Bill Text: OR SB396 | 2011 | Regular Session | Enrolled
Bill Title: Relating to protective orders.
Sponsorship: Unknown
Status: (Passed) 2011-06-07 - Effective date, January 1, 2012. [SB396 Detail]
Download: Oregon-2011-SB396-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
Senate Bill 396
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary for Sheriff's Civil Command Council)
CHAPTER ................
AN ACT
Relating to protective orders; creating new provisions; and
amending ORS 107.720, 107.723, 107.730, 124.022, 124.030,
163.741, 419B.845 and 419B.846.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 107.720 is amended to read:
107.720. (1)(a) Whenever a restraining order, as authorized by
ORS 107.095 (1)(c) or (d), 107.716 or 107.718 { - which - }
{ + , that + } includes a security amount and an expiration date
pursuant to ORS 107.095, 107.716 or 107.718 and this section, is
issued and the person to be restrained has actual notice
{ - thereof - } { + of the order + }, the clerk of the court
or any other person serving the petition and order shall
{ + immediately + } deliver { - forthwith - } to a county
sheriff a true copy of the affidavit of proof of
service { + , + } on which it is stated that personal service of
the petition and order was served on the respondent, { - a
copy - } { + and copies + } of the petition and
{ - a true copy of the - } order. If an order entered by the
court recites that the respondent appeared in person before the
court, the necessity for { - further - } service of the order
{ + and an affidavit of proof of service + } is waived { - and
an accompanying proof of service is not necessary - } . Upon
receipt of a { - true - } copy of the order and { + notice
of + } completion of any required service { + by a member of a
law enforcement agency + }, the county sheriff shall
{ - forthwith - } { + immediately + } enter the order into the
Law Enforcement Data System maintained by the Department of State
Police and into the databases of the National Crime Information
Center of the United States Department of Justice. { + If the
petition and order were served on the respondent by a person
other than a member of a law enforcement agency, the county
sheriff shall enter the order into the Law Enforcement Data
System and databases of the National Crime Information Center
upon receipt of a true copy of the affidavit of proof of service.
+ }The sheriff shall { - also - } provide the petitioner with
a true copy of { - the - } { + any required + } proof of
service. Entry into the Law Enforcement Data System constitutes
notice to all law enforcement agencies of the existence of
Enrolled Senate Bill 396 (SB 396-A) Page 1
{ - such - } { + the + } order. Law enforcement agencies shall
establish procedures adequate to ensure that an officer at the
scene of an alleged violation of { - such - } { + the + }
order may be informed of the existence and terms of
{ - such - } { + the + } order. { - Such - } { + The + }
order { - shall be - } { + is + } fully enforceable in any
county or tribal land in { - the - } { + this + } state.
{ - The petitioner may elect to deliver documents personally to
a county sheriff or to have them delivered by a private person
for entry into the Law Enforcement Data System and the databases
of the National Crime Information Center of the United States
Department of Justice. - }
(b) When a restraining order has been entered into the Law
Enforcement Data System and the databases of the National Crime
Information Center of the United States Department of Justice
under paragraph (a) of this subsection, a county sheriff shall
cooperate with a request from a law enforcement agency from any
other jurisdiction to verify the existence of the restraining
order or to transmit a copy of the order to the requesting
jurisdiction.
(2)(a) A restraining order shall remain in effect until the
order expires or is terminated by court order.
(b) When a restraining order has been entered under ORS
107.718, the restraining order shall not be terminated upon a
motion for dismissal by the petitioner unless the motion is
notarized.
(3) In any situation where a restraining order described in
subsection (1) of this section is terminated before the
expiration date, the clerk of the court shall
{ + immediately + } deliver { - forthwith - } a { - true - }
copy of the termination order to the county sheriff with whom the
original order was filed. Upon receipt of { - such - } { +
the + } termination order { + , + } the county sheriff shall
promptly remove the original order from the Law Enforcement Data
System and the databases of the National Crime Information Center
of the United States Department of Justice.
(4) Pending a contempt hearing for alleged violation of a
restraining order issued { - pursuant to - } { + under + }
ORS 107.095 (1)(c) or (d), 107.716 or 107.718, a person arrested
and taken into custody pursuant to ORS 133.310 may be released as
provided in ORS 135.230 to 135.290. Whenever { - such - } { +
a + } restraining order is issued { + under ORS 107.095 (1)(c)
or (d), 107.716 or 107.718 + }, the issuing court shall set a
security amount for the violation of { - such - } { + the + }
order.
SECTION 2. ORS 107.723 is amended to read:
107.723. (1) A sheriff may serve a restraining order
{ + issued + } under ORS { - 107.718 - } { + 107.700 to
107.735 + } in the county in which the sheriff was elected and in
any { - other - } county that is adjacent to the county in
which the sheriff was elected.
(2) A sheriff may serve and enter into the Law Enforcement Data
System a { - facsimile of a certified true - } copy of a
restraining order under ORS { - 107.718 - } { + 107.700 to
107.735 + } that was transmitted to the sheriff by a { - trial
court administrator or another sheriff using a telephonic
facsimile communication device - } { + court or law enforcement
agency using an electronic communication device + }. { - A copy
of the facsimile must be attached to the sheriff's return of
service. - } Before transmitting { + a copy of + } a
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restraining order to a sheriff under this subsection { + by
telephonic facsimile or electronic mail + }, the person sending
the { - facsimile - } { + copy + } must receive confirmation
{ - by telephone - } from the sheriff's office that
{ - a telephonic facsimile - } { + an electronic + }
communication device is available and operating. { + For
purposes of this subsection, ' electronic communication device'
means a device by which any kind of electronic communication can
be made, including but not limited to communication by telephonic
facsimile and electronic mail. + }
SECTION 3. ORS 107.730 is amended to read:
107.730. (1) At any time after an order has been issued under
ORS 107.700 to 107.735 and after the time period set forth in ORS
107.718 (10)(a):
(a) A party may request that the court modify terms in the
order that were entered under ORS 107.718 (1)(a), (b), (g) or (i)
for good cause shown.
(b) A petitioner may request that the court modify by removing
or making less restrictive terms in the order that were entered
under ORS 107.718 (1)(b), (g) or (i) for good cause shown.
Application to the court under this paragraph may be by ex parte
motion.
(2) The clerk of the court shall provide without charge the
number of certified true copies of the request for modification
of the order and notice of hearing necessary to effect service
and, at the election of the party requesting the modification,
shall have a true copy of the request and notice delivered to the
county sheriff for service upon the other party.
{ - (3) Service shall be in the manner provided by law for
service of summons. The county sheriff shall serve the other
party personally unless the party requesting the modification
elects to have the other party served personally by a private
party. - }
{ + (3) The county sheriff shall personally serve the other
party with a request under subsection (1)(a) of this section,
unless the party requesting the modification under subsection
(1)(a) of this section elects to have the other party personally
served by a private party or unless otherwise ordered by the
court. + }
(4) The provisions of ORS 107.716 (5) apply to a modification
of an order under this section.
{ + (5) The clerk of the court shall deliver a copy of an
order of modification entered under subsection (1) of this
section to the county sheriff for service and entry into the Law
Enforcement Data System as provided in ORS 107.723.
(6)(a) The county sheriff shall serve a copy of an order of
modification:
(A) Entered under subsection (1)(a) of this section by personal
service on the nonrequesting party.
(B) Entered under subsection (1)(b) of this section by mailing
a copy of the order to the nonrequesting party by first class
mail.
(b) If the order of modification recites that the respondent
appeared in person before the court, the necessity for service of
the order and an affidavit of proof of service is waived. + }
{ - (5) - } { + (7) + } The court may assess against either
party a reasonable attorney fee and { - such - } costs
{ - as - } { + that + } may be incurred in the proceeding.
SECTION 4. ORS 124.022 is amended to read:
Enrolled Senate Bill 396 (SB 396-A) Page 3
124.022. (1) A sheriff may serve a restraining order
{ + issued + } under ORS 124.020 in the county in which the
sheriff was elected and in any { - other - } county that is
adjacent to the county in which the sheriff was elected.
(2) A sheriff may serve and enter into the Law Enforcement Data
System a { - facsimile of a certified true - } copy of a
restraining order under ORS 124.020 that was transmitted to the
sheriff by a { - trial court administrator or another sheriff
using a telephonic facsimile communication device - } { + court
or law enforcement agency using an electronic communication
device + }. { - A copy of the facsimile must be attached to the
sheriff's return of service. - } Before transmitting a
restraining order to a sheriff under this subsection { + by
telephonic facsimile or electronic mail + }, the person sending
the { - facsimile - } { + copy + } must receive confirmation
{ - by telephone - } from the sheriff's office that { - a
telephonic facsimile - } { + an electronic + } communication
device is available and operating. { + For purposes of this
subsection, 'electronic communication device' means a device by
which any kind of electronic communication can be made, including
but not limited to communication by telephonic facsimile and
electronic mail. + }
SECTION 5. ORS 124.030 is amended to read:
124.030. (1) Whenever a restraining order, as authorized by ORS
124.015 or 124.020, that includes a security amount and an
expiration date pursuant to ORS 124.015 and 124.020 and this
section, is issued and the person to be restrained has actual
notice { - thereof - } { + of the order + }, the clerk of the
court or any other person serving the petition and order shall
{ + immediately + } deliver
{ - forthwith - } to a county sheriff a true copy of the
affidavit of proof of service { + , + } on which it is stated
that personal service of the petition and order was served on the
respondent, { - a copy - } { + and copies + } of the petition
and { - a true copy of the - } order. If an order entered by
the court recites that the respondent appeared in person before
the court, the necessity for { - further - } service of the
order { + and an affidavit of proof of service + } is waived
{ - and an accompanying proof of service is not necessary - } .
Upon receipt of a
{ - true - } copy of the order and { + notice of + }
completion of any required service { + by a member of a law
enforcement agency + }, the county sheriff shall
{ - forthwith - } { + immediately + } enter the order into the
Law Enforcement Data System maintained by the Department of State
Police. { + If the petition and order were served on the
respondent by a person other than a member of a law enforcement
agency, the county sheriff shall enter the order into the Law
Enforcement Data System upon receipt of a true copy of the
affidavit of proof of service. + }Entry into the Law Enforcement
Data System constitutes notice to all law enforcement agencies of
the existence of { - such - } { + the + } order. Law
enforcement agencies shall establish procedures adequate to
ensure that an officer at the scene of an alleged violation of
{ - such - } { + the + } order may be informed of the
existence and terms of { - such - } { + the + } order.
{ - Such - } { + The + } order { - shall be - } { + is + }
fully enforceable in any county in { - the - } { + this + }
state. { - The petitioner or guardian petitioner may elect to
deliver documents personally to a county sheriff or to have them
Enrolled Senate Bill 396 (SB 396-A) Page 4
delivered by a private person for entry into the Law Enforcement
Data System. - }
(2)(a) A restraining order shall remain in effect until the
order expires or is terminated by court order.
(b) When a restraining order has been entered under ORS
124.020, the restraining order shall not be terminated upon a
motion for dismissal by the petitioner or guardian petitioner
unless the motion is notarized.
(3) In any situation where a restraining order described in
subsection (1) of this section is terminated before the
expiration date, the clerk of the court shall
{ + immediately + } deliver { - forthwith - } a { - true - }
copy of the termination order to the county sheriff with whom the
original order was filed. Upon receipt of { - such - } { +
the + } termination order { + , + } the county sheriff shall
promptly remove the original order from the Law Enforcement Data
System.
(4) Pending a contempt hearing for an alleged violation of a
restraining order issued { - pursuant to - } { + under + }
ORS 124.015 or 124.020, a person arrested and taken into custody
pursuant to ORS 133.310 may be released as provided in ORS
135.230 to 135.290. Whenever { - such - } { + a + }
restraining order is issued { + under ORS 124.015 or
124.020 + }, the issuing court shall set a security amount for
the violation of { - such - } { + the + } order.
SECTION 6. ORS 163.741 is amended to read:
163.741. (1) Service of a stalking protective order shall be
made by personal delivery of a copy of the order to the
respondent. The respondent need not be served if an order of the
court indicates that the respondent appeared in person before the
court.
(2) Whenever a stalking protective order, as authorized by ORS
163.735 or 163.738, is served on a respondent, the person serving
the order shall { + immediately + } deliver { - forthwith - }
to the county sheriff a true copy of the { - order and an - }
affidavit of proof of service { + , + } on which it is stated
that personal service of the order was made on the
respondent { + , and a copy of the order + }. If service of the
order is not required under subsection (1) of this section, a
copy of the order { - shall - } { + must + } be delivered to
the sheriff by the court. Upon receipt of { + a copy of + } the
order and { + notice of completion of + } any required
{ - proof of - } service { + by a member of a law enforcement
agency + }, the county sheriff shall
{ - forthwith - } { + immediately + } enter the order into
the Law Enforcement Data System maintained by the Department of
State Police and into the databases of the National Crime
Information Center of the United States Department of Justice.
{ + If the order was served on the respondent by a person other
than a member of a law enforcement agency, the county sheriff
shall enter the order into the Law Enforcement Data System and
databases of the National Crime Information Center upon receipt
of a true copy of the affidavit of proof of service. + } The
sheriff shall { - also - } provide the complainant with a true
copy of any required proof of service. Entry into the Law
Enforcement Data System constitutes notice to all law enforcement
agencies of the existence of { - such - } { + the + } order.
Law enforcement agencies shall establish procedures adequate to
ensure that an officer at the scene of an alleged violation of
Enrolled Senate Bill 396 (SB 396-A) Page 5
{ - such - } { + the + } order may be informed of the
existence and terms of
{ - such - } { + the + } order. { - Such - } { + The + }
order { - shall be - } { + is + } fully enforceable in any
county in { - the - } { + this + } state. { - The
complainant may elect to deliver documents personally to a county
sheriff or to have them delivered by a private person for entry
into the Law Enforcement Data System and the databases of the
National Crime Information Center of the United States Department
of Justice. - }
(3) When a stalking protective order has been entered into the
Law Enforcement Data System and the databases of the National
Crime Information Center of the United States Department of
Justice under subsection (1) of this section, a county sheriff
shall cooperate with a request from a law enforcement agency from
any other jurisdiction to verify the existence of the stalking
protective order or to transmit a copy of the order to the
requesting jurisdiction.
(4) When a stalking protective order is terminated by order of
the court, the clerk of the court shall { + immediately + }
deliver
{ - forthwith - } a { - true - } copy of the termination
order to the county sheriff with whom the original order was
filed. Upon receipt of the termination order, the county sheriff
shall promptly remove the original order from the Law Enforcement
Data System and the databases of the National Crime Information
Center of the United States Department of Justice.
SECTION 7. ORS 419B.845 is amended to read:
419B.845. (1)(a) When a petition has been filed alleging that
the child has been physically or sexually abused, the court may
enter an order restraining the alleged perpetrator of the abuse
from having contact with the child or attempting to contact the
child and requiring the alleged perpetrator to move from the
household in which the child resides. The court may issue a
restraining order only if the court finds that:
(A) There is probable cause to believe the abuse occurred and
that the person to be restrained committed the abuse; and
(B) The order is in the best interest of the child.
(b) Upon finding that to do so would aid in protecting the
victim of the alleged abuse, the court may enter, in addition to
a restraining order described in paragraph (a) of this
subsection, other appropriate orders including, but not limited
to, orders that control contact between the alleged abuser and
other children in the household.
(c) The court shall include in an order entered under this
subsection the following information about the person to be
restrained:
(A) Name;
(B) Address;
(C) Age and birth date;
(D) Race;
(E) Sex;
(F) Height and weight; and
(G) Color of hair and eyes.
(d) The court may include in the order a provision that a peace
officer accompany the restrained person to the household when it
is necessary for the { - restrained - } person to remove
{ - personal property. - } { + the person's essential
personal effects including, but not limited to, clothing,
toiletries, medications, Social Security cards, birth
Enrolled Senate Bill 396 (SB 396-A) Page 6
certificates, identification and tools of the trade. The
restrained person is entitled to remove the person's essential
personal effects under this paragraph on one occasion only and is
required to be accompanied by a peace officer. The restrained
person and the peace officer shall remain for no longer than 20
minutes and the peace officer may temporarily interrupt the
removal of essential personal effects at any time. Nothing in
this paragraph affects a peace officer's duty to arrest under ORS
133.055 and 133.310. A peace officer who accompanies a restrained
person under this paragraph has immunity from any liability,
civil or criminal, for any actions the person commits during the
removal of the person's essential personal effects. + }
(2) If the court enters an order under this section:
(a) The clerk of the court shall provide without charge the
number of certified { - true - } copies of the petition and
order necessary to effect service and shall have a { - true - }
copy of the petition and order delivered to the sheriff or other
person qualified to serve the order for service upon the person
to be restrained; and
(b) The sheriff or other person qualified to serve the order
shall serve the person to be restrained personally unless that
person is present at the hearing. After accepting the order, if
the sheriff or other person cannot complete service within 10
days, the sheriff or other person shall hold the order for future
service and file a return to the clerk of the court showing that
service was not completed.
(3) Within 30 days after an order is served under this section,
the restrained person may file a written request with the court
and receive a court hearing on any portion of the order. If the
restrained person requests a hearing under this subsection:
(a) The clerk of the court shall notify the parties and, if the
restrained person is not a party, the restrained person of the
date and time of the hearing; and
(b) The court shall hold the hearing within 21 days after the
request and may cancel or modify the order.
(4) Upon receipt of { + a copy of + } the order and
{ + notice of + } completion of any required service { + by a
member of a law enforcement agency + }, the sheriff shall
immediately enter the order into the Law Enforcement Data System
maintained by the Department of State Police. { + If the order
was served on the person to be restrained by a person other than
a member of a law enforcement agency, the county sheriff shall
enter the order into the Law Enforcement Data System upon receipt
of a true copy of the affidavit of proof of service. + }Entry
into the Law Enforcement Data System constitutes notice to all
law enforcement agencies of the existence of the order. Law
enforcement agencies shall establish procedures adequate to
ensure that an officer at the scene of an alleged violation of
the order may be informed of the existence and terms of the
order. The order { - shall be - } { + is + } fully
enforceable in any county in this state.
(5) A restraining order issued pursuant to this section remains
in effect for a period of one year or until the order is
modified, amended or terminated by court order.
(6) A court that issued a restraining order under this section
may renew the order for a period of up to one year if the court
finds that there is probable cause to believe the renewal is in
the best interest of the child. The court may renew the order on
motion alleging facts supporting the required finding. If the
Enrolled Senate Bill 396 (SB 396-A) Page 7
renewal order is granted, subsections (2) and (3) of this section
apply.
(7) If a restraining order issued pursuant to this section is
terminated before its expiration date, the clerk of the court
shall { - promptly - } { + immediately + } deliver a
{ - true - } copy of the termination order to the sheriff. The
sheriff shall promptly remove the original order from the Law
Enforcement Data System.
(8) Pending a contempt hearing for alleged violation of a
restraining order issued under this section, a person arrested
and taken into custody pursuant to ORS 133.310 may be released as
provided in ORS 135.230 to 135.290. Unless the order provides
otherwise, the security amount for release shall be $5,000.
(9) When a restraining order entered under this section
prohibits the restrained person from contacting the protected
person in writing, the restrained person does not violate the
restraining order by serving on the protected person a copy of a
notice of appeal of the restraining order or any other document
required by law to be served on the adverse party to an appeal
if:
(a) Neither the restrained person nor the protected person is
represented by counsel;
(b) The restrained person serves the document by mail; and
(c) The contents of the document are not intended to harass or
intimidate the protected person.
SECTION 8. ORS 419B.846 is amended to read:
419B.846. (1) A sheriff may serve a restraining order
{ + issued + } under ORS 419B.845 in the county in which the
sheriff was elected and in any { - other - } county that is
adjacent to the county in which the sheriff was elected.
(2) A sheriff may serve and enter into the Law Enforcement Data
System a { - facsimile of a certified true - } copy of a
restraining order under ORS 419B.845 that was transmitted to the
sheriff by a { - trial court administrator or another sheriff
using a telephonic facsimile communication device - } { + court
or law enforcement agency using an electronic communication
device + }. { - A copy of the facsimile must be attached to the
sheriff's return of service. - } Before transmitting a
restraining order to a sheriff under this subsection { + by
telephonic facsimile or electronic mail + }, the person sending
the { - facsimile - } { + copy + } must receive confirmation
{ - by telephone - } from the sheriff's office that { - a
telephonic facsimile - } { + an electronic + } communication
device is available and operating. { + For purposes of this
subsection, 'electronic communication device' means a device by
which any kind of electronic communication can be made, including
but not limited to communication by telephonic facsimile and
electronic mail. + }
SECTION 9. { + The amendments to ORS 107.720, 107.723,
107.730, 124.022, 124.030, 163.741, 419B.845 and 419B.846 by
sections 1 to 8 of this 2011 Act apply to protective orders
entered on or after the effective date of this 2011 Act. + }
----------
Enrolled Senate Bill 396 (SB 396-A) Page 8
Passed by Senate March 23, 2011
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House May 25, 2011
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 396 (SB 396-A) Page 9
Received by Governor:
......M.,............., 2011
Approved:
......M.,............., 2011
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2011
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 396 (SB 396-A) Page 10
