Preliminary Provisions

ORS 131.535
Proceedings not constituting acquittal

The following proceedings will not constitute an acquittal of the same offense:


If the defendant was formerly acquitted on the ground of a variance between the accusatory instrument and the proof; or


If the accusatory instrument was:


Dismissed upon a demurrer to its form or substance;


Dismissed upon any pretrial motion; or


Discharged for want of prosecution without a judgment of acquittal. [1973 c.836 §29; 2001 c.104 §43]

See also annotations under ORS 135.890 in permanent edition.

Notes of Decisions

This section permits prosecution for two offenses arising out of the same transaction which may in fact be the same offense, if defendant is acquitted of the first charge on the ground of variance between the indictment and the proof. State v. Ayers, 16 Or App 655, 520 P2d 449 (1974), Sup Ct review denied

Termination of defendant’s first trial because of the illness of the trial judge was termination for “physical necessity” under this section and did not subject the defendant to double jeopardy. State v. Cole, 286 Or 411, 595 P2d 466 (1979)

Acquittal based on improper venue is analogous to one grounded on variance between accusatory instrument and proof so that reprosecution is not barred. State v. Garcia, 74 Or App 649, 704 P2d 544 (1985), Sup Ct review denied

This section, in providing that acquittal on basis of variance between accusatory instrument and proof does not constitute acquittal for double jeopardy purposes, does not violate double jeopardy clauses of Oregon and federal constitutions. State v. Helander, 92 Or App 108, 758 P2d 359 (1988)

Law Review Citations

10 WLJ 30 (1973)


Last accessed
May 30, 2023