Arraignment and Pretrial Provisions

ORS 135.240
Releasable offenses


(1)

Except as provided in subsections (2), (4) and (5) of this section, a defendant shall be released in accordance with ORS 135.230 (Definitions for ORS 135.230 to 135.290) to 135.290 (Punishment by contempt of court).

(2)

(a) When the defendant is charged with murder, aggravated murder or treason, release shall be denied when the proof is evident or the presumption strong that the person is guilty.

(b)

When the defendant is charged with murder or aggravated murder and the proof is not evident nor the presumption strong that the defendant is guilty, the court shall determine the issue of release as provided in subsection (4) of this section. In determining the issue of release under subsection (4) of this section, the court may consider any evidence used in making the determination required by this subsection.

(3)

The magistrate may conduct such hearing as the magistrate considers necessary to determine whether, under subsection (2) of this section, the proof is evident or the presumption strong that the person is guilty.

(4)

(a) Except as otherwise provided in subsection (5) of this section, when the defendant is charged with a violent felony, release shall be denied if the court finds:

(A)

Except when the defendant is charged by indictment, that there is probable cause to believe that the defendant committed the crime; and

(B)

By clear and convincing evidence, that there is a danger of physical injury or sexual victimization to the victim or members of the public by the defendant while on release.

(b)

If the defendant wants to have a hearing on the issue of release, the defendant must request the hearing at the time of arraignment in circuit court. If the defendant requests a release hearing, the court must hold the hearing within five days of the request.

(c)

At the release hearing, unless the state stipulates to the setting of security or release, the court shall make the inquiry set forth in paragraph (a) of this subsection. The state has the burden of producing evidence at the release hearing subject to ORS 40.015 (Rule 101. Applicability of Oregon Evidence Code) (4).

(d)

The defendant may be represented by counsel and may present evidence on any relevant issue. However, the hearing may not be used for purposes of discovery.

(e)

If the court determines that the defendant is eligible for release in accordance with this subsection, the court shall set security or other appropriate conditions of release.

(f)

When a defendant who has been released violates a condition of release and the violation:

(A)

Constitutes a new criminal offense, the court shall cause the defendant to be taken back into custody and shall order the defendant held pending trial without release.

(B)

Does not constitute a new criminal offense, the court may order the defendant to be taken back into custody, may order the defendant held pending trial and may set a security amount of not less than $250,000.

(5)

(a) Notwithstanding any other provision of law, the court shall set a security amount of not less than $50,000 for a defendant charged with an offense listed in ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences) or 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court) unless the court determines that amount to be unconstitutionally excessive, and may not release the defendant on any form of release other than a security release if:

(A)

The United States Constitution or the Oregon Constitution prohibits the denial of release under subsection (4) of this section;

(B)

The court determines that the defendant is eligible for release under subsection (4) of this section; or

(C)

The court finds that the offense is not a violent felony.

(b)

In addition to the security amount described in paragraph (a) of this subsection, the court may impose any supervisory conditions deemed necessary for the protection of the victim and the community. When a defendant who has been released violates a condition of release and the violation:

(A)

Constitutes a new criminal offense, the court shall cause the defendant to be taken back into custody, shall order the defendant held pending trial and shall set a security amount of not less than $250,000.

(B)

Does not constitute a new criminal offense, the court may order the defendant to be taken back into custody, may order the defendant held pending trial and may set a security amount of not less than $250,000.

(6)

For purposes of this section, “violent felony” means a felony offense in which there was an actual or threatened serious physical injury to the victim, or a felony sexual offense. [1973 c.836 §148; 1997 c.313 §19; 2001 c.104 §45; 2007 c.194 §1; 2007 c.879 §9]

See also annotations under ORS 140.020 and 140.030 in permanent edition.

Notes of Decisions

Where record supported trial court's finding that evidence of accused's guilt was strong and trial court's conclusion that she was not entitled to release, Supreme Court would not use writ of habeas corpus to look to reasons behind trial court order. Haynes v. Burks, 290 Or 75, 619 P2d 632 (1980)

Requirement that release be denied absent clear and convincing evidence that defendant will not commit new crimes while on release violates right to bail under section 14, Article I of Oregon Constitution. State v. Sutherland, 329 Or 359, 987 P2d 501 (1999)

Defendant has right to hearing to challenge propriety of applying statutory $50,000 security amount. State v. Sutherland, 329 Or 359, 987 P2d 501 (1999)

In demonstrating to court that proof of murder defendant's guilt is evident or presumption of guilt is strong, state may rely on evidence that would not be admissible at trial. Rico-Villalobos v. Guisto, 339 Or 197, 118 P3d 246 (2005)

Law Review Citations

51 OLR 652, 662 (1972)

§§ 135.230 to 135.290

See also annotations under ORS 135.190 in permanent edition.

Notes of Decisions

Enactment of these sections did not deprive bail bondsmen of their right to engage in the bail bond business, and did not violate the provisions of the Oregon or United States Constitutions. Burton v. Tomlinson, 19 Or App 247, 527 P2d 123 (1974)

The pretrial release provisions of ORS 135.230 to 135.290 do not violate Art. I, §14 of the Oregon Constitution. Burton v. Tomlinson, 19 Or App 247, 527 P2d 123 (1974)

No one may be released from custody without executing and filing release agreement with clerk of court. Knutson v. Cupp, 287 Or 489, 601 P2d 129 (1979)

Atty. Gen. Opinions

Security release deposits as bail, (1979) Vol 40, p 139

Law Review Citations

53 OLR 273-337 (1974); 66 OLR 661 (1987)


Source

Last accessed
Jun. 26, 2021