General Provisions

ORS 161.566
Misdemeanor treated as violation

  • prosecuting attorney’s election

(1)

Except as provided in subsection (4) of this section, a prosecuting attorney may elect to treat any misdemeanor as a Class A violation. The election must be made by the prosecuting attorney orally at the time of the first appearance of the defendant or in writing filed on or before the time scheduled for the first appearance of the defendant. If no election is made within the time allowed, the case shall proceed as a misdemeanor.

(2)

If a prosecuting attorney elects to treat a misdemeanor as a Class A violation under this section, the court shall amend the accusatory instrument to reflect the charged offense as a Class A violation and clearly denominate the offense as a Class A violation in any judgment entered in the matter. Notwithstanding ORS 153.021 (Minimum fines), the fine that a court may impose upon conviction of a violation under this section may not:

(a)

Be less than the presumptive fine established by ORS 153.019 (Presumptive fines) for a Class A violation; or

(b)

Exceed the maximum fine established by ORS 153.018 (Maximum fines) for a Class A violation.

(3)

If a prosecuting attorney elects to treat a misdemeanor as a Class A violation under this section, and the defendant fails to make any required appearance in the matter, the court may enter a default judgment against the defendant in the manner provided by ORS 153.102 (Entry). Notwithstanding ORS 153.021 (Minimum fines), the fine that the court may impose under a default judgment entered pursuant to ORS 153.102 (Entry) may not:

(a)

Be less than the presumptive fine established by ORS 153.019 (Presumptive fines) for a Class A violation; or

(b)

Exceed the maximum fine established by ORS 153.018 (Maximum fines) for a Class A violation.

(4)

A prosecuting attorney may not elect to treat misdemeanors created under ORS 811.540 (Fleeing or attempting to elude police officer) or 813.010 (Driving under the influence of intoxicants) as violations under the provisions of this section.

(5)

The election provided for in this section may be made by a city attorney acting as prosecuting attorney in the case of municipal ordinance offenses, a county counsel acting as prosecuting attorney under a county charter in the case of county ordinance offenses, and the Attorney General acting as prosecuting attorney in those criminal actions or proceedings within the jurisdiction of the Attorney General. [1999 c.1051 §47; 2003 c.737 §89; 2011 c.597 §16; 2012 c.82 §2]

Notes of Decisions

Where prosecuting attorney elects to treat misdemeanor as Class A violation, subject to constitutional constraints, offense is violation for purposes of applying ORS 153.108 to subsequent prosecution of defendant for crime that was part of same criminal episode. State v. Page, 200 Or App 55, 113 P3d 447 (2005), Sup Ct review denied; State v. Hewitt, 206 Or App 680, 138 P3d 873 (2006)

Source

Last accessed
May 30, 2023

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