TITLE 14
PROCEDURE IN
CRIMINAL MATTERS GENERALLY
Chapter 131. Preliminary Provisions; Limitations;
Jurisdiction; Venue; Criminal Forfeiture; Crime Prevention
131A. Civil Forfeiture
132. Grand Jury, Indictments and Other
Accusatory Instruments
133. Arrest and Related Procedures; Search and
Seizure; Extradition
135. Arraignment and Pretrial Provisions
136. Criminal Trials
137. Judgment and Execution; Parole and
Probation by the Court
138. Appeals; Post-Conviction Relief
142. Stolen Property
144. Parole; Post-Prison Supervision; Work
Release; Executive Clemency; Standards for Prison Terms and Parole; Presentence
Reports
146. Investigations of Deaths, Injuries and
Missing Persons
147. Victims of Crime and Acts of Mass
Destruction
151. Public Defenders; Counsel for Financially
Eligible Persons
153. Violations and Fines
_______________
Chapter 131 — Preliminary
Provisions; Limitations; Jurisdiction; Venue;
Criminal Forfeiture;
Crime Prevention
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012
regular session: 2012 A&R Tables
2011 EDITION
PRELIMINARY PROVISIONS
PROCEDURE IN CRIMINAL MATTERS GENERALLY
PRELIMINARY PROVISIONS
131.005 General
definitions
131.007 “Victim”
defined
131.015 Application
to prior and subsequent actions
131.025 Parties
in criminal action
131.035 When
departures, errors or mistakes in pleadings or proceedings are material
131.040 When
law enforcement officer may communicate with person represented by counsel
131.045 Appearances
by simultaneous electronic transmission
TIME LIMITATIONS
131.105 Timeliness
of criminal actions
131.125 Time
limitations
131.135 When
prosecution commenced
131.145 When
time starts to run; tolling of statute
131.155 Tolling
of statute; three-year maximum
JURISDICTION
131.205 Definition
for ORS 131.205 to 131.235
131.215 Jurisdiction
131.225 Exceptions
131.235 Criminal
homicide
VENUE
131.305 Place
of trial
131.315 Special
provisions
131.325 Place
of trial; doubt as to place of crime; conduct outside of state
131.335 Change
of venue
131.345 Motion
for change of venue; when made
131.355 Change
of venue for prejudice
131.363 Change
of venue in other cases
131.375 Transmission
of transcript on change of venue
131.385 Filing
of transmitted transcript and papers
131.395 Expenses
of change; taxation as costs
131.405 Attendance
of defendant at new place of trial
131.415 Conveyance
of defendant in custody after change of venue
FORMER JEOPARDY
131.505 Definitions
for ORS 131.505 to 131.525
131.515 Previous
prosecution; when a bar to second prosecution
131.525 Previous
prosecution; when not a bar to subsequent prosecution
131.535 Proceedings
not constituting acquittal
CRIMINAL FORFEITURE
131.550 Definitions
for ORS 131.550 to 131.600
131.553 Legislative
findings; effect on local laws; remedy not exclusive
131.556 Right,
title and interest in forfeited property vests in seizing agency
131.558 Property
subject to forfeiture
131.561 Seizure
of property subject to forfeiture
131.564 Status
of seized property; release; maintenance and use
131.566 Motor
vehicle with hidden compartment
131.567 Recorded
notice of intent to forfeit real property; form
131.570 Notice
of seizure for forfeiture; service on persons other than defendant; publication
of notice
131.573 Petition
for expedited hearing
131.576 Order
restoring custody of property after expedited hearing
131.579 Affidavit
in response to notice of seizure for forfeiture
131.582 Prosecution
of criminal forfeiture; indictment or information; burden of proof; judgment;
notice to claimants
131.585 Extent
of judgment
131.588 Judgment
of forfeiture; contents; effect
131.591 Equitable
distribution of property or proceeds; intergovernmental agreements
131.594 Disposition
and distribution of forfeited property when seizing agency not the state
131.597 Disposition
and distribution of forfeited property when seizing agency is the state
131.600 Records
and reports
131.602 Prohibited
conduct for purposes of instrumentalities of crime
131.604 Disposition
of forfeited cigarettes
CRIME PREVENTION
(Stopping of Persons)
131.605 Definitions
for ORS 131.605 to 131.625
131.615 Stopping
of persons
131.625 Frisk
of stopped persons
(Detention)
131.655 Detention
and interrogation of persons suspected of theft committed in a store or
unlawful operation of audiovisual device in a motion picture theater; probable
cause
(Prevention by Public Officers)
131.665 Prevention
by public officers
131.675 Dispersal
of unlawful or riotous assemblages
131.685 Authority
of Governor to enter into agreements with other states for crime prevention
purposes
(Exclusion from Public Property)
131.705 Definitions
for ORS 131.705 to 131.735
131.715 Proclamation
of emergency period by Governor
131.725 Exclusion
from public property
131.735 Review
of exclusion order
(Special Law Enforcement Officers)
131.805 Authority
to employ special agents
131.815 Presentment
of facts to circuit court
131.825 Hearing
131.835 Request
that judge of another district conduct hearing; traveling expenses
131.845 Findings
131.855 Appointment
of special officers on finding that laws are not enforced
131.860 Qualifying
of special officers; powers and duties
131.865 Compensation
of special officers
131.875 Effect
of appointment of special officers on salary of regular officers
131.880 Appointment
of railroad police officers; liability
(Rewards)
131.885 Offer
of reward
131.890 Entitlement
to reward; use of public money to reward bounty hunter
131.892 Offer
of reward for information on commission of criminal offense
131.895 Procedure
for payment
131.897 Authority
to order repayment of reward as part of sentence
LIABILITY FOR MEDICAL EXPENSES OF
CERTAIN PERSONS
131.900 Liability
for medical expenses for person restrained, detained or taken into custody
LAW ENFORCEMENT CONTACTS POLICY AND DATA
REVIEW COMMITTEE
131.905 Legislative
findings
131.906 Law
Enforcement Contacts Policy and Data Review Committee; duties; report
131.908 Funding
contributions
131.909 Moneys
received
131.910 Measuring
progress
PRELIMINARY PROVISIONS
131.005 General definitions.
As used in sections 1 to 311, chapter 836, Oregon Laws 1973, except as
otherwise specifically provided or unless the context requires otherwise:
(1)
“Accusatory instrument” means a grand jury indictment, an information or a
complaint.
(2)
“Bench warrant” means a process of a court in which a criminal action is
pending, directing a peace officer to take into custody a defendant in the
action who has previously appeared before the court upon the accusatory
instrument by which the action was commenced, and to bring the defendant before
the court. The function of a bench warrant is to achieve the court appearance
of a defendant in a criminal action for some purpose other than the initial
arraignment of the defendant in the action.
(3)
“Complaint” means a written accusation, verified by the oath of a person and
bearing an indorsement of acceptance by the district attorney having
jurisdiction thereof, filed with a magistrate, and charging another person with
the commission of an offense, other than an offense punishable as a felony. A
complaint serves both to commence an action and as a basis for prosecution
thereof.
(4)
“Complainant’s information” means a written accusation, verified by the oath of
a person and bearing an indorsement of acceptance by the district attorney
having jurisdiction thereof, filed with a magistrate, and charging another
person with the commission of an offense punishable as a felony. A complainant’s
information serves to commence an action, but not as a basis for prosecution
thereof.
(5)
“Correctional facility” means any place used for the confinement of persons
charged with or convicted of a crime or otherwise confined under a court order.
“Correctional facility” does not include a youth correction facility as defined
in ORS 162.135 and applies to a state hospital only as to persons detained
therein charged with or convicted of a crime, or detained therein after
acquittal of a crime by reason of mental disease or defect under ORS 161.290 to
161.370.
(6)
“Criminal action” means an action at law by means of which a person is accused
of the commission of a violation, misdemeanor or felony.
(7)
“Criminal proceeding” means any proceeding which constitutes a part of a
criminal action or occurs in court in connection with a prospective, pending or
completed criminal action.
(8)
“District attorney,” in addition to its ordinary meaning, includes a city
attorney as prosecuting officer in the case of municipal ordinance offenses, a
county counsel as prosecuting officer under a county charter in the case of
county ordinance offenses, and the Attorney General in those criminal actions
or proceedings within the jurisdiction of the Attorney General.
(9)
“District attorney’s information” means a written accusation by a district
attorney and:
(a)
If filed with a magistrate to charge a person with the commission of an
offense, other than an offense punishable as a felony, serves both to commence
an action and as a basis for prosecution thereof; or
(b)
If filed with a magistrate to charge a person with the commission of an offense
punishable as a felony, serves to commence an action, but not as a basis for
prosecution thereof; or
(c)
If, as is otherwise authorized by law, filed in circuit court to charge a
person with the commission of an offense, serves as a basis for prosecution
thereof.
(10)
“Information” means a district attorney’s information or a complainant’s
information.
(11)
“Probable cause” means that there is a substantial objective basis for
believing that more likely than not an offense has been committed and a person
to be arrested has committed it.
(12)
“Trial court” means a court which by law has jurisdiction over an offense
charged in an accusatory instrument and has authority to accept a plea thereto,
or try, hear or otherwise dispose of a criminal action based on the accusatory
instrument.
(13)
“Ultimate trial jurisdiction” means the jurisdiction of a court over a criminal
action or proceeding at the highest trial level.
(14)
“Warrant of arrest” means a process of a court, directing a peace officer to arrest
a defendant and to bring the defendant before the court for the purpose of
arraignment upon an accusatory instrument filed therewith by which a criminal
action against the defendant has been commenced. [1973 c.836 §1; 1983 c.760 §1;
1995 c.738 §3; 1997 c.249 §42; 1997 c.801 §101; 1999 c.1051 §122]
Note:
Legislative Counsel has substituted “chapter 836, Oregon Laws 1973,” for the
words “this Act” in sections 1 and 2, chapter 836, Oregon Laws 1973, compiled
as 131.005 and 131.015. Specific ORS references have not been substituted,
pursuant to 173.160. These sections may be determined by referring to the 1973
Comparative Section Table located in Volume 20 of ORS.
131.007 “Victim” defined.
As used in ORS 40.385, 135.230, 135.970, 147.417, 147.419 and 147.421 and in
ORS chapters 136, 137 and 144, except as otherwise specifically provided or
unless the context requires otherwise, “victim” means the person or persons who
have suffered financial, social, psychological or physical harm as a result of
a crime and includes, in the case of a homicide or abuse of corpse in any
degree, a member of the immediate family of the decedent and, in the case of a
minor victim, the legal guardian of the minor. In no event shall the criminal
defendant be considered a victim. [1987 c.2 §17; 1993 c.294 §3; 1997 c.313 §30;
2009 c.178 §32]
131.010
[Repealed by 1973 c.836 §358]
131.015 Application to prior and
subsequent actions.(1) The provisions of chapter
836, Oregon Laws 1973, apply to:
(a)
All criminal actions and proceedings commenced upon or after January 1, 1974,
and all appeals and other post-judgment proceedings relating or attaching
thereto; and
(b)
All matters of criminal procedure prescribed in chapter 836, Oregon Laws 1973,
which do not constitute a part of any particular action or case, occurring upon
or after January 1, 1974.
(2)
The provisions of chapter 836, Oregon Laws 1973, do not impair or render
ineffectual any proceedings or procedural matters which occurred before January
1, 1974. [1973 c.836 §2]
Note: See
note under 131.005.
131.020
[Repealed by 1973 c.836 §358]
131.025 Parties in criminal action.
Except for offenses based on municipal or county ordinances, in a criminal
action the State of Oregon is the plaintiff and the person prosecuted is the
defendant. [1973 c.836 §3]
131.030
[Repealed by 1973 c.836 §358]
131.035 When departures, errors or
mistakes in pleadings or proceedings are material. No
departure from the form or mode prescribed by law, error or mistake in any
criminal pleading, action or proceeding renders it invalid, unless it has
prejudiced the defendant in respect to a substantial right. [1973 c.836 §4]
131.040 When law enforcement officer may
communicate with person represented by counsel.
A law enforcement officer may communicate with a person who is represented by
counsel without obtaining the prior consent of counsel, and an attorney who
prosecutes violations of the criminal laws of this state or the United States
is not required to forbid or otherwise prevent the communication, if:
(1)
The communication is related to a criminal investigation;
(2)
No accusatory instrument has been filed charging the person with the commission
of an offense that is the subject of the investigation or communication, and no
juvenile petition has been filed alleging acts that would constitute the
commission of an offense that is the subject of the investigation or
communication; and
(3)
The communication is not in violation of the Constitution of the United States
or of the State of Oregon. [1995 c.657 §19]
131.045 Appearances by simultaneous electronic
transmission. (1) As used in this section:
(a)
“Criminal proceeding” has the meaning given that term in ORS 131.005.
(b)
“Parties” means the State of Oregon and the person being prosecuted.
(c)
“Simultaneous electronic transmission” means television, telephone or any other
form of electronic communication transmission if the form of transmission
allows:
(A)
The court and the person making the appearance to communicate with each other
during the proceeding;
(B)
A defendant who is represented by counsel to consult privately with defense
counsel during the proceeding;
(C)
The victim to participate in the proceeding to the same extent that the victim
is entitled to participate when the person making the appearance is physically
present in the court; and
(D)
The public to hear and, if the transmission includes a visual image, to see the
appearance if the public has a right to hear and see the appearance when the
person making the appearance is physically present in the court.
(2)
When a statute authorizes or requires a person to make a personal appearance
before a court in a criminal proceeding, the person may appear by being
physically present in the court or by simultaneous electronic transmission if:
(a)
Simultaneous electronic transmission is authorized by court rule under
subsection (3) of this section;
(b)
Except as otherwise provided by law, the parties in the proceeding and the
court agree to appearance by simultaneous electronic transmission; and
(c)
Appearance by simultaneous electronic transmission is not specifically
prohibited by statute.
(3)
In order for a person to appear by simultaneous electronic transmission as
provided in this section, court rules must provide for the use of the specific
type of simultaneous electronic transmission at the court location and for the
type of proceeding in which the person is appearing. Court rules allowing the
use of simultaneous electronic transmission may establish requirements for its
use.
(4)
Notwithstanding subsection (2)(b) of this section, a witness in a criminal
proceeding may not appear before a jury by simultaneous electronic transmission
without the written consent of the parties and the agreement of the court.
(5)
This section does not apply to a hearing under ORS 138.510 to 138.680. [2005
c.566 §4; 2009 c.219 §2]
TIME LIMITATIONS
131.105 Timeliness of criminal actions.
A criminal action must be commenced within the period of limitation prescribed
in ORS 131.125 to 131.155. [1973 c.836 §5]
131.110
[Amended by 1971 c.743 §315a; repealed by 1973 c.836 §358]
131.120
[Repealed by 1973 c.836 §358]
131.125 Time limitations.
(1) A prosecution for aggravated murder, murder, attempted murder or aggravated
murder, conspiracy or solicitation to commit aggravated murder or murder or any
degree of manslaughter may be commenced at any time after the commission of the
attempt, conspiracy or solicitation to commit aggravated murder or murder, or
the death of the person killed.
(2)
A prosecution for any of the following felonies may be commenced within six
years after the commission of the crime or, if the victim at the time of the
crime was under 18 years of age, anytime before the victim attains 30 years of
age or within 12 years after the offense is reported to a law enforcement
agency or the Department of Human Services, whichever occurs first:
(a)
Strangulation under ORS 163.187 (4).
(b)
Criminal mistreatment in the first degree under ORS 163.205.
(c)
Rape in the third degree under ORS 163.355.
(d)
Rape in the second degree under ORS 163.365.
(e)
Rape in the first degree under ORS 163.375.
(f)
Sodomy in the third degree under ORS 163.385.
(g)
Sodomy in the second degree under ORS 163.395.
(h)
Sodomy in the first degree under ORS 163.405.
(i)
Unlawful sexual penetration in the second degree under ORS 163.408.
(j)
Unlawful sexual penetration in the first degree under ORS 163.411.
(k)
Sexual abuse in the second degree under ORS 163.425.
(L)
Sexual abuse in the first degree under ORS 163.427.
(m)
Using a child in a display of sexual conduct under ORS 163.670.
(n)
Encouraging child sexual abuse in the first degree under ORS 163.684.
(o)
Incest under ORS 163.525.
(p)
Promoting prostitution under ORS 167.012.
(q)
Compelling prostitution under ORS 167.017.
(r)
Luring a minor under ORS 167.057.
(3)
A prosecution for any of the following misdemeanors may be commenced within
four years after the commission of the crime or, if the victim at the time of
the crime was under 18 years of age, anytime before the victim attains 22 years
of age or within four years after the offense is reported to a law enforcement
agency or the Department of Human Services, whichever occurs first:
(a)
Strangulation under ORS 163.187 (3).
(b)
Sexual abuse in the third degree under ORS 163.415.
(c)
Exhibiting an obscene performance to a minor under ORS 167.075.
(d)
Displaying obscene materials to minors under ORS 167.080.
(4)
In the case of crimes described in subsection (2)(m) of this section, the
victim is the child engaged in sexual conduct. In the case of the crime
described in subsection (2)(o) of this section, the victim is the party to the
incest other than the party being prosecuted. In the case of crimes described
in subsection (2)(p) and (q) of this section, the victim is the child whose
acts of prostitution are promoted or compelled.
(5)
A prosecution for arson in any degree may be commenced within six years after
the commission of the crime.
(6)
Except as provided in subsection (7) of this section or as otherwise expressly
provided by law, prosecutions for other offenses must be commenced within the
following periods of limitations after their commission:
(a)
For any other felony, three years.
(b)
For any misdemeanor, two years.
(c)
For a violation, six months.
(7)
If the period prescribed in subsection (6) of this section has expired, a
prosecution nevertheless may be commenced as follows:
(a)
If the offense has as a material element either fraud or the breach of a
fiduciary obligation, prosecution may be commenced within one year after
discovery of the offense by an aggrieved party or by a person who has a legal
duty to represent an aggrieved party and who is not a party to the offense, but
in no case shall the period of limitation otherwise applicable be extended by
more than three years;
(b)
If the offense is based upon misconduct in office by a public officer or
employee, prosecution may be commenced at any time while the defendant is in
public office or employment or within two years thereafter, but in no case
shall the period of limitation otherwise applicable be extended by more than
three years; or
(c)
If the offense is an invasion of personal privacy under ORS 163.700,
prosecution may be commenced within one year after discovery of the offense by
the person aggrieved by the offense, by a person who has a legal duty to
represent the person aggrieved by the offense or by a law enforcement agency,
but in no case shall the period of limitation otherwise applicable be extended
by more than three years.
(8)
Notwithstanding subsection (2) of this section, if the defendant is identified
after the period described in subsection (2) of this section on the basis of
DNA (deoxyribonucleic acid) sample comparisons, a prosecution for:
(a)
Rape in the first degree, sodomy in the first degree, unlawful sexual
penetration in the first degree or sexual abuse in the first degree may be
commenced at any time after the commission of the crime.
(b)
Rape in the second degree, sodomy in the second degree or unlawful sexual
penetration in the second degree may be commenced within 25 years after the
commission of the crime.
(9)
Notwithstanding subsection (8) of this section, if a prosecution for a felony
listed in subsection (8) of this section would otherwise be barred by
subsection (2) of this section, the prosecution must be commenced within two
years of the DNA-based identification of the defendant. [1973 c.836 §6; 1989
c.831 §1; 1991 c.386 §5; 1991 c.388 §1; 1991 c.830 §5; 1995 c.768 §8; 1997
c.427 §1; 1997 c.697 §3; 1997 c.850 §5; 2001 c.375 §1; 2005 c.252 §1; 2005
c.839 §1; 2007 c.840 §1; 2007 c.869 §6; 2009 c.585 §1; 2011 c.666 §2; 2011
c.681 §3]
Note:
Section 5 (2), chapter 666, Oregon Laws 2011, provides:
Sec. 5. (2)
The amendments to ORS 131.125 by section 2 of this 2011 Act apply to offenses
committed before, on or after the effective date of this 2011 Act [January 1,
2012], but do not operate to revive a prosecution barred by the operation of
ORS 131.125 before the effective date of this 2011 Act. [2011 c.666 §5(2)]
131.130
[Repealed by 1973 c.836 §358]
131.135 When prosecution commenced.
A prosecution is commenced when a warrant or other process is issued, provided
that the warrant or other process is executed without unreasonable delay. [1973
c.836 §7]
131.145 When time starts to run; tolling
of statute. (1) For the purposes of ORS 131.125,
time starts to run on the day after the offense is committed.
(2)
Except as provided in ORS 131.155, the period of limitation does not run
during:
(a)
Any time when the accused is not an inhabitant of or usually resident within
this state; or
(b)
Any time when the accused hides within the state so as to prevent process being
served upon the accused.
(3)
If, when the offense is committed, the accused is out of the state, the action
may be commenced within the time provided in ORS 131.125 after the coming of
the accused into the state. [1973 c.836 §8; 1987 c.158 §19]
131.155 Tolling of statute; three-year
maximum. Notwithstanding ORS 131.145, in no case
shall the period of limitation otherwise applicable be extended by more than
three years. [1973 c.836 §9]
JURISDICTION
131.205 Definition for ORS 131.205 to
131.235. As used in ORS 131.205 to 131.235, “this
state” means the land and water and the air space above the land and water with
respect to which the State of Oregon has legislative jurisdiction. [1973 c.836 §13]
131.210
[Repealed by 1973 c.836 §358]
131.215 Jurisdiction.
Except as otherwise provided in ORS 131.205 to 131.235, a person is subject to
prosecution under the laws of this state for an offense that the person commits
by the conduct of the person or the conduct of another for which the person is
criminally liable if:
(1)
Either the conduct that is an element of the offense or the result that is an
element occurs within this state; or
(2)
Conduct occurring outside this state is sufficient under the law of this state
to constitute an attempt to commit an offense within this state; or
(3)
Conduct occurring outside this state is sufficient under the law of this state
to constitute a conspiracy to commit an offense within this state and an overt
act in furtherance of the conspiracy occurs within this state; or
(4)
Conduct occurring within this state establishes complicity in the commission
of, or an attempt, solicitation or conspiracy to commit an offense in another
jurisdiction which also is an offense under the law of this state; or
(5)
The offense consists of the omission to perform a legal duty imposed by the law
of this state with respect to domicile, residence or a relationship to a
person, thing or transaction in this state; or
(6)
The offense violates a statute of this state that expressly prohibits conduct
outside this state affecting a legislatively protected interest of or within
this state and the actor has reason to know that the conduct of the actor is
likely to affect that interest. [1973 c.836 §10]
131.220
[Repealed by 1973 c.836 §358]
131.225 Exceptions.
(1) Unless in the statute defining the offense a legislative intent clearly
appears to declare the conduct criminal, regardless of the place of the result,
ORS 131.215 (1) does not apply if:
(a)
Either causing a specified result or an intent to cause or danger of causing
that result is an element of an offense; and
(b)
The result occurs or is designed or likely to occur only in another
jurisdiction where the conduct charged would not constitute an offense.
(2)
ORS 131.215 (1) does not apply if causing a particular result is an element of
an offense and the result is caused by conduct occurring outside this state
that would not constitute an offense if the result had occurred there, unless
the actor intentionally or knowingly caused the result within this state. [1973
c.836 §11]
131.230
[Repealed by 1973 c.836 §358]
131.235 Criminal homicide.
(1) If the offense committed is criminal homicide, either the death of the
victim or the conduct causing death constitutes a “result” within the meaning
of ORS 131.215 (1).
(2)
If the body, or a part thereof, of a criminal homicide victim is found within
this state, it shall be prima facie evidence that the result occurred within
this state. [1973 c.836 §12]
131.240
[Repealed by 1973 c.836 §358]
131.250 [1971
c.743 §291; repealed by 1973 c.836 §358]
VENUE
131.305 Place of trial.
(1) Except as otherwise provided in ORS 131.305 to 131.415, criminal actions
shall be commenced and tried in the county in which the conduct that
constitutes the offense or a result that is an element of the offense occurred.
(2)
All objections of improper place of trial are waived by a defendant unless the
defendant objects in the manner set forth in ORS 131.335 to 131.363. [1973
c.836 §14]
131.310
[Repealed by 1973 c.836 §358]
131.315 Special provisions.
(1) If conduct constituting elements of an offense or results constituting
elements of an offense occur in two or more counties, trial of the offense may
be held in any of the counties concerned.
(2)
If a cause of death is inflicted on a person in one county and the person dies
therefrom in another county, trial of the offense may be held in either county.
(3)
If the commission of an offense commenced outside this state is consummated
within this state, trial of the offense shall be held in the county in which
the offense is consummated or the interest protected by the criminal statute in
question is impaired.
(4)
If an offense is committed on any body of water located in, or adjacent to, two
or more counties or forming the boundary between two or more counties, trial of
the offense may be held in any nearby county bordering on the body of water.
(5)
If an offense is committed in or upon any railroad car, vehicle, aircraft, boat
or other conveyance in transit and it cannot readily be determined in which
county the offense was committed, trial of the offense may be held in any
county through or over which the conveyance passed.
(6)
If an offense is committed on the boundary of two or more counties or within
one mile thereof, trial of the offense may be held in any of the counties
concerned.
(7)
A person who commits theft, burglary or robbery may be tried in any county in
which the person exerts control over the property that is the subject of the
crime.
(8)
If the offense is an attempt or solicitation to commit a crime, trial of the
offense may be held in any county in which any act that is an element of the
offense is committed.
(9)
If the offense is criminal conspiracy, trial of the offense may be held in any
county in which any act or agreement that is an element of the offense occurs.
(10)
A person who in one county commits an inchoate offense that results in the
commission of an offense by another person in another county, or who commits
the crime of hindering prosecution of the principal offense, may be tried in
either county.
(11)
A criminal nonsupport action may be tried in any county in which the dependent
child is found, irrespective of the domicile of the parent, guardian or other
person lawfully charged with support of the child.
(12)
If the offense is theft, forgery or identity theft and the offense consists of
an aggregate transaction involving more than one county, trial of the offense
may be held in any county in which one of the acts of theft, forgery or
identity theft was committed.
(13)
When a prosecution is for violation of the Oregon Securities Law, the trial of
the offense may be held in the county in which:
(a)
The offer to purchase or sell securities took place or where the sale or
purchase of securities took place; or
(b)
Any act that is an element of the offense occurred.
(14)
When a prosecution under ORS 165.692 and 165.990 or 411.675 and 411.990 (2) and
(3) involves Medicaid funds, the trial of the offense may be held in the county
in which the claim was submitted for payment or in the county in which the
claim was paid.
(15)(a)
If the offense is stalking under ORS 163.732 and involves contacts as defined
in ORS 163.730 in more than one county, trial of the offense may be held in any
county in which a contact occurred.
(b)
If the offense is violating a court’s stalking protective order under ORS
163.750, trial of the offense may be held in the county in which the defendant
engaged in conduct prohibited by the order or in the county in which the order
was issued. [1973 c.836 §15; 1987 c.603 §26; 1989 c.384 §1; 1993 c.680 §28;
1995 c.496 §7; 2007 c.584 §3; 2009 c.212 §1]
131.320
[Repealed by 1973 c.836 §358]
131.325 Place of trial; doubt as to place
of crime; conduct outside of state. If an offense
is committed within the state and it cannot readily be determined within which
county the commission took place, or a statute that governs conduct outside the
state is violated, trial may be held in the county in which the defendant
resides, or if the defendant has no fixed residence in this state, in the
county in which the defendant is apprehended or to which the defendant is
extradited. [1973 c.836 §16]
131.330
[Repealed by 1973 c.836 §358]
131.335 Change of venue.
In accordance with ORS 131.345 to 131.415, the defendant in a criminal action
may have the place of trial changed only once, except for causes arising after
the first change was allowed. [1973 c.836 §17]
131.340
[Repealed by 1973 c.836 §358]
131.345 Motion for change of venue; when
made. A motion for change of venue may be
made in any criminal action in a circuit court when the case is at issue upon a
question of fact. [1973 c.836 §18]
131.350
[Amended by 1971 c.743 §316; repealed by 1973 c.836 §358]
131.355 Change of venue for prejudice.
The court, upon motion of the defendant, shall order the place of trial to be
changed to another county if the court is satisfied that there exists in the
county where the action is commenced so great a prejudice against the defendant
that the defendant cannot obtain a fair and impartial trial. [1973 c.836 §19]
131.360
[Amended by 1973 c.743 §317; repealed by 1973 c.836 §358]
131.363 Change of venue in other cases.
For the convenience of parties and witnesses, and in the interest of justice,
the court, upon motion of the defendant, may order the place of trial to be
changed to another county. [1973 c.836 §20]
131.365 [1959
c.664 §5; repealed by 1973 c.836 §358]
131.370
[Repealed by 1973 c.836 §358]
131.375 Transmission of transcript on
change of venue. When the court has ordered a
change of venue, the clerk shall forthwith make and retain authenticated copies
of the original papers filed in the case and transmit to the clerk of the
proper court a transcript of the proceedings and the original papers. [1973
c.836 §21]
131.380
[Repealed by 1973 c.836 §358]
131.385 Filing of transmitted transcript
and papers. The change of the place of trial is
complete when the transcript and papers are filed with the clerk of the court
to which the trial is transferred, and thereafter the action shall proceed in
the same manner as if it had been commenced in that court. [1973 c.836 §22]
131.390
[Amended by 1971 c.746 §318; repealed by 1973 c.836 §358]
131.395 Expenses of change; taxation as
costs. (1) The expenses of the change of place
of trial under ORS 131.363 shall be taxed, as allowed by law, as expenses of
the action, and the costs and expenses of the action shall be taxed in the
court and paid by the county wherein the trial is held. If the costs and
expenses are not recovered from the defendant, the county in which the action
was commenced shall repay the county in which the trial is held.
(2)
The expenses of a change of place of trial under ORS 131.355 shall not be taxed
against the defendant. [1973 c.836 §23]
131.400
[Repealed by 1973 c.836 §358]
131.405 Attendance of defendant at new
place of trial. (1) When the court has ordered a
change of place of trial, if the defendant has been released on security
release, conditional release or recognizance, the defendant must, without
further notice, appear at the time and place appointed for trial and not depart
therefrom without permission of the court.
(2)
A security deposit is sufficient therefor in all respects as if the action had
proceeded to final determination in the court where it was commenced. [1973 c.836
§24]
131.410
[Repealed by 1973 c.836 §358]
131.415 Conveyance of defendant in custody
after change of venue. When the court has ordered a
change of place of trial, if the defendant is in custody, the clerk of the
court shall issue an order to the sheriff of the county, directing the sheriff
to safely convey the defendant and deliver the defendant to the custody of the
executive head of the correctional institution of the county where the
defendant is to be tried. [1973 c.836 §25]
131.420
[Amended by 1961 c.442 §1; repealed by 1973 c.836 §358]
131.430
[Repealed by 1973 c.836 §358]
131.440
[Repealed by 1973 c.836 §358]
131.450
[Repealed by 1973 c.836 §358]
131.460
[Repealed by 1973 c.836 §358]
131.470
[Repealed by 1973 c.836 §358]
FORMER JEOPARDY
131.505 Definitions for ORS 131.505 to
131.525. As used in ORS 131.505 to 131.525,
unless the context requires otherwise:
(1)
“Conduct” and “offense” have the meaning provided for those terms in ORS
161.085 and 161.505.
(2)
When the same conduct or criminal episode violates two or more statutory
provisions, each such violation constitutes a separate and distinct offense.
(3)
When the same conduct or criminal episode, though violating only one statutory
provision, results in death, injury, loss or other consequences of two or more
victims, and the result is an element of the offense defined, there are as many
offenses as there are victims.
(4)
“Criminal episode” means continuous and uninterrupted conduct that establishes
at least one offense and is so joined in time, place and circumstances that
such conduct is directed to the accomplishment of a single criminal objective.
(5)
A person is “prosecuted for an offense” when the person is charged therewith by
an accusatory instrument filed in any court of this state or in any court of
any political subdivision of this state, and when the action either:
(a)
Terminates in a conviction upon a plea of guilty, except as provided in ORS
131.525 (2);
(b)
Proceeds to the trial stage and the jury is impaneled and sworn; or
(c)
Proceeds to the trial stage when a judge is the trier of fact and the first
witness is sworn.
(6)
There is an “acquittal” if the prosecution results in a finding of not guilty
by the trier of fact or in a determination that there is insufficient evidence
to warrant a conviction. [1973 c.836 §26; 1983 c.509 §1; 2001 c.104 §42]
131.515 Previous prosecution; when a bar
to second prosecution. Except as provided in ORS
131.525 and 131.535:
(1)
No person shall be prosecuted twice for the same offense.
(2)
No person shall be separately prosecuted for two or more offenses based upon
the same criminal episode, if the several offenses are reasonably known to the
appropriate prosecutor at the time of commencement of the first prosecution and
establish proper venue in a single court.
(3)
If a person is prosecuted for an offense consisting of different degrees, the
conviction or acquittal resulting therefrom is a bar to a later prosecution for
the same offense, for any inferior degree of the offense, for an attempt to
commit the offense or for an offense necessarily included therein.
(4)
A finding of guilty of a lesser included offense on any count is an acquittal
of the greater inclusive offense only as to that count. [1973 c.836 §27; 1997
c.511 §3]
131.525 Previous prosecution; when not a
bar to subsequent prosecution. (1) A
previous prosecution is not a bar to a subsequent prosecution when the previous
prosecution was properly terminated under any of the following circumstances:
(a)
The defendant consents to the termination or waives, by motion, by an appeal
upon judgment of conviction, or otherwise, the right to object to termination.
(b)
The trial court finds that a termination, other than by judgment of acquittal,
is necessary because:
(A)
It is physically impossible to proceed with the trial in conformity with law;
or
(B)
There is a legal defect in the proceeding that would make any judgment entered
upon a verdict reversible as a matter of law; or
(C)
Prejudicial conduct, in or outside the courtroom, makes it impossible to
proceed with the trial without injustice to either the defendant or the state;
or
(D)
The jury is unable to agree upon a verdict; or
(E)
False statements of a juror on voir dire prevent a fair trial.
(c)
When the former prosecution occurred in a court which lacked jurisdiction over
the defendant or the offense.
(d)
When the subsequent prosecution was for an offense which was not consummated
when the former prosecution began.
(2)
A plea of guilty or resulting judgment is not a bar under ORS 131.515 (2) to a
subsequent prosecution under an accusatory instrument which is filed no later
than 30 days after entry of the guilty plea. The defendant’s prior plea of
guilty or resulting judgment, notwithstanding ORS 135.365, shall be vacated
upon motion by the defendant if made within 30 days after defendant’s
arraignment for the subsequent prosecution. The provisions of ORS 135.445 apply
to such a vacated plea or resulting judgment and any statements made in
relation to those proceedings. [1973 c.836 §28; 1983 c.509 §2]
131.535 Proceedings not constituting
acquittal. The following proceedings will not
constitute an acquittal of the same offense:
(1)
If the defendant was formerly acquitted on the ground of a variance between the
accusatory instrument and the proof; or
(2)
If the accusatory instrument was:
(a)
Dismissed upon a demurrer to its form or substance;
(b)
Dismissed upon any pretrial motion; or
(c)
Discharged for want of prosecution without a judgment of acquittal. [1973 c.836
§29; 2001 c.104 §43]
CRIMINAL FORFEITURE
131.550 Definitions for ORS 131.550 to
131.600. As used in ORS 131.550 to 131.600:
(1)
“Acquiesce in prohibited conduct” means that a person knew of the prohibited
conduct and knowingly failed to take reasonable action under the circumstances
to terminate or avoid the use of the property in the course of prohibited
conduct. For purposes of this subsection, “reasonable action under the
circumstances” includes, but is not limited to:
(a)
Reporting the prohibited conduct to a law enforcement agency;
(b)
Commencing action that will assert the rights of the affiant as to the property
interest;
(c)
Terminating a rental agreement; or
(d)
Seeking an abatement order under the provisions of ORS 105.505 to 105.520 or
105.550 to 105.600 or under any ordinance or regulation allowing abatement of
nuisances.
(2)
“All persons known to have an interest” means:
(a)
Any person who has, prior to the time the property is seized for criminal
forfeiture, filed notice of interest with any public office as may be required
or permitted by law to be filed with respect to the property that has been
seized for criminal forfeiture;
(b)
Any person from whose custody the property was seized; or
(c)
Any person who has an interest in the property, including all owners and
occupants of the property, whose identity and address is known or is
ascertainable upon diligent inquiry and whose rights and interest in the
property may be affected by the action.
(3)
“Attorney fees” has the meaning given that term in ORCP 68 A.
(4)
“Financial institution” means any person lawfully conducting business as:
(a)
A financial institution or trust company, as those terms are defined in ORS
706.008;
(b)
A consumer finance company subject to the provisions of ORS chapter 725;
(c)
A mortgage banker or a mortgage broker as those terms are defined in ORS
86A.100, a mortgage servicing company or other mortgage company;
(d)
An officer, agency, department or instrumentality of the federal government,
including but not limited to:
(A)
The Secretary of Housing and Urban Development;
(B)
The Federal Housing Administration;
(C)
The United States Department of Veterans Affairs;
(D)
Rural Development and the Farm Service Agency of the United States Department
of Agriculture;
(E)
The Federal National Mortgage Association;
(F)
The Government National Mortgage Association;
(G)
The Federal Home Loan Mortgage Corporation;
(H)
The Federal Agricultural Mortgage Corporation; and
(I)
The Small Business Administration;
(e)
An agency, department or instrumentality of this state, including but not
limited to:
(A)
The Housing and Community Services Department;
(B)
The Department of Veterans’ Affairs; and
(C)
The Public Employees Retirement System;
(f)
An agency, department or instrumentality of any municipality in this state,
including but not limited to such agencies as the Portland Development
Commission;
(g)
An insurer as defined in ORS 731.106;
(h)
A private mortgage insurance company;
(i)
A pension plan or fund or other retirement plan; and
(j)
A broker-dealer or investment adviser representative as defined in ORS 59.015.
(5)
“Forfeiture counsel” means an attorney designated to represent a seizing agency
in criminal forfeiture actions or proceedings.
(6)
“Instrumentality” means property that is used or intended for use in prohibited
conduct or that facilitates prohibited conduct.
(7)
“Law enforcement agency” means any agency that employs police officers or
prosecutes criminal cases.
(8)
“Motor vehicle with a hidden compartment” means a motor vehicle as defined in
ORS 801.360 that has had the vehicle’s original design modified by a person
other than the manufacturer to create a container, space or enclosure for the
purpose of concealing, hiding or otherwise preventing discovery of its contents
and that is used or intended to be used to facilitate the commission of a
criminal offense.
(9)
“Official law enforcement use” means a use that may reasonably be expected to
result in the identification, apprehension or conviction of criminal offenders.
(10)
“Police officer” has the meaning given that term in ORS 133.525.
(11)
“Proceeds of prohibited conduct” means property derived directly or indirectly
from, maintained by or realized through an act or omission that constitutes
prohibited conduct, and includes any benefit, interest or property of any kind
without reduction for expenses of acquiring or maintaining it or incurred for
any other reason.
(12)
“Prohibited conduct” means:
(a)
For purposes of proceeds, a felony or a Class A misdemeanor.
(b)
For purposes of instrumentalities, any crime listed in ORS 131.602.
(13)
“Property” means any interest in anything of value, including the whole of any
lot or tract of land and tangible and intangible personal property, including
currency, instruments or securities or any other kind of privilege, interest,
claim or right whether due or to become due.
(14)
“Seizing agency” means a law enforcement agency that has seized property for
criminal forfeiture.
(15)
“Weapon” means any instrument of offensive or defensive combat or anything
used, or designed to be used, to destroy, defeat or injure a person. [2005
c.830 §1; 2007 c.71 §30; 2009 c.874 §5]
131.553 Legislative findings; effect on
local laws; remedy not exclusive. (1) The
Legislative Assembly finds that:
(a)
Prohibited conduct is undertaken in the course of activities that result in,
and are facilitated by, the acquisition, possession or transfer of property
subject to criminal forfeiture under ORS 131.550 to 131.600;
(b)
Transactions involving property subject to criminal forfeiture under ORS
131.550 to 131.600 escape taxation;
(c)
Perpetrators of crimes should not be allowed to keep the proceeds and
instrumentalities of their crimes;
(d)
Governments attempting to respond to prohibited conduct require additional
resources to meet their needs; and
(e)
There is a need to provide for the forfeiture of certain property subject to
criminal forfeiture under ORS 131.550 to 131.600, to provide for the protection
of the rights and interests of affected persons and to provide for uniformity
throughout this state with respect to the laws of this state that pertain to
the criminal forfeiture of real and personal property based upon prohibited
conduct.
(2)
ORS 131.550 to 131.600 do not impair the right of any city or county to enact
ordinances providing for the criminal forfeiture of property based upon
prohibited conduct if:
(a)
The property was used to commit the conduct described in the ordinances, or
constitutes proceeds of the conduct; and
(b)
The criminal forfeiture is subject to procedures and limitations set forth in
ORS 131.550 to 131.600.
(3)
Nothing in ORS 131.550 to 131.600 may be construed to limit or impair any right
or remedy that any person or entity may have under ORS 166.715 to 166.735.
Criminal forfeiture is a remedy separate and apart from any other criminal
penalty and from civil forfeiture or any other civil penalty. [2005 c.830 §2]
131.556 Right, title and interest in
forfeited property vests in seizing agency.
Subject to ORS 131.550 to 131.600, all right, title and interest in property
forfeited under ORS 131.550 to 131.600 vest in the seizing agency upon
commission of the prohibited conduct. [2005 c.830 §3]
131.558 Property subject to forfeiture.
The following are subject to criminal forfeiture:
(1)
All controlled substances that have been manufactured, distributed, dispensed,
possessed or acquired in the course of prohibited conduct;
(2)
All raw materials, products and equipment of any kind that are used, or
intended for use, in providing, manufacturing, compounding, processing,
delivering, importing or exporting any service or substance in the course of
prohibited conduct;
(3)
All property that is used, or intended for use, as a container for property
described in subsection (1) or (2) of this section;
(4)
All conveyances, including aircraft, vehicles and vessels, that are used, or
are intended for use, to transport or facilitate the transportation, sale,
receipt, possession or concealment of property described in subsection (1) or
(2) of this section, and all conveyances, including aircraft, vehicles and
vessels, that are used or intended for use in prohibited conduct or to
facilitate prohibited conduct, except that:
(a)
No conveyance used by any person as a common carrier in the transaction of
business as a common carrier is subject to criminal forfeiture under the
provisions of this section unless the owner or other person in charge of such
conveyance was a consenting party or knew of and acquiesced in the prohibited
conduct; and
(b)
No conveyance is subject to criminal forfeiture under the provisions of this
section by reason of any act or omission established by the owner thereof to
have been committed or omitted by any person other than such owner while such
conveyance was unlawfully in the possession of a person other than the owner in
violation of the criminal laws of the United States or of any state;
(5)
All books, records, computers and research, including formulae, microfilm, tapes
and data that are used or intended for use to facilitate prohibited conduct;
(6)
All moneys, negotiable instruments, balances in deposit or other accounts,
securities or other things of value furnished or intended to be furnished by
any person in the course of prohibited conduct, all proceeds of or from
prohibited conduct, and all moneys, negotiable instruments, balances in deposit
and other accounts and securities used or intended to be used to facilitate any
prohibited conduct;
(7)
All real property, including any right, title and interest in the whole of any
lot or tract of land and any appurtenances or improvements, that is used or
intended to be used to commit or facilitate the commission of prohibited
conduct;
(8)
All weapons possessed, used or available for use to facilitate conduct giving
rise to criminal forfeiture;
(9)
All property described in this section that is intended for use in committing
or facilitating an attempt to commit a crime as described in ORS 161.405, a
solicitation as described in ORS 161.435 or a conspiracy as described in ORS
161.450; and
(10)
All personal property that is used or intended to be used to commit or
facilitate prohibited conduct. [2005 c.830 §4]
131.561 Seizure of property subject to
forfeiture. (1) A person who delivers property in
obedience to an order or direction to deliver the property under this section
is not liable:
(a)
To any person on account of obedience to the order or direction; or
(b)
For any costs incurred on account of any contamination of the delivered
property. This includes, but is not limited to, any disposal costs for any
property forfeited under ORS 131.558, any hazardous waste or material, any
contraband or any other contamination contained in property seized under this
section.
(2)
In addition to seizures authorized by ORS 133.535, a police officer may seize
property without a court order if the police officer has probable cause to
believe that the property is subject to criminal forfeiture.
(3)
Except as provided in ORS 131.564, with regard to cash or other assets that at
the time of seizure are held in any form of account in a financial institution,
if the property is in whole or in part intangible, the person having control or
custody of the property shall deliver the same over to the police officer.
(4)(a)
A police officer may seize property pursuant to an order of the court.
Forfeiture counsel or a seizing agency may apply for an ex parte order
directing seizure of specified property.
(b)
Application may be made to any judge as defined in ORS 133.525. The application
must be supported by one or more affidavits setting forth the facts and
circumstances tending to show where the objects of the seizure are to be found.
The court shall issue the order upon a finding of probable cause to believe
that the described property is subject to criminal forfeiture. The order may be
set out on the face of a search warrant.
(c)
Except as provided in ORS 131.564, with regard to cash or other assets that at
the time of seizure are held in any form of account in a financial institution,
if the property is in whole or in part intangible, the order shall direct any
person having control or custody of the property to deliver the same over to
the seizing agency or to the court to abide judgment.
(5)
Property may be constructively seized by posting notice of seizure for criminal
forfeiture on it or by filing notice of seizure for criminal forfeiture or
notice of pending criminal forfeiture in the public records that impart
constructive notice of matters relating to such property. A notice that is
filed must include a description of the property that is the subject of the
seizure. Real property, including interests arising out of land sale contracts,
may be seized only upon recording a notice of seizure containing a legal
description of the property in the mortgage records of the county in which the
real property is located.
(6)
Promptly upon seizure, the officer who seized the property shall make an
inventory of the property seized and shall deliver a receipt embodying the
inventory to the person from whose possession the property is taken or to the
person in apparent control of the property at the time it is seized. If the
property is unoccupied or there is no one present in apparent control, the officer
shall leave the receipt suitably affixed to the property. If the property is
physically removed from the location of seizure and it is unoccupied or there
is no one present in apparent control, then the officer shall promptly file the
receipt in the public records of the seizing agency. Every receipt prepared
under this subsection shall contain, in addition to an inventory of the
property seized, the following information:
(a)
The identity of the seizing agency; and
(b)
The address and telephone number of the office or other place where the person
may obtain further information concerning the criminal forfeiture.
(7)
In the event that property is seized from the possession of a person who
asserts a possessory lien over such property pursuant to applicable law,
notwithstanding any other provision of law, any lien of the person from whom
the property was seized remains in effect and is enforceable as fully as though
the person had retained possession of the property. [2005 c.830 §5]
131.564 Status of seized property; release;
maintenance and use. (1)(a) Except as otherwise
provided in ORS 131.550 to 131.600, property seized for criminal forfeiture is
not subject to replevin, conveyance, sequestration or attachment. The seizure
of property or the commencement of a criminal forfeiture proceeding under ORS
131.550 to 131.600 does not abate, impede or in any way delay the initiation or
prosecution of a suit or action by a financial institution for the possession
of seized property in which the financial institution has or purports to have a
lien or security interest or for the foreclosure of such lien or security
interest. A financial institution may proceed with any suit or action involving
property in which it has a lien or security interest even though a seizure has
occurred and criminal forfeiture proceedings have been or will be commenced. If
property that may be subject to criminal forfeiture is sold prior to the
conclusion of the forfeiture proceedings, the sheriff, trustee or other person
who is conducting the sale and who has actual notice of the forfeiture
proceedings shall distribute the sale proceeds as follows:
(A)
To the expenses of the sale;
(B)
If the property is a motor vehicle with a hidden compartment, to reimburse the
seizing agency for the cost of disabling the hidden compartment;
(C)
To the payment of the obligations owed to the foreclosing financial institution
that are secured by the property and to any other person whose lien or security
interest in the property has been foreclosed in the suit or action in the order
determined by the court; and
(D)
The surplus, if any, shall be distributed to the seizing agency, or to the
court in which the forfeiture proceedings are pending.
(b)
The sheriff, trustee or other person who distributes the sale proceeds as
provided in this subsection is not liable to any person who has or asserts an
interest in the property.
(2)
Within 30 days following seizure of property for criminal forfeiture, the
seizing agency, in consultation with the district attorney of the county in
which the property was seized for forfeiture, shall determine whether it will
seek the forfeiture of the property. If the seizing agency elects not to seek
forfeiture, it shall pay all costs and expenses relating to towing and storage
of the property, and shall cause to be discharged any possessory chattel liens
arising under ORS 87.152 to 87.162 that have attached to the property since its
seizure and release the property. The property may be released to a person
other than the person from whose custody or control the property was taken if
the seizing agency or forfeiture counsel first mails to the last-known
addresses of all persons known to have an interest in the property a notice of
intent to release the property. The notice must specify the person to whom the
property is to be released and must detail the time and place of the release.
An agency that complies with the provisions of this subsection by paying costs
and expenses of towing and storage, discharging possessory liens, mailing any
required notices and releasing the property is not liable for its actions under
this subsection or for any consequences thereof. If the property is a motor
vehicle with a hidden compartment, the seizing agency is not liable for any
diminution in the value of the property as a result of disabling the
compartment.
(3)
A seizing agency shall, pending criminal forfeiture and final disposition and
subject to the need to retain the property in any criminal proceeding, provide
that property in the physical custody of the seizing agency be serviced or
maintained as may be reasonably appropriate to preserve the value of the
property.
(4)
A seizing agency may, pending criminal forfeiture and final disposition and
subject to the need to retain seized property in any criminal proceeding:
(a)
Provide that the seized property be transferred for criminal forfeiture to any
city, county, state or federal agency with criminal forfeiture authority,
provided that no such transfer may have the effect of diminishing or reducing
the rights of any third party under ORS 131.550 to 131.600.
(b)
Apply to the court for an order providing that the seized property may be sold,
leased, rented or operated in the manner and on the terms that may be specified
in the court’s order. The court shall deny any application unless the sale,
lease, rental or operation of the property will be conducted in a commercially
reasonable manner and will not result in a material reduction of the property’s
value. The court may enter an order only:
(A)
After notice and opportunity to be heard is provided to all persons known to
have or to claim an interest in the property; and
(B)
With the consent of all persons holding security interests of record in the
property.
(c)
Provide that the seized property be removed to a storage area for safekeeping.
(5)
Unless otherwise ordered by the court, the seizing agency shall hold the
proceeds of the sale, leasing, renting or operation under subsection (4) of
this section and the rights of holders of security interests of record in the
property attach to the proceeds of the sale, leasing, renting or operation in
the same order of priority as interests attached to the property.
(6)(a)
Except as provided in paragraph (b) of this subsection and except for currency
with apparent or known intrinsic collector value, all cash seized for criminal
forfeiture, together with all cash received from the sale, leasing, renting or
operation of the property, must be immediately deposited in an insured
interest-bearing forfeiture trust account or accounts maintained by the seizing
agency exclusively for this purpose. Cash may be retained as evidence in a
criminal proceeding but must be deposited immediately when the need to retain
it as evidence is discharged.
(b)
Notwithstanding paragraph (a) of this subsection, all cash seized for criminal
forfeiture that at the time of seizure is deposited in any form of account in a
financial institution may remain in the account in the financial institution.
From the time of seizure until the criminal forfeiture proceeding is abandoned,
or until a court ultimately enters a judgment granting or denying criminal
forfeiture or enters a judgment of dismissal, all deposits except the deposit
of interest by the financial institution, withdrawals or other transactions
involving the account are prohibited, unless approved by the court.
(c)
Subject to any court order, interest earned upon cash deposited in a forfeiture
trust account or held in an account in a financial institution under this
subsection must be disbursed as follows:
(A)
If the criminal forfeiture proceeding is abandoned, or if the court ultimately
enters a judgment denying criminal forfeiture or a judgment of dismissal, the
seizing agency shall pay any interest earned, together with the cash deposited
in the forfeiture trust account in connection with the seizure in question, to
the person from whom it was seized, and the seizing agency shall release any
interest earned, together with the cash deposited in an account in a financial
institution, to the person from whom it was seized.
(B)
If a judgment of criminal forfeiture is entered, but parties other than the
seizing agency establish rights to portions of the amount that are in the
aggregate larger than or equal to the cash on deposit plus interest earned
thereon, the seizing agency shall disburse the interest, together with the cash
on deposit, to the parties in the order of their priority.
(C)
If a judgment of criminal forfeiture is entered and the total amount arising
out of the seizure that is on deposit in the forfeiture trust account or in an
account in a financial institution, including interest earned on moneys
deposited, is greater than the aggregate amount needed to satisfy the
established interests of security interest holders, lienholders and other
claimants, the seizing agency shall retain the balance remaining after payment
by the seizing agency to parties.
(7)
If the property seized for criminal forfeiture consists of stocks, bonds,
promissory notes or other security or evidence of indebtedness, and the
property is held in some form of account in a financial institution, the
property may remain in the account pending a final decision in the criminal
forfeiture proceedings. Unless otherwise allowed by order of the court, no
transactions involving the account may be permitted other than the deposit or
reinvestment of dividends or other normally recurring payments on the property.
Any accrual to the value of the property during the pendency of criminal
forfeiture proceedings must be disbursed in the manner provided for the
disbursement of interest under subsection (6) of this section.
(8)
When property has been seized for criminal forfeiture or a notice of criminal
forfeiture has been filed, an owner of or interest holder in the property may
file a motion seeking an order to show cause. The motion must be filed no later
than 15 days after the owner or interest holder received notice or actual
knowledge of the seizure, whichever is earlier. At the time a person files a
motion under this subsection, the person must serve a copy of the motion on the
forfeiture counsel and the defendant, if any. When a motion is filed under this
subsection, the court shall issue an order to show cause to the seizing agency
for a hearing on the sole issue of whether probable cause for criminal
forfeiture of the property exists. If the court finds that there is no probable
cause for criminal forfeiture of the property, the property seized for criminal
forfeiture or subjected to the notice of criminal forfeiture must be released
pending the outcome of a judicial proceeding under ORS 131.582. As used in this
subsection, “owner” or “interest holder” does not include the defendant. [2005
c.830 §6; 2009 c.874 §4]
131.566 Motor vehicle with hidden compartment.
(1) When a seizing agency lawfully seizes a motor vehicle with a hidden
compartment, the agency shall disable the hidden compartment, unless the motor
vehicle is forfeited and the agency:
(a)
Retains the motor vehicle for law enforcement purposes; or
(b)
Determines that the cost of disabling the hidden compartment exceeds the value
of the motor vehicle.
(2)
Notwithstanding ORS 131.594 or 131.597, if the motor vehicle with a hidden
compartment is forfeited and the seizing agency:
(a)
Retains the motor vehicle for law enforcement purposes, the agency shall deduct
the cost of disabling the hidden compartment from the value of the motor
vehicle before making the distribution described in ORS 131.594 or 131.597.
(b)
Does not retain the motor vehicle for law enforcement purposes and determines
that the cost of disabling the hidden compartment exceeds the value of the
motor vehicle, the agency shall sell the motor vehicle for scrap or salvage and
distribute the proceeds of the sale according to ORS 131.594 or 131.597. The
seizing agency shall ensure that the person to whom the motor vehicle is sold
disables the hidden compartment or the motor vehicle.
(3)
If a motor vehicle with a hidden compartment is forfeited and the seizing
agency sells the motor vehicle, the agency shall deduct the cost of disabling
the hidden compartment from the proceeds of the sale under ORS 131.594 (1)(a)
or 131.597 (1)(a). [2009 c.874 §2]
131.567 Recorded notice of intent to forfeit
real property; form. (1) Whenever a seizing agency
intends to forfeit any real property under ORS 131.550 to 131.600, the seizing
agency may have recorded by the county clerk or other recorder of deeds of
every county in which any part of the premises or real property lies a notice
of intent to forfeit real property under ORS 205.246. The notice must contain
the legal description of the real property, the common address of the property,
if any, and the name of the forfeiture counsel. From the time of recording the
notice, and from that time only, the intent to forfeit is notice to purchasers
and holders of encumbrances of the rights and equities in the premises of the
party filing the notice. The notice must be recorded in the same book and in
the same manner in which mortgages are recorded and may be discharged in like
manner as mortgages are discharged, either by such party or the attorney
signing the notice.
(2)
Unless otherwise prescribed by law, a seizing agency recording a notice of
intent to forfeit shall use substantially the following form:
______________________________________________________________________________
NOTICE OF
INTENT TO FORFEIT
Pursuant to ORS 131.567, the undersigned
states:
That
I, _______________do declare that it is my intent to initiate criminal
forfeiture proceedings on the following described real property:
1.
The description of the real property to be affected is:
________________________
________________________
________________________
________________________
________________________
2.
The common address of the property, if any, is:
________________________
________________________
________________________
Dated this ___ day of________,___.
This notice of intent to file forfeiture
will expire on the ___ day of________, ___, absent future filings.
Name of agency seeking forfeiture
________________________
Name of Forfeiture Counsel
________________________
Address
________________________
________________________
________________________
Telephone Number
________________________
State of Oregon )
) ss.
County of_____ )
The
foregoing instrument was acknowledged before me this ___ day of________,___.
_______________
Notary Public for Oregon
My commission expires________.
______________________________________________________________________________
(3) The notice of intent to forfeit
property expires 30 days after the date of filing absent future filings to
perfect. [2005 c.830 §7]
131.570
Notice of seizure for forfeiture; service on persons other than defendant;
publication of notice. (1) As soon as practicable after
seizure for criminal forfeiture, the seizing agency shall review the inventory
prepared by the police officer under ORS 131.561. Within 30 days after seizure
for criminal forfeiture, the forfeiture counsel shall file a criminal
information or an indictment alleging facts sufficient to establish that the
property is subject to criminal forfeiture. Within 30 days after seizure for
criminal forfeiture, the seizing agency or forfeiture counsel shall prepare a
notice of seizure for criminal forfeiture containing a copy of the inventory
prepared pursuant to ORS 131.561, the identity of the person from whom the
property was seized, the name, address and telephone number of the seizing
agency and the address and telephone number of the office or other place where
further information concerning the seizure and criminal forfeiture may be
obtained, and shall make reasonable efforts to serve the notice of seizure for
criminal forfeiture on all persons, other than the defendant, known to have an
interest in the seized property. A person may be served as provided in ORCP 7 D
except that the notice must also include information regarding the right to
file a claim under subsection (2) of this section, if applicable, and the
deadline for filing the claim. If the property is cash in the amount of $1,000
or less or if the fair market value of the property is $1,000 or less, the
seizing agency may publish notice of seizure for criminal forfeiture in a
newspaper as provided in ORCP 7 D(6)(b) to D(6)(d). In all other cases, the
seizing agency shall publish notice of seizure for criminal forfeiture in a
newspaper as provided in ORCP 7 D(6)(b) to D(6)(d). The seizing agency shall
provide a copy of the notice, inventory and estimate of value to the forfeiture
counsel.
(2) Except as otherwise provided in ORS
131.579 (1) to (3), if notice of seizure for criminal forfeiture:
(a) Is given in a manner other than by
publication, any person, other than the defendant, claiming an interest in the
property must file a claim with the forfeiture counsel within 21 days after
service of notice of seizure for criminal forfeiture.
(b) Is published, any person, other than
the defendant, claiming an interest in the property must file a claim with the
forfeiture counsel within 21 days after the last publication date.
(3) An extension for the filing of a claim
under subsection (2) of this section may not be granted. The claim must be
signed by the claimant under penalty of perjury and must set forth all of the
following:
(a) The true name of the claimant;
(b) The address at which the claimant will
accept future mailings from the court or the forfeiture counsel; and
(c) A statement that the claimant has an
interest in the seized property.
(4) If a seizing agency publishes notice
of seizure for criminal forfeiture in a newspaper in the manner provided by
subsection (1) of this section, the agency may include in a single publication
as many notices of criminal forfeiture as the agency considers convenient. The
publication may contain a single statement of matters from the notices of
criminal forfeiture that are common to all of the notices and that would
otherwise result in needless repetition. The publication must contain for each
notice of criminal forfeiture a separate copy of the inventory prepared
pursuant to ORS 131.561, and a separate statement of the identity of the person
from whose custody the property was seized. The published inventory need not
contain estimates of value for the property seized. [2005 c.830 §8]
131.573
Petition for expedited hearing. (1) A person,
other than the defendant, claiming an interest in property seized under ORS
131.550 to 131.600 may file a petition for an expedited hearing within 15 days
after notice of seizure for criminal forfeiture or within such further time as
the court may allow for good cause shown.
(2) A petition for an expedited hearing
must contain a claim if no claim has previously been filed. The petition must
reflect whether the petitioner seeks one or more of the following:
(a) A determination at the hearing that
the petitioner is a bona fide purchaser for value and did not acquiesce in the
prohibited conduct.
(b) An order restoring custody of seized
property to the petitioner during the pendency of the proceedings if the court
finds, by a preponderance of the evidence, that it is probable that the
property will remain available for forfeiture at the completion of the
proceedings and that there is a reasonable possibility that the petitioner will
ultimately prevail in the proceeding.
(c) Appointment of a receiver.
(3) A person filing a petition under this
section shall serve a copy of the petition on all persons known to have an
interest. Service must be accomplished as provided in ORCP 7 D. Service by
publication is not required prior to an expedited hearing.
(4) The court shall hold a hearing within
15 days after service of all persons known to have an interest or at such later
time as the court may allow for good cause shown. The hearing is limited to:
(a) Deciding whether the petitioner can
prove that the petitioner is a bona fide purchaser for value and did not
acquiesce in the prohibited conduct;
(b) Determining whether an order should be
entered directing the return of the seized property to the claimant during the
pendency of the hearing; and
(c) Determining whether an order should be
entered directing the appointment of a receiver to manage property seized
pursuant to ORS 131.550 to 131.600 pending a final determination as to the
disposition of the property, if the petitioner or the seizing agency requests
that order.
(5) The parties to a proceeding under ORS
131.582 may at any time stipulate to the entry of an order restoring custody of
seized property to a petitioner who claims an interest in the property. The order
must comply with the requirements of ORS 131.576 (1). [2005 c.830 §9]
131.576
Order restoring custody of property after expedited hearing.
(1) An order restoring custody to a petitioner under ORS 131.573 shall:
(a) Prohibit the petitioner from using the
property in unlawful conduct of any kind, or from allowing the property to be
used by any other person in unlawful conduct;
(b) Require the petitioner to service and
maintain the property as may be reasonably appropriate to preserve the value of
the property; and
(c) Require the petitioner to inform the
court of the exact location of the property at the time of any judicial
proceeding under ORS 131.582 and to deliver the property to the seizing agency
immediately upon the issuance of a judgment of criminal forfeiture.
(2) An order restoring custody to a
petitioner under ORS 131.573 may include such other requirements as the court
finds appropriate pending a final determination as to the disposition of the
property.
(3) An order restoring custody to a
petitioner under ORS 131.573 is enforceable by a contempt proceeding brought on
the relation of forfeiture counsel, by a further order directing the petitioner
to deliver the property to the custody of the seizing agency, by an order
awarding to the seizing agency its reasonably incurred attorney fees, costs and
investigative expenses, and by such other remedies or relief as the court finds
appropriate. [2005 c.830 §10]
131.579
Affidavit in response to notice of seizure for forfeiture.
(1)(a) A financial institution holding an interest in property seized under ORS
131.550 to 131.600 shall respond to a notice of seizure for criminal forfeiture
by filing an affidavit with the court establishing that the financial
institution’s interest in the property was acquired:
(A) In the regular course of business as a
financial institution;
(B) For valuable consideration;
(C) Without knowledge of the prohibited
conduct;
(D) In good faith and without intent to
defeat the interest of any potential seizing agency; and
(E) With respect to personal property,
prior to the seizure of the property, or with respect to real property,
recorded prior to the recording of notice of the seizure of the real property
in the mortgage records of the county in which the real property is located.
(b) Failure to file an affidavit
constitutes a default. The affidavit must be filed within 30 days from the date
of service under ORS 131.570.
(2) Notwithstanding the provisions of
subsection (1) of this section, any person, other than a financial institution,
who transfers or conveys an interest in real property pursuant to a contract
for transfer or conveyance of an interest in real property as defined in ORS
93.905 and who retains an interest in the real property, or any successor in interest,
may respond to a notice of seizure for criminal forfeiture by filing an
affidavit with the court establishing that the person:
(a) Received the interest in return for
valuable consideration or by way of devise or intestate succession;
(b) Had no knowledge at the time of
transfer or conveyance of the prohibited conduct;
(c) Acted in good faith and without intent
to defeat the interest of any potential seizing agency;
(d) Recorded the interest in the mortgage
records of the county in which the real property is located prior to the
recording of any notice of intent to seize or notice of seizure; and
(e) Continued to hold the interest without
acquiescing in the prohibited conduct.
(3) The affidavit permitted by subsection
(2) of this section must be filed within 30 days from the date of service under
ORS 131.570. Failure to file an affidavit as set forth in subsection (2) of
this section constitutes a default.
(4) In response to an affidavit filed
under subsection (2) of this section, the seizing agency may controvert any or
all of the assertions made in the affidavit. The affidavit of the seizing
agency must be filed with the court within 20 days after the date the affidavit
is filed under subsection (2) of this section. The transferor, conveyor or successor
in interest may respond, within five days after the filing of the affidavit of
the seizing agency, with a supplemental affidavit limited to the matters stated
in the affidavit of the seizing agency. If the seizing agency does not file an
affidavit within the time allowed, the transferor, conveyor or successor in
interest is considered to be a financial institution for all purposes under ORS
131.550 to 131.600.
(5) If the seizing agency files an
affidavit under subsection (4) of this section, the court shall decide the
issues raised in the affidavit in a proceeding under ORS 131.582. [2005 c.830 §11]
131.582
Prosecution of criminal forfeiture; indictment or information; burden of proof;
judgment; notice to claimants. (1) If a
district attorney decides to proceed with a criminal forfeiture, the district
attorney must present the criminal forfeiture to the grand jury for indictment.
The indictment must allege facts sufficient to establish that the property is
subject to criminal forfeiture and must comply with ORS 132.510, 132.540,
132.550, 132.557, 132.560 and 132.580.
(2) If the grand jury returns an
indictment for criminal forfeiture, the defendant may admit or deny that the
property is subject to criminal forfeiture. If the defendant fails to admit or
deny that the property is subject to forfeiture, the court shall enter a denial
on behalf of the defendant.
(3) When the underlying criminal conduct
is a Class A misdemeanor, a city or county attorney may prosecute a criminal
forfeiture by filing an information in the municipal or justice court.
(4) A criminal forfeiture proceeding and
the underlying criminal case must be tried in the same proceeding.
(5) The criminal procedure laws of this
state apply to criminal forfeiture proceedings.
(6) The court shall enter a judgment of
criminal forfeiture if the forfeiture counsel proves beyond a reasonable doubt
that the property for which forfeiture is sought is an instrumentality or the
proceeds of the crime of conviction or past prohibited conduct that is similar
to the crime of conviction.
(7) Forfeiture counsel may move the court
at any time for an order finding that the defendant is a fugitive and in
default. The court may enter an order finding the defendant in default under
this subsection and enter a judgment of criminal forfeiture if the court finds
that the defendant is not confined or held in custody by another jurisdiction,
and that the defendant, after notice or knowledge of the fact that a warrant
has been issued for the defendant:
(a) Purposely left the state to avoid
prosecution;
(b) Declines to return to the state and
allow execution of the warrant; or
(c) Otherwise evades the jurisdiction of
the court issuing the warrant.
(8) No later than 21 days after the entry
of a judgment of criminal forfeiture under this section, the forfeiture counsel
shall notify by mail all persons who filed claims under ORS 131.570 or
affidavits under ORS 131.579 of the judgment of criminal forfeiture. The notice
must inform the person of the requirements of subsection (9) of this section.
(9) If a person who receives notice under
subsection (8) of this section wishes to assert the person’s interest in the
property but was not eligible to file an affidavit under ORS 131.579, the
person must file an affidavit with the trial court, and must serve the
forfeiture counsel with a copy of the affidavit, no later than 21 days after
the date the notice required by subsection (8) of this section was mailed. The
person must allege facts in an affidavit filed under this subsection that if
true would prove that the person took the property or the interest that the
person holds in the property:
(a)(A) Before it was seized for criminal
forfeiture; and
(B) In good faith and without intent to
defeat the interest of any seizing agency; or
(b) As a bona fide purchaser for value
without acquiescing in the prohibited conduct.
(10)(a) If an affidavit is timely filed
under subsection (9) of this section and the forfeiture counsel:
(A) Does not contest the affidavit, the
forfeiture counsel shall submit a form of judgment to the court for entry under
ORS 131.588.
(B) Does contest the affidavit, the
forfeiture counsel shall request a hearing with the trial court no later than
21 days after receiving the affidavit.
(b) If no affidavit is filed under
subsection (9) of this section but the seizing agency filed an affidavit under
ORS 131.579 (4), the forfeiture counsel shall request a hearing with the trial
court no later than 21 days after the last date for receiving affidavits under
subsection (9) of this section.
(11)(a) A hearing pursuant to subsection
(10) of this section is an ancillary proceeding and the Oregon Rules of Civil
Procedure apply. At the hearing:
(A) Forfeiture counsel has the burden of
proving by a preponderance of the evidence that the person claiming an interest
in the property:
(i) Took the property with the intent to
defeat the interest of a seizing agency; or
(ii) Is not a bona fide purchaser for
value or acquiesced in the prohibited conduct.
(B) Forfeiture counsel may present
evidence and witnesses and cross-examine witnesses who appear at the hearing.
(C) The person claiming an interest in the
property may testify, present evidence and witnesses and cross-examine
witnesses who appear at the hearing.
(b) In addition to testimony and evidence
presented at the hearing, the court shall consider relevant portions of the
record of the criminal case that resulted in the judgment of criminal
forfeiture.
(c) The court shall amend the judgment of
criminal forfeiture in accordance with its determination if, after the hearing,
the court determines that the claimant:
(A) Did take the property before it was
seized for criminal forfeiture and in good faith and without intent to defeat
the interest of the seizing agency; or
(B) Is a bona fide purchaser for value of
the right, title or interest in the property and did not acquiesce in the
prohibited conduct.
(d) Notwithstanding ORS 19.255 (1), a
person may file a notice of appeal within 30 days after entry in the register
of an order disposing of the matters at issue in the ancillary proceeding. An
appeal under this paragraph is governed by the provisions of ORS chapter 19
relating to appeals in civil actions.
(12) When a court enters a judgment of
criminal forfeiture under this section, the jurisdiction of the court continues
for purposes of subsection (11) of this section and the property continues to
be subject to the court’s jurisdiction. [2005 c.830 §12]
131.585
Extent of judgment. (1) The court shall enter
judgment to the extent that the property is proceeds of the crime of conviction
or of past prohibited conduct that is similar to the crime of conviction.
(2) With respect to property that is an
instrumentality of the crime of conviction or of past prohibited conduct that
is similar to the crime of conviction, the court shall consider:
(a) Whether the property constitutes the
defendant’s lawful livelihood or means of earning a living.
(b) Whether the property is the defendant’s
residence.
(c) The degree of relationship between the
property and the prohibited conduct, including the extent to which the property
facilitated the prohibited conduct or could facilitate future prohibited
conduct.
(d) The monetary value of the property in
relation to the risk of injury to the public from the prohibited conduct.
(e) The monetary value of the property in
relation to the actual injury to the public from the prohibited conduct.
(f) The monetary value of the property in
relation to objective measures of the potential or actual criminal culpability
of the person or persons engaging in the prohibited conduct, including:
(A) The inherent gravity of the prohibited
conduct;
(B) The potential sentence for similar
prohibited conduct under Oregon law;
(C) The defendant’s prior criminal
history; and
(D) The sentence actually imposed on the
defendant.
(g) Any additional relevant evidence. [2005
c.830 §13]
131.588
Judgment of forfeiture; contents; effect. (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. If the
property is a motor vehicle with a hidden compartment, the seizing agency is
not liable for any diminution in the value of the property as a result of
disabling the compartment. 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) If the property is a motor vehicle
with a hidden compartment, to reimburse the seizing agency for the cost of
disabling the hidden compartment;
(C) To the satisfaction of the foreclosed
liens, security interests and contracts in order of their priority; and
(D) 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) If the property is a motor vehicle
with a hidden compartment, to reimburse the seizing agency for the cost of
disabling the hidden compartment;
(C) To the satisfaction of the foreclosed
liens, security interests and contracts in the order of their priority; and
(D) 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. If the property is
a motor vehicle with a hidden compartment, the interests of any claimants or
financial institutions shall be reduced on a pro rata basis by the cost of
disabling the hidden compartment.
(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 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)(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.
(7) Except for deficiencies resulting from
disabling a hidden compartment in a motor vehicle with a hidden compartment,
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.
(8) 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.
[2005 c.830 §14; 2009 c.617 §4; 2009 c.874 §3; 2011 c.504 §3]
131.591
Equitable distribution of property or proceeds; intergovernmental agreements.
Distribution of property or proceeds in accordance with ORS 131.550 to 131.600
must be made equitably and may be made pursuant to intergovernmental agreement
under ORS chapter 190. Intergovernmental agreements providing for such
distributions and in effect on September 2, 2005, remain valid unless changed
by the parties. The equitable distribution of proceeds targeted for law
enforcement must involve sharing the proceeds between the seizing agency and
forfeiture counsel. [2005 c.830 §15]
131.594
Disposition and distribution of forfeited property when seizing agency not the
state. (1) After the seizing agency
distributes property under ORS 131.588, and when the seizing agency is not the
state, the seizing agency shall dispose of and distribute property as follows:
(a) The seizing agency shall pay costs
first from the property or its proceeds. As used in this subsection, “costs”
includes the expenses of publication, service of notices, towing, storage and
servicing or maintaining the seized property under ORS 131.564.
(b) After costs have been paid, the
seizing agency shall distribute to the victim any amount the seizing agency was
ordered to distribute under ORS 131.588 (4).
(c) After costs have been paid and
distributions under paragraph (b) of this subsection have been made, the
seizing agency shall distribute the rest of the property to the general fund of
the political subdivision that operates the seizing agency.
(2) Of the property distributed under
subsection (1)(c) of this section, the political subdivision shall distribute:
(a) Three percent to the Asset Forfeiture
Oversight Account established in ORS 131A.460;
(b) Seven percent to the Illegal Drug
Cleanup Fund established in ORS 475.495 for the purposes specified in ORS
475.495 (5) and (6); and
(c) Ten percent to the state General Fund.
(3) Of the property distributed under
subsection (1)(c) of this section that remains in the general fund of the
political subdivision after the distributions required by subsection (2) of
this section have been made:
(a) Fifty percent must be for official law
enforcement use; and
(b) Fifty percent must be used for
substance abuse treatment pursuant to a plan developed under ORS 430.420.
(4) Except as otherwise provided by
intergovernmental agreement, the seizing agency may:
(a) Sell, lease, lend or transfer the
property or proceeds to any federal, state or local law enforcement agency or
district attorney.
(b) Sell the forfeited property by public
or other commercially reasonable sale and pay from the proceeds the expenses of
keeping and selling the property.
(c) Retain the property.
(d) With written authorization from the
district attorney for the seizing agency’s jurisdiction, destroy any firearms
or controlled substances.
(5) A political subdivision may sell as
much property as may be needed to make the distributions required by subsections
(1) and (2) of this section. A political subdivision shall make distributions
to the Asset Forfeiture Oversight Account, the Illegal Drug Cleanup Fund and
the state General Fund that are required by subsection (2) of this section once
every three months. The distributions are due within 20 days of the end of each
quarter. Interest does not accrue on amounts that are paid within the period
specified by this subsection.
(6) A seizing agency may donate growing
equipment and laboratory equipment that was used, or intended for use, in
manufacturing of controlled substances to a public school, community college or
public university listed in ORS 352.002.
(7) This section applies only to criminal
forfeiture proceeds arising out of prohibited conduct. [2005 c.830 §16; 2009
c.78 §54; 2011 c.637 §61]
131.597
Disposition and distribution of forfeited property when seizing agency is the
state. (1) After the seizing agency
distributes property under ORS 131.588, and when the seizing agency is the
state or when the state is the recipient of property forfeited under ORS
131.550 to 131.600, the seizing agency shall dispose of and distribute property
as follows:
(a) The seizing agency shall pay costs
first from the property or its proceeds. As used in this subsection, “costs”
includes the expenses of publication, service of notices, towing, storage and
servicing or maintaining the seized property under ORS 131.564.
(b) After costs have been paid, the
seizing agency shall distribute to the victim any amount the seizing agency was
ordered to distribute under ORS 131.588 (4).
(c) Of the property remaining after costs
have been paid under paragraph (a) of this subsection and distributions have
been made under paragraph (b) of this subsection, the seizing agency shall
distribute:
(A) Three percent to the Asset Forfeiture
Oversight Account established in ORS 131A.460;
(B) Seven percent to the Illegal Drug
Cleanup Fund established in ORS 475.495 for the purposes specified in ORS
475.495 (5) and (6);
(C) Ten percent to the state General Fund;
(D) Subject to subsection (5) of this
section, 40 percent to the Department of State Police or the Department of
Justice for official law enforcement use; and
(E) Forty percent to the Drug Prevention
and Education Fund established in ORS 430.422.
(2)(a) Any amount paid to or retained by
the Department of Justice under subsection (1) of this section must be
deposited in the Criminal Justice Revolving Account in the State Treasury.
(b) Any amount paid to or retained by the
Department of State Police under subsection (1) of this section must be
deposited in the State Police Account.
(3) The state may:
(a) With written authorization from the
district attorney for the jurisdiction in which the property was seized,
destroy any firearms or controlled substances.
(b) Sell the forfeited property by public
or other commercially reasonable sale and pay from the proceeds the expenses of
keeping and selling the property.
(c) Retain any vehicles, firearms or other
equipment usable for law enforcement purposes, for official law enforcement use
directly by the state.
(d) Lend or transfer any vehicles,
firearms or other equipment usable for law enforcement purposes to any federal,
state or local law enforcement agency or district attorney for official law
enforcement use directly by the transferee entity.
(4) When the state has entered into an
intergovernmental agreement with one or more political subdivisions under ORS
131.591, or when a law enforcement agency of this state has entered into an
agreement with another law enforcement agency of this state, an equitable
portion of the forfeited property distributed under subsection (1)(c)(D) of
this section must be distributed to each agency participating in the seizure or
criminal forfeiture as provided by the agreement.
(5) The property distributed under
subsection (1)(c)(D) of this section, including any proceeds received by the
state under an intergovernmental agreement or under an agreement between state
law enforcement agencies, must be divided as follows:
(a) When no law enforcement agency other
than the Department of Justice participated in the seizure or forfeiture, or
when the Department of Justice has entered into an agreement under subsection
(4) of this section, the property must be deposited in the Criminal Justice
Revolving Account.
(b) When no law enforcement agency other
than the Department of State Police participated in the seizure or forfeiture,
or when the Department of State Police has entered into an agreement under
subsection (4) of this section, the property must be deposited in the State
Police Account.
(6) The seizing agency may sell as much
property as may be needed to make the distributions required by subsection (1)
of this section. The seizing agency shall make distributions to the Asset
Forfeiture Oversight Account and the Illegal Drug Cleanup Fund that are
required by subsection (1) of this section once every three months. The
distributions are due within 20 days of the end of each quarter. Interest does
not accrue on amounts that are paid within the period specified by this
subsection. [2005 c.830 §17; 2009 c.78 §55]
131.600
Records and reports. (1) A seizing agency and any
agency that receives forfeited property or proceeds from the sale of forfeited
property under ORS 131.550 to 131.600 shall maintain written documentation of
each sale, decision to retain, transfer or other disposition of forfeited
property.
(2)(a) As soon as practicable following
the seizure of property for criminal forfeiture, forfeiture counsel shall file
with the Asset Forfeiture Oversight Advisory Committee an electronic report
that describes the property seized and the circumstances of the seizure.
(b) As soon as practicable following entry
of judgment under ORS 131.588, forfeiture counsel shall file with the committee
an electronic report describing the judgment and the manner in which any
forfeited property and the proceeds from any sales of forfeited property were
distributed.
(3) Law enforcement agencies shall supply
to forfeiture counsel all information requested by forfeiture counsel that is
necessary for the preparation of the electronic reports required by subsection
(2) of this section.
(4) Political subdivisions of this state
that receive forfeiture proceeds under ORS 131.594 shall submit an electronic
report to the committee for any year in which those proceeds are received. The
report must describe how proceeds received by the political subdivision have
been or will be used. Reports shall be submitted each December 15 for the
preceding fiscal year of the political subdivision.
(5) The committee may require forfeiture
counsel or a political subdivision to include in the electronic reports any
additional information requested by the committee. The committee shall develop
and make available electronic forms for the purposes of the reports described
in this section. [2005 c.830 §18; 2011 c.504 §1]
131.602
Prohibited conduct for purposes of instrumentalities of crime.
The crimes to which ORS 131.550 (12)(b) applies are:
(1) Bribe giving, as defined in ORS
162.015.
(2) Bribe receiving, as defined in ORS
162.025.
(3) Public investment fraud, as defined in
ORS 162.117.
(4) Bribing a witness, as defined in ORS
162.265.
(5) Bribe receiving by a witness, as
defined in ORS 162.275.
(6) Simulating legal process, as defined
in ORS 162.355.
(7) Official misconduct in the first
degree, as defined in ORS 162.415.
(8) Assisting another person to commit
suicide, as defined in ORS 163.193.
(9) Custodial interference in the second
degree, as defined in ORS 163.245.
(10) Custodial interference in the first
degree, as defined in ORS 163.257.
(11) Buying or selling a person under 18
years of age, as defined in ORS 163.537.
(12) Using a child in a display of
sexually explicit conduct, as defined in ORS 163.670.
(13) Encouraging child sexual abuse in the
first degree, as defined in ORS 163.684.
(14) Encouraging child sexual abuse in the
second degree, as defined in ORS 163.686.
(15) Encouraging child sexual abuse in the
third degree, as defined in ORS 163.687.
(16) Possession of materials depicting
sexually explicit conduct of a child in the first degree, as defined in ORS
163.688.
(17) Possession of materials depicting
sexually explicit conduct of a child in the second degree, as defined in ORS
163.689.
(18) Theft in the second degree, as
defined in ORS 164.045.
(19) Theft in the first degree, as defined
in ORS 164.055.
(20) Aggravated theft in the first degree,
as defined in ORS 164.057.
(21) Theft by extortion, as defined in ORS
164.075.
(22) Theft by deception, as defined in ORS
164.085, if it is a felony or a Class A misdemeanor.
(23) Theft by receiving, as defined in ORS
164.095, if it is a felony or a Class A misdemeanor.
(24) Theft of services, as defined in ORS
164.125, if it is a felony or a Class A misdemeanor.
(25) Unauthorized use of a vehicle, as
defined in ORS 164.135.
(26) Mail theft or receipt of stolen mail,
as defined in ORS 164.162.
(27) Laundering a monetary instrument, as
defined in ORS 164.170.
(28) Engaging in a financial transaction
in property derived from unlawful activity, as defined in ORS 164.172.
(29) Burglary in the second degree, as
defined in ORS 164.215.
(30) Burglary in the first degree, as
defined in ORS 164.225.
(31) Possession of a burglary tool or
theft device, as defined in ORS 164.235.
(32) Unlawful entry into a motor vehicle,
as defined in ORS 164.272.
(33) Arson in the second degree, as
defined in ORS 164.315.
(34) Arson in the first degree, as defined
in ORS 164.325.
(35) Computer crime, as defined in ORS
164.377.
(36) Robbery in the third degree, as
defined in ORS 164.395.
(37) Robbery in the second degree, as
defined in ORS 164.405.
(38) Robbery in the first degree, as
defined in ORS 164.415.
(39) Unlawful labeling of a sound recording,
as defined in ORS 164.868.
(40) Unlawful recording of a live
performance, as defined in ORS 164.869.
(41) Unlawful labeling of a videotape
recording, as defined in ORS 164.872.
(42) A violation of ORS 164.886.
(43)(a) Endangering aircraft in the first
degree, as defined in ORS 164.885.
(b) Endangering aircraft in the second
degree, as defined in ORS 164.885.
(44) Interference with agricultural
operations, as defined in ORS 164.887.
(45) Forgery in the second degree, as
defined in ORS 165.007.
(46) Forgery in the first degree, as
defined in ORS 165.013.
(47) Criminal possession of a forged
instrument in the second degree, as defined in ORS 165.017.
(48) Criminal possession of a forged
instrument in the first degree, as defined in ORS 165.022.
(49) Criminal possession of a forgery
device, as defined in ORS 165.032.
(50) Criminal simulation, as defined in
ORS 165.037.
(51) Fraudulently obtaining a signature,
as defined in ORS 165.042.
(52) Fraudulent use of a credit card, as
defined in ORS 165.055.
(53) Negotiating a bad check, as defined
in ORS 165.065.
(54) Possessing a fraudulent
communications device, as defined in ORS 165.070.
(55) Unlawful factoring of a payment card
transaction, as defined in ORS 165.074.
(56) Falsifying business records, as
defined in ORS 165.080.
(57) Sports bribery, as defined in ORS
165.085.
(58) Sports bribe receiving, as defined in
ORS 165.090.
(59) Misapplication of entrusted property,
as defined in ORS 165.095.
(60) Issuing a false financial statement,
as defined in ORS 165.100.
(61) Obtaining execution of documents by
deception, as defined in ORS 165.102.
(62) A violation of ORS 165.543.
(63) Cellular counterfeiting in the third
degree, as defined in ORS 165.577.
(64) Cellular counterfeiting in the second
degree, as defined in ORS 165.579.
(65) Cellular counterfeiting in the first
degree, as defined in ORS 165.581.
(66) Identity theft, as defined in ORS
165.800.
(67) A violation of ORS 166.190.
(68) Unlawful use of a weapon, as defined
in ORS 166.220.
(69) A violation of ORS 166.240.
(70) Unlawful possession of a firearm, as
defined in ORS 166.250.
(71) A violation of ORS 166.270.
(72) Unlawful possession of a machine gun,
short-barreled rifle, short-barreled shotgun or firearms silencer, as defined
in ORS 166.272.
(73) A violation of ORS 166.275.
(74) Unlawful possession of armor piercing
ammunition, as defined in ORS 166.350.
(75) A violation of ORS 166.370.
(76) Unlawful possession of a destructive
device, as defined in ORS 166.382.
(77) Unlawful manufacture of a destructive
device, as defined in ORS 166.384.
(78) Possession of a hoax destructive
device, as defined in ORS 166.385.
(79) A violation of ORS 166.410.
(80) Providing false information in
connection with a transfer of a firearm, as defined in ORS 166.416.
(81) Improperly transferring a firearm, as
defined in ORS 166.418.
(82) Unlawfully purchasing a firearm, as
defined in ORS 166.425.
(83) A violation of ORS 166.429.
(84) A violation of ORS 166.470.
(85) A violation of ORS 166.480.
(86) A violation of ORS 166.635.
(87) A violation of ORS 166.638.
(88) Unlawful paramilitary activity, as
defined in ORS 166.660.
(89) A violation of ORS 166.720.
(90) Prostitution, as defined in ORS
167.007.
(91) Patronizing a prostitute, as defined
in ORS 167.008.
(92) Promoting prostitution, as defined in
ORS 167.012.
(93) Compelling prostitution, as defined
in ORS 167.017.
(94) Exhibiting an obscene performance to
a minor, as defined in ORS 167.075.
(95) Unlawful gambling in the second
degree, as defined in ORS 167.122.
(96) Unlawful gambling in the first
degree, as defined in ORS 167.127.
(97) Possession of gambling records in the
second degree, as defined in ORS 167.132.
(98) Possession of gambling records in the
first degree, as defined in ORS 167.137.
(99) Possession of a gambling device, as
defined in ORS 167.147.
(100) Possession of a gray machine, as
defined in ORS 167.164.
(101) Cheating, as defined in ORS 167.167.
(102) Tampering with drug records, as
defined in ORS 167.212.
(103) A violation of ORS 167.262.
(104) Research and animal interference, as
defined in ORS 167.312.
(105) Animal abuse in the first degree, as
defined in ORS 167.320.
(106) Aggravated animal abuse in the first
degree, as defined in ORS 167.322.
(107) Animal neglect in the first degree,
as defined in ORS 167.330.
(108) Interfering with an assistance, a
search and rescue or a therapy animal, as defined in ORS 167.352.
(109) Involvement in animal fighting, as
defined in ORS 167.355.
(110) Dogfighting, as defined in ORS
167.365.
(111) Participation in dogfighting, as
defined in ORS 167.370.
(112) Unauthorized use of a livestock
animal, as defined in ORS 167.385.
(113) Interference with livestock
production, as defined in ORS 167.388.
(114) A violation of ORS 167.390.
(115) Participation in cockfighting, as
defined in ORS 167.431.
(116) A violation of ORS 471.410.
(117) Failure to report missing precursor
substances, as defined in ORS 475.955.
(118) Illegally selling drug equipment, as
defined in ORS 475.960.
(119) Providing false information on a
precursor substances report, as defined in ORS 475.965.
(120) Unlawful delivery of an imitation
controlled substance, as defined in ORS 475.912.
(121) A violation of ORS 475.752, if it is
a felony or a Class A misdemeanor.
(122) A violation of ORS 475.914, if it is
a felony or a Class A misdemeanor.
(123) A violation of ORS 475.916.
(124) A violation of ORS 475.906, if it is
a felony or a Class A misdemeanor.
(125) A violation of ORS 475.904.
(126) Misuse of an identification card, as
defined in ORS 807.430.
(127) Unlawful production of
identification cards, licenses, permits, forms or camera cards, as defined in
ORS 807.500.
(128) Transfer of documents for the
purposes of misrepresentation, as defined in ORS 807.510.
(129) Using an invalid license, as defined
in ORS 807.580.
(130) Permitting misuse of a license, as
defined in ORS 807.590.
(131) Using another’s license, as defined
in ORS 807.600.
(132) Criminal driving while suspended or
revoked, as defined in ORS 811.182, when it is a felony.
(133) Driving while under the influence of
intoxicants, as defined in ORS 813.010, when it is a felony.
(134) Unlawful distribution of cigarettes,
as defined in ORS 323.482.
(135) Unlawful distribution of tobacco
products, as defined in ORS 323.632.
(136) A violation of ORS 180.440 (2) or
180.486 (2).
(137) A violation described in ORS 475.806
to 475.894, if it is a felony.
(138) Subjecting another person to
involuntary servitude in the first degree, as defined in ORS 163.264.
(139) Subjecting another person to
involuntary servitude in the second degree, as defined in ORS 163.263.
(140) Trafficking in persons, as defined
in ORS 163.266.
(141) Luring a minor, as defined in ORS
167.057.
(142) Online sexual corruption of a child
in the second degree, as defined in ORS 163.432.
(143) Online sexual corruption of a child
in the first degree, as defined in ORS 163.433.
(144) An attempt, conspiracy or
solicitation to commit a crime in subsections (1) to (143) of this section if
the attempt, conspiracy or solicitation is a felony or a Class A misdemeanor. [2005
c.830 §19; 2005 c.830 §19a; 2007 c.40 §2; 2007 c.71 §31; 2007 c.811 §8; 2007
c.869 §4; 2007 c.876 §7; 2009 c.299 §5; 2009 c.717 §24; 2009 c.796 §3; 2009
c.874 §17; 2011 c.151 §7; 2011 c.552 §3; 2011 c.681 §4]
131.604
Disposition of forfeited cigarettes.
Notwithstanding ORS 131.594 and 131.597, if property forfeited under ORS
131.550 to 131.600 consists of cigarettes forfeited because of a violation of
ORS 180.440 (2), the seizing agency shall destroy the cigarettes. [2003 c.801 §16a;
2005 c.830 §29]
CRIME
PREVENTION
(Stopping
of Persons)
131.605
Definitions for ORS 131.605 to 131.625. As used in
ORS 131.605 to 131.625, unless the context requires otherwise:
(1) “Crime” has the meaning provided for
that term in ORS 161.515.
(2) “Dangerous weapon,” “deadly weapon”
and “person” have the meanings given those terms in ORS 161.015.
(3) “Frisk” is an external patting of a
person’s outer clothing.
(4) “Is about to commit” means unusual
conduct that leads a peace officer reasonably to conclude in light of the
officer’s training and experience that criminal activity may be afoot.
(5) “Peace officer” has the meaning given
that term in ORS 133.005.
(6) “Reasonably suspects” means that a
peace officer holds a belief that is reasonable under the totality of the
circumstances existing at the time and place the peace officer acts as
authorized in ORS 131.605 to 131.625.
(7) A “stop” is a temporary restraint of a
person’s liberty by a peace officer lawfully present in any place. [1973 c.836 §30;
1997 c.866 §2; 2011 c.506 §6; 2011 c.644 §12]
131.615
Stopping of persons. (1) A peace officer who
reasonably suspects that a person has committed or is about to commit a crime
may stop the person and, after informing the person that the peace officer is a
peace officer, make a reasonable inquiry.
(2) The detention and inquiry shall be
conducted in the vicinity of the stop and for no longer than a reasonable time.
(3) The inquiry shall be considered
reasonable if it is limited to:
(a) The immediate circumstances that
aroused the officer’s suspicion;
(b) Other circumstances arising during the
course of the detention and inquiry that give rise to a reasonable suspicion of
criminal activity; and
(c) Ensuring the safety of the officer,
the person stopped or other persons present, including an inquiry regarding the
presence of weapons.
(4) The inquiry may include a request for
consent to search in relation to the circumstances specified in subsection (3)
of this section or to search for items of evidence otherwise subject to search
or seizure under ORS 133.535.
(5) A peace officer making a stop may use
the degree of force reasonably necessary to make the stop and ensure the safety
of the peace officer, the person stopped or other persons who are present. [1973
c.836 §31; 1997 c.866 §1]
131.625
Frisk of stopped persons. (1) A peace officer may frisk a
stopped person for dangerous or deadly weapons if the officer reasonably
suspects that the person is armed and dangerous to the officer or other persons
present.
(2) If, in the course of the frisk, the
peace officer feels an object which the peace officer reasonably suspects is a
dangerous or deadly weapon, the peace officer may take such action as is
reasonably necessary to take possession of the weapon. [1973 c.836 §32; 1997
c.866 §3]
(Detention)
131.655
Detention and interrogation of persons suspected of theft committed in a store
or unlawful operation of audiovisual device in a motion picture theater;
probable cause. (1) Notwithstanding any other
provision of law, a person may be detained in a reasonable manner and for a
reasonable time by:
(a) A merchant or merchant’s employee who
has probable cause for believing that the person has committed theft of
property of a store or other mercantile establishment; or
(b) The owner or lessee of a motion
picture theater or authorized agent or employee of the owner or lessee who has
probable cause to believe that the person has violated ORS 164.882.
(2) Probable cause is a defense to any
civil or criminal action based on detention and interrogation that a person
brings against:
(a) A merchant or merchant’s employee who
has detained the person in a reasonable manner and for a reasonable time based
on probable cause for believing that the person has committed theft of property
of a store or other mercantile establishment; or
(b) The owner or lessee of a motion
picture theater or authorized agent or employee of the owner or lessee who has
detained the person based on probable cause for believing that the person has
violated ORS 164.882. [Formerly 133.037; 2005 c.459 §2]
(Prevention
by Public Officers)
131.665
Prevention by public officers. Crimes may be
prevented by the action of public officers in accordance with ORS 131.675,
131.685, 131.705 to 131.735, and as otherwise authorized by law. [1973 c.836 §34a
(enacted in lieu of 145.010)]
131.675
Dispersal of unlawful or riotous assemblages. When
any five or more persons, whether armed or not, are unlawfully or riotously
assembled in any county, city, town or village, the sheriff of the county and
the deputies of the sheriff, the mayor of the city, town or village, or chief
executive officer or officers thereof, and the justice of the peace of the
district where the assemblage takes place, or such of them as can forthwith be
collected, shall go among the persons assembled, or as near to them as they can
with safety, and command them in the name of the State of Oregon to disperse.
If, so commanded, they do not immediately disperse, the officer must arrest
them or cause them to be arrested; and they may be punished according to law. [Formerly
145.020; 1987 c.526 §1]
131.685
Authority of Governor to enter into agreements with other states for crime
prevention purposes. The Governor of Oregon may enter
into agreements or compacts with the Governor of any or all the States of
Washington, Idaho, California and Nevada, each acting on behalf of the own
state of the Governor, in order to effectuate cooperative effort and mutual
assistance in the prevention of crime in those states and in the enforcement of
their respective criminal laws and policies. [Formerly 145.060]
(Exclusion
from Public Property)
131.705
Definitions for ORS 131.705 to 131.735. As used in
ORS 131.705 to 131.735, unless the context requires otherwise:
(1) “Police” means the municipal police
and the county sheriff of the political subdivision in which the public
property is located, and the Department of State Police.
(2) “Public official” means the officer or
employee who is the administrative head of the board, commission, agency or
division or department of this state or any political subdivision therein which
has jurisdiction over any public property, or the designate of the officer or
employee.
(3) “Public property” means public lands,
premises and buildings, including but not limited to any building used in
connection with the transaction of public business or any lands, premises or
buildings owned or leased by this state or any political subdivision therein. [Formerly
145.610]
131.715
Proclamation of emergency period by Governor. After
consultation with the public official, or the designate of the public official,
and the police, the Governor may proclaim an emergency period if the Governor
finds that there exists on any public property a clear and present danger of
injury to persons, damage to property or denial of or substantial interference
with ingress or egress from public property. The proclamation shall describe
the public property affected by the proclamation. The Governor shall cause the
proclamation to be publicized. When the Governor finds that the danger has
ended, the Governor shall proclaim the end of the emergency period. [Formerly
145.620]
131.725
Exclusion from public property. (1) During
the emergency period proclaimed by the Governor under ORS 131.715, the public
official shall order excluded from the public property described in the
proclamation such persons who in the judgment of the public official are
contributing to or aggravating the danger which the Governor has proclaimed to
exist.
(2) After informing the person ordered
removed or excluded from the public property of the proclamation and order, the
police shall remove or exclude such person from such public property.
(3) Any person who, having been ordered
excluded or removed from any public property, knowingly enters thereon or who
remains on such property during an emergency period proclaimed by the Governor
under ORS 131.715 and who refuses to leave such property upon request by the
police, commits a Class A misdemeanor. [Formerly 145.630]
131.735
Review of exclusion order. Any person ordered removed or
excluded from any public property under ORS 131.715 and 131.725 shall have
immediate access to the circuit court for the county in which the property is
located for review of the order of exclusion or removal. Such access shall be
in the form of a writ of review and shall be given priority over all other
cases on the docket of the circuit court. [Formerly 145.640]
(Special
Law Enforcement Officers)
131.805
Authority to employ special agents. The Governor
may employ, at such salaries as the Governor deems reasonable for the services
rendered, special agents to effect the apprehension and conviction of
criminals, the return of fugitives from justice, the investigation of cases in
which the Governor believes the laws of the state are being violated, the
supervision of persons paroled or conditionally pardoned from the Department of
Corrections or the collection of evidence in any case, civil or criminal, in
which the state is interested whenever in the judgment of the Governor it is
necessary from the conditions existing in any case, whenever the Governor is
convinced that criminals are likely to escape punishment and justice cannot be
done by the regularly constituted authorities of any county of the state or of
the state or whenever any emergency has arisen which in the judgment of the
Governor would justify the Governor so doing. [Formerly 148.010; 1987 c.320 §17]
131.815
Presentment of facts to circuit court. Whenever in
the opinion of the Governor the criminal laws of the state are not being
faithfully executed and enforced and the circumstances justify the appointment of
any sheriff, district attorney, constable or justice of the peace pro tem, the
Governor shall lay the facts of which the Governor is advised before the
circuit court, or any judge thereof, of the district of the office in question.
The court or judge shall, without delay, in a summary manner consider the facts
so presented and such further facts as can be gathered or may be presented by
or on behalf of the Governor, the officer or any party interested. [Formerly
148.110]
131.825
Hearing. The court, or judge thereof, in
conducting such hearing, shall have all the usual powers of the circuit court
or judge, including the power to subpoena and examine witnesses of its own
motion. The Governor, the officer affected or any party interested may subpoena
witnesses and appear and participate in person or by counsel, and the officer
shall be given reasonable opportunity to prepare and present this case. The
Attorney General shall appear on behalf of the Governor if by the Governor
requested so to do. [Formerly 148.120]
131.835
Request that judge of another district conduct hearing; traveling expenses.
When the Governor has made a request for an investigation before the court or
judge of the district of the office affected, the court or judge may request
that the hearing be held before the court or judge of any other district and
call in such court or judge to conduct the same at the regular place of holding
court in the district of the office affected. Such a request shall be made by
the court or judge without delay and the court or judge called in shall proceed
without delay to conduct the hearing. The actual necessary traveling expenses
of any court or judge that is called in shall be paid out of the funds
appropriated for the purposes of ORS 131.815 to 131.875 upon properly verified
vouchers being presented to the Secretary of State. [Formerly 148.130]
131.845
Findings. The court or judge shall make such
findings as are justified by the facts adduced at the hearing and shall find as
to whether or not the criminal laws of the state are being faithfully executed
and enforced by the officers under investigation. [Formerly 148.140]
131.855
Appointment of special officers on finding that laws are not enforced.
If it is found that the criminal laws of the state are not being faithfully
executed and enforced by the officers under investigation, the Governor may
appoint, for a period not longer than 90 days, such special officers as may be
necessary to correct the failure to execute or enforce the criminal laws. [Formerly
148.150]
131.860
Qualifying of special officers; powers and duties.
When appointed, special officers shall qualify in the same manner as provided
by law for regularly elected officers, shall have all the power and authority
of the regularly elected officers necessary to effectuate the purposes of the
appointment and shall carry out the directions of the Governor, pursuant to the
appointment, in the same manner and to the same extent as the duly elected
officers could do or perform; and no greater power shall be conferred upon any
special officer than is by law lodged with the regularly elected officers. [Formerly
148.160]
131.865
Compensation of special officers. The special
officers provided for in ORS 131.855 shall receive a compensation for the time
they are appointed equal to that provided for the regularly elected officers,
the compensation to be paid in the same manner as the regular officers are
paid. [Formerly 148.170]
131.875
Effect of appointment of special officers on salary of regular officers.
The regularly elected, qualified and acting officers shall, during any
appointment of a special officer, receive the salary provided by law, to the
same extent as though no special officer had been appointed. [Formerly 148.180]
131.880
Appointment of railroad police officers; liability.
The Governor, upon application of any railroad company operating in this state,
may appoint and commission, during the pleasure of the Governor, persons
designated by the company and to serve at the expense of the company, as police
officers, with the powers of peace officers and who, after being duly sworn,
may act as police officers to protect the railroad company property and the
persons or property of the railroad company passengers or employees. The
railroad company designating such persons is civilly responsible for any abuse
of their authority. [1973 c.676 §1]
(Rewards)
131.885
Offer of reward. If any person charged with or
convicted of any felony within this state breaks prison, escapes, absconds or
flees or hides from justice, the county court or county governing body of the
county in which the crime was committed, if the court or governing body deems
it necessary, may offer a reward for information leading to the apprehension of
such person by the appropriate police authority. [Formerly 149.010; 1981 c.300 §1;
1999 c.217 §1]
131.890
Entitlement to reward; use of public money to reward bounty hunter.
(1) Any person providing information leading to the apprehension of a person
for whom a reward has been offered under ORS 131.885 is entitled to and shall
be paid the reward offered under ORS 131.885 or a proportionate share thereof
if more than one claimant is entitled.
(2) No public money may be used to pay a
reward to a bounty hunter under this section. As used in this subsection, “bounty
hunter” means a private person who is in the business of apprehending persons
who have forfeited security or broken the terms of a security release, fled
from justice or escaped from confinement. [Formerly 149.020; 1981 c.300 §2;
1999 c.217 §2]
131.892
Offer of reward for information on commission of criminal offense.
An organization, association or person may offer a reward for information
leading to the apprehension and conviction of any person who has committed a
criminal offense. [1993 c.543 §2; 1995 c.461 §1; 1999 c.217 §3]
131.895
Procedure for payment. The county court or county
governing body, on the claim of the applicant for reward under ORS 131.885 to
131.895, shall determine whether the claimant is entitled to the reward. If it
so determines, it shall certify the amount offered in reward, or a
proportionate share thereof if more than one claimant is entitled, to the
county clerk of the county and the county clerk shall draw a warrant on the
treasurer of the county for the amount so authorized. [Formerly 149.030; 1981
c.300 §3]
131.897
Authority to order repayment of reward as part of sentence.
(1) In addition to any other sentence it may impose as a result of a criminal
conviction, the court may order that a defendant reimburse to a person,
organization, association or public body or officer, any sum or portion thereof
offered and paid by the person, organization, association or public body or
officer under ORS 131.885 to 131.895, as a reward for information leading to
the apprehension of the defendant. Reimbursement under this section shall be
ordered paid into the court, for further transfer by the clerk to the person,
organization, association or public body or officer entitled to it.
(2) In determining whether to order
reimbursement under this section, the court shall take into account:
(a) The financial resources of the
defendant and the burden that reimbursement will impose, with due regard to the
other obligations of the defendant; and
(b) The ability of the defendant to make
reimbursement on an installment basis or on other conditions to be fixed by the
court. [1981 c.300 §4; 1987 c.905 §13; 1993 c.543 §3; 1995 c.461 §2; 1999 c.217
§4; 2011 c.597 §121]
LIABILITY
FOR MEDICAL EXPENSES OF CERTAIN PERSONS
131.900
Liability for medical expenses for person restrained, detained or taken into
custody. Except as otherwise provided by ORS
30.260 to 30.300, federal civil rights law or written agreement, the state, a
county, a city, a law enforcement agency or local correctional facility thereof
is not liable for charges or expenses for any medical services provided to an
individual who is the object of efforts by a law enforcement officer to
restrain or detain or take into custody. [1991 c.778 §8; 1993 c.196 §2]
LAW
ENFORCEMENT CONTACTS POLICY AND DATA REVIEW COMMITTEE
131.905
Legislative findings. The Legislative Assembly finds
and declares that:
(1) Surveys of the trust and confidence
placed by Oregonians in state and local law enforcement indicate that there are
Oregonians who believe that some law enforcement officers have engaged in
practices that inequitably and unlawfully discriminate against individuals
solely on the basis of their race, color or national origin.
(2) State and local law enforcement agencies
can perform their missions more effectively when all Oregonians have trust and
confidence that law enforcement stops and other contacts with individuals are
free from inequitable and unlawful discrimination based on race, color or
national origin.
(3) Representatives of community interest
groups and state and local law enforcement agencies agree that collecting
certain demographic data about contacts between individuals and state or local
law enforcement officers will provide a statistical foundation to ensure that
future contacts are free from inequitable and unlawful discrimination based on
race, color or national origin.
(4) Demographic data collection can
establish a factual and quantifiable foundation for measuring progress in
eliminating discrimination based on race, color or national origin during law
enforcement stops and other contacts with individuals, but data collection
alone does not provide a sufficient basis for corrective action. Proper
analysis of the demographic data and enactment of meaningful reforms in
response to the results of that analysis require careful consideration of all
relevant factors including the context of the community in which the data has
been collected.
(5) It is the goal of this state that all
law enforcement agencies perform their missions without inappropriate use of
race, color or national origin as the basis for law enforcement actions. This
goal may be achieved by providing assistance to state and local law enforcement
agencies and the communities that they serve.
(6) This state shall foster, encourage and
support the collection and analysis of demographic data by state and local law
enforcement agencies. [2001 c.687 §5]
131.906
Law Enforcement Contacts Policy and Data Review Committee; duties; report.
(1) There is created the Law Enforcement Contacts Policy and Data Review
Committee consisting of 11 members appointed by the Governor.
(2) The purpose of the committee is to
receive and analyze demographic data to ensure that law enforcement agencies
perform their missions without inequitable or unlawful discrimination based on
race, color or national origin.
(3) To achieve its purpose, the committee
shall collect and analyze demographic data to:
(a) Provide information to assist
communities and state and local law enforcement agencies in evaluating the
policies, training and procedures of law enforcement agencies regarding the
treatment of individuals during stops and other contacts with law enforcement;
(b) Inform state and local law enforcement
agencies and communities about law enforcement practices; and
(c) Provide opportunities for communities
and state and local law enforcement agencies to work together to increase
public trust and confidence in law enforcement and to enhance the capacity of
communities and law enforcement agencies to provide more effective public
safety services.
(4) The committee shall:
(a) Solicit demographic data concerning
law enforcement stops and other contacts between state and local law
enforcement agencies and individuals;
(b) Publicize programs, procedures and
policies from communities that have made progress toward eliminating
discrimination based on race, color or national origin during law enforcement
stops and other contacts with individuals;
(c) Provide technical assistance,
including refinement of the minimum data elements as necessary for effective
analysis, to state and local law enforcement agencies that desire to begin
collecting demographic data;
(d) Provide technical assistance to
communities and state and local law enforcement agencies that desire to engage
in local efforts to involve individuals in the establishment and implementation
of programs, procedures and policies that will advance the goal of ORS 131.905;
(e) Obtain resources for independent analysis
and interpretation of demographic data collected by state or local law
enforcement agencies;
(f) Accept and analyze demographic data
collected by a state or local law enforcement agency if requested by a state or
local law enforcement agency and if resources are available; and
(g) Report to the public the results of
analyses of demographic data.
(5) In carrying out its purpose, the
committee may request and receive data files from participating law enforcement
agencies and may analyze data for each reported contact. These data files
should contain as many of the following items of information as are collected
by the participating law enforcement agency:
(a) The reason for the law enforcement
stop or other contact;
(b) The law enforcement officer’s perception
of the race, color or national origin of the individual involved in the
contact;
(c) The individual’s gender;
(d) The individual’s age;
(e) Whether a search was conducted in
connection with the contact, and if so, what resulted from the search;
(f) The disposition of the law enforcement
action, if any, resulting from the contact; and
(g) Additional data as recommended by the
committee that state and local law enforcement agencies should collect and
submit.
(6) Data received by the committee for
analysis under this section may not identify a particular law enforcement
officer or a particular individual whose demographic data is collected by a
state or local law enforcement agency.
(7) The committee shall elect one of its
members to serve as chairperson.
(8) Members of the committee who are not
members of the Legislative Assembly are not entitled to compensation, but may
be reimbursed for actual and necessary travel and other expenses incurred by
them in the performance of their official duties in the manner and amounts
provided for in ORS 292.495. Claims for expenses incurred in performing
functions of the committee shall be paid out of funds appropriated to Portland
State University for purposes of the committee.
(9) Portland State University shall
provide administrative support staff necessary to the performance of the
functions of the committee.
(10) All agencies of state government, as
defined in ORS 174.111, are requested to assist the committee in the
performance of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the members of the
committee consider necessary to perform their duties.
(11) The committee shall make findings and
issue recommendations for action to achieve the purpose of this section. The
committee shall submit a report containing its findings and recommendations to
the appropriate interim legislative committees annually on or before December
1.
(12) After completion of the analysis of
the data from at least two state or local law enforcement agencies, the
committee may recommend the collection of additional data elements.
(13) This section does not prohibit a
state or local law enforcement agency from collecting data in addition to the
information listed in subsection (5) of this section. [2001 c.687 §6; 2007
c.190 §2; 2009 c.859 §1]
131.908
Funding contributions. Portland State University may
accept contributions of funds from the United States, its agencies, or from any
other source, public or private, and agree to conditions thereon not
inconsistent with the purposes of the Law Enforcement Contacts Policy and Data
Review Committee. [2001 c.687 §8; 2007 c.190 §3]
131.909
Moneys received. All moneys received by Portland
State University under ORS 131.908 shall be paid into the State Treasury and
deposited into the General Fund to the credit of Portland State University.
Such moneys are appropriated continuously to Portland State University for the
purposes of ORS 131.906. [2001 c.687 §9; 2007 c.190 §4]
131.910
Measuring progress. The Law Enforcement Contacts
Policy and Data Review Committee shall assist the Oregon Progress Board in the
creation and adoption of goals as provided in ORS 284.622 to measure progress
toward the purpose of the committee under ORS 131.906. [2001 c.687 §10]
131.990
[Formerly 145.990; repealed by 1987 c.526 §2]
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