General Provisions

ORS 161.360
Qualifying mental disorder affecting fitness to proceed


If, before or during the trial in any criminal case, the court has reason to doubt the defendant’s fitness to proceed by reason of incapacity, the court may order an examination in the manner provided in ORS 161.365 (Procedure for determining issue of fitness to proceed).


A defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable:


To understand the nature of the proceedings against the defendant; or


To assist and cooperate with the counsel of the defendant; or


To participate in the defense of the defendant. [1971 c.743 §50; 1993 c.238 §1; 2017 c.634 §14]

Notes of Decisions

Competency to stand trial includes competency to choose whether to assert defense of nonresponsibility and court may not impose such defense over objection of defendant who was represented by counsel, had not raised defense and had been found competent to stand trial. State v. Peterson, 70 Or App 333, 689 P2d 985 (1984)

Where section makes it clear that motion for determination of fitness to proceed is not untimely at any time before or during trial in any criminal case and court did not discharge its duty to assess defendant's fitness to proceed, trial court erred in denying defendant's motion as untimely. State v. Gilmore, 102 Or App 102, 792 P2d 1242 (1990)

Atty. Gen. Opinions

Right of mentally diseased person to vote, (1972) Vol 35, p 1220

§§ 161.290 to 161.370

Law Review Citations

51 OLR 428 (1972); 52 OLR 285-295 (1973)

Chapter 161

Notes of Decisions

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Citations

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code


Notes of Decisions

Legislature's adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


Last accessed
Jun. 26, 2021