issue a subpoena under this section.
' (b) 'Criminal process' means a subpoena, search warrant or
other court order.
' (c) 'Declaration' has the meaning given that term in ORCP 1
E.
' (d) 'Defense attorney' means an attorney of record for a
person charged with a crime who is seeking the issuance of
criminal process for the defense of the criminal case.
' (e) 'Recipient' means a business entity or nonprofit entity
that has conducted business or engaged in transactions occurring
at least in part in this state upon whom criminal process issued
under this section is properly served. + }
' { + SECTION 2. + } ORS 133.575 is amended to read:
' 133.575. (1) { + Except as provided in section 1 of this
2009 Act, + } a search warrant may be executed only within the
period and at the times authorized by the warrant and only by a
police officer. A police officer charged with its execution may
be accompanied by such other persons as may be reasonably
necessary for the successful execution of the warrant with all
practicable safety.
' (2) The executing officer shall, before entering the
premises, give appropriate notice of the identity, authority and
purpose of the officer to the person to be searched, or to the
person in apparent control of the premises to be searched, as the
case may be.
' (3) Except as provided in ORS 133.619, before undertaking any
search or seizure pursuant to the warrant, the executing officer
shall read and give a copy of the warrant to the person to be
searched, or to the person in apparent control of the premises to
be searched. If the premises are unoccupied or there is no one in
apparent control, the officer shall leave a copy of the warrant
suitably affixed to the premises.
' { + SECTION 3. + } ORS 136.595 is amended to read:
' 136.595. (1) Except as provided in ORS 136.447 { + and
section 1 of this 2009 Act + } and { - subsections (2) and
(3) - } { + subsection (2) + } of this section, a subpoena is
served by delivering a copy to the witness personally. Proof of
the service is made in the same manner as in the service of a
summons.
' (2)(a) Every law enforcement agency shall designate an
individual or individuals upon whom service of subpoena may be
made. At least one of the designated individuals shall be
available during normal business hours. In the absence of the
designated individuals, service of subpoena pursuant to paragraph
(b) of this subsection may be made upon the officer in charge of
the law enforcement agency.
' (b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
on the peace officer by delivering a copy personally to the
officer or to one of the individuals designated by the agency
that employs the officer not later than 10 days prior to the date
attendance is sought. A subpoena may be served in this manner
only if the officer is currently employed as a peace officer and
is present within the state at the time of service.
' (c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to actually notify the officer whose attendance
is sought of the date, time and location of the court appearance.
If the officer cannot be notified, the law enforcement agency
shall contact the court and a continuance may be granted to allow
the officer to be personally served.
' (d) As used in this subsection, 'law enforcement agency '
means the Oregon State Police, a county sheriff's department or a
municipal police department.
' { - (3) A subpoena for the production of papers, documents,
records and other tangible things may be served on a corporation
or limited partnership in the manner provided by ORCP 7 D(3) for
the service of a summons. - }
' { - (4) - } { + (3) + } When a subpoena has been served as
provided in { + section 1 of this 2009 Act or + }subsection
(1) { - , - } { + or + } (2) { - or (3) - } of this section
and, subsequent to service, the date on, or the time at, which
the person subpoenaed is to appear has changed, a new subpoena is
not required to be served if:
' (a) The subpoena is continued orally in open court in the
presence of the person subpoenaed; or
' (b) The party who issued the original subpoena notifies the
person subpoenaed of the change by first class mail and by:
' (A) Certified or registered mail, return receipt requested;
or
' (B) Express mail.
' { + SECTION 4. + } ORS 131.588 is amended to read:
' 131.588. (1) If no financial institution has filed the
affidavit described in ORS 131.579 (1), and if the court has
failed to uphold the claim or affidavit of any other person
claiming an interest in the property, the effect of the judgment
is that:
' (a) Title to the property passes to the seizing agency free
of any interest or encumbrance thereon in favor of any person who
has been given notice;
' (b) The seizing agency may transfer good and sufficient title
to any subsequent purchaser or transferee, and all courts, the
state and the departments and agencies of this state, and any
political subdivision shall recognize the title. In the case of
real property, the seizing agency shall warrant the title against
constitutional defect. A warranty under this paragraph is limited
to the purchase price of the real property; and
' (c) Any department, agency or officer of this state or any
political subdivision whose official functions include the
issuance of certificates or other evidence of title is immune
from civil or criminal liability when such issuance is pursuant
to a judgment of criminal forfeiture.
' (2) If an affidavit is filed by a financial institution under
ORS 131.579 (1), or if a person files an affidavit under ORS
131.579 (2):
' (a) The court shall foreclose all security interests, liens
and vendor's interests of financial institutions and claimants as
to which the court determines that there is a legal or equitable
basis for foreclosure; and
' (b) All other interests applicable to the property that are
not foreclosed or otherwise eliminated through a judgment of
foreclosure, if and to the extent that they are valid and
subsisting, remain in effect and the property remains subject to
them upon completion of the criminal forfeiture proceeding.
' (3) Notwithstanding any other provision of law, if a
financial institution or other person has filed an affidavit
described in ORS 131.579, or if the court has upheld the claim of
any claimant, then as to each item of property seized:
' (a) If the court has determined that the property should not
be forfeited and has not foreclosed the security interests, liens
or other interests covering the property, the court shall render
judgment in favor of the owner of the property, the property must
be returned to the owner and all security interests, liens and
other interests applicable to the property remain in effect as
though the property had never been seized. Upon the return of the
property to the owner, the seizing agency shall pay all costs and
expenses relating to towing and storage of the property and shall
cause to be discharged any possessory chattel liens on the
property arising under ORS 87.152 to 87.162 that have attached to
the property since the seizure.
' (b) If the court has determined that the property should not
be forfeited and has foreclosed one or more interests covering
the property, including security interests or liens covering the
property or contracts for the transfer or conveyance of the
property, the seizing agency shall pay all costs and expenses
relating to towing and storage of the property and shall cause to
be discharged any possessory chattel liens on the property
arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure, and the court shall order the
property sold pursuant to a sheriff's sale or other sale
authorized by the court within such time as may be prescribed by
the court following entry of the judgment. If any interests
covering the property have not been foreclosed, including any
liens or security interests of a claimant whose claim has been
upheld, or of a financial institution that has filed the
affidavit described in ORS 131.579, the property must be sold
subject to those interests. The judgment shall order the proceeds
of the sale applied in the following order:
' (A) To the payment of the costs of the sale;
' (B) To the satisfaction of the foreclosed liens, security
interests and contracts in order of their priority; and
' (C) The excess, if any, to the owner of the property.
' (c) If the court has determined that the property should be
forfeited and has foreclosed one or more security interests,
liens, contracts or other interests covering the property, the
seizing agency shall pay all costs and expenses relating to
towing and storage of the property and shall cause to be
discharged any possessory chattel liens on the property arising
under ORS 87.152 to 87.162 that have attached to the property
since the seizure, and the court shall order the property sold
pursuant to a sheriff's sale or other sale authorized by the
court. If any interest in the property was claimed by a financial
institution or other claimant and the interest was upheld but not
foreclosed, the property must be sold subject to the interest.
The sale of the property must be held within such time as may be
prescribed by the court following entry of the judgment. The
judgment shall also order the proceeds of such sale applied in
the following order:
' (A) To the payment of the costs of the sale;
' (B) To the satisfaction of the foreclosed liens, security
interests and contracts in the order of their priority; and
' (C) The excess, if any, to the seizing agency to be disposed
of as provided in ORS 131.594 or 131.597.
' (d) If the court has determined that the property should be
forfeited and has not foreclosed the interests of any party in
the property, the seizing agency shall pay all costs and expenses
relating to towing and storage of the property and shall cause to
be discharged any possessory chattel liens on the property
arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure. The court shall enter a judgment
awarding the property to the seizing agency, subject to the
interests of any claimants whose claims or affidavits were upheld
by the court, and subject to the interests of any financial
institutions that filed affidavits under ORS 131.579 (1), that
remain in full force and effect.
' (4) { + Upon motion of the state, + } the court may include
in the judgment of criminal forfeiture an order that directs the
seizing agency to distribute to the victim of the crime of
conviction a portion of any proceeds from property received by
the seizing agency if { - : - }
' { - (a) The crime of conviction was a person felony or
person Class A misdemeanor as those terms are defined by rule of
the Oregon Criminal Justice Commission; and - }
' { - (b) - } the court included an order of restitution in
the criminal judgment.
' (5) The seizing agency is not liable to any person as a
consequence of obedience to a judgment directing conveyance to a
financial institution.
' (6) The forfeiture counsel shall send a copy of the judgment
to the Asset Forfeiture Oversight Advisory Committee.
' (7)(a) On entry of judgment for a claimant in any proceeding
to forfeit property under ORS 131.550 to 131.600, unless the
court has foreclosed one or more security interests, liens or
other interests covering the property, the property or interest
in property must be returned or conveyed immediately to the
claimant designated by the court.
' (b) If it appears that there was reasonable suspicion that
the property was subject to criminal forfeiture, the court shall
cause a finding to be entered and no claimant or financial
institution is entitled to damages nor is the person who made the
seizure, the seizing agency or forfeiture counsel liable to suit
or judgment on account of the seizure or action. An order
directing seizure issued under ORS 131.561 constitutes a finding
of reasonable suspicion that the property was subject to criminal
forfeiture.
' (8) Nothing in this section prevents a claimant or financial
institution from obtaining any deficiency to which the claimant
or financial institution would otherwise be entitled.
' (9) Nothing in this section or in ORS 131.564 prevents a
seizing agency from entering into an agreement with a claimant or
other person for the reimbursement of the seizing agency for the
costs and expenses relating to towing and storage of property or
the cost of discharging any possessory chattel lien on the
property arising under ORS 87.152 to 87.162 that attached to the
property in the period between the seizure of the property and
the release or criminal forfeiture of the property.
' { + SECTION 5. + } { + 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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