Chapter 1049 Oregon Laws 1999

Session Law

AN ACT

HB 2002

Relating to crime; creating new provisions; amending ORS 132.320, 811.182 and 813.010; appropriating money; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. 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 .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 or a controlled substance; or

(2) A person may not be convicted of driving under the influence of intoxicants on the basis of being under the influence of a controlled substance unless the fact that the person was under the influence of a controlled substance 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) Driving while under the influence of intoxicants is a Class C felony if the defendant has been convicted of driving while under the influence of intoxicants in violation of this section or its statutory counterpart in another jurisdiction at least three times in the 10 years prior to the date of the current offense and the current offense was committed in a motor vehicle. For purposes of this subsection, a prior conviction for boating while under the influence of intoxicants in violation of ORS 830.325 or its statutory counterpart in another jurisdiction, or for prohibited operation of an aircraft in violation of ORS 837.080 (1)(a) or its statutory counterpart in another jurisdiction, shall be considered a prior conviction of driving while under the influence of intoxicants.

(6) 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.

SECTION 2. Sections 3 and 4 of this 1999 Act are added to and made a part of ORS chapter 813.

SECTION 3. (1) The Oregon Criminal Justice Commission shall classify a violation of ORS 813.010 that is a felony as crime category 6 of the rules of the Oregon Criminal Justice Commission.

(2) In determining criminal history for a person convicted of a felony that has operation of a motor vehicle as an element, or of a felony that involved death, injury or property damage caused by the use of a motor vehicle, the commission shall:

(a) Consider two prior convictions of misdemeanor driving while under the influence of intoxicants to be equivalent to one conviction of felony driving while under the influence of intoxicants; and

(b) Consider felony driving while under the influence of intoxicants to be a person felony and consider misdemeanor driving while under the influence of intoxicants to be a person Class A misdemeanor.

SECTION 4. A defendant who challenges the validity of prior convictions alleged by the state as an element of felony driving while under the influence of intoxicants must give notice of the intent to challenge the validity of the prior convictions at least seven days prior to the first date set for trial on the felony charge. The validity of the prior convictions shall be determined prior to trial by the court.

SECTION 5. (1) In a prosecution for felony driving while under the influence of intoxicants under ORS 813.010, the state shall plead the prior convictions and shall prove the prior convictions unless the defendant stipulates to that fact prior to trial. If the defendant so stipulates and the trial is by jury:

(a) The court shall accept the stipulation regardless of whether or not the state agrees to it;

(b) The defendant's stipulation to the prior convictions constitutes a judicial admission to that element of the accusatory instrument. The stipulation shall be made a part of the record of the case, but shall not be offered or received in the presence of the jury;

(c) For the purpose of establishing the prior convictions solely as an element of the crime under ORS 813.010, neither the court nor the state shall reveal to the jury the prior convictions, but the prior convictions are established in the record by the defendant's stipulation; and

(d) The court shall not submit the accusatory instrument or evidence of the prior convictions to the jury.

(2) In a proceeding under ORS 813.010, the state may offer, and the court may receive and submit to the jury, evidence of the prior convictions for impeachment of the defendant or another purpose, other than establishing the prior convictions as an element of the offense, when the evidence of the prior convictions is otherwise admissible for that purpose. When evidence of the prior convictions has been admitted by the court, the state may comment upon, and the court may give instructions about, the evidence of the prior convictions only to the extent that the comments or instructions relate to the purpose for which the evidence was admitted.

(3) When the defendant stipulates to the prior convictions required as an element of felony driving while under the influence of intoxicants under ORS 813.010, if the jury finds the defendant guilty upon instruction regarding the balance of the elements of the crime, the court shall enter a judgment of guilty of felony driving while under the influence of intoxicants.

SECTION 6. ORS 132.320 is amended to read:

132.320. (1) Except as provided in subsections (2) to (5) of this section, in the investigation of a charge for the purpose of indictment, the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question.

(2) A report or a copy of a report made by a physicist, chemist, medical examiner, physician, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by such person in connection with a case which is the subject of a grand jury proceeding, shall, when certified by such person as a report made by such person or as a true copy thereof, be received in evidence in the grand jury proceeding.

(3) An affidavit of a witness who is unable to appear before the grand jury shall be received in evidence in the grand jury proceeding if, upon application by the district attorney, the presiding judge for the judicial district in which the grand jury is sitting authorizes such receipt after good cause has been shown for the witness' inability to appear. An affidavit taken in another state or territory of the United States, the District of Columbia or in a foreign country must be authenticated as provided in ORS 194.505 to 194.575 before it can be used in this state.

(4) A grand jury that is investigating a charge of criminal driving while suspended or revoked under ORS 811.182 may receive in evidence an affidavit of a peace officer with a report or copy of a report of the peace officer concerning the peace officer's investigation of the violation of ORS 811.182 by the defendant.

(5) A grand jury may receive testimony of a witness by means of simultaneous television transmission allowing the grand jury and district attorney to observe and communicate with the witness and the witness to observe and communicate with the grand jury and the district attorney.

(6) The grand jury is not bound to hear evidence for the defendant, but it shall weigh all the evidence submitted to it; and when it believes that other evidence within its reach will explain away the charge, it should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.

(7) A grand jury that is investigating a charge of driving while under the influence of intoxicants in violation of ORS 813.010 may receive in evidence an affidavit of a peace officer regarding any or all of the following:

(a) Whether the defendant was driving.

(b) Whether the defendant took or refused to take tests under any provision of ORS chapter 813.

(c) The administration of tests under any provision of ORS chapter 813 and the results of such tests.

(d) The officer's observations of physical or mental impairment of the defendant.

SECTION 7. ORS 811.182 is amended to read:

811.182. (1) A person commits the offense of criminal driving while suspended or revoked if the person violates ORS 811.175 and the suspension or revocation is one described in this section, or if the hardship or probationary permit violated is based upon a suspension or revocation described in subsection (3) or (4) of this section.

(2) Affirmative defenses to the offense described in this section are established under ORS 811.180.

(3) The crime is a Class C felony if the suspension or revocation resulted from [any of the following:]

[(a) Habitual offender status under ORS 809.640.]

[(b)] any degree of murder, manslaughter, criminally negligent homicide or assault resulting from the operation of a motor vehicle.

[(c) Any crime punishable as a felony with proof of a material element involving the operation of a motor vehicle.]

[(d) Failure to perform the duties of a driver under ORS 811.705.]

[(e) Reckless driving under ORS 811.140.]

[(f) Fleeing or attempting to elude a police officer under ORS 811.540.]

[(g) Driving while under the influence of intoxicants under ORS 813.010.]

[(h) Use of a commercial motor vehicle in the commission of a crime punishable as a felony.]

(4) The crime is a Class A misdemeanor if the suspension or revocation is any of the following:

(a) A suspension under ORS 809.410 (2) resulting from commission by the driver of any degree of recklessly endangering another person, menacing or criminal mischief, resulting from the operation of a motor vehicle.

(b) A revocation under ORS 809.410 (3) resulting from perjury or the making of a false affidavit to the Department of Transportation.

(c) A suspension under ORS 813.410 resulting from refusal to take a test prescribed in ORS 813.100 or for taking a breath or blood test the result of which discloses a blood alcohol content of:

(A) .08 percent or more by weight if the person was not driving a commercial motor vehicle;

(B) .04 percent or more by weight if the person was driving a commercial motor vehicle; or

(d) A suspension of a commercial driver license or right to apply for a commercial driver license under ORS 809.410 (18) resulting from failure to perform the duties of a driver under ORS 811.700 while driving a commercial motor vehicle.

(e) A suspension of a commercial driver license under ORS 809.400 (3)(b) where the person's commercial driving privileges have been suspended or revoked by the other jurisdiction for failure of or refusal to take a chemical test to determine the alcoholic content of the person's blood under a statute that is substantially similar to ORS 813.100.

(f) A revocation resulting from habitual offender status under ORS 809.640.

(g) A suspension resulting from any crime punishable as a felony with proof of a material element involving the operation of a motor vehicle, other than a crime described in subsection (3) of this section.

(h) A suspension for failure to perform the duties of a driver under ORS 811.705.

(i) A suspension for reckless driving under ORS 811.140.

(j) A suspension for fleeing or attempting to elude a police officer under ORS 811.540.

(k) A suspension for driving while under the influence of intoxicants under ORS 813.010.

(L) A suspension for use of a commercial motor vehicle in the commission of a crime punishable as a felony.

(5) In addition to any other sentence that may be imposed, if a person is convicted of the offense described in this section and the underlying suspension resulted from driving while under the influence of intoxicants, the court shall impose a fine of at least $1,000 if it is the person's first conviction for criminal driving while suspended or revoked and at least $2,000 if it is the person's second or subsequent conviction.

(6) The Oregon Criminal Justice Commission shall classify a violation of this section that is a felony as crime category 6 of the rules of the Oregon Criminal Justice Commission.

SECTION 8. (1) Sections 3 to 5 of this 1999 Act and the amendments to ORS 813.010 and 132.320 by sections 1 and 6 of this 1999 Act become operative on or after December 31, 1999, and apply to offenses committed on or after December 31, 1999.

(2) The amendments to ORS 811.182 by section 7 of this 1999 Act apply to offenses committed on or after September 1, 1999.

SECTION 9. Notwithstanding any other law appropriating moneys, the appropriation to the Department of Corrections made by section 1 (2), chapter 912, Oregon Laws 1999 (Enrolled Senate Bill 5506), for the biennium ending June 30, 2001, is reduced by $3,576,320.

SECTION 10. In addition to and not in lieu of any other appropriation, there is appropriated to the Emergency Board, out of the General Fund, for the biennium beginning July 1, 1999, the amount of $1,097,124 for allocation only to the Department of Corrections, after the April 2000 prison population forecast, for population management issues resulting from implementation of this 1999 Act. Any moneys that remain unallocated and unobligated by the Emergency Board on November 1, 2000, become available for any purpose for which the Emergency Board lawfully may allocate funds.

SECTION 11. This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect on its passage.

Approved by the Governor September 1, 1999

Filed in the office of Secretary of State September 1, 1999

Effective date September 1, 1999

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