76th OREGON LEGISLATIVE ASSEMBLY--2012 Regular Session
Enrolled
House Bill 4169
Sponsored by JOINT COMMITTEE ON WAYS AND MEANS
CHAPTER ................
AN ACT
Relating to offenses; creating new provisions; amending ORS
135.891, 147.045, 147.105, 147.115, 147.135, 147.165, 147.205,
147.215, 147.225, 147.240, 147.315, 147.325, 147.335, 147.345,
147.365, 813.030 and 813.240; repealing ORS 135.905; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
DISTRICT ATTORNEY DIVERSIONS + }
SECTION 1. ORS 135.891 is amended to read:
135.891. { + (1) + } A diversion agreement carries the
understanding that if the defendant fulfills the obligations of
the program described therein, the criminal charges filed against
the defendant will be dismissed with prejudice. It shall include
specifically the waiver of the right to a speedy trial. It may
include, but is not limited to, admissions by the defendant,
stipulation of facts, stipulation that depositions of witnesses
may be taken pursuant to ORS 136.080 to 136.100, payment of costs
as defined in ORS 135.705, restitution, performance of community
service, residence in a halfway house or similar facility,
maintenance of gainful employment, and participation in programs
offering medical, educational, vocational, social and
psychological services, corrective and preventive guidance and
other rehabilitative services.
{ + (2) As a condition of entering into a diversion agreement
under ORS 135.881 to 135.901, the defendant must pay a program
fee of $100. The court may waive all or part of the fee in cases
involving indigent defendants, or may provide for payment of the
fee on an installment basis. A fee collected under this
subsection in the circuit court shall be deposited by the clerk
of the court in the Criminal Fine Account. If the fee is
collected in a municipal or justice court, $35 of the fee shall
be forwarded by the court to the Department of Revenue for
deposit in the Criminal Fine Account, and the remainder of the
fee shall be paid to the city or county treasurer. + }
{ +
ALCOHOL-RELATED EVALUATION AND TREATMENT AFTER CONVICTION + }
SECTION 2. ORS 813.030, as amended by sections 147 and 324,
chapter 597, Oregon Laws 2011, is amended to read:
Enrolled House Bill 4169 (HB 4169-A) Page 1
813.030. The fee required by ORS 471.432 and 813.020 (1) shall
be in the amount of $255, except that the court may waive all or
part of the fee in cases involving indigent defendants. The court
may make provision for payment of the fee on an installment
basis. { - The - } { + A circuit + } court shall deposit the
fee in the Criminal Fine Account. { + If the fee is collected in
a municipal or justice court, the fee shall be forwarded by the
court to the Department of Revenue for deposit in the Criminal
Fine Account. + }
SECTION 3. ORS 813.030, as amended by section 3, chapter 671,
Oregon Laws 2011, is amended to read:
813.030. { - The fee required by ORS 471.432 and 813.020 (1)
shall be in the amount of $155, except that the court may waive
all or part of the fee in cases involving indigent defendants.
The court may make provision for payment of the fee on an
installment basis. The fee shall be ordered paid as follows: - }
{ - (1) $105 to be credited and distributed under ORS 137.295
as an obligation payable to the state; and - }
{ - (2) $50 to be paid to the Director of the Oregon Health
Authority for deposit in the Intoxicated Driver Program Fund
created by ORS 813.270. - } { + The fee required by ORS 471.432
and 813.020 (1) shall be in the amount of $255, except that the
court may waive all or part of the fee in cases involving
indigent defendants. The court may make provision for payment of
the fee on an installment basis. A circuit court shall deposit
the fee in the Criminal Fine Account. If the fee is collected in
a municipal or justice court, the fee shall be forwarded by the
court to the Department of Revenue for deposit in the Criminal
Fine Account. + }
{ +
DUII DIVERSION + }
SECTION 4. ORS 813.240, as amended by sections 167 and 186,
chapter 595, Oregon Laws 2011, is amended to read:
813.240. (1) The filing fee paid by a defendant at the time of
filing a petition for a driving while under the influence of
intoxicants diversion agreement as provided in ORS 813.210 is
{ - $386 - } { + $490 + }. A fee collected under this
subsection in the circuit court shall be deposited by the clerk
of the court in the Criminal Fine Account. If the fee is
collected in a municipal or justice court, { - $163 - } { +
$290 + } of the fee shall be forwarded by the court to the
Department of Revenue for deposit in the Criminal Fine Account,
and the remainder of the fee shall be paid to the city or county
treasurer.
(2) If less than the full filing fee is collected under
subsection (1) of this section in a municipal or justice court,
the money received shall be allocated first to the Department of
Revenue for deposit in the Criminal Fine Account.
(3) In addition to the filing fee under subsection (1) of this
section, the court shall order the defendant to pay $150 directly
to the agency or organization providing the diagnostic
assessment.
SECTION 5. ORS 813.240, as amended by section 4, chapter 671,
Oregon Laws 2011, is amended to read:
813.240. { - (1) The filing fee paid by a defendant at the
time of filing a petition for a driving while under the influence
of intoxicants diversion agreement as provided in ORS 813.210
Enrolled House Bill 4169 (HB 4169-A) Page 2
shall be $286 and shall be ordered paid as follows if the
petition is allowed: - }
{ - (a) $136 to be credited and distributed under ORS 137.295
as an obligation payable to the state; - }
{ - (b) $100 to be treated as provided for disposition of
fines and costs under ORS 153.630; and - }
{ - (c) $50 to be paid to the Director of the Oregon Health
Authority for deposit in the Intoxicated Driver Program Fund
created under ORS 813.270, to be used for purposes of the
fund. - }
{ - (2) In addition to the filing fee under subsection (1) of
this section, the court shall order the defendant to pay $150
directly to the agency or organization providing the diagnostic
assessment. - }
{ + (1) The filing fee paid by a defendant at the time of
filing a petition for a driving while under the influence of
intoxicants diversion agreement as provided in ORS 813.210 is
$490. A fee collected under this subsection in the circuit court
shall be deposited by the clerk of the court in the Criminal Fine
Account. If the fee is collected in a municipal or justice
court, $290 of the fee shall be forwarded by the court to the
Department of Revenue for deposit in the Criminal Fine Account,
and the remainder of the fee shall be paid to the city or county
treasurer.
(2) If less than the full filing fee is collected under
subsection (1) of this section in a municipal or justice court,
the money received shall be allocated first to the Department of
Revenue for deposit in the Criminal Fine Account.
(3) In addition to the filing fee under subsection (1) of this
section, the court shall order the defendant to pay $150 directly
to the agency or organization providing the diagnostic
assessment. + }
SECTION 6. { + (1) The amendments to ORS 135.891, 813.030 and
813.240 by sections 1 to 5 of this 2012 Act become operative
April 1, 2012.
(2) The amendments to ORS 135.891 by section 1 of this 2012 Act
apply only to diversion agreements entered into under ORS 135.881
to 135.901 on or after April 1, 2012.
(3) The amendments to ORS 813.030 by sections 2 and 3 of this
2012 Act apply only to offenses for which a judgment of
conviction is entered on or after April 1, 2012.
(4) The amendments to ORS 813.240 by sections 4 and 5 of this
2012 Act apply only to petitions for diversion filed under ORS
813.210 on or after April 1, 2012.
(5) The amount of any fee collected in a court pursuant to ORS
813.030 or 813.240, as in effect immediately before the effective
date of this 2012 Act, is validated. + }
{ +
MISCELLANEOUS + }
SECTION 7. { + ORS 135.905 is repealed. + }
SECTION 8. ORS 147.045 is amended to read:
147.045. (1) Upon filing of a claim pursuant to ORS
{ - 135.905 and - } 147.005 to 147.367, the Department of
Justice shall promptly notify the district attorney of the county
wherein the crime is alleged to have occurred. If, within 10 days
after such notification, the district attorney advises the
department that a criminal prosecution is pending upon the same
alleged crime and requests that action by the department be
Enrolled House Bill 4169 (HB 4169-A) Page 3
deferred, the department shall defer all proceedings under ORS
{ - 135.905 and - } 147.005 to 147.367 until such time as such
criminal prosecution has been concluded and shall so notify the
district attorney and the applicant. When such criminal
prosecution has been concluded, the district attorney shall
promptly so notify the department.
(2) Nothing in this section shall limit the authority of the
department to grant emergency awards pursuant to ORS 147.055.
SECTION 9. ORS 147.105 is amended to read:
147.105. (1) An applicant for compensation under ORS
{ - 135.905 and - } 147.005 to 147.367 must file an application
under oath on a form furnished by the Department of Justice. The
application shall include:
(a) The name and address of the victim;
(b) If the victim is deceased, the name and address of the
applicant and relationship to the victim, the names and addresses
of the victim's dependents and the extent to which each is so
dependent;
(c) The date and nature of the crime or attempted crime on
which the application for compensation is based;
(d) The date and place where, and the law enforcement officials
to whom, notification of the crime was given;
(e) The nature and extent of the injuries sustained by the
victim, the names and addresses of those giving medical and
hospital treatment to the victim and whether death resulted;
(f) The loss to the applicant and to such other persons as are
specified under paragraph (b) of this subsection, resulting from
the injury or death;
(g) The amount of benefits, payments or awards, if any, payable
from any source, which the applicant or other person, listed
under paragraph (b) of this subsection, has received or for which
the applicant or other person is eligible as a result of the
injury or death;
(h) Releases authorizing the surrender to the department of
reports, documents and other information relating to the matters
specified under this subsection; and
(i) Such other information as the department determines is
necessary.
(2) The department may require that the applicants submit with
the application materials substantiating the facts stated in the
application.
(3) If the department finds that an application does not
contain the required information or that the facts stated therein
have not been substantiated, it shall notify the applicant in
writing of the specific additional items of information or
materials required and that the applicant has 30 days from the
date of mailing in which to furnish those items to the
department. Unless an applicant requests and is granted an
extension of time by the department, the department shall reject
with prejudice the claim of the applicant for failure to file the
additional information or materials within the specified time.
(4) An applicant may file an amended application or additional
substantiating materials to correct inadvertent errors or
omissions at any time before the department has completed its
consideration of the original application.
(5) The filing of additional information or the amendment of
the application pursuant to subsection (3) or (4) of this section
shall be considered for the purposes of ORS { - 135.905 and - }
147.005 to 147.367 to have been filed at the same time as the
original application.
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(6) Unless the department finds good cause exists for the
applicant's failure to satisfy a financial obligation or unless
the interest of justice requires otherwise, the department shall
not process an application filed by or on behalf of a victim who
owes a financial obligation ordered or imposed as a result of a
previous criminal conviction until the department receives
information or materials establishing to the satisfaction of the
department that the financial obligation has been satisfied. If
the department does not receive the information or materials
within one year after the department notifies the applicant of
the need to fulfill this requirement, the application is void.
(7)(a) If at the time of application, the applicant is
incarcerated as a result of a conviction of a crime, the
application shall be refused and returned to the applicant. The
applicant is eligible to refile the application within six months
after the applicant is released from incarceration.
(b) At the time the application is refused and returned, the
department shall notify the applicant of the right to refile the
claim within six months of release from incarceration.
SECTION 10. ORS 147.115 is amended to read:
147.115. (1) All information submitted to the Department of
Justice by an applicant and all hearings of the Workers'
Compensation Board under ORS { - 135.905 and - } 147.005 to
147.367 shall be open to the public unless the department or
board determines that the information shall be kept confidential
or that a closed hearing shall be held because:
(a) The alleged assailant has not been brought to trial and
disclosure of the information or a public hearing would adversely
affect either the apprehension or the trial of the alleged
assailant;
(b) The offense allegedly perpetrated against the victim is
rape, sodomy or sexual abuse and the interests of the victim or
of the victim's dependents require that the information be kept
confidential or that the public be excluded from the hearing;
(c) The victim or alleged assailant is a minor; or
(d) The interests of justice would be frustrated rather than
furthered, if the information were disclosed or if the hearing
were open to the public.
(2)(a) A record shall be kept of the proceedings held before
the board and shall include the board's findings of fact and
conclusions concerning the amount of compensation, if any, to
which the applicant and the dependents of a deceased victim are
entitled.
(b) No part of the record of any proceedings before the board
may be used for any purpose in a criminal proceeding except in
the prosecution of a person alleged to have committed perjury in
testimony before the board.
(c) Where the interests of justice require, the board may
refuse to disclose to the public the names of victims or other
material in the record by which the identity of the victim could
be discovered.
(3) Notwithstanding subsection (2)(b) and (c) of this section,
the record of the proceedings held before the board is a public
record. However, any record or report obtained by the board, the
confidentiality of which is protected by any other law, shall
remain confidential subject to such law.
(4) Witnesses required to appear at any proceeding before the
board shall receive such fees and mileage allowance as are
provided for witnesses in ORS 44.415 (2).
SECTION 11. ORS 147.135 is amended to read:
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147.135. After processing the application filed under ORS
147.105 the Department of Justice shall enter an order stating:
(1) Its findings of fact; and
(2) Its decision as to whether or not compensation is due under
ORS { - 135.905 and - } 147.005 to 147.367.
SECTION 12. ORS 147.165 is amended to read:
147.165. (1) The award made under ORS { - 135.905 and - }
147.005 to 147.367 shall be paid in a manner determined by the
Department of Justice. Payment for medical, hospital and funeral
expenses may be made directly to the service providers.
(2) Where a person eligible to receive an award under ORS
{ - 135.905 and - } 147.005 to 147.367 is a person under the
age of 18 years or an incompetent, the award may be paid to a
relative, guardian or attorney of such person on behalf of and
for the benefit of such person. In such case the payee shall:
(a) File an annual accounting of the award with the department;
and
(b) Take such other action as the department shall determine is
necessary and appropriate for the benefit of the beneficiary of
the award.
(3) A person who is incarcerated is not eligible for payments
for loss of earnings for the period of incarceration.
(4) Payment of claims is subject to availability of funds for
victim compensation awards as provided in the department budget
approved by the Legislative Assembly or the Emergency Board.
SECTION 13. ORS 147.205 is amended to read:
147.205. (1) To carry out the provisions and purposes of ORS
{ - 135.905 and - } 147.005 to 147.367, the Department of
Justice has the power and duty to:
(a) Appoint such employees and agents as it determines are
necessary, fix their compensation within the limitations provided
by law, and prescribe their duties.
(b) Request and obtain from law enforcement agencies, district
attorneys, county juvenile departments, the Department of Human
Services, the Oregon Youth Authority and the Department of
Corrections such assistance and information as will enable the
Department of Justice to carry out its functions and duties under
ORS 147.005 to 147.367. The Department of Justice may obtain
assistance and information under this paragraph, notwithstanding
any other law relating to the confidentiality or disclosure of
records. The Department of Justice:
(A) Shall maintain the confidentiality of any privileged or
confidential information or records obtained under this
paragraph;
(B) May use the information or records only for the purposes
authorized by ORS 147.005 to 147.367; and
(C) May not disclose the contents of any privileged or
confidential records to any other person or entity.
(c) Adopt rules pursuant to ORS chapter 183.
(d) Direct medical examination of victims.
(e) Determine all claims for awards filed with the department
pursuant to ORS { - 135.905 and - } 147.005 to 147.367, and to
reinvestigate or reopen cases as the department deems necessary.
(f) Report biennially to the Governor and to the Legislative
Assembly on its activities.
(2) Notwithstanding any other law relating to the
confidentiality or disclosure of records, when a crime victim
applies for compensation under ORS 147.005 to 147.367, a person
that provides medical services or supplies or pays the costs of
medical services or supplies provided to the crime victim shall
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provide to the Department of Justice any individually
identifiable health information the person has in the person's
possession about the crime victim if:
(a) The department requests the information; and
(b) A release authorizing the surrender has been completed
under ORS 147.105 (1)(h).
(3) As used in subsection (2) of this section:
(a) 'Pays' includes, but is not limited to, payments made
directly or indirectly through settlements, judgments, insurance,
Medicaid, other compensation or restitution.
(b) 'Person' includes, but is not limited to, health care
providers and their agents, insurers and their agents, employers
and public bodies as defined in ORS 174.109.
SECTION 14. ORS 147.215 is amended to read:
147.215. (1) The Attorney General shall serve as legal adviser
to the Department of Justice for all matters arising under ORS
{ - 135.905 and - } 147.005 to 147.367.
(2) Law enforcement officials and other agencies of the state
or local governmental units are authorized to give and shall
provide any assistance or information requested by the department
under ORS 147.205 (1)(b).
SECTION 15. ORS 147.225 is amended to read:
147.225. There is established the Criminal Injuries
Compensation Account. All moneys in the account are continuously
appropriated for and may be used by the Department of Justice for
the purposes authorized in ORS { - 135.905, - } 147.005 to
147.367 and 147.397.
SECTION 16. ORS 147.240 is amended to read:
147.240. After the entry of an award under ORS { - 135.905
and - } 147.005 to 147.367, the Department of Justice shall
submit the claim for payment from the Criminal Injuries
Compensation Account pursuant to ORS 293.295 to 293.460 and
293.465 to 293.510.
SECTION 17. ORS 147.315 is amended to read:
147.315. No fee may be charged to the applicant in any
proceeding under ORS { - 135.905 and - } 147.005 to 147.367.
SECTION 18. ORS 147.325 is amended to read:
147.325. No compensation payable under ORS { - 135.905
and - } 147.005 to 147.367 shall, prior to actual receipt thereof
by the person or beneficiary eligible therefor, or their legal
representatives, be assignable or subject to execution,
garnishment, attachment or any other process, including process
to satisfy an order or judgment for support or alimony.
SECTION 19. ORS 147.335 is amended to read:
147.335. The rights to compensation created by ORS
{ - 135.905 and - } 147.005 to 147.367 are personal and shall
not survive the death of the person or beneficiary eligible
therefor. However, if such death occurs after an application for
compensation has been filed with the Department of Justice, the
proceeding shall not abate, but may be continued by the legal
representative of the decedent's estate.
SECTION 20. ORS 147.345 is amended to read:
147.345. (1) The acceptance of an award made pursuant to ORS
{ - 135.905 and - } 147.005 to 147.367 shall subrogate the
state, to the extent of such award, to any right or right of
action accruing to the applicant or recipient against the
assailant or any other person or entity liable for the injury
constituting the basis for the award.
(2)(a) On behalf of the state, the Department of Justice may
bring suit against an assailant to recover the amount of
Enrolled House Bill 4169 (HB 4169-A) Page 7
compensation paid to an applicant or recipient of an award made
pursuant to ORS { - 135.905 and - } 147.005 to 147.367 as a
result of the assailant's commission of a compensable crime.
Before initiating a suit under this subsection, the Department of
Justice must notify the applicant or recipient that the
Department of Justice is going to initiate a suit. A suit under
this subsection does not affect any right or right of action
accruing to the applicant or recipient against the assailant for
the injury constituting the basis for the award, except that the
assailant may be able to offset payments made to the Department
of Justice against any award to the applicant or recipient for
the same damages. The assailant also may offset any payments the
assailant has made to the applicant or recipient for the same
damages against any recovery by the Department of Justice under
this subsection.
(b) In a suit under this subsection, the Department of Justice
may recover attorney fees and costs of suit.
(c) Each separate payment of compensation under ORS
{ - 135.905 and - } 147.005 to 147.367 creates a cause of
action under this subsection.
(3) Any settlement of a right or right of action against the
assailant or any other person or entity by the victim or the
dependent of the victim based on the compensable crime must be
approved by the Department of Justice if the department has made
an award to the victim or the dependent of the victim. If the
settlement is not approved by the department, the department may
void the settlement.
SECTION 21. ORS 147.365 is amended to read:
147.365. (1) All law enforcement agencies in this state shall
deliver cards to victims of crime stating the procedure to be
followed in applying for compensation under ORS { - 135.905
and - } 147.005 to 147.367.
(2) No law enforcement agency shall be civilly liable for a
failure to comply with subsection (1) of this section.
SECTION 22. { + The unit captions used in this 2012 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2012 Act. + }
SECTION 23. { + This 2012 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2012 Act takes effect on
its passage. + }
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Enrolled House Bill 4169 (HB 4169-A) Page 8
Passed by House February 24, 2012
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate February 29, 2012
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 4169 (HB 4169-A) Page 9
Received by Governor:
......M.,............., 2012
Approved:
......M.,............., 2012
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2012
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 4169 (HB 4169-A) Page 10