(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.
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]