Judgment and Execution

ORS 137.540
Conditions of probation

  • evaluation and treatment
  • fees
  • effect of failure to abide by conditions
  • modification


(1)

The court may sentence the defendant to probation subject to the following general conditions unless specifically deleted by the court. The probationer shall:

(a)

Pay supervision fees, fines, restitution or other fees ordered by the court.

(b)

Not use or possess controlled substances except pursuant to a medical prescription.

(c)

Submit to testing for controlled substance, cannabis or alcohol use if the probationer has a history of substance abuse or if there is a reasonable suspicion that the probationer has illegally used controlled substances.

(d)

Participate in a substance abuse evaluation as directed by the supervising officer and follow the recommendations of the evaluator if there are reasonable grounds to believe there is a history of substance abuse.

(e)

Remain in the State of Oregon until written permission to leave is granted by the Department of Corrections or a county community corrections agency.

(f)

If physically able, find and maintain gainful full-time employment, approved schooling, or a full-time combination of both. Any waiver of this requirement must be based on a finding by the court stating the reasons for the waiver.

(g)

Change neither employment nor residence without prior permission from the Department of Corrections or a county community corrections agency.

(h)

Permit the parole and probation officer to visit the probationer or the probationer’s work site or residence and to conduct a walk-through of the common areas and of the rooms in the residence occupied by or under the control of the probationer.

(i)

Consent to the search of person, vehicle or premises upon the request of a representative of the supervising officer if the supervising officer has reasonable grounds to believe that evidence of a violation will be found, and submit to fingerprinting or photographing, or both, when requested by the Department of Corrections or a county community corrections agency for supervision purposes.

(j)

Obey all laws, municipal, county, state and federal.

(k)

Promptly and truthfully answer all reasonable inquiries by the Department of Corrections or a county community corrections agency.

(L)

Not possess weapons, firearms or dangerous animals.

(m)

Report as required and abide by the direction of the supervising officer.

(n)

If recommended by the supervising officer, successfully complete a sex offender treatment program approved by the supervising officer and submit to polygraph examinations at the direction of the supervising officer if the probationer:

(A)

Is under supervision for a sex offense under ORS 163.305 (Definitions) to 163.467 (Private indecency);

(B)

Was previously convicted of a sex offense under ORS 163.305 (Definitions) to 163.467 (Private indecency); or

(C)

Was previously convicted in another jurisdiction of an offense that would constitute a sex offense under ORS 163.305 (Definitions) to 163.467 (Private indecency) if committed in this state.

(o)

Participate in a mental health evaluation as directed by the supervising officer and follow the recommendation of the evaluator.

(p)

If required to report as a sex offender under ORS 163A.015 (Reporting by sex offender discharged, released or placed on probation by court or another United States jurisdiction), report with the Department of State Police, a city police department, a county sheriff’s office or the supervising agency:

(A)

When supervision begins;

(B)

Within 10 days of a change in residence;

(C)

Once each year within 10 days of the probationer’s date of birth;

(D)

Within 10 days of the first day the person works at, carries on a vocation at or attends an institution of higher education; and

(E)

Within 10 days of a change in work, vocation or attendance status at an institution of higher education.

(q)

Submit to a risk and needs assessment as directed by the supervising officer and follow reasonable recommendations resulting from the assessment.

(2)

In addition to the general conditions, the court may impose any special conditions of probation that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both, including, but not limited to, that the probationer shall:

(a)

For crimes committed prior to November 1, 1989, and misdemeanors committed on or after November 1, 1989, be confined to the county jail or be restricted to the probationer’s own residence or to the premises thereof, or be subject to any combination of such confinement and restriction, such confinement or restriction or combination thereof to be for a period not to exceed one year or one-half of the maximum period of confinement that could be imposed for the offense for which the defendant is convicted, whichever is the lesser.

(b)

For felonies committed on or after November 1, 1989:

(A)

Be confined in the county jail, or be subject to other custodial sanctions under community supervision, or both, as provided by rules of the Oregon Criminal Justice Commission; and

(B)

Comply with any special conditions of probation that are imposed by the supervising officer in accordance with subsection (9) of this section.

(c)

For crimes committed on or after December 5, 1996, sell any assets of the probationer as specifically ordered by the court in order to pay restitution.

(d)

For crimes constituting delivery of a controlled substance, as those terms are defined in ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980), or for telephonic harassment under ORS 166.090 (Telephonic harassment), or for crimes involving domestic violence, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290), be prohibited from using Internet websites that provide anonymous text message services.

(3)

(a) If a person is released on probation following conviction of stalking under ORS 163.732 (Stalking) (2)(b) or violating a court’s stalking protective order under ORS 163.750 (Violating a court’s stalking protective order) (2)(b), the court may include as a special condition of the person’s probation reasonable residency restrictions.

(b)

If the court imposes the special condition of probation described in this subsection and if at any time during the period of probation the victim moves to a location that causes the probationer to be in violation of the special condition of probation, the court may not require the probationer to change the probationer’s residence in order to comply with the special condition of probation.

(4)

When a person who is a sex offender is released on probation, the court shall impose as a special condition of probation that the person not reside in any dwelling in which another sex offender who is on probation, parole or post-prison supervision resides, without the approval of the person’s supervising parole and probation officer, or in which more than one other sex offender who is on probation, parole or post-prison supervision resides, without the approval of the director of the probation agency that is supervising the person or of the county manager of the Department of Corrections, or a designee of the director or manager. As soon as practicable, the supervising parole and probation officer of a person subject to the requirements of this subsection shall review the person’s living arrangement with the person’s sex offender treatment provider to ensure that the arrangement supports the goals of offender rehabilitation and community safety. As used in this subsection:

(a)

“Dwelling” has the meaning given that term in ORS 469B.100 (Definitions for ORS 469B.100 to 469B.118).

(b)

“Dwelling” does not include a residential treatment facility or a halfway house.

(c)

“Halfway house” means a publicly or privately operated profit or nonprofit residential facility that provides rehabilitative care and treatment for sex offenders.

(d)

“Sex offender” has the meaning given that term in ORS 163A.005 (Definitions for ORS 163A.005 to 163A.235).

(5)

(a) If the person is released on probation following conviction of a sex crime, as defined in ORS 163A.005 (Definitions for ORS 163A.005 to 163A.235), or an assault, as defined in ORS 163.175 (Assault in the second degree) or 163.185 (Assault in the first degree), and the victim was under 18 years of age, the court, if requested by the victim, shall include as a special condition of the person’s probation that the person not reside within three miles of the victim unless:

(A)

The victim resides in a county having a population of less than 130,000 and the person is required to reside in that county;

(B)

The person demonstrates to the court by a preponderance of the evidence that no mental intimidation or pressure was brought to bear during the commission of the crime;

(C)

The person demonstrates to the court by a preponderance of the evidence that imposition of the condition will deprive the person of a residence that would be materially significant in aiding in the rehabilitation of the person or in the success of the probation; or

(D)

The person resides in a halfway house. As used in this subparagraph, “halfway house” means a publicly or privately operated profit or nonprofit residential facility that provides rehabilitative care and treatment for sex offenders.

(b)

A victim may request imposition of the special condition of probation described in this subsection at the time of sentencing in person or through the prosecuting attorney.

(c)

If the court imposes the special condition of probation described in this subsection and if at any time during the period of probation the victim moves to within three miles of the probationer’s residence, the court may not require the probationer to change the probationer’s residence in order to comply with the special condition of probation.

(6)

When a person who is a sex offender, as defined in ORS 163A.005 (Definitions for ORS 163A.005 to 163A.235), is released on probation, the Department of Corrections or the county community corrections agency, whichever is appropriate, shall notify the city police department, if the person is going to reside within a city, and the county sheriff’s office of the county in which the person is going to reside of the person’s release and the conditions of the person’s release.

(7)

Failure to abide by all general and special conditions of probation may result in arrest, modification of conditions, revocation of probation or imposition of structured, intermediate sanctions in accordance with rules adopted under ORS 137.595 (Establishing system of sanctions).

(8)

The court may order that probation be supervised by the court. If the court orders that probation be supervised by the court, the defendant shall pay a fee of $100 to the court. Fees imposed under this subsection in the circuit court shall be deposited by the clerk of the court in the General Fund. Fees imposed in a justice court under this subsection shall be paid to the county treasurer. Fees imposed in a municipal court under this subsection shall be paid to the city treasurer.

(9)

(a) The court may at any time modify the conditions of probation.

(b)

When the court orders a defendant placed under the supervision of the Department of Corrections or a community corrections agency, the supervising officer may file with the court a proposed modification to the special conditions of probation. The supervising officer shall provide a copy of the proposed modification to the district attorney and the probationer. If the district attorney:

(A)

Files an objection to the proposed modification less than five judicial days after the proposed modification was filed, the court shall schedule a hearing no later than 10 judicial days after the proposed modification was filed, unless the court finds good cause to schedule a hearing at a later time.

(B)

Does not file an objection to the proposed modification less than five judicial days after the proposed modification was filed, the proposed modification becomes effective five judicial days after the proposed modification was filed.

(10)

A court may not order revocation of probation as a result of the probationer’s failure to pay restitution unless the court determines from the totality of the circumstances that the purposes of the probation are not being served.

(11)

It is not a cause for revocation of probation that the probationer failed to apply for or accept employment at any workplace where there is a labor dispute in progress. As used in this subsection, “labor dispute” has the meaning for that term provided in ORS 662.010 (Labor disputes).

(12)

(a) If the court determines that a defendant has violated the terms of probation, the court shall collect a $25 fee from the defendant and may impose a fee for the costs of extraditing the defendant to this state for the probation violation proceeding if the defendant left the state in violation of the conditions of the defendant’s probation. The fees imposed under this subsection become part of the judgment and may be collected in the same manner as a fine.

(b)

Probation violation fees collected under this subsection in the circuit court shall be deposited by the clerk of the court in the General Fund. Extradition cost fees collected in the circuit court under this subsection shall be deposited by the clerk of the court in the Arrest and Return Account established by ORS 133.865 (Arrest and Return Account). Fees collected in a justice court under this subsection shall be paid to the county treasurer. Fees collected in a municipal court under this subsection shall be paid to the city treasurer.

(13)

As used in this section, “attends,” “institution of higher education,” “works” and “carries on a vocation” have the meanings given those terms in ORS 163A.005 (Definitions for ORS 163A.005 to 163A.235). [Amended by 1965 c.346 §1; 1969 c.597 §125; 1977 c.371 §3; 1977 c.380 §2; 1981 c.671 §1; 1983 c.588 §2; 1985 c.818 §2; 1987 c.780 §3; 1989 c.790 §16; 1991 c.196 §1; 1991 c.630 §5; 1991 c.731 §1; 1993 c.14 §11; 1993 c.680 §16; 1997 c.313 §24; 1999 c.626 §11; amendments by 1999 c.626 §34 repealed by 2001 c.884 §1; 2001 c.726 §§1,2; 2001 c.884 §5; 2005 c.264 §3; 2005 c.558 §1; 2005 c.567 §8; 2005 c.576 §1a; 2005 c.642 §1; 2009 c.111 §1; 2009 c.204 §5; 2009 c.659 §§21,23; 2009 c.713 §11; 2011 c.595 §162; 2013 c.649 §24; 2015 c.198 §1; 2015 c.350 §2; 2017 c.21 §40; 2017 c.670 §3; 2017 c.689 §1; 2018 c.120 §10]

Notes of Decisions

Specific condition prohibiting entry into marriage without court permission was valid. State v. Allen, 12 Or App 455, 506 P2d 528 (1973), Sup Ct review denied

Specific condition prohibiting association with any person ever convicted of crime was not facially invalid. State v. Allen, 12 Or App 455, 506 P2d 528 (1973), Sup Ct review denied

The fact that defendant's conviction is for an attempt to commit theft would not preclude the court from conditioning probation upon restitution of the amount actually taken, even though a larger amount. State v. Foltz, 14 Or App 582, 513 P2d 1208 (1973), Sup Ct review denied

The "aggrieved party" status is limited to the owner of the automobile damaged. State v. Getsinger, 27 Or App 339, 556 P2d 147 (1976)

"Restitution" means return of sum of money, object or value of object which defendant wrongfully obtained in course of committing crime. State v. Stalheim, 275 Or 683, 552 P2d 829 (1976)

"Reparation" encompasses only reimbursement for victim's liquidated or easily measurable damages resulting from charged offense, embracing medical expenses, wages actually lost, and reimbursement for easily measurable property damage. State v. Stalheim, 275 Or 683, 552 P2d 829 (1976)

A probationer retains all civil liberties except those which are taken away as conditions of probation and the standard against which the validity of conditions imposed is to be measured is whether they bear a reasonable relationship to the reformation of the offender or the protection of the public; overruling State v. Davis/Travis, 9 Or App 412, 496 P2d 923 (1972), Sup Ct review denied. State v. Culbertson, 29 Or App 363, 563 P2d 1224 (1977)

Condition of probation, requiring defendant convicted of criminally negligent homicide to pay $7,100 to victim's estate, was improper absent evidence that such sum constituted reparation or reimbursement for liquidated or easily measurable damages actually resulting from the offense. State v. Wanrow, 30 Or App 75, 566 P2d 533 (1977)

In trial of defendant convicted of theft and resale of $18,000 antique auto, court order requiring restitution of $18,000 within ninety days as condition of probation did not set forth so short a repayment period as to make condition impossible, was not inconsistent with court's prior finding that defendant was indigent for purposes of appointment of counsel, and was not abuse of discretion. State v. Ledder, 31 Or App 487, 570 P2d 994 (1977)

Probation condition, requiring consent of defendant to warrantless searches for drugs of her person, premises, or vehicle at any time, was not demonstrably in aid of her probation following guilty plea to check forgery. State v. Fisher, 32 Or App 465, 547 P2d 354 (1978), Sup Ct review denied

Condition of probation, requiring defendant to make restitution for items which she was not convicted of taking and had not admitted taking, was improper. State v. Cox, 35 Or App 169, 581 P2d 104 (1978)

Where probation condition interferes with marital right, court must consider whether spouse would be bad influence endangering rehabilitation or public safety and whether restriction less than total separation would protect societal interests. State v. Martin, 282 Or 583, 580 P2d 536 (1978); State v. Saxon, 131 Or App 662, 886 P2d 505 (1994)

Condition requiring probationer to submit to polygraph tests could constitutionally be imposed with no more than general finding of court that it was reasonably necessary to accomplish purpose of probation. State v. Age, 38 Or App 501, 590 P2d 759 (1979)

Under former statute, which allowed reparation or restitution to crime victim, estate of homicide victim was not direct victim of crime entitled to restitution. State v. Wanrow, 39 Or App 13, 591 P2d 751 (1979)

Conditions of probation may not be fixed by probation officers. State v. Maag, 41 Or App 133, 579 P2d 838 (1979)

Imposition of probation condition that allowed probation officer to search probationer's person, residence, or property without warrant at any time was invalid where this condition was imposed by probation officer and not by sentencing court. State v. Stephens, 47 Or App 305, 614 P2d 1180 (1980)

Trial court had no authority to require defendant to pay probation fee. State v. Haynes, 53 Or App 850, 633 P2d 38 (1981), Sup Ct review denied

Where defendant was convicted on two felony counts for crimes committed while on probation for earlier felony conviction and court continued earlier probation but added new conditions by imposing consecutive county jail terms of imprisonment to be served after prison term for most recent convictions, court could act under authority of this section to modify conditions of probation. State v. Walker, 77 Or App 464, 713 P2d 612 (1986), Sup Ct review denied

When defendant is placed on probation and, as condition of that probation, he is ordered to serve 180 days, with 165 days suspended, trial court may require him to serve that 165 days when he violates conditions of probation, and still continue probation. State v. Kreitzer, 85 Or App 151, 735 P2d 1274 (1987)

Trial court had statutory authority to increase DUII defendant's jail time by modifying conditions of probation although defendant had not violated terms of probation. State v. Jones, 90 Or App 176, 750 P2d 1211 (1988)

Where submission to searches as condition of probation is authorized only if probation officer has reasonable grounds to believe that search will disclose evidence of probation violation, search imposed to verify compliance with conditions of probation fails to conform to statute. State v. Schwab, 95 Or App 593, 771 P2d 277 (1989); State v. Guzman, 164 Or App 90, 990 P2d 370 (1999), Sup Ct review denied

Where defendant pleaded guilty to rape in second degree of girl under age 14, probation condition that defendant not be present in any private residence or vehicle with child under age 18 was proper for protection of public. State v. Crocker, 96 Or App 111, 771 P2d 1026 (1989)

Where trial court imposed as condition of probation that defendant build entire new fence, record that shows cattle strayed through hole in fence not sufficient to support condition of probation that defendant build entire new fence. State v. Holdner, 96 Or App 445, 772 P2d 1382 (1989), Sup Ct review denied

Authority of probation officer to conduct home visit does not encompass authority to conduct search. State v. Altman, 97 Or App 462, 777 P2d 969 (1989); State v. Guzman, 164 Or App 90, 990 P2d 370 (1999), Sup Ct review denied

Court did not err in assessing, as condition of probation, $250 rather than $90 for reimbursement of court-appointed attorney fees since only evidence regarding what state would pay for defendant's representation was his counsel's $250 calculation during sentencing. State v. Westby, 99 Or App 371, 781 P2d 1270 (1989)

Special condition of probation may be imposed only for purposes specified by statute and not as additional punishment. State v. Donovan, 307 Or 461, 770 P2d 581 (1989); State v. Qualey, 138 Or App 74, 906 P2d 835 (1995)

Trial court has authority to modify conditions of probation and extend it without finding violation of probation. State v. Stanford, 100 Or App 303, 786 P2d 225 (1990)

Although court may prohibit defendant from possessing and owning firearms as condition of probation, court may not confiscate and destroy defendant's firearms under this section. State v. Wilson 105 Or App 20, 803 P2d 769 (1990)

Condition of probation requiring confinement for conviction of misdemeanor was impermissible. State v. Wold, 105 Or App 158, 803 P2d 782 (1991); State v. Armstrong, 106 Or App 486, 808 P2d 109 (1991); State v. Taylor, 115 Or App 76, 836 P2d 755 (1992)

In exercising discretion under this section, court may not exceed sentence defined by other statute. State v. Stockton, 105 Or App 162, 803 P2d 1227 (1991)

Department of Corrections, acting through probation officers, is responsible for notifying sentencing court of probation violations. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)

Discretionary immunity under ORS 30.265 does not protect probation officer from liability for exercising reporting duties. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)

Court has no authority to impose jail sentence as condition of probation for misdemeanor offense committed after November 1, 1989. State v. Van Gorder, 108 Or App 333, 813 P2d 1136 (1991)

ORS 813.020 controls misdemeanor DUII convictions, and this section has no application to those convictions. State v. Oary, 109 Or App 580, 820 P2d 857 (1991), as modified by 112 Or App 296, 829 P2d 90 (1992); State v. Taylor, 115 Or App 76, 836 P2d 755 (1992)

Court erred in authorizing searches by probation officer without including requirement they be based on reasonable grounds to believe search would disclose evidence of probation violation. State v. Tejeda, 111 Or App 201, 826 P2d 25 (1992)

Limits placed on defendant's contact with his wife secured public's safety and interfered with his marital rights only to permissible degree. State v. Gilkey, 111 Or App 303, 826 P2d 69 (1992)

Evidence that defendant's codefendant and boyfriend was involved in methamphetamine manufacturing and trafficking and that he had recently been shot in narcotics related incident was sufficient to sustain trial court's imposition as condition of probation that defendant refrain from associating with him. State v. Quackenbush, 113 Or App 263, 832 P2d 1236 (1992)

Trial court must make fact record that condition of probation is appropriate. State v. Quackenbush, 113 Or App 263, 832 P2d 1236 (1992)

Where, as condition of probation, defendant was required to take Antabuse but order did not make condition subject to medical approval as required by this section and orders concerning urine, blood and breath tests and polygraph tests did not list terms and limitations required by this section, remand for resentencing was required. State v. Robertson, 113 Or App 467, 833 P2d 326 (1992)

Board of Parole erred in imposing parole condition that prohibited petitioner from entering or residing in named county because restriction was broader than necessary to accomplish purpose of protecting victim or other potential victims. Owens v. Board of Parole, 113 Or App 507, 834 P2d 547 (1992)

Trial court has discretion to fashion its own condition of probation if condition serves to reform offender or to protect public. State v. Caffee, 116 Or App 23, 840 P2d 720 (1992), Sup Ct review denied

Retroactive application of amended version of this section violates constitutional proscription against ex post facto laws, because amended version of this section exposes defendant to greater punishment than defendant faced when defendant committed offense. State v. Harding, 116 Or App 29, 840 P2d 113 (1992), Sup Ct review denied

This statute reflects legislative policy that trial courts should have maximum flexibility to determine conditions of probation and modify those conditions "at any time." State v. Peterson, 116 Or App 418, 841 P2d 666 (1992)

Trial court has continuing jurisdiction to administer probation, which, despite filing of appeal, includes modifying conditions of probation. State v. Peterson, 116 Or App 418, 841 P2d 666 (1992)

Trial court could not require defendant to submit to personal search by police as condition of probation where statute specifically limits such searches to probation officers. State v. Smith, 117 Or App 473, 844 P2d 276 (1992)

Court erred in imposing separate probation conditions for merged offenses. State v. Brown, 122 Or App 632, 857 P2d 915 (1993), Sup Ct review denied

Prohibiting probationer in child endangerment case from residing with spouse if spouse used illegal drugs did not impermissibly interfere with marriage right. State v. McSweeney, 123 Or App 460, 860 P2d 305 (1993)

Provision identifying personnel authorized to perform searches related to parole violations did not restrict searches by other personnel for other purposes. State v. Campbell, 128 Or App 592, 876 P2d 799 (1994)

Probationer's mere acquiescence to search by probation officer can constitute consent where evidence of undue coercion is absent. State v. Davis, 133 Or App 467, 891 P2d 1373 (1995), Sup Ct review denied

"Reasonable grounds" for probation officer to search requires more than reasonable suspicion but less than probable cause. State v. Gulley, 324 Or 57, 921 P2d 396 (1996)

Probation officer has "reasonable grounds" to search if possessing information that causes officer to believe probationer is violating condition of probation and that search of probationer's person, residence, vehicle or property would disclose evidence of violation. State v. Gulley, 324 Or 57, 921 P2d 396 (1996)

Court may impose requirement that defendant pay cost of incarceration as general condition of probation. State v. Johnston, 176 Or App 418, 31 P3d 1101 (2001)

Sanctions available upon failure to abide by probation conditions are alternatives that are not mutually exclusive. State v. Melton, 189 Or App 411, 76 P3d 156 (2003)

State may separately adjudicate discrete probation violations. State v. Melton, 189 Or App 411, 76 P3d 156 (2003)

Where probation conditions are reasonably related to offense, court is not required to make particularized factual findings before imposing sex offender conditions on person convicted of nonsex offense. State v. McCollister, 210 Or App 1, 150 P3d 7 (2006)

Failure to make restitution payments, alone, is not sufficient to establish that purpose of probation are not being served. State v. Kacin, 237 Or App 66, 240 P3d 1099 (2010)

Law Review Citations

10 WLJ 196 (1974); 55 OLR 101 (1976); 24 WLR 1159 (1988)


Source

Last accessed
Jun. 26, 2021