Bill Text: OR HB2314 | 2013 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to intimidation.
Spectrum: Bipartisan Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB2314 Detail]
Download: Oregon-2013-HB2314-Introduced.html
Bill Title: Relating to intimidation.
Spectrum: Bipartisan Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB2314 Detail]
Download: Oregon-2013-HB2314-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1371
House Bill 2314
Sponsored by Representatives GELSER, OLSON (at the request of
John Haroldson) (Presession filed.)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies crimes of intimidation in first and second degree.
Prohibits court from setting aside conviction for intimidation
in any degree.
Prohibits civil compromise of crime committed because of
defendant's perception of another person's race, color, religion,
sexual orientation, disability or national origin.
A BILL FOR AN ACT
Relating to intimidation; amending ORS 135.703, 137.225, 166.155
and 166.165.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 166.165 is amended to read:
166.165. (1) { - Two or more persons acting together
commit - } { + A person commits + } the crime of intimidation
in the first degree, if the { - persons - } { + person + }:
(a)(A) Intentionally, knowingly or recklessly { - cause - }
{ + causes + } physical injury to another person because of the
{ - actors' - } { + person's + }perception of { - that - }
{ + the other + } person's race, color, religion, sexual
orientation, disability or national origin; or
(B) With criminal negligence { - cause - } { + causes + }
physical injury to another person by means of a deadly weapon
because of the
{ - actors' - } { + person's + } perception of { - that - }
{ + the other + } person's race, color, religion, sexual
orientation, disability or national origin; { + or + }
(b) Intentionally, because of the { - actors' - }
{ + person's + } perception of another person's race, color,
religion, sexual orientation, disability or national origin,
{ - place - } { + places + } another person in fear of
imminent serious physical injury { + . + } { - ; or - }
{ - (c) Commit such acts as would constitute the crime of
intimidation in the second degree, if undertaken by one person
acting alone. - }
(2) Intimidation in the first degree is a Class C felony.
SECTION 2. ORS 166.155 is amended to read:
166.155. (1) A person commits the crime of intimidation in the
second degree if the person:
(a) Tampers or interferes with property, having no right to do
so nor reasonable ground to believe that the person has such
right, with the intent to cause substantial inconvenience to
another { + person, or to a community of persons, + }because of
the person's perception of the { - other's - } { + other
person's, or the community's, + }race, color, religion, sexual
orientation, disability or national origin;
(b) Intentionally subjects another { + person + } to offensive
physical contact because of the person's perception of the
{ - other's - } { + other person's + } race, color, religion,
sexual orientation, disability or national origin; or
(c) Intentionally, because of the person's perception of { +
the + } race, color, religion, sexual orientation, disability or
national origin of another { + person + } or of a member of the
{ - other's - } { + other person's + } family, subjects the
other person to alarm by threatening { - : - }
{ - (A) To inflict serious physical injury upon or to commit
a felony affecting the other person, or a member of the person's
family; or - }
{ - (B) - } to cause substantial damage to the property of
the other person or of a member of the other person's family.
(2) Intimidation in the second degree is a Class A misdemeanor.
(3) For purposes of this section, 'property' means any tangible
personal property or real property.
SECTION 3. ORS 135.703 is amended to read:
135.703. (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;
(c) With an intent to commit a crime punishable only as a
felony; { - or - }
{ + (d) Because of the defendant's perception of another
person's race, color, religion, sexual orientation, disability or
national origin; or + }
{ - (d) - } { + (e) + } 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 person or a person with a
disability 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;
(C) Menacing under ORS 163.190;
(D) Recklessly endangering another person under ORS 163.195;
(E) Harassment under ORS 166.065; or
(F) Strangulation under ORS 163.187.
(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.
SECTION 4. ORS 137.225, as amended by section 4, chapter 70,
Oregon Laws 2012, is amended to read:
137.225. (1)(a) At any time after the lapse of three years from
the date of pronouncement of judgment, any defendant who has
fully complied with and performed the sentence of the court and
whose conviction is described in subsection (5) of this section
by motion may apply to the court where the conviction was entered
for entry of an order setting aside the conviction; or
(b) At any time after the lapse of one year from the date of
any arrest, if no accusatory instrument was filed, or at any time
after an acquittal or a dismissal of the charge, the arrested
person may apply to the court that would have jurisdiction over
the crime for which the person was arrested, for entry of an
order setting aside the record of the arrest. For the purpose of
computing the one-year period, time during which the arrested
person has secreted himself or herself within or without this
state is not included.
(2)(a) A copy of the motion and a full set of the defendant's
fingerprints shall be served upon the office of the prosecuting
attorney who prosecuted the crime or violation, or who had
authority to prosecute the charge if there was no accusatory
instrument filed, and opportunity shall be given to contest the
motion. The fingerprint card with the notation 'motion for
setting aside conviction,' or 'motion for setting aside arrest
record' as the case may be, shall be forwarded to the Department
of State Police. Information resulting from the fingerprint
search along with the fingerprint card shall be returned to the
prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a
motion to set aside a conviction under this section, the
prosecuting attorney shall provide a copy of the motion and
notice of the hearing date to the victim, if any, of the crime by
mailing a copy of the motion and notice to the victim's
last-known address.
(c) When a person makes a motion under subsection (1)(a) of
this section, the person must pay a fee of $80 to the Department
of State Police. The person shall attach a certified check
payable to the Department of State Police in the amount of $80 to
the fingerprint card that is served upon the prosecuting
attorney. The office of the prosecuting attorney shall forward
the check with the fingerprint card to the Department of State
Police.
(d) In addition to the fee established under paragraph (c) of
this subsection, when a person makes a motion under subsection
(1)(a) of this section the person must pay the filing fee
established under ORS 21.135.
(3) Upon hearing the motion, the court may require the filing
of such affidavits and may require the taking of such proofs as
the court deems proper. The court shall allow the victim to make
a statement at the hearing. Except as otherwise provided in
subsection (14) of this section, if the court determines that the
circumstances and behavior of the applicant from the date of
conviction, or from the date of arrest as the case may be, to the
date of the hearing on the motion warrant setting aside the
conviction, or the arrest record as the case may be, the court
shall enter an appropriate order that shall state the original
arrest charge and the conviction charge, if any and if different
from the original, date of charge, submitting agency and
disposition. The order shall further state that positive
identification has been established by the Department of State
Police and further identified as to Department of State Police
number or submitting agency number. Upon the entry of the order,
the applicant for purposes of the law shall be deemed not to have
been previously convicted, or arrested as the case may be, and
the court shall issue an order sealing the record of conviction
and other official records in the case, including the records of
arrest whether or not the arrest resulted in a further criminal
proceeding.
(4) The clerk of the court shall forward a certified copy of
the order to such agencies as directed by the court. A certified
copy must be sent to the Department of Corrections when the
person has been in the custody of the Department of Corrections.
Upon entry of the order, the conviction, arrest or other
proceeding shall be deemed not to have occurred, and the
applicant may answer accordingly any questions relating to its
occurrence.
(5) The provisions of subsection (1)(a) of this section apply
to a conviction of:
(a) A Class B felony, except for a violation of ORS 166.429 or
any crime classified as a person felony as that term is defined
in the rules of the Oregon Criminal Justice Commission.
(b) A Class C felony, except for { + a sex crime, intimidation
in the first degree under ORS 166.165 or + }criminal
mistreatment in the first degree under ORS 163.205 when it would
constitute child abuse as defined in ORS 419B.005 { - or any
sex crime - } .
(c) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
(d) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for:
(A) { - Any - } { + A + } sex crime;
{ + (B) Intimidation in the first degree under ORS
166.165; + } or
{ - (B) - } { + (C) + } The following crimes when they
would constitute child abuse as defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(e) A misdemeanor, including a violation of a municipal
ordinance, for which a jail sentence may be imposed, except
for { + a sex crime, intimidation in the second degree under ORS
166.155 or + } endangering the welfare of a minor under ORS
163.575 (1)(a) when it would constitute child abuse as defined in
ORS 419B.005 { - or any sex crime - } .
(f) A violation, whether under state law or local ordinance.
(g) An offense committed before January 1, 1972, that if
committed after that date would be:
(A) A Class C felony, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(C) A misdemeanor, except for endangering the welfare of a
minor under ORS 163.575 (1)(a) when it would constitute child
abuse as defined in ORS 419B.005 or any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the
provisions of subsection (1) of this section do not apply to:
(a) A conviction for a state or municipal traffic offense.
(b) A person convicted, within the 10-year period immediately
preceding the filing of the motion pursuant to subsection (1) of
this section, of any other offense, excluding motor vehicle
violations, whether or not the other conviction is for conduct
associated with the same criminal episode that caused the arrest
or conviction that is sought to be set aside. Notwithstanding
subsection (1) of this section, a conviction that has been set
aside under this section shall be considered for the purpose of
determining whether this paragraph is applicable.
(c) A person who at the time the motion authorized by
subsection (1) of this section is pending before the court is
under charge of commission of any crime.
(7) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section do not apply to:
(a) Criminal mistreatment in the second degree under ORS
163.200 if the victim at the time of the crime was 65 years of
age or older; and
(b) Criminal mistreatment in the first degree under ORS 163.205
if the victim at the time of the crime was 65 years of age or
older.
(8) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section do not apply to
criminally negligent homicide under ORS 163.145, when that
offense was punishable as a Class C felony.
(9) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section apply to a
conviction for a Class B felony described in subsection (5)(a) of
this section only if:
(a) Twenty years or more have elapsed from the date of the
conviction sought to be set aside or of the release of the person
from imprisonment for the conviction sought to be set aside,
whichever is later; and
(b) The person has not been convicted of or arrested for any
other offense, excluding motor vehicle violations, after the date
the person was convicted of the offense sought to be set aside.
Notwithstanding subsection (1) of this section, a conviction or
arrest that has been set aside under this section shall be
considered for the purpose of determining whether this paragraph
is applicable.
(10) The provisions of subsection (1)(b) of this section do not
apply to:
(a) A person arrested within the three-year period immediately
preceding the filing of the motion for any offense, excluding
motor vehicle violations, and excluding arrests for conduct
associated with the same criminal episode that caused the arrest
that is sought to be set aside. An arrest that has been set aside
under this section may not be considered for the purpose of
determining whether this paragraph is applicable.
(b) An arrest for driving while under the influence of
intoxicants if the charge is dismissed as a result of the
person's successful completion of a diversion agreement described
in ORS 813.200.
(11) The provisions of subsection (1) of this section apply to
convictions and arrests that occurred before, as well as those
that occurred after, September 9, 1971. There is no time limit
for making an application.
(12) For purposes of any civil action in which truth is an
element of a claim for relief or affirmative defense, the
provisions of subsection (3) of this section providing that the
conviction, arrest or other proceeding be deemed not to have
occurred do not apply and a party may apply to the court for an
order requiring disclosure of the official records in the case as
may be necessary in the interest of justice.
(13) Upon motion of any prosecutor or defendant in a case
involving records sealed under this section, supported by
affidavit showing good cause, the court with jurisdiction may
order the reopening and disclosure of any records sealed under
this section for the limited purpose of assisting the
investigation of the movant. However, such an order has no other
effect on the orders setting aside the conviction or the arrest
record.
(14) Unless the court makes written findings by clear and
convincing evidence that granting the motion would not be in the
best interests of justice, the court shall grant the motion and
enter an order as provided in subsection (3) of this section if
the defendant has been convicted of one of the following crimes
and is otherwise eligible for relief under this section:
(a) Abandonment of a child, ORS 163.535.
(b) Attempted assault in the second degree, ORS 163.175.
(c) Assault in the third degree, ORS 163.165.
(d) Coercion, ORS 163.275.
(e) Criminal mistreatment in the first degree, ORS 163.205.
(f) Attempted escape in the first degree, ORS 162.165.
(g) Incest, ORS 163.525, if the victim was at least 18 years of
age.
(h) Intimidation in the first degree, ORS 166.165.
(i) Attempted kidnapping in the second degree, ORS 163.225.
(j) Attempted robbery in the second degree, ORS 164.405.
(k) Robbery in the third degree, ORS 164.395.
(L) Supplying contraband, ORS 162.185.
(m) Unlawful use of a weapon, ORS 166.220.
(15) As used in this section, 'sex crime' has the meaning given
that term in ORS 181.594.
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