Bill Text: OR SB412 | 2011 | Regular Session | Enrolled
Bill Title: Relating to tribal police officers; and declaring an emergency.
Spectrum: Unknown
Status: (Passed) 2011-08-01 - Effective date, July 22, 2011. [SB412 Detail]
Download: Oregon-2011-SB412-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
Senate Bill 412
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)
CHAPTER ................
AN ACT
Relating to tribal police officers; creating new provisions;
amending ORS 40.275, 90.440, 131.605, 133.005, 133.033,
133.318, 133.525, 133.721, 133.726, 136.595, 147.425, 153.005,
161.015, 163.730, 165.535, 181.010, 181.610, 181.781, 181.783,
181.796, 348.270, 414.805, 419B.902, 420.905, 801.395, 810.410,
811.720 and 830.005; repealing sections 4, 14, 15, 16, 17, 23,
24 and 39, chapter 506, Oregon Laws 2011 (Enrolled Senate Bill
405); and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 4 of this 2011 Act:
(1) 'Authorized tribal police officer' means a tribal police
officer who is acting:
(a) In accordance with sections 1 to 4 of this 2011 Act; and
(b) While employed by a tribal government that is in compliance
with sections 1 to 4 of this 2011 Act.
(2) 'Indian country' has the meaning given that term in 18
U.S.C. 1151.
(3) 'Tribal government' means a federally recognized sovereign
tribal government whose borders lie within this state or an
intertribal organization formed by two or more of those
governments.
(4) 'Tribal police officer' means an employee of a tribal
government whose duties include the enforcement of criminal
law. + } { + + }
SECTION 2. { + A tribal police officer is eligible to act as
an authorized tribal police officer if the officer:
(1) Is acting within the scope of employment as a tribal police
officer;
(2) Is certified as a police officer under the provisions of
ORS 181.610 to 181.712;
(3) Is in compliance with any rules adopted by the Department
of Public Safety Standards and Training under sections 1 to 4 of
this 2011 Act; and
(4) Is employed by a tribal government that:
(a) Is in compliance with the requirements of ORS 181.610 to
181.712 applicable to a law enforcement unit as defined in ORS
181.610;
Enrolled Senate Bill 412 (SB 412-C) Page 1
(b) Is in compliance with sections 1 to 4 of this 2011 Act and
any rules adopted by the department under sections 1 to 4 of this
2011 Act;
(c) Has submitted to the department the resolution and
documents described in section 3 of this 2011 Act;
(d) Has adopted a provision of tribal law:
(A) That requires the tribal government to participate in, and
be bound by, a deadly physical force plan approved under ORS
181.781 to 181.796, to the same extent that the county sheriff is
required to participate in, and be bound by, the plan;
(B) That requires the tribal government to retain records
related to the exercise of the authority granted to authorized
tribal police officers under sections 1 to 4 of this 2011 Act in
a manner substantially similar to the manner in which the
provisions of ORS 192.005 to 192.170 require the Department of
State Police to retain public records;
(C) That provides members of the public with the right to
inspect records of the tribal government related to the exercise
of the authority granted to authorized tribal police officers
under sections 1 to 4 of this 2011 Act in a manner substantially
similar to the manner in which the provisions of ORS 192.410 to
192.505 provide members of the public with the right to inspect
public records of the Department of State Police;
(D) That requires the tribal government to preserve biological
evidence in a manner substantially similar to sections 2 to 6,
chapter 275, Oregon Laws 2011, when the biological evidence:
(i) Is collected as part of a criminal investigation, conducted
by an authorized tribal police officer, into a covered offense as
defined in section 2, chapter 275, Oregon Laws 2011; or
(ii) Is otherwise in the possession of the tribal government
and reasonably may be used to incriminate or exculpate any person
for a covered offense as defined in section 2, chapter 275,
Oregon Laws 2011; and
(E) That waives sovereign immunity, in a manner similar to the
waiver expressed in ORS 30.260 to 30.300, as to tort claims
asserted in the tribal government's court that arise from the
conduct of an authorized tribal police officer. The waiver
described in this subparagraph:
(i) Must apply to the conduct of an authorized tribal police
officer that occurs while the provision of tribal law is in
effect;
(ii) Must allow for recovery against the tribal government in
an amount equal to or greater than the amounts described in ORS
30.260 to 30.300 that are applicable to a local public body;
(iii) May require that the claim be asserted in accordance with
any applicable tort claims procedures of the tribal government;
and
(iv) May exclude claims that could be brought in federal court
under the Federal Tort Claims Act; and
(e) Has adopted or is exempt from adopting, in accordance with
this paragraph, a written pretrial discovery policy that
describes how a tribal government and its authorized tribal
police officers will assist the district attorney, in criminal
prosecutions conducted in state court in which an authorized
tribal police officer arrested or cited the defendant, in meeting
the pretrial discovery obligations imposed on the state by ORS
135.805 to 135.873. The process for adopting, and determining
whether a tribal government is exempt from adopting, a written
pretrial discovery policy is as follows:
Enrolled Senate Bill 412 (SB 412-C) Page 2
(A) A tribal government may request in writing that the sheriff
of a county with land that is contiguous to the land of the
tribal government provide the tribal government with a copy of
any written pretrial discovery policy adopted by the sheriff that
describes how the sheriff's office assists the district attorney
in meeting the pretrial discovery obligations imposed by ORS
135.805 to 135.873. Not later than 30 days after receiving the
request, the sheriff shall provide the tribal government with a
copy of the policy or notify the tribal government that the
sheriff has not adopted the policy.
(B) If a tribal government fails to submit a written request to
each sheriff of a county that is contiguous to the land of the
tribal government or if each sheriff has adopted a written
pretrial discovery policy described in subparagraph (A) of this
paragraph, the tribal government shall, not later than 90 days
after the effective date of this 2011 Act, adopt a written
pretrial discovery policy.
(C) A tribal government may create and adopt a written pretrial
discovery policy or may adopt the written pretrial discovery
policy adopted by the sheriff of a county with land that is
contiguous to the land of the tribal government.
(D) If the sheriff of any county with land that is contiguous
to the land of the tribal government has not, on the date the
sheriff receives a request described in subparagraph (A) of this
paragraph, adopted a written pretrial discovery policy, the
tribal government is exempt from adopting a written pretrial
discovery policy. + }
SECTION 3. { + (1) The Legislative Assembly finds and declares
that the purpose of sections 1 to 4 of this 2011 Act is to
provide authorized tribal police officers with a limited ability
to exercise the powers of, and to receive the same authority and
protections provided to, law enforcement officers under the laws
of this state, without incurring any additional costs or loss of
revenue to the State of Oregon or a political subdivision of the
State of Oregon.
(2) Notwithstanding section 2 of this 2011 Act, a tribal police
officer may not act as an authorized tribal police officer
outside of Indian country, unless the officer:
(a) Is investigating an offense alleged to have been committed
within Indian country;
(b) Leaves Indian country in fresh pursuit as defined in ORS
133.420;
(c) Is acting in response to an offense committed in the
officer's presence; or
(d) Has received the express approval of a law enforcement
agency having jurisdiction over the geographic area in which the
tribal police officer is acting.
(3) When an authorized tribal police officer issues a citation
for the commission of an offense for which the State of Oregon
has jurisdiction and the tribal government employing the officer
does not have jurisdiction, the citation must:
(a) Summon the person cited to appear in the circuit court of
the county in which the offense was committed; and
(b) Be submitted to the district attorney of the county in
which the offense was committed.
(4) A tribal government that employs tribal police officers may
submit to the Department of Public Safety Standards and Training
a resolution declaring that the tribal government is self-insured
or has purchased and maintains in force:
Enrolled Senate Bill 412 (SB 412-C) Page 3
(a) Public liability and property damage insurance for vehicles
operated by authorized tribal police officers; and
(b) Police professional liability insurance from a company
licensed to sell insurance in this state.
(5) The tribal government shall attach the following documents
to the resolution submitted to the department under subsection
(4) of this section:
(a) A declaration that the tribal government has complied with
the requirements of sections 1 to 4 of this 2011 Act; and
(b)(A) A full copy of the public liability and property damage
insurance policy for vehicles operated by the tribal government's
authorized tribal police officers and a full copy of the police
professional liability insurance policy from a company licensed
to sell insurance in this state; or
(B) A description of the tribal government's self-insurance
program.
(6) A self-insurance program or insurance policy described in
subsections (4) and (5) of this section must provide:
(a) That the self-insurance program or insurance policy is
available to satisfy settlements and judgments arising from the
tortious conduct of authorized tribal police officers in an
amount equal to or greater than the amounts described in ORS
30.260 to 30.300 that are applicable to a local public body; and
(b) That the tribal government and the insurance carrier will
not raise the defense of sovereign immunity for claims that are
asserted in the tribal government's court and involve the
tortious conduct of an authorized tribal police officer, provided
that the claims:
(A) Are asserted in accordance with any applicable tort claims
procedures of the tribal government; and
(B) Could not be brought in federal court under the Federal
Tort Claims Act.
(7) If, after submitting the resolution and documents described
in subsections (4) and (5) of this section, there is a material
change in the tribal government's self-insurance program or
insurance policy, the tribal government shall file with the
department a written description of the change within 30 days of
the effective date of the change.
(8) The department shall maintain a file of submissions made by
tribal governments under this section. The department shall
permit inspection and copying of the submissions in accordance
with ORS 192.410 to 192.505.
(9) For purposes of ORS 30.260 to 30.300, an authorized tribal
police officer is not an officer, employee or agent of the State
of Oregon or of any other public body as defined in ORS 174.109.
A public body or an officer, employee or agent of a public body
is not liable for certifying a tribal police officer under ORS
181.610 to 181.712, for accepting for filing the resolution and
documents described in subsections (4) and (5) of this section or
for the acts or omissions of an authorized tribal police officer.
(10) Nothing in sections 1 to 4 of this 2011 Act:
(a) Affects the authority of a county sheriff to appoint duly
commissioned police officers as deputy sheriffs authorized to
enforce the criminal and traffic laws of the State of Oregon;
(b) Affects the existing status and sovereignty of tribal
governments whose traditional lands and territories lie within
the borders of the State of Oregon as established under the laws
of the United States; or
Enrolled Senate Bill 412 (SB 412-C) Page 4
(c) Authorizes a tribal government to receive funds from, or in
lieu of, the State of Oregon or a political subdivision of the
State of Oregon.
(11) A tribal government or tribal police department is not a
seizing agency for purposes of ORS 131.550 to 131.600 or ORS
chapter 131A.
(12) The department may adopt rules to carry out the provisions
of sections 1 to 4 of this 2011 Act and shall require tribal
governments that employ authorized tribal police officers to
reimburse the department for any costs incurred in carrying out
the provisions of sections 1 to 4 of this 2011 Act. + }
SECTION 4. { + (1) Not later than 90 days after the effective
date of this 2011 Act, the Superintendent of State Police, the
sheriff of any county with land that is contiguous to the land of
a tribal government, or the chief executive officer of any other
local law enforcement unit whose political boundaries are
contiguous to the land of a tribal government, may submit a
written application requesting that the tribal government
authorize nontribal police officers employed by the applicant to
exercise all or a portion of the powers of a tribal police
officer while on tribal land. The application shall be addressed
to the tribal government and shall propose terms and conditions
under which the nontribal police officers employed by the
applicant would be eligible to exercise all or a portion of the
powers of a tribal police officer while on tribal lands. The
application:
(a) Must name each proposed nontribal police officer employed
by the applicant;
(b) Must describe how the nontribal police officers employed by
the applicant will comply with requirements established by the
tribal government that are substantially similar to the
requirements necessary for a tribal police officer to act as an
authorized tribal police officer under sections 1 to 4 of this
2011 Act;
(c) Must describe how the political entity that employs the
nontribal police officers will comply with requirements
established by the tribal government that are substantially
similar to the requirements necessary for a tribal government to
employ authorized tribal police officers under sections 1 to 4 of
this 2011 Act;
(d) May propose that the tribal government authorize nontribal
police officers employed by the applicant to enforce state or
tribal law while on tribal lands;
(e) May propose that the tribal government adopt provisions of
state criminal law into the tribal code; and
(f) Must indicate that the nontribal police officers employed
by the applicant will complete, before exercising all or a
portion of the powers of a tribal police officer while on tribal
land, any training and educational prerequisites specified by the
tribal government, including instruction in the tribal
government's history, culture, sovereign authority, tribal code
and court procedures.
(2) When a citation for the commission of a tribal offense is
issued by a nontribal police officer employed by an applicant and
authorized by a tribal government to exercise all or a portion of
the powers of a tribal police officer as to tribal members
suspected of committing violations of tribal law while on tribal
land, the citation must:
Enrolled Senate Bill 412 (SB 412-C) Page 5
(a) Summon the person cited to appear in the tribal court of
the tribal government on whose lands the offense was committed;
and
(b) Be submitted to the prosecutor of the tribal government on
whose lands the tribal offense was committed.
(3)(a) A tribal government may adopt a provision of tribal law
providing that, for purposes of the Tort Claims Act of the tribal
government, a nontribal police officer employed by an applicant
and authorized by a tribal government to exercise all or a
portion of the powers of a tribal police officer while on tribal
land is not an officer, employee or agent of the tribal
government.
(b) Unless the law of the tribal government provides otherwise,
a tribal government is not liable for authorizing a nontribal
police officer employed by an applicant to exercise all or a
portion of the powers of a tribal police officer while on tribal
land or for the acts or omissions of a nontribal police officer
authorized under this section.
(4) Nothing in this section:
(a) Affects the authority of the tribal government to appoint
any person as a tribal police officer for any purpose;
(b) Affects the existing status and sovereignty of the State of
Oregon or the tribal government; or
(c) Authorizes the State of Oregon or any of its political
subdivisions to receive funds from, or in lieu of, a tribal
government.
(5) A tribal government that authorizes a nontribal police
officer employed by an applicant to exercise all or a portion of
the powers of a tribal police officer while on tribal land may
require the applicant to reimburse the tribal government for any
costs incurred in carrying out the provisions of this section.
(6)(a) A tribal government that employs, or seeks to employ,
authorized tribal police officers under sections 1 to 4 of this
2011 Act, no later than 90 days after receiving an application
under subsection (1) of this section, or within such additional
time as the tribal government determines is appropriate, shall
accept, accept with modifications or reject an application filed
under this section.
(b) Before acting on an application, a tribal government that
employs, or seeks to employ, authorized tribal police officers
shall engage in good faith consultation with the applicant
concerning the terms and conditions of the proposed authorization
of nontribal police officers.
(7)(a) If the tribal government rejects the application, or
accepts the application with modifications that are rejected by
the applicant:
(A) The applicant and a tribal government that employs, or
seeks to employ, authorized tribal police officers shall, from
the date of rejection until June 1, 2012, collect individualized
data on the frequency of instances known to the applicant or the
tribal government in which nontribal police officers employed by
the applicant encountered, but were forced to release without
further action due to a lack of legal authority, persons
suspected of committing violations of the law while on tribal
lands;
(B) The applicant shall promptly report any such instance to
the tribal government and the tribal government shall promptly
report any such instance to the applicant;
Enrolled Senate Bill 412 (SB 412-C) Page 6
(C) The applicant and tribal government shall classify the
suspected offenses according to their potential to endanger
public safety; and
(D) The tribal government and applicant shall engage in good
faith consultation concerning the collection and classification
of data; and
(b) No later than September 1, 2013, the tribal government
shall report to the Legislative Assembly, in the manner provided
in ORS 192.245, on the data collected under paragraph (a) of this
subsection. The tribal government and the applicant shall engage
in good faith consultation concerning the contents of the
report. + }
SECTION 5. { + Sections 1 to 4 of this 2011 Act become
operative on the effective date of this 2011 Act. + }
{ +
PROVISIONS APPLICABLE FROM + }
{ +
JULY 1, 2013, TO JUNE 30, 2015 + }
SECTION 6. Section 3 of this 2011 Act is amended to read:
{ + Sec. 3. + } (1) The Legislative Assembly finds and
declares that the purpose of sections 1 to 4 of this 2011 Act is
to provide authorized tribal police officers with { - a
limited - } { + the + } ability to exercise the powers of, and
to receive the same authority and protections provided to, law
enforcement officers under the laws of this state, without
incurring any additional costs or loss of revenue to the State of
Oregon or a political subdivision of the State of Oregon.
{ - (2) Notwithstanding section 2 of this 2011 Act, a tribal
police officer may not act as an authorized tribal police officer
outside of Indian country, unless the officer: - }
{ - (a) Is investigating an offense alleged to have been
committed within Indian country; - }
{ - (b) Leaves Indian country in fresh pursuit as defined in
ORS 133.420; - }
{ - (c) Is acting in response to an offense committed in the
officer's presence; or - }
{ - (d) Has received the express approval of a law
enforcement agency having jurisdiction over the geographic area
in which the tribal police officer is acting. - }
{ - (3) - } { + (2) + } When an authorized tribal police
officer issues a citation for the commission of an offense for
which the State of Oregon has jurisdiction and the tribal
government employing the officer does not have jurisdiction, the
citation must:
(a) Summon the person cited to appear in the circuit court of
the county in which the offense was committed; and
(b) Be submitted to the district attorney of the county in
which the offense was committed.
{ - (4) - } { + (3) + } A tribal government that employs
tribal police officers may submit to the Department of Public
Safety Standards and Training a resolution declaring that the
tribal government is self-insured or has purchased and maintains
in force:
(a) Public liability and property damage insurance for vehicles
operated by authorized tribal police officers; and
(b) Police professional liability insurance from a company
licensed to sell insurance in this state.
Enrolled Senate Bill 412 (SB 412-C) Page 7
{ - (5) - } { + (4) + } The tribal government shall attach
the following documents to the resolution submitted to the
department under subsection { - (4) - } { + (3) + } of this
section:
(a) A declaration that the tribal government has complied with
the requirements of sections 1 to 4 of this 2011 Act; and
(b)(A) A full copy of the public liability and property damage
insurance policy for vehicles operated by the tribal government's
authorized tribal police officers and a full copy of the police
professional liability insurance policy from a company licensed
to sell insurance in this state; or
(B) A description of the tribal government's self-insurance
program.
{ - (6) - } { + (5) + } A self-insurance program or
insurance policy described in subsections { - (4) and (5) - }
{ + (3) and (4) + } of this section must provide:
(a) That the self-insurance program or insurance policy is
available to satisfy settlements and judgments arising from the
tortious conduct of authorized tribal police officers in an
amount equal to or greater than the amounts described in ORS
30.260 to 30.300 that are applicable to a local public body; and
(b) That the tribal government and the insurance carrier will
not raise the defense of sovereign immunity for claims that are
asserted in the tribal government's court and involve the
tortious conduct of an authorized tribal police officer, provided
that the claims:
(A) Are asserted in accordance with any applicable tort claims
procedures of the tribal government; and
(B) Could not be brought in federal court under the Federal
Tort Claims Act.
{ - (7) - } { + (6) + } If, after submitting the resolution
and documents described in subsections { - (4) and (5) - }
{ + (3) and (4) + } of this section, there is a material change
in the tribal government's self-insurance program or insurance
policy, the tribal government shall file with the department a
written description of the change within 30 days of the effective
date of the change.
{ - (8) - } { + (7) + } The department shall maintain a
file of submissions made by tribal governments under this
section. The department shall permit inspection and copying of
the submissions in accordance with ORS 192.410 to 192.505.
{ - (9) - } { + (8) + } For purposes of ORS 30.260 to
30.300, an authorized tribal police officer is not an officer,
employee or agent of the State of Oregon or of any other public
body as defined in ORS 174.109. A public body or an officer,
employee or agent of a public body is not liable for certifying a
tribal police officer under ORS 181.610 to 181.712, for accepting
for filing the resolution and documents described in subsections
{ - (4) and (5) - } { + (3) and (4) + } of this section or for
the acts or omissions of an authorized tribal police officer.
{ - (10) - } { + (9) + } Nothing in sections 1 to 4 of this
2011 Act:
(a) Affects the authority of a county sheriff to appoint duly
commissioned police officers as deputy sheriffs authorized to
enforce the criminal and traffic laws of the State of Oregon;
(b) Affects the existing status and sovereignty of tribal
governments whose traditional lands and territories lie within
the borders of the State of Oregon as established under the laws
of the United States; or
Enrolled Senate Bill 412 (SB 412-C) Page 8
(c) Authorizes a tribal government to receive funds from, or in
lieu of, the State of Oregon or a political subdivision of the
State of Oregon.
{ - (11) - } { + (10) + } A tribal government or tribal
police department is not a seizing agency for purposes of ORS
131.550 to 131.600 or ORS chapter 131A.
{ - (12) - } { + (11) + } The department may adopt rules to
carry out the provisions of sections 1 to 4 of this 2011 Act and
shall require tribal governments that employ authorized tribal
police officers to reimburse the department for any costs
incurred in carrying out the provisions of sections 1 to 4 of
this 2011 Act.
SECTION 7. Section 1 of this 2011 Act is amended to read:
{ + Sec. 1. + } As used in sections 1 to 4 of this 2011 Act:
(1) 'Authorized tribal police officer' means a tribal police
officer who is acting:
(a) In accordance with sections 1 to 4 of this 2011 Act; and
(b) While employed by a tribal government that is in compliance
with sections 1 to 4 of this 2011 Act.
{ - (2) 'Indian country' has the meaning given that term in
18 U.S.C. 1151. - }
{ - (3) - } { + (2) + } 'Tribal government' means a
federally recognized sovereign tribal government whose borders
lie within this state or an intertribal organization formed by
two or more of those governments.
{ - (4) - } { + (3) + } 'Tribal police officer' means an
employee of a tribal government whose duties include the
enforcement of criminal law.
SECTION 8. { + The amendments to sections 1 and 3 of this 2011
Act by sections 6 and 7 of this 2011 Act become operative on July
1, 2013. + }
{ + NOTE: + } Section 9 was deleted by amendment. Subsequent
sections were not renumbered.
{ +
PROVISIONS APPLICABLE FROM + }
{ +
EFFECTIVE DATE TO JUNE 30, 2015 + }
SECTION 10. ORS 40.275 is amended to read:
40.275. (1) As used in this section, 'unit of government '
means { + :
(a) + } The federal government or any state or political
subdivision thereof { + ; or
(b) A tribal government as defined in section 1 of this 2011
Act, if the information relates to or assists in an investigation
conducted by an authorized tribal police officer as defined in
section 1 of this 2011 Act + }.
(2) A unit of government has a privilege to refuse to disclose
the identity of a person who has furnished information relating
to or assisting in an investigation of a possible violation of
law to a law enforcement officer or member of a legislative
committee or its staff conducting an investigation.
(3) The privilege created by this section may be claimed by an
appropriate representative of the unit of government if the
information was furnished to an officer thereof.
(4) No privilege exists under this section:
(a) If the identity of the informer or the informer's interest
in the subject matter of the communication has been disclosed to
those who would have cause to resent the communication by a
Enrolled Senate Bill 412 (SB 412-C) Page 9
holder of the privilege or by the informer's own action, or if
the informer appears as a witness for the unit of government.
(b) If it appears from the evidence in the case or from other
showing by a party that an informer may be able to give testimony
necessary to a fair determination of the issue of guilt or
innocence in a criminal case or of a material issue on the merits
in a civil case to which the unit of government is a party, and
the unit of government invokes the privilege, and the judge gives
the unit of government an opportunity to show in camera facts
relevant to determining whether the informer can, in fact, supply
that testimony. The showing will ordinarily be in the form of
affidavits, but the judge may direct that testimony be taken if
the judge finds that the matter cannot be resolved satisfactorily
upon affidavit. If the judge finds that there is a reasonable
probability that the informer can give the testimony, and the
unit of government elects not to disclose identity of the
informer, the judge on motion of the defendant in a criminal case
shall dismiss the charges to which the testimony would relate,
and the judge may do so on the judge's own motion. In civil
cases, the judge may make any order that justice requires.
Evidence submitted to the judge shall be sealed and preserved to
be made available to the appellate court in the event of an
appeal, and the contents shall not otherwise be revealed without
consent of the unit of government. All counsel and parties shall
be permitted to be present at every stage of proceedings under
this paragraph except a showing in camera, at which no counsel or
party shall be permitted to be present.
(c) If information from an informer is relied upon to establish
the legality of the means by which evidence was obtained and the
judge is not satisfied that the information was received from an
informer reasonably believed to be reliable or credible. The
judge may require the identity of the informer to be disclosed.
The judge shall, on request of the unit of government, direct
that the disclosure be made in camera. All counsel and parties
concerned with the issue of legality shall be permitted to be
present at every stage of proceedings under this paragraph except
a disclosure in camera, at which no counsel or party shall be
permitted to be present. If disclosure of the identity of the
informer is made in camera, the record thereof shall be sealed
and preserved to be made available to the appellate court in the
event of an appeal, and the contents shall not otherwise be
revealed without consent of the unit of government.
SECTION 11. ORS 90.440 is amended to read:
90.440. (1) As used in this section:
(a) 'Group recovery home' means a place that provides occupants
with shared living facilities and that meets the description of a
group home under 42 U.S.C. 300x-25.
(b) 'Illegal drugs' includes controlled substances or
prescription drugs:
(A) For which the tenant does not have a valid prescription; or
(B) That are used by the tenant in a manner contrary to the
prescribed regimen.
(c) 'Peace officer' means a sheriff, constable, marshal or
deputy { + , + } { - or - } a member of a state or city police
force { + or an authorized tribal police officer as defined in
section 1 of this 2011 Act + }.
(2) Notwithstanding ORS 90.375 and 90.435, a group recovery
home may terminate a tenancy and peaceably remove a tenant
without complying with ORS 105.105 to 105.168 if the tenant has
used or possessed alcohol or illegal drugs within the preceding
Enrolled Senate Bill 412 (SB 412-C) Page 10
seven days. For purposes of this subsection, the following are
sufficient proof that a tenant has used or possessed alcohol or
illegal drugs:
(a) The tenant fails a test for alcohol or illegal drug use;
(b) The tenant refuses a request made in good faith by the
group recovery home that the tenant take a test for alcohol or
illegal drug use; or
(c) Any person has personally observed the tenant using or
possessing alcohol or illegal drugs.
(3) A group recovery home that undertakes the removal of a
tenant under this section shall personally deliver to the tenant
a written notice that:
(a) Describes why the tenant is being removed;
(b) Describes the proof that the tenant has used or possessed
alcohol or illegal drugs within the seven days preceding delivery
of the notice;
(c) Specifies the date and time by which the tenant must move
out of the group recovery home;
(d) Explains that if the removal was wrongful or in bad faith
the tenant may seek injunctive relief to recover possession under
ORS 105.121 and may bring an action to recover monetary damages;
and
(e) Gives contact information for the local legal services
office and for the Oregon State Bar's Lawyer Referral Service,
identifying those services as possible sources for free or
reduced-cost legal services.
(4) A written notice in substantially the following form meets
the requirements of subsection (3) of this section:
_________________________________________________________________
This notice is to inform you that you must move out of
_____ (insert address of group recovery home) by _____ (insert
date and time that is not less than 24 hours after delivery of
notice).
The reason for this notice is _____ (specify use or possession
of alcohol or illegal drugs, as applicable, and dates of
occurrence).
The proof of your use or possession is _____ (specify facts).
If you did not use or possess alcohol or illegal drugs within
the seven days before delivery of this notice, if this notice was
given in bad faith or if your group recovery home has not
substantially complied with ORS 90.440, you may be able to get a
court to order the group recovery home to let you move back in.
You may also be able to recover monetary damages.
You may be eligible for free legal services at your local legal
services office _____ (insert telephone number) or reduced fee
legal services through the Oregon State Bar at 1-800-452-7636.
_________________________________________________________________
(5) Within the notice period, a group recovery home shall allow
a tenant removed under this section to follow any emergency
departure plan that was prepared by the tenant and approved by
the group recovery home at the time the tenancy began. If the
removed tenant does not have an emergency departure plan, a
representative of the group recovery home shall offer to take the
removed tenant to a public shelter, detoxification center or
similar location if existing in the community.
(6) The date and time for moving out specified in a notice
under subsection (3) of this section must be at least 24 hours
after the date and time the notice is delivered to the tenant. If
Enrolled Senate Bill 412 (SB 412-C) Page 11
the tenant remains on the group recovery home premises after the
date and time for moving out specified in the notice, the tenant
is a person remaining unlawfully in a dwelling as described in
ORS 164.255 and not a person described in ORS 105.115. Only a
peace officer may forcibly remove a tenant who remains on the
group recovery home premises after the date and time specified
for moving out.
(7) A group recovery home that removes a tenant under this
section shall send a copy of the notice described in subsection
(3) of this section to the Oregon Health Authority no later than
72 hours after delivering the notice to the tenant.
(8) A tenant who is removed under subsection (2) of this
section may obtain injunctive relief to recover possession and
may recover an amount equal to the greater of actual damages or
three times the tenant's monthly rent if:
(a) The group recovery home removed the tenant in bad faith or
without substantially complying with this section; or
(b) If removal is under subsection (2)(c) of this section, the
removal was wrongful because the tenant did not use or possess
alcohol or illegal drugs.
(9) Notwithstanding ORS 12.125, a tenant who seeks to obtain
injunctive relief to recover possession under ORS 105.121 must
commence the action to seek relief not more than 90 days after
the date specified in the notice for the tenant to move out.
(10) In any court action regarding the removal of a tenant
under this section, a group recovery home may present evidence
that the tenant used or possessed alcohol or illegal drugs within
seven days preceding the removal, whether or not the evidence was
described in the notice required by subsection (3) of this
section.
(11) This section does not prevent a group recovery home from
terminating a tenancy as provided by any other provision of this
chapter and evicting a tenant as provided in ORS 105.105 to
105.168.
SECTION 12. ORS 131.605 is amended to read:
131.605. As used in ORS 131.605 to 131.625, unless the context
requires otherwise:
(1) 'Crime' has the meaning provided for that term in ORS
161.515.
(2) 'Dangerous weapon,' 'deadly weapon' and 'person ' have the
{ - meaning provided for - } { + meanings given + } those
terms in ORS 161.015.
(3) 'Frisk' is an external patting of a person's outer
clothing.
(4) 'Is about to commit' means unusual conduct that leads a
peace officer reasonably to conclude in light of the officer's
training and experience that criminal activity may be afoot.
{ + (5) 'Peace officer' has the meaning given that term in
ORS 133.005. + }
{ - (5) - } { + (6) + } 'Reasonably suspects' means that a
peace officer holds a belief that is reasonable under the
totality of the circumstances existing at the time and place the
peace officer acts as authorized in ORS 131.605 to 131.625.
{ - (6) - } { + (7) + } A 'stop' is a temporary restraint
of a person's liberty by a peace officer lawfully present in any
place.
SECTION 13. ORS 133.005 is amended to read:
133.005. As used in ORS 133.005 to 133.381 and 133.410 to
133.450, unless the context requires otherwise:
Enrolled Senate Bill 412 (SB 412-C) Page 12
(1) 'Arrest' means to place a person under actual or
constructive restraint or to take a person into custody for the
purpose of charging that person with an offense. A 'stop' as
authorized under ORS 131.605 to 131.625 is not an arrest.
(2) 'Federal officer' means a special agent or law enforcement
officer employed by a federal agency who is empowered to effect
an arrest with or without a warrant for violations of the United
States Code and who is authorized to carry firearms in the
performance of duty.
(3) 'Peace officer' means { + :
(a) + } A member of the Oregon State Police { + ; + }
{ - or - }
{ + (b) + } A sheriff, constable, marshal { - , - } { +
or + } municipal police officer { - , - } { + ;
(c) An + } investigator of a district attorney's office if the
investigator is or has been certified as a peace officer in this
or any other state { - , or - } { + ;
(d) + } An investigator of the Criminal Justice Division of the
Department of Justice of the State of Oregon { + ; or
(e) An authorized tribal police officer as defined in section 1
of this 2011 Act + }.
SECTION 14. ORS 133.033 is amended to read:
133.033. (1) Except as otherwise expressly prohibited by law,
any peace officer of this state { - , as defined in ORS
133.005, - } is authorized to perform community caretaking
functions.
(2) As used in this section, 'community caretaking functions'
means any lawful acts that are inherent in the duty of the peace
officer to serve and protect the public. 'Community caretaking
functions' includes, but is not limited to:
(a) The right to enter or remain upon the premises of another
if it reasonably appears to be necessary to:
(A) Prevent serious harm to any person or property;
(B) Render aid to injured or ill persons; or
(C) Locate missing persons.
(b) The right to stop or redirect traffic or aid motorists or
other persons when such action reasonably appears to be necessary
to:
(A) Prevent serious harm to any person or property;
(B) Render aid to injured or ill persons; or
(C) Locate missing persons.
(3) Nothing contained in this section shall be construed to
limit the authority of a peace officer that is inherent in the
office or that is granted by any other provision of law.
SECTION 15. ORS 133.318 is amended to read:
133.318. (1) Any person who provides to a peace officer a copy
of a writing purporting to be a foreign restraining order as
defined by ORS 24.190 knowing that no valid foreign restraining
order is in effect shall be guilty of a Class A misdemeanor.
(2) Any person who represents to a { - police - }
{ + peace + } officer that a foreign restraining order is the
most recent order in effect between the parties or that the
person restrained by the order has been personally served with a
copy of the order or has actual notice of the order knowing that
the representation is false commits a Class A misdemeanor.
SECTION 16. ORS 133.525 is amended to read:
133.525. As used in ORS 133.525 to 133.703, unless the context
requires otherwise:
(1) 'Judge' means any judge of the circuit court, the Court of
Appeals, the Supreme Court, any justice of the peace or municipal
Enrolled Senate Bill 412 (SB 412-C) Page 13
judge authorized to exercise the powers and perform the duties of
a justice of the peace.
(2) 'Police officer' means { + :
(a) A member of the Oregon State Police;
(b) + }A sheriff { - , - } { + or + } municipal police
officer { - , member of the Oregon State Police, - } { + or an
authorized tribal police officer as defined in section 1 of this
2011 Act;
(c) An + } investigator of a district attorney's office if the
investigator is or has been certified as a peace officer in this
or any other state { - , - } { + ; + } or
{ + (d) + } An investigator of the Criminal Justice Division
of the Department of Justice.
SECTION 17. ORS 133.721 is amended to read:
133.721. As used in ORS 41.910 and 133.721 to 133.739, unless
the context requires otherwise:
(1) 'Aggrieved person' means a person who was a party to any
wire, electronic or oral communication intercepted under ORS
133.724 or 133.726 or a person against whom the interception was
directed and who alleges that the interception was unlawful.
(2) 'Contents,' when used with respect to any wire, electronic
or oral communication, includes any information concerning the
identity of the parties to such communication or the existence,
substance, purport or meaning of that communication.
(3) 'Electronic communication' means any transfer of signs,
signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part by a radio,
electromagnetic, photoelectronic or photo-optical system, or
transmitted in part by wire, but does not include:
(a) Any oral communication or any communication that is
completely by wire; or
(b) Any communication made through a tone-only paging device.
(4) 'Electronic, mechanical or other device' means any device
or apparatus that can be used to intercept a wire, electronic or
oral communication other than:
(a) Any telephone or telegraph instrument, equipment or
facility, or any component thereof that is furnished to the
subscriber or user by a telecommunications carrier in the
ordinary course of its business and that is being used by the
subscriber or user in the ordinary course of its business or
being used by a telecommunications carrier in the ordinary course
of its business, or by an investigative or law enforcement
officer in the ordinary course of official duties; or
(b) A hearing aid or similar device being used to correct
subnormal hearing to not better than normal.
(5) 'Intercept' means the acquisition, by listening or
recording, of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical or
other device.
{ - (6) 'Investigative or law enforcement officer' means an
officer or other person employed by a county sheriff or municipal
police department, the Oregon State Police, Attorney General, a
district attorney or the Department of Corrections, and officers
or other persons employed by law enforcement agencies of other
states or the federal government, to investigate or enforce the
law. - }
{ + (6) 'Investigative or law enforcement officer' means:
(a) An officer or other person employed to investigate or
enforce criminal laws by:
(A) A county sheriff or municipal police department;
Enrolled Senate Bill 412 (SB 412-C) Page 14
(B) The Oregon State Police, the Department of Corrections, the
Attorney General or a district attorney; or
(C) Law enforcement agencies of other states or the federal
government; or
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(7) 'Oral communication' means:
(a) Any oral communication, other than a wire or electronic
communication, uttered by a person exhibiting an expectation that
such communication is not subject to interception under
circumstances justifying such expectation; or
(b) An utterance by a person who is participating in a wire or
electronic communication, if the utterance is audible to another
person who, at the time the wire or electronic communication
occurs, is in the immediate presence of the person participating
in the communication.
(8) 'Telecommunications carrier' means:
(a) A telecommunications utility as defined in ORS 759.005; or
(b) A cooperative corporation organized under ORS chapter 62
that provides telecommunications services.
(9) 'Telecommunications service' has the meaning given that
term in ORS 759.005.
(10) 'Wire communication' means any communication made in whole
or in part through the use of facilities for the transmission of
communications by the aid of wire, cable or other like connection
between the point of origin and the point of reception, whether
furnished or operated by a public utility or privately owned or
leased.
SECTION 18. ORS 133.726 is amended to read:
133.726. (1) Notwithstanding ORS 133.724, under the
circumstances described in this section, a law enforcement
officer is authorized to intercept an oral communication to which
the officer or a person under the direct supervision of the
officer is a party, without obtaining an order for the
interception of a wire, electronic or oral communication under
ORS 133.724.
(2) For purposes of this section and ORS 133.736, a person is a
party to an oral communication if the oral communication is made
in the person's immediate presence and is audible to the person
regardless of whether the communication is specifically directed
to the person.
(3) An ex parte order for intercepting an oral communication in
any county of this state under this section may be issued by any
judge as defined in ORS 133.525 upon written application made
upon oath or affirmation of the district attorney or a deputy
district attorney authorized by the district attorney for the
county in which the order is sought or upon the oath or
affirmation of any peace officer as defined in ORS 133.005. The
application shall include:
(a) The name of the applicant and the applicant's authority to
make the application;
(b) A statement demonstrating that:
(A) There is probable cause to believe that a person whose oral
communication is to be intercepted is engaged in committing, has
committed or is about to commit a particular felony, or a
misdemeanor under ORS 167.007, and that intercepting the oral
communication will yield evidence thereof; or
(B)(i) There is reasonable suspicion to believe that a person
whose oral communication is to be intercepted is engaged in
committing, has committed or is about to commit a crime;
Enrolled Senate Bill 412 (SB 412-C) Page 15
(ii) There is reasonable suspicion to believe that the
circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical
injury or sexual assault to a law enforcement officer or a person
under the direct supervision of the officer;
(iii) Interception of the oral communication is necessary to
protect the safety of the person who may be endangered; and
(iv) Other investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
are likely to be too dangerous; and
(c) The identity of the person, if known, suspected of
committing the crime and whose oral communication is to be
intercepted.
(4) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
(5) Upon examination of the application and evidence, the judge
may enter an ex parte order, as requested or as modified,
authorizing or approving the interception of an oral
communication within the state if the judge determines on the
basis of the facts submitted by the applicant that:
(a)(A) There is probable cause to believe that a person is
engaged in committing, has committed or is about to commit a
particular felony, or a misdemeanor under ORS 167.007; and
(B) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime; or
(b)(A) There is reasonable suspicion to believe that a person
whose oral communication is to be intercepted is engaged in
committing, has committed or is about to commit a crime;
(B) There is reasonable suspicion to believe that the
circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical
injury or sexual assault to a law enforcement officer or a person
under the direct supervision of the officer;
(C) Interception of the oral communication is necessary to
protect the safety of the person who may be endangered; and
(D) Other investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
are likely to be too dangerous.
(6) An order authorizing or approving the interception of an
oral communication under this section must specify:
(a) The identity of the person, if known, whose oral
communication is to be intercepted;
(b) A statement identifying the particular crime to which the
oral communication is expected to relate;
(c) The agency authorized under the order to intercept the oral
communication;
(d) The name and office of the applicant and the signature and
title of the issuing judge;
(e) A period of time after which the order shall expire; and
(f) A statement that the order authorizes only the interception
of an oral communication to which a law enforcement officer or a
person under the direct supervision of a law enforcement officer
is a party.
(7) An order under ORS 133.724 or this section is not required
when a law enforcement officer intercepts an oral communication
to which the officer or a person under the direct supervision of
the officer is a party if the oral communication is made by a
person whom the officer has probable cause to believe has
committed, is engaged in committing or is about to commit:
Enrolled Senate Bill 412 (SB 412-C) Page 16
(a) A crime punishable as a felony under ORS 475.840, 475.846
to 475.894 or 475.904 to 475.910 or as a misdemeanor under ORS
167.007; or
(b) Any other crime punishable as a felony if the circumstances
at the time the oral communication is intercepted are of such
exigency that it would be unreasonable to obtain a court order
under ORS 133.724 or this section.
(8) A law enforcement officer who intercepts an oral
communication pursuant to this section may not intentionally fail
to record and preserve the oral communication in its entirety. A
law enforcement officer, or a person under the direct supervision
of the officer, who is authorized under this section to intercept
an oral communication is not required to exclude from the
interception an oral communication made by a person for whom
probable cause does not exist if the officer or the person under
the officer's direct supervision is a party to the oral
communication.
(9) A law enforcement officer may not divulge the contents of
an oral communication intercepted under this section before a
preliminary hearing or trial in which an oral communication is
going to be introduced as evidence against a person except:
(a) To a superior officer or other official with whom the law
enforcement officer is cooperating in the enforcement of the
criminal laws of this state or the United States;
(b) To a magistrate;
(c) In a presentation to a federal or state grand jury; or
(d) In compliance with a court order.
(10) A law enforcement officer may intercept an oral
communication under this section only when acting within the
scope of the officer's employment and as a part of assigned
duties.
{ - (11) As used in this section, 'law enforcement officer '
means an officer employed by the United States, this state or a
municipal government within this state, or a political
subdivision, agency, department or bureau of those governments,
to enforce criminal laws. - }
{ + (11) As used in this section, 'law enforcement officer '
means:
(a) An officer employed to enforce criminal laws by:
(A) The United States, this state or a municipal government
within this state; or
(B) A political subdivision, agency, department or bureau of
the governments described in subparagraph (A) of this paragraph;
or
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(12) Violation of subsection (9) of this section is a Class A
misdemeanor.
SECTION 19. ORS 133.726, as amended by section 3, chapter 442,
Oregon Laws 2007, is amended to read:
133.726. (1) Notwithstanding ORS 133.724, under the
circumstances described in this section, a law enforcement
officer is authorized to intercept an oral communication to which
the officer or a person under the direct supervision of the
officer is a party, without obtaining an order for the
interception of a wire, electronic or oral communication under
ORS 133.724.
(2) For purposes of this section and ORS 133.736, a person is a
party to an oral communication if the oral communication is made
in the person's immediate presence and is audible to the person
Enrolled Senate Bill 412 (SB 412-C) Page 17
regardless of whether the communication is specifically directed
to the person.
(3) An ex parte order for intercepting an oral communication in
any county of this state under this section may be issued by any
judge as defined in ORS 133.525 upon written application made
upon oath or affirmation of the district attorney or a deputy
district attorney authorized by the district attorney for the
county in which the order is sought or upon the oath or
affirmation of any peace officer as defined in ORS 133.005. The
application shall include:
(a) The name of the applicant and the applicant's authority to
make the application;
(b) A statement demonstrating that there is probable cause to
believe that a person whose oral communication is to be
intercepted is engaged in committing, has committed or is about
to commit a particular felony, or a misdemeanor under ORS
167.007, and that intercepting the oral communication will yield
evidence thereof; and
(c) The identity of the person, if known, suspected of
committing the crime and whose oral communication is to be
intercepted.
(4) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
(5) Upon examination of the application and evidence, the judge
may enter an ex parte order, as requested or as modified,
authorizing or approving the interception of an oral
communication within the state if the judge determines on the
basis of the facts submitted by the applicant that:
(a) There is probable cause to believe that a person is engaged
in committing, has committed or is about to commit a particular
felony, or a misdemeanor under ORS 167.007; and
(b) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime.
(6) An order authorizing or approving the interception of an
oral communication under this section must specify:
(a) The identity of the person, if known, whose oral
communication is to be intercepted;
(b) A statement identifying the particular crime to which the
oral communication is expected to relate;
(c) The agency authorized under the order to intercept the oral
communication;
(d) The name and office of the applicant and the signature and
title of the issuing judge;
(e) A period of time after which the order shall expire; and
(f) A statement that the order authorizes only the interception
of an oral communication to which a law enforcement officer or a
person under the direct supervision of a law enforcement officer
is a party.
(7) An order under ORS 133.724 or this section is not required
when a law enforcement officer intercepts an oral communication
to which the officer or a person under the direct supervision of
the officer is a party if the oral communication is made by a
person whom the officer has probable cause to believe has
committed, is engaged in committing or is about to commit:
(a) A crime punishable as a felony under ORS 475.840, 475.846
to 475.894 or 475.906 or as a misdemeanor under ORS 167.007; or
(b) Any other crime punishable as a felony if the circumstances
at the time the oral communication is intercepted are of such
Enrolled Senate Bill 412 (SB 412-C) Page 18
exigency that it would be unreasonable to obtain a court order
under ORS 133.724 or this section.
(8) A law enforcement officer who intercepts an oral
communication pursuant to this section may not intentionally fail
to record and preserve the oral communication in its entirety. A
law enforcement officer, or a person under the direct supervision
of the officer, who is authorized under this section to intercept
an oral communication is not required to exclude from the
interception an oral communication made by a person for whom
probable cause does not exist if the officer or the person under
the officer's direct supervision is a party to the oral
communication.
(9) A law enforcement officer may not divulge the contents of
an oral communication intercepted under this section before a
preliminary hearing or trial in which an oral communication is
going to be introduced as evidence against a person except:
(a) To a superior officer or other official with whom the law
enforcement officer is cooperating in the enforcement of the
criminal laws of this state or the United States;
(b) To a magistrate;
(c) In a presentation to a federal or state grand jury; or
(d) In compliance with a court order.
(10) A law enforcement officer may intercept an oral
communication under this section only when acting within the
scope of the officer's employment and as a part of assigned
duties.
{ - (11) As used in this section, 'law enforcement officer '
means an officer employed by the United States, this state or a
municipal government within this state, or a political
subdivision, agency, department or bureau of those governments,
to enforce criminal laws. - }
{ + (11) As used in this section, 'law enforcement officer '
means:
(a) An officer employed to enforce criminal laws by:
(A) The United States, this state or a municipal government
within this state; or
(B) A political subdivision, agency, department or bureau of
the governments described in subparagraph (A) of this paragraph;
or
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(12) Violation of subsection (9) of this section is a Class A
misdemeanor.
SECTION 20. ORS 136.595 is amended to read:
136.595. (1) Except as provided in ORS 136.447 and 136.583 and
subsection (2) of this section, a subpoena is served by
delivering a copy to the witness personally. If the witness is
under 14 years of age, the subpoena may be served by delivering a
copy to the witness or to the witness's parent, guardian or
guardian ad litem. Proof of the service is made in the same
manner as in the service of a summons.
(2)(a) Every law enforcement agency shall designate an
individual or individuals upon whom service of subpoena may be
made. At least one of the designated individuals shall be
available during normal business hours. In the absence of the
designated individuals, service of subpoena pursuant to paragraph
(b) of this subsection may be made upon the officer in charge of
the law enforcement agency.
(b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
Enrolled Senate Bill 412 (SB 412-C) Page 19
on such officer by delivering a copy personally to the officer or
to one of the individuals designated by the agency that employs
the officer. A subpoena may be served by delivery to one of the
individuals designated by the agency that employs the officer
only if the subpoena is delivered at least 10 days before the
date the officer's attendance is required, the officer is
currently employed as a peace officer by the agency, and the
officer is present within the state at the time of service.
(c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to actually notify the officer whose attendance
is sought of the date, time and location of the court appearance.
If the officer cannot be notified, the law enforcement agency
shall contact the court and a continuance may be granted to allow
the officer to be personally served.
(d) As used in this subsection, 'law enforcement agency ' means
the Oregon State Police, a county sheriff's department { + , + }
{ - or - } a municipal police department { + or, if the witness
whose attendance at trial is required is an authorized tribal
police officer as defined in section 1 of this 2011 Act, a tribal
government as defined in section 1 of this 2011 Act + }.
(3) When a subpoena has been served as provided in ORS 136.583
or subsection (1) or (2) of this section and, subsequent to
service, the date on, or the time at, which the person subpoenaed
is to appear has changed, a new subpoena is not required to be
served if:
(a) The subpoena is continued orally in open court in the
presence of the person subpoenaed; or
(b) The party who issued the original subpoena notifies the
person subpoenaed of the change by first class mail and by:
(A) Certified or registered mail, return receipt requested; or
(B) Express mail.
SECTION 21. ORS 147.425 is amended to read:
147.425. (1) As used in this section:
(a) 'Health care provider' has the meaning given that term in
ORS 192.519.
(b) 'Law enforcement agency' means:
(A) A city or municipal police department.
(B) A county sheriff's office.
(C) The Oregon State Police.
(D) A district attorney.
(E) A special campus security officer commissioned under ORS
352.385 or 353.050.
{ + (F) An authorized tribal police officer as defined in
section 1 of this 2011 Act. + }
(c) 'Person crime' means a person felony or person Class A
misdemeanor, as those terms are defined in the rules of the
Oregon Criminal Justice Commission.
(d) 'Personal representative' means a person selected under
subsection (2) of this section to accompany the victim of a crime
to certain phases of an investigation and prosecution.
(e) 'Protective service worker' means an employee or contractor
of a local or state agency whose role it is to protect children
or vulnerable adults from abuse or neglect.
(2) A victim of a person crime, who is at least 15 years of age
at the time the crime is committed, may select a person who is at
least 18 years of age as the victim's personal representative for
purposes of this section. The victim may not select a person who
is a suspect in, or a party or witness to, the crime as a
personal representative.
Enrolled Senate Bill 412 (SB 412-C) Page 20
(3) Except for grand jury proceedings and child abuse
assessments occurring at a child advocacy center recognized by
the Department of Justice, a personal representative may
accompany the victim to those phases of the investigation,
including medical examinations, and prosecution of the crime at
which the victim is entitled or required to be present.
(4) A health care provider, law enforcement agency, protective
service worker or court may not prohibit a personal
representative from accompanying a victim as authorized by
subsection (3) of this section unless the health care provider,
law enforcement agency, protective service worker or court
believes that the personal representative would compromise the
process.
(5) A health care provider, law enforcement agency, protective
service worker or court is immune from any liability, civil or
criminal, that might otherwise be incurred or imposed with
respect to a decision under subsection (4) of this section to
prohibit a personal representative from accompanying a victim.
(6) The fact that a personal representative was allowed or was
not allowed to accompany a victim may not be used as a basis for
excluding otherwise admissible evidence.
(7) The fact that a victim has or has not selected a personal
representative under this section may not be used as evidence in
the criminal case.
SECTION 22. ORS 153.005 is amended to read:
153.005. As used in this chapter:
(1) 'Enforcement officer' means:
(a) A member of the Oregon State Police.
(b) A sheriff or deputy sheriff.
(c) A city marshal or a member of the police of a city,
municipal or quasi-municipal corporation.
(d) An investigator of a district attorney's office if the
investigator is or has been certified as a peace officer in this
or any other state.
(e) An investigator of the Criminal Justice Division of the
Department of Justice of the State of Oregon.
(f) A Port of Portland peace officer.
{ + (g) An authorized tribal police officer as defined in
section 1 of this 2011 Act. + }
{ - (g) - } { + (h) + } Any other person specifically
authorized by law to issue citations for the commission of
violations.
(2) 'Traffic offense' has the meaning given that term in ORS
801.555.
(3) 'Violation' means an offense described in ORS 153.008.
(4) 'Violation proceeding' means a judicial proceeding
initiated by issuance of a citation that charges a person with
commission of a violation.
SECTION 23. ORS 161.015 is amended to read:
161.015. As used in chapter 743, Oregon Laws 1971, and ORS
166.635, unless the context requires otherwise:
(1) 'Dangerous weapon' means any weapon, device, instrument,
material or substance which under the circumstances in which it
is used, attempted to be used or threatened to be used, is
readily capable of causing death or serious physical injury.
(2) 'Deadly weapon' means any instrument, article or substance
specifically designed for and presently capable of causing death
or serious physical injury.
Enrolled Senate Bill 412 (SB 412-C) Page 21
(3) 'Deadly physical force' means physical force that under the
circumstances in which it is used is readily capable of causing
death or serious physical injury.
(4) 'Peace officer' means { + :
(a) A member of the Oregon State Police;
(b) + } A sheriff, constable, marshal { - , - } { + or + }
municipal police officer { - , member of the Oregon State
Police, - } { + ;
(c) An + } investigator of the Criminal Justice Division of the
Department of Justice or investigator of a district attorney's
office { + ;
(d) An authorized tribal police officer as defined in section 1
of this 2011 Act; + } and
{ + (e) + } { - such other persons as may be - } { + Any
other person + } designated by law { + as a peace officer + }.
(5) 'Person' means a human being and, where appropriate, a
public or private corporation, an unincorporated association, a
partnership, a government or a governmental instrumentality.
(6) 'Physical force' includes, but is not limited to, the use
of an electrical stun gun, tear gas or mace.
(7) 'Physical injury' means impairment of physical condition or
substantial pain.
(8) 'Serious physical injury' means physical injury which
creates a substantial risk of death or which causes serious and
protracted disfigurement, protracted impairment of health or
protracted loss or impairment of the function of any bodily
organ.
(9) 'Possess' means to have physical possession or otherwise to
exercise dominion or control over property.
(10) 'Public place' means a place to which the general public
has access and includes, but is not limited to, hallways, lobbies
and other parts of apartment houses and hotels not constituting
rooms or apartments designed for actual residence, and highways,
streets, schools, places of amusement, parks, playgrounds and
premises used in connection with public passenger transportation.
SECTION 24. ORS 163.730 is amended to read:
163.730. As used in ORS 30.866 and 163.730 to 163.750, unless
the context requires otherwise:
(1) 'Alarm' means to cause apprehension or fear resulting from
the perception of danger.
(2) 'Coerce' means to restrain, compel or dominate by force or
threat.
(3) 'Contact' includes but is not limited to:
(a) Coming into the visual or physical presence of the other
person;
(b) Following the other person;
(c) Waiting outside the home, property, place of work or school
of the other person or of a member of that person's family or
household;
(d) Sending or making written or electronic communications in
any form to the other person;
(e) Speaking with the other person by any means;
(f) Communicating with the other person through a third person;
(g) Committing a crime against the other person;
(h) Communicating with a third person who has some relationship
to the other person with the intent of affecting the third
person's relationship with the other person;
(i) Communicating with business entities with the intent of
affecting some right or interest of the other person;
Enrolled Senate Bill 412 (SB 412-C) Page 22
(j) Damaging the other person's home, property, place of work
or school;
(k) Delivering directly or through a third person any object to
the home, property, place of work or school of the other person;
or
(L) Service of process or other legal documents unless the
other person is served as provided in ORCP 7 or 9.
(4) 'Household member' means any person residing in the same
residence as the victim.
(5) 'Immediate family' means father, mother, child, sibling,
spouse, grandparent, stepparent and stepchild.
{ - (6) 'Law enforcement officer' means any person employed
in this state as a police officer by a county sheriff, constable,
marshal or municipal or state police agency. - }
{ + (6) 'Law enforcement officer' means:
(a) A person employed in this state as a police officer by a
county sheriff, constable or marshal or a municipal or state
police agency; or
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(7) 'Repeated' means two or more times.
(8) 'School' means a public or private institution of learning
or a child care facility.
SECTION 25. ORS 165.535 is amended to read:
165.535. As used in ORS 41.910, 133.723, 133.724, 165.540 and
165.545:
(1) 'Conversation' means the transmission between two or more
persons of an oral communication which is not a telecommunication
or a radio communication.
{ - (2) 'Person' means any person as defined in ORS 174.100
and includes public officials and law enforcement officers of the
state, county, municipal corporation or any other political
subdivision of the state. - }
{ + (2) 'Person' has the meaning given that term in ORS
174.100 and includes:
(a) Public officials and law enforcement officers of the state
and of a county, municipal corporation or any other political
subdivision of the state; and
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(3) 'Radio communication' means the transmission by radio or
other wireless methods of writing, signs, signals, pictures and
sounds of all kinds, including all instrumentalities, facilities,
equipment and services (including, among other things, the
receipt, forwarding and delivering of communications) incidental
to such transmission.
(4) 'Telecommunication' means the transmission of writing,
signs, signals, pictures and sounds of all kinds by aid of wire,
cable or other similar connection between the points of origin
and reception of such transmission, including all
instrumentalities, facilities, equipment and services (including,
among other things, the receipt, forwarding and delivering of
communications) incidental to such transmission.
SECTION 26. ORS 181.010 is amended to read:
181.010. As used in ORS 181.010 to 181.560 and 181.715 to
181.730, unless the context requires otherwise:
(1) 'Bureau' means the Department of State Police bureau of
criminal identification.
(2) 'Criminal justice agency' means:
(a) The Governor;
Enrolled Senate Bill 412 (SB 412-C) Page 23
(b) Courts of criminal jurisdiction;
(c) The Attorney General;
(d) District attorneys, city attorneys with criminal
prosecutive functions, attorney employees of the office of public
defense services and nonprofit public defender organizations
established under contract with the Public Defense Services
Commission;
(e) Law enforcement agencies;
(f) The Department of Corrections;
(g) The State Board of Parole and Post-Prison Supervision;
(h) The Department of Public Safety Standards and Training; and
(i) Any other state or local agency with law enforcement
authority designated by order of the Governor.
(3) 'Criminal offender information' includes records and
related data as to physical description and vital statistics,
fingerprints received and compiled by the bureau for purposes of
identifying criminal offenders and alleged offenders, records of
arrests and the nature and disposition of criminal charges,
including sentencing, confinement, parole and release.
(4) 'Department' means the Department of State Police
established under ORS 181.020.
(5) 'Deputy superintendent' means the Deputy Superintendent of
State Police.
(6) 'Designated agency' means any state, county or municipal
government agency where Oregon criminal offender information is
required to implement a federal or state statute, executive order
or administrative rule that expressly refers to criminal conduct
and contains requirements or exclusions expressly based on such
conduct or for agency employment purposes, licensing purposes or
other demonstrated and legitimate needs when designated by order
of the Governor.
(7) 'Disposition report' means a form or process prescribed or
furnished by the bureau, containing a description of the ultimate
action taken subsequent to an arrest.
(8) 'Law enforcement agency' means { + :
(a) + } County sheriffs, municipal police departments
{ - , - } { + and + } State Police { - , - } { + ;
(b) + } Other police officers of this state and other
states { + ;
(c) A tribal government as defined in section 1 of this 2011
Act that employs authorized tribal police officers as defined in
section 1 of this 2011 Act; + } and
{ + (d) + } Law enforcement agencies of the federal
government.
(9) 'State Police' means the members of the state police force
appointed under ORS 181.250.
(10) 'Superintendent' means the Superintendent of State Police.
SECTION 27. ORS 181.610 is amended to read:
181.610. In ORS 181.610 to 181.712, unless the context requires
otherwise:
(1) 'Abuse' has the meaning given the term in ORS 107.705.
(2) 'Board' means the Board on Public Safety Standards and
Training appointed pursuant to ORS 181.620.
(3) 'Certified reserve officer' means a reserve officer who has
been designated by a local law enforcement unit, has received
training necessary for certification and has met the minimum
standards and training requirements established under ORS
181.640.
(4) 'Commissioned' means an authorization granting the power to
perform various acts or duties of a police officer or certified
Enrolled Senate Bill 412 (SB 412-C) Page 24
reserve officer and acting under the supervision and
responsibility of a county sheriff or as otherwise provided by
law.
(5) 'Corrections officer' means an officer or member of a law
enforcement unit who is employed full-time thereby and is charged
with and primarily performs the duty of custody, control or
supervision of individuals convicted of or arrested for a
criminal offense and confined in a place of incarceration or
detention other than a place used exclusively for incarceration
or detention of juveniles.
(6) 'Department' means the Department of Public Safety
Standards and Training.
(7) 'Director' means the Director of the Department of Public
Safety Standards and Training.
(8) 'Domestic violence' means abuse between family or household
members.
(9) 'Emergency medical dispatcher' means a person who has
responsibility to process requests for medical assistance from
the public or to dispatch medical care providers.
(10) 'Family or household members' has the meaning given that
term in ORS 107.705.
(11) 'Fire service professional' means a paid or volunteer
firefighter, an officer or a member of a public or private fire
protection agency that is engaged primarily in fire
investigation, fire prevention, fire safety, fire control or fire
suppression or providing emergency medical services, light and
heavy rescue services, search and rescue services or hazardous
materials incident response. 'Fire service professional' does not
include forest fire protection agency personnel.
(12)(a) 'Law enforcement unit' means a police force or
organization of the state, a city, port, school district, mass
transit district, county, county service district authorized to
provide law enforcement services under ORS 451.010, { - Indian
reservation, - } { + tribal government as defined in section 1
of this 2011 Act that employs authorized tribal police officers
as defined in section 1 of this 2011 Act, the + } Criminal
Justice Division of the Department of Justice, the Department of
Corrections, the Oregon State Lottery Commission or common
carrier railroad whose primary duty, as prescribed by law,
ordinance or directive, is any one or more of the following:
(A) Detecting crime and enforcing the criminal laws of this
state or laws or ordinances relating to airport security;
(B) The custody, control or supervision of individuals
convicted of or arrested for a criminal offense and confined to a
place of incarceration or detention other than a place used
exclusively for incarceration or detention of juveniles; or
(C) The control, supervision and reformation of adult offenders
placed on parole or sentenced to probation and investigation of
adult offenders on parole or probation or being considered for
parole or probation.
(b) 'Law enforcement unit' also means:
(A) A police force or organization of a private entity with a
population of more than 1,000 residents in an unincorporated area
whose employees are commissioned by a county sheriff;
(B) A district attorney's office; and
(C) A private, nonprofit animal care agency that has maintained
an animal welfare investigation department for at least five
years and has had officers commissioned as special agents by the
Governor.
(13) 'Parole and probation officer' means:
Enrolled Senate Bill 412 (SB 412-C) Page 25
(a) Any officer who is employed full-time by the Department of
Corrections, a county or a court and who is charged with and
performs the duty of:
(A) Community protection by controlling, investigating,
supervising and providing or making referrals to reformative
services for adult parolees or probationers or offenders on
post-prison supervision; or
(B) Investigating adult offenders on parole or probation or
being considered for parole or probation; or
(b) Any officer who:
(A) Is certified and has been employed as a full-time parole
and probation officer for more than one year;
(B) Is employed part-time by the Department of Corrections, a
county or a court; and
(C) Is charged with and performs the duty of:
(i) Community protection by controlling, investigating,
supervising and providing or making referrals to reformative
services for adult parolees or probationers or offenders on
post-prison supervision; or
(ii) Investigating adult offenders on parole or probation or
being considered for parole or probation.
(14) 'Police officer' means an officer, member or employee of a
law enforcement unit who is employed full-time as a peace officer
commissioned by a city, port, school district, mass transit
district, county, county service district authorized to provide
law enforcement services under ORS 451.010, { - Indian
reservation, - } { + tribal government as defined in section 1
of this 2011 Act, + } the Criminal Justice Division of the
Department of Justice, the Oregon State Lottery Commission or the
Governor or who is a member of the Department of State Police and
who is responsible for enforcing the criminal laws of this state
or laws or ordinances relating to airport security or is an
investigator of a district attorney's office if the investigator
is or has been certified as a peace officer in this or any other
state { + or is an authorized tribal police officer as defined
in section 1 of this 2011 Act + }.
(15) 'Public or private safety agency' means any unit of state
or local government, a special purpose district or a private firm
which provides, or has authority to provide, fire fighting,
police, ambulance or emergency medical services.
(16) 'Public safety personnel' and 'public safety officer'
include corrections officers, youth correction officers,
emergency medical dispatchers, parole and probation officers,
police officers, certified reserve officers, telecommunicators
and fire service professionals.
(17) 'Reserve officer' means an officer or member of a law
enforcement unit:
(a) Who is a volunteer or who is employed less than full-time
as a peace officer commissioned by a city, port, school district,
mass transit district, county, county service district authorized
to provide law enforcement services under ORS 451.010,
{ - Indian reservation, - } { + tribal government as defined
in section 1 of this 2011 Act, + } the Criminal Justice Division
of the Department of Justice, the Oregon State Lottery Commission
or the Governor or who is a member of the Department of State
Police;
(b) Who is armed with a firearm; and
(c) Who is responsible for enforcing the criminal laws and
traffic laws of this state or laws or ordinances relating to
airport security.
Enrolled Senate Bill 412 (SB 412-C) Page 26
(18) 'Telecommunicator' means any person employed as an
emergency telephone worker as defined in ORS 243.736 or a public
safety dispatcher whose primary duties are receiving, processing
and transmitting public safety information received through a
9-1-1 emergency reporting system as defined in ORS 403.105.
(19) 'Youth correction officer' means an employee of the Oregon
Youth Authority who is charged with and primarily performs the
duty of custody, control or supervision of youth offenders
confined in a youth correction facility.
SECTION 27a. ORS 181.781 is amended to read:
181.781. As used in ORS 181.781 to 181.796:
(1) 'Employ,' when used in the context of the relationship
between a law enforcement agency and a police officer, includes
the assignment of law enforcement duties on a volunteer basis to
a reserve officer.
(2) 'Law enforcement agency' means the Department of State
Police, the Department of Justice, a district attorney, a
political subdivision of the State of Oregon { + , + }
{ - and - } a municipal corporation of the State of Oregon { +
and a tribal government + }, that maintains a law enforcement
unit as defined in ORS 181.610 (12)(a)(A).
(3) 'Police officer' means a person who is:
(a) A police officer or reserve officer as defined in ORS
181.610; and
(b) Employed by a law enforcement agency to enforce the
criminal laws of this state.
{ + (4) 'Tribal government' means a tribal government as
defined in section 1 of this 2011 Act:
(a) With land that is contiguous to the county in which the
deadly physical force planning authority is created; and
(b) That has adopted the provision of tribal law described in
section 2 (4)(d)(A) of this 2011 Act. + }
SECTION 27b. ORS 181.783 is amended to read:
181.783. (1) There is created in each county a deadly physical
force planning authority consisting of the following members:
(a) The district attorney and sheriff of the county.
(b) A nonmanagement police officer selected by the district
attorney and sheriff. If there are unions representing police
officers within the county, the district attorney and sheriff
shall select the police officer from among candidates nominated
by any union representing police officers within the county.
(c) If at least one city within the county employs a police
chief, a police chief selected by the police chiefs within the
county.
(d) A representative of the public selected by the district
attorney and sheriff. The person selected under this paragraph
may not be employed by a law enforcement agency.
(e) A representative of the Oregon State Police selected by the
Superintendent of State Police.
{ + (f) A tribal police officer as defined in section 1 of
this 2011 Act, when requested by a tribal government. + }
(2) The district attorney and sheriff are cochairpersons of the
planning authority.
(3) The law enforcement agency that employs the police officer
selected under subsection (1)(b) of this section shall release
the officer from other duties for at least 16 hours per year to
enable the officer to serve on the planning authority. The agency
shall compensate the officer at the officer's regular hourly wage
while the officer is engaged in planning authority activities.
Enrolled Senate Bill 412 (SB 412-C) Page 27
(4) The planning authority shall develop a plan consisting of
the following:
(a) An element dealing with education, outreach and training
regarding the use of deadly physical force for police officers,
attorneys employed by state or local government within the county
and members of the community.
(b) An element dealing with the immediate aftermath of an
incident in which a police officer used deadly physical force.
(c) An element dealing with the investigation of an incident in
which a police officer used deadly physical force.
(d) An element dealing with the exercise of district attorney
discretion to resolve issues of potential criminal responsibility
resulting from a police officer's use of deadly physical force.
(e) An element dealing with collecting information regarding a
police officer's use of deadly physical force, debriefing after
an incident in which a police officer used deadly physical force
and revising a plan developed under this subsection based on
experience.
(f) An estimate of the fiscal impact on the law enforcement
agencies to which the plan applies of each element described in
paragraphs (a) to (e) of this subsection.
(5) The planning authority shall conduct at least one public
hearing in the county before submitting a plan, or a revision of
a plan, to the governing bodies in the county under subsection
(7) of this section.
(6) The planning authority may consult with anyone the planning
authority determines may be helpful in carrying out its
responsibilities.
(7) The planning authority shall submit the plan developed
under subsection (4) of this section, and revisions of the plan,
to the governing body of each law enforcement agency within the
county except for the Department of State Police and the
Department of Justice.
(8) A governing body shall approve or disapprove the plan
submitted to it under subsection (7) of this section within 60
days after receiving the plan. The governing body may not amend
the plan.
(9) If the plan is not approved by at least two-thirds of the
governing bodies to which the plan is submitted, the planning
authority shall develop and submit a revised plan.
(10) If the plan is approved by at least two-thirds of the
governing bodies to which the plan is submitted, the planning
authority shall submit the approved plan to the Attorney General.
No later than 30 days after receiving the plan, the Attorney
General shall review the plan for compliance with the minimum
requirements described in ORS 181.786. If the Attorney General
determines that the plan complies with the minimum requirements,
the Attorney General shall approve the plan. Upon approval of the
plan:
(a) Each law enforcement agency within the county to which the
plan applies is subject to the provisions of the plan; and
(b) Each law enforcement agency subject to the plan is entitled
to grants as provided in ORS 181.796.
(11) If the plan is not approved by the Attorney General, the
planning authority shall develop and submit a revised plan.
(12) Notwithstanding subsection (10)(a) of this section, a law
enforcement agency is not subject to a provision of a plan
approved under subsection (10) of this section that:
(a) Conflicts with a provision of a city or county charter or a
general ordinance that applies to the law enforcement agency; or
Enrolled Senate Bill 412 (SB 412-C) Page 28
(b) Imposes an obligation not required by ORS 181.789 if
complying with the provision would require the law enforcement
agency to budget moneys, or submit a revenue measure for a vote
of the people, in order to comply with the provision.
(13) The Attorney General shall periodically publish all
approved plans.
(14) A law enforcement agency within a county has a duty to
participate in good faith in the planning process of the planning
authority for the county.
(15) A person bringing an action challenging the validity or
enforceability of a plan approved under subsection (10) of this
section shall serve the Attorney General with a copy of the
complaint. If the Attorney General is not a party to the action,
the Attorney General may intervene in the action.
SECTION 27c. ORS 181.796 is amended to read:
181.796. (1) As used in this section, 'expenses' does not
include personnel costs.
(2) To the extent that funds are appropriated to it for such
purposes, the Department of Justice shall make grants to law
enforcement agencies to reimburse the law enforcement agencies
for expenses incurred in implementing and revising the plans
required by ORS 181.783. A grant under this section may not
exceed 75 percent of the expenses incurred by the law enforcement
agency.
(3) The department may not make a grant under this section to a
law enforcement agency unless the law enforcement agency is
subject to a plan that has been approved by the Attorney General
under ORS 181.783 (10).
{ + (4) The department may not make a grant under this
section to a tribal government. + }
{ - (4) - } { + (5) + } The department shall adopt rules
necessary for the administration of this section.
SECTION 28. ORS 348.270 is amended to read:
348.270. (1) In addition to any other scholarships provided by
law, the Oregon Student Assistance Commission shall award
scholarships in any state institution under the State Board of
Higher Education, in the Oregon Health and Science University, in
any community college operated under ORS chapter 341, or in any
Oregon-based regionally accredited independent institution, to
any student applying for enrollment or who is enrolled therein,
who is:
(a) The natural child, adopted child or stepchild of any public
safety officer who, in the line of duty, was killed or so
disabled, as determined by the Oregon Student Assistance
Commission, that the income of the public safety officer is less
than that earned by public safety officers performing duties
comparable to those performed at the highest rank or grade
attained by the public safety officer; or
(b) A former foster child who enrolls in an institution of
higher education as an undergraduate student not later than three
years from the date the student was removed from the care of the
Department of Human Services, the date the student graduated from
high school or the date the student received the equivalent of a
high school diploma, whichever date is earliest.
(2) Scholarships awarded under this section to students who are
dependents of public safety officers or who are former foster
children shall equal the amount of tuition and all fees levied by
the institution against the recipient of the scholarship.
However, scholarships awarded to students who attend independent
Enrolled Senate Bill 412 (SB 412-C) Page 29
institutions shall not exceed the amount of tuition and all fees
levied by the University of Oregon.
(3) If the student who is the dependent of a deceased public
safety officer continues to remain enrolled in a state
institution of higher education or a community college or an
independent institution within the State of Oregon, the student
shall be entitled to renewal of the scholarship until the student
has received the equivalent of four years of undergraduate
education and four years of post-graduate education.
(4) If the student who is a former foster child or who is the
dependent of a public safety officer with a disability continues
to remain enrolled in a state institution of higher education or
a community college or an independent institution within the
State of Oregon, the student shall be entitled to renewal of the
scholarship until the student has received the equivalent of four
years of undergraduate education.
(5) The Oregon Student Assistance Commission may require proof
of the student's relationship to a public safety officer
described in subsection (1) of this section or proof that the
student is a former foster child.
(6) As used in this section:
(a) 'Former foster child' means an individual who, for a total
of 12 or more months while between the ages of 16 and 21, was a
ward of the court pursuant to ORS 419B.100 (1)(b) to (e) and in
the legal custody of the Department of Human Services for
out-of-home placement.
(b) 'Public safety officer' means:
(A) A firefighter or police officer as those terms are defined
in ORS 237.610.
(B) A member of the Oregon State Police.
{ + (C) An authorized tribal police officer as defined in
section 1 of this 2011 Act. + }
SECTION 29. ORS 414.805 is amended to read:
414.805. (1) An individual who receives medical services while
in the custody of a law enforcement officer is liable:
(a) To the provider of the medical services for the charges and
expenses therefor; and
(b) To the Oregon Health Authority for any charges or expenses
paid by the authority out of the Law Enforcement Medical
Liability Account for the medical services.
(2) A person providing medical services to an individual
described in subsection (1)(a) of this section shall first make
reasonable efforts to collect the charges and expenses thereof
from the individual before seeking to collect them from the
authority out of the Law Enforcement Medical Liability Account.
(3)(a) If the provider has not been paid within 45 days of the
date of the billing, the provider may bill the authority who
shall pay the account out of the Law Enforcement Medical
Liability Account.
(b) A bill submitted to the authority under this subsection
must be accompanied by evidence documenting that:
(A) The provider has billed the individual or the individual's
insurer or health care service contractor for the charges or
expenses owed to the provider; and
(B) The provider has made a reasonable effort to collect from
the individual or the individual's insurer or health care service
contractor the charges and expenses owed to the provider.
(c) If the provider receives payment from the individual or the
insurer or health care service contractor after receiving payment
from the authority, the provider shall repay the authority the
Enrolled Senate Bill 412 (SB 412-C) Page 30
amount received from the public agency less any difference
between payment received from the individual, insurer or
contractor and the amount of the billing.
(4) As used in this section:
(a) 'Law enforcement officer' means { + :
(A) + } An officer who is commissioned and employed by a public
agency as a peace officer to enforce the criminal laws of this
state or laws or ordinances of a public agency { + ; or
(B) An authorized tribal police officer as defined in section 1
of this 2011 Act + }.
(b) 'Public agency' means the state, a city, port, school
district, mass transit district or county.
SECTION 30. ORS 419B.902 is amended to read:
419B.902. (1) A subpoena may be served by the party or any
other person 18 years of age or older. Except as provided in
subsections (2), (3) and (4) of this section, the service must be
made by delivering a copy to the witness personally. The service
must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the
subpoena is not accompanied by a command to appear at trial,
hearing or deposition under ORS 419B.884, whether the subpoena is
served personally or by mail, copies of a subpoena commanding
production and inspection of books, papers, documents or other
tangible things before trial must be served on each party at
least seven days before the subpoena is served on the person
required to produce and permit inspection, unless the court
orders a shorter period.
(2)(a) A law enforcement agency shall designate an individual
upon whom service of a subpoena may be made. A designated
individual must be available during normal business hours. In the
absence of a designated individual, service of a subpoena under
paragraph (b) of this subsection may be made upon the officer in
charge of the law enforcement agency.
(b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
on the officer by delivering a copy personally to the officer or
to an individual designated by the agency that employs the
officer no later than 10 days prior to the date attendance is
sought. A subpoena may be served in this manner only if the
officer is currently employed as a peace officer and is present
within the state at the time of service.
(c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to give actual notice to the officer whose
attendance is sought of the date, time and location of the court
appearance. If the officer cannot be notified, the law
enforcement agency shall promptly notify the court and a
postponement or continuance may be granted to allow the officer
to be personally served.
(d) As used in this subsection, 'law enforcement agency ' means
the Oregon State Police, a county sheriff's department
{ - or - } { + , + } a municipal police department { + or, if
the witness whose attendance at trial is required is an
authorized tribal police officer as defined in section 1 of this
2011 Act, a tribal government as defined in section 1 of this
2011 Act + }.
(3) Under the following circumstances, service of a subpoena to
a witness by mail has the same legal force and effect as personal
service:
Enrolled Senate Bill 412 (SB 412-C) Page 31
(a) The attorney mailing the subpoena certifies in connection
with or upon the return of service that the attorney, or the
attorney's agent, has had personal or telephone contact with the
witness and the witness indicated a willingness to appear at
trial if subpoenaed; or
(b) The subpoena was mailed to the witness more than five days
before trial by certified mail or some other designation of mail
that provides a receipt for the mail signed by the recipient and
the attorney received a return receipt signed by the witness
prior to trial.
(4) Service of subpoena by mail may be used for a subpoena
commanding production of books, papers, documents or other
tangible things that is not accompanied by a command to appear at
trial or hearing or at a deposition under ORS 419B.884.
(5) Proof of service of a subpoena is made in the same manner
as proof of service of a summons except that the server is not
required to certify that the server is not a party in the action
or an attorney for a party in the action.
SECTION 31. ORS 420.905 is amended to read:
420.905. As used in ORS 420.905 to 420.915, 'peace officer '
means { + :
(1) A + } { - any - } sheriff, constable { - , - }
{ + or + } marshal, or the deputy of any such officer { - , - }
{ + ;
(2) A + } { - any - } member of the state police
{ - or - } { + ;
(3) A + } { - any - } member of the police force of any
city { + ; or
(4) An authorized tribal police officer as defined in section 1
of this 2011 Act + }.
SECTION 32. ORS 801.395 is amended to read:
801.395. 'Police officer' includes a member of the Oregon State
Police, a sheriff, a deputy sheriff, a city police officer, { +
an authorized tribal police officer as defined in section 1 of
this 2011 Act, + } a Port of Portland peace officer or a law
enforcement officer employed by a service district established
under ORS 451.410 to 451.610 for the purpose of law enforcement
services.
SECTION 33. ORS 810.410 is amended to read:
810.410. (1) A police officer may arrest or issue a citation to
a person for a traffic crime at any place within or outside the
jurisdictional authority of the governmental unit by which the
police officer is authorized to act as provided by ORS 133.235
and 133.310.
(2) A police officer may issue a citation to a person for a
traffic violation at any place within or outside the
jurisdictional authority of the governmental unit by which the
police officer is authorized to act:
(a) When the traffic violation is committed in the police
officer's presence; or
(b) When the police officer has probable cause to believe an
offense has occurred based on a description of the vehicle or
other information received from a police officer who observed the
traffic violation.
(3) A police officer:
(a) Shall not arrest a person for a traffic violation.
(b) May stop and detain a person for a traffic violation for
the purposes of investigation reasonably related to the traffic
violation, identification and issuance of citation.
Enrolled Senate Bill 412 (SB 412-C) Page 32
(c) May make an inquiry into circumstances arising during the
course of a detention and investigation under paragraph (b) of
this subsection that give rise to a reasonable suspicion of
criminal activity.
(d) May make an inquiry to ensure the safety of the officer,
the person stopped or other persons present, including an inquiry
regarding the presence of weapons.
(e) May request consent to search in relation to the
circumstances referred to in paragraph (c) of this subsection or
to search for items of evidence otherwise subject to search or
seizure under ORS 133.535.
(f) May use the degree of force reasonably necessary to make
the stop and ensure the safety of the { - peace - } { +
police + } officer, the person stopped or other persons present.
(g) May make an arrest of a person as authorized by ORS 133.310
(2) if the person is stopped and detained pursuant to the
authority of this section.
(4) When a police officer at the scene of a traffic accident
has reasonable grounds, based upon the police officer's personal
investigation, to believe that a person involved in the accident
has committed a traffic offense in connection with the accident,
the police officer may issue to the person a citation for that
offense. The authority under this subsection is in addition to
any other authority to issue a citation for a traffic offense.
SECTION 34. ORS 811.720 is amended to read:
811.720. (1) Except as provided in subsection (4) of this
section, any accident occurring on a highway or upon premises
open to the public resulting in injury or death to any person is
subject to the reporting requirements under the following
sections:
(a) The reporting requirements for drivers under ORS 811.725.
(b) The reporting requirements for occupants of vehicles in
accidents under ORS 811.735.
(c) The reporting requirements for owners of vehicles under ORS
811.730.
(2) Except as provided in subsection (4) of this section, an
accident occurring on a highway or upon premises open to the
public resulting in damage to the property of any person in
excess of $1,500 is subject to the following reporting
requirements:
(a) The driver of a vehicle that has more than $1,500 damage
must report the accident in the manner specified under ORS
811.725.
(b) The owner of a vehicle that has more than $1,500 damage
must report the accident in the manner specified in ORS 811.730
and under the circumstances specified in ORS 811.730.
(c) If the property damage is to property other than a vehicle
involved in the accident, each driver involved in the accident
must report the accident in the manner specified under ORS
811.725 and each owner of a vehicle involved in the accident must
report the accident in the manner specified in ORS 811.730 and
under the circumstances specified in ORS 811.730.
(d) If a vehicle involved in the accident is damaged to the
extent that the vehicle must be towed from the scene of the
accident, each driver involved in the accident must report the
accident in the manner specified under ORS 811.725 and each owner
of a vehicle involved in the accident must report the accident in
the manner specified in ORS 811.730 and under the circumstances
specified in ORS 811.730.
Enrolled Senate Bill 412 (SB 412-C) Page 33
(3) The dollar amount specified in subsection (2) of this
section may be increased every five years by the Department of
Transportation based upon any increase in the Portland-Salem
Consumer Price Index for All Urban Consumers for All Items as
prepared by the Bureau of Labor Statistics of the United States
Department of Labor or its successor during the preceding
12-month period. The amount determined under this subsection
shall be rounded to the nearest $100.
(4) The following are exempt from the reporting requirements of
this section:
(a) Operators of snowmobiles, Class I all-terrain vehicles or
Class III all-terrain vehicles.
(b) A law enforcement official acting in the course of official
duty if the accident involved a law enforcement official
performing a lawful intervention technique or a law enforcement
official and a person acting during the commission of a criminal
offense. As used in this paragraph:
(A) 'Law enforcement official' means a person who is
responsible for enforcing the criminal laws of this state or a
political subdivision of this state and who is employed or
volunteers:
(i) As a peace officer commissioned by a city, port, school
district, mass transit district, county or county service
district authorized to provide law enforcement services under ORS
451.010;
(ii) With the Department of State Police or the Criminal
Justice Division of the Department of Justice; { - or - }
(iii) As an investigator of a district attorney's office, if
the investigator is certified as a peace officer in this
state { + ; or
(iv) As an authorized tribal police officer as defined in
section 1 of this 2011 Act + }.
(B) 'Lawful intervention technique' means a method by which one
motor vehicle causes, or attempts to cause, another motor vehicle
to stop.
SECTION 35. ORS 830.005 is amended to read:
830.005. As used in this chapter, unless the context requires
otherwise:
(1) 'Board' means the State Marine Board.
(2) 'Boat' means every description of watercraft, including a
seaplane on the water and not in flight, used or capable of being
used as a means of transportation on the water, but does not
include boathouses, floating homes, air mattresses, beach and
water toys or single inner tubes.
(3) 'Boating offense' means violation of any provision of law
that is made a crime or violation under the provisions of this
chapter.
(4) 'In flight' means from the moment a seaplane starts its
takeoff run until the end of a normal power-off landing run.
(5) 'Length' means the length of a boat measured from end to
end over the deck excluding sheer.
(6) 'Motorboat' means any boat propelled in whole or in part by
machinery, including boats temporarily equipped with detachable
motors.
(7) 'Navigable waters of the United States' means those waters
of the United States, including the territorial seas adjacent
thereto, the general character of which is navigable, and that,
either by themselves or by uniting with other waters, form a
continuous waterway on which boats or vessels may navigate or
Enrolled Senate Bill 412 (SB 412-C) Page 34
travel between two or more states, or to and from foreign
nations.
(8) 'Operate' means to navigate or otherwise use a boat.
(9) 'Operator of a boat livery' means any person who is engaged
wholly or in part in the business of chartering or renting boats
to other persons.
(10) 'Passenger' means every person on board a boat who is not
the master, operator, crew member or other person engaged in any
capacity in the business of the boat.
(11) 'Peace officer' includes a member of the Oregon State
Police, a sheriff or deputy sheriff { - and - } { + , + } a
city police officer { + and an authorized tribal police officer
as defined in section 1 of this 2011 Act + }.
(12) 'State waters' means those waters entirely within the
confines of this state that have not been declared navigable
waters of the United States.
(13) 'Waters of this state' means all waters within the
territorial limits of this state, the marginal sea adjacent to
this state and the high seas when navigated as part of a journey
or ride to or from the shore of this state.
SECTION 36. { + The amendments to ORS 40.275, 90.440, 131.605,
133.005, 133.033, 133.318, 133.525, 133.721, 133.726, 136.595,
147.425, 153.005, 161.015, 163.730, 165.535, 181.010, 181.610,
181.781, 181.783, 181.796, 348.270, 414.805, 419B.902, 420.905,
801.395, 810.410, 811.720 and 830.005 by sections 10 to 35 of
this 2011 Act become operative on the effective date of this 2011
Act. + }
{ +
PROVISIONS APPLICABLE + }
{ +
ON AND AFTER JULY 1, 2015 + }
SECTION 37. ORS 40.275, as amended by section 10 of this 2011
Act, is amended to read:
40.275. (1) As used in this section, 'unit of government '
means { - : - }
{ - (a) - } the federal government or any state or political
subdivision thereof { + . + } { - ; or - }
{ - (b) A tribal government as defined in section 1 of this
2011 Act, if the information relates to or assists in an
investigation conducted by an authorized tribal police officer as
defined in section 1 of this 2011 Act. - }
(2) A unit of government has a privilege to refuse to disclose
the identity of a person who has furnished information relating
to or assisting in an investigation of a possible violation of
law to a law enforcement officer or member of a legislative
committee or its staff conducting an investigation.
(3) The privilege created by this section may be claimed by an
appropriate representative of the unit of government if the
information was furnished to an officer thereof.
(4) No privilege exists under this section:
(a) If the identity of the informer or the informer's interest
in the subject matter of the communication has been disclosed to
those who would have cause to resent the communication by a
holder of the privilege or by the informer's own action, or if
the informer appears as a witness for the unit of government.
(b) If it appears from the evidence in the case or from other
showing by a party that an informer may be able to give testimony
necessary to a fair determination of the issue of guilt or
Enrolled Senate Bill 412 (SB 412-C) Page 35
innocence in a criminal case or of a material issue on the merits
in a civil case to which the unit of government is a party, and
the unit of government invokes the privilege, and the judge gives
the unit of government an opportunity to show in camera facts
relevant to determining whether the informer can, in fact, supply
that testimony. The showing will ordinarily be in the form of
affidavits, but the judge may direct that testimony be taken if
the judge finds that the matter cannot be resolved satisfactorily
upon affidavit. If the judge finds that there is a reasonable
probability that the informer can give the testimony, and the
unit of government elects not to disclose identity of the
informer, the judge on motion of the defendant in a criminal case
shall dismiss the charges to which the testimony would relate,
and the judge may do so on the judge's own motion. In civil
cases, the judge may make any order that justice requires.
Evidence submitted to the judge shall be sealed and preserved to
be made available to the appellate court in the event of an
appeal, and the contents shall not otherwise be revealed without
consent of the unit of government. All counsel and parties shall
be permitted to be present at every stage of proceedings under
this paragraph except a showing in camera, at which no counsel or
party shall be permitted to be present.
(c) If information from an informer is relied upon to establish
the legality of the means by which evidence was obtained and the
judge is not satisfied that the information was received from an
informer reasonably believed to be reliable or credible. The
judge may require the identity of the informer to be disclosed.
The judge shall, on request of the unit of government, direct
that the disclosure be made in camera. All counsel and parties
concerned with the issue of legality shall be permitted to be
present at every stage of proceedings under this paragraph except
a disclosure in camera, at which no counsel or party shall be
permitted to be present. If disclosure of the identity of the
informer is made in camera, the record thereof shall be sealed
and preserved to be made available to the appellate court in the
event of an appeal, and the contents shall not otherwise be
revealed without consent of the unit of government.
SECTION 38. ORS 90.440, as amended by section 11 of this 2011
Act, is amended to read:
90.440. (1) As used in this section:
(a) 'Group recovery home' means a place that provides occupants
with shared living facilities and that meets the description of a
group home under 42 U.S.C. 300x-25.
(b) 'Illegal drugs' includes controlled substances or
prescription drugs:
(A) For which the tenant does not have a valid prescription; or
(B) That are used by the tenant in a manner contrary to the
prescribed regimen.
(c) 'Peace officer' means a sheriff, constable, marshal or
deputy { - , - } { + or + } a member of a state or city police
force { - or an authorized tribal police officer as defined in
section 1 of this 2011 Act - } .
(2) Notwithstanding ORS 90.375 and 90.435, a group recovery
home may terminate a tenancy and peaceably remove a tenant
without complying with ORS 105.105 to 105.168 if the tenant has
used or possessed alcohol or illegal drugs within the preceding
seven days. For purposes of this subsection, the following are
sufficient proof that a tenant has used or possessed alcohol or
illegal drugs:
(a) The tenant fails a test for alcohol or illegal drug use;
Enrolled Senate Bill 412 (SB 412-C) Page 36
(b) The tenant refuses a request made in good faith by the
group recovery home that the tenant take a test for alcohol or
illegal drug use; or
(c) Any person has personally observed the tenant using or
possessing alcohol or illegal drugs.
(3) A group recovery home that undertakes the removal of a
tenant under this section shall personally deliver to the tenant
a written notice that:
(a) Describes why the tenant is being removed;
(b) Describes the proof that the tenant has used or possessed
alcohol or illegal drugs within the seven days preceding delivery
of the notice;
(c) Specifies the date and time by which the tenant must move
out of the group recovery home;
(d) Explains that if the removal was wrongful or in bad faith
the tenant may seek injunctive relief to recover possession under
ORS 105.121 and may bring an action to recover monetary damages;
and
(e) Gives contact information for the local legal services
office and for the Oregon State Bar's Lawyer Referral Service,
identifying those services as possible sources for free or
reduced-cost legal services.
(4) A written notice in substantially the following form meets
the requirements of subsection (3) of this section:
_________________________________________________________________
This notice is to inform you that you must move out of
_____ (insert address of group recovery home) by _____ (insert
date and time that is not less than 24 hours after delivery of
notice).
The reason for this notice is _____ (specify use or possession
of alcohol or illegal drugs, as applicable, and dates of
occurrence).
The proof of your use or possession is _____ (specify facts).
If you did not use or possess alcohol or illegal drugs within
the seven days before delivery of this notice, if this notice was
given in bad faith or if your group recovery home has not
substantially complied with ORS 90.440, you may be able to get a
court to order the group recovery home to let you move back in.
You may also be able to recover monetary damages.
You may be eligible for free legal services at your local legal
services office _____ (insert telephone number) or reduced fee
legal services through the Oregon State Bar at 1-800-452-7636.
_________________________________________________________________
(5) Within the notice period, a group recovery home shall allow
a tenant removed under this section to follow any emergency
departure plan that was prepared by the tenant and approved by
the group recovery home at the time the tenancy began. If the
removed tenant does not have an emergency departure plan, a
representative of the group recovery home shall offer to take the
removed tenant to a public shelter, detoxification center or
similar location if existing in the community.
(6) The date and time for moving out specified in a notice
under subsection (3) of this section must be at least 24 hours
after the date and time the notice is delivered to the tenant. If
the tenant remains on the group recovery home premises after the
date and time for moving out specified in the notice, the tenant
is a person remaining unlawfully in a dwelling as described in
ORS 164.255 and not a person described in ORS 105.115. Only a
Enrolled Senate Bill 412 (SB 412-C) Page 37
peace officer may forcibly remove a tenant who remains on the
group recovery home premises after the date and time specified
for moving out.
(7) A group recovery home that removes a tenant under this
section shall send a copy of the notice described in subsection
(3) of this section to the Oregon Health Authority no later than
72 hours after delivering the notice to the tenant.
(8) A tenant who is removed under subsection (2) of this
section may obtain injunctive relief to recover possession and
may recover an amount equal to the greater of actual damages or
three times the tenant's monthly rent if:
(a) The group recovery home removed the tenant in bad faith or
without substantially complying with this section; or
(b) If removal is under subsection (2)(c) of this section, the
removal was wrongful because the tenant did not use or possess
alcohol or illegal drugs.
(9) Notwithstanding ORS 12.125, a tenant who seeks to obtain
injunctive relief to recover possession under ORS 105.121 must
commence the action to seek relief not more than 90 days after
the date specified in the notice for the tenant to move out.
(10) In any court action regarding the removal of a tenant
under this section, a group recovery home may present evidence
that the tenant used or possessed alcohol or illegal drugs within
seven days preceding the removal, whether or not the evidence was
described in the notice required by subsection (3) of this
section.
(11) This section does not prevent a group recovery home from
terminating a tenancy as provided by any other provision of this
chapter and evicting a tenant as provided in ORS 105.105 to
105.168.
SECTION 39. ORS 133.005, as amended by section 13 of this 2011
Act, is amended to read:
133.005. As used in ORS 133.005 to 133.381 and 133.410 to
133.450, unless the context requires otherwise:
(1) 'Arrest' means to place a person under actual or
constructive restraint or to take a person into custody for the
purpose of charging that person with an offense. A 'stop' as
authorized under ORS 131.605 to 131.625 is not an arrest.
(2) 'Federal officer' means a special agent or law enforcement
officer employed by a federal agency who is empowered to effect
an arrest with or without a warrant for violations of the United
States Code and who is authorized to carry firearms in the
performance of duty.
(3) 'Peace officer' means:
(a) A member of the Oregon State Police;
(b) A sheriff, constable, marshal or municipal police officer;
(c) An investigator of a district attorney's office if the
investigator is or has been certified as a peace officer in this
or any other state; { + or + }
(d) An investigator of the Criminal Justice Division of the
Department of Justice of the State of Oregon { + . + } { - ;
or - }
{ - (e) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
SECTION 40. ORS 133.525, as amended by section 16 of this 2011
Act, is amended to read:
133.525. As used in ORS 133.525 to 133.703, unless the context
requires otherwise:
(1) 'Judge' means any judge of the circuit court, the Court of
Appeals, the Supreme Court, any justice of the peace or municipal
Enrolled Senate Bill 412 (SB 412-C) Page 38
judge authorized to exercise the powers and perform the duties of
a justice of the peace.
(2) 'Police officer' means:
(a) A member of the Oregon State Police;
(b) A sheriff or municipal police officer { - or an
authorized tribal police officer as defined in section 1 of this
2011 Act - } ;
(c) An investigator of a district attorney's office if the
investigator is or has been certified as a peace officer in this
or any other state; or
(d) An investigator of the Criminal Justice Division of the
Department of Justice.
SECTION 41. ORS 133.721, as amended by section 17 of this 2011
Act, is amended to read:
133.721. As used in ORS 41.910 and 133.721 to 133.739, unless
the context requires otherwise:
(1) 'Aggrieved person' means a person who was a party to any
wire, electronic or oral communication intercepted under ORS
133.724 or 133.726 or a person against whom the interception was
directed and who alleges that the interception was unlawful.
(2) 'Contents,' when used with respect to any wire, electronic
or oral communication, includes any information concerning the
identity of the parties to such communication or the existence,
substance, purport or meaning of that communication.
(3) 'Electronic communication' means any transfer of signs,
signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part by a radio,
electromagnetic, photoelectronic or photo-optical system, or
transmitted in part by wire, but does not include:
(a) Any oral communication or any communication that is
completely by wire; or
(b) Any communication made through a tone-only paging device.
(4) 'Electronic, mechanical or other device' means any device
or apparatus that can be used to intercept a wire, electronic or
oral communication other than:
(a) Any telephone or telegraph instrument, equipment or
facility, or any component thereof that is furnished to the
subscriber or user by a telecommunications carrier in the
ordinary course of its business and that is being used by the
subscriber or user in the ordinary course of its business or
being used by a telecommunications carrier in the ordinary course
of its business, or by an investigative or law enforcement
officer in the ordinary course of official duties; or
(b) A hearing aid or similar device being used to correct
subnormal hearing to not better than normal.
(5) 'Intercept' means the acquisition, by listening or
recording, of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical or
other device.
(6) 'Investigative or law enforcement officer' means { - : - }
{ - (a) - } an officer or other person employed to
investigate or enforce criminal laws by:
{ - (A) - } { + (a) + } A county sheriff or municipal
police department;
{ - (B) - } { + (b) + } The Oregon State Police, the
Department of Corrections, the Attorney General or a district
attorney; or
{ - (C) - } { + (c) + } Law enforcement agencies of other
states or the federal government { + . + } { - ; or - }
Enrolled Senate Bill 412 (SB 412-C) Page 39
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(7) 'Oral communication' means:
(a) Any oral communication, other than a wire or electronic
communication, uttered by a person exhibiting an expectation that
such communication is not subject to interception under
circumstances justifying such expectation; or
(b) An utterance by a person who is participating in a wire or
electronic communication, if the utterance is audible to another
person who, at the time the wire or electronic communication
occurs, is in the immediate presence of the person participating
in the communication.
(8) 'Telecommunications carrier' means:
(a) A telecommunications utility as defined in ORS 759.005; or
(b) A cooperative corporation organized under ORS chapter 62
that provides telecommunications services.
(9) 'Telecommunications service' has the meaning given that
term in ORS 759.005.
(10) 'Wire communication' means any communication made in whole
or in part through the use of facilities for the transmission of
communications by the aid of wire, cable or other like connection
between the point of origin and the point of reception, whether
furnished or operated by a public utility or privately owned or
leased.
SECTION 42. ORS 133.726, as amended by section 3, chapter 442,
Oregon Laws 2007, and section 19 of this 2011 Act, is amended to
read:
133.726. (1) Notwithstanding ORS 133.724, under the
circumstances described in this section, a law enforcement
officer is authorized to intercept an oral communication to which
the officer or a person under the direct supervision of the
officer is a party, without obtaining an order for the
interception of a wire, electronic or oral communication under
ORS 133.724.
(2) For purposes of this section and ORS 133.736, a person is a
party to an oral communication if the oral communication is made
in the person's immediate presence and is audible to the person
regardless of whether the communication is specifically directed
to the person.
(3) An ex parte order for intercepting an oral communication in
any county of this state under this section may be issued by any
judge as defined in ORS 133.525 upon written application made
upon oath or affirmation of the district attorney or a deputy
district attorney authorized by the district attorney for the
county in which the order is sought or upon the oath or
affirmation of any peace officer as defined in ORS 133.005. The
application shall include:
(a) The name of the applicant and the applicant's authority to
make the application;
(b) A statement demonstrating that there is probable cause to
believe that a person whose oral communication is to be
intercepted is engaged in committing, has committed or is about
to commit a particular felony, or a misdemeanor under ORS
167.007, and that intercepting the oral communication will yield
evidence thereof; and
(c) The identity of the person, if known, suspected of
committing the crime and whose oral communication is to be
intercepted.
(4) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
Enrolled Senate Bill 412 (SB 412-C) Page 40
(5) Upon examination of the application and evidence, the judge
may enter an ex parte order, as requested or as modified,
authorizing or approving the interception of an oral
communication within the state if the judge determines on the
basis of the facts submitted by the applicant that:
(a) There is probable cause to believe that a person is engaged
in committing, has committed or is about to commit a particular
felony, or a misdemeanor under ORS 167.007; and
(b) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime.
(6) An order authorizing or approving the interception of an
oral communication under this section must specify:
(a) The identity of the person, if known, whose oral
communication is to be intercepted;
(b) A statement identifying the particular crime to which the
oral communication is expected to relate;
(c) The agency authorized under the order to intercept the oral
communication;
(d) The name and office of the applicant and the signature and
title of the issuing judge;
(e) A period of time after which the order shall expire; and
(f) A statement that the order authorizes only the interception
of an oral communication to which a law enforcement officer or a
person under the direct supervision of a law enforcement officer
is a party.
(7) An order under ORS 133.724 or this section is not required
when a law enforcement officer intercepts an oral communication
to which the officer or a person under the direct supervision of
the officer is a party if the oral communication is made by a
person whom the officer has probable cause to believe has
committed, is engaged in committing or is about to commit:
(a) A crime punishable as a felony under ORS 475.840, 475.846
to 475.894 or 475.906 or as a misdemeanor under ORS 167.007; or
(b) Any other crime punishable as a felony if the circumstances
at the time the oral communication is intercepted are of such
exigency that it would be unreasonable to obtain a court order
under ORS 133.724 or this section.
(8) A law enforcement officer who intercepts an oral
communication pursuant to this section may not intentionally fail
to record and preserve the oral communication in its entirety. A
law enforcement officer, or a person under the direct supervision
of the officer, who is authorized under this section to intercept
an oral communication is not required to exclude from the
interception an oral communication made by a person for whom
probable cause does not exist if the officer or the person under
the officer's direct supervision is a party to the oral
communication.
(9) A law enforcement officer may not divulge the contents of
an oral communication intercepted under this section before a
preliminary hearing or trial in which an oral communication is
going to be introduced as evidence against a person except:
(a) To a superior officer or other official with whom the law
enforcement officer is cooperating in the enforcement of the
criminal laws of this state or the United States;
(b) To a magistrate;
(c) In a presentation to a federal or state grand jury; or
(d) In compliance with a court order.
(10) A law enforcement officer may intercept an oral
communication under this section only when acting within the
Enrolled Senate Bill 412 (SB 412-C) Page 41
scope of the officer's employment and as a part of assigned
duties.
(11) As used in this section, 'law enforcement officer ' means
{ - : - }
{ - (a) - } an officer employed to enforce criminal laws by:
{ - (A) - } { + (a) + } The United States, this state or a
municipal government within this state; or
{ - (B) - } { + (b) + } A political subdivision, agency,
department or bureau of the governments described in
{ + paragraph (a) of this subsection. + } { - subparagraph (A)
of this paragraph; or - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(12) Violation of subsection (9) of this section is a Class A
misdemeanor.
SECTION 43. ORS 136.595, as amended by section 20 of this 2011
Act, is amended to read:
136.595. (1) Except as provided in ORS 136.447 and 136.583 and
subsection (2) of this section, a subpoena is served by
delivering a copy to the witness personally. If the witness is
under 14 years of age, the subpoena may be served by delivering a
copy to the witness or to the witness's parent, guardian or
guardian ad litem. Proof of the service is made in the same
manner as in the service of a summons.
(2)(a) Every law enforcement agency shall designate an
individual or individuals upon whom service of subpoena may be
made. At least one of the designated individuals shall be
available during normal business hours. In the absence of the
designated individuals, service of subpoena pursuant to paragraph
(b) of this subsection may be made upon the officer in charge of
the law enforcement agency.
(b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
on such officer by delivering a copy personally to the officer or
to one of the individuals designated by the agency that employs
the officer. A subpoena may be served by delivery to one of the
individuals designated by the agency that employs the officer
only if the subpoena is delivered at least 10 days before the
date the officer's attendance is required, the officer is
currently employed as a peace officer by the agency, and the
officer is present within the state at the time of service.
(c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to actually notify the officer whose attendance
is sought of the date, time and location of the court appearance.
If the officer cannot be notified, the law enforcement agency
shall contact the court and a continuance may be granted to allow
the officer to be personally served.
(d) As used in this subsection, 'law enforcement agency ' means
the Oregon State Police, a county sheriff's department { - , - }
{ + or + } a municipal police department { - or, if the
witness whose attendance at trial is required is an authorized
tribal police officer as defined in section 1 of this 2011 Act, a
tribal government as defined in section 1 of this 2011 Act - } .
(3) When a subpoena has been served as provided in ORS 136.583
or subsection (1) or (2) of this section and, subsequent to
service, the date on, or the time at, which the person subpoenaed
is to appear has changed, a new subpoena is not required to be
served if:
Enrolled Senate Bill 412 (SB 412-C) Page 42
(a) The subpoena is continued orally in open court in the
presence of the person subpoenaed; or
(b) The party who issued the original subpoena notifies the
person subpoenaed of the change by first class mail and by:
(A) Certified or registered mail, return receipt requested; or
(B) Express mail.
SECTION 44. ORS 147.425, as amended by section 21 of this 2011
Act, is amended to read:
147.425. (1) As used in this section:
(a) 'Health care provider' has the meaning given that term in
ORS 192.519.
(b) 'Law enforcement agency' means:
(A) A city or municipal police department.
(B) A county sheriff's office.
(C) The Oregon State Police.
(D) A district attorney.
(E) A special campus security officer commissioned under ORS
352.385 or 353.050.
{ - (F) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(c) 'Person crime' means a person felony or person Class A
misdemeanor, as those terms are defined in the rules of the
Oregon Criminal Justice Commission.
(d) 'Personal representative' means a person selected under
subsection (2) of this section to accompany the victim of a crime
to certain phases of an investigation and prosecution.
(e) 'Protective service worker' means an employee or contractor
of a local or state agency whose role it is to protect children
or vulnerable adults from abuse or neglect.
(2) A victim of a person crime, who is at least 15 years of age
at the time the crime is committed, may select a person who is at
least 18 years of age as the victim's personal representative for
purposes of this section. The victim may not select a person who
is a suspect in, or a party or witness to, the crime as a
personal representative.
(3) Except for grand jury proceedings and child abuse
assessments occurring at a child advocacy center recognized by
the Department of Justice, a personal representative may
accompany the victim to those phases of the investigation,
including medical examinations, and prosecution of the crime at
which the victim is entitled or required to be present.
(4) A health care provider, law enforcement agency, protective
service worker or court may not prohibit a personal
representative from accompanying a victim as authorized by
subsection (3) of this section unless the health care provider,
law enforcement agency, protective service worker or court
believes that the personal representative would compromise the
process.
(5) A health care provider, law enforcement agency, protective
service worker or court is immune from any liability, civil or
criminal, that might otherwise be incurred or imposed with
respect to a decision under subsection (4) of this section to
prohibit a personal representative from accompanying a victim.
(6) The fact that a personal representative was allowed or was
not allowed to accompany a victim may not be used as a basis for
excluding otherwise admissible evidence.
(7) The fact that a victim has or has not selected a personal
representative under this section may not be used as evidence in
the criminal case.
Enrolled Senate Bill 412 (SB 412-C) Page 43
SECTION 45. ORS 153.005, as amended by section 22 of this 2011
Act, is amended to read:
153.005. As used in this chapter:
(1) 'Enforcement officer' means:
(a) A member of the Oregon State Police.
(b) A sheriff or deputy sheriff.
(c) A city marshal or a member of the police of a city,
municipal or quasi-municipal corporation.
(d) An investigator of a district attorney's office if the
investigator is or has been certified as a peace officer in this
or any other state.
(e) An investigator of the Criminal Justice Division of the
Department of Justice of the State of Oregon.
(f) A Port of Portland peace officer.
{ - (g) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
{ - (h) - } { + (g) + } Any other person specifically
authorized by law to issue citations for the commission of
violations.
(2) 'Traffic offense' has the meaning given that term in ORS
801.555.
(3) 'Violation' means an offense described in ORS 153.008.
(4) 'Violation proceeding' means a judicial proceeding
initiated by issuance of a citation that charges a person with
commission of a violation.
SECTION 46. ORS 161.015, as amended by section 23 of this 2011
Act, is amended to read:
161.015. As used in chapter 743, Oregon Laws 1971, and ORS
166.635, unless the context requires otherwise:
(1) 'Dangerous weapon' means any weapon, device, instrument,
material or substance which under the circumstances in which it
is used, attempted to be used or threatened to be used, is
readily capable of causing death or serious physical injury.
(2) 'Deadly weapon' means any instrument, article or substance
specifically designed for and presently capable of causing death
or serious physical injury.
(3) 'Deadly physical force' means physical force that under the
circumstances in which it is used is readily capable of causing
death or serious physical injury.
(4) 'Peace officer' means:
(a) A member of the Oregon State Police;
(b) A sheriff, constable, marshal or municipal police officer;
(c) An investigator of the Criminal Justice Division of the
Department of Justice or investigator of a district attorney's
office; { + and + }
{ - (d) An authorized tribal police officer as defined in
section 1 of this 2011 Act; and - }
{ - (e) - } { + (d) + } Any other person designated by law
as a peace officer.
(5) 'Person' means a human being and, where appropriate, a
public or private corporation, an unincorporated association, a
partnership, a government or a governmental instrumentality.
(6) 'Physical force' includes, but is not limited to, the use
of an electrical stun gun, tear gas or mace.
(7) 'Physical injury' means impairment of physical condition or
substantial pain.
(8) 'Serious physical injury' means physical injury which
creates a substantial risk of death or which causes serious and
protracted disfigurement, protracted impairment of health or
Enrolled Senate Bill 412 (SB 412-C) Page 44
protracted loss or impairment of the function of any bodily
organ.
(9) 'Possess' means to have physical possession or otherwise to
exercise dominion or control over property.
(10) 'Public place' means a place to which the general public
has access and includes, but is not limited to, hallways, lobbies
and other parts of apartment houses and hotels not constituting
rooms or apartments designed for actual residence, and highways,
streets, schools, places of amusement, parks, playgrounds and
premises used in connection with public passenger transportation.
SECTION 47. ORS 163.730, as amended by section 24 of this 2011
Act, is amended to read:
163.730. As used in ORS 30.866 and 163.730 to 163.750, unless
the context requires otherwise:
(1) 'Alarm' means to cause apprehension or fear resulting from
the perception of danger.
(2) 'Coerce' means to restrain, compel or dominate by force or
threat.
(3) 'Contact' includes but is not limited to:
(a) Coming into the visual or physical presence of the other
person;
(b) Following the other person;
(c) Waiting outside the home, property, place of work or school
of the other person or of a member of that person's family or
household;
(d) Sending or making written or electronic communications in
any form to the other person;
(e) Speaking with the other person by any means;
(f) Communicating with the other person through a third person;
(g) Committing a crime against the other person;
(h) Communicating with a third person who has some relationship
to the other person with the intent of affecting the third
person's relationship with the other person;
(i) Communicating with business entities with the intent of
affecting some right or interest of the other person;
(j) Damaging the other person's home, property, place of work
or school;
(k) Delivering directly or through a third person any object to
the home, property, place of work or school of the other person;
or
(L) Service of process or other legal documents unless the
other person is served as provided in ORCP 7 or 9.
(4) 'Household member' means any person residing in the same
residence as the victim.
(5) 'Immediate family' means father, mother, child, sibling,
spouse, grandparent, stepparent and stepchild.
(6) 'Law enforcement officer' means { - : - }
{ - (a) - } a person employed in this state as a police
officer by a county sheriff, constable or marshal or a municipal
or state police agency { + . + } { - ; or - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(7) 'Repeated' means two or more times.
(8) 'School' means a public or private institution of learning
or a child care facility.
SECTION 48. ORS 165.535, as amended by section 25 of this 2011
Act, is amended to read:
165.535. As used in ORS 41.910, 133.723, 133.724, 165.540 and
165.545:
Enrolled Senate Bill 412 (SB 412-C) Page 45
(1) 'Conversation' means the transmission between two or more
persons of an oral communication which is not a telecommunication
or a radio communication.
(2) 'Person' has the meaning given that term in ORS 174.100 and
includes { - : - }
{ - (a) - } public officials and law enforcement officers of
the state and of a county, municipal corporation or any other
political subdivision of the state { + . + } { - ; and - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(3) 'Radio communication' means the transmission by radio or
other wireless methods of writing, signs, signals, pictures and
sounds of all kinds, including all instrumentalities, facilities,
equipment and services (including, among other things, the
receipt, forwarding and delivering of communications) incidental
to such transmission.
(4) 'Telecommunication' means the transmission of writing,
signs, signals, pictures and sounds of all kinds by aid of wire,
cable or other similar connection between the points of origin
and reception of such transmission, including all
instrumentalities, facilities, equipment and services (including,
among other things, the receipt, forwarding and delivering of
communications) incidental to such transmission.
SECTION 49. ORS 181.010, as amended by section 26 of this 2011
Act, is amended to read:
181.010. As used in ORS 181.010 to 181.560 and 181.715 to
181.730, unless the context requires otherwise:
(1) 'Bureau' means the Department of State Police bureau of
criminal identification.
(2) 'Criminal justice agency' means:
(a) The Governor;
(b) Courts of criminal jurisdiction;
(c) The Attorney General;
(d) District attorneys, city attorneys with criminal
prosecutive functions, attorney employees of the office of public
defense services and nonprofit public defender organizations
established under contract with the Public Defense Services
Commission;
(e) Law enforcement agencies;
(f) The Department of Corrections;
(g) The State Board of Parole and Post-Prison Supervision;
(h) The Department of Public Safety Standards and Training; and
(i) Any other state or local agency with law enforcement
authority designated by order of the Governor.
(3) 'Criminal offender information' includes records and
related data as to physical description and vital statistics,
fingerprints received and compiled by the bureau for purposes of
identifying criminal offenders and alleged offenders, records of
arrests and the nature and disposition of criminal charges,
including sentencing, confinement, parole and release.
(4) 'Department' means the Department of State Police
established under ORS 181.020.
(5) 'Deputy superintendent' means the Deputy Superintendent of
State Police.
(6) 'Designated agency' means any state, county or municipal
government agency where Oregon criminal offender information is
required to implement a federal or state statute, executive order
or administrative rule that expressly refers to criminal conduct
and contains requirements or exclusions expressly based on such
conduct or for agency employment purposes, licensing purposes or
Enrolled Senate Bill 412 (SB 412-C) Page 46
other demonstrated and legitimate needs when designated by order
of the Governor.
(7) 'Disposition report' means a form or process prescribed or
furnished by the bureau, containing a description of the ultimate
action taken subsequent to an arrest.
(8) 'Law enforcement agency' means:
(a) County sheriffs, municipal police departments and State
Police;
(b) Other police officers of this state and other states; { +
and + }
{ - (c) A tribal government as defined in section 1 of this
2011 Act that employs authorized tribal police officers as
defined in section 1 of this 2011 Act; and - }
{ - (d) - } { + (c) + } Law enforcement agencies of the
federal government.
(9) 'State Police' means the members of the state police force
appointed under ORS 181.250.
(10) 'Superintendent' means the Superintendent of State Police.
SECTION 50. ORS 181.610, as amended by section 27 of this 2011
Act, is amended to read:
181.610. In ORS 181.610 to 181.712, unless the context requires
otherwise:
(1) 'Abuse' has the meaning given the term in ORS 107.705.
(2) 'Board' means the Board on Public Safety Standards and
Training appointed pursuant to ORS 181.620.
(3) 'Certified reserve officer' means a reserve officer who has
been designated by a local law enforcement unit, has received
training necessary for certification and has met the minimum
standards and training requirements established under ORS
181.640.
(4) 'Commissioned' means an authorization granting the power to
perform various acts or duties of a police officer or certified
reserve officer and acting under the supervision and
responsibility of a county sheriff or as otherwise provided by
law.
(5) 'Corrections officer' means an officer or member of a law
enforcement unit who is employed full-time thereby and is charged
with and primarily performs the duty of custody, control or
supervision of individuals convicted of or arrested for a
criminal offense and confined in a place of incarceration or
detention other than a place used exclusively for incarceration
or detention of juveniles.
(6) 'Department' means the Department of Public Safety
Standards and Training.
(7) 'Director' means the Director of the Department of Public
Safety Standards and Training.
(8) 'Domestic violence' means abuse between family or household
members.
(9) 'Emergency medical dispatcher' means a person who has
responsibility to process requests for medical assistance from
the public or to dispatch medical care providers.
(10) 'Family or household members' has the meaning given that
term in ORS 107.705.
(11) 'Fire service professional' means a paid or volunteer
firefighter, an officer or a member of a public or private fire
protection agency that is engaged primarily in fire
investigation, fire prevention, fire safety, fire control or fire
suppression or providing emergency medical services, light and
heavy rescue services, search and rescue services or hazardous
Enrolled Senate Bill 412 (SB 412-C) Page 47
materials incident response. 'Fire service professional' does not
include forest fire protection agency personnel.
(12)(a) 'Law enforcement unit' means a police force or
organization of the state, a city, port, school district, mass
transit district, county, county service district authorized to
provide law enforcement services under ORS 451.010, tribal
government { - as defined in section 1 of this 2011 Act that
employs authorized tribal police officers as defined in section 1
of this 2011 Act - } , the Criminal Justice Division of the
Department of Justice, the Department of Corrections, the Oregon
State Lottery Commission or common carrier railroad whose primary
duty, as prescribed by law, ordinance or directive, is any one or
more of the following:
(A) Detecting crime and enforcing the criminal laws of this
state or laws or ordinances relating to airport security;
(B) The custody, control or supervision of individuals
convicted of or arrested for a criminal offense and confined to a
place of incarceration or detention other than a place used
exclusively for incarceration or detention of juveniles; or
(C) The control, supervision and reformation of adult offenders
placed on parole or sentenced to probation and investigation of
adult offenders on parole or probation or being considered for
parole or probation.
(b) 'Law enforcement unit' also means:
(A) A police force or organization of a private entity with a
population of more than 1,000 residents in an unincorporated area
whose employees are commissioned by a county sheriff;
(B) A district attorney's office; and
(C) A private, nonprofit animal care agency that has maintained
an animal welfare investigation department for at least five
years and has had officers commissioned as special agents by the
Governor.
(13) 'Parole and probation officer' means:
(a) Any officer who is employed full-time by the Department of
Corrections, a county or a court and who is charged with and
performs the duty of:
(A) Community protection by controlling, investigating,
supervising and providing or making referrals to reformative
services for adult parolees or probationers or offenders on
post-prison supervision; or
(B) Investigating adult offenders on parole or probation or
being considered for parole or probation; or
(b) Any officer who:
(A) Is certified and has been employed as a full-time parole
and probation officer for more than one year;
(B) Is employed part-time by the Department of Corrections, a
county or a court; and
(C) Is charged with and performs the duty of:
(i) Community protection by controlling, investigating,
supervising and providing or making referrals to reformative
services for adult parolees or probationers or offenders on
post-prison supervision; or
(ii) Investigating adult offenders on parole or probation or
being considered for parole or probation.
(14) 'Police officer' means an officer, member or employee of a
law enforcement unit who is employed full-time as a peace officer
commissioned by a city, port, school district, mass transit
district, county, county service district authorized to provide
law enforcement services under ORS 451.010, tribal government
{ - as defined in section 1 of this 2011 Act - } , the Criminal
Enrolled Senate Bill 412 (SB 412-C) Page 48
Justice Division of the Department of Justice, the Oregon State
Lottery Commission or the Governor or who is a member of the
Department of State Police and who is responsible for enforcing
the criminal laws of this state or laws or ordinances relating to
airport security or is an investigator of a district attorney's
office if the investigator is or has been certified as a peace
officer in this or any other state { - or is an authorized
tribal police officer as defined in section 1 of this 2011
Act - } .
(15) 'Public or private safety agency' means any unit of state
or local government, a special purpose district or a private firm
which provides, or has authority to provide, fire fighting,
police, ambulance or emergency medical services.
(16) 'Public safety personnel' and 'public safety officer'
include corrections officers, youth correction officers,
emergency medical dispatchers, parole and probation officers,
police officers, certified reserve officers, telecommunicators
and fire service professionals.
(17) 'Reserve officer' means an officer or member of a law
enforcement unit:
(a) Who is a volunteer or who is employed less than full-time
as a peace officer commissioned by a city, port, school district,
mass transit district, county, county service district authorized
to provide law enforcement services under ORS 451.010, tribal
government { - as defined in section 1 of this 2011 Act - } ,
the Criminal Justice Division of the Department of Justice, the
Oregon State Lottery Commission or the Governor or who is a
member of the Department of State Police;
(b) Who is armed with a firearm; and
(c) Who is responsible for enforcing the criminal laws and
traffic laws of this state or laws or ordinances relating to
airport security.
(18) 'Telecommunicator' means any person employed as an
emergency telephone worker as defined in ORS 243.736 or a public
safety dispatcher whose primary duties are receiving, processing
and transmitting public safety information received through a
9-1-1 emergency reporting system as defined in ORS 403.105.
(19) 'Youth correction officer' means an employee of the Oregon
Youth Authority who is charged with and primarily performs the
duty of custody, control or supervision of youth offenders
confined in a youth correction facility.
SECTION 50a. ORS 181.781, as amended by section 27a of this
2011 Act, is amended to read:
181.781. As used in ORS 181.781 to 181.796:
(1) 'Employ,' when used in the context of the relationship
between a law enforcement agency and a police officer, includes
the assignment of law enforcement duties on a volunteer basis to
a reserve officer.
(2) 'Law enforcement agency' means the Department of State
Police, the Department of Justice, a district attorney, a
political subdivision of the State of Oregon { - , - } { +
and + } a municipal corporation of the State of Oregon { - and
a tribal government - } , that maintains a law enforcement unit
as defined in ORS 181.610 (12)(a)(A).
(3) 'Police officer' means a person who is:
(a) A police officer or reserve officer as defined in ORS
181.610; and
(b) Employed by a law enforcement agency to enforce the
criminal laws of this state.
Enrolled Senate Bill 412 (SB 412-C) Page 49
{ - (4) 'Tribal government' means a tribal government as
defined in section 1 of this 2011 Act: - }
{ - (a) With land that is contiguous to the county in which
the deadly physical force planning authority is created; and - }
{ - (b) That has adopted the provision of tribal law
described in section 2 (4)(d)(A) of this 2011 Act. - }
SECTION 50b. ORS 181.783, as amended by section 27b of this
2011 Act, is amended to read:
181.783. (1) There is created in each county a deadly physical
force planning authority consisting of the following members:
(a) The district attorney and sheriff of the county.
(b) A nonmanagement police officer selected by the district
attorney and sheriff. If there are unions representing police
officers within the county, the district attorney and sheriff
shall select the police officer from among candidates nominated
by any union representing police officers within the county.
(c) If at least one city within the county employs a police
chief, a police chief selected by the police chiefs within the
county.
(d) A representative of the public selected by the district
attorney and sheriff. The person selected under this paragraph
may not be employed by a law enforcement agency.
(e) A representative of the Oregon State Police selected by the
Superintendent of State Police.
{ - (f) A tribal police officer as defined in section 1 of
this 2011 Act, when requested by a tribal government. - }
(2) The district attorney and sheriff are cochairpersons of the
planning authority.
(3) The law enforcement agency that employs the police officer
selected under subsection (1)(b) of this section shall release
the officer from other duties for at least 16 hours per year to
enable the officer to serve on the planning authority. The agency
shall compensate the officer at the officer's regular hourly wage
while the officer is engaged in planning authority activities.
(4) The planning authority shall develop a plan consisting of
the following:
(a) An element dealing with education, outreach and training
regarding the use of deadly physical force for police officers,
attorneys employed by state or local government within the county
and members of the community.
(b) An element dealing with the immediate aftermath of an
incident in which a police officer used deadly physical force.
(c) An element dealing with the investigation of an incident in
which a police officer used deadly physical force.
(d) An element dealing with the exercise of district attorney
discretion to resolve issues of potential criminal responsibility
resulting from a police officer's use of deadly physical force.
(e) An element dealing with collecting information regarding a
police officer's use of deadly physical force, debriefing after
an incident in which a police officer used deadly physical force
and revising a plan developed under this subsection based on
experience.
(f) An estimate of the fiscal impact on the law enforcement
agencies to which the plan applies of each element described in
paragraphs (a) to (e) of this subsection.
(5) The planning authority shall conduct at least one public
hearing in the county before submitting a plan, or a revision of
a plan, to the governing bodies in the county under subsection
(7) of this section.
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(6) The planning authority may consult with anyone the planning
authority determines may be helpful in carrying out its
responsibilities.
(7) The planning authority shall submit the plan developed
under subsection (4) of this section, and revisions of the plan,
to the governing body of each law enforcement agency within the
county except for the Department of State Police and the
Department of Justice.
(8) A governing body shall approve or disapprove the plan
submitted to it under subsection (7) of this section within 60
days after receiving the plan. The governing body may not amend
the plan.
(9) If the plan is not approved by at least two-thirds of the
governing bodies to which the plan is submitted, the planning
authority shall develop and submit a revised plan.
(10) If the plan is approved by at least two-thirds of the
governing bodies to which the plan is submitted, the planning
authority shall submit the approved plan to the Attorney General.
No later than 30 days after receiving the plan, the Attorney
General shall review the plan for compliance with the minimum
requirements described in ORS 181.786. If the Attorney General
determines that the plan complies with the minimum requirements,
the Attorney General shall approve the plan. Upon approval of the
plan:
(a) Each law enforcement agency within the county to which the
plan applies is subject to the provisions of the plan; and
(b) Each law enforcement agency subject to the plan is entitled
to grants as provided in ORS 181.796.
(11) If the plan is not approved by the Attorney General, the
planning authority shall develop and submit a revised plan.
(12) Notwithstanding subsection (10)(a) of this section, a law
enforcement agency is not subject to a provision of a plan
approved under subsection (10) of this section that:
(a) Conflicts with a provision of a city or county charter or a
general ordinance that applies to the law enforcement agency; or
(b) Imposes an obligation not required by ORS 181.789 if
complying with the provision would require the law enforcement
agency to budget moneys, or submit a revenue measure for a vote
of the people, in order to comply with the provision.
(13) The Attorney General shall periodically publish all
approved plans.
(14) A law enforcement agency within a county has a duty to
participate in good faith in the planning process of the planning
authority for the county.
(15) A person bringing an action challenging the validity or
enforceability of a plan approved under subsection (10) of this
section shall serve the Attorney General with a copy of the
complaint. If the Attorney General is not a party to the action,
the Attorney General may intervene in the action.
SECTION 50c. ORS 181.796, as amended by section 27c of this
2011 Act, is amended to read:
181.796. (1) As used in this section, 'expenses' does not
include personnel costs.
(2) To the extent that funds are appropriated to it for such
purposes, the Department of Justice shall make grants to law
enforcement agencies to reimburse the law enforcement agencies
for expenses incurred in implementing and revising the plans
required by ORS 181.783. A grant under this section may not
exceed 75 percent of the expenses incurred by the law enforcement
agency.
Enrolled Senate Bill 412 (SB 412-C) Page 51
(3) The department may not make a grant under this section to a
law enforcement agency unless the law enforcement agency is
subject to a plan that has been approved by the Attorney General
under ORS 181.783 (10).
{ - (4) The department may not make a grant under this
section to a tribal government. - }
{ - (5) - } { + (4) + } The department shall adopt rules
necessary for the administration of this section.
SECTION 51. ORS 348.270, as amended by section 28 of this 2011
Act, is amended to read:
348.270. (1) In addition to any other scholarships provided by
law, the Oregon Student Assistance Commission shall award
scholarships in any state institution under the State Board of
Higher Education, in the Oregon Health and Science University, in
any community college operated under ORS chapter 341, or in any
Oregon-based regionally accredited independent institution, to
any student applying for enrollment or who is enrolled therein,
who is:
(a) The natural child, adopted child or stepchild of any public
safety officer who, in the line of duty, was killed or so
disabled, as determined by the Oregon Student Assistance
Commission, that the income of the public safety officer is less
than that earned by public safety officers performing duties
comparable to those performed at the highest rank or grade
attained by the public safety officer; or
(b) A former foster child who enrolls in an institution of
higher education as an undergraduate student not later than three
years from the date the student was removed from the care of the
Department of Human Services, the date the student graduated from
high school or the date the student received the equivalent of a
high school diploma, whichever date is earliest.
(2) Scholarships awarded under this section to students who are
dependents of public safety officers or who are former foster
children shall equal the amount of tuition and all fees levied by
the institution against the recipient of the scholarship.
However, scholarships awarded to students who attend independent
institutions shall not exceed the amount of tuition and all fees
levied by the University of Oregon.
(3) If the student who is the dependent of a deceased public
safety officer continues to remain enrolled in a state
institution of higher education or a community college or an
independent institution within the State of Oregon, the student
shall be entitled to renewal of the scholarship until the student
has received the equivalent of four years of undergraduate
education and four years of post-graduate education.
(4) If the student who is a former foster child or who is the
dependent of a public safety officer with a disability continues
to remain enrolled in a state institution of higher education or
a community college or an independent institution within the
State of Oregon, the student shall be entitled to renewal of the
scholarship until the student has received the equivalent of four
years of undergraduate education.
(5) The Oregon Student Assistance Commission may require proof
of the student's relationship to a public safety officer
described in subsection (1) of this section or proof that the
student is a former foster child.
(6) As used in this section:
(a) 'Former foster child' means an individual who, for a total
of 12 or more months while between the ages of 16 and 21, was a
ward of the court pursuant to ORS 419B.100 (1)(b) to (e) and in
Enrolled Senate Bill 412 (SB 412-C) Page 52
the legal custody of the Department of Human Services for
out-of-home placement.
(b) 'Public safety officer' means:
(A) A firefighter or police officer as those terms are defined
in ORS 237.610.
(B) A member of the Oregon State Police.
{ - (C) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
SECTION 52. ORS 414.805, as amended by section 29 of this 2011
Act, is amended to read:
414.805. (1) An individual who receives medical services while
in the custody of a law enforcement officer is liable:
(a) To the provider of the medical services for the charges and
expenses therefor; and
(b) To the Oregon Health Authority for any charges or expenses
paid by the authority out of the Law Enforcement Medical
Liability Account for the medical services.
(2) A person providing medical services to an individual
described in subsection (1)(a) of this section shall first make
reasonable efforts to collect the charges and expenses thereof
from the individual before seeking to collect them from the
authority out of the Law Enforcement Medical Liability Account.
(3)(a) If the provider has not been paid within 45 days of the
date of the billing, the provider may bill the authority who
shall pay the account out of the Law Enforcement Medical
Liability Account.
(b) A bill submitted to the authority under this subsection
must be accompanied by evidence documenting that:
(A) The provider has billed the individual or the individual's
insurer or health care service contractor for the charges or
expenses owed to the provider; and
(B) The provider has made a reasonable effort to collect from
the individual or the individual's insurer or health care service
contractor the charges and expenses owed to the provider.
(c) If the provider receives payment from the individual or the
insurer or health care service contractor after receiving payment
from the authority, the provider shall repay the authority the
amount received from the public agency less any difference
between payment received from the individual, insurer or
contractor and the amount of the billing.
(4) As used in this section:
(a) 'Law enforcement officer' means { - : - }
{ - (A) - } an officer who is commissioned and employed by a
public agency as a peace officer to enforce the criminal laws of
this state or laws or ordinances of a public agency { + . + }
{ - ; or - }
{ - (B) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(b) 'Public agency' means the state, a city, port, school
district, mass transit district or county.
SECTION 53. ORS 419B.902, as amended by section 30 of this 2011
Act, is amended to read:
419B.902. (1) A subpoena may be served by the party or any
other person 18 years of age or older. Except as provided in
subsections (2), (3) and (4) of this section, the service must be
made by delivering a copy to the witness personally. The service
must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the
subpoena is not accompanied by a command to appear at trial,
hearing or deposition under ORS 419B.884, whether the subpoena is
Enrolled Senate Bill 412 (SB 412-C) Page 53
served personally or by mail, copies of a subpoena commanding
production and inspection of books, papers, documents or other
tangible things before trial must be served on each party at
least seven days before the subpoena is served on the person
required to produce and permit inspection, unless the court
orders a shorter period.
(2)(a) A law enforcement agency shall designate an individual
upon whom service of a subpoena may be made. A designated
individual must be available during normal business hours. In the
absence of a designated individual, service of a subpoena under
paragraph (b) of this subsection may be made upon the officer in
charge of the law enforcement agency.
(b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
on the officer by delivering a copy personally to the officer or
to an individual designated by the agency that employs the
officer no later than 10 days prior to the date attendance is
sought. A subpoena may be served in this manner only if the
officer is currently employed as a peace officer and is present
within the state at the time of service.
(c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to give actual notice to the officer whose
attendance is sought of the date, time and location of the court
appearance. If the officer cannot be notified, the law
enforcement agency shall promptly notify the court and a
postponement or continuance may be granted to allow the officer
to be personally served.
(d) As used in this subsection, 'law enforcement agency ' means
the Oregon State Police, a county sheriff's department { - , - }
{ + or + } a municipal police department { - or, if the
witness whose attendance at trial is required is an authorized
tribal police officer as defined in section 1 of this 2011 Act, a
tribal government as defined in section 1 of this 2011 Act - } .
(3) Under the following circumstances, service of a subpoena to
a witness by mail has the same legal force and effect as personal
service:
(a) The attorney mailing the subpoena certifies in connection
with or upon the return of service that the attorney, or the
attorney's agent, has had personal or telephone contact with the
witness and the witness indicated a willingness to appear at
trial if subpoenaed; or
(b) The subpoena was mailed to the witness more than five days
before trial by certified mail or some other designation of mail
that provides a receipt for the mail signed by the recipient and
the attorney received a return receipt signed by the witness
prior to trial.
(4) Service of subpoena by mail may be used for a subpoena
commanding production of books, papers, documents or other
tangible things that is not accompanied by a command to appear at
trial or hearing or at a deposition under ORS 419B.884.
(5) Proof of service of a subpoena is made in the same manner
as proof of service of a summons except that the server is not
required to certify that the server is not a party in the action
or an attorney for a party in the action.
SECTION 54. ORS 420.905, as amended by section 31 of this 2011
Act, is amended to read:
420.905. As used in ORS 420.905 to 420.915, 'peace officer '
means:
Enrolled Senate Bill 412 (SB 412-C) Page 54
(1) A sheriff, constable or marshal, or the deputy of any such
officer;
(2) A member of the state police; { + or + }
(3) A member of the police force of any city { + . + } { - ;
or - }
{ - (4) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
SECTION 55. ORS 801.395, as amended by section 32 of this 2011
Act, is amended to read:
801.395. 'Police officer' includes a member of the Oregon State
Police, a sheriff, a deputy sheriff, a city police officer,
{ - an authorized tribal police officer as defined in section 1
of this 2011 Act, - } a Port of Portland peace officer or a law
enforcement officer employed by a service district established
under ORS 451.410 to 451.610 for the purpose of law enforcement
services.
SECTION 56. ORS 811.720, as amended by section 34 of this 2011
Act, is amended to read:
811.720. (1) Except as provided in subsection (4) of this
section, any accident occurring on a highway or upon premises
open to the public resulting in injury or death to any person is
subject to the reporting requirements under the following
sections:
(a) The reporting requirements for drivers under ORS 811.725.
(b) The reporting requirements for occupants of vehicles in
accidents under ORS 811.735.
(c) The reporting requirements for owners of vehicles under ORS
811.730.
(2) Except as provided in subsection (4) of this section, an
accident occurring on a highway or upon premises open to the
public resulting in damage to the property of any person in
excess of $1,500 is subject to the following reporting
requirements:
(a) The driver of a vehicle that has more than $1,500 damage
must report the accident in the manner specified under ORS
811.725.
(b) The owner of a vehicle that has more than $1,500 damage
must report the accident in the manner specified in ORS 811.730
and under the circumstances specified in ORS 811.730.
(c) If the property damage is to property other than a vehicle
involved in the accident, each driver involved in the accident
must report the accident in the manner specified under ORS
811.725 and each owner of a vehicle involved in the accident must
report the accident in the manner specified in ORS 811.730 and
under the circumstances specified in ORS 811.730.
(d) If a vehicle involved in the accident is damaged to the
extent that the vehicle must be towed from the scene of the
accident, each driver involved in the accident must report the
accident in the manner specified under ORS 811.725 and each owner
of a vehicle involved in the accident must report the accident in
the manner specified in ORS 811.730 and under the circumstances
specified in ORS 811.730.
(3) The dollar amount specified in subsection (2) of this
section may be increased every five years by the Department of
Transportation based upon any increase in the Portland-Salem
Consumer Price Index for All Urban Consumers for All Items as
prepared by the Bureau of Labor Statistics of the United States
Department of Labor or its successor during the preceding
12-month period. The amount determined under this subsection
shall be rounded to the nearest $100.
Enrolled Senate Bill 412 (SB 412-C) Page 55
(4) The following are exempt from the reporting requirements of
this section:
(a) Operators of snowmobiles, Class I all-terrain vehicles or
Class III all-terrain vehicles.
(b) A law enforcement official acting in the course of official
duty if the accident involved a law enforcement official
performing a lawful intervention technique or a law enforcement
official and a person acting during the commission of a criminal
offense. As used in this paragraph:
(A) 'Law enforcement official' means a person who is
responsible for enforcing the criminal laws of this state or a
political subdivision of this state and who is employed or
volunteers:
(i) As a peace officer commissioned by a city, port, school
district, mass transit district, county or county service
district authorized to provide law enforcement services under ORS
451.010;
(ii) With the Department of State Police or the Criminal
Justice Division of the Department of Justice; { + or + }
(iii) As an investigator of a district attorney's office, if
the investigator is certified as a peace officer in this
state { + . + } { - ; or - }
{ - (iv) As an authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(B) 'Lawful intervention technique' means a method by which one
motor vehicle causes, or attempts to cause, another motor vehicle
to stop.
SECTION 57. ORS 830.005, as amended by section 35 of this 2011
Act, is amended to read:
830.005. As used in this chapter, unless the context requires
otherwise:
(1) 'Board' means the State Marine Board.
(2) 'Boat' means every description of watercraft, including a
seaplane on the water and not in flight, used or capable of being
used as a means of transportation on the water, but does not
include boathouses, floating homes, air mattresses, beach and
water toys or single inner tubes.
(3) 'Boating offense' means violation of any provision of law
that is made a crime or violation under the provisions of this
chapter.
(4) 'In flight' means from the moment a seaplane starts its
takeoff run until the end of a normal power-off landing run.
(5) 'Length' means the length of a boat measured from end to
end over the deck excluding sheer.
(6) 'Motorboat' means any boat propelled in whole or in part by
machinery, including boats temporarily equipped with detachable
motors.
(7) 'Navigable waters of the United States' means those waters
of the United States, including the territorial seas adjacent
thereto, the general character of which is navigable, and that,
either by themselves or by uniting with other waters, form a
continuous waterway on which boats or vessels may navigate or
travel between two or more states, or to and from foreign
nations.
(8) 'Operate' means to navigate or otherwise use a boat.
(9) 'Operator of a boat livery' means any person who is engaged
wholly or in part in the business of chartering or renting boats
to other persons.
Enrolled Senate Bill 412 (SB 412-C) Page 56
(10) 'Passenger' means every person on board a boat who is not
the master, operator, crew member or other person engaged in any
capacity in the business of the boat.
(11) 'Peace officer' includes a member of the Oregon State
Police, a sheriff or deputy sheriff { - , - } { + and + } a
city police officer
{ - and an authorized tribal police officer as defined in
section 1 of this 2011 Act - } .
(12) 'State waters' means those waters entirely within the
confines of this state that have not been declared navigable
waters of the United States.
(13) 'Waters of this state' means all waters within the
territorial limits of this state, the marginal sea adjacent to
this state and the high seas when navigated as part of a journey
or ride to or from the shore of this state.
SECTION 58. { + (1) Sections 1 to 4 of this 2011 Act are
repealed on July 1, 2015.
(2) The amendments to ORS 40.275, 90.440, 133.005, 133.525,
133.721, 133.726e 136.595, 147.425, 153.005, 161.015, 163.730,
165.535, 181.010, 181.610, 181.781, 181.783, 181.796, 348.270,
414.805, 419B.902, 420.905, 801.395, 811.720 and 830.005 by
sections 37 to 57 of this 2011 Act become operative on July 1,
2015.
(3) The repeal of sections 1 to 4 of this 2011 Act by
subsection (1) of this section and the amendments to ORS 40.275,
90.440, 133.005, 133.525, 133.721, 133.726, 136.595, 147.425,
153.005, 161.015, 163.730, 165.535, 181.010, 181.610, 181.781,
181.783, 181.796, 348.270, 414.805, 419B.902, 420.905, 801.395,
811.720 and 830.005 by sections 37 to 57 of this 2011 Act:
(a) Return the law applicable to tribal police officers to the
state in which the law existed on the date immediately before the
effective date of this 2011 Act; and
(b) Do not deprive tribal police officers of any power,
authority or protection provided to tribal police officers by law
on the date immediately before the effective date of this 2011
Act. + }
{ +
MISCELLANEOUS PROVISIONS + }
SECTION 59. { + ORS 133.033, 133.318 and 133.400 are added to
and made a part of ORS 133.005 to 133.381. + }
SECTION 60. { + The unit captions used in this 2011 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 2011 Act. + }
{ +
CONFLICT AMENDMENTS + }
SECTION 61. { + If Senate Bill 405 becomes law, section 4,
chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405)
(amending ORS 90.440), is repealed and ORS 90.440, as amended by
section 11 of this 2011 Act, is amended to read: + }
90.440. (1) As used in this section:
(a) 'Group recovery home' means a place that provides occupants
with shared living facilities and that meets the description of a
group home under 42 U.S.C. 300x-25.
(b) 'Illegal drugs' includes controlled substances or
prescription drugs:
Enrolled Senate Bill 412 (SB 412-C) Page 57
(A) For which the tenant does not have a valid prescription; or
(B) That are used by the tenant in a manner contrary to the
prescribed regimen.
{ - (c) 'Peace officer' means a sheriff, constable, marshal
or deputy, a member of a state or city police force or an
authorized tribal police officer as defined in section 1 of this
2011 Act. - }
{ + (c) 'Peace officer' means:
(A) A sheriff, constable, marshal or deputy;
(B) A member of a state or city police force;
(C) A police officer commissioned by a university under section
1, chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405); or
(D) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(2) Notwithstanding ORS 90.375 and 90.435, a group recovery
home may terminate a tenancy and peaceably remove a tenant
without complying with ORS 105.105 to 105.168 if the tenant has
used or possessed alcohol or illegal drugs within the preceding
seven days. For purposes of this subsection, the following are
sufficient proof that a tenant has used or possessed alcohol or
illegal drugs:
(a) The tenant fails a test for alcohol or illegal drug use;
(b) The tenant refuses a request made in good faith by the
group recovery home that the tenant take a test for alcohol or
illegal drug use; or
(c) Any person has personally observed the tenant using or
possessing alcohol or illegal drugs.
(3) A group recovery home that undertakes the removal of a
tenant under this section shall personally deliver to the tenant
a written notice that:
(a) Describes why the tenant is being removed;
(b) Describes the proof that the tenant has used or possessed
alcohol or illegal drugs within the seven days preceding delivery
of the notice;
(c) Specifies the date and time by which the tenant must move
out of the group recovery home;
(d) Explains that if the removal was wrongful or in bad faith
the tenant may seek injunctive relief to recover possession under
ORS 105.121 and may bring an action to recover monetary damages;
and
(e) Gives contact information for the local legal services
office and for the Oregon State Bar's Lawyer Referral Service,
identifying those services as possible sources for free or
reduced-cost legal services.
(4) A written notice in substantially the following form meets
the requirements of subsection (3) of this section:
_________________________________________________________________
This notice is to inform you that you must move out
of _____ (insert address of group recovery home) by _____ (insert
date and time that is not less than 24 hours after delivery of
notice).
The reason for this notice is _____ (specify use or possession
of alcohol or illegal drugs, as applicable, and dates of
occurrence).
The proof of your use or possession is _____ (specify facts).
If you did not use or possess alcohol or illegal drugs within
the seven days before delivery of this notice, if this notice was
given in bad faith or if your group recovery home has not
substantially complied with ORS 90.440, you may be able to get a
Enrolled Senate Bill 412 (SB 412-C) Page 58
court to order the group recovery home to let you move back in.
You may also be able to recover monetary damages.
You may be eligible for free legal services at your local legal
services office _____ (insert telephone number) or reduced fee
legal services through the Oregon State Bar at 1-800-452-7636.
_________________________________________________________________
(5) Within the notice period, a group recovery home shall allow
a tenant removed under this section to follow any emergency
departure plan that was prepared by the tenant and approved by
the group recovery home at the time the tenancy began. If the
removed tenant does not have an emergency departure plan, a
representative of the group recovery home shall offer to take the
removed tenant to a public shelter, detoxification center or
similar location if existing in the community.
(6) The date and time for moving out specified in a notice
under subsection (3) of this section must be at least 24 hours
after the date and time the notice is delivered to the tenant. If
the tenant remains on the group recovery home premises after the
date and time for moving out specified in the notice, the tenant
is a person remaining unlawfully in a dwelling as described in
ORS 164.255 and not a person described in ORS 105.115. Only a
peace officer may forcibly remove a tenant who remains on the
group recovery home premises after the date and time specified
for moving out.
(7) A group recovery home that removes a tenant under this
section shall send a copy of the notice described in subsection
(3) of this section to the Oregon Health Authority no later than
72 hours after delivering the notice to the tenant.
(8) A tenant who is removed under subsection (2) of this
section may obtain injunctive relief to recover possession and
may recover an amount equal to the greater of actual damages or
three times the tenant's monthly rent if:
(a) The group recovery home removed the tenant in bad faith or
without substantially complying with this section; or
(b) If removal is under subsection (2)(c) of this section, the
removal was wrongful because the tenant did not use or possess
alcohol or illegal drugs.
(9) Notwithstanding ORS 12.125, a tenant who seeks to obtain
injunctive relief to recover possession under ORS 105.121 must
commence the action to seek relief not more than 90 days after
the date specified in the notice for the tenant to move out.
(10) In any court action regarding the removal of a tenant
under this section, a group recovery home may present evidence
that the tenant used or possessed alcohol or illegal drugs within
seven days preceding the removal, whether or not the evidence was
described in the notice required by subsection (3) of this
section.
(11) This section does not prevent a group recovery home from
terminating a tenancy as provided by any other provision of this
chapter and evicting a tenant as provided in ORS 105.105 to
105.168.
SECTION 62. { + If Senate Bill 405 becomes law, section 14,
chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405)
(amending ORS 133.721), is repealed and ORS 133.721, as amended
by section 17 of this 2011 Act, is amended to read: + }
133.721. As used in ORS 41.910 and 133.721 to 133.739, unless
the context requires otherwise:
(1) 'Aggrieved person' means a person who was a party to any
wire, electronic or oral communication intercepted under ORS
Enrolled Senate Bill 412 (SB 412-C) Page 59
133.724 or 133.726 or a person against whom the interception was
directed and who alleges that the interception was unlawful.
(2) 'Contents,' when used with respect to any wire, electronic
or oral communication, includes any information concerning the
identity of the parties to such communication or the existence,
substance, purport or meaning of that communication.
(3) 'Electronic communication' means any transfer of signs,
signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part by a radio,
electromagnetic, photoelectronic or photo-optical system, or
transmitted in part by wire, but does not include:
(a) Any oral communication or any communication that is
completely by wire; or
(b) Any communication made through a tone-only paging device.
(4) 'Electronic, mechanical or other device' means any device
or apparatus that can be used to intercept a wire, electronic or
oral communication other than:
(a) Any telephone or telegraph instrument, equipment or
facility, or any component thereof that is furnished to the
subscriber or user by a telecommunications carrier in the
ordinary course of its business and that is being used by the
subscriber or user in the ordinary course of its business or
being used by a telecommunications carrier in the ordinary course
of its business, or by an investigative or law enforcement
officer in the ordinary course of official duties; or
(b) A hearing aid or similar device being used to correct
subnormal hearing to not better than normal.
(5) 'Intercept' means the acquisition, by listening or
recording, of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical or
other device.
{ - (6) 'Investigative or law enforcement officer' means: - }
{ - (a) An officer or other person employed to investigate or
enforce criminal laws by: - }
{ - (A) A county sheriff or municipal police department; - }
{ - (B) The Oregon State Police, the Department of
Corrections, the Attorney General or a district attorney; or - }
{ - (C) Law enforcement agencies of other states or the
federal government; or - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
{ + (6) 'Investigative or law enforcement officer' means:
(a) An officer or other person employed to investigate or
enforce the law by:
(A) A county sheriff or municipal police department, or a
police department established by a university under section 1,
chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405);
(B) The Oregon State Police, the Department of Corrections, the
Attorney General or a district attorney; or
(C) Law enforcement agencies of other states or the federal
government; or
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(7) 'Oral communication' means:
(a) Any oral communication, other than a wire or electronic
communication, uttered by a person exhibiting an expectation that
such communication is not subject to interception under
circumstances justifying such expectation; or
Enrolled Senate Bill 412 (SB 412-C) Page 60
(b) An utterance by a person who is participating in a wire or
electronic communication, if the utterance is audible to another
person who, at the time the wire or electronic communication
occurs, is in the immediate presence of the person participating
in the communication.
(8) 'Telecommunications carrier' means:
(a) A telecommunications utility as defined in ORS 759.005; or
(b) A cooperative corporation organized under ORS chapter 62
that provides telecommunications services.
(9) 'Telecommunications service' has the meaning given that
term in ORS 759.005.
(10) 'Wire communication' means any communication made in whole
or in part through the use of facilities for the transmission of
communications by the aid of wire, cable or other like connection
between the point of origin and the point of reception, whether
furnished or operated by a public utility or privately owned or
leased.
SECTION 63. { + If Senate Bill 405 becomes law, section 15,
chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405)
(amending ORS 133.726), is repealed and ORS 133.726, as amended
by section 18 of this 2011 Act, is amended to read: + }
133.726. (1) Notwithstanding ORS 133.724, under the
circumstances described in this section, a law enforcement
officer is authorized to intercept an oral communication to which
the officer or a person under the direct supervision of the
officer is a party, without obtaining an order for the
interception of a wire, electronic or oral communication under
ORS 133.724.
(2) For purposes of this section and ORS 133.736, a person is a
party to an oral communication if the oral communication is made
in the person's immediate presence and is audible to the person
regardless of whether the communication is specifically directed
to the person.
(3) An ex parte order for intercepting an oral communication in
any county of this state under this section may be issued by any
judge as defined in ORS 133.525 upon written application made
upon oath or affirmation of the district attorney or a deputy
district attorney authorized by the district attorney for the
county in which the order is sought or upon the oath or
affirmation of any peace officer as defined in ORS 133.005. The
application shall include:
(a) The name of the applicant and the applicant's authority to
make the application;
(b) A statement demonstrating that:
(A) There is probable cause to believe that a person whose oral
communication is to be intercepted is engaged in committing, has
committed or is about to commit a particular felony, or a
misdemeanor under ORS 167.007, and that intercepting the oral
communication will yield evidence thereof; or
(B)(i) There is reasonable suspicion to believe that a person
whose oral communication is to be intercepted is engaged in
committing, has committed or is about to commit a crime;
(ii) There is reasonable suspicion to believe that the
circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical
injury or sexual assault to a law enforcement officer or a person
under the direct supervision of the officer;
(iii) Interception of the oral communication is necessary to
protect the safety of the person who may be endangered; and
Enrolled Senate Bill 412 (SB 412-C) Page 61
(iv) Other investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
are likely to be too dangerous; and
(c) The identity of the person, if known, suspected of
committing the crime and whose oral communication is to be
intercepted.
(4) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
(5) Upon examination of the application and evidence, the judge
may enter an ex parte order, as requested or as modified,
authorizing or approving the interception of an oral
communication within the state if the judge determines on the
basis of the facts submitted by the applicant that:
(a)(A) There is probable cause to believe that a person is
engaged in committing, has committed or is about to commit a
particular felony, or a misdemeanor under ORS 167.007; and
(B) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime; or
(b)(A) There is reasonable suspicion to believe that a person
whose oral communication is to be intercepted is engaged in
committing, has committed or is about to commit a crime;
(B) There is reasonable suspicion to believe that the
circumstances in which the oral communication is to be
intercepted present a substantial risk of death, serious physical
injury or sexual assault to a law enforcement officer or a person
under the direct supervision of the officer;
(C) Interception of the oral communication is necessary to
protect the safety of the person who may be endangered; and
(D) Other investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
are likely to be too dangerous.
(6) An order authorizing or approving the interception of an
oral communication under this section must specify:
(a) The identity of the person, if known, whose oral
communication is to be intercepted;
(b) A statement identifying the particular crime to which the
oral communication is expected to relate;
(c) The agency authorized under the order to intercept the oral
communication;
(d) The name and office of the applicant and the signature and
title of the issuing judge;
(e) A period of time after which the order shall expire; and
(f) A statement that the order authorizes only the interception
of an oral communication to which a law enforcement officer or a
person under the direct supervision of a law enforcement officer
is a party.
(7) An order under ORS 133.724 or this section is not required
when a law enforcement officer intercepts an oral communication
to which the officer or a person under the direct supervision of
the officer is a party if the oral communication is made by a
person whom the officer has probable cause to believe has
committed, is engaged in committing or is about to commit:
(a) A crime punishable as a felony under ORS 475.840, 475.846
to 475.894 or 475.904 to 475.910 or as a misdemeanor under ORS
167.007; or
(b) Any other crime punishable as a felony if the circumstances
at the time the oral communication is intercepted are of such
exigency that it would be unreasonable to obtain a court order
under ORS 133.724 or this section.
Enrolled Senate Bill 412 (SB 412-C) Page 62
(8) A law enforcement officer who intercepts an oral
communication pursuant to this section may not intentionally fail
to record and preserve the oral communication in its entirety. A
law enforcement officer, or a person under the direct supervision
of the officer, who is authorized under this section to intercept
an oral communication is not required to exclude from the
interception an oral communication made by a person for whom
probable cause does not exist if the officer or the person under
the officer's direct supervision is a party to the oral
communication.
(9) A law enforcement officer may not divulge the contents of
an oral communication intercepted under this section before a
preliminary hearing or trial in which an oral communication is
going to be introduced as evidence against a person except:
(a) To a superior officer or other official with whom the law
enforcement officer is cooperating in the enforcement of the
criminal laws of this state or the United States;
(b) To a magistrate;
(c) In a presentation to a federal or state grand jury; or
(d) In compliance with a court order.
(10) A law enforcement officer may intercept an oral
communication under this section only when acting within the
scope of the officer's employment and as a part of assigned
duties.
{ - (11) As used in this section, 'law enforcement officer '
means: - }
{ - (a) An officer employed to enforce criminal laws by: - }
{ - (A) The United States, this state or a municipal
government within this state; or - }
{ - (B) A political subdivision, agency, department or bureau
of the governments described in subparagraph (A) of this
paragraph; or - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
{ + (11) As used in this section, 'law enforcement officer '
means:
(a) An officer employed to enforce criminal laws by:
(A) The United States, this state or a municipal government
within this state;
(B) A political subdivision, agency, department or bureau of
the governments described in subparagraph (A) of this paragraph;
or
(C) A police department established by a university under
section 1, chapter 506, Oregon Laws 2011 (Enrolled Senate Bill
405); or
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(12) Violation of subsection (9) of this section is a Class A
misdemeanor.
SECTION 64. { + If Senate Bill 405 becomes law, section 16,
chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405)
(amending ORS 133.726), is repealed and ORS 133.726, as amended
by section 3, chapter 442, Oregon Laws 2007, and section 19 of
this 2011 Act, is amended to read: + }
133.726. (1) Notwithstanding ORS 133.724, under the
circumstances described in this section, a law enforcement
officer is authorized to intercept an oral communication to which
the officer or a person under the direct supervision of the
officer is a party, without obtaining an order for the
Enrolled Senate Bill 412 (SB 412-C) Page 63
interception of a wire, electronic or oral communication under
ORS 133.724.
(2) For purposes of this section and ORS 133.736, a person is a
party to an oral communication if the oral communication is made
in the person's immediate presence and is audible to the person
regardless of whether the communication is specifically directed
to the person.
(3) An ex parte order for intercepting an oral communication in
any county of this state under this section may be issued by any
judge as defined in ORS 133.525 upon written application made
upon oath or affirmation of the district attorney or a deputy
district attorney authorized by the district attorney for the
county in which the order is sought or upon the oath or
affirmation of any peace officer as defined in ORS 133.005. The
application shall include:
(a) The name of the applicant and the applicant's authority to
make the application;
(b) A statement demonstrating that there is probable cause to
believe that a person whose oral communication is to be
intercepted is engaged in committing, has committed or is about
to commit a particular felony, or a misdemeanor under ORS
167.007, and that intercepting the oral communication will yield
evidence thereof; and
(c) The identity of the person, if known, suspected of
committing the crime and whose oral communication is to be
intercepted.
(4) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
(5) Upon examination of the application and evidence, the judge
may enter an ex parte order, as requested or as modified,
authorizing or approving the interception of an oral
communication within the state if the judge determines on the
basis of the facts submitted by the applicant that:
(a) There is probable cause to believe that a person is engaged
in committing, has committed or is about to commit a particular
felony, or a misdemeanor under ORS 167.007; and
(b) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime.
(6) An order authorizing or approving the interception of an
oral communication under this section must specify:
(a) The identity of the person, if known, whose oral
communication is to be intercepted;
(b) A statement identifying the particular crime to which the
oral communication is expected to relate;
(c) The agency authorized under the order to intercept the oral
communication;
(d) The name and office of the applicant and the signature and
title of the issuing judge;
(e) A period of time after which the order shall expire; and
(f) A statement that the order authorizes only the interception
of an oral communication to which a law enforcement officer or a
person under the direct supervision of a law enforcement officer
is a party.
(7) An order under ORS 133.724 or this section is not required
when a law enforcement officer intercepts an oral communication
to which the officer or a person under the direct supervision of
the officer is a party if the oral communication is made by a
person whom the officer has probable cause to believe has
committed, is engaged in committing or is about to commit:
Enrolled Senate Bill 412 (SB 412-C) Page 64
(a) A crime punishable as a felony under ORS 475.840, 475.846
to 475.894 or 475.906 or as a misdemeanor under ORS 167.007; or
(b) Any other crime punishable as a felony if the circumstances
at the time the oral communication is intercepted are of such
exigency that it would be unreasonable to obtain a court order
under ORS 133.724 or this section.
(8) A law enforcement officer who intercepts an oral
communication pursuant to this section may not intentionally fail
to record and preserve the oral communication in its entirety. A
law enforcement officer, or a person under the direct supervision
of the officer, who is authorized under this section to intercept
an oral communication is not required to exclude from the
interception an oral communication made by a person for whom
probable cause does not exist if the officer or the person under
the officer's direct supervision is a party to the oral
communication.
(9) A law enforcement officer may not divulge the contents of
an oral communication intercepted under this section before a
preliminary hearing or trial in which an oral communication is
going to be introduced as evidence against a person except:
(a) To a superior officer or other official with whom the law
enforcement officer is cooperating in the enforcement of the
criminal laws of this state or the United States;
(b) To a magistrate;
(c) In a presentation to a federal or state grand jury; or
(d) In compliance with a court order.
(10) A law enforcement officer may intercept an oral
communication under this section only when acting within the
scope of the officer's employment and as a part of assigned
duties.
{ - (11) As used in this section, 'law enforcement officer '
means: - }
{ - (a) An officer employed to enforce criminal laws by: - }
{ - (A) The United States, this state or a municipal
government within this state; or - }
{ - (B) A political subdivision, agency, department or bureau
of the governments described in subparagraph (A) of this
paragraph; or - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
{ + (11) As used in this section, 'law enforcement officer '
means:
(a) An officer employed to enforce criminal laws by:
(A) The United States, this state or a municipal government
within this state;
(B) A political subdivision, agency, department or bureau of
the governments described in subparagraph (A) of this paragraph;
or
(C) A police department established by a university under
section 1, chapter 506, Oregon Laws 2011 (Enrolled Senate Bill
405); or
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(12) Violation of subsection (9) of this section is a Class A
misdemeanor.
SECTION 65. { + If Senate Bill 405 becomes law, section 17,
chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405)
(amending ORS 136.595), is repealed and ORS 136.595, as amended
by section 20 of this 2011 Act, is amended to read: + }
Enrolled Senate Bill 412 (SB 412-C) Page 65
136.595. (1) Except as provided in ORS 136.447 and 136.583 and
subsection (2) of this section, a subpoena is served by
delivering a copy to the witness personally. If the witness is
under 14 years of age, the subpoena may be served by delivering a
copy to the witness or to the witness's parent, guardian or
guardian ad litem. Proof of the service is made in the same
manner as in the service of a summons.
(2)(a) Every law enforcement agency shall designate an
individual or individuals upon whom service of subpoena may be
made. At least one of the designated individuals shall be
available during normal business hours. In the absence of the
designated individuals, service of subpoena pursuant to paragraph
(b) of this subsection may be made upon the officer in charge of
the law enforcement agency.
(b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
on such officer by delivering a copy personally to the officer or
to one of the individuals designated by the agency that employs
the officer. A subpoena may be served by delivery to one of the
individuals designated by the agency that employs the officer
only if the subpoena is delivered at least 10 days before the
date the officer's attendance is required, the officer is
currently employed as a peace officer by the agency, and the
officer is present within the state at the time of service.
(c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to actually notify the officer whose attendance
is sought of the date, time and location of the court appearance.
If the officer cannot be notified, the law enforcement agency
shall contact the court and a continuance may be granted to allow
the officer to be personally served.
{ - (d) As used in this subsection, 'law enforcement agency '
means the Oregon State Police, a county sheriff's department, a
municipal police department or, if the witness whose attendance
at trial is required is an authorized tribal police officer as
defined in section 1 of this 2011 Act, a tribal government as
defined in section 1 of this 2011 Act. - }
{ + (d) As used in this subsection, 'law enforcement agency '
means the Oregon State Police, a county sheriff's department, a
municipal police department, a police department established by a
university under section 1, chapter 506, Oregon Laws 2011
(Enrolled Senate Bill 405), or, if the witness whose attendance
at trial is required is an authorized tribal police officer as
defined in section 1 of this 2011 Act, a tribal government as
defined in section 1 of this 2011 Act. + }
(3) When a subpoena has been served as provided in ORS 136.583
or subsection (1) or (2) of this section and, subsequent to
service, the date on, or the time at, which the person subpoenaed
is to appear has changed, a new subpoena is not required to be
served if:
(a) The subpoena is continued orally in open court in the
presence of the person subpoenaed; or
(b) The party who issued the original subpoena notifies the
person subpoenaed of the change by first class mail and by:
(A) Certified or registered mail, return receipt requested; or
(B) Express mail.
SECTION 66. { + If Senate Bill 405 becomes law, section 23,
chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405)
(amending ORS 163.730), is repealed and ORS 163.730, as amended
by section 24 of this 2011 Act, is amended to read: + }
Enrolled Senate Bill 412 (SB 412-C) Page 66
163.730. As used in ORS 30.866 and 163.730 to 163.750, unless
the context requires otherwise:
(1) 'Alarm' means to cause apprehension or fear resulting from
the perception of danger.
(2) 'Coerce' means to restrain, compel or dominate by force or
threat.
(3) 'Contact' includes but is not limited to:
(a) Coming into the visual or physical presence of the other
person;
(b) Following the other person;
(c) Waiting outside the home, property, place of work or school
of the other person or of a member of that person's family or
household;
(d) Sending or making written or electronic communications in
any form to the other person;
(e) Speaking with the other person by any means;
(f) Communicating with the other person through a third person;
(g) Committing a crime against the other person;
(h) Communicating with a third person who has some relationship
to the other person with the intent of affecting the third
person's relationship with the other person;
(i) Communicating with business entities with the intent of
affecting some right or interest of the other person;
(j) Damaging the other person's home, property, place of work
or school;
(k) Delivering directly or through a third person any object to
the home, property, place of work or school of the other person;
or
(L) Service of process or other legal documents unless the
other person is served as provided in ORCP 7 or 9.
(4) 'Household member' means any person residing in the same
residence as the victim.
(5) 'Immediate family' means father, mother, child, sibling,
spouse, grandparent, stepparent and stepchild.
{ - (6) 'Law enforcement officer' means: - }
{ - (a) A person employed in this state as a police officer
by a county sheriff, constable or marshal or a municipal or state
police agency; or - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
{ + (6) 'Law enforcement officer' means:
(a) A person employed in this state as a police officer by:
(A) A county sheriff, constable or marshal;
(B) A police department established by a university under
section 1, chapter 506, Oregon Laws 2011 (Enrolled Senate Bill
405); or
(C) A municipal or state police agency; or
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(7) 'Repeated' means two or more times.
(8) 'School' means a public or private institution of learning
or a child care facility.
SECTION 67. { + If Senate Bill 405 becomes law, section 24,
chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405)
(amending ORS 165.535), is repealed and ORS 165.535, as amended
by section 25 of this 2011 Act, is amended to read: + }
165.535. As used in ORS 41.910, 133.723, 133.724, 165.540 and
165.545:
Enrolled Senate Bill 412 (SB 412-C) Page 67
(1) 'Conversation' means the transmission between two or more
persons of an oral communication which is not a telecommunication
or a radio communication.
{ - (2) 'Person' has the meaning given that term in ORS
174.100 and includes: - }
{ - (a) Public officials and law enforcement officers of the
state and of a county, municipal corporation or any other
political subdivision of the state; and - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
{ + (2) 'Person' has the meaning given that term in ORS
174.100 and includes:
(a) Public officials and law enforcement officers of:
(A) The state and of a county, municipal corporation or any
other political subdivision of the state; and
(B) A police department established by a university under
section 1, chapter 506, Oregon Laws 2011 (Enrolled Senate Bill
405); and
(b) An authorized tribal police officer as defined in section 1
of this 2011 Act. + }
(3) 'Radio communication' means the transmission by radio or
other wireless methods of writing, signs, signals, pictures and
sounds of all kinds, including all instrumentalities, facilities,
equipment and services (including, among other things, the
receipt, forwarding and delivering of communications) incidental
to such transmission.
(4) 'Telecommunication' means the transmission of writing,
signs, signals, pictures and sounds of all kinds by aid of wire,
cable or other similar connection between the points of origin
and reception of such transmission, including all
instrumentalities, facilities, equipment and services (including,
among other things, the receipt, forwarding and delivering of
communications) incidental to such transmission.
SECTION 68. { + If Senate Bill 405 becomes law, section 39,
chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405)
(amending ORS 419B.902), is repealed and ORS 419B.902, as amended
by section 30 of this 2011 Act, is amended to read: + }
419B.902. (1) A subpoena may be served by the party or any
other person 18 years of age or older. Except as provided in
subsections (2), (3) and (4) of this section, the service must be
made by delivering a copy to the witness personally. The service
must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the
subpoena is not accompanied by a command to appear at trial,
hearing or deposition under ORS 419B.884, whether the subpoena is
served personally or by mail, copies of a subpoena commanding
production and inspection of books, papers, documents or other
tangible things before trial must be served on each party at
least seven days before the subpoena is served on the person
required to produce and permit inspection, unless the court
orders a shorter period.
(2)(a) A law enforcement agency shall designate an individual
upon whom service of a subpoena may be made. A designated
individual must be available during normal business hours. In the
absence of a designated individual, service of a subpoena under
paragraph (b) of this subsection may be made upon the officer in
charge of the law enforcement agency.
(b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
on the officer by delivering a copy personally to the officer or
Enrolled Senate Bill 412 (SB 412-C) Page 68
to an individual designated by the agency that employs the
officer no later than 10 days prior to the date attendance is
sought. A subpoena may be served in this manner only if the
officer is currently employed as a peace officer and is present
within the state at the time of service.
(c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to give actual notice to the officer whose
attendance is sought of the date, time and location of the court
appearance. If the officer cannot be notified, the law
enforcement agency shall promptly notify the court and a
postponement or continuance may be granted to allow the officer
to be personally served.
{ - (d) As used in this subsection, 'law enforcement agency '
means the Oregon State Police, a county sheriff's department, a
municipal police department or, if the witness whose attendance
at trial is required is an authorized tribal police officer as
defined in section 1 of this 2011 Act, a tribal government as
defined in section 1 of this 2011 Act. - }
{ + (d) As used in this subsection, 'law enforcement agency '
means the Oregon State Police, a county sheriff's department, a
municipal police department, a police department established by a
university under section 1, chapter 506, Oregon Laws 2011
(Enrolled Senate Bill 405), or, if the witness whose attendance
at trial is required is an authorized tribal police officer as
defined in section 1 of this 2011 Act, a tribal government as
defined in section 1 of this 2011 Act. + }
(3) Under the following circumstances, service of a subpoena to
a witness by mail has the same legal force and effect as personal
service:
(a) The attorney mailing the subpoena certifies in connection
with or upon the return of service that the attorney, or the
attorney's agent, has had personal or telephone contact with the
witness and the witness indicated a willingness to appear at
trial if subpoenaed; or
(b) The subpoena was mailed to the witness more than five days
before trial by certified mail or some other designation of mail
that provides a receipt for the mail signed by the recipient and
the attorney received a return receipt signed by the witness
prior to trial.
(4) Service of subpoena by mail may be used for a subpoena
commanding production of books, papers, documents or other
tangible things that is not accompanied by a command to appear at
trial or hearing or at a deposition under ORS 419B.884.
(5) Proof of service of a subpoena is made in the same manner
as proof of service of a summons except that the server is not
required to certify that the server is not a party in the action
or an attorney for a party in the action.
SECTION 69. { + If Senate Bill 405 becomes law, section 38 of
this 2011 Act (amending ORS 90.440) is repealed and ORS 90.440,
as amended by sections 11 and 61 of this 2011 Act, is amended to
read: + }
90.440. (1) As used in this section:
(a) 'Group recovery home' means a place that provides occupants
with shared living facilities and that meets the description of a
group home under 42 U.S.C. 300x-25.
(b) 'Illegal drugs' includes controlled substances or
prescription drugs:
(A) For which the tenant does not have a valid prescription; or
Enrolled Senate Bill 412 (SB 412-C) Page 69
(B) That are used by the tenant in a manner contrary to the
prescribed regimen.
(c) 'Peace officer' means:
(A) A sheriff, constable, marshal or deputy;
(B) A member of a state or city police force; { + or + }
(C) A police officer commissioned by a university under section
1, chapter 506, Oregon Laws 2011 (Enrolled Senate Bill 405)
{ - ; or - }
{ - (D) An authorized tribal police officer as defined in
section 1 of this 2011 Act - } .
(2) Notwithstanding ORS 90.375 and 90.435, a group recovery
home may terminate a tenancy and peaceably remove a tenant
without complying with ORS 105.105 to 105.168 if the tenant has
used or possessed alcohol or illegal drugs within the preceding
seven days. For purposes of this subsection, the following are
sufficient proof that a tenant has used or possessed alcohol or
illegal drugs:
(a) The tenant fails a test for alcohol or illegal drug use;
(b) The tenant refuses a request made in good faith by the
group recovery home that the tenant take a test for alcohol or
illegal drug use; or
(c) Any person has personally observed the tenant using or
possessing alcohol or illegal drugs.
(3) A group recovery home that undertakes the removal of a
tenant under this section shall personally deliver to the tenant
a written notice that:
(a) Describes why the tenant is being removed;
(b) Describes the proof that the tenant has used or possessed
alcohol or illegal drugs within the seven days preceding delivery
of the notice;
(c) Specifies the date and time by which the tenant must move
out of the group recovery home;
(d) Explains that if the removal was wrongful or in bad faith
the tenant may seek injunctive relief to recover possession under
ORS 105.121 and may bring an action to recover monetary damages;
and
(e) Gives contact information for the local legal services
office and for the Oregon State Bar's Lawyer Referral Service,
identifying those services as possible sources for free or
reduced-cost legal services.
(4) A written notice in substantially the following form meets
the requirements of subsection (3) of this section:
_________________________________________________________________
This notice is to inform you that you must move out
of _____ (insert address of group recovery home) by _____ (insert
date and time that is not less than 24 hours after delivery of
notice).
The reason for this notice is _____ (specify use or possession
of alcohol or illegal drugs, as applicable, and dates of
occurrence).
The proof of your use or possession is _____ (specify facts).
If you did not use or possess alcohol or illegal drugs within
the seven days before delivery of this notice, if this notice was
given in bad faith or if your group recovery home has not
substantially complied with ORS 90.440, you may be able to get a
court to order the group recovery home to let you move back in.
You may also be able to recover monetary damages.
Enrolled Senate Bill 412 (SB 412-C) Page 70
You may be eligible for free legal services at your local legal
services office _____ (insert telephone number) or reduced fee
legal services through the Oregon State Bar at 1-800-452-7636.
_________________________________________________________________
(5) Within the notice period, a group recovery home shall allow
a tenant removed under this section to follow any emergency
departure plan that was prepared by the tenant and approved by
the group recovery home at the time the tenancy began. If the
removed tenant does not have an emergency departure plan, a
representative of the group recovery home shall offer to take the
removed tenant to a public shelter, detoxification center or
similar location if existing in the community.
(6) The date and time for moving out specified in a notice
under subsection (3) of this section must be at least 24 hours
after the date and time the notice is delivered to the tenant. If
the tenant remains on the group recovery home premises after the
date and time for moving out specified in the notice, the tenant
is a person remaining unlawfully in a dwelling as described in
ORS 164.255 and not a person described in ORS 105.115. Only a
peace officer may forcibly remove a tenant who remains on the
group recovery home premises after the date and time specified
for moving out.
(7) A group recovery home that removes a tenant under this
section shall send a copy of the notice described in subsection
(3) of this section to the Oregon Health Authority no later than
72 hours after delivering the notice to the tenant.
(8) A tenant who is removed under subsection (2) of this
section may obtain injunctive relief to recover possession and
may recover an amount equal to the greater of actual damages or
three times the tenant's monthly rent if:
(a) The group recovery home removed the tenant in bad faith or
without substantially complying with this section; or
(b) If removal is under subsection (2)(c) of this section, the
removal was wrongful because the tenant did not use or possess
alcohol or illegal drugs.
(9) Notwithstanding ORS 12.125, a tenant who seeks to obtain
injunctive relief to recover possession under ORS 105.121 must
commence the action to seek relief not more than 90 days after
the date specified in the notice for the tenant to move out.
(10) In any court action regarding the removal of a tenant
under this section, a group recovery home may present evidence
that the tenant used or possessed alcohol or illegal drugs within
seven days preceding the removal, whether or not the evidence was
described in the notice required by subsection (3) of this
section.
(11) This section does not prevent a group recovery home from
terminating a tenancy as provided by any other provision of this
chapter and evicting a tenant as provided in ORS 105.105 to
105.168.
SECTION 70. { + If Senate Bill 405 becomes law, section 41 of
this 2011 Act (amending ORS 133.721) is repealed and ORS 133.721,
as amended by sections 17 and 62 of this 2011 Act, is amended to
read: + }
133.721. As used in ORS 41.910 and 133.721 to 133.739, unless
the context requires otherwise:
(1) 'Aggrieved person' means a person who was a party to any
wire, electronic or oral communication intercepted under ORS
133.724 or 133.726 or a person against whom the interception was
directed and who alleges that the interception was unlawful.
Enrolled Senate Bill 412 (SB 412-C) Page 71
(2) 'Contents,' when used with respect to any wire, electronic
or oral communication, includes any information concerning the
identity of the parties to such communication or the existence,
substance, purport or meaning of that communication.
(3) 'Electronic communication' means any transfer of signs,
signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part by a radio,
electromagnetic, photoelectronic or photo-optical system, or
transmitted in part by wire, but does not include:
(a) Any oral communication or any communication that is
completely by wire; or
(b) Any communication made through a tone-only paging device.
(4) 'Electronic, mechanical or other device' means any device
or apparatus that can be used to intercept a wire, electronic or
oral communication other than:
(a) Any telephone or telegraph instrument, equipment or
facility, or any component thereof that is furnished to the
subscriber or user by a telecommunications carrier in the
ordinary course of its business and that is being used by the
subscriber or user in the ordinary course of its business or
being used by a telecommunications carrier in the ordinary course
of its business, or by an investigative or law enforcement
officer in the ordinary course of official duties; or
(b) A hearing aid or similar device being used to correct
subnormal hearing to not better than normal.
(5) 'Intercept' means the acquisition, by listening or
recording, of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical or
other device.
(6) 'Investigative or law enforcement officer' means { - : - }
{ - (a) - } an officer or other person employed to
investigate or enforce the law by:
{ - (A) - } { + (a) + } A county sheriff or municipal
police department, or a police department established by a
university under section 1, chapter 506, Oregon Laws 2011
(Enrolled Senate Bill 405);
{ - (B) - } { + (b) + } The Oregon State Police, the
Department of Corrections, the Attorney General or a district
attorney; or
{ - (C) - } { + (c) + } Law enforcement agencies of other
states or the federal government { + . + } { - ; or - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(7) 'Oral communication' means:
(a) Any oral communication, other than a wire or electronic
communication, uttered by a person exhibiting an expectation that
such communication is not subject to interception under
circumstances justifying such expectation; or
(b) An utterance by a person who is participating in a wire or
electronic communication, if the utterance is audible to another
person who, at the time the wire or electronic communication
occurs, is in the immediate presence of the person participating
in the communication.
(8) 'Telecommunications carrier' means:
(a) A telecommunications utility as defined in ORS 759.005; or
(b) A cooperative corporation organized under ORS chapter 62
that provides telecommunications services.
(9) 'Telecommunications service' has the meaning given that
term in ORS 759.005.
Enrolled Senate Bill 412 (SB 412-C) Page 72
(10) 'Wire communication' means any communication made in whole
or in part through the use of facilities for the transmission of
communications by the aid of wire, cable or other like connection
between the point of origin and the point of reception, whether
furnished or operated by a public utility or privately owned or
leased.
SECTION 71. { + If Senate Bill 405 becomes law, section 42 of
this 2011 Act (amending ORS 133.726) is repealed and ORS 133.726,
as amended by section 3, chapter 442, Oregon Laws 2007, and
sections 19 and 64 of this 2011 Act, is amended to read: + }
133.726. (1) Notwithstanding ORS 133.724, under the
circumstances described in this section, a law enforcement
officer is authorized to intercept an oral communication to which
the officer or a person under the direct supervision of the
officer is a party, without obtaining an order for the
interception of a wire, electronic or oral communication under
ORS 133.724.
(2) For purposes of this section and ORS 133.736, a person is a
party to an oral communication if the oral communication is made
in the person's immediate presence and is audible to the person
regardless of whether the communication is specifically directed
to the person.
(3) An ex parte order for intercepting an oral communication in
any county of this state under this section may be issued by any
judge as defined in ORS 133.525 upon written application made
upon oath or affirmation of the district attorney or a deputy
district attorney authorized by the district attorney for the
county in which the order is sought or upon the oath or
affirmation of any peace officer as defined in ORS 133.005. The
application shall include:
(a) The name of the applicant and the applicant's authority to
make the application;
(b) A statement demonstrating that there is probable cause to
believe that a person whose oral communication is to be
intercepted is engaged in committing, has committed or is about
to commit a particular felony, or a misdemeanor under ORS
167.007, and that intercepting the oral communication will yield
evidence thereof; and
(c) The identity of the person, if known, suspected of
committing the crime and whose oral communication is to be
intercepted.
(4) The judge may require the applicant to furnish further
testimony or documentary evidence in support of the application.
(5) Upon examination of the application and evidence, the judge
may enter an ex parte order, as requested or as modified,
authorizing or approving the interception of an oral
communication within the state if the judge determines on the
basis of the facts submitted by the applicant that:
(a) There is probable cause to believe that a person is engaged
in committing, has committed or is about to commit a particular
felony, or a misdemeanor under ORS 167.007; and
(b) There is probable cause to believe that the oral
communication to be obtained will contain evidence concerning
that crime.
(6) An order authorizing or approving the interception of an
oral communication under this section must specify:
(a) The identity of the person, if known, whose oral
communication is to be intercepted;
(b) A statement identifying the particular crime to which the
oral communication is expected to relate;
Enrolled Senate Bill 412 (SB 412-C) Page 73
(c) The agency authorized under the order to intercept the oral
communication;
(d) The name and office of the applicant and the signature and
title of the issuing judge;
(e) A period of time after which the order shall expire; and
(f) A statement that the order authorizes only the interception
of an oral communication to which a law enforcement officer or a
person under the direct supervision of a law enforcement officer
is a party.
(7) An order under ORS 133.724 or this section is not required
when a law enforcement officer intercepts an oral communication
to which the officer or a person under the direct supervision of
the officer is a party if the oral communication is made by a
person whom the officer has probable cause to believe has
committed, is engaged in committing or is about to commit:
(a) A crime punishable as a felony under ORS 475.840, 475.846
to 475.894 or 475.906 or as a misdemeanor under ORS 167.007; or
(b) Any other crime punishable as a felony if the circumstances
at the time the oral communication is intercepted are of such
exigency that it would be unreasonable to obtain a court order
under ORS 133.724 or this section.
(8) A law enforcement officer who intercepts an oral
communication pursuant to this section may not intentionally fail
to record and preserve the oral communication in its entirety. A
law enforcement officer, or a person under the direct supervision
of the officer, who is authorized under this section to intercept
an oral communication is not required to exclude from the
interception an oral communication made by a person for whom
probable cause does not exist if the officer or the person under
the officer's direct supervision is a party to the oral
communication.
(9) A law enforcement officer may not divulge the contents of
an oral communication intercepted under this section before a
preliminary hearing or trial in which an oral communication is
going to be introduced as evidence against a person except:
(a) To a superior officer or other official with whom the law
enforcement officer is cooperating in the enforcement of the
criminal laws of this state or the United States;
(b) To a magistrate;
(c) In a presentation to a federal or state grand jury; or
(d) In compliance with a court order.
(10) A law enforcement officer may intercept an oral
communication under this section only when acting within the
scope of the officer's employment and as a part of assigned
duties.
(11) As used in this section, 'law enforcement officer ' means
{ - : - }
{ - (a) - } an officer employed to enforce criminal laws by:
{ - (A) - } { + (a) + } The United States, this state or a
municipal government within this state;
{ - (B) - } { + (b) + } A political subdivision, agency,
department or bureau of the governments described in
{ - subparagraph (A) of this paragraph - } { + paragraph (a)
of this subsection + }; or
{ - (C) - } { + (c) + } A police department established by
a university under section 1, chapter 506, Oregon Laws 2011
(Enrolled Senate Bill 405) { + . + } { - ; or - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
Enrolled Senate Bill 412 (SB 412-C) Page 74
(12) Violation of subsection (9) of this section is a Class A
misdemeanor.
SECTION 72. { + If Senate Bill 405 becomes law, section 43 of
this 2011 Act (amending ORS 136.595) is repealed and ORS 136.595,
as amended by sections 20 and 65 of this 2011 Act, is amended to
read: + }
136.595. (1) Except as provided in ORS 136.447 and 136.583 and
subsection (2) of this section, a subpoena is served by
delivering a copy to the witness personally. If the witness is
under 14 years of age, the subpoena may be served by delivering a
copy to the witness or to the witness's parent, guardian or
guardian ad litem. Proof of the service is made in the same
manner as in the service of a summons.
(2)(a) Every law enforcement agency shall designate an
individual or individuals upon whom service of subpoena may be
made. At least one of the designated individuals shall be
available during normal business hours. In the absence of the
designated individuals, service of subpoena pursuant to paragraph
(b) of this subsection may be made upon the officer in charge of
the law enforcement agency.
(b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
on such officer by delivering a copy personally to the officer or
to one of the individuals designated by the agency that employs
the officer. A subpoena may be served by delivery to one of the
individuals designated by the agency that employs the officer
only if the subpoena is delivered at least 10 days before the
date the officer's attendance is required, the officer is
currently employed as a peace officer by the agency, and the
officer is present within the state at the time of service.
(c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to actually notify the officer whose attendance
is sought of the date, time and location of the court appearance.
If the officer cannot be notified, the law enforcement agency
shall contact the court and a continuance may be granted to allow
the officer to be personally served.
(d) As used in this subsection, 'law enforcement agency ' means
the Oregon State Police, a county sheriff's department, a
municipal police department { - , - } { + or + } a police
department established by a university under section 1, chapter
506, Oregon Laws 2011 (Enrolled Senate Bill 405) { - , or, if
the witness whose attendance at trial is required is an
authorized tribal police officer as defined in section 1 of this
2011 Act, a tribal government as defined in section 1 of this
2011 Act - } .
(3) When a subpoena has been served as provided in ORS 136.583
or subsection (1) or (2) of this section and, subsequent to
service, the date on, or the time at, which the person subpoenaed
is to appear has changed, a new subpoena is not required to be
served if:
(a) The subpoena is continued orally in open court in the
presence of the person subpoenaed; or
(b) The party who issued the original subpoena notifies the
person subpoenaed of the change by first class mail and by:
(A) Certified or registered mail, return receipt requested; or
(B) Express mail.
SECTION 73. { + If Senate Bill 405 becomes law, section 47 of
this 2011 Act (amending ORS 163.730) is repealed and ORS 163.730,
Enrolled Senate Bill 412 (SB 412-C) Page 75
as amended by sections 24 and 66 of this 2011 Act, is amended to
read: + }
163.730. As used in ORS 30.866 and 163.730 to 163.750, unless
the context requires otherwise:
(1) 'Alarm' means to cause apprehension or fear resulting from
the perception of danger.
(2) 'Coerce' means to restrain, compel or dominate by force or
threat.
(3) 'Contact' includes but is not limited to:
(a) Coming into the visual or physical presence of the other
person;
(b) Following the other person;
(c) Waiting outside the home, property, place of work or school
of the other person or of a member of that person's family or
household;
(d) Sending or making written or electronic communications in
any form to the other person;
(e) Speaking with the other person by any means;
(f) Communicating with the other person through a third person;
(g) Committing a crime against the other person;
(h) Communicating with a third person who has some relationship
to the other person with the intent of affecting the third
person's relationship with the other person;
(i) Communicating with business entities with the intent of
affecting some right or interest of the other person;
(j) Damaging the other person's home, property, place of work
or school;
(k) Delivering directly or through a third person any object to
the home, property, place of work or school of the other person;
or
(L) Service of process or other legal documents unless the
other person is served as provided in ORCP 7 or 9.
(4) 'Household member' means any person residing in the same
residence as the victim.
(5) 'Immediate family' means father, mother, child, sibling,
spouse, grandparent, stepparent and stepchild.
(6) 'Law enforcement officer' means { - : - }
{ - (a) - } a person employed in this state as a police
officer by:
{ - (A) - } { + (a) + } A county sheriff, constable or
marshal;
{ - (B) - } { + (b) + } A police department established by
a university under section 1, chapter 506, Oregon Laws 2011
(Enrolled Senate Bill 405); or
{ - (C) - } { + (c) + } A municipal or state police
agency { + . + } { - ; or - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(7) 'Repeated' means two or more times.
(8) 'School' means a public or private institution of learning
or a child care facility.
SECTION 74. { + If Senate Bill 405 becomes law, section 48 of
this 2011 Act (amending ORS 165.535) is repealed and ORS 165.535,
as amended by sections 25 and 67 of this 2011 Act, is amended to
read: + }
165.535. As used in ORS 41.910, 133.723, 133.724, 165.540 and
165.545:
(1) 'Conversation' means the transmission between two or more
persons of an oral communication which is not a telecommunication
or a radio communication.
Enrolled Senate Bill 412 (SB 412-C) Page 76
(2) 'Person' has the meaning given that term in ORS 174.100 and
includes { - : - }
{ - (a) - } public officials and law enforcement officers
of:
{ - (A) - } { + (a) + } The state and of a county,
municipal corporation or any other political subdivision of the
state; and
{ - (B) - } { + (b) + } A police department established by
a university under section 1, chapter 506, Oregon Laws 2011
(Enrolled Senate Bill 405) { + . + } { - ; and - }
{ - (b) An authorized tribal police officer as defined in
section 1 of this 2011 Act. - }
(3) 'Radio communication' means the transmission by radio or
other wireless methods of writing, signs, signals, pictures and
sounds of all kinds, including all instrumentalities, facilities,
equipment and services (including, among other things, the
receipt, forwarding and delivering of communications) incidental
to such transmission.
(4) 'Telecommunication' means the transmission of writing,
signs, signals, pictures and sounds of all kinds by aid of wire,
cable or other similar connection between the points of origin
and reception of such transmission, including all
instrumentalities, facilities, equipment and services (including,
among other things, the receipt, forwarding and delivering of
communications) incidental to such transmission.
SECTION 75. { + If Senate Bill 405 becomes law, section 53 of
this 2011 Act (amending ORS 419B.902) is repealed and ORS
419B.902, as amended by sections 30 and 68 of this 2011 Act, is
amended to read: + }
419B.902. (1) A subpoena may be served by the party or any
other person 18 years of age or older. Except as provided in
subsections (2), (3) and (4) of this section, the service must be
made by delivering a copy to the witness personally. The service
must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the
subpoena is not accompanied by a command to appear at trial,
hearing or deposition under ORS 419B.884, whether the subpoena is
served personally or by mail, copies of a subpoena commanding
production and inspection of books, papers, documents or other
tangible things before trial must be served on each party at
least seven days before the subpoena is served on the person
required to produce and permit inspection, unless the court
orders a shorter period.
(2)(a) A law enforcement agency shall designate an individual
upon whom service of a subpoena may be made. A designated
individual must be available during normal business hours. In the
absence of a designated individual, service of a subpoena under
paragraph (b) of this subsection may be made upon the officer in
charge of the law enforcement agency.
(b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
on the officer by delivering a copy personally to the officer or
to an individual designated by the agency that employs the
officer no later than 10 days prior to the date attendance is
sought. A subpoena may be served in this manner only if the
officer is currently employed as a peace officer and is present
within the state at the time of service.
(c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to give actual notice to the officer whose
Enrolled Senate Bill 412 (SB 412-C) Page 77
attendance is sought of the date, time and location of the court
appearance. If the officer cannot be notified, the law
enforcement agency shall promptly notify the court and a
postponement or continuance may be granted to allow the officer
to be personally served.
(d) As used in this subsection, 'law enforcement agency ' means
the Oregon State Police, a county sheriff's department, a
municipal police department { - , - } { + or + } a police
department established by a university under section 1, chapter
506, Oregon Laws 2011 (Enrolled Senate Bill 405) { - , or, if
the witness whose attendance at trial is required is an
authorized tribal police officer as defined in section 1 of this
2011 Act, a tribal government as defined in section 1 of this
2011 Act - } .
(3) Under the following circumstances, service of a subpoena to
a witness by mail has the same legal force and effect as personal
service:
(a) The attorney mailing the subpoena certifies in connection
with or upon the return of service that the attorney, or the
attorney's agent, has had personal or telephone contact with the
witness and the witness indicated a willingness to appear at
trial if subpoenaed; or
(b) The subpoena was mailed to the witness more than five days
before trial by certified mail or some other designation of mail
that provides a receipt for the mail signed by the recipient and
the attorney received a return receipt signed by the witness
prior to trial.
(4) Service of subpoena by mail may be used for a subpoena
commanding production of books, papers, documents or other
tangible things that is not accompanied by a command to appear at
trial or hearing or at a deposition under ORS 419B.884.
(5) Proof of service of a subpoena is made in the same manner
as proof of service of a summons except that the server is not
required to certify that the server is not a party in the action
or an attorney for a party in the action.
SECTION 76. { + If Senate Bill 405 becomes law, the amendments
to ORS 90.440, 133.721, 133.726, 136.595, 163.730, 165.535 and
419B.902 by sections 61 to 68 of this 2011 Act become operative
on January 1, 2012. + }
SECTION 77. If Senate Bill 405 becomes law, section 58 of this
2011 Act is amended to read:
{ + Sec. 58. + } (1) Sections 1 to 4 of this 2011 Act are
repealed on July 1, 2015.
(2) The amendments to ORS 40.275, 90.440, 133.005, 133.525,
133.721, 133.726, 136.595, 147.425, 153.005, 161.015, 163.730,
165.535, 181.010, 181.610, 181.781, 181.783, 181.796, 348.270,
414.805, 419B.902, 420.905, 801.395, 811.720 and 830.005 by
sections 37 to 57 { + and 69 to 75 + } of this 2011 Act become
operative on July 1, 2015.
(3) The repeal of sections 1 to 4 of this 2011 Act by
subsection (1) of this section and the amendments to ORS 40.275,
90.440, 133.005, 133.525, 133.721, 133.726, 136.595, 147.425,
153.005, 161.015, 163.730, 165.535, 181.010, 181.610, 181.781,
181.783, 181.796, 348.270, 414.805, 419B.902, 420.905, 801.395,
811.720 and 830.005 by sections 37 to 57 { + and 69 to 75 + } of
this 2011 Act:
(a) Return the law applicable to tribal police officers to the
state in which the law existed on the date immediately before the
effective date of this 2011 Act; and
Enrolled Senate Bill 412 (SB 412-C) Page 78
(b) Do not deprive tribal police officers of any power,
authority or protection provided to tribal police officers by law
on the date immediately before the effective date of this 2011
Act.
{ +
EMERGENCY CLAUSE + }
SECTION 78. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
----------
Passed by Senate June 6, 2011
Repassed by Senate June 29, 2011
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House June 29, 2011
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 412 (SB 412-C) Page 79
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 412 (SB 412-C) Page 80
