Stops and Frisks in Oregon

The 2022 revision of Criminal Law in Oregon is scheduled to release in December. The chapter on Stop and Frisk is written by Laura Fine and excerpted here. The chapter will be as up-to-date as possible upon publication, including caveats and note regarding legislation that become effective after it is in print. This excerpt includes links to the public pages of the Fastcase online database.

To read the full chapter, log into the BarBooks™ online library or preorder a copy of the print publication or eBook download from our online bookstore. Continue reading

Legal Websites on Criminal Law

In preparation for the upcoming release of the 2022 revision of Criminal Law in Oregon, we decided to share a few blogs and websites related to criminal law matters. These sites were gleaned from chapters of the new revision and a basic Google search for criminal law blogs. We do not guarantee the accuracy of the information contained in these sites, which can change over time. Many of these links and more are included in the new edition of Criminal Law in Oregon. Continue reading

Criminal Law in Oregon, 2022 Revision, Now Available for Preorder

The newly revised three-volume Criminal Law in Oregon is an essential resource for Oregon lawyers who practice criminal law. Topics covered in this comprehensive resource range from search and seizure to postconviction proceedings, and everything in between. Drawing on the wisdom of the experts, this book will save you time and resources. In addition to serving as the chief reference guide on criminal law for Oregon judges, defense lawyers, and prosecutors, Criminal Law in Oregon is an invaluable resource for civil practitioners who handle the occasional criminal law case. Continue reading

Lawyers and Mental Health Professionals in Criminal Law Cases

The 2022 revision of Criminal Law in Oregon is scheduled to release in December. It will be available for preorder soon, in both print and digital formats. This revision contains up-to-date case law and statutory changes that have happened since the 2013 revision was released. We are excited to be offering this new edition in a durable, convenient, and accessible perfect bound format.

The chapter on Mental Illness and Incapacity, authored by Laura Graser, Elizabeth N. Wakefield, and Harris S. Matarazzo, addresses the issue of working with mental health professionals. This post is an excerpt from that chapter, which also covers the guilty except for insanity defense,  Psychiatric Security Review Board (PSRB) jurisdiction, civil commitment proceedings, and sex-offender classification. The full chapter is available on the BarBooks online library and will be available as an eBook in December. Continue reading

DNA Testing Excerpt from Criminal Law in Oregon

The 2022 revision of Criminal Law in Oregon is scheduled to release in December. It will be available for preorder soon, in both print and digital formats. This revision contains up-to-date case law and statutory changes that have happened since the 2013 revision was released. We are excited to be offering this new edition in a durable, convenient, and accessible perfect bound format.

One of the new areas addressed in this revision deals with postconviction motions for DNA testing. This post is an excerpt from that chapter, written by authors Ryan Kahn, Daniel Toulson, and Jason Weber. It is available here before it is completely final or posted to the BarBooks online library. Continue reading

Marijuana-Related Jury Instructions under Construction

By Dean Land, Attorney Editor

At first glance, Oregon’s new marijuana laws seem simple—recreational marijuana is now legal. But a more in-depth look reveals some very complex legislation. Together, Ballot Measure 91 (2014) and House Bill 3400 (2015) take up 99 pages in Oregon Laws.

The legislation’s effect on the jury instructions is something that the Uniform Criminal Jury Instructions Committee is still working to untangle. For example, ORS 475.864 (2013), which criminalized the possession of a certain amount of marijuana, was not simply repealed. Instead, the new version of the statute criminalizes possession of marijuana under certain circumstances, based on criteria including the age of the possessor, the location of the possession, and the amount and form of the marijuana. Furthermore, the statute does not apply to licensed growers, processors, and sellers “acting in accordance with” Measure 91. ORS 475.864(6) (2015). This raises questions. Does a district attorney who charges unlawful possession of marijuana have to prove beyond a reasonable doubt that the defendant did not act in accordance with Measure 91? Or is acting in accordance with Measure 91 an affirmative defense? And perhaps most perplexing of all, how should that element of the crime be phrased for the jury?

These are among the many questions confronting the committee as it works to update the instructions for marijuana crimes. Although the committee was unable to revise these instructions in time for the 2015 UCrJI Supplement, it alerted practitioners to the issue by adding notes to the potentially affected instructions. The committee expects to have revised marijuana-crime instructions ready for the 2016 Supplement. In the meantime, judges, defense attorneys, and prosecutors are encouraged to contact committee members with any suggestions.

New Law for Commitment of Person with Mental Illness

Excerpted from Criminal Law (OSB Legal Pubs 2013), chapter 15 Mental Illness and Incapacity.

By Harris Matarazzo, sole practitioner.

To learn more about this new legislation, go to BarBooks™.

§ 15.13-3(g) Extremely Dangerous Person with Mental Illness
§ 15.13-3(g)(1) In General

The 2013 Legislature enacted Senate Bill 421, which created a new classification of individual subject to a civil-commitment proceeding: “extremely dangerous person with mental illness.” ORS 426.701–426.702. See Or Laws 2013, ch 715. Although the new law appears in ORS chapter 426 along with other provisions relating to civil commitments, the underlying basis for this proceeding is previously adjudicated criminal conduct, or pending allegations of such activity. This could include a situation in which a person was found to lack the capacity to go to trial. Persons committed by the court pursuant to this law are subject to the jurisdiction of the Psychiatric Security Review Board (PSRB), the same agency responsible for overseeing persons found “guilty except for insanity” under ORS 161.295. See ORS 426.701(3).

Comment: As such, this legislation combines elements of both criminal law and civil law and, although sharing some procedural features, should not be confused with other civil commitments.

The discussion in § 15.13-3(g)(2) to § 15.13-3(g)(10) highlights the differences between Oregon’s longstanding bases for civil commitment and a commitment initiated on the basis of “extreme danger.” Otherwise, the procedures remain the same.

§ 15.13-3(g)(2) Who May Be Committed as an Extremely Dangerous Person with Mental Illness

A person is subject to commitment as an extremely dangerous person with mental illness if:

(1)    The person is “extremely dangerous,” ORS 426.701(3)(a)(A);

(2)    The person is at least 18 years old, ORS 426.701(1)(a)(A);

(3)    The person has a “mental disorder that is resistant to treatment,” ORS 426.701(3)(a)(B);

(4)    Because of that mental disorder, the person committed one of the following acts described in ORS 426.701(3)(a)(C):

(a)    “Caused the death of another person,” ORS 426.701(3)(a)(C)(i);

(b)    “Caused serious physical injury to another person by means of a dangerous weapon,” ORS 426.701(3)(a)(C)(ii);

(c)    “Caused physical injury to another person by means of a firearm as defined in ORS 166.210 or an explosive as defined in ORS 164.055,” ORS 426.701(3)(a)(C)(iii);

(d)    “Engaged in oral-genital contact with a child under 14 years of age,” ORS 426.701(3)(a)(C)(iv);

(e)    “Forcibly compelled sexual intercourse, oral-genital contact or the penetration of another person’s anus or vagina,” ORS 426.701(3)(a)(C)(v); or

(f)    “Caused a fire or explosion that damaged the protected property of another, as those terms are defined in ORS 164.305, or placed another person in danger of physical injury, and the fire or explosion was not the incidental result of normal and usual daily activities,” ORS 426.701(3)(a)(C)(vi);

(5)    The person is “exhibiting symptoms or behaviors of a mental disorder substantially similar to those that preceded the [specific criminal] act,” ORS 426.701(1)(a)(B); and

(6)    Because of the mental disorder, the person (a) “[p]resents a serious danger to the safety of others by reason of an extreme risk that the person will inflict grave or potential lethal physical injury on other persons,” and (b) “[u]nless committed, will continue to represent an extreme risk to the safety of other persons in the foreseeable future,” ORS 426.701(1)(a)(C).

The statute does not define the term mental disorder, but the statute provides that the mental disorder must be “resistant to treatment.” ORS 426.701(3)(a)(B). Furthermore, the statute provides that a mental disorder does not include a disorder “manifested solely by repeated criminal or otherwise antisocial conduct” or a disorder “constituting solely a personality disorder.” ORS 426.701(1)(b).

Qualifying conditions are deemed to be “resistant to treatment” if the person “continues to be significantly impaired in the person’s ability to make competent decisions and to be aware of and control extremely dangerous behavior” after (1) “receiving care from a licensed psychiatrist and exhausting all reasonable psychiatric treatment” or (2) “refusing psychiatric treatment.” ORS 426.701(1)(c).