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 2889
 
                         House Bill 3102
 
Sponsored by Representative THOMPSON
 
 
                             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.
 
  Requires court to impose 300-month term of imprisonment for
persons convicted more than once of certain felony sexual
offenses.
  Modifies circumstances under which driving while under
influence of intoxicants is elevated to felony. Requires court to
impose term of incarceration of at least 90 days for person
convicted of elevated offense.
 
                        A BILL FOR AN ACT
Relating to crime; creating new provisions; and amending ORS
  813.010, 813.020, 813.215 and 813.220.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) Notwithstanding ORS 161.605, when a court
sentences a person convicted of a crime described in subsection
(3) of this section, the court shall impose a term of
imprisonment of 300 months if the person has a previous
conviction for:
  (a) A crime described in subsection (3) of this section; or
  (b) A statutory counterpart in another jurisdiction to a crime
described in subsection (3) of this section.
  (2) A person sentenced under this section is not, during the
service of the term of imprisonment, eligible for release on
post-prison supervision, any form of temporary leave from custody
or any reduction in the term of imprisonment under ORS 421.121 or
any other statute.
  (3) The crimes to which subsection (1) of this section applies
are:
  (a) Rape in the first degree, as defined in ORS 163.375.
  (b) Sodomy in the first degree, as defined in ORS 163.405.
  (c) Unlawful sexual penetration in the first degree, as defined
in ORS 163.411.
  (d) Using a child in a display of sexually explicit conduct, as
defined in ORS 163.670.
  (4) As used in this section, 'previous conviction' means a
conviction that was entered prior to imposing sentence on the
current crime of conviction, provided that the prior conviction
is based on a crime committed in a separate criminal episode as
defined in ORS 131.505. + }
  SECTION 2. ORS 813.010 is amended to read:
 
 
  813.010. (1) A person commits the offense of driving while
under the influence of intoxicants if the person drives a vehicle
while the person:
  (a) Has 0.08 percent or more by weight of alcohol in the blood
of the person as shown by chemical analysis of the breath or
blood of the person made under ORS 813.100, 813.140 or 813.150;
  (b) Is under the influence of intoxicating liquor, a controlled
substance or an inhalant; or
  (c) Is under the influence of any combination of intoxicating
liquor, an inhalant and a controlled substance.
  (2) A person may not be convicted of driving while under the
influence of intoxicants on the basis of being under the
influence of a controlled substance or an inhalant unless the
fact that the person was under the influence of a controlled
substance or an inhalant is pleaded in the accusatory instrument
and is either proved at trial or is admitted by the person
through a guilty plea.
  (3) A person convicted of the offense described in this section
is subject to ORS 813.020 in addition to this section.
  (4) Except as provided in subsection (5) of this section, the
offense described in this section, driving while under the
influence of intoxicants, is a Class A misdemeanor and is
applicable upon any premises open to the public.
    { - (5)(a) - }  { +  (5) + } Driving while under the
influence of intoxicants is a Class C felony if { + :
  (a) + } The current offense was committed in a motor vehicle
and the defendant has been convicted, at least   { - three - }
 { +  two + } times in the 10 years prior to the date of the
current offense, of any of the   { - following offenses in any
combination: - }  { +  offenses described in subsection (6) of
this section; or
  (b) The defendant has a prior conviction for a felony offense
described in subsection (6) of this section.
  (6)(a) The offenses to which subsection (5) of this section
applies are: + }
  (A) Driving while under the influence of intoxicants in
violation of:
  (i) This section; or
  (ii) The statutory counterpart to this section in another
jurisdiction.
  (B) A driving under the influence of intoxicants offense in
another jurisdiction that involved the impaired driving or
operation of a vehicle, an aircraft or a boat due to the use of
intoxicating liquor, a controlled substance, an inhalant or any
combination thereof.
  (C) A driving offense in another jurisdiction that involved
operating a vehicle, an aircraft or a boat while having a blood
alcohol content above that jurisdiction's permissible blood
alcohol content.
  (b) For the purposes of paragraph (a) of this subsection, a
conviction for a driving offense in another jurisdiction based
solely on a person under 21 years of age having a blood alcohol
content that is lower than the permissible blood alcohol content
in that jurisdiction for a person 21 years of age or older does
not constitute a prior conviction.
    { - (6) - }  { +  (7) + } In addition to any other sentence
that may be imposed, the court shall impose a fine on a person
convicted of driving while under the influence of intoxicants as
follows:
  (a) For a person's first conviction, a minimum of $1,000.
  (b) For a person's second conviction, a minimum of $1,500.
  (c) For a person's third or subsequent conviction, a minimum of
$2,000 if the person is not sentenced to a term of imprisonment.
    { - (7) - }  { +  (8) + } Notwithstanding ORS 161.635,
$10,000 is the maximum fine that a court may impose on a person
convicted of driving while under the influence of intoxicants if:
  (a) The current offense was committed in a motor vehicle; and
  (b) There was a passenger in the motor vehicle who was under 18
years of age and was at least three years younger than the person
driving the motor vehicle.
  SECTION 3. ORS 813.020 is amended to read:
  813.020. When a person is convicted of driving while under the
influence of intoxicants in violation of ORS 813.010, a court
shall comply with the following in addition to any fine or other
penalty imposed upon the person under ORS 813.010:
  (1) The court shall require the person to:
  (a) Pay to the court the fee described under ORS 813.030 in
addition to any fine imposed under ORS 813.010; and
  (b) Complete a screening interview and a treatment program as
provided in ORS 813.021.
  (2) The court must impose and not suspend execution of a
sentence requiring the person either to serve at least 48 hours'
imprisonment, which shall be served consecutively unless justice
requires otherwise, or to perform community service for times
specified by the court under ORS 137.129. For purposes of this
subsection:
  (a) A court may provide for the imprisonment to be served in
jail, minimum security facilities or inpatient rehabilitation or
treatment centers.
  (b) Whenever the judge provides for the mandatory imprisonment
to be served other than consecutively, the judgment must
specifically so provide and the judge must state the reasons in
writing.
   { +  (3) The court must impose and not suspend execution of a
sentence requiring a person convicted of a felony offense
described in ORS 813.010 (5) to serve at least 90 days'
imprisonment, which shall be served consecutively. + }
    { - (3) - }  { +  (4) + } In a county that has a victim
impact program a court may require the person to attend a victim
impact treatment session. If the court requires attendance under
this section, the court may require the defendant to pay a
reasonable fee to the victim impact program to offset the cost of
the defendant's participation. The fee shall be established for
each county by the victim impact panel coordinator and steering
committee of that county and shall be not less than $5 or more
than $50.
  SECTION 4. ORS 813.215 is amended to read:
  813.215. (1) A defendant is eligible for diversion if the
defendant meets all of the following conditions:
  (a) On the date the defendant filed the petition for a driving
while under the influence of intoxicants diversion agreement, the
defendant had no charge, other than the charge for the present
offense, pending for:
  (A) An offense of driving while under the influence of
intoxicants in violation of:
  (i) ORS 813.010; or
  (ii) The statutory counterpart to ORS 813.010 in another
jurisdiction;
  (B) A driving under the influence of intoxicants offense in
another jurisdiction that involved the impaired driving of a
vehicle due to the use of intoxicating liquor, a controlled
substance, an inhalant or any combination thereof; or
  (C) A driving offense in another jurisdiction that involved
operating a vehicle while having a blood alcohol content above
that jurisdiction's permissible blood alcohol content.
  (b) The defendant has not been convicted of an offense
described in paragraph (a) of this subsection within the period
beginning 10 years before the date of the commission of the
present offense and ending on the date the defendant filed the
petition for a driving while under the influence of intoxicants
diversion agreement.
 
  (c) The defendant has not been convicted of a felony offense
described in ORS 813.010   { - (5)(a) - }  { +  (5) + }.
  (d) The defendant was not participating in a driving while
under the influence of intoxicants diversion program or in any
similar alcohol or drug rehabilitation program, other than a
program entered into as a result of the charge for the present
offense, in this state or in another jurisdiction on the date the
defendant filed the petition for a driving while under the
influence of intoxicants diversion agreement.
  (e) The defendant did not participate in a diversion or
rehabilitation program described in paragraph (d) of this
subsection, other than a program entered into as a result of the
charge for the present offense, within the period beginning 10
years before the date of the commission of the present offense
and ending on the date the defendant filed the petition for a
driving while under the influence of intoxicants diversion
agreement.
  (f) The defendant had no charge of an offense of aggravated
vehicular homicide or of murder, manslaughter, criminally
negligent homicide or assault that resulted from the operation of
a motor vehicle pending in this state or in another jurisdiction
on the date the defendant filed the petition for a driving while
under the influence of intoxicants diversion agreement.
  (g) The defendant has not been convicted of an offense
described in paragraph (f) of this subsection within the period
beginning 10 years before the date of the commission of the
present offense and ending on the date the defendant filed the
petition for a driving while under the influence of intoxicants
diversion agreement.
  (h) The defendant did not hold a commercial driver license on
the date of the commission of the offense.
  (i) The defendant was not operating a commercial motor vehicle
at the time of the offense.
  (j) The present driving while under the influence of
intoxicants offense did not involve an accident resulting in:
  (A) Death of any person; or
  (B) Physical injury as defined in ORS 161.015 to any person
other than the defendant.
  (2) For the purposes of subsection (1)(a) of this section, a
conviction for a driving offense in another jurisdiction based
solely on a person under 21 years of age having a blood alcohol
content that is lower than the permissible blood alcohol content
in that jurisdiction for a person 21 years of age or older does
not constitute a prior conviction.
  SECTION 5. ORS 813.220 is amended to read:
  813.220. After the time for requesting a hearing under ORS
813.210 has expired with no request for a hearing, or after a
hearing requested under ORS 813.210, the court shall determine
whether to allow or deny a petition for a driving while under the
influence of intoxicants diversion agreement. In making a
determination under this section, the court:
  (1) Shall consider whether the diversion will be of benefit to
the defendant and the community.
  (2) May take into consideration whether there was an early
recognition by the defendant during the proceeding that a course
of diagnosis and treatment of problem drinking, alcoholism or
drug dependency would be beneficial.
  (3) May take into consideration whether there is a probability
that the defendant will cooperate with the diagnostic assessment
and treatment agencies.
  (4) May take into consideration whether the defendant will
observe the restrictions contained in the diversion agreement.
  (5) May take into consideration whether the offense was
committed in a motor vehicle and whether there was a passenger in
the motor vehicle who was under 18 years of age and at least
three years younger than the defendant.
  (6) Shall deny the petition for a driving while under the
influence of intoxicants diversion agreement if the defendant
failed to appear at an arraignment on the present offense without
good cause.
  (7) Shall deny the petition for a driving while under the
influence of intoxicants diversion agreement if, after the date
the defendant filed the petition, the defendant was charged with
or convicted of:
  (a) An offense of driving while under the influence of
intoxicants in violation of:
  (A) ORS 813.010; or
  (B) The statutory counterpart to ORS 813.010 in another
jurisdiction;
  (b) A driving under the influence of intoxicants offense in
another jurisdiction that involved the impaired driving of a
vehicle due to the use of intoxicating liquor, a controlled
substance, an inhalant or any combination thereof; or
  (c) A driving offense in another jurisdiction that involved
operating a vehicle while having a blood alcohol content above
that jurisdiction's permissible blood alcohol content.
  (8) Shall deny the petition for a driving while under the
influence of intoxicants diversion agreement if the defendant
participated in a driving while under the influence of
intoxicants diversion program or in any similar alcohol or drug
rehabilitation program, other than a program entered into as a
result of the charge for the present offense, in this state or in
another jurisdiction after the date the defendant filed the
petition.
  (9) Shall deny the petition for a driving while under the
influence of intoxicants diversion agreement if the defendant was
charged with or convicted of an offense of aggravated vehicular
homicide or of murder, manslaughter, criminally negligent
homicide or assault that resulted from the operation of a motor
vehicle in this state or in another jurisdiction after the date
the defendant filed the petition.
  (10) Shall deny the petition for a driving while under the
influence of intoxicants diversion agreement if the defendant has
been convicted of a felony offense described in ORS 813.010
  { - (5)(a) - }  { +  (5) + }.
  (11) For the purposes of subsection (7) of this section, may
not consider a conviction for a driving offense in another
jurisdiction based solely on a person under 21 years of age
having a blood alcohol content that is lower than the permissible
blood alcohol content in that jurisdiction for a person 21 years
of age or older as a prior conviction.
  SECTION 6.  { + Section 1 of this 2009 Act and the amendments
to ORS 813.010, 813.020, 813.215 and 813.220 by sections 2 to 5
of this 2009 Act apply to persons sentenced for offenses
committed on or after the effective date of this 2009 Act. + }
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