Relating to diversion of servicemembers with brain disorders resulting from military service; creating new provisions; and amending ORS 135.881 and 135.886.


 
 
 
     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 1682
 
                         House Bill 3396
 
Sponsored by Representative SHIELDS; Representatives BEYER,
  CAMERON, ESQUIVEL, FREEMAN, GALIZIO, HUFFMAN, JENSON, RILEY,
  SCHAUFLER, G SMITH, STIEGLER, THATCHER, WHISNANT, WITT,
  Senators BATES, GEORGE, MORRISETTE (at the request of Oregon
  War Veterans Association and Jesse Wm. Barton)
 
 
                             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.
 
  Directs district attorney to consider servicemember's traumatic
brain injury or mental disorder as factor in determining
eligibility for diversion.
  Allows court to order servicemember placed on probation into
treatment program under certain conditions.
  Directs Oregon Criminal Justice Commission to adopt rules that
establish defendant's status as servicemember with traumatic
brain injury or mental disorder as mitigating factor that
sentencing judge may consider as substantial and compelling
reason to impose downward departure in sentence.
 
                        A BILL FOR AN ACT
Relating to diversion of servicemembers with brain disorders
  resulting from military service; creating new provisions; and
  amending ORS 135.881 and 135.886.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 135.881 is amended to read:
  135.881. As used in ORS 135.881 to 135.901:
  (1) 'District attorney' has the meaning given that term
  { - by - }   { + in + } ORS 131.005   { - (8) - } .
  (2) 'Diversion' means referral of a defendant in a criminal
case to a supervised performance program prior to adjudication.
  (3) 'Diversion agreement' means the specification of formal
terms and conditions which a defendant must fulfill in order to
have the charges against the defendant dismissed.
   { +  (4) 'Servicemember' means a defendant who:
  (a)(A) Is a veteran as that term is defined in ORS 408.225,
except that the veteran need not have been discharged or released
from active duty under honorable conditions;
  (B) Is a member of the United States Armed Forces or the
reserve components of the United States Armed Forces; or
  (C) Served in the reserve components of the United States Armed
Forces; and
  (b) Has been diagnosed with a traumatic brain injury or mental
disorder that resulted from military service. Mental disorder
includes, but is not limited to, combat stress or post-traumatic
stress disorder. + }
  SECTION 2. ORS 135.886 is amended to read:
  135.886. (1) After an accusatory instrument has been filed
charging a defendant with commission of a crime other than
driving while under the influence of intoxicants as defined in
ORS 813.010, and after the district attorney has considered the
factors listed in subsection (2) of this section, if it appears
to the district attorney that diversion of the defendant would be
in the interests of justice and of benefit to the defendant and
the community, the district attorney may propose a diversion
agreement to the defendant the terms of which are established by
the district attorney in conformance with ORS 135.891. A
diversion agreement under this section is not available to a
defendant charged with the crime of driving while under the
influence of intoxicants as defined in ORS 813.010.
  (2) In determining whether diversion of a defendant is in the
interests of justice and of benefit to the defendant and the
community, the district attorney shall consider at least the
following factors:
  (a) The nature of the offense; however,  { + except as provided
in subsection (3) of this section, + } the offense must not have
involved injury to another person;
  (b) Any special characteristics or difficulties of the
offender;
  (c) Whether the defendant is a first-time offender; if the
offender has previously participated in diversion, according to
the certification of the Department of Justice, diversion
 { - shall - }  { + may + } not be offered;
  (d) Whether there is a probability that the defendant will
cooperate with and benefit from alternative treatment;
  (e) Whether the available program is appropriate to the needs
of the offender;
  (f) The impact of diversion upon the community;
  (g) Recommendations, if any, of the involved law enforcement
agency;
  (h) Recommendations, if any, of the victim;
  (i) Provisions for restitution; and
  (j) Any mitigating circumstances.
   { +  (3) In determining whether diversion of a defendant who
is a servicemember is in the interests of justice and of benefit
to the defendant and the community, the district attorney shall
consider all of the factors listed in subsection (2) of this
section, including the nature of the offense, except that the
offense must not have involved serious physical injury, as
defined in ORS 161.015, to another person.
  (4) If the district attorney elects to offer diversion to a
defendant described in subsection (3) of this section, the
district attorney shall give preference to treatment programs
that have a history of successful treatment of servicemembers who
suffer from traumatic brain injuries or mental disorders
resulting from military service. + }
  SECTION 3.  { + (1) As used in this section, 'servicemember'
has the meaning given that term in ORS 135.881.
  (2) A court, prior to sentencing a defendant who has been
convicted of a criminal offense that carries a term of
incarceration in county jail or state prison and who alleges that
the offense was committed as a result of a mental disorder or a
traumatic brain injury resulting from military service, shall
hold a hearing to:
  (a) Determine if the defendant is a servicemember; and
  (b) Assess whether the defendant suffers from a mental disorder
or a traumatic brain injury as a result of military service.
  (3) The court may order the defendant into a treatment program
for a period that may not exceed the period the defendant would
have served in county jail or a state prison if the court finds:
  (a) That the defendant is a person described in subsection
(2)(a) and (b) of this section;
  (b) That the defendant is eligible for probation; and
  (c) That the defendant agrees to enter a treatment program and
that an appropriate treatment program is available.
  (4) A defendant granted probation under this section and
ordered into a treatment program shall earn sentence credits for
the actual time the defendant serves in a treatment program.
  (5) If the court orders a defendant into a treatment program
under subsection (3) of this section, the court shall give
preference to treatment programs that have a history of
successful treatment of servicemembers who suffer from mental
disorders or traumatic brain injuries resulting from military
service. + }
  SECTION 4.  { + (1) As used in this section, 'servicemember'
has the meaning given that term in ORS 135.881.
  (2) The Oregon Criminal Justice Commission shall adopt rules
consistent with section 3 of this 2009 Act that establish a
defendant's status as a servicemember as a mitigating factor that
a sentencing judge may consider as a substantial and compelling
reason to impose a downward departure from a presumptive
sentence. + }
  SECTION 5.  { + Section 3 of this 2009 Act and the amendments
to ORS 135.881 and 135.886 by sections 1 and 2 of this 2009 Act
apply to offenses committed by servicemembers on or after the
effective date of this 2009 Act. + }
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