Bill Text: OR SB420 | 2011 | Regular Session | Enrolled
Bill Title: Relating to mentally ill defendants; appropriating money; and declaring an emergency.
Spectrum: Unknown
Status: (Passed) 2011-08-03 - Effective date, August 2, 2011. [SB420 Detail]
Download: Oregon-2011-SB420-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
Senate Bill 420
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 mentally ill defendants; creating new provisions;
amending ORS 21.010, 137.750, 151.216, 161.325, 161.326,
161.327, 161.328, 161.329, 161.332, 161.336, 161.341, 161.346,
161.351, 161.375, 161.385, 161.387, 161.390, 161.395, 161.400,
162.135, 162.155, 181.740, 183.315, 183.635, 192.690, 278.315,
430.695, 809.419 and 810.375; appropriating money; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
AGENCY HEARINGS AND JURISDICTION + }
SECTION 1. ORS 161.346 is amended to read:
161.346. (1) { + When + } the Psychiatric Security Review
Board
{ - shall conduct hearings upon any application for discharge,
conditional release, commitment or modification filed pursuant to
ORS 161.336, 161.341 or 161.351 and as otherwise required by ORS
161.336 to 161.351 and - } { + or the Oregon Health Authority
conducts a hearing under ORS 161.315 to 161.351, the agency
conducting the hearing + }shall { + enter an order and + } make
findings { - on the issues before it which may include: - }
{ + in support of the order. If the agency finds that a person
under the jurisdiction of the agency: + }
(a) { - If the board finds that the person - } Is no longer
affected by mental disease or defect, or, if so affected, no
longer presents a substantial danger to others, the
{ - board - } { + agency + } shall order the person discharged
from commitment { - or from - } { + and + } conditional
release.
(b) { - If the board finds that the person - } Is still
affected by a mental disease or defect and is a substantial
danger to others, but can be controlled adequately if
conditionally released with treatment as a condition of release,
the { - board - } { + agency + } shall order the person
conditionally released as provided in ORS 161.336.
(c) { - If the board finds that the person - } Has not
recovered from the mental disease or defect { - and - }
Enrolled Senate Bill 420 (SB 420-B) Page 1
{ + , + } is a substantial danger to others and cannot
adequately be controlled if conditionally released on
supervision, the { - board - } { + agency + } shall order the
person committed to, or retained in, a state hospital
{ - designated by the Oregon Health Authority if the person is
at least 18 years of age - } , or { + if the person is under 18
years of age, + } a secure intensive community inpatient facility
{ - designated by the authority if the person is under 18 years
of age - } , for care, custody and treatment.
{ + (2)(a) Except as otherwise provided in section 15 of this
2011 Act, the Psychiatric Security Review Board shall exercise
exclusive jurisdiction over a tier one offender until the board
discharges the person from the jurisdiction of the board or the
maximum period of jurisdiction expires.
(b) When the board orders a tier two offender committed to a
state hospital, or a secure intensive community inpatient
facility, under ORS 161.315 to 161.351, the order shall transfer
jurisdiction over the person to the Oregon Health Authority.
(c) When the authority orders a tier two offender conditionally
released under ORS 161.315 to 161.351, the order shall transfer
jurisdiction over the person to the board.
(d) The authority shall assume jurisdiction over a tier two
offender when the person is returned to a state hospital, or to a
secure intensive community inpatient facility, under ORS 161.336
(4). + }
{ - (2) - } { + (3) To assist the agency in making the
determination described in subsection (1) of this section, the
agency exercising jurisdiction over the person may, + } at any
time, { - the board may - } appoint a psychiatrist or licensed
psychologist to examine the person and to submit a report to the
{ - board. Reports filed with the board pursuant to the
examination shall include, but need not be limited to, - }
{ + agency. The report must include + } an opinion as to the
mental condition of the person { - and - } { + , + } whether
the person presents a substantial danger to others { - , - }
and whether the person could be adequately controlled with
treatment as a condition of release. { - To facilitate the
examination of the person, the board may order the person placed
in the temporary custody of any state hospital or other suitable
facility. - }
{ - (3) - } { + (4) + } The { - board - } { + agency
exercising jurisdiction over the person + } may make the
determination regarding discharge or conditional release based
upon the written reports submitted pursuant to this section.
If { + the authority or + }any member of the board desires
further information from the examining psychiatrist or licensed
psychologist who submitted the report, { - these persons shall
be summoned by the board - } { + the agency shall summon the
person + } to give testimony. The { - board - }
{ + agency + } shall consider all evidence available to it
{ - which - } { + that + } is material, relevant and reliable
regarding the issues before the { - board. Such - } { +
agency. The + } evidence may include but is not limited to the
record of trial, the information supplied by the attorney
representing the state or by any other interested party,
including the person, and information concerning the person's
mental condition and the entire psychiatric and criminal history
of the person. All evidence of a type commonly relied upon by
reasonably prudent persons in the conduct of their serious
affairs shall be admissible at hearings. Testimony shall be
Enrolled Senate Bill 420 (SB 420-B) Page 2
taken upon oath or affirmation of the witness from whom received.
The officer presiding at the hearing shall administer oaths or
affirmations to witnesses.
{ - (4) - } { + (5) + } The { - board - } { + agency
exercising jurisdiction over the person + }shall furnish to the
person about whom the hearing is being conducted, the attorney
representing the person, the Attorney General, the district
attorney and the court or department of the county from which the
person was committed written notice of any hearing pending under
this section within a reasonable time prior to the hearing. The
notice shall include:
(a) The time, place and location of the hearing.
(b) The nature of the hearing and the specific action for which
a hearing has been requested, the issues to be considered at the
hearing and a reference to the particular sections of the
statutes and rules involved.
(c) A statement of the { + legal + } authority and
jurisdiction under which the hearing is to be held.
(d) A statement of all rights under subsection { - (6) - }
{ + (7) + } of this section.
{ - (5) - } { + (6) + } Prior to the commencement of
{ - a - } { + the + } hearing, the
{ - board or presiding officer - } { + agency + }shall serve
personally or by mail a written notice to each party as provided
in ORS 183.413 (2).
{ - (6) - } { + (7) + } At the hearing, the person about
whom the hearing is being held shall have the right:
(a) To appear at all proceedings held pursuant to this section,
except { - board - } { + for + } deliberations.
(b) To cross-examine all witnesses appearing to testify at the
hearing.
(c) To subpoena witnesses and documents as provided in ORS
161.395.
(d) To be represented by suitable legal counsel possessing
skills and experience commensurate with the nature and complexity
of the case, to consult with counsel prior to the hearing and, if
financially eligible, to have suitable counsel appointed at state
expense.
(e) To examine all information, documents and reports
{ - which - } { + that + } the { - board - } { + agency
+ }considers. If then available to the
{ - board - } { + agency + }, the information, documents and
reports shall be disclosed to the person so as to allow
examination prior to the hearing.
{ - (7) - } { + (8) + } A record shall be kept of all
hearings { - before the board, except board - } { + conducted
under ORS 161.315 to 161.351, except for + } deliberations.
{ - (8) - } { + (9) + } Upon request of any party
{ - before the board - } , or on
{ - its own motion, the board may continue a hearing - } { +
motion of the agency conducting the hearing, the hearing may be
continued + } for a reasonable period not to exceed 60 days to
obtain additional information or testimony or for other good
cause shown.
{ - (9) - } { + (10) + } Within 15 days following the
conclusion of the hearing, the { - board - } { + agency + }
shall provide to the person, the attorney representing the
person, the Attorney General or other attorney representing the
state, if any, written notice of the
{ - board's decision - } { + order entered by the agency + }.
Enrolled Senate Bill 420 (SB 420-B) Page 3
{ - (10) - } { + (11) + } The burden of proof on all issues
at hearings { - of the board - } { + under ORS 161.315 to
161.351 + } shall be by a preponderance of the evidence.
{ - (11) - } { + (12) + } If the { - board - }
{ + agency conducting the hearing + } determines that the person
about whom the hearing is being held is financially eligible, the
{ - board - } { + agency + } shall appoint suitable counsel to
represent the person. Counsel so appointed shall be an attorney
who satisfies the professional qualifications established by the
Public Defense Services Commission under ORS 151.216. The public
defense services executive director shall determine and allow
fair compensation for counsel appointed under this subsection and
the reasonable expenses of the person in respect to the hearing.
Compensation payable to appointed counsel shall not be less than
the applicable compensation level established under ORS 151.216.
The compensation and expenses so allowed shall be paid by the
public defense services executive director from funds available
for the purpose.
{ - (12) - } { + (13) + } The Attorney General may
represent the state at contested hearings { - before the
board - } { + under ORS 161.315 to 161.351 + } unless the
district attorney of the county from which the person was
committed elects to represent the state. The district attorney of
the county from which the person was committed shall cooperate
with the Attorney General in securing the material necessary for
presenting a contested hearing { - before the board - } . If
the district attorney elects to represent the state, the district
attorney shall give timely written notice of such election to the
Attorney General, the { - board - } { + agency conducting the
hearing + } and the attorney representing the person.
SECTION 2. ORS 161.336 is amended to read:
161.336. (1) { + (a) + } { - If the Psychiatric Security
Review Board determines that the person presents a substantial
danger to others but can be adequately controlled with
supervision and treatment if conditionally released and that
necessary supervision and treatment are available, the board may
order the person conditionally released, - } { + When a person
is conditionally released under ORS 161.315 to 161.351, the
person is + }subject to those supervisory orders of the
{ + Psychiatric Security Review + } Board as are in the best
interests of justice, the protection of society and the welfare
of the person.
{ + (b) + } { - The board - } { + An order of conditional
release entered by the board or the Oregon Health Authority
+ }may designate any person or state, county or local agency
{ - the board considers - } capable of supervising the person
upon release, subject to { - those conditions as the board
directs in the order for conditional release - } { + the
conditions described in the order of conditional release + }.
{ + (c) + } Prior to the designation, the { - board - }
{ + + } { + agency conducting the hearing + } shall notify
the person or { + state, county or local + } agency to whom
conditional release is contemplated and provide the person or
{ + state, county or local + }agency an opportunity to be heard
{ - before the board - } .
{ + (d) + } After receiving an order entered under this
section, the person or { + state, county or local + } agency
designated { + in the order + } shall assume supervision of the
person { - pursuant to the direction of the - } { + in
Enrolled Senate Bill 420 (SB 420-B) Page 4
accordance with the conditions described in the order and any
modifications of the conditions ordered by the + } board.
(2) Conditions of release contained in orders entered under
this section may be modified from time to time and conditional
releases may be terminated { - by order of the board - } as
provided in ORS 161.351.
{ - (3) For purposes of this section, a person affected by a
mental disease or defect in a state of remission is considered to
have a mental disease or defect requiring supervision when the
disease may, with reasonable medical probability, occasionally
become active and, when active, render the person a danger to
others. The person may be continued on conditional release by the
board as provided in this section. - }
{ - (4)(a) - } { + (3)(a) + } As a condition of release,
{ - the board may require - } the person { + may be
required + } to report to any state or local mental health
facility for evaluation. Whenever medical, psychiatric or
psychological treatment is recommended, the { - board may - }
order { + may require + }the person, as a condition of release,
to cooperate with and accept the treatment from the facility.
(b) The facility to which the person has been referred for
evaluation shall perform the evaluation and submit a written
report of its findings to the board. If the facility finds that
treatment of the person is appropriate, it shall include its
recommendations for treatment in the report to the board.
(c) Whenever treatment is provided by the facility, it shall
furnish reports to the board on a regular basis concerning the
progress of the person.
(d) Copies of all reports submitted to the board pursuant to
this section shall be furnished to the person and the person's
counsel. The confidentiality of these reports is determined
pursuant to ORS 192.501 to 192.505.
(e) The facility shall comply with { + the conditional release
order and any modifications of the conditions ordered by + }
{ - any other conditions of release prescribed by order of - }
the board.
{ - (5) - } { + (4)(a) + } If at any time while the person
is under the jurisdiction of the board it appears to the board or
its chairperson that the person has violated the terms of the
conditional release or that the mental health of the individual
has changed, the board or its chairperson may order the person
returned for evaluation or treatment to a state hospital
{ - designated by the Oregon Health Authority if the person is
at least 18 years of age, - } or { + , if the person is under 18
years of age, + } to a secure intensive community inpatient
facility
{ - designated by the authority if the person is under 18 years
of age - } . A written order of the board, or its chairperson on
behalf of the board, is sufficient warrant for any law
enforcement officer to take into custody such person and
transport the person accordingly. A sheriff, municipal police
officer, constable, parole and probation officer, prison official
or other peace officer shall execute the order, and the person
shall be returned as soon as practicable { + to the state
hospital or secure intensive community inpatient facility
designated in the order. + } { - to the custody of the
authority. Within 20 days following the return of the person to
the custody of the authority, the board shall conduct a hearing.
Notice of the time and place of the hearing shall be given to the
person, the attorney representing the person and the Attorney
Enrolled Senate Bill 420 (SB 420-B) Page 5
General. The board may continue the person on conditional release
or, if it finds by a preponderance of the evidence that the
person is affected by mental disease or defect and presents a
substantial danger to others and cannot be adequately controlled
if conditional release is continued, it may order the person
committed to a state hospital designated by the authority if the
person is at least 18 years of age, or to a secure intensive
community inpatient facility designated by the authority if the
person is under 18 years of age. The state must prove by a
preponderance of the evidence the person's unfitness for
conditional release. A person in custody pursuant to this
subsection has the same rights as any person appearing before the
board pursuant to ORS 161.346. - }
{ - (6) - } { + (b) + } The community mental health program
director, the director of the facility providing treatment to a
person on conditional release, any peace officer or any person
responsible for the supervision of a person on conditional
release may take a person on conditional release into custody or
request that the person be taken into custody if there is
reasonable cause to believe the person is a substantial danger to
others because of mental disease or defect and that the person is
in need of immediate care, custody or treatment. Any person taken
into custody pursuant to this subsection shall be transported as
soon as practicable to a state hospital { - designated by the
authority if the person is at least 18 years of age, - }
or { + , if the person is under 18 years of age, + } to a secure
intensive community inpatient facility { - designated by the
authority if the person is under 18 years of age - } . { - A
person taken into custody under this subsection has the same
rights as any person appearing before the board pursuant to ORS
161.346. - }
{ + (c) Within 20 days following the return of the person to
a state hospital or secure intensive community inpatient facility
under this subsection, the agency having jurisdiction over the
person shall conduct a hearing. The agency shall provide notice
of the hearing to the person, the attorney representing the
person and the Attorney General. The state must prove by a
preponderance of the evidence the person's unfitness for
conditional release. The hearing shall be conducted in
accordance with ORS 161.346. + }
{ - (7)(a) - } { + (5)(a) + } Any person conditionally
released under this section may apply to the board for discharge
from or modification of an order of conditional release on the
ground that the person is no longer affected by mental disease or
defect or, if still so affected, no longer presents a substantial
danger to others and no longer requires supervision, medication,
care or treatment. Notice of the hearing on an application for
discharge or modification of an order of conditional release
shall be made to the Attorney General. The applicant, at the
hearing pursuant to this subsection, must prove by a
preponderance of the evidence the applicant's fitness for
discharge or modification of the order of conditional release.
Applications by the person for discharge or modification of
conditional release { - shall - } { + may + } not be filed
more often than once every six months.
(b) Upon application by any person or agency responsible for
supervision or treatment pursuant to an order of conditional
release, the board shall conduct a hearing to determine if the
conditions of release shall be continued, modified or terminated.
Enrolled Senate Bill 420 (SB 420-B) Page 6
The application shall be accompanied by a report setting forth
the facts supporting the application.
{ + (6) A person who has spent five years on conditional
release shall be brought before the board for hearing within 30
days before the expiration of the five-year period. The board
shall review the person's status and determine whether the person
should be discharged from the jurisdiction of the board. + }
{ - (8) The total period of commitment and conditional
release ordered pursuant to this section may not exceed the
maximum sentence provided by statute for the crime for which the
person was found guilty except for insanity. - }
{ - (9) The board shall maintain and keep current the
medical, social and criminal history of all persons committed to
its jurisdiction. The confidentiality of records maintained by
the board shall be determined pursuant to ORS 192.501 to
192.505. - }
{ - (10) In determining whether a person should be committed
to a state hospital or to a secure intensive community inpatient
facility, conditionally released or discharged, the board shall
have as its primary concern the protection of society. - }
SECTION 3. ORS 161.341 is amended to read:
161.341. { - (1) If the Psychiatric Security Review Board
finds, upon its initial hearing, that the person presents a
substantial danger to others and is not a proper subject for
conditional release, the board shall order the person committed
to, or retained in, a state hospital designated by the Oregon
Health Authority if the person is at least 18 years of age, or to
a secure intensive community inpatient facility designated by the
authority if the person is under 18 years of age, for custody,
care and treatment. The period of commitment ordered by the board
may not exceed the maximum sentence provided by statute for the
crime for which the person was found guilty except for
insanity. - }
{ - (2) - } { + (1) + } If at any time after { - the
commitment of a person - } { + a person is committed under ORS
161.315 to 161.351 + } to a state hospital { - , or to - } { +
or + } a secure intensive community inpatient facility,
{ - designated by the authority under this section, - } the
superintendent of the hospital or the director of the secure
intensive community inpatient facility is of the opinion that the
person is no longer affected by mental disease or defect, or, if
so affected, no longer presents a substantial danger to others or
that the person continues to be affected by mental disease or
defect and continues to be a danger to others, but that the
person can be controlled with proper care, medication,
supervision and treatment if conditionally released, the
superintendent or director shall apply to the { - board - }
{ + agency having jurisdiction over the person + } for an order
of discharge or conditional release. The application shall be
accompanied by a report setting forth the facts supporting the
opinion of the superintendent or director. If the application is
for conditional release, the application must
{ - also - } be accompanied by a verified conditional release
plan. The
{ - board - } { + agency + } shall hold a hearing on the
application within 60 days of its receipt. Not less than 20 days
prior to the hearing before the { - board - } { + agency + },
copies of the report shall be sent to the Attorney General.
{ - (3) - } { + (2) + } The attorney representing the state
may choose a psychiatrist or licensed psychologist to examine the
Enrolled Senate Bill 420 (SB 420-B) Page 7
person prior to the initial or any later decision by the
{ - board - } { + agency having jurisdiction over the
person + } on discharge or conditional release. The results of
the examination shall be in writing and filed with the
{ - board - } { + agency + }, and shall include, but need not
be limited to, an opinion as to the mental condition of the
person, whether the person presents a substantial danger to
others and whether the person could be adequately controlled with
treatment as a condition of release.
{ - (4) - } { + (3) + } Any person who has been committed
to a state hospital, or to a secure intensive community inpatient
facility,
{ - designated by the authority - } for custody, care and
treatment { + under ORS 161.315 to 161.351, + }or another
person acting on the person's behalf { + , + } may apply to the
{ - board - } { + agency having jurisdiction over the
person + } for an order of discharge or conditional release upon
the grounds:
(a) That the person is no longer affected by mental disease or
defect;
(b) { - If so affected, - } That the person { + , if so
affected, + } no longer presents a substantial danger to others;
or
(c) That the person continues to be affected by a mental
disease or defect and would continue to be a danger to others
without treatment, but that the person can be adequately
controlled and given proper care and treatment if placed on
conditional release.
{ - (5) - } { + (4) + } When application is made under
subsection { - (4) - } { + (3) + } of this section, the
{ - board - } { + agency having jurisdiction over the
person + } shall require that a report from the superintendent of
the hospital or the director of the secure intensive community
inpatient facility be prepared and transmitted as provided in
subsection { - (2) - } { + (1) + } of this section. The
applicant must prove by a preponderance of the evidence the
applicant's fitness for discharge or conditional release under
the standards of subsection
{ - (4) - } { + (3) + } of this section, unless more than two
years has passed since the state had the burden of proof on that
issue, in which case the state shall have the burden of proving
by a preponderance of the evidence the applicant's lack of
fitness for discharge or conditional release. Applications for
discharge or conditional release under subsection { - (4) - }
{ + (3) + } of this section { - shall - } { + may + } not
be filed more often than once every six months commencing with
the date of the initial { - board - } { + agency + } hearing.
{ - (6) - } { + (5) + } The { - board - } { + agency
having jurisdiction over the person + } is not required to hold a
hearing on a first application under subsection { - (4) - }
{ + (3) + } of this section any sooner than 90 days after the
initial hearing. { - However, - } Hearings resulting from any
subsequent requests shall be held within 60 days of the filing of
the application.
{ - (7)(a) In no case shall any person committed by the court
under ORS 161.327 to a state hospital, or to a secure intensive
community inpatient facility, designated by the authority be held
in the hospital or facility for more than 90 days from the date
of the court's commitment order without an initial hearing before
Enrolled Senate Bill 420 (SB 420-B) Page 8
the board to determine whether the person should be conditionally
released or discharged. - }
{ + (6)(a) In no case shall a person committed by the court
under ORS 161.327 to a state hospital, or to a secure intensive
community inpatient facility, be held in the hospital or facility
for more than 90 days from the date of the court's commitment
order without an initial hearing before the agency having
jurisdiction over the person to determine whether the person
should be conditionally released or discharged. + }
(b) In no case shall a person be held pursuant to this section
for a period of time exceeding two years without a hearing before
the { - board - } { + agency + } to determine whether the
person should be conditionally released or discharged.
SECTION 4. ORS 161.351 is amended to read:
161.351. (1) Any person placed under the jurisdiction of the
Psychiatric Security Review Board { - pursuant to ORS 161.336
or 161.341 - } { + or the Oregon Health Authority under ORS
161.315 to 161.351 + } shall be discharged at such time as the
{ - board - } { + agency having jurisdiction over the
person + }, upon a hearing, { - shall find - } { + finds + }
by a preponderance of the evidence that the person is no longer
affected by mental disease or defect or, if so affected, no
longer presents a substantial danger to others { - which - }
{ + that + } requires regular medical care, medication,
supervision or treatment.
(2) For purposes of { - this section - } { + ORS 161.315 to
161.351 + }, a person affected by a mental disease or defect in a
state of remission is considered to have a mental disease or
defect. A person whose mental disease or defect may, with
reasonable medical probability, occasionally become active and
when it becomes active will render the person a danger to others
{ - , shall - } { + may + }not be discharged. The person
shall continue under { - such - } supervision and treatment
{ - as the board deems - } necessary to protect the person and
others.
{ - (3) Any person who has been placed under the jurisdiction
of the board and who has spent five years on conditional release
shall be brought before the board for hearing within 30 days of
the expiration of the five-year period. The board shall review
the person's status and determine whether the person should be
discharged from the jurisdiction of the board. - }
{ + (3) In determining whether a person should be committed
to a state hospital or secure intensive community inpatient
facility, conditionally released or discharged, the board and the
authority shall have as their primary concern the protection of
society. + }
SECTION 5. ORS 161.390 is amended to read:
161.390. (1) The Oregon Health Authority shall
{ - promulgate - } { + adopt + } rules for the assignment of
persons to state mental hospitals or secure intensive community
inpatient facilities under ORS { - 161.341 - } { + 161.315 to
161.351 + }, 161.365 and 161.370 and for establishing standards
for evaluation and treatment of persons committed to a state
hospital or a secure intensive community inpatient facility
{ - , designated by the authority, - } or ordered to a
community mental health program under ORS 161.315 to 161.351.
(2) { - Whenever - } { + When + } the Psychiatric Security
Review Board { + or the authority + } requires the preparation
of a predischarge or preconditional release plan before a hearing
or as a condition of granting discharge or conditional release
Enrolled Senate Bill 420 (SB 420-B) Page 9
for a person committed under ORS { - 161.327 or 161.341 - }
{ + 161.315 to 161.351 + } to a state hospital or a secure
intensive community inpatient facility for custody, care and
treatment, the authority is responsible for and shall prepare the
plan.
(3) In carrying out a conditional release plan prepared under
subsection (2) of this section, the authority may contract with a
community mental health program, other public agency or private
corporation or an individual to provide supervision and treatment
for the conditionally released person.
{ + (4) Before the authority conducts a hearing under ORS
161.315 to 161.351, the authority shall notify the board. The
board may provide the authority with conditions of release that
the board determines are advisable. If the authority orders the
person conditionally released, the authority shall include the
conditions of release in the order.
(5) The board and the authority shall maintain and keep current
the medical, social and criminal history of all persons committed
to their respective jurisdiction. The confidentiality of records
maintained by the board shall be determined pursuant to ORS
192.501 to 192.505.
(6) The evidentiary phase of a hearing conducted by the board
or the authority under ORS 161.315 to 161.351 is not a
deliberation for purposes of ORS 192.690. + }
SECTION 6. ORS 161.326, as amended by section 6, chapter 89,
Oregon Laws 2010, is amended to read:
161.326. { - (1) Whenever a person already under the
jurisdiction of the Psychiatric Security Review Board commits a
new crime, the court or the board shall make the findings
described in ORS 161.325 (2). - }
{ - (2) - } { + (1) + } If the trial court { - or - }
{ + , + } the { + Psychiatric Security Review + }Board { + or
the Oregon Health Authority + } determines that a victim desires
notification as described in ORS 161.325 (2), the
{ - board - } { + agency having jurisdiction over the
person + } shall make a reasonable effort to notify the victim of
{ - board - } hearings and orders, conditional release,
discharge or escape. Nothing in this subsection authorizes the
{ - board - } { + agency + } to disseminate information that
is otherwise privileged by law.
{ - (3) - } { + (2) + } When the { - board - }
{ + agency + } conducts a hearing involving a person found
guilty except for insanity of a crime for which there is a
victim, the { - board - } { + agency + } shall afford the
victim an opportunity to be heard, either orally or in writing,
at the hearing.
{ - (4)(a) - } { + (3)(a) + } If the { - board - } { +
agency + } fails to make a reasonable effort to notify the victim
of a { - board - } hearing under subsection { - (2) - }
{ + (1) + } of this section or fails to afford the victim an
opportunity to be heard at the hearing under subsection
{ - (3) - } { + (2) + } of this section, the victim may request
that the { - board - } { + agency + } reconsider the order of
the { - board - } { + agency + }.
(b) If the { - board - } { + agency + } determines that the
{ - board - } { + agency + } failed to make a reasonable
effort to notify the victim or failed to afford the victim an
opportunity to be heard, except as provided in paragraph (c) of
this subsection, the { - board - } { + agency + } shall grant
the request for reconsideration. Upon reconsideration, the
Enrolled Senate Bill 420 (SB 420-B) Page 10
{ - board - } { + agency + } shall consider the statement of
the victim and may consider any other information that was not
available to the
{ - board - } { + agency + } at the previous hearing.
(c) The { - board - } { + agency + } may not grant a
request for reconsideration that is made:
(A) After the person has been discharged from the jurisdiction
of the board { + and the authority + };
(B) After the board { + or the authority + } has held a
subsequent hearing involving the person; or
(C) If the { - board - } { + agency + } failed to make a
reasonable effort to notify the victim of a hearing, more than 30
days after the victim knew or reasonably should have known of the
hearing.
SECTION 7. ORS 161.375 is amended to read:
161.375. (1) When a patient, who has been placed at { - the
Oregon State Hospital - } { + a state hospital + } for
evaluation, care, custody and treatment under { - the
jurisdiction of the Psychiatric Security Review Board - } { +
ORS 161.315 to 161.351 + } or by court order under ORS 161.315,
161.365 or 161.370, has escaped or is absent without
authorization from { - the Oregon State Hospital - } { + the
hospital + } or from the custody of any person in whose charge
the superintendent has placed the patient, the superintendent may
order the arrest and detention of the patient.
(2) When a patient, who has been placed at a secure intensive
community inpatient facility for evaluation, care, custody and
treatment under { - the jurisdiction of the Psychiatric
Security Review Board - } { + ORS 161.315 to 161.351 + } or by
court order under ORS 161.315, 161.365, 161.370 or 419C.527, has
escaped or is absent without authorization from the facility or
from the custody of any person in whose charge the director of
the facility has placed the patient, the director of the facility
shall notify the Director of the Oregon Health Authority. The
Director of the Oregon Health Authority may order the arrest and
detention of the patient.
(3) The superintendent or the Director of the Oregon Health
Authority may issue an order under this section based upon a
reasonable belief that grounds exist for issuing the order. When
reasonable, the superintendent or the Director of the Oregon
Health Authority shall investigate to ascertain whether such
grounds exist.
(4) Any order issued by the superintendent or the Director of
the Oregon Health Authority as authorized by this section
constitutes full authority for the arrest and detention of the
patient and all laws applicable to warrant or arrest apply to the
order. An order issued by the superintendent or the Director of
the Oregon Health Authority under this section expires 72 hours
after being signed by the superintendent or the Director of the
Oregon Health Authority.
(5) As used in this section, 'superintendent' means the
superintendent of the { - Oregon State Hospital - } { + state
hospital to which the person was committed + } or the
superintendent's authorized representative.
SECTION 8. ORS 161.385 is amended to read:
161.385. (1) There is hereby created a Psychiatric Security
Review Board consisting of 10 members appointed by the Governor
and subject to confirmation by the Senate under section 4,
Article III of the Oregon Constitution.
Enrolled Senate Bill 420 (SB 420-B) Page 11
(2) The membership of the board may not include any district
attorney, deputy district attorney or public defender. The
Governor shall appoint:
(a) A psychiatrist experienced in the criminal justice system
and not otherwise employed on a full-time basis by the Oregon
Health Authority or a community mental health program;
(b) A licensed psychologist experienced in the criminal justice
system and not otherwise employed on a full-time basis by the
authority or a community mental health program;
(c) A member with substantial experience in the processes of
parole and probation;
(d) A lawyer with substantial experience in criminal trial
practice;
(e) A psychiatrist certified, or eligible to be certified, by
the Oregon Medical Board in child psychiatry who is experienced
in the juvenile justice system and not employed on a full-time
basis by the authority or a community mental health program;
(f) A licensed psychologist who is experienced in child
psychology and the juvenile justice system and not employed on a
full-time basis by the authority or a community mental health
program;
(g) A member with substantial experience in the processes of
juvenile parole and probation;
(h) A lawyer with substantial experience in juvenile law
practice; and
(i) Two members of the general public.
(3) The term of office of each member is four years. The
Governor at any time may remove any member for inefficiency,
neglect of duty or malfeasance in office. Before the expiration
of the term of a member, the Governor shall appoint a successor
whose term begins on July 1 next following. A member is eligible
for reappointment. If there is a vacancy for any cause, the
Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) A member of the board not otherwise employed full-time by
the state shall be paid on a per diem basis an amount equal to
$289.22, adjusted according to the executive pay plan for the
biennium, for each day during which the member is engaged in the
performance of official duties, including necessary travel time.
In addition, subject to ORS 292.220 to 292.250 regulating travel
and other expenses of state officers and employees, the member
shall be reimbursed for actual and necessary travel and other
expenses incurred in the performance of official duties.
(5) Subject to any applicable provision of the State Personnel
Relations Law, the board may hire employees to aid it in
performing its duties.
(6) The board consists of two five-member panels. The adult
panel is responsible for persons placed under the board's
jurisdiction under ORS { - 161.327 - } { + 161.315 to
161.351 + } and 419C.544 and consists of those members appointed
under subsection (2)(a) to (d) of this section and one of the
public members. The juvenile panel is responsible for young
persons placed under the board's jurisdiction under ORS 419C.529
and consists of those members appointed under subsection (2)(e)
to (h) of this section and the other public member.
(7)(a) Each panel shall select one of its members as
chairperson to serve for a one-year term with such duties and
powers as the panel determines.
(b) A majority of the voting members of a panel constitutes a
quorum for the transaction of business of the panel.
Enrolled Senate Bill 420 (SB 420-B) Page 12
(8) Each panel shall meet at least twice every month, unless
the chairperson determines that there is not sufficient business
before the panel to warrant a meeting at the scheduled time. The
panel shall also meet at other times and places specified by the
call of the chairperson or of a majority of the members of the
panel.
{ - (9)(a) When a person over whom a panel of the board
exercises its jurisdiction is adversely affected or aggrieved by
a final order of the panel, the person is entitled to judicial
review of the final order. The person is entitled on judicial
review to suitable counsel possessing skills and experience
commensurate with the nature and complexity of the case. If the
person is financially eligible, suitable counsel shall be
appointed by the reviewing court in the manner provided in ORS
138.500 (1). If the person is financially eligible, the public
defense services executive director shall determine and pay, as
provided in ORS 138.500, the cost of briefs, any other expenses
of the person necessary to the review and compensation for
counsel appointed for the person. The costs, expenses and
compensation so allowed shall be paid as provided in ORS
138.500. - }
{ - (b) The order and the proceedings underlying the order
are subject to review by the Court of Appeals upon petition to
that court filed within 60 days of the order for which review is
sought. The panel shall submit to the court the record of the
proceeding or, if the person agrees, a shortened record. The
record may include a certified true copy of a tape recording of
the proceedings at a hearing in accordance with ORS 161.346. A
copy of the record transmitted shall be delivered to the person
by the panel. - }
{ - (c) The court may affirm, reverse or remand the order on
the same basis as provided in ORS 183.482 (8). - }
{ - (d) The filing of the petition does not stay the panel's
order, but the panel or the Court of Appeals may order a stay
upon application on such terms as are deemed proper. - }
SECTION 9. { + (1) When a person over whom the Psychiatric
Security Review Board or the Oregon Health Authority exercises
jurisdiction under ORS 161.315 to 161.351 or 419C.544 is
adversely affected or aggrieved by a final order of the board or
authority, the person is entitled to judicial review of the final
order. The person is entitled on judicial review to suitable
counsel possessing skills and experience commensurate with the
nature and complexity of the case. If the person is financially
eligible, suitable counsel shall be appointed by the reviewing
court in the manner provided in ORS 138.500 (1). If the person is
financially eligible, the public defense services executive
director shall determine and pay, as provided in ORS 138.500, the
cost of briefs, any other expenses of the person necessary to the
review and compensation for counsel appointed for the person. The
costs, expenses and compensation so allowed shall be paid as
provided in ORS 138.500.
(2) The order and the proceedings underlying the order are
subject to review by the Court of Appeals upon petition to that
court filed within 60 days of the order for which review is
sought. The agency that conducted the hearing shall submit to the
court the record of the proceeding or, if the person agrees, a
shortened record. The record may include a certified true copy of
a tape recording of the proceedings at a hearing in accordance
with ORS 161.346. A copy of the record transmitted shall be
delivered to the person by the agency.
Enrolled Senate Bill 420 (SB 420-B) Page 13
(3) The court may affirm, reverse or remand the order on the
same basis as provided in ORS 183.482 (8).
(4) The filing of the petition does not stay the order of the
agency, but the agency or the Court of Appeals may order a stay
upon application on such terms as are deemed proper. + }
SECTION 10. ORS 161.395 is amended to read:
161.395. (1) Upon request of any party to a hearing before the
{ + Psychiatric Security Review + } Board { + or the Oregon
Health Authority under ORS 161.315 to 161.351 + }, the
{ - board or its designated representatives - } { + agency
conducting the hearing + } shall issue, or { - the board - }
on its own motion may issue, subpoenas requiring the attendance
and testimony of witnesses.
(2) Upon request of any party to the hearing before the
{ - board - } { + agency + }and upon a proper showing of the
general relevance and reasonable scope of the documentary or
physical evidence sought, the { - board or its designated
representative - } { + agency + } shall issue, or { - the
board - } on its own motion may issue, subpoenas duces tecum.
(3) Witnesses appearing under subpoenas, other than the parties
or state officers or employees, shall receive fees and mileage as
prescribed by law for witnesses in ORS 44.415 (2). If the
{ - board or its designated representative - } { + agency + }
certifies that the testimony of a witness was relevant and
material, any person who has paid fees and mileage to that
witness shall be reimbursed by the { - board - } { +
agency + }.
(4) If any person fails to comply with a subpoena issued under
subsections (1) or (2) of this section or any party or witness
refuses to testify regarding any matter on which the party or
witness may be lawfully interrogated, the judge of the circuit
court of any county, on the application of the { - board or its
designated representative - } { + agency that issued the
subpoena + }or of the party requesting the issuance of the
subpoena, shall compel obedience by proceedings for contempt as
in the case of disobedience of the requirements of a subpoena
issued by the court.
(5) If any person, agency or facility fails to comply with an
order of the board { + or authority + } issued pursuant to
subsection (2) of this section, the judge of a circuit court of
any county, on application of the { - board or its designated
representative - } { + agency that issued the order + }, shall
compel obedience by proceedings for contempt as in the case of
disobedience of the requirements of an order issued by the court.
Contempt for disobedience of an order of the board { + or
authority + } shall be punishable by a fine of $100.
SECTION 11. ORS 161.400 is amended to read:
161.400. If, at any time after the commitment of a person to a
state hospital or a secure intensive community inpatient facility
under ORS { - 161.341 (1) - } { + 161.315 to 161.351 + }, the
superintendent of the hospital or the director of the facility is
of the opinion that a leave of absence from the hospital or
facility would be therapeutic for the person and that such leave
would pose no substantial danger to others, the superintendent or
director may authorize such leave for up to 48 hours in
accordance with rules adopted by the { - Psychiatric Security
Review Board - } { + agency having jurisdiction over the
person + }. However, the superintendent or director, before
authorizing the leave of absence, shall first notify the
Enrolled Senate Bill 420 (SB 420-B) Page 14
{ - board - } { + agency + } for the purposes of ORS 161.326
{ - (2) - } .
SECTION 11a. ORS 161.332 is amended to read:
161.332. As used in ORS 161.315 to 161.351 and 161.385 to
161.395 { - , - } { + :
(1) + } 'Conditional release' includes, but is not limited to,
the monitoring of mental and physical health treatment.
{ + (2) 'Tier one offender' means a person who has been found
guilty except for insanity of a tier one offense.
(3) 'Tier one offense' means:
(a) Aggravated murder as defined in ORS 163.095;
(b) Attempt or conspiracy to commit aggravated murder as
defined in ORS 163.095;
(c) Murder as defined in ORS 163.115;
(d) Attempt or conspiracy to commit murder as defined in ORS
163.115;
(e) Manslaughter in the first degree as defined in ORS 163.118;
(f) Manslaughter in the second degree as defined in ORS
163.125;
(g) Assault in the first degree as defined in ORS 163.185;
(h) Assault in the second degree as defined in ORS 163.175;
(i) Kidnapping in the first degree as defined in ORS 163.235;
(j) Kidnapping in the second degree as defined in ORS 163.225;
(k) Rape in the first degree as defined ORS 163.375;
(L) Rape in the second degree as defined in ORS 163.365;
(m) Sodomy in the first degree as defined in ORS 163.405;
(n) Sodomy in the second degree as defined in ORS 163.395;
(o) Unlawful sexual penetration in the first degree as defined
ORS 163.411;
(p) Unlawful sexual penetration in the second degree as defined
ORS 163.408;
(q) Sexual abuse in the first degree as defined in ORS 163.427;
(r) Robbery in the first degree as defined in ORS 164.415;
(s) Robbery in the second degree as defined in ORS 164.405;
(t) Arson in the first degree as defined in ORS 164.325;
(u) Using a child in a display of sexually explicit conduct as
defined in ORS 163.670;
(v) Compelling prostitution as defined in ORS 167.017; or
(w) Aggravated vehicular homicide as defined in ORS 163.149.
(4) 'Tier two offender' means a person who has been found
guilty except for insanity only of offenses that are not tier one
offenses. + }
SECTION 11b. ORS 161.387 is amended to read:
161.387. (1) The Psychiatric Security Review Board, by rule
pursuant to ORS 183.325 to 183.410 and not inconsistent with law,
may implement its policies and set out its procedure and practice
requirements and may promulgate such interpretive rules as the
board deems necessary or appropriate to carry out its statutory
responsibilities.
(2) Administrative meetings of the board { - and the
evidentiary phase of board hearings - } are not deliberations
for the purposes of ORS 192.690.
{ +
COURT PROVISIONS + }
SECTION 12. ORS 161.327 is amended to read:
161.327. { - (1)(a) Following the entry of a judgment
pursuant to ORS 161.319 and the dispositional determination under
ORS 161.325, if the court finds that the person would have been
Enrolled Senate Bill 420 (SB 420-B) Page 15
guilty of a felony, or of a misdemeanor during a criminal episode
in the course of which the person caused physical injury or risk
of physical injury to another, the court shall order that a
psychiatric or psychological evaluation be performed and a report
of the evaluation be provided to the court if an evaluation was
not performed or a report was not provided to the court prior to
trial. Upon receipt of the evaluation, the court shall order that
the person be placed under the jurisdiction of the Psychiatric
Security Review Board for care and treatment if the court finds
by a preponderance of the evidence that the person is affected by
mental disease or defect and presents a substantial danger to
others requiring commitment to: - }
{ - (A) A state hospital designated by the Oregon Health
Authority if the person is at least 18 years of age; or - }
{ - (B) A secure intensive community inpatient facility
designated by the authority if the person is under 18 years of
age. - }
{ - (b) The period of jurisdiction of the board is equal to
the maximum sentence provided by statute for the crime for which
the person was found guilty except for insanity. - }
{ - (c) When a court orders a psychiatric or psychological
evaluation of a financially eligible person under this
subsection, the court shall order the public defense services
executive director to pay a reasonable fee for the evaluation
from funds available for the purpose. - }
{ - (2) The court shall determine whether the person should
be committed to a state hospital, or to a secure intensive
community inpatient facility, designated by the authority or
conditionally released pending any hearing before the board as
follows: - }
{ - (a) If the court finds that the person presents a
substantial danger to others and is not a proper subject for
conditional release, the court shall order the person committed
to a state hospital designated by the authority if the person is
at least 18 years of age, or to a secure intensive community
inpatient facility designated by the authority if the person is
under 18 years of age, for custody, care and treatment pending
hearing before the board in accordance with ORS 161.341 to
161.351. - }
{ + (1) When a person is found guilty except for insanity of
a felony, or of a misdemeanor during a criminal episode in the
course of which the person caused physical injury or risk of
physical injury to another, and the court finds that the person
is affected by mental disease or defect and presents a
substantial danger to others, the court shall enter an order as
follows:
(a) If the court finds that the person is not a proper subject
for conditional release, the court shall order the person
committed to a state hospital or, if the person is under 18 years
of age, to a secure intensive community inpatient facility, for
custody, care and treatment. When the court orders a person
committed under this paragraph, the court shall place the person
under the jurisdiction of:
(A) The Psychiatric Security Review Board, if the person is a
tier one offender.
(B) The Oregon Health Authority, if the person is a tier two
offender. + }
(b) If the court finds that the person { - presents a
substantial danger to others but that the person - } can be
adequately controlled with supervision and treatment if
Enrolled Senate Bill 420 (SB 420-B) Page 16
conditionally released and that necessary supervision and
treatment are available, the court { - may - } { + shall + }
order the person conditionally released, subject to those
supervisory orders of the court as are in the best interests of
justice, the protection of society and the welfare of the person.
The court shall designate a person or state, county or local
agency to supervise the person upon release, subject to those
conditions as the court directs in the order for conditional
release. Prior to the designation, the court shall notify the
person or agency to whom conditional release is contemplated and
provide the person or agency an opportunity to be heard before
the court. After receiving an order entered under this paragraph,
the person or agency designated shall assume supervision of the
person pursuant to the direction of the Psychiatric Security
Review Board. The person or agency designated as supervisor shall
be required to report in writing no less than once per month to
the board concerning the supervised person's compliance with the
conditions of release.
{ - (3) For purposes of this section, a person affected by a
mental disease or defect in a state of remission is considered to
have a mental disease or defect requiring supervision when the
disease may, with reasonable medical probability, occasionally
become active and, when active, render the person a danger to
others. - }
{ - (4) - } { + (2) + } In determining whether a person
should be conditionally released, the court may order
evaluations, examinations and compliance as provided in ORS
161.336 { - (4) - } { + (3) + } and 161.346 { - (2) - }
{ + (3) + } { - . - }
{ - (5) In determining whether a person should be committed
to a state hospital or to a secure intensive community inpatient
facility or conditionally released, the court - } { + and + }
shall have as its primary concern the protection of society.
{ - (6) - } { + (3) + } Upon placing a person on
conditional release, the court shall notify the board in writing
of the court's conditional release order, the supervisor
appointed, and all other conditions of release, and the person
shall be on conditional release pending hearing before the board
{ - in accordance with ORS 161.336 to 161.351 - } . Upon
compliance with { - this subsection and subsections (1) and (2)
of - } this section, the court's jurisdiction over the person is
terminated { - and the board assumes jurisdiction over the
person - } .
{ - (7) - } { + (4) + } An order of the court under this
section is a final order appealable by the person found guilty
except for insanity in accordance with ORS 19.205 (5).
Notwithstanding ORS 19.255, notice of an appeal under this
section shall be served and filed within 90 days after the order
appealed from is entered in the register. The person shall be
entitled on appeal to suitable counsel possessing skills and
experience commensurate with the nature and complexity of the
case. If the person is financially eligible, suitable counsel
shall be appointed in the manner provided in ORS 138.500 (1), and
the compensation for counsel and costs and expenses of the person
necessary to the appeal shall be determined and paid as provided
in ORS 138.500.
{ - (8) - } { + (5) + } { - Upon placing a person under
the jurisdiction of the board - } { + Following entry of the
order described in subsection (1) of this section + }, the court
shall notify the person of the right to appeal and the right to a
Enrolled Senate Bill 420 (SB 420-B) Page 17
hearing before the { - board - } { + agency having
jurisdiction over the person + } in accordance with ORS 161.336
{ - (7) - } { + (5) + } and 161.341 { - (4) - } { +
(3) + }.
{ + (6) The total period of commitment or conditional release
under ORS 161.315 to 161.351 may not exceed the maximum sentence
provided by statute for the crime for which the person was found
guilty except for insanity. + }
SECTION 13. ORS 161.328 is amended to read:
161.328. { - Following the entry of a judgment pursuant to
ORS 161.319 and the dispositional determination under ORS
161.325, if the court finds that the person would have been
guilty - } { + When a person is found guilty except for
insanity + }of a misdemeanor during a criminal episode in the
course of which the person did not cause physical injury or risk
of physical injury to another, { - and if the court has
probable cause to believe that the person is dangerous to self or
others as a result of a mental disorder, the court may - } { +
the court shall + } initiate civil commitment proceedings under
ORS 426.070 to 426.130 { + if the court finds that the person is
affected by mental disease or defect and presents a substantial
danger to others requiring care, supervision and treatment + }.
SECTION 14. ORS 161.329 is amended to read:
161.329. { - Following the entry of a judgment pursuant to
ORS 161.319 and the dispositional determination under ORS
161.325, - } { + When a person is found guilty except for
insanity of a crime, the court shall order the person discharged
from custody + } if the court finds that the person is no longer
affected by mental disease or defect, or, if so affected, no
longer presents a substantial danger to others and is not in need
of care, supervision or treatment { - , the court shall order
the person discharged from custody - } .
SECTION 15. { + (1) When a person who is committed to a state
hospital or a secure intensive community inpatient facility under
ORS 161.315 to 161.351 is convicted of a crime and sentenced to a
term of incarceration and when the person is sentenced to a term
of incarceration as a sanction for violating the conditions of
probation, parole or post-prison supervision, the sentencing
court shall stay execution of the sentence pending the
conditional release or discharge of the person or the expiration
of the period of time described in ORS 161.327 (6). When the
person is conditionally released or discharged by the agency
having jurisdiction over the person under ORS 161.315 to 161.351,
or when the maximum period of jurisdiction described in ORS
161.327 (6) expires, the stay shall be lifted by operation of law
and the person shall be delivered to the custody of the
Department of Corrections or the supervisory authority to begin
service of the sentence imposed.
(2) When a person described in subsection (1) of this section
is delivered to the custody of the department or the supervisory
authority as described in this section, the agency having
jurisdiction over the person while the person was committed to a
state hospital or a secure intensive community inpatient facility
shall notify the department or the supervisory authority when the
period of time described in ORS 161.327 (6) will expire.
(3) The department or supervisory authority shall notify the
Psychiatric Security Review Board when the person has served the
term of incarceration imposed by the court and the board shall
resume exercising active jurisdiction over the person in
accordance with ORS 161.315 to 161.351.
Enrolled Senate Bill 420 (SB 420-B) Page 18
(4) As used in this section, 'supervisory authority' has the
meaning given that term in ORS 144.087. + }
SECTION 16. ORS 161.325, as amended by section 9, chapter 89,
Oregon Laws 2010, is amended to read:
161.325. (1) { - After entry of judgment of guilty except for
insanity - } { + When a person is found guilty except for
insanity of a felony, or of a misdemeanor during a criminal
episode in the course of which the person caused physical injury
or risk of physical injury to another + }, the court shall
{ - , - } { + :
(a) Order that a psychiatric or psychological evaluation of the
person be performed and a report of the evaluation be provided to
the court, if an evaluation was not performed or a report was not
provided to the court prior to trial; and
(b) + }On the basis of the { + report described in paragraph
(a) of this subsection and the + }evidence given at the
trial { + , + } or at a separate hearing { - , - } if requested
by either party, { - make - } { + enter + } an order as
provided in ORS 161.327 { + , 161.328 + } or 161.329, whichever
is appropriate.
(2) If the court { - makes - } { + enters + } an order as
provided in ORS 161.327, it shall also:
(a) Determine on the record the offense of which the person
otherwise would have been convicted;
(b) State on the record the mental disease or defect on which
the defendant relied for the guilty except for insanity defense;
and
(c) Make specific findings on whether there is a victim of the
crime for which the defendant has been found guilty except for
insanity and, if so, whether the victim wishes to be notified,
under ORS 161.326 { - (2) - } , of any { - Psychiatric
Security Review Board - } hearings and orders concerning the
defendant and of any conditional release, discharge or escape of
the defendant.
(3) The court shall include any such findings in its order.
(4) Except under circumstances described in ORS 137.076 (4),
whenever a defendant charged with any offense listed in ORS
137.076 (1) has been found guilty of that offense except for
insanity, the court shall, in any order entered under ORS 161.327
or 161.329, direct the defendant to submit to the obtaining of a
blood or buccal sample in the manner provided in ORS 137.076.
{ + (5) When a court orders a psychiatric or psychological
evaluation under subsection (1) of this section for a financially
eligible person, the court shall order the public defense
services executive director to pay a reasonable fee for the
evaluation from funds available for that purpose. + }
{ +
CONFORMING PROVISIONS + }
SECTION 17. ORS 21.010 is amended to read:
21.010. (1) Except as provided in this section, the appellant
in an appeal or the petitioner in a judicial review in the
Supreme Court or the Court of Appeals shall pay a filing fee of
$154 in the manner prescribed by ORS 19.265. The respondent in
such case and any other person appearing in the appeal, upon
entering first appearance or filing first brief in the court,
shall pay to the State Court Administrator the sum of $154. The
party entitled to costs and disbursements on such appeal shall
recover from the opponent the amount so paid.
Enrolled Senate Bill 420 (SB 420-B) Page 19
(2) Except as provided in this section, the appellant in an
appeal or the petitioner in a judicial review in the Supreme
Court or the Court of Appeals shall pay $154 for each additional
person named as an appellant or petitioner. The respondent in
such case, and any other person appearing in the appeal, shall
pay $154 to the State Court Administrator for each additional
person named as a respondent. The party entitled to costs and
disbursements on such appeal shall recover from the opponent the
amount so paid. The Chief Justice by order may provide for
exemptions from the fees established by this subsection if
exemptions are needed for the equitable imposition of those fees.
(3) Filing and appearance fees may not be assessed in appeals
from habeas corpus proceedings under ORS 34.710, post-conviction
relief proceedings under ORS 138.650, juvenile court under ORS
419A.200 { + , + } { - and - } the involuntary commitment of
persons determined to be mentally ill under ORS 426.135 or
persons determined to be mentally retarded under ORS 427.295
{ - , - } { + or orders of the State Board of Parole and
Post-Prison Supervision + } or on judicial review of orders
{ - of - } { + entered under ORS 161.315 to 161.351 by + } the
Psychiatric Security Review Board { + or the Oregon Health
Authority + }
{ - under ORS 161.385 (9) or orders of the State Board of
Parole and Post-Prison Supervision - } .
(4) Filing and appearance fees shall be assessed in an appeal
from an appeal to a circuit court from a justice court or
municipal court in an action alleging commission of a state
offense designated as a violation or an action alleging violation
of a city charter or ordinance, but not in an action alleging
commission of a state crime.
(5) Filing and appearance fees shall only be assessed in an
appeal in a contempt proceeding seeking imposition of remedial
sanctions under the provisions of ORS 33.055.
SECTION 18. ORS 21.010, as amended by section 30, chapter 659,
Oregon Laws 2009, and section 37f, chapter 885, Oregon Laws 2009,
is amended to read:
21.010. (1) Except as provided in this section, the appellant
in an appeal or the petitioner in a judicial review in the
Supreme Court or the Court of Appeals shall pay a filing fee of
$154 in the manner prescribed by ORS 19.265. The respondent in
such case and any other person appearing in the appeal, upon
entering first appearance or filing first brief in the court,
shall pay to the State Court Administrator the sum of $154. The
party entitled to costs and disbursements on such appeal shall
recover from the opponent the amount so paid.
(2) Filing and appearance fees may not be assessed in appeals
from habeas corpus proceedings under ORS 34.710, post-conviction
relief proceedings under ORS 138.650, juvenile court under ORS
419A.200 { + , + } { - and - } the involuntary commitment of
persons determined to be mentally ill under ORS 426.135 or
persons determined to be mentally retarded under ORS 427.295
{ - , - } { + or orders of the State Board of Parole and
Post-Prison Supervision + }or on judicial review of orders
{ - of - } { + entered under ORS 161.315 to 161.351 by + } the
Psychiatric Security Review Board { + or the Oregon Health
Authority + }
{ - under ORS 161.385 (9) or orders of the State Board of
Parole and Post-Prison Supervision - } .
(3) Filing and appearance fees shall be assessed in an appeal
from an appeal to a circuit court from a justice court or
Enrolled Senate Bill 420 (SB 420-B) Page 20
municipal court in an action alleging commission of a state
offense designated as a violation or an action alleging violation
of a city charter or ordinance, but not in an action alleging
commission of a state crime.
(4) Filing and appearance fees shall only be assessed in an
appeal in a contempt proceeding seeking imposition of remedial
sanctions under the provisions of ORS 33.055.
SECTION 19. ORS 137.750 is amended to read:
137.750. (1) When a court sentences a defendant to a term of
incarceration upon conviction of a crime, the court shall order
on the record in open court as part of the sentence imposed that
the defendant may be considered by the executing or releasing
authority for any form of temporary leave from custody, reduction
in sentence, work release or program of conditional or supervised
release authorized by law for which the defendant is otherwise
eligible at the time of sentencing, unless the court finds on the
record in open court substantial and compelling reasons to order
that the defendant not be considered for such leave, release or
program.
(2) The executing or releasing authority may consider the
defendant for a program described in subsection (1) of this
section only upon order of the sentencing court appearing in the
judgment.
(3) As used in this section:
(a) 'Executing or releasing authority' means the Department of
Corrections, State Board of Parole and Post-Prison Supervision,
Psychiatric Security Review Board, { + Oregon Health
Authority, + } sentencing court or supervisory authority.
(b) 'Supervisory authority' has the meaning given that term in
ORS 144.087.
SECTION 20. ORS 151.216 is amended to read:
151.216. (1) The Public Defense Services Commission shall:
(a) Establish and maintain a public defense system that ensures
the provision of public defense services in the most
cost-efficient manner consistent with the Oregon Constitution,
the United States Constitution and Oregon and national standards
of justice.
(b) Establish an office of public defense services and appoint
a public defense services executive director who serves at the
pleasure of the commission.
(c) Submit the budget of the commission and the office of
public defense services to the Legislative Assembly after the
budget is submitted to the commission by the director and
approved by the commission. The Chief Justice of the Supreme
Court and the chairperson of the commission shall present the
budget to the Legislative Assembly.
(d) Review and approve any public defense services contract
negotiated by the director before the contract can become
effective.
(e) Adopt a compensation plan, classification system and
personnel plan for the office of public defense services that are
commensurate with other state agencies.
(f) Adopt policies, procedures, standards and guidelines
regarding:
(A) The determination of financial eligibility of persons
entitled to be represented by appointed counsel at state expense;
(B) The appointment of counsel;
(C) The fair compensation of counsel appointed to represent a
person financially eligible for appointed counsel at state
expense;
Enrolled Senate Bill 420 (SB 420-B) Page 21
(D) Appointed counsel compensation disputes;
(E) Any other costs associated with the representation of a
person by appointed counsel in the state courts that are required
to be paid by the state under ORS 34.355, 135.055, 138.500,
138.590, 161.346, 161.365, { - 161.385, - } 419A.211,
419B.201, 419B.208, 419B.518, 419B.908, 419C.206, 419C.209,
419C.408, 419C.535, 426.100, 426.135, 426.250, 426.307, 427.265,
427.295, 436.265 or 436.315 { + or section 9 of this 2011
Act + } or any other provision of law that expressly provides for
payment of such compensation, costs or expenses by the
commission;
(F) Professional qualifications for counsel appointed to
represent public defense clients;
(G) Performance for legal representation;
(H) The contracting of public defense services;
(I) Contracting with expert witnesses to allow contracting with
out-of-state expert witnesses only if in-state expert witnesses
are not available or are more expensive than out-of-state expert
witnesses; and
(J) Any other matters necessary to carry out the duties of the
commission.
(g) Establish a peer review system for the approval of
nonroutine fees and expenses incurred in cases involving
aggravated murder and the crimes listed in ORS 137.700 and
137.707. The review shall be conducted by a panel of attorneys
who practice in the area of criminal defense.
(h) Establish a complaint process that allows district
attorneys, criminal defense counsel and the public to file
complaints concerning the payment from public funds of nonroutine
fees and expenses incurred in cases.
(i) Reimburse the State Court Administrator from funds
deposited in the subaccount established under ORS 151.225 for the
costs of personnel and other costs associated with location of
eligibility verification and screening personnel pursuant to ORS
151.489 by the State Court Administrator.
(2) Policies, procedures, standards and guidelines adopted by
the commission supersede any conflicting rules, policies or
procedures of the Public Defender Committee, State Court
Administrator, circuit courts, the Court of Appeals, the Supreme
Court { - and - } { + , + } the Psychiatric Security Review
Board { + and the Oregon Health Authority + }related to the
exercise of the commission's administrative responsibilities
under this section and transferred duties, functions and powers
as they occur.
(3) The commission may accept gifts, grants or contributions
from any source, whether public or private. However, the
commission may not accept a gift, grant or contribution if
acceptance would create a conflict of interest. Moneys accepted
under this subsection shall be deposited in the Public Defense
Services Account created in ORS 151.225 and expended for the
purposes for which given or granted.
(4) The commission may not:
(a) Make any decision regarding the handling of any individual
case;
(b) Have access to any case file; or
(c) Interfere with the director or any member of the staff of
the director in carrying out professional duties involving the
legal representation of public defense clients.
SECTION 21. ORS 162.135 is amended to read:
Enrolled Senate Bill 420 (SB 420-B) Page 22
162.135. As used in ORS 162.135 to 162.205, unless the context
requires otherwise:
(1)(a) 'Contraband' means:
(A) Controlled substances as defined in ORS 475.005;
(B) Drug paraphernalia as defined in ORS 475.525;
(C) Except as otherwise provided in paragraph (b) of this
subsection, currency possessed by or in the control of an inmate
confined in a correctional facility; or
(D) Any article or thing which a person confined in a
correctional facility, youth correction facility or state
hospital is prohibited by statute, rule or order from obtaining
or possessing, and whose use would endanger the safety or
security of such institution or any person therein.
(b) 'Contraband' does not include authorized currency possessed
by an inmate in a work release facility.
(2) 'Correctional facility' means any place used for the
confinement of persons charged with or convicted of a crime or
otherwise confined under a court order and includes but is not
limited to a youth correction facility. 'Correctional facility '
applies to a state hospital or a secure intensive community
inpatient facility only as to persons detained therein charged
with or convicted of a crime, or detained therein after having
been found guilty except for insanity of a crime under ORS
161.290 to 161.370.
(3) 'Currency' means paper money and coins that are within the
correctional institution.
(4) 'Custody' means the imposition of actual or constructive
restraint by a peace officer pursuant to an arrest or court
order, but does not include detention in a correctional facility,
youth correction facility or a state hospital.
(5) 'Escape' means the unlawful departure of a person from
custody or a correctional facility. 'Escape' includes the
unauthorized departure or absence from this state or failure to
return to this state by a person who is under the jurisdiction of
the Psychiatric Security Review Board { + or under the
jurisdiction of the Oregon Health Authority under ORS 161.315 to
161.351 + }. ' Escape' does not include failure to comply with
provisions of a conditional release in ORS 135.245.
(6) 'Youth correction facility' means:
(a) A youth correction facility as defined in ORS 420.005; and
(b) A detention facility as defined in ORS 419A.004.
(7) 'State hospital' means the Oregon State Hospital, Blue
Mountain Recovery Center, Eastern Oregon Training Center and any
other hospital established by law for similar purposes.
(8) 'Unauthorized departure' means the unauthorized departure
of a person confined by court order in a youth correction
facility or a state hospital that, because of the nature of the
court order, is not a correctional facility as defined in this
section, or the failure to return to custody after any form of
temporary release or transitional leave from a correctional
facility.
SECTION 22. ORS 162.155 is amended to read:
162.155. (1) A person commits the crime of escape in the second
degree if:
(a) The person uses or threatens to use physical force escaping
from custody; or
(b) Having been convicted or found guilty of a felony, the
person escapes from custody imposed as a result thereof; or
(c) The person escapes from a correctional facility; or
Enrolled Senate Bill 420 (SB 420-B) Page 23
(d) While under the jurisdiction of the Psychiatric Security
Review Board { + or under the jurisdiction of the Oregon Health
Authority under ORS 161.315 to 161.351 + }, the person departs,
is absent from or fails to return to this state without
authorization of the board.
(2) Escape in the second degree is a Class C felony.
SECTION 23. ORS 181.740 is amended to read:
181.740. (1) The Department of Human Services, the Oregon
Health Authority, the Psychiatric Security Review Board and the
Judicial Department shall provide the Department of State Police
with the minimum information necessary to identify persons who:
(a) Have been committed by a court to the Oregon Health
Authority under ORS 426.130, based on a finding that the person
is dangerous to self or others;
(b) Are subject to a court order under ORS 426.130 prohibiting
the person from purchasing or possessing a firearm;
(c) Have been committed by a court to the Department of Human
Services under ORS 427.290, based on a finding that the person is
dangerous to self or others;
(d) Have been found by a court to lack fitness to proceed under
ORS 161.370;
(e) Have been found guilty except for insanity of a crime under
ORS 161.295 to 161.370;
(f) Have been found responsible except for insanity for an act
under ORS 419C.411;
(g) Have been placed under the jurisdiction of the Psychiatric
Security Review Board { - by a court - } { + or the Oregon
Health Authority under ORS 161.315 to 161.351 + }; or
(h) Have been committed to a state hospital or facility under
ORS { - 161.327, 161.336 - } { + 161.315 + } to 161.351 or
419C.529 to 419C.544.
(2) Upon receipt of the information described in this section,
the Department of State Police shall access and maintain the
information and transmit the information to the federal
government as required under federal law.
(3) The Department of Human Services, the Oregon Health
Authority, the Psychiatric Security Review Board and the Judicial
Department shall enter into agreements with the Department of
State Police describing the access to information provided under
this section.
(4) The Department of State Police shall adopt rules:
(a) After consulting with the Department of Human Services, the
Oregon Health Authority, the Psychiatric Security Review Board
and the Judicial Department, describing the type of information
provided to the Department of State Police under this section;
and
(b) Describing the method and manner of maintaining the
information described in this section and transmitting the
information to the federal government.
(5) As used in this section, 'minimum information necessary'
means data elements or nominal information that is necessary or
required under federal law to accurately identify a person
described in this section and includes the person's name, date of
birth, gender and reference information that identifies the
originating agency or court and enables the originating agency or
court to locate an underlying record or file of a person
described in this section. 'Minimum information necessary' does
not include any medical, psychiatric or psychological
information, case histories or files of a person described in
Enrolled Senate Bill 420 (SB 420-B) Page 24
this section or any record or file of an originating agency or
court.
SECTION 24. ORS 183.315 is amended to read:
183.315. (1) The provisions of ORS 183.410, 183.415, 183.417,
183.425, 183.440, 183.450, 183.452, 183.458, 183.460, 183.470 and
183.480 do not apply to local government boundary commissions
created pursuant to ORS 199.430, the Department of Revenue, State
Accident Insurance Fund Corporation, Department of Consumer and
Business Services with respect to its functions under ORS
chapters 654 and 656, { + State Board of Parole and Post-Prison
Supervision, + } Psychiatric Security Review Board or { - State
Board of Parole and Post-Prison Supervision - } { + Oregon
Health Authority with respect to its functions under ORS 161.315
to 161.351 + }.
(2) This chapter does not apply with respect to actions of the
Governor authorized under ORS chapter 240 and ORS 396.125 or
actions of the Adjutant General authorized under ORS 396.160
(14).
(3) The provisions of ORS 183.410, 183.415, 183.417, 183.425,
183.440, 183.450, 183.452, 183.458 and 183.460 do not apply to
the Employment Appeals Board or the Employment Department.
(4) The Employment Department shall be exempt from the
provisions of this chapter to the extent that a formal finding of
the United States Secretary of Labor is made that such provision
conflicts with the terms of the federal law, acceptance of which
by the state is a condition precedent to continued certification
by the United States Secretary of Labor of the state's law.
(5) The provisions of ORS 183.415 to 183.430, 183.440 to
183.460, 183.470 to 183.485 and 183.490 to 183.500 do not apply
to orders issued to persons who:
(a) Have been committed pursuant to ORS 137.124 to the custody
of the Department of Corrections or are otherwise confined in a
Department of Corrections facility; or
(b) Seek to visit an inmate confined in a Department of
Corrections facility.
(6) ORS 183.410, 183.415, 183.417, 183.425, 183.440, 183.450,
183.460, 183.470 and 183.482 (3) do not apply to the Public
Utility Commission. Notwithstanding ORS 183.480 and except as
provided in ORS 757.495 and 759.390, only a party to a hearing
before the Public Utility Commission is entitled to seek judicial
review of an order of the commission.
(7) The provisions of this chapter do not apply to the
suspension, cancellation or termination of an apprenticeship or
training agreement under ORS 660.060.
(8) The provisions of ORS 183.413 to 183.497 do not apply to
administrative proceedings conducted under rules adopted by the
Secretary of State under ORS 246.190.
SECTION 25. ORS 183.635 is amended to read:
183.635. (1) Except as provided in this section, all agencies
must use administrative law judges assigned from the Office of
Administrative Hearings established under ORS 183.605 to conduct
contested case hearings, without regard to whether those hearings
are subject to the procedural requirements for contested case
hearings.
(2) The following agencies need not use administrative law
judges assigned from the office:
(a) Attorney General.
(b) Boards of stewards appointed by the Oregon Racing
Commission.
Enrolled Senate Bill 420 (SB 420-B) Page 25
(c) Bureau of Labor and Industries and the Commissioner of the
Bureau of Labor and Industries.
(d) Department of Corrections.
(e) Department of Education, State Board of Education and
Superintendent of Public Instruction.
(f) Department of Human Services for vocational rehabilitation
services cases under 29 U.S.C. 722(c) and disability
determination cases under 42 U.S.C. 405.
(g) Department of Revenue.
(h) Department of State Police.
(i) Employment Appeals Board.
(j) Employment Relations Board.
(k) Energy Facility Siting Council.
(L) Fair Dismissal Appeals Board.
(m) Governor.
(n) Land Conservation and Development Commission.
(o) Land Use Board of Appeals.
(p) Local government boundary commissions created pursuant to
ORS 199.430.
(q) Oregon University System and institutions of higher
education listed in ORS 352.002.
(r) Oregon Youth Authority.
(s) Psychiatric Security Review Board.
{ + (t) The Oregon Health Authority for hearings conducted
under ORS 161.315 to 161.351. + }
{ - (t) - } { + (u) + } Public Utility Commission.
{ - (u) - } { + (v) + } State Accident Insurance Fund
Corporation.
{ - (v) - } { + (w) + } State Apprenticeship and Training
Council.
{ - (w) - } { + (x) + } State Board of Parole and
Post-Prison Supervision.
{ - (x) - } { + (y) + } State Land Board.
{ - (y) - } { + (z) + } State Treasurer.
{ - (z) - } { + (aa) + } Wage and Hour Commission.
(3) The Workers' Compensation Board is exempt from using
administrative law judges assigned from the office for any
hearing conducted by the board under ORS chapters 147, 654 and
656. Except as specifically provided in this subsection, the
Department of Consumer and Business Services must use
administrative law judges assigned from the office only for
contested cases arising out of the department's powers and duties
under:
(a) ORS 86A.095 to 86A.198, 86A.990 and 86A.992 and ORS chapter
59;
(b) ORS chapter 455;
(c) ORS chapter 674;
(d) ORS chapters 706 to 716;
(e) ORS chapter 717;
(f) ORS chapters 723, 725 and 726; and
(g) ORS chapters 731, 732, 733, 734, 735, 737, 742, 743, 743A,
744, 746, 748 and 750.
(4) Notwithstanding any other provision of law, in any
proceeding in which an agency is required to use an
administrative law judge assigned from the office, an officer or
employee of the agency may not conduct the hearing on behalf of
the agency.
(5) Notwithstanding any other provision of ORS 183.605 to
183.690, an agency is not required to use an administrative law
judge assigned from the office if:
Enrolled Senate Bill 420 (SB 420-B) Page 26
(a) Federal law requires that a different administrative law
judge or hearing officer be used; or
(b) Use of an administrative law judge from the office could
result in a loss of federal funds.
(6) Notwithstanding any other provision of this section, the
Department of Environmental Quality must use administrative law
judges assigned from the office only for contested case hearings
conducted under the provisions of ORS 183.413 to 183.470.
SECTION 26. ORS 192.690 is amended to read:
192.690. (1) ORS 192.610 to 192.690 do not apply to the
deliberations of { - the State Board of Parole and Post-Prison
Supervision, - } { + the Oregon Health Authority conducted
under ORS 161.315 to 161.351, + } the Psychiatric Security Review
Board, { + the State Board of Parole and Post-Prison
Supervision, + } state agencies conducting hearings on contested
cases in accordance with the provisions of ORS chapter 183, the
review by the Workers' Compensation Board or the Employment
Appeals Board of similar hearings on contested cases, meetings of
the state lawyers assistance committee operating under the
provisions of ORS 9.568, meetings of the personal and practice
management assistance committees operating under the provisions
of ORS 9.568, the county multidisciplinary child abuse teams
required to review child abuse cases in accordance with the
provisions of ORS 418.747, the child fatality review teams
required to review child fatalities in accordance with the
provisions of ORS 418.785, the peer review committees in
accordance with the provisions of ORS 441.055, mediation
conducted under ORS 36.250 to 36.270, any judicial proceeding,
meetings of the Oregon Health and Science University Board of
Directors or its designated committee regarding candidates for
the position of president of the university or regarding
sensitive business, financial or commercial matters of the
university not customarily provided to competitors related to
financings, mergers, acquisitions or joint ventures or related to
the sale or other disposition of, or substantial change in use
of, significant real or personal property, or related to health
system strategies, or to Oregon Health and Science University
faculty or staff committee meetings.
(2) Because of the grave risk to public health and safety that
would be posed by misappropriation or misapplication of
information considered during such review and approval, ORS
192.610 to 192.690 shall not apply to review and approval of
security programs by the Energy Facility Siting Council pursuant
to ORS 469.530.
SECTION 27. ORS 278.315 is amended to read:
278.315. (1) The Oregon Health Authority may provide tort
liability coverage through the Oregon Department of
Administrative Services to any county or private community care
provider that has contracted with the authority to provide
supervision, care, treatment or training of persons under the
jurisdiction of the Psychiatric Security Review Board { + or the
authority under ORS 161.315 to 161.351 + }. Counties or private
community care providers, and the officers and employees of those
counties and providers acting within the scope of their
employment, may be covered to the extent that any tort claim
arises out of the provision of supervision, care, treatment or
training of persons pursuant to the terms of the contract. Tort
liability coverage under this section must be in writing, and may
be part of the contract between the authority and the county or
private community care provider. The coverage provided under this
Enrolled Senate Bill 420 (SB 420-B) Page 27
section shall be self-insurance by the State of Oregon to the
limits contained in ORS 30.260 to 30.300.
(2) Counties or private community care providers that have
contracted with the authority to provide supervision, care,
treatment or training of persons under the jurisdiction of the
Psychiatric Security Review Board { + or the authority under ORS
161.315 to 161.351 + }, and the officers and employees of those
counties and providers, are not agents of the authority for the
purposes of ORS 30.260 to 30.300.
SECTION 28. ORS 430.695 is amended to read:
430.695. (1) Any program fees, third-party reimbursements,
contributions or funds from any source, except client resources
applied toward the cost of care in group homes for persons with
mental retardation or mental illness and client resources and
third-party payments for community psychiatric inpatient care,
received by a community mental health program are not an offset
to the costs of the services and may not be applied to reduce the
program's eligibility for state funds, providing the funds are
expended for mental health services approved by the Oregon Health
Authority.
(2) Within the limits of available funds, the authority may
contract for specialized, statewide and regional services
including but not limited to group homes for persons with mental
retardation or mental or emotional disturbances, day and
residential treatment programs for children and adolescents with
mental or emotional disturbances and community services for
clients of the Psychiatric Security Review Board { + or the
authority under ORS 161.315 to 161.351 + }.
(3) Fees and third-party reimbursements, including all amounts
paid pursuant to Title XIX of the Social Security Act by the
Department of Human Services or the Oregon Health Authority, for
mental health services or developmental disabilities services and
interest earned on those fees and reimbursements shall be
retained by the community mental health program or community
developmental disabilities program and expended for any service
that meets the standards of ORS 430.630.
SECTION 29. ORS 809.419 is amended to read:
809.419. (1)(a) The Department of Transportation shall suspend
the driving privileges of a person if the department requests the
person to submit to examination under ORS 807.340 and the person
fails to appear within a reasonable length of time after being
notified to do so or fails to satisfactorily complete the
required examination. A suspension under this subsection shall
continue until the examination required by the department is
successfully completed.
(b) Upon suspension under this subsection, the department may
issue an identification card to the person for identification
purposes as described under ORS 807.400.
(2) The department shall suspend the driving privileges of a
person if the department requests the person to obtain medical
clearance under ORS 807.070 or 807.090 and the person fails to do
so. The suspension under this subsection shall continue until the
required medical clearance is received by the department.
(3)(a) The department may suspend the driving privileges of a
person who is incompetent to drive a motor vehicle because of a
mental or physical condition or impairment that affects the
person's ability to safely operate a motor vehicle upon the
highways.
Enrolled Senate Bill 420 (SB 420-B) Page 28
(b) A suspension under this subsection shall continue for a
period determined by the department and shall be subject to any
conditions the department determines to be necessary.
(c) The department may impose an immediate suspension of
driving privileges of any person described in paragraph (a) of
this subsection without hearing and without receiving a record of
the conviction of the person of a crime if the department has
reason to believe that the person may endanger people or property
if the person's driving privileges are not immediately suspended.
A suspension under this paragraph is subject to a post-imposition
hearing under ORS 809.440. A person who is denied eligibility
under ORS 807.090 is entitled to a hearing under ORS 809.440.
(4)(a) Whenever the department has reason to believe an
individual with a motorcycle endorsement under ORS 807.170 is
incompetent to operate a motorcycle, the department may revoke
the endorsement.
(b) Upon revocation under this subsection, the endorsed license
shall be surrendered to the department.
(c) Upon surrender of the endorsed license, the department may
issue a license without endorsement for the unexpired period of
the license.
(5) Upon notification by the superintendent of a hospital under
ORS 807.700 that a person should not drive, the department shall
immediately suspend the driving privileges of the released
person. A suspension under this subsection is subject to
administrative review under ORS 809.440 and shall continue until
such time as the person produces a judicial judgment of
competency or a certificate from the superintendent of the
hospital that the person is competent, or establishes eligibility
under ORS 807.090.
(6) Upon notification by a court under ORS 810.375 that a
person charged with a traffic offense has been found guilty
except for insanity and committed to the jurisdiction of the
Psychiatric Security Review Board { + or the Oregon Health
Authority under ORS 161.315 to 161.351 + }, the department shall
immediately suspend the driving privileges of the person. A
suspension under this subsection is subject to administrative
review under ORS 809.440 and shall continue until such time as
the person establishes eligibility under ORS 807.090.
SECTION 30. ORS 810.375 is amended to read:
810.375. (1) The judge or clerk of every court of this state
having jurisdiction of any traffic offense, including all local
and municipal judicial officers in this state:
(a) Shall keep a full record of every case in which a person is
charged with any such offense.
(b) Shall send the Department of Transportation an abstract of
conviction for any person who is convicted.
(c) Shall send the department a copy of any final judgment of
conviction of any person which results in mandatory suspension or
revocation of driving privileges or commercial driver license
under ORS 809.404, 809.407, 809.409, 809.411, 809.413, 813.400 or
813.403.
(d) Shall send the department a copy of any final judgment
finding a person charged with a traffic offense guilty except for
insanity and committed to the jurisdiction of the Psychiatric
Security Review Board { + or the Oregon Health Authority under
ORS 161.315 to 161.351 + }.
(2) The department shall keep such records in its office, and
they shall be open to the inspection of any person during
reasonable business hours.
Enrolled Senate Bill 420 (SB 420-B) Page 29
(3) To comply with this section, a judge or clerk must comply
with the following:
(a) Any information required by this section to be sent to the
department must be sent within the time provided under ORS
810.370 and must include information required by ORS 810.370.
(b) Information shall not be sent to the department under this
section concerning convictions excluded from ORS 810.370.
{ +
MISCELLANEOUS PROVISIONS + }
SECTION 31. { + 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. + }
SECTION 32. { + Sections 9 and 15 of this 2011 Act and ORS
161.327 are added to and made a part of ORS 161.315 to
161.351. + }
SECTION 33. { + (1) Sections 9 and 15 of this 2011 Act and the
amendments to ORS 21.010, 137.750, 151.216, 161.325, 161.326,
161.327, 161.328, 161.329, 161.332, 161.336, 161.341, 161.346,
161.351, 161.375, 161.385, 161.387, 161.390, 161.395, 161.400,
162.135, 162.155, 181.740, 183.315, 183.635, 192.690, 278.315,
430.695, 809.419 and 810.375 by sections 1 to 8, 10 to 14 and 16
to 30 of this 2011 Act become operative on January 1, 2012.
(2) The Psychiatric Security Review Board and the Oregon Health
Authority may adopt rules or take any other action before the
operative date specified in subsection (1) of this section that
is necessary to enable the board or authority to exercise, on or
after the operative date specified in subsection (1) of this
section, all the duties, functions and powers conferred on the
board or authority by sections 9 and 15 of this 2011 Act and the
amendments to ORS 21.010, 137.750, 151.216, 161.325, 161.326,
161.327, 161.328, 161.329, 161.332, 161.336, 161.341, 161.346,
161.351, 161.375, 161.385, 161.387, 161.390, 161.395, 161.400,
162.135, 162.155, 181.740, 183.315, 183.635, 192.690, 278.315,
430.695, 809.419 and 810.375 by sections 1 to 8, 10 to 14 and 16
to 30 of this 2011 Act.
(3) On the operative date specified in subsection (1) of this
section, the Oregon Health Authority shall exercise jurisdiction
over tier two offenders, as defined in ORS 161.332, committed to
a state hospital or secure intensive community inpatient facility
under ORS 161.315 to 161.351 in accordance with sections 9 and 15
of this 2011 Act and the amendments to ORS 21.010, 137.750,
151.216, 161.325, 161.326, 161.327, 161.328, 161.329, 161.332,
161.336, 161.341, 161.346, 161.351, 161.375, 161.385, 161.387,
161.390, 161.395, 161.400, 162.135, 162.155, 181.740, 183.315,
183.635, 192.690, 278.315, 430.695, 809.419 and 810.375 by
sections 1 to 8, 10 to 14 and 16 to 30 of this 2011 Act. + }
SECTION 34. { + The Oregon Health Authority and the
Psychiatric Security Review Board shall each submit a report to
the Legislative Assembly, in the manner provided in ORS 192.245,
that describes the implementation and effects of this 2011 Act.
The authority and the board shall submit a report under this
section no later than:
(1) March 1 of each year; and
(2) November 1 of each year. + }
SECTION 35. { + Section 34 of this 2011 Act is repealed on
January 1, 2016. + }
Enrolled Senate Bill 420 (SB 420-B) Page 30
SECTION 35a. { + Notwithstanding any other provision of law,
the General Fund appropriation made to the Department of Justice
by section 1, chapter ___, Oregon Laws 2011 (Enrolled Senate Bill
5518), for the biennium beginning July 1, 2011, is increased by
$800,800. + }
SECTION 35b. { + Notwithstanding any other law limiting
expenditures, the limitation on expenditures established by
section 2, chapter ___, Oregon Laws 2011 (Enrolled Senate Bill
5518), for the biennium beginning July 1, 2011, as the maximum
limit for payment of expenses from fees, moneys or other
revenues, including Miscellaneous Receipts, but excluding lottery
funds and federal funds, collected or received by the Department
of Justice, is increased by $771,501. + }
SECTION 35c. { + Notwithstanding any other provision of law,
the General Fund appropriation made to the Oregon Health
Authority by section 1 (1), chapter ___, Oregon Laws 2011
(Enrolled Senate Bill 5529), for the biennium beginning July 1,
2011, is increased by $595,041. + }
SECTION 35d. { + Notwithstanding any other provision of law,
the General Fund appropriation made to the Psychiatric Security
Review Board by section 1, chapter ___, Oregon Laws 2011
(Enrolled Senate Bill 5539), for the biennium beginning July 1,
2011, is increased by $382,222. + }
{ +
CONFLICT AMENDMENTS + }
SECTION 36. { + If House Bill 3100 becomes law, section 12 of
this 2011 Act (amending ORS 161.327) is repealed and ORS 161.327,
as amended by section 3, chapter ___, Oregon Laws 2011 (Enrolled
House Bill 3100), is amended to read: + }
161.327. { - (1) Following the entry of a judgment pursuant
to ORS 161.319, the court shall order that a person be placed
under the jurisdiction of the Psychiatric Security Review Board
for care and treatment if: - }
{ - (a) The person was found guilty except for insanity of a
felony; and - }
{ - (b) The court finds by a preponderance of the evidence
that the person is affected by mental disease or defect and
presents a substantial danger to others that requires commitment
or conditional release. - }
{ - (2) The court shall determine whether the person should
be committed or conditionally released pending any hearing before
the board as follows: - }
{ + (1) Following the entry of a judgment pursuant to ORS
161.319, if the court finds by a preponderance of the evidence
that a person found guilty except for insanity of a felony is
affected by mental disease or defect and presents a substantial
danger to others, the court shall enter an order as follows: + }
(a) If the court finds that the person { - presents a
substantial danger to others and - } is not a proper subject for
conditional release, the court shall order the person committed
to a state hospital { - designated by the Oregon Health
Authority if the person is at least 18 years of age, - }
or { + , if the person is under 18 years of age, + } to a secure
intensive community inpatient facility
{ - designated by the authority or the Department of Human
Services if the person is under 18 years of age, - } for
custody, care and treatment { - pending hearing before the
board in accordance with ORS 161.341 to 161.351 - } . { + When
Enrolled Senate Bill 420 (SB 420-B) Page 31
the court orders a person committed under this paragraph, the
court shall place the person under the jurisdiction of:
(A) The Psychiatric Security Review Board, if the person is a
tier one offender.
(B) The Oregon Health Authority, if the person is a tier two
offender. + }
(b) If the court finds that the person { - presents a
substantial danger to others but that the person - } can be
adequately controlled with supervision and treatment if
conditionally released and that necessary supervision and
treatment are available, the court { - may - } { + shall + }
order the person conditionally released.
{ - (3) - } { + (2) + } When a person is conditionally
released under this section, the person is subject to those
supervisory orders of the court as are in the best interests of
justice, the protection of society and the welfare of the person.
The court shall designate a person or state, county or local
agency to supervise the person upon release, subject to those
conditions as the court directs in the order for conditional
release. Prior to the designation, the court shall notify the
person or agency to whom conditional release is contemplated and
provide the person or agency an opportunity to be heard before
the court. After receiving an order entered under subsection
{ - (2)(b) - } { + (1)(b) + } of this section, the person or
agency designated shall assume supervision of the person pursuant
to the direction of the Psychiatric Security Review Board. The
person or agency designated as supervisor shall be required to
report in writing no less than once per month to the board
concerning the supervised person's compliance with the conditions
of release.
{ - (4) For purposes of this section, a person affected by a
mental disease or defect in a state of remission is considered to
have a mental disease or defect requiring supervision when the
disease may, with reasonable medical probability, occasionally
become active and, when active, render the person a danger to
others. - }
{ - (5) - } { + (3) + } In determining whether a person
should be conditionally released, the court:
(a) May order evaluations, examinations and compliance as
provided in ORS 161.336 (4) and 161.346 (2); { - and - }
(b) Shall order that the person be examined by a local mental
health program designated by the board and a report of the
examination be provided to the court if each felony for which the
defendant was found guilty except for insanity is a Class C
felony { - . - } { + ; and + }
{ - (6) - } { + (c) + } { - In determining whether a
person should be committed to a state hospital or to a secure
intensive community inpatient facility or conditionally released,
the court - } Shall have as its primary concern the protection
of society.
{ - (7) - } { + (4) + } Upon placing a person on
conditional release, the court shall notify the board in writing
of the court's conditional release order, the supervisor
appointed, and all other conditions of release, and the person
shall be on conditional release pending hearing before the board
{ - in accordance with ORS 161.336 to 161.351 - } . Upon
compliance with this section, the court's jurisdiction over the
person is terminated { - and the board assumes jurisdiction
over the person - } .
Enrolled Senate Bill 420 (SB 420-B) Page 32
{ - (8) - } { + (5) + } The { + total + } period of
{ - jurisdiction of the board is equal to - } { + commitment
or conditional release under ORS 161.315 to 161.351 may not
exceed + } the maximum sentence provided by statute for the crime
for which the person was found guilty except for insanity.
{ - (9) - } { + (6) + } An order of the court under this
section is a final order appealable by the person found guilty
except for insanity in accordance with ORS 19.205 (5).
Notwithstanding ORS 19.255, notice of an appeal under this
section shall be served and filed within 90 days after the order
appealed from is entered in the register. The person shall be
entitled on appeal to suitable counsel possessing skills and
experience commensurate with the nature and complexity of the
case. If the person is financially eligible, suitable counsel
shall be appointed in the manner provided in ORS 138.500 (1), and
the compensation for counsel and costs and expenses of the person
necessary to the appeal shall be determined and paid as provided
in ORS 138.500.
{ - (10) - } { + (7) + } { - Upon placing a person under
the jurisdiction of the board - } { + Following the entry of an
order described in subsection (1) of this section + }, the court
shall notify the person of the right to appeal and the right to a
hearing before the { - board - } { + agency exercising
jurisdiction over the person + } in accordance with ORS 161.336
{ - (7) - } { + (5) + } and 161.341 { - (4) - } { +
(3) + }.
SECTION 37. { + If House Bill 3100 becomes law, section 13 of
this 2011 Act (amending ORS 161.328) is repealed and ORS 161.328,
as amended by section 4, chapter ___, Oregon Laws 2011 (Enrolled
House Bill 3100), is amended to read: + }
161.328. (1) Following the entry of a judgment pursuant to ORS
161.319, the court { - may - } { + shall + } order a person
committed to a state mental hospital or other facility designated
by the Oregon Health Authority if:
(a) Each offense for which the person is found guilty except
for insanity is a misdemeanor; and
(b) The court finds that the person is affected by mental
disease or defect and presents a substantial danger to others
that requires commitment.
(2) The total period of commitment under this section may not
exceed the maximum sentence provided by statute for the crime for
which the person was found guilty except for insanity.
(3) If the superintendent of the state mental hospital or the
director of the facility to which the person is committed
determines that a person committed under this section is no
longer affected by mental disease or defect or, if so affected,
no longer presents a substantial danger to others that requires
commitment, the superintendent or director shall file notice of
that determination with the committing court. Upon filing of the
notice, the superintendent or director shall discharge the person
from custody.
SECTION 38. { + If House Bill 3100 becomes law, section 14 of
this 2011 Act (amending ORS 161.329) is repealed. + }
SECTION 39. If House Bill 3100 becomes law, section 15 of this
2011 Act is amended to read:
{ + Sec. 15. + } (1) When a person who is committed to a
state hospital or a secure intensive community inpatient facility
under ORS 161.315 to 161.351 is convicted of a crime and
sentenced to a term of incarceration and when the person is
sentenced to a term of incarceration as a sanction for violating
Enrolled Senate Bill 420 (SB 420-B) Page 33
the conditions of probation, parole or post-prison supervision,
the sentencing court shall stay execution of the sentence pending
the conditional release or discharge of the person or the
expiration of the period of time described in ORS 161.327
{ - (6) - } { + (5) + }. When the person is conditionally
released or discharged by the agency having jurisdiction over the
person under ORS 161.315 to 161.351, or when the maximum period
of jurisdiction described in ORS 161.327 { - (6) - } { +
(5) + } expires, the stay shall be lifted by operation of law and
the person shall be delivered to the custody of the Department of
Corrections or the supervisory authority to begin service of the
sentence imposed.
(2) When a person described in subsection (1) of this section
is delivered to the custody of the department or the supervisory
authority as described in this section, the agency having
jurisdiction over the person while the person was committed to a
state hospital or a secure intensive community inpatient facility
shall notify the department or the supervisory authority when the
period of time described in ORS 161.327 { - (6) - } { +
(5) + } will expire.
(3) The department or supervisory authority shall notify the
Psychiatric Security Review Board when the person has served the
term of incarceration imposed by the court and the board shall
resume exercising active jurisdiction over the person in
accordance with ORS 161.315 to 161.351.
(4) As used in this section, 'supervisory authority' has the
meaning given that term in ORS 144.087.
SECTION 40. { + If House Bill 3100 becomes law, section 16 of
this 2011 Act (amending ORS 161.325) is repealed and ORS 161.325,
as amended by section 9, chapter 89, Oregon Laws 2010, and
section 2, chapter ___, Oregon Laws 2011 (Enrolled House Bill
3100), is amended to read: + }
161.325. (1) After entry of judgment of guilty except for
insanity, the court shall, on the basis of the evidence given at
the trial or at a separate hearing, if requested by either party,
{ - make - } { + enter + } an order as provided in ORS
161.327, 161.328 or 161.329, whichever is appropriate.
(2) If the court { - makes - } { + enters + } an order as
provided in ORS 161.327, it shall also:
(a) Determine on the record the offense of which the person
otherwise would have been convicted;
(b) State on the record the mental disease or defect on which
the defendant relied for the guilty except for insanity defense;
and
(c) Make specific findings on whether there is a victim of the
crime for which the defendant has been found guilty except for
insanity and, if so, whether the victim wishes to be notified,
under ORS 161.326 { - (2) - } , of any { - Psychiatric
Security Review Board - } hearings and orders concerning the
defendant and of any conditional release, discharge or escape of
the defendant.
(3) The court shall include any such findings in its order.
(4) Except under circumstances described in ORS 137.076 (4),
whenever a defendant charged with any offense listed in ORS
137.076 (1) has been found guilty of that offense except for
insanity, the court shall, in any order entered under ORS 161.327
or 161.329, direct the defendant to submit to the obtaining of a
blood or buccal sample in the manner provided in ORS 137.076.
SECTION 41. If House Bill 3100 becomes law, section 33 of this
2011 Act is amended to read:
Enrolled Senate Bill 420 (SB 420-B) Page 34
{ + Sec. 33. + } (1) Sections 9 and 15 of this 2011 Act and
the amendments to ORS 21.010, 137.750, 151.216, 161.325, 161.326,
161.327, 161.328, { - 161.329, - } 161.332, 161.336, 161.341,
161.346, 161.351, 161.375, 161.385, 161.387, 161.390, 161.395,
161.400, 162.135, 162.155, 181.740, 183.315, 183.635, 192.690,
278.315, 430.695, 809.419 and 810.375 by sections 1 to 8, 10 to
{ - 14 and 16 - } { + 11b, 17 + } to 30 { + , 36, 37 and
40 + } of this 2011 Act become operative on January 1, 2012.
(2) The Psychiatric Security Review Board and the Oregon Health
Authority may adopt rules or take any other action before the
operative date specified in subsection (1) of this section that
is necessary to enable the board or authority to exercise, on or
after the operative date specified in subsection (1) of this
section, all the duties, functions and powers conferred on the
board or authority by sections 9 and 15 of this 2011 Act and the
amendments to ORS 21.010, 137.750, 151.216, 161.325, 161.326,
161.327, 161.328, { - 161.329, - } 161.332, 161.336, 161.341,
161.346, 161.351, 161.375, 161.385, 161.387, 161.390, 161.395,
161.400, 162.135, 162.155, 181.740, 183.315, 183.635, 192.690,
278.315, 430.695, 809.419 and 810.375 by sections 1 to 8, 10 to
{ - 14 and 16 - } { + 11b, 17 + } to 30 { + , 36, 37 and
40 + } of this 2011 Act.
(3) On the operative date specified in subsection (1) of this
section, the Oregon Health Authority shall exercise jurisdiction
over tier two offenders, as defined in ORS 161.332, committed to
a state hospital or secure intensive community inpatient facility
under ORS 161.315 to 161.351 in accordance with sections 9 and 15
of this 2011 Act and the amendments to ORS 21.010, 137.750,
151.216, 161.325, 161.326, 161.327, 161.328, { - 161.329, - }
161.332, 161.336, 161.341, 161.346, 161.351, 161.375, 161.385,
161.387, 161.390, 161.395, 161.400, 162.135, 162.155, 181.740,
183.315, 183.635, 192.690, 278.315, 430.695, 809.419 and 810.375
by sections 1 to 8, 10 to { - 14 and 16 - } { + 11b, 17 + }
to 30 { + , 36, 37 and 40 + } of this 2011 Act.
{ +
EMERGENCY CLAUSE + }
SECTION 42. { + 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. + }
----------
Enrolled Senate Bill 420 (SB 420-B) Page 35
Passed by Senate June 28, 2011
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House June 28, 2011
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 420 (SB 420-B) Page 36
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 420 (SB 420-B) Page 37
