Chapter 135 — Arraignment and Pretrial Provisions

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2001 EDITION

ARRAIGNMENT

(Generally)

135.010 Time and place. When the accusatory instrument has been filed, and if the defendant has been arrested, or as soon thereafter as the defendant may be arrested, the defendant shall be arraigned thereon as provided in ORS 135.030 before the court in which it is found. Except for good cause shown or at the request of the defendant, if the defendant is in custody, the arraignment shall be held during the first 36 hours of custody, excluding holidays, Saturdays and Sundays. In all other cases, except as provided for in ORS 133.060, the arraignment shall be held within 96 hours after the arrest. [Amended by 1973 c.836 §130; 1983 c.344 §1; 1983 c.661 §12]

135.020 Scope of proceedings. The arraignment shall be made by the court, or by the clerk or the district attorney under its direction, as provided in ORS 135.030. The arraignment consists of reading the accusatory instrument to the defendant, causing delivery to the defendant of a copy thereof and indorsements thereon, including the list of witnesses indorsed on it or appended thereto if the accusatory instrument is an indictment, asking the defendant how the defendant pleads to the charge. [Amended by 1973 c.836 §131; 1983 c.344 §2]

135.030 When presence of defendant is required; appearance by counsel. (1) When the accusatory instrument charges a crime punishable as a felony, the defendant shall appear in person at the arraignment.

(2) When the accusatory instrument charges a crime punishable as a misdemeanor, the defendant may appear in person or by counsel.

(3) As used in this section, a defendant appears "in person" if:

(a) The defendant is physically present before the court; or

(b) The defendant appears before the court by means of simultaneous television transmission allowing the court to observe and communicate with the defendant and the defendant to observe and communicate with the court. However, appearance by simultaneous television transmission shall not be permitted unless the facilities used enable the defendant to consult privately with defense counsel during the proceedings. [Formerly 135.110; 1983 c.344 §3]

135.035 Bringing in defendant not yet arrested or held to answer. When an accusatory instrument is filed in court, if the defendant has not been arrested and held to answer the charge, unless the defendant voluntarily appears for arraignment, the court shall issue a warrant of arrest as provided in ORS 133.110. [Formerly 135.140]

135.037 Omnibus hearing; when held; subject; ruling of court; counsel required. (1) At any time after the filing of the accusatory instrument in circuit court and before the commencement of trial thereon, the court upon motion of any party shall, and upon its own motion may, order an omnibus hearing.

(2) The purpose of an omnibus hearing shall be to rule on all pretrial motions and requests, including but not limited to the following issues:

(a) Suppression of evidence;

(b) Challenges to identification procedures used by the prosecution;

(d) Challenges to the accusatory instrument.

(3) The court, at the time of the omnibus hearing, may also consider any matters which will facilitate trial by avoiding unnecessary proof or by simplifying the issues to be tried, or which are otherwise appropriate under the circumstances to facilitate disposition of the proceeding.

(4) At the conclusion of the hearing and prior to trial the court shall prepare and file an order setting forth all rulings of the court on issues raised under subsection (2) of this section. The court shall further prepare and file a memorandum of other matters agreed upon at the hearing. Except in a prosecution of the defendant for perjury or false swearing, or impeachment of the defendant, no admissions made by the defendant or the attorney of the defendant at the hearing shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and the attorney.

(5) This section shall not be applied in any proceeding or at any stage of any proceeding where the defendant is not represented by counsel. [1973 c.550 §2]

(Counsel; Name Used)

135.040 Right to counsel. If the defendant appears for arraignment without counsel, the defendant shall be informed by the court that it is the right of the defendant to have counsel before being arraigned and shall be asked if the defendant desires the aid of counsel. [Formerly 135.310]

135.045 Court appointment of counsel; waiver of counsel; appointment of legal advisor. (1)(a) If the defendant in a criminal action appears without counsel at arraignment or thereafter, the court shall determine whether the defendant wishes to be represented by counsel.

(b) If the defendant does wish to be represented by counsel, the court, in accordance with ORS 135.050, shall appoint counsel to represent the defendant.

(c) If the defendant wishes to waive counsel, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense.

(d) If the court accepts a defendant’s waiver of counsel, the court may allow an attorney to serve as the defendant’s legal advisor and may, in accordance with ORS 135.050, appoint an attorney as the defendant’s legal advisor.

(2) Appointment of counsel, including a legal advisor, under this section:

(a) Is subject to ORS 135.050, 135.055 and 151.430 to 151.497; and

(b) Shall be made in compliance with the terms of applicable contracts executed by the State Court Administrator under ORS 151.460. [Formerly 135.320; 1987 c.803 §13; 1989 c.171 §16; 1989 c.1053 §1a; 1991 c.790 §11; 2001 c.472 §1]

Note: The amendments to 135.045 by section 24, chapter 962, Oregon Laws 2001, become operative October 1, 2003. See section 15, chapter 962, Oregon Laws 2001. The text that is operative on and after October 1, 2003, is set forth for the user’s convenience.

135.045. (1)(a) If the defendant in a criminal action appears without counsel at arraignment or thereafter, the court shall determine whether the defendant wishes to be represented by counsel.

(b) If the defendant does wish to be represented by counsel, the court, in accordance with ORS 135.050, shall appoint counsel to represent the defendant.

(2) Appointment of counsel, including a legal advisor, under this section is subject to ORS 135.050, 135.055 and 151.485 to 151.497.

135.050 Eligibility for court-appointed counsel; financial statement; termination; civil liability. (1) Suitable counsel for a defendant shall be appointed by a court if:

(a) The defendant is before a court on a matter described in subsection (4) of this section;

(b) The defendant requests aid of counsel;

(d) It appears to the court that the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant’s dependent family.

(2) Appointed counsel shall not be denied to any defendant merely because the defendant’s friends or relatives have resources adequate to retain counsel or because the defendant has deposited or is capable of depositing security for release. However, appointed counsel may be denied to a defendant if the defendant’s spouse has adequate resources which the court determines should be made available to retain counsel.

(3) The defendant’s financial statement under subsection (1) of this section shall include, but not be limited to:

(a) A list of bank accounts in the name of defendant or defendant’s spouse, and the balance in each;

(b) A list of defendant’s interests in real property and those of defendant’s spouse;

(d) A list of debts in the name of defendant or defendant’s spouse, and the total of each; and

(e) A record of earnings and other sources of income in the name of defendant or defendant’s spouse, and the total of each.

(4) Counsel must be appointed for a defendant who meets the requirements of subsection (1) of this section and who is before a court on any of the following matters:

(a) Charged with a crime.

(b) For a hearing to determine whether an enhanced sentence should be imposed when such proceedings may result in the imposition of a felony sentence.

(d) For any proceeding concerning an order of probation, including but not limited to the revoking or amending thereof.

(5) Unless otherwise ordered by the court, the appointment of counsel under this section shall continue during all criminal proceedings resulting from the defendant’s arrest through acquittal or the imposition of punishment. The court having jurisdiction of the case may substitute one appointed counsel for another at any stage of the proceedings when the interests of justice require such substitution.

(6) If, at any time after the appointment of counsel, the court having jurisdiction of the case finds that the defendant is financially able to obtain counsel, the court may terminate the appointment of counsel. If, at any time during criminal proceedings, the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom the defendant has retained, the court may appoint counsel as provided in this section.

(7) The court may order the defendant to pay to the State Court Indigent Defense Account in the General Fund in full or in part the administrative costs of determining the eligibility of the defendant for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel under ORS 151.487, 151.505 or 161.665.

(8) In addition to any criminal prosecution, a civil proceeding may be initiated by any public body which has expended moneys for the defendant’s legal assistance within two years of judgment if the defendant was not qualified in accordance with subsection (1) of this section for legal assistance.

(9) The civil proceeding shall be subject to the exemptions from execution as provided for by law.

(10) As used in this section unless the context requires otherwise, "counsel" includes a legal advisor appointed under ORS 135.045. [Formerly 133.625; 1981 c.3 §118; 1985 c.710 §1; 1989 c.1053 §1b; 1997 c.761 §8; 2001 c.472 §4]

Note: The amendments to 135.050 by section 25, chapter 962, Oregon Laws 2001, become operative October 1, 2003. See section 15, chapter 962, Oregon Laws 2001. The text that is operative on and after October 1, 2003, is set forth for the user’s convenience.

135.050. (1) Suitable counsel for a defendant shall be appointed by a municipal, county or justice court if:

(a) The defendant is before a court on a matter described in subsection (5) of this section;

(b) The defendant requests aid of counsel;

(2) Suitable counsel for a defendant shall be appointed by a circuit court if:

(a) The defendant is before the court on a matter described in subsection (5) of this section;

(b) The defendant requests aid of counsel;

(d)(A) The defendant is determined to be financially eligible under ORS 151.485 and the standards established by the Public Defense Services Commission under ORS 151.216; or

(B) The court finds, on the record, substantial and compelling reasons why the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant’s dependent family despite the fact that the defendant does not meet the financial eligibility standards established by the commission.

(3) Appointed counsel shall not be denied to any defendant merely because the defendant’s friends or relatives have resources adequate to retain counsel or because the defendant has deposited or is capable of depositing security for release. However, appointed counsel may be denied to a defendant if the defendant’s spouse has adequate resources which the court determines should be made available to retain counsel.

(4) The defendant’s financial statement under subsection (1) or (2) of this section shall include, but not be limited to:

(a) A list of bank accounts in the name of defendant or defendant’s spouse, and the balance in each;

(b) A list of defendant’s interests in real property and those of defendant’s spouse;

(d) A list of debts in the name of defendant or defendant’s spouse, and the total of each; and

(e) A record of earnings and other sources of income in the name of defendant or defendant’s spouse, and the total of each.

(5) Counsel must be appointed for a defendant who meets the requirements of subsection (1) or (2) of this section and who is before a court on any of the following matters:

(a) Charged with a crime.

(b) For a hearing to determine whether an enhanced sentence should be imposed when such proceedings may result in the imposition of a felony sentence.

(d) For any proceeding concerning an order of probation, including but not limited to the revoking or amending thereof.

(6) Unless otherwise ordered by the court, the appointment of counsel under this section shall continue during all criminal proceedings resulting from the defendant’s arrest through acquittal or the imposition of punishment. The court having jurisdiction of the case may substitute one appointed counsel for another at any stage of the proceedings when the interests of justice require such substitution.

(7) If, at any time after the appointment of counsel, the court having jurisdiction of the case finds that the defendant is financially able to obtain counsel, the court may terminate the appointment of counsel. If, at any time during criminal proceedings, the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom the defendant has retained, the court may appoint counsel as provided in this section.

(8) The court may order the defendant in a circuit court to pay to the Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part the administrative costs of determining the eligibility of the defendant for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel under ORS 151.487, 151.505 or 161.665.

(9) In addition to any criminal prosecution, a civil proceeding may be initiated by any public body which has expended moneys for the defendant’s legal assistance within two years of judgment if the defendant was not qualified in accordance with subsection (1) or (2) of this section for legal assistance.

(10) The civil proceeding shall be subject to the exemptions from execution as provided for by law.

(11) As used in this section unless the context requires otherwise, "counsel" includes a legal advisor appointed under ORS 135.045.

135.053 [1979 c.806 §1; 1981 s.s. c.3 §124; repealed by 1985 c.502 §28]

135.055 Compensation and expenses of appointed counsel. (1) Counsel appointed pursuant to ORS 135.045 or 135.050, if other than counsel provided pursuant to ORS 151.010 or 151.460, shall, upon certification by the court, be paid fair compensation for representation in the case:

(a) By the county, subject to the approval of the governing body of the county, in a proceeding in a county or justice court.

(b) By the State Court Administrator from funds available for the purpose, in a proceeding in a circuit court.

(2) Except for counsel appointed pursuant to contracts or counsel employed by the public defense services executive director, compensation payable to appointed counsel under subsection (1) of this section:

(a) In a proceeding in a county or justice court shall not be less than $30 per hour.

(b) In a proceeding in a circuit court shall be subject to the applicable compensation established under ORS 151.430 (5).

(3)(a) A person determined to be eligible for appointed counsel is entitled to necessary and reasonable expenses for investigation, preparation and presentation of the case. The person or the counsel for the person may upon written request, which shall not be disclosed to the district attorney prior to conclusion of the case, secure approval and preauthorization of payment of such expenses as are necessary and proper in the investigation, preparation and presentation of the case, including but not limited to travel, telephone calls, photocopying or other reproduction of documents, necessary costs associated with obtaining the attendance of witnesses for the defense, expert witness fees and fees for interpreters and assistive communication devices necessary for the purpose of communication between counsel and a client or witness in the case.

(b) In a county or justice court, the request shall be in the form of a motion to the court. The motion must be accompanied by a supporting affidavit which sets out in detail the purpose of the requested expenditure, the name of the service provider or other recipient of the funds, the dollar amount of the requested expenditure which may not be exceeded without additional authorization and the date or dates during which the service will be rendered or events will occur for which the expenditure is requested.

(c) In a circuit court, the request shall be in the form and contain the information that is required by policies of the State Court Administrator.

(d) Entitlement under this subsection to payment for expenses is subject to policies and procedures established by the State Court Administrator, including, but not limited to, cost guidelines and standards established under ORS 151.430. Entitlement to payment of extraordinary expenses is dependent upon obtaining preauthorization from the court, if the case is in county or justice court, or from the State Court Administrator, if the case is in circuit court, except as otherwise provided in the policies and procedures established by the State Court Administrator. The presiding judge or trial judge has ultimate authority for approval of expenses under this paragraph. Approved and authorized expenses shall be paid:

(A) By the county, in respect to a proceeding in a county or justice court.

(B) By the State Court Administrator from funds available for the purpose, in respect to a proceeding in a circuit court.

(4) Upon completion of all services by the counsel of a person determined to be eligible for appointed counsel, the counsel shall submit to the court a statement of all reasonable fees and expenses of investigation, preparation, presentation and, if counsel was appointed by the court, representation paid or incurred, supported by appropriate receipts or vouchers and certified by the counsel to be true and accurate. The counsel, at that time, may request payment or reimbursement for any such expenses for which payment has not yet been approved and authorized.

(5) The total fees and expenses payable under this section shall be subject to the review of the presiding judge for the judicial district. The presiding judge shall certify that such amount is fair reimbursement for fees and expenses for representation in the case as provided in subsection (6) of this section. Upon certification and any verification as provided under subsection (6) of this section, the amount of the fees and expenses approved by the court and not already paid shall be paid:

(a) By the county, in respect to a proceeding in a county or justice court.

(b) By the State Court Administrator from funds available for the purpose, in respect to a proceeding in a circuit court.

(6)(a) The presiding judge shall certify to the administrative authority responsible for paying fees and expenses under this section that the amount for payment is reasonable and that the amount is properly payable out of public funds.

(b) With any certification by the court of fees or expenses that the State Court Administrator is to pay for counsel or other costs of indigent representation under ORS 33.015 to 33.155, 135.045, 135.055, 135.705, 144.317, 144.343, 151.430, 151.450, 151.460, 151.505, 161.346, 161.365, 161.665, 163.105, 419B.195, 419B.201, 419B.205, 419B.518, 419C.200, 419C.206, 426.255 and 426.307, the court shall include any information identified and requested by the State Court Administrator as needed for audit, statistical or any other purpose pertinent to insure the proper disbursement of state funds or pertinent to the provision of appointed counsel compensated at state expense.

(c) The presiding judge may authorize the trial court administrator to make the certification required under this section in some or all cases where the amount for payment meets the policies and procedures established by the State Court Administrator under ORS 151.430 (5) and (6). The authorization must be in writing and must specify the types of cases to which the authorization applies.

(7) As used in this section unless the context requires otherwise, "counsel" includes a legal advisor appointed under ORS 135.045. [Formerly 135.330; 1979 c.867 §1; 1981 s.s. c.3 §§122,123; 1985 c.502 §19; 1985 c.710 §2; 1987 c.606 §4; 1987 c.803 §§14,14a; 1989 c.1053 §2; 1991 c.724 §25; 1991 c.750 §8; 1993 c.33 §297; 1995 c.677 §1; 1995 c.781 §39; 1997 c.761 §9; 1999 c.163 §8; 1999 c.583 §1; 2001 c.962 §107]

Note: The amendments to 135.055 by section 26, chapter 962, Oregon Laws 2001, become operative October 1, 2003. See section 15, chapter 962, Oregon Laws 2001. The text that is operative on and after October 1, 2003, is set forth for the user’s convenience.

135.055. (1) Counsel appointed pursuant to ORS 135.045 or 135.050 shall be paid fair compensation for representation in the case:

(a) By the county, subject to the approval of the governing body of the county, in a proceeding in a county or justice court.

(b) By the public defense services executive director from funds available for the purpose, in a proceeding in a circuit court.

(a) In a proceeding in a county or justice court shall not be less than $30 per hour.

(b) In a proceeding in a circuit court shall be subject to the applicable compensation established under ORS 151.216.

(3)(a) A person determined to be eligible for appointed counsel is entitled to necessary and reasonable expenses for investigation, preparation and presentation of the case. The person or the counsel for the person may upon written request, which shall not be disclosed to the district attorney prior to conclusion of the case, secure approval and preauthorization of payment of such expenses that are not routine to representation but are necessary and proper in the investigation, preparation and presentation of the case, including but not limited to travel, photocopying or other reproduction of nonroutine documents, necessary costs associated with obtaining the attendance of witnesses for the defense, investigator fees and expenses, expert witness fees and expenses and fees for interpreters and assistive communication devices necessary for the purpose of communication between counsel and a client or witness in the case.

(c) In a circuit court, the request shall be in the form and contain the information that is required by rules of the Public Defense Services Commission.

(d) Entitlement under this subsection to payment for expenses in circuit court is subject to rules adopted under ORS 151.216. Entitlement to payment of nonroutine expenses is dependent upon obtaining preauthorization from the court, if the case is in county or justice court, or from the public defense services executive director, if the case is in circuit court, except as otherwise provided in rules adopted under ORS 151.216. Approved and authorized expenses shall be paid:

(A) By the county, in respect to a proceeding in a county or justice court.

(B) By the public defense services executive director from funds available for the purpose, in respect to a proceeding in a circuit court.

(4) Upon completion of all services by the counsel of a person determined to be eligible for appointed counsel, the counsel shall submit a statement of all reasonable fees and expenses of investigation, preparation, presentation and, if counsel was appointed by the court, representation paid or incurred, supported by appropriate receipts or vouchers and certified by the counsel to be true and accurate. The counsel, at that time, may request payment or reimbursement for any such expenses for which payment has not yet been approved and authorized.

(5) In a county or justice court, the total fees and expenses payable under this section shall be submitted to the court and shall be subject to the review of the court. The court shall certify that such amount is fair reimbursement for fees and expenses for representation in the case as provided in subsection (6) of this section. Upon certification and any verification as provided under subsection (6) of this section, the amount of the fees and expenses approved by the court and not already paid shall be paid by the county.

(6) In a county or justice court, the court shall certify to the administrative authority responsible for paying fees and expenses under this section that the amount for payment is reasonable and that the amount is properly payable out of public funds.

(7) In a circuit court, the total fees and expenses payable under this section shall be submitted to and subject to review by the public defense services executive director. The public defense services executive director shall determine whether the amount is fair reimbursement for fees and expenses for representation in the case as provided by rules of the Public Defense Services Commission. The public defense services executive director shall pay the amount of the fees and expenses approved and not already paid. The court shall provide any information identified and requested by the public defense services executive director as needed for audit, statistical or any other purpose pertinent to ensure the proper disbursement of state funds or pertinent to the provision of appointed counsel compensated at state expense.

(8) As used in this section unless the context requires otherwise, "counsel" includes a legal advisor appointed under ORS 135.045.

135.060 Communication to defendant as to use of name in accusatory instrument. When the defendant is arraigned, the defendant shall be informed that if the name by which the defendant is charged in the accusatory instrument is not the true name of the defendant the defendant must then declare the true name or be proceeded against by the name in the accusatory instrument. [Formerly 135.340]

135.065 Name used in further proceedings. (1) If the defendant gives no other name, the court may proceed accordingly. If the defendant is charged by indictment or information and alleges that another name is the true name of the defendant, the court shall direct an entry thereof to be made in its register, and the subsequent proceedings on the accusatory instrument may be had against the defendant by that name, referring also to the name by which the defendant is charged.

(2) Upon motion of the defendant, all names, other than the true name of the defendant, shall be stricken from any accusatory instrument read or submitted to the jury. [Formerly 135.350; 1985 c.540 §31]

PRELIMINARY HEARING

(Generally)

135.070 Information as to charge, right to counsel, use of statement, preliminary hearing and use by State Board of Parole and Post-Prison Supervision. When the defendant against whom an information has been filed in a preliminary proceeding appears before a magistrate on a charge of having committed a crime punishable as a felony, before any further proceedings are had the magistrate shall read to the defendant the information and shall inform the defendant:

(1) Of the defendant’s right to the aid of counsel, that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant.

(2) That the defendant is entitled to a preliminary hearing and of the nature of a preliminary hearing. If a preliminary hearing is requested, it shall be held as soon as practicable but in any event within five days if the defendant is in custody or within 30 days if the defendant is not in custody. The time may be extended for good cause shown.

(3) That if the defendant is on parole, evidence received and the order of the court at the preliminary hearing may be used by the State Board of Parole and Post-Prison Supervision to establish that probable cause exists to believe that a violation of a condition of parole has occurred; and further, that should the defendant waive the defendant’s right to a preliminary hearing, such waiver shall also constitute a waiver of a hearing by the board to determine whether there is probable cause to believe that a violation of one or more of the conditions of parole has occurred. [Formerly 133.610; 1981 c.644 §2; 1997 c.823 §1]

135.073 Statement by defendant when not advised of rights. Evidence obtained directly or indirectly as a result of failure of a magistrate to comply with ORS 135.070 shall not be admissible before the grand jury. [1973 c.836 §61]

135.075 Obtaining counsel. The magistrate shall allow the defendant a reasonable time to obtain counsel and shall adjourn the proceeding for that purpose. A defendant who is committed pending examination shall be given a reasonable opportunity to obtain counsel, including but not limited to a reasonable use of the telephone. As used in this section, "counsel" includes a legal advisor appointed under ORS 135.045. [Formerly 133.620; 2001 c.472 §6]

135.080 [Formerly 133.635; repealed by 1979 c.867 §18]

135.085 Subpoenaing witnesses. (1) The magistrate shall issue subpoenas for any witness within the state when requested by the district attorney or the defendant for the preliminary hearing.

(2) If either party desires to subpoena more than five witnesses, application therefor shall be made in the manner provided in ORS 136.570. [Formerly 133.660; 1987 c.606 §1]

135.090 Examination of adverse witnesses. The witnesses shall be examined in the presence of the defendant and may be cross-examined in behalf of the defendant or against the defendant. [Formerly 133.670]

135.095 Right of defendant to make or waive making a statement. When the examination of the witnesses on the part of the state is closed, the magistrate shall inform the defendant that it is the right of the defendant to make a statement in relation to the charge against the defendant; that the statement is designed to enable the defendant, if the defendant sees fit, to answer the charge and explain the facts alleged against the defendant; that the defendant is at liberty to waive making a statement; and that the waiver of the defendant cannot be used against the defendant on the trial. [Formerly 133.680]

135.100 Statement of defendant. If the defendant chooses to make a statement, the magistrate shall take it in a recorded proceeding without oath, and shall put to the defendant the following questions only:

(1) What is your name and age?

(2) Where were you born?

(3) Where do you reside and how long have you resided there?

(4) What is your business or occupation?

(5) Give any explanation you think proper of the circumstances appearing in the testimony against you and state any facts which you think will tend to your exculpation. [Formerly 133.690; 1991 c.790 §12]

135.105 Use of statement before grand jury or on trial. The statement of the defendant is competent testimony to be laid before the grand jury and may be given in evidence at the trial. [Formerly 133.700]

135.110 [Amended by 1973 c.836 §132; renumbered 135.030]

135.115 Waiver of right to make statement. If the defendant waives the right of the defendant to make a statement, the fact of the waiver of the defendant cannot be used against the defendant on the trial. [Formerly 133.710; 1991 c.790 §13]

135.120 [Repealed by 1973 c.836 §358]

135.125 Examination of defendant’s witnesses. After the waiver of the defendant to make a statement or after the defendant has made it, the witnesses of the defendant, if the defendant produces any, shall be sworn and examined. [Formerly 133.720]

135.130 [Repealed by 1973 c.836 §358]

135.135 Exclusion of witnesses during examination of others. The magistrate may exclude the witnesses who have not been examined during the examination of the defendant or of a witness for the state or the defendant. [Formerly 133.730]

135.139 Notice of availability of testing for HIV and other communicable diseases to person charged with crime; when court may order test; victim’s rights. (1) When a person has been charged with a crime in which it appears from the nature of the charge that the transmission of body fluids from one person to another may have been involved, the district attorney, upon the request of the victim or the parent or guardian of a minor or incapacitated victim, shall seek the consent of the person charged to submit to a test for HIV and any other communicable disease. In the absence of such consent or failure to submit to the test, the district attorney may petition the court for an order requiring the person charged to submit to a test for HIV and any other communicable disease.

(2)(a) At the time of an appearance before a circuit court judge on a criminal charge, the judge shall inform every person arrested and charged with a crime, in which it appears from the nature of the charge that the transmission of body fluids from one person to another may have been involved, of the availability of testing for HIV and other communicable diseases and shall cause the alleged victim of such a crime, if any, or a parent or guardian of the victim, if any, to be notified that testing for HIV and other communicable diseases is available. The judge shall inform the person arrested and charged and the victim, or parent or guardian of the victim, of the availability of counseling under the circumstances described in subsection (7) of this section.

(b) Notwithstanding the provisions of ORS 433.045, if the district attorney files a petition under subsection (1) of this section, the court shall order the person charged to submit to testing if the court determines there is probable cause to believe that:

(A) The person charged committed the crime; and

(B) The victim has received a substantial exposure, as defined by rule of the Department of Human Services.

(3) Notwithstanding the provisions of ORS 433.045, upon conviction of a person for any crime in which the court determines from the facts that the transmission of body fluids from one person to another was involved and if the person has not been tested pursuant to subsection (2) of this section, the court shall seek the consent of the convicted person to submit to a test for HIV and other communicable diseases. In the absence of such consent or failure to submit to the test, the court shall order the convicted person to submit to the test if the victim of the crime, or a parent or guardian of the victim, requests the court to make such order.

(4) When a test is ordered under subsection (2) or (3) of this section, the victim of the crime or a parent or guardian of the victim, shall designate an attending physician to receive such information on behalf of the victim.

(5) If an HIV test results in a negative reaction, the court may order the person to submit to another HIV test six months after the first test was administered.

(6) The result of any test ordered under this section is not a public record and shall be available only to:

(a) The victim.

(b) The parent or guardian of a minor or incapacitated victim.

(d) The Department of Human Services.

(e) The person tested.

(7) If an HIV test ordered under this section results in a positive reaction, the individual subject to the test shall receive post-test counseling as required by the Department of Human Services, by rule. The results of HIV tests ordered under this section shall be reported to the Department of Human Services. Counseling and referral for appropriate health care, testing and support services as directed by the Director of Human Services shall be provided to the victim or victims at the request of the victim or victims, or the parent or guardian of a minor or incapacitated victim.

(8) The costs of testing and counseling provided under subsections (2), (3) and (7) of this section shall be paid through the compensation for crime victims program authorized by ORS 147.005 to 147.375 from amounts appropriated for such purposes. Restitution to the state for payment of the costs of any counseling provided under this section and for payment of the costs of any test ordered under this section shall be included by the court in any order requiring the convicted person to pay restitution.

(9) When a court orders a convicted person to submit to a test under this section, the withdrawal of blood may be performed only by a physician licensed to practice medicine or by a licensed health care provider acting within the provider’s licensed scope of practice or acting under the supervision of a physician licensed to practice medicine.

(10) No person authorized by subsection (9) of this section to withdraw blood, no person assisting in the performance of the test nor any medical care facility where blood is withdrawn or tested that has been ordered by the court to withdraw or test blood shall be liable in any civil or criminal action when the act is performed in a reasonable manner according to generally accepted medical practices.

(11) The results of tests or reports, or information therein, obtained under this section shall be confidential and shall not be divulged to any person not authorized by this section to receive the information. Any violation of this subsection is a Class C misdemeanor.

(12) As used in this section:

(a) "HIV test" means a test as defined in ORS 433.045.

(b) "Parent or guardian of the victim" means a custodial parent or legal guardian of a victim who is a minor or incapacitated person.

(c) "Positive reaction" means a positive HIV test with a positive confirmatory test result as specified by the Department of Human Services.

(d) "Transmission of body fluids" means the transfer of blood, semen, vaginal secretions or other body fluids identified by rule of the Department of Human Services, from the perpetrator of a crime to the mucous membranes or potentially broken skin of the victim.

(e) "Victim" means the person or persons to whom transmission of body fluids from the perpetrator of the crime occurred or was likely to have occurred in the course of the crime. [1989 c.568 §1; 1993 c.331 §1; 1999 c.967 §1]

Note: 135.139 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

135.140 [Amended by 1973 c.836 §133; renumbered 135.035]

135.145 Testimony of witnesses. The testimony of the witnesses in a preliminary hearing shall be recorded. [Formerly 133.740; 1991 c.790 §14]

135.150 [Repealed by 1973 c.836 §358]

135.155 Retention of record and statements by magistrate; inspection. The magistrate shall keep the record of the preliminary hearing and the statement of the defendant, if any, until the record is returned to the proper court and shall not permit the record to be inspected by any person, except the district attorney of the county or the attorney who acts for the district attorney and the defendant and the counsel of the defendant. [Formerly 133.750; 1991 c.790 §15]

135.160 [Repealed by 1973 c.836 §358]

135.165 Counsel for complainant; district attorney. The complainant may employ counsel to appear against the defendant in every stage of the preliminary hearing; but the district attorney for the county, either in person or by some attorney authorized to act for the district attorney, is entitled to appear on behalf of the state and control and direct the prosecution. [Formerly 133.760]

135.170 [Repealed by 1973 c.836 §358]

135.173 Oregon Evidence Code to apply in preliminary hearings; exception. The Oregon Evidence Code shall apply in any preliminary hearing under this chapter, except that hearsay may be admitted if the court determines that it would impose an unreasonable hardship on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing, and if the witness furnishes information bearing on the informant’s reliability and, as far as possible, the means by which the information was obtained. [1981 c.892 §88b]

(Discharge or Commitment)

135.175 Discharge. After hearing the evidence and the statement of the defendant, if the defendant has made one, unless there is a showing of probable cause that a crime has been committed and that the defendant committed it, the magistrate shall dismiss the information and order the defendant to be discharged. [Formerly 133.810]

135.180 [Repealed by 1973 c.836 §358]

135.185 Holding defendant to answer; use of hearsay evidence. If it appears from the preliminary hearing that there is probable cause to believe that a crime has been committed and that the defendant committed it, the magistrate shall make a written order holding the defendant for further proceedings on the charge. When hearsay evidence was admitted at the preliminary hearing, the magistrate, in determining the existence of probable cause, shall consider (a) the extent to which the hearsay quality of the evidence affects the weight it should be given, and (b) the likelihood of evidence other than hearsay being available at trial to provide the information furnished by hearsay at the preliminary hearing. [Formerly 133.820; 1981 c.892 §88c]

135.190 [Repealed by 1973 c.836 §358]

135.195 Commitment. If the magistrate orders the defendant to be held to answer, the magistrate shall make out a commitment, signed by the magistrate with the name of office of the magistrate, and deliver it with the defendant to the officer to whom the defendant is committed or, if that officer is not present, to any peace officer, who shall immediately deliver the defendant into the proper custody, together with the commitment. [Formerly 133.830]

135.200 [Repealed by 1973 c.836 §358]

135.205 Indorsement in certain cases. When the magistrate delivers the defendant to a peace officer other than the one to whom the defendant is committed, the magistrate shall first make an indorsement on the commitment directing the officer to deliver the defendant and the commitment to the custody of the appropriate sheriff. [Formerly 133.840]

135.210 [Repealed by 1973 c.836 §358]

135.215 Direction to sheriff; detention of defendant. The commitment shall be directed to the sheriff of the county in which the magistrate is sitting. Such sheriff shall receive and detain the defendant, as thereby commanded, in a jail located in the county of the sheriff or, if there is no sufficient jail in the county, by such means as may be necessary and proper therefor or by confining the defendant in the jail of an adjoining county within or without the state. [Formerly 133.850; 1987 c.550 §2]

135.225 Forwarding of papers by magistrate. When the magistrate has held the defendant to answer, the magistrate shall at once forward to the court in which the defendant would be triable the warrant, if any; the information; the statement of the defendant, if the defendant made one; the memoranda mentioned in ORS 135.115 and 135.145; the release agreement or security release of the defendant; and, if applicable, any security taken for the appearance of witnesses. [Formerly 133.860]

RELEASE OF DEFENDANT

135.230 Definitions for ORS 135.230 to 135.290. As used in ORS 135.230 to 135.290, unless the context requires otherwise:

(1) "Abuse" means:

(a) Attempting to cause or intentionally, knowingly or recklessly causing physical injury;

(b) Intentionally, knowingly or recklessly placing another in fear of imminent serious physical injury; or

(2) "Conditional release" means a nonsecurity release which imposes regulations on the activities and associations of the defendant.

(3) "Domestic violence" means abuse between family or household members.

(4) "Family or household members" means any of the following:

(a) Spouses.

(b) Former spouses.

(d) Persons cohabiting with each other.

(e) Persons who have cohabited with each other or who have been involved in a sexually intimate relationship.

(f) Unmarried parents of a minor child.

(5) "Magistrate" has the meaning provided for this term in ORS 133.030.

(6) "Personal recognizance" means the release of a defendant upon the promise of the defendant to appear in court at all appropriate times.

(7) "Primary release criteria" includes the following:

(a) The reasonable protection of the victim or public;

(b) The nature of the current charge;

(c) The defendant’s prior criminal record, if any, and, if the defendant previously has been released pending trial, whether the defendant appeared as required;

(d) Any facts indicating the possibility of violations of law if the defendant is released without regulations; and

(e) Any other facts tending to indicate that the defendant is likely to appear.

(8) "Release" means temporary or partial freedom of a defendant from lawful custody before judgment of conviction or after judgment of conviction if defendant has appealed.

(9) "Release agreement" means a sworn writing by the defendant stating the terms of the release and, if applicable, the amount of security.

(10) "Release decision" means a determination by a magistrate, using primary and secondary release criteria, which establishes the form of the release most likely to ensure the safety of the public and the victim, the defendant’s court appearance and that the defendant does not engage in domestic violence while on release.

(11) "Secondary release criteria" includes the following:

(a) The defendant’s employment status and history and financial condition;

(b) The nature and extent of the family relationships of the defendant;

(d) Names of persons who agree to assist the defendant in attending court at the proper time; and

(e) Any facts tending to indicate that the defendant has strong ties to the community.

(12) "Security release" means a release conditioned on a promise to appear in court at all appropriate times which is secured by cash, stocks, bonds or real property.

(13) "Surety" is one who executes a security release and binds oneself to pay the security amount if the defendant fails to comply with the release agreement. [1973 c.836 §146; 1993 c.731 §4; 1997 c.313 §18]

135.235 Release assistance officer; appointment; duties. (1) If directed by the presiding judge for a judicial district, a release assistance officer, and release assistance deputies who shall be responsible to the release assistance officer, shall be appointed under a personnel plan established by the Chief Justice of the Supreme Court.

(2) The release assistance officer shall, except when impracticable, interview every person detained pursuant to law and charged with an offense.

(3) The release assistance officer shall verify release criteria information and may either:

(a) Timely submit a written report to the magistrate containing, but not limited to, an evaluation of the release criteria and a recommendation for the form of release; or

(b) If delegated release authority by the presiding judge for the judicial district, make the release decision. [1973 c.836 §147; 1981 s.s. c.3 §37; 1995 c.781 §40]

135.240 Releasable offenses. (1) Except as provided in subsections (2), (4) and (5) of this section, a defendant shall be released in accordance with ORS 135.230 to 135.290.

(2)(a) When the defendant is charged with murder, aggravated murder or treason, release shall be denied when the proof is evident or the presumption strong that the person is guilty.

(b) When the defendant is charged with murder or aggravated murder and the proof is not evident nor the presumption strong that the defendant is guilty, the court shall determine the issue of release as provided in subsection (4) of this section. In determining the issue of release under subsection (4) of this section, the court may consider any evidence used in making the determination required by this subsection.

(3) The magistrate may conduct such hearing as the magistrate considers necessary to determine whether, under subsection (2) of this section, the proof is evident or the presumption strong that the person is guilty.

(4)(a) Except as otherwise provided in subsection (5) of this section, when the defendant is charged with a crime listed in ORS 137.700 or 137.707, other than attempt or conspiracy to commit murder or attempt or conspiracy to commit aggravated murder, release shall be denied unless the court determines by clear and convincing evidence that the defendant will not commit new criminal offenses while on release.

(b) If the defendant wants to have a hearing on the issue of release, the defendant must request the hearing at the time of arraignment in circuit court. If the defendant requests a release hearing, the court must hold the hearing within five days of the request.

(c) At the release hearing, unless the state stipulates to the setting of security or release, the court shall determine whether probable cause exists to believe the defendant has committed an offense listed in ORS 137.700 or 137.707, other than attempt or conspiracy to commit murder or attempt or conspiracy to commit aggravated murder, and, if so, whether the defendant would commit new crimes while on release. The state has the burden of producing evidence at the release hearing subject to ORS 40.015 (4).

(d) The defendant may be represented by counsel and may present evidence on any relevant issue. However, the hearing may not be used for purposes of discovery.

(e) If the court determines that the defendant will not commit new crimes while on release, the court shall set security or other appropriate conditions of release. If the court does not determine that the defendant will not commit new crimes while on release, the court shall deny release.

(f) When a defendant who has been released violates a condition of release and the violation:

(A) Constitutes a new criminal offense, the court shall cause the defendant to be taken back into custody and shall order the defendant held pending trial without release.

(B) Does not constitute a new criminal offense, the court may order the defendant to be taken back into custody, may order the defendant held pending trial and may set a security amount of not less than $250,000.

(5) If the United States Constitution or the Oregon Constitution prohibits application of subsection (4) of this section, then notwithstanding any other provision of law, the court shall set a security amount of not less than $50,000 for a defendant charged with an offense listed in ORS 137.700 or 137.707 and may not release the defendant on any form of release other than a security release. In addition to the security amount, the court may impose any supervisory conditions deemed necessary for the protection of the victim and the community. When a defendant who has been released violates a condition of release and the violation:

(a) Constitutes a new criminal offense, the court shall cause the defendant to be taken back into custody, shall order the defendant held pending trial and shall set a security amount of not less than $250,000.

(b) Does not constitute a new criminal offense, the court may order the defendant to be taken back into custody, may order the defendant held pending trial and may set a security amount of not less than $250,000. [1973 c.836 §148; 1997 c.313 §19; 2001 c.104 §45]

135.245 Release decision. (1) Except as provided in ORS 135.240, a person in custody shall have the immediate right to security release or shall be taken before a magistrate without undue delay. If the person is not released under ORS 135.270, or otherwise released before arraignment, the magistrate shall advise the person of the right of the person to a security release as provided in ORS 135.265.

(2) If a person in custody does not request a security release at the time of arraignment, the magistrate shall make a release decision regarding the person within 48 hours after the arraignment.

(3) If the magistrate, having given priority to the primary release criteria, decides to release a defendant or to set security, the magistrate shall impose the least onerous condition reasonably likely to ensure the safety of the public and the victim and the person’s later appearance and, if the person is charged with an offense involving domestic violence, ensure that the person does not engage in domestic violence while on release. A person in custody, otherwise having a right to release, shall be released upon the personal recognizance unless release criteria show to the satisfaction of the magistrate that such a release is unwarranted.

(4) Upon a finding that release of the person on personal recognizance is unwarranted, the magistrate shall impose either conditional release or security release.

(5)(a) At the release hearing:

(A) The district attorney has a right to be heard in relation to issues relevant to the release decision; and

(B) The victim has the right:

(i) Upon request made within the time period prescribed in the notice required by ORS 147.417, to be notified by the district attorney of the release hearing;

(ii) To appear personally at the hearing; and

(iii) If present, to reasonably express any views relevant to the issues before the magistrate.

(b) Failure of the district attorney to notify the victim under paragraph (a) of this subsection or failure of the victim to appear at the hearing does not affect the validity of the proceeding.

(6) This section shall be liberally construed to carry out the purpose of relying upon criminal sanctions instead of financial loss to assure the appearance of the defendant. [1973 c.836 §149; 1993 c.731 §5; 1997 c.313 §20]

135.250 General conditions of release agreement. (1) If a defendant is released before judgment, the conditions of the release agreement shall be that the defendant will:

(a) Appear to answer the charge in the court having jurisdiction on a day certain and thereafter as ordered by the court until the defendant is discharged or the judgment is entered;

(b) Submit to the orders and process of the court;

(d) Comply with such other conditions as the court may impose.

(2)(a) In addition to the conditions listed in subsection (1) of this section, if the defendant is charged with an offense that also constitutes domestic violence, the court shall include as a condition of the release agreement that the defendant not contact the victim of the violence.

(b) Notwithstanding paragraph (a) of this subsection, the court may enter an order waiving the condition that the defendant have no contact with the victim if:

(A) The victim petitions the court for a waiver; and

(B) The court finds, after a hearing on the petition, that waiving the condition is in the best interests of the parties and the community.

(c) If the defendant was provided notice and an opportunity to be heard, the court shall also include in the agreement, when appropriate, terms and findings sufficient under 18 U.S.C. 922 (d)(8) and (g)(8) to affect the defendant’s ability to possess firearms and ammunition or engage in activities involving firearms.

(d) ORS 107.720 applies to release agreements executed by defendants charged with an offense that constitutes domestic violence, except that proof of service of the release agreement is not required and the agreement may not be terminated at the request of the victim without a hearing.

(3) If the defendant is released after judgment of conviction, the conditions of the release agreement shall be that the defendant will:

(a) Duly prosecute the appeal of the defendant as required by ORS 138.005 to 138.500;

(b) Appear at such time and place as the court may direct;

(d) Comply with such other conditions as the court may impose; and

(e) If the judgment is affirmed or the judgment is reversed and the cause remanded for a new trial, immediately appear as required by the trial court. [1973 c.836 §150; 1991 c.111 §10; 1993 c.731 §6; 1999 c.617 §3]

135.255 Release agreement. (1) The defendant shall not be released from custody unless the defendant files with the clerk of the court in which the magistrate is presiding a release agreement duly executed by the defendant containing the conditions ordered by the releasing magistrate or deposits security in the amount specified by the magistrate in accordance with ORS 135.230 to 135.290.

(2) A failure to appear as required by the release agreement shall be punishable as provided in ORS 162.195 or 162.205.

(3) "Custody" for purposes of a release agreement does not include temporary custody under the citation procedures of ORS 133.055 to 133.076. [1973 c.836 §151]

135.260 Conditional release. (1) Conditional release may include one or more of the following conditions:

(a) Release of the defendant into the care of a qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court. The supervisor shall not be required to be financially responsible for the defendant, nor to forfeit money in the event the defendant fails to appear in court. The supervisor, however, shall notify the court immediately in the event that the defendant breaches the conditional release.

(b) Reasonable regulations on the activities, movements, associations and residences of the defendant, including, if the court finds it appropriate, restriction of the defendant to the defendant’s own residence or to the premises thereof.

(d) Any other reasonable restriction designed to assure the defendant’s appearance.

(2) Except as otherwise provided in ORS 135.250 (2)(b), conditional release shall include a prohibition against contacting the victim if the defendant is charged with an offense that also constitutes domestic violence. [1973 c.836 §152; 1985 c.818 §1; 1993 c.731 §7]

135.265 Security release. (1) If the defendant is not released on personal recognizance under ORS 135.255, or granted conditional release under ORS 135.260, or fails to agree to the provisions of the conditional release, the magistrate shall set a security amount that will reasonably assure the defendant’s appearance. The defendant shall execute the security release in the amount set by the magistrate.

(2) The defendant shall execute a release agreement and deposit with the clerk of the court before which the proceeding is pending a sum of money equal to 10 percent of the security amount, but in no event shall such deposit be less than $25. The clerk shall issue a receipt for the sum deposited. Upon depositing this sum the defendant shall be released from custody subject to the condition that the defendant appear to answer the charge in the court having jurisdiction on a day certain and thereafter as ordered by the court until discharged or final order of the court. Once security has been given and a charge is pending or is thereafter filed in or transferred to a court of competent jurisdiction the latter court shall continue the original security in that court subject to ORS 135.280 and 135.285. When conditions of the release agreement have been performed and the defendant has been discharged from all obligations in the cause, the clerk of the court shall return to the person shown by the receipt to have made the deposit, unless the court orders otherwise, 85 percent of the sum which has been deposited and shall retain as security release costs 15 percent, but not less than $5 nor more than $200, of the amount deposited. The interest that has accrued on the full amount deposited shall also be retained by the clerk. The amount retained by the clerk of a circuit court shall be paid over as directed by the State Court Administrator for deposit in the Criminal Fine and Assessment Account created under ORS 137.300. The amount retained by a justice of the peace shall be deposited in the county treasury. The amount retained by the clerk of a municipal court shall be deposited in the municipal corporation treasury. At the request of the defendant the court may order whatever amount is repayable to defendant from such security amount to be paid to defendant’s attorney of record.

(3) Instead of the security deposit provided for in subsection (2) of this section the defendant may deposit with the clerk of the court an amount equal to the security amount in cash, stocks, bonds, or real or personal property situated in this state with equity not exempt owned by the defendant or sureties worth double the amount of security set by the magistrate. The stocks, bonds, real or personal property shall in all cases be justified by affidavit. The magistrate may further examine the sufficiency of the security as the magistrate considers necessary. [1973 c.836 §153; 1979 c.878 §1; 1981 c.837 §1; 1981 s.s. c.3 §112; 1983 c.763 §44; 1987 c.905 §14]

135.270 Taking of security. When a security amount has been set by a magistrate for a particular offense or for a defendant’s release, any person designated by the magistrate may take the security and release the defendant to appear in accordance with the conditions of the release agreement. The person designated by the magistrate shall give a receipt to the defendant for the security so taken and within a reasonable time deposit the security with the clerk of the court having jurisdiction of the offense. [1973 c.836 §154]

135.280 Arrest warrant; forfeiture. (1) Upon failure of a person to comply with any condition of a release agreement or personal recognizance, the court having jurisdiction may, in addition to any other action provided by law, issue a warrant for the arrest of the person at liberty upon a personal recognizance, conditional or security release.

(2) A warrant issued under subsection (1) of this section by a municipal judge may be executed by any peace officer authorized to execute arrest warrants.

(3) If the defendant does not comply with the conditions of the release agreement, the court having jurisdiction shall enter an order declaring the entire security amount to be forfeited. Notice of the order of forfeiture shall be given forthwith by personal service, by mail or by such other means as are reasonably calculated to bring to the attention of the defendant and, if applicable, of the sureties the order of forfeiture. If, within 30 days after the court declares the forfeiture, the defendant does not appear or satisfy the court having jurisdiction that appearance and surrender by the defendant was, or still is, impossible and without fault of the defendant, the court shall enter a money judgment as provided by ORS 137.180 for the state, or appropriate political subdivision thereof, against the defendant and, if applicable, the sureties for the entire security amount set under ORS 135.265 and the costs of the proceedings. At any time before or after entry of the judgment, the defendant or the sureties may apply to the court for a remission of the forfeiture or to modify or set aside the judgment. The court, upon good cause shown, may remit the forfeiture or any part thereof or may modify or set aside the judgment as in other criminal cases, except the portion of the security amount that the court ordered to be applied to child support under subsection (4) of this section, as the court considers reasonable under the circumstances of the case. The court shall adopt procedures to ensure that the amount deposited under ORS 135.265 is available for a reasonable period of time for disposition under subsection (4) of this section.

(4) After entry of a money judgment for the state, the court, upon a motion filed under ORS 25.715, may order that a portion of the security amount be applied to any unsatisfied child support judgment owed by the defendant and to provide security for child support payments in accordance with ORS 25.230. The portion of the security amount that may be applied to the child support judgment:

(a) Is limited to the amount deposited under ORS 135.265;

(b) May not exceed the percentage of the amount designated for distribution to the General Fund had the deposit been transferred to the Criminal Fine and Assessment Account as provided in subsection (5) of this section; and

(5) When judgment is entered in favor of the state, or any political subdivision of the state, on any security given for a release, the judgment may be enforced as a judgment in a civil action. If entered in circuit court, the judgment shall be docketed in the criminal action as a money judgment in the circuit court judgment docket. The district attorney, county counsel or city attorney may have execution issued on the judgment and deliver same to the sheriff to be executed by levy on the deposit or security amount made in accordance with ORS 135.265, or may collect the judgment as otherwise provided by law. The proceeds of any execution or collection shall be used to satisfy the judgment and costs and paid into the treasury of the municipal corporation wherein the security was taken if the offense was defined by an ordinance of a political subdivision of this state, or paid into the treasury of the county wherein the security was taken if the offense was defined by a statute of this state and the judgment was entered by a justice court, or paid over as directed by the State Court Administrator for deposit in the Criminal Fine and Assessment Account created under ORS 137.300, if the offense was defined by a statute of this state and the judgment was entered by a circuit court. The provisions of this section shall not apply to base fine amounts deposited upon appearance under ORS 153.061.

(6) When the judgment of forfeiture is entered, the security deposit or deposit with the clerk is, by virtue of the judgment alone and without requiring further execution, forfeited to and may be kept by the state or its appropriate political subdivision. Except as provided in subsection (4) of this section, the clerk shall reduce, by the value of the deposit so forfeited, the debt remaining on the judgment and shall cause the amount on deposit to be transferred to the revenue account of the state or political subdivision thereof entitled to receive the proceeds of execution under this section.

(7) The stocks, bonds, personal property and real property shall be sold in the same manner as in execution sales in civil actions and the proceeds of such sale shall be used to satisfy all court costs, prior encumbrances, if any, and from the balance a sufficient amount to satisfy the judgment shall be paid into the treasury of the municipal corporation wherein the security was taken if the offense was defined by an ordinance of a political subdivision of this state, or paid into the treasury of the county wherein the security was taken if the offense was defined by a statute of this state and the judgment was entered by a justice court, or deposited in the General Fund available for general governmental expenses if the offense was defined by a statute of this state and the judgment was entered by a circuit court. The balance shall be returned to the owner. The real property sold may be redeemed in the same manner as real estate may be redeemed after judicial or execution sales in civil actions. [1973 c.836 §155; 1981 s.s. c.3 §113; 1983 c.763 §45; 1987 c.710 §1; 1987 c.905 §15; 1995 c.658 §74; 1997 c.801 §64; 1999 c.1051 §250; 2001 c.705 §2; 2001 c.829 §10b]

135.285 Modification of release decision; release upon appeal. (1) If circumstances concerning the defendant’s release change, the court, on its own motion or upon request by the district attorney or defendant, may modify the release agreement or the security release.

(2) After judgment of conviction in municipal or justice court, the court shall order the original release agreement, and if applicable, the security, to stand pending appeal, or deny, increase or reduce the release agreement and the security. If a defendant appeals after judgment of conviction in circuit court for any crime other than murder or treason, release shall be discretionary. [1973 c.836 §156; 1995 c.658 §75]

135.290 Punishment by contempt of court. (1) A supervisor of a defendant on conditional release who knowingly aids the defendant in breach of the conditional release or who knowingly fails to report the defendant’s breach is punishable by contempt.

(2) A defendant who knowingly breaches any of the regulations in the release agreement imposed pursuant to ORS 135.260 is punishable by contempt. [1973 c.836 §157]

135.295 Application of ORS 135.230 to 135.290 to certain traffic offenses. Provision for release contained in ORS 135.230 to 135.290 shall not apply to any traffic offenses as defined for the Oregon Vehicle Code except the following:

(1) Reckless driving under ORS 811.140.

(2) Driving while under the influence of intoxicants under ORS 813.010.

(3) Failure to perform the duties of a driver under ORS 811.700 or 811.705.

(4) Criminal driving while suspended or revoked under ORS 811.182.

(5) Fleeing or attempting to elude a police officer under ORS 811.540. [1974 c.35 §1; 1981 c.818 §3; 1983 c.338 §888; 1987 c.730 §5; 1991 c.208 §3]

PLEADINGS

(Defendant’s Answer Generally)

135.305 Types of answer. If the defendant does not require time, as provided in ORS 135.380, or if the defendant does, then on the next day or at such further day as the court may have allowed the defendant, the defendant may, in answer to the arraignment, move against the accusatory instrument or demur or plead thereto. [Formerly 135.420]

135.310 [Renumbered 135.040]

135.315 Types of pleading. The only pleadings on the part of the defendant are the demurrer and plea. [Formerly 135.430]

135.320 [Amended by 1961 c.696 §2; 1967 c.475 §2; 1973 c.836 §134; renumbered 135.045]

135.325 Pleading a judgment. In pleading a judgment or other determination of or proceeding before a court or officer of special jurisdiction, it is not necessary for the defendant to state the facts conferring jurisdiction; but the judgment, determination, or proceeding may be stated to have been duly given or made. The facts conferring jurisdiction, however, must be established on the trial. [Formerly 135.450]

135.330 [Amended by 1961 c.698 §1; 1967 c.628 §1; 1971 c.677 §1; renumbered 135.055]

(Plea)

135.335 Pleading by defendant; alternatives. (1) The kinds of plea to an indictment, information or complaint, or each count thereof, are:

(a) Guilty.

(b) Not guilty.

(2) A defendant may plead no contest only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.

(3) With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea. [1973 c.836 §159; 1999 c.134 §1]

135.340 [Amended by 1973 c.836 §136; renumbered 135.060]

135.345 Legal effect of plea of no contest. A judgment following entry of a no contest plea is a conviction of the offense to which the plea is entered. [1973 c.836 §160]

135.350 [Amended by 1973 c.836 §137; renumbered 135.065]

135.355 Presentation of plea; entry in register; forms. (1) Every plea shall be oral and shall be entered in the register of the court in substantially one of the following forms:

(a) "The defendant pleads that defendant is guilty of the offense charged in this accusatory instrument."

(b) "The defendant pleads that defendant is not guilty of the offense charged in this accusatory instrument."

(2) When a defendant enters a conditional plea of guilty or no contest, the entry in the register of the court shall so indicate. [Formerly 135.830; 1985 c.540 §32; 1999 c.134 §2]

135.360 Special provisions relating to presentation of plea of guilty or no contest. (1) Except as provided in subsection (2) of this section, a plea of guilty or no contest to a crime punishable as a felony shall in all cases be put in by the defendant in person in open court unless upon an accusatory instrument against a corporation, in which case it may be put in by counsel.

(2) Any circuit judge may, within any county in the own district of the judge other than the county where the accusation is pending, accept pleas of guilty or no contest from persons charged with a crime punishable as a felony and pass sentence thereon upon written request of the accused and the attorney of the accused and upon not less than one day’s notice to the district attorney. All orders entering such pleas and such sentences shall be as effective as though heard and determined in open court in the county where the accusation is pending and shall be transmitted by the judge to the clerk of the court in the county where the accusation is pending, whereupon the same shall be filed and entered and become effective from the date of filing thereof. [Formerly 135.840]

135.365 Withdrawal of plea of guilty or no contest. The court may at any time before judgment, upon a plea of guilty or no contest, permit it to be withdrawn and a plea of not guilty substituted therefor. [Formerly 135.850]

135.370 Not guilty plea as denial of allegations of accusatory instrument. The plea of not guilty controverts and is a denial of every material allegation in the accusatory instrument. [Formerly 135.860]

135.375 Pleading to other offenses. (1) As used in this section:

(a) "Initiating county" means the county in which the defendant appears for the purpose of entering a plea to a criminal charge.

(b) "Responding county" means a county in which another criminal charge is pending against the defendant entering a plea in the initiating county.

(2) Upon entry of a plea of guilty or no contest, or after conviction on a plea of not guilty, if a charge is pending against the defendant for a crime which is within the jurisdiction of a coordinate court of a responding county in the state, the defendant may state in writing that the defendant desires:

(a) To waive venue and trial in the responding county;

(b) To waive indictment by the grand jury of the responding county;

(d) To consent to disposition of the case by the court in the initiating county.

(3) Upon receipt of the request and the written approval of the district attorney of the initiating county, the clerk of the court shall forthwith transmit copies of the request and approval to the court and the district attorney of the responding county.

(4) Upon receipt of the papers described in subsection (3) of this section and the written approval of the district attorney of the responding county, the clerk of the court shall forthwith transmit certified copies of the papers in the proceeding to the court of the initiating county.

(5) Upon receipt of the papers described in subsection (4) of this section, the court may allow the defendant to enter the plea.

(6) The original judgment entered by the court of the initiating county shall be transmitted to the court of the responding county for filing. The judgment shall thereafter be considered, for all purposes, the same as a judgment of the court of the responding county. [1973 c.836 §165; 1991 c.111 §11]

135.380 Time of entering plea; aid of counsel. (1) A defendant shall not be required to plead to an offense punishable by imprisonment until the defendant is represented by counsel, unless the defendant knowingly waives the right of the defendant to counsel.

(2) A defendant may plead guilty or no contest on the day of arraignment or any time thereafter except that a defendant without counsel shall not be allowed to plead guilty or no contest to a felony on the day of arraignment.

(3) Upon completion of the arraignment, unless the defendant enters a plea in the manner provided in ORS 135.305 to 135.325, 135.335, 135.355, 135.360 and 135.375, the defendant shall be considered to have entered a plea of not guilty. [1973 c.836 §166; 2001 c.635 §13]

135.385 Defendant to be advised by court. (1) The court shall not accept a plea of guilty or no contest to a felony or other charge on which the defendant appears in person without first addressing the defendant personally and determining that the defendant understands the nature of the charge.

(2) The court shall inform the defendant:

(a) That by a plea of guilty or no contest the defendant waives the right:

(A) To trial by jury;

(B) Of confrontation; and

(b) Of the maximum possible sentence on the charge, including the maximum possible sentence from consecutive sentences.

(c) When the offense charged is one for which a different or additional penalty is authorized by reason of the fact that the defendant may be adjudged a dangerous offender, that this fact may be established after a plea in the present action, thereby subjecting the defendant to different or additional penalty.

(d) That if the defendant is not a citizen of the United States conviction of a crime may result, under the laws of the United States, in deportation, exclusion from admission to the United States or denial of naturalization.

(e) That if the defendant is entering a guilty plea pursuant to a plea offer and agreed disposition recommendation under ORS 135.405, the court will agree to impose sentence as provided in the agreed disposition recommendation. [1973 c.836 §167; 1979 c.118 §1; 2001 c.635 §12]

135.390 Determining voluntariness of plea. (1) The court shall not accept a plea of guilty or no contest without first determining that the plea is voluntary and intelligently made.

(2) The court shall determine whether the plea is the result of prior plea discussions and a plea agreement. If the plea is the result of a plea agreement, the court shall determine the nature of the agreement.

(3) If the district attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court shall advise the defendant personally that the recommendations of the district attorney are not binding on the court.

(4)(a) If the district attorney has provided a plea offer and agreed disposition recommendation to the defendant as provided in ORS 135.405 and the defendant is entering a guilty plea based on the plea offer and agreed disposition recommendation, the court shall determine whether the plea is voluntarily made. Except as otherwise provided in paragraph (b) of this subsection, if the court finds that the plea is voluntarily made, the court shall impose sentence as provided in the agreed disposition recommendation.

(b) If the court determines that the agreed disposition recommendation is inappropriate in a particular case, the court shall so advise the parties and allow the defendant an opportunity to withdraw the plea. [1973 c.836 §168; 2001 c.635 §11]

135.395 Determining accuracy of plea. After accepting a plea of guilty or no contest, the court shall not enter a judgment without making such inquiry as may satisfy the court that there is a factual basis for the plea. [1973 c.836 §169]

(Plea Discussions and Agreements)

135.405 Plea discussions and plea agreements. (1) In cases in which it appears that the interest of the public in the effective administration of criminal justice would thereby be served, and in accordance with the criteria set forth in ORS 135.415, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.

(2) The district attorney shall engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when, as a matter of record, the defendant has effectively waived the right of the defendant to counsel or, if the defendant is not eligible for court-appointed counsel, has not retained counsel.

(3) The district attorney in reaching a plea agreement may agree to, but is not limited to, one or more of the following, as required by the circumstances of the individual case:

(a) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged;

(b) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant’s conduct; or

(c) To seek or not to oppose dismissal of other charges or to refrain from bringing potential charges if the defendant enters a plea of guilty or no contest to the offense charged.

(4) Similarly situated defendants should be afforded equal plea agreement opportunities.

(5)(a) A district attorney may provide a plea offer and agreed disposition recommendation to the defendant at the time of arraignment or first appearance of the defendant for a crime in open court under an early disposition program established under ORS 135.941.

(b) Unless extended by the court, a plea offer and agreed disposition recommendation made under paragraph (a) of this subsection expire upon completion of the arraignment. Except for good cause, a court may not extend a plea offer and agreed disposition recommendation under this paragraph for more than seven days for a misdemeanor or 21 days for a felony. [1973 c.836 §170; 2001 c.635 §10]

Note: The amendments to 135.405 by section 79, chapter 962, Oregon Laws 2001, become operative October 1, 2003. See section 15, chapter 962, Oregon Laws 2001. The text that is operative on and after October 1, 2003, is set forth for the user’s convenience.

135.405. (1) In cases in which it appears that the interest of the public in the effective administration of criminal justice would thereby be served, and in accordance with the criteria set forth in ORS 135.415, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.

(3) The district attorney in reaching a plea agreement may agree to, but is not limited to, one or more of the following, as required by the circumstances of the individual case:

(a) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged;

(b) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant’s conduct; or

(c) To seek or not to oppose dismissal of other charges or to refrain from bringing potential charges if the defendant enters a plea of guilty or no contest to the offense charged.

(4) Similarly situated defendants should be afforded equal plea agreement opportunities.

135.406 Consultation with victim regarding plea discussions. (1) In any case involving a defendant charged with a violent felony:

(a) If the victim requests within the time period designated in the notice received under ORS 147.417, the district attorney shall consult the victim regarding plea discussions before making a final plea agreement; and

(b) Before the judge accepts a plea of guilty or no contest, the judge shall ask the district attorney if the victim requested to be notified and consulted regarding plea discussions. If the victim has made such a request, the judge shall ask the district attorney if the victim agrees or disagrees with the plea discussions and agreement and the victim’s reasons for agreement or disagreement.

(2) As used in this section, "violent felony" means a person felony as defined in the rules of the Oregon Criminal Justice Commission.

(3) Failure to comply with this section does not affect the validity of a plea. [1997 c.313 §3]

Note: 135.406 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

135.407 Plea agreement must contain defendant’s criminal history classification; stipulations. In cases arising from felonies committed on or after November 1, 1989:

(1) Whenever a plea agreement is presented to the sentencing judge, the defendant’s criminal history classification, as set forth in the rules of the Oregon Criminal Justice Commission, shall be accurately represented to the trial judge in the plea agreement. If a controversy exists as to whether a prior conviction or juvenile adjudication should be included in the defendant’s criminal history, or as to its classification under rules of the Oregon Criminal Justice Commission, the district attorney and the defendant may stipulate to the inclusion, exclusion or classification of the conviction or adjudication as part of the plea agreement subject to approval of the court.

(2) The district attorney and the defendant may stipulate to the grid block classification within the sentencing guidelines grid established by the rules of the Oregon Criminal Justice Commission that will provide the presumptive sentence range for the offender. The sentencing judge may accept the stipulated classification and impose the presumptive sentence provided in the rules of the Oregon Criminal Justice Commission for that grid block.

(3) If the district attorney and the defendant stipulate to a grid block classification within the sentencing guidelines grid, and the sentencing judge accepts the stipulated classification but imposes a sentence other than the presumptive sentence provided by rules of the Oregon Criminal Justice Commission, the sentence is a departure sentence and is subject to rules of the Oregon Criminal Justice Commission related to departures.

(4) The district attorney and defendant may stipulate to a specific sentence within the presumptive range provided by rules of the Oregon Criminal Justice Commission for the stipulated offender classification. If the sentencing judge accepts the plea agreement, the judge shall impose the stipulated sentence.

(5) The district attorney and the defendant may stipulate to a sentence outside the presumptive sentence range for a stipulated grid block classification. The sentencing judge may accept an agreement for an optional probationary sentence or a departure sentence as provided in rules of the Oregon Criminal Justice Commission. [1989 c.790 §2]

135.410 [Repealed by 1973 c.836 §358]

135.415 Criteria to be considered in plea discussions and plea agreements. In determining whether to engage in plea discussions for the purpose of reaching a plea agreement, the district attorney may take into account, but is not limited to, any of the following considerations:

(1) The defendant by the plea of the defendant has aided in insuring the prompt and certain applications of correctional measures to the defendant.

(2) The defendant has acknowledged guilt and shown a willingness to assume responsibility for the conduct of the defendant.

(3) The concessions made by the state will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction.

(4) The defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial.

(5) The defendant has given or offered cooperation when the cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct.

(6) The defendant by the plea of the defendant has aided in avoiding delay in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders. [1973 c.836 §171]

135.420 [Amended by 1973 c.836 §158; renumbered 135.305]

135.425 Responsibilities of defense counsel. (1) Defense counsel shall conclude a plea agreement only with the consent of the defendant, and shall insure that the decision whether to enter a plea of guilty or no contest is ultimately made by the defendant.

(2) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, shall advise the defendant of the alternatives available and of factors considered important by the defense counsel or the defendant in reaching a decision. [1973 c.836 §172]

135.430 [Renumbered 135.315]

135.432 Responsibilities of trial judge. (1)(a) The trial judge shall not participate in plea discussions, except to:

(A) Inquire of the parties about the status of any discussions;

(B) Participate in a tentative plea agreement as provided in subsections (2) to (4) of this section; or

(b) Any other judge, at the request of both the prosecution and the defense, or at the direction of the presiding judge, may participate in plea discussions. Participation by a judge in the plea discussion process shall be advisory, and shall in no way bind the parties. If no plea is entered pursuant to these discussions, the advice of the participating judge shall not be reported to the trial judge. If the discussion results in a plea of guilty or no contest, the parties, if they both agree to do so, may proceed with the plea before a judge involved in the discussion. This plea may be entered pursuant to a tentative plea agreement as provided in subsections (2) to (4) of this section.

(2) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or no contest in the expectation that charge or sentence concessions will be granted, the trial judge, upon request of the parties, may permit the disclosure to the trial judge of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. The trial judge may then advise the district attorney and defense counsel whether the trial judge will concur in the proposed disposition if the information in the presentence report or other information available at the time for sentencing is consistent with the representations made to the trial judge.

(3) If the trial judge concurs, but later decides that the final disposition of the case should not include the sentence concessions contemplated by the plea agreement, the trial judge shall so advise the defendant and allow the defendant a reasonable period of time in which to either affirm or withdraw a plea of guilty or no contest.

(4) When a plea of guilty or no contest is tendered or received as a result of a prior plea agreement, the trial judge shall give the agreement due consideration, but notwithstanding its existence, the trial judge is not bound by it, and may reach an independent decision on whether to grant sentence concessions under the criteria set forth in ORS 135.415. [1973 c.836 §173; 1987 c.202 §1; 1997 c.313 §4]

135.435 Discussion and agreement not admissible. (1) Except as provided in subsection (2) of this section, none of the following shall be received in evidence for or against a defendant in any criminal or civil action or administrative proceeding:

(a) The fact that the defendant or the counsel of the defendant and the district attorney engaged in plea discussions.

(b) The fact that the defendant or the attorney of the defendant made a plea agreement with the district attorney.

(c) Any statement or admission made by the defendant or the attorney of the defendant to the district attorney and as a part of the plea discussion or agreement.

(2) The provisions of subsection (1) of this section shall not apply if, subsequent to the plea discussions or plea agreement, the defendant enters a plea of guilty or no contest which is not withdrawn. [1973 c.836 §174]

135.440 [Repealed by 1973 c.836 §358]

135.445 Withdrawn plea or statement not admissible. (1) A plea of guilty or no contest which is not accepted or has been withdrawn shall not be received against the defendant in any criminal proceeding.

(2) No statement or admission made by a defendant or the attorney of the defendant during any proceeding relating to a plea of guilty or no contest which is not accepted or has been withdrawn shall be received against the defendant in any criminal proceeding. [1973 c.836 §175]

135.450 [Renumbered 135.325]

(Related Procedure)

135.455 Notice prior to trial of intention to rely on alibi evidence; content of notice; effect of failure to supply notice. (1) If the defendant in a criminal action proposes to rely in any way on alibi evidence, the defendant shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of the purpose to offer such evidence, which notice shall state specifically the place or places where the defendant claims to have been at the time or times of the alleged offense together with the name and residence or business address of each witness upon whom the defendant intends to rely for alibi evidence. If the defendant fails to file and serve such notice, the defendant shall not be permitted to introduce alibi evidence at the trial of the cause unless the court for good cause orders otherwise.

(2) As used in this section "alibi evidence" means evidence that the defendant in a criminal action was, at the time of commission of the alleged offense, at a place other than the place where such offense was committed. [Formerly 135.875]

135.460 [Repealed by 1973 c.836 §358]

135.465 Defect in accusatory instrument as affecting acquittal on merits. When the defendant is acquitted on the merits, the defendant is considered acquitted of the offense charged in the accusatory instrument, notwithstanding a defect in form or substance in the accusatory instrument on which the defendant is acquitted. [Formerly 135.880]

PRETRIAL MOTIONS

135.470 Motion to dismiss accusatory instrument on grounds of former jeopardy. (1) The court shall dismiss the accusatory instrument if, upon motion of the defendant, it appears, as a matter of law, that a former prosecution bars the prosecution for the offense charged.

(2) The time of making the motion and its effect shall be as provided for a motion to set aside the indictment in ORS 135.520 and 135.530.

(3) An order to dismiss the accusatory instrument on grounds of former jeopardy is a bar to a future prosecution of the defendant for the offense charged in the accusatory instrument. [1973 c.836 §177]

135.510 Grounds for motion to set aside the indictment. (1) The indictment shall be set aside by the court upon the motion of the defendant in either of the following cases:

(a) When it is not found, indorsed and presented as prescribed in ORS 132.360, 132.400 to 132.430 and 132.580.

(b) When the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon.

(2) Nothing in subsection (1)(b) of this section shall affect the application of ORS 132.580. [Amended by 1959 c.426 §2; 1973 c.836 §178]

135.520 Time of making motion; hearing. A motion to set aside the indictment or dismiss the accusatory instrument shall be made and heard at the time of the arraignment or within 10 days thereafter, unless for good cause the court allows additional time. If not so made, the defendant is precluded from afterwards taking the objections to the indictment or accusatory instrument. [Amended by 1973 c.836 §179]

135.530 Effect of allowance of motion. (1) If the motion to set aside or dismiss is allowed, the court shall order that the defendant, if in custody, be discharged therefrom or, if the defendant has been released, that the release agreement be discharged and the security deposit be refunded as provided by law, unless the court allows the case to be refiled or resubmitted to the same or another grand jury.

(2) If the court allows the case to be resubmitted or refiled, it must be resubmitted or refiled by the state within 30 days from the date on which the court enters the order. If the case is not resubmitted or refiled within that time, the defendant shall be released from custody or the release agreement discharged or the security deposit returned. [Amended by 1973 c.836 §180]

135.540 Effect of resubmission of case. Subject to the limitations of ORS 135.530 (2), if the court allows the case to be resubmitted or refiled, the defendant, if then in custody, shall so remain, unless the defendant is released as provided by law. If the defendant has already been released, the release agreement or any security deposited as provided by law, shall continue to insure the appearance of the defendant to answer a new indictment or information, if one is filed. [Amended by 1973 c.836 §181]

135.550 [Repealed by 1973 c.836 §358]

135.560 Order to set aside is no bar to future prosecution. Except for an order dismissing an accusatory instrument on grounds of former jeopardy, an order to set aside an indictment or to dismiss an accusatory instrument is no bar to a future prosecution for the same crime. [Amended by 1973 c.836 §182]

DEMURRERS

135.610 Demurrer; generally. (1) The demurrer shall be entered either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.

(2) The demurrer shall be in writing, signed by the defendant or the attorney of the defendant and filed. It shall distinctly specify the ground of objection to the accusatory instrument. [Amended by 1973 c.836 §183]

135.620 [Repealed by 1973 c.836 §358]

135.630 Grounds of demurrer. The defendant may demur to the accusatory instrument when it appears upon the face thereof:

(1) If the accusatory instrument is an indictment, that the grand jury by which it was found had no legal authority to inquire into the crime charged because the same is not triable within the county;

(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;

(3) That the accusatory instrument charges more than one offense not separately stated;

(4) That the facts stated do not constitute an offense;

(5) That the accusatory instrument contains matter which, if true, would constitute a legal justification or excuse of the offense charged or other legal bar to the action; or

(6) That the accusatory instrument is not definite and certain. [Amended by 1973 c.836 §184]

135.640 When objections that are grounds for demurrer may be taken. When the objections mentioned in ORS 135.630 appear upon the face of the accusatory instrument, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the accusatory instrument, or that the facts stated do not constitute an offense, may be taken at the trial, under the plea of not guilty and in arrest of judgment. [Amended by 1973 c.836 §185]

135.650 Hearing of objections specified by demurrer. Upon the filing of the demurrer, the objections presented thereby shall be heard either immediately or at such time as the court may direct.

135.660 Judgment on demurrer; entry in register. Upon considering the demurrer, the court shall give judgment, either allowing or disallowing it, and an entry to that effect shall be made in the register. [Amended by 1985 c.540 §33]

135.670 Allowance of demurrer. (1) If the demurrer is allowed, the judgment is final upon the accusatory instrument demurred to and is a bar to another action for the same crime unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new accusatory instrument, allows the case to be resubmitted or refiled.

(2) If the court allows the case to be resubmitted or refiled, it must be resubmitted or refiled by the state within 30 days from the date on which the court enters the order. If the case is not resubmitted or refiled within that time, the defendant shall be discharged from custody or the release agreement discharged or the security deposit returned as provided in ORS 135.680. [Amended by 1973 c.836 §186]

135.680 Failure to resubmit case after allowance of demurrer. If the court does not allow the case to be resubmitted or an amended complaint or information filed, the defendant, if in custody, shall be discharged. If the defendant has been released, the release agreement shall be discharged. If the defendant has deposited any security, the security shall be returned to the defendant as provided by law. [Amended by 1973 c.836 §187]

135.690 Resubmission of case. If the court allows the case to be resubmitted, the same proceedings shall be had thereon as are prescribed in ORS 135.540. [Amended by 1973 c.836 §188]

135.700 Disallowance of demurrer. If the demurrer is disallowed, the court shall permit the defendant, at the election of the defendant, to plead, which the defendant must do forthwith or at such time as the court may allow; but if the defendant does not plead, a plea of not guilty shall be entered. [Amended by 1973 c.836 §189]

COMPROMISE

135.703 Crimes subject to being compromised; exceptions. (1) When a defendant is charged with a crime punishable as a misdemeanor for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised, as provided in ORS 135.705, except when it was committed:

(a) By or upon a peace officer while in the execution of the duties of office;

(b) Riotously;

(d) By one family or household member upon another family or household member, as defined in ORS 107.705, or by a person upon an elderly or disabled person as defined in ORS 124.005 and the crime was:

(A) Assault in the fourth degree under ORS 163.160;

(B) Assault in the third degree under ORS 163.165;

(D) Recklessly endangering another person under ORS 163.195; or

(E) Harassment under ORS 166.065.

(2) Notwithstanding subsection (1) of this section, when a defendant is charged with violating ORS 811.700, the crime may be compromised as provided in ORS 135.705. [Formerly 134.010; 1991 c.938 §1; 1995 c.657 §21; 1995 c.666 §26; 1999 c.738 §9]

135.705 Satisfaction of injured person; dismissal of charges. (1)(a) If the person injured acknowledges in writing, at any time before trial on an accusatory instrument for the crime, that the person has received satisfaction for the injury, the court may, in its discretion, on payment of the costs and expenses incurred, order the accusatory instrument dismissed. The order must be entered in the register.

(b) For purposes of paragraph (a) of this subsection, a written acknowledgment that a civil penalty under ORS 30.875 has been paid is not evidence that the person injured has received full satisfaction for the injury and is not a compromise under this section.

(2) As used in this section, "costs" includes those expenses specially incurred by the state in prosecuting the defendant, including costs under ORS 151.505 for the compensation of counsel appointed pursuant to ORS 135.045 or 135.050 and expenses approved under ORS 135.055. [Formerly 134.020; 1981 s.s. c.3 §121; 1985 c.540 §34; 1985 c.710 §4; 1987 c.803 §25; 1999 c.925 §1]

135.707 Discharge as bar to prosecution. The order authorized by ORS 135.705, when made and entered, is a bar to another prosecution for the same crime. [Formerly 134.030]

135.709 Exclusiveness of procedure. No crime can be compromised nor can any proceeding for the prosecution or punishment thereof be stayed upon a compromise, except as provided in ORS 135.703 to 135.709 and 135.745 to 135.757. [Formerly 134.040]

SUFFICIENCY OF ACCUSATORY INSTRUMENTS

135.711 Facts constituting crime or subcategory of crime required. For any felony committed on or after November 1, 1989, the accusatory instrument shall allege facts sufficient to constitute a crime or a specific subcategory of a crime in the Crime Seriousness Scale established by the rules of the Oregon Criminal Justice Commission. [1989 c.790 §4]

135.713 Necessity of stating presumptions of law and matters judicially noticed. Neither presumptions of law nor matters of which judicial notice is taken need be stated in an accusatory instrument. [Formerly 132.570]

135.715 Effect of nonprejudicial defects in form of accusatory instrument. No accusatory instrument is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. [Formerly 132.590]

135.717 Time of crime. The precise time at which the offense was committed need not be stated in the accusatory instrument, but it may be alleged to have been committed at any time before the finding thereof and within the time in which an action may be commenced therefor, except where the time is a material element in the offense. [Formerly 132.610]

135.720 Place of crime in certain cases. In an accusatory instrument for an offense committed as described in ORS 131.315 and 131.325, it is sufficient to allege that the offense was committed within the county where the accusatory instrument is found. [Formerly 132.620]

135.725 Person injured or intended to be injured. When a crime involves the commission of or an attempt to commit a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material. [Formerly 132.630]

135.727 Description of animal. When an offense involves the taking of or injury to an animal, the accusatory instrument is sufficiently certain in that respect if it describes the animal by the common name of its class. [Formerly 132.640]

135.730 Judgments; facts conferring jurisdiction. In pleading in an accusatory instrument a judgment or other determination of or proceeding before a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment, determination or proceeding may be stated to have been duly given or made. The facts conferring jurisdiction, however, must be established on the trial. [Formerly 132.660]

135.733 Defamatio