ORS 131.515
Previous prosecution

  • when a bar to second prosecution

Except as provided in ORS 131.525 (Previous prosecution) and 131.535 (Proceedings not constituting acquittal):


No person shall be prosecuted twice for the same offense.


No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.


If a person is prosecuted for an offense consisting of different degrees, the conviction or acquittal resulting therefrom is a bar to a later prosecution for the same offense, for any inferior degree of the offense, for an attempt to commit the offense or for an offense necessarily included therein.


A finding of guilty of a lesser included offense on any count is an acquittal of the greater inclusive offense only as to that count. [1973 c.836 §27; 1997 c.511 §3]

Source: Section 131.515 — Previous prosecution; when a bar to second prosecution, https://www.­oregonlegislature.­gov/bills_laws/ors/ors131.­html.

See also annotations under ORS 135.900 in permanent edition.

Notes of Decisions

“Same criminal episode” has same meaning as based on same transaction for purposes of charging under ORS 132.560. State v. Boyd, 271 Or 558, 533 P2d 795 (1975); State v. Shields, 280 Or 471, 571 P2d 892 (1977)

When facts of each charge can be explained adequately only by drawing upon facts of the other charge, the charges are cross-related and must be joined. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

Where circumstances upon which culpability rests is possession, simultaneous possession of two distinct types of contraband constitutes a unitary act or transaction with respect to which charges must be joined. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

If state must prosecute for only one charge because defendant has voluntarily and unilaterally entered plea of guilty on another charge, there can be no argument that the state has harassed defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

Where defendant opposed state’s motion to consolidate charges resulting from same conduct he waived double jeopardy protection, and two findings of guilty were properly merged into one conviction for sentencing. State v. Brissette, 31 Or App 1243, 572 P2d 1068 (1977)

Guilty plea to lesser of two counts charging criminal activity in drugs, entered over objection of prosecution and with defendant’s expression of desire that state be put to its proof on other count, was express waiver of jeopardy protection as to other count. State v. Flaherty, 33 Or App 251 (1978), Sup Ct review denied

Where, following dismissal of probation hearing charging violation by unlawfully possessing and controlling concealable weapon, state initiated second revocation proceeding based on conviction of being ex-convict in possession of firearm, which conviction arose from same incident alleged in first revocation proceeding, probationer was not placed in “jeopardy” because revocation proceeding is not criminal adjudication. State v. Eckley, 34 Or App 563, 579 P2d 291 (1978); State v. Maricich, 101 Or App 212, 789 P2d 701 (1990)

Waiver of right to single prosecution of all charges under this section did not occur where state did not make timely motion for consolidation of charges. State v. Hagey, 38 Or App 487, 590 P2d 753 (1979)

Where defendant was convicted of assault, double jeopardy barred trial on first offense of driving under influence of intoxicants ([former] ORS 487.540) arising out of same act or transaction. State v. Marquette, 39 Or App 519, 592 P2d 1062 (1979)

When an indictment charges that a criminal agreement was made in a certain county, a conviction cannot rest on proof that the agreement was made in a different county and only subsequent acts in pursuance of the agreement occurred in the county where the making of the agreement is alleged. State v. Roper, 286 Or 621, 595 P2d 1247 (1979)

Where jury’s inability to reach verdict was caused by bailiff’s improper remarks, defendant could not constitutionally be retried after mistrial. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)

Where, as result of same criminal episode, defendant was charged with violating Portland City Code and also with felony possession of controlled substance, defendant’s trial in district court on municipal ordinance offense did not bar subsequent circuit court trial on felony charge, because circuit court lacked jurisdiction to try ordinance violation. State v. Jones, 45 Or App 307, 608 P2d 572 (1980), Sup Ct review denied

Where defendant was convicted of DUII in municipal court, this section did not bar subsequent circuit court prosecution for driving while suspended, arising out of same criminal transaction, because district attorney did not have control over prosecution of both offenses. State v. Ogle, 46 Or App 109, 610 P2d 1242 (1980)

Where defendant, after having been put under arrest for DUII, admitted his role in burglary a few minutes earlier and about a mile and a half away, these crimes were not related to single criminal objective and separate prosecutions were not prohibited by this section. State v. Yock, 49 Or App 749, 621 P2d 592 (1980), Sup Ct review denied

“Appropriate prosecutor” for purposes of preventing separate prosecution of offenses based on same criminal episode refers to district attorney of proper jurisdiction for prosecution of offense charged. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

Requirement that second offense be “reasonably” known to prosecutor is designed to bar second prosecution only where sufficient evidence to prosecute second offense exists at time first offense is tried. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

State was barred by this section from prosecuting defendant on second charge, which was one of several offenses reasonably known to prosecutor at time of commencement of first prosecution, where the prosecution of second charge was delayed because state was unsuccessfully attempting to gather sufficient evidence to charge defendant with more serious offense. State v. Decoteau, 54 Or App 346, 634 P2d 832 (1981)

Where state motion to consolidate charges for trial was not timely, defendant’s objection to motion on sole ground of untimeliness did not constitute waiver of defendant’s right to have all charges prosecuted in single trial and subsequent trial on charge arising out of same transaction constituted double jeopardy under this section. State v. Scovell, 54 Or App 391, 635 P2d 7 (1981), Sup Ct review denied

Since reckless driving is distinct event, wholly unrelated to acts of possessing controlled substance or possessing concealed weapon, it could not constitute single criminal episode for double jeopardy purposes. State v. Paquin, 55 Or App 676, 639 P2d 694 (1982), Sup Ct review denied

Where parties stipulated to the facts and defendant was convicted after trial to the court, jeopardy attached between time of fact stipulation and conviction on lesser included offense, so retrial on greater offenses was barred by former jeopardy. State v. Adams, 56 Or App 303, 641 P2d 647 (1982)

Where locations of victims and objectives of homicide and kidnapping were different and there was 17-hour period between two offenses, crimes did not arise out of same episode. State v. Hunter, 58 Or App 99, 647 P2d 943 (1982), Sup Ct review denied

Where deputy district attorney suspected defendant was involved in homicide, but did not feel he had sufficient evidence to go forward with prosecution until the defendant’s girlfriend came forward with evidence inculpating defendant, deputy district attorney did not reasonably know of homicide charge when defendant was indicted and convicted on first charge. State v. Hunter, 58 Or App 99, 647 P2d 943 (1982), Sup Ct review denied

Trial court erred in dismissing indictment on grounds of former jeopardy where burglary, assault and criminal mischief charges in indictment and disorderly conduct charges for which defendant had been tried and convicted arose out of incidents occurring at different places and approximately forty to forty-five minutes apart, circumstances of two events were different and elements of the charges were different and details not cross-related. State v. Crumal, 62 Or App 156, 659 P2d 977 (1983)

Where defendant was charged in district court with assault in the fourth degree and later was served with a uniform traffic citation in municipal court charging her with driving under the influence of intoxicants and both offenses arose out of the same episode, district court properly dismissed assault charge. State v. McGilchrist, 294 Or 473, 657 P2d 681 (1983)

“Offense” under this section includes proceedings on contempt charges under [former] ORS 33.040 and thus, prosecution subsequent to contempt proceeding, for the same conduct, is barred. State v. Thompson, 294 Or 528, 659 P2d 383 (1983)

Prosecution of unauthorized use of vehicle charge after defendant pleaded guilty to DUII is barred by this section where charges involved common element that defendant was driving. State v. Grant, 66 Or App 906, 675 P2d 1120 (1984)

Driving under influence of intoxicants and unlawful possession of less than an ounce of marijuana do not constitute single criminal episode for purposes of statutory former jeopardy because none of elements of possession charge were necessary proof for DUII charge. State v. Williamson, 68 Or App 569, 681 P2d 1191 (1984)

Where possession of cocaine charge was not reasonably known to district attorney when defendant appeared in justice court to plead guilty to criminal mischief charge and to accept diversion on DUII charge, trial on possession charge was not barred by former jeopardy. State v. Anthony, 68 Or App 718, 683 P2d 559 (1984)

Where defendant pleaded guilty to misdemeanor of pointing firearm at another, subsequent prosecution for felony offense of ex-convict in possession of firearm arising from same incident is barred because burden of joinder is on state and defendant’s guilty plea did not waive double jeopardy defense. State v. Gardner, 71 Or App 590, 693 P2d 1303 (1984)

Where defendant pleaded no contest to theft in first degree by deception but, before sentencing, further evidence was presented to grand jury which returned indictment charging defendant with four additional counts of theft in first degree by deception, defendant was not placed in double jeopardy under this section. State v. Blair, 75 Or App 12, 705 P2d 752 (1985), Sup Ct review denied

Two deliveries of drugs separated by four-hour period are not “single criminal episode” just because agent who received drugs had initially ordered single quantity. State v. Hathaway, 82 Or App 509, 728 P2d 908 (1986), Sup Ct review denied

Defendant would be twice put in jeopardy if state were allowed to proceed with driving while suspended charge after defendant pleaded guilty to driving under influence of intoxicants charge because defendant’s conduct consisted of single forbidden act of driving. State v. Farley, 301 Or 668, 725 P2d 359 (1986)

Where defendant appealed conviction of driving while suspended on grounds he previously had been placed in jeopardy when convicted of giving false name to police officer during same criminal episode, for constitutional purposes, giving false identification was separate offense from unlawful driving because acts did not occur simultaneously and were not in pursuit of single objective. State v. Ellison, 301 Or 676, 725 P2d 363 (1986)

Where trial court granted mistrial after defense counsel proclaimed in presence of jury “the prosecution is hiding all the facts from the jury...and I’m trying to bring out the truth and nothing but the truth,” further prosecution on charge did not violate defendant’s right against twice being placed in jeopardy for same offense. State ex rel Wark v. Freerksen, 84 Or App 90, 733 P2d 100 (1987), Sup Ct review denied

This section is not violated if defendant is tried in single proceeding under single accusatory instrument and is acquitted by jury of crime and then convicted by court of lesser included offense which jury cannot try. State v. Cuffee, 87 Or App 293, 742 P2d 637 (1987)

Where defendants participated at restaurant in ongoing scheme to steal liquor sale proceeds from employer and thefts began in 1983 and continued until plan was discovered by employer in 1984, several felony theft and conspiracy indictments did not arise out of same criminal episode for purposes of double jeopardy statute. State v. Black/Tuttle, 89 Or App 359, 749 P2d 1185 (1988), Sup Ct review denied

Defendant’s prosecution for traffic infraction did not statutorily bar prosecution for crime of driving while suspended. State v. Kambra, 93 Or App 156, 761 P2d 539 (1988), Sup Ct review denied

Where defendant’s contempt sentence was based on same event as burglary charge, burglary prosecution constituted double jeopardy. State v. McIntyre, 94 Or App 240, 764 P2d 972 (1988)

When defendant pleaded guilty on one count of criminally negligent homicide in indictment that contained four other counts, she waived her right to claim that subsequent trial on remaining charges constituted double jeopardy. State v. Schaffran, 95 Or App 329, 769 P2d 230 (1989)

Where defendant filed motion to dismiss charge of possession of controlled substance contending that earlier guilty plea to firearms charge barred further prosecution because simultaneous possession of concealed weapon and controlled substance is part of “same criminal activity,” trial court did not err in denying defendant’s motion nor was it an abuse of discretion not to allow evidentiary hearing on motion to dismiss because prosecutor lacked knowledge of sufficient facts to prosecute defendant on drug charge at time defendant pleaded guilty to misdemeanor charge. State v. Lowery, 95 Or App 583, 770 P2d 923 (1989)

Where defendant filed motion to dismiss first of two charges of driving under influence of intoxicants on ground of former jeopardy and two acts did not arise from “continuous and uninterrupted” conduct and constituted separate criminal episodes, trial court did not err in refusing to dismiss first charge. State v. Nguyen, 95 Or App 653, 771 P2d 279 (1989), Sup Ct review denied

Where indictments for delivery and possession of controlled substances did not arise out of same “criminal episode,” defendant’s prior conviction for possession of controlled substance does not bar prosecution on double jeopardy grounds. State v. Smith, 95 Or App 683, 770 P2d 950 (1989), Sup Ct review denied

Plea of guilty, where indictment alleged crime in May, barred subsequent prosecution where indictment alleged crime in January, when stipulated facts showed both prosecutions were for same offense. State v. Dane, 103 Or App 420, 797 P2d 1069 (1990)

Where defendant resisted arrest on charge of criminal contempt for violation of restraining order, but was subsequently acquitted on criminal contempt charge, resisting arrest and violation of restraining order were not part of same criminal episode and trial court erred in allowing motion to dismiss charge of resisting arrest on ground of former jeopardy. State v. Stolz, 106 Or App 144, 806 P2d 715 (1991)

No former jeopardy existed where all predicate offenses in Attorney General’s prosecution under ORS 166.720 were not included in counties’ earlier indictments. State v. Cooper, 107 Or App 183, 810 P2d 1343 (1991)

Defendant’s guilty plea to theft does not bar subsequent prosecution of burglary when requirements of ORS 131.525 are met. State v. Wilson, 115 Or App 217, 836 P2d 1380 (1992)

Acquittal on indicted charge does not bar state from retrying defendant under ORS 131.525 on lesser included offense for which jury could not agree on verdict. State v. Perks, 118 Or App 336, 847 P2d 866 (1993), Sup Ct review denied

Under exception provided in [former] ORS 153.585, defendant’s prosecution for traffic infraction of driving without license does not bar subsequent prosecution for crime of failure to carry or present driver license, even though both are part of same criminal episode. State v. Darlin, 122 Or App 172, 857 P2d 859 (1993)

Where partially based on comments made during sentencing proceeding, determination that former jeopardy barred prosecution was not supported by appropriate record. State v. Delker, 123 Or App 129, 858 P2d 1345 (1993), Sup Ct review denied

Prosecutor’s suspicion that other wrongful acts occurred did not mean that prosecutor had reasonable knowledge or that acts could have been known to prosecutor at time of first prosecution. State ex rel Juv. Dept. v. Nelson, 124 Or App 562, 863 P2d 497 (1993), Sup Ct review denied

Hung jury exception in ORS 131.525 applies for all subsequent prosecutions, whether for same offense or based on new charges or theories. State v. Toste, 196 Or App 11, 100 P3d 738 (2004), Sup Ct review denied

Finding of guilty on lesser included offense operates as acquittal only for greater inclusive offense charged in same count. State v. Warner, 200 Or App 65, 112 P3d 464 (2005), aff’d342 Or 361, 153 P3d 674 (2007)

Where case is remanded for resentencing, empaneling jury to determine facts necessary to support sentence enhancement does not expose defendant to second prosecution for same offense. State v. Sawatzky, 339 Or 689, 125 P3d 722 (2005)

Pretrial dismissal of charges with prejudice is not prosecution. State v. Norkeveck, 214 Or App 553, 168 P3d 265 (2007), Sup Ct review denied

Law Review Citations

53 OLR 101, 104, 105 (1973); 55 OLR 368-374 (1976); 66 OLR 953 (1987); 70 OLR 112 (1991); 27 WLR 913 (1991)

General definitions
“Victim” defined
Application to prior and subsequent actions
Parties in criminal action
When departures, errors or mistakes in pleadings or proceedings are material
When law enforcement officer may communicate with person represented by counsel
Appearances by simultaneous electronic transmission
Timeliness of criminal actions
Time limitations
When prosecution commenced
When time starts to run
Tolling of statute
Definition for ORS 131.205 to 131.235
Criminal homicide
Place of trial
Special provisions
Place of trial
Change of venue
Motion for change of venue
Change of venue for prejudice
Change of venue in other cases
Notification on change of venue
When change of venue is complete
Expenses of change
Attendance of defendant at new place of trial
Conveyance of defendant in custody after change of venue
Definitions for ORS 131.505 to 131.525
Previous prosecution
Previous prosecution
Proceedings not constituting acquittal
Definitions for ORS 131.550 to 131.600
Legislative findings
Right, title and interest in forfeited property vests in seizing agency
Property subject to forfeiture
Seizure of property subject to forfeiture
Status of seized property
Motor vehicle with hidden compartment
Recorded notice of intent to forfeit real property
Notice of seizure for forfeiture
Petition for expedited hearing
Order restoring custody of property after expedited hearing
Affidavit in response to notice of seizure for forfeiture
Prosecution of criminal forfeiture
Extent of judgment
Judgment of forfeiture
Equitable distribution of property or proceeds
Disposition and distribution of forfeited property when seizing agency not the state
Disposition and distribution of forfeited property when seizing agency is the state
Record keeping and reporting requirements
Prohibited conduct for purposes of instrumentalities of crime
Disposition of forfeited cigarettes
Definitions for ORS 131.605 to 131.625
Stopping of persons
Frisk of stopped persons
Detention and interrogation of persons suspected of theft committed in a store or unlawful operation of audiovisual device in a motion picture theater
Prevention by public officers
Dispersal of unlawful assemblages
Authority of Governor to enter into agreements with other states for crime prevention purposes
Definitions for ORS 131.705 to 131.735
Proclamation of emergency period by Governor
Exclusion from public property
Review of exclusion order
Authority to employ special agents
Presentment of facts to circuit court
Request that judge of another district conduct hearing
Appointment of special officers on finding that laws are not enforced
Qualifying of special officers
Compensation of special officers
Effect of appointment of special officers on salary of regular officers
Appointment of railroad police officers
Offer of reward
Entitlement to reward
Offer of reward for information on commission of criminal offense
Procedure for payment
Authority to order repayment of reward as part of sentence
Liability for medical expenses for person restrained, detained or taken into custody
Legislative findings
Law Enforcement Contacts Policy and Data Review Committee
Funding contributions
Moneys received
Policies and procedures prohibiting profiling
Complaints alleging profiling
Collection of officer-initiated stop data
Analysis of stop data to identify profiling
Training for law enforcement agencies
Green check means up to date. Up to date