Offenses Against the State and Public Justice

ORS 162.135
Definitions for ORS 162.135 to 162.205

As used in ORS 162.135 (Definitions for ORS 162.135 to 162.205) to 162.205 (Failure to appear in the first degree), unless the context requires otherwise:


(a) “Contraband” means:


Controlled substances as defined in ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980);


Drug paraphernalia as defined in ORS 475.525 (Sale of drug paraphernalia prohibited);


Except as otherwise provided in paragraph (b) of this subsection, currency possessed by or in the control of an adult in custody confined in a correctional facility; or


Any article or thing which a person confined in a correctional facility, youth correction facility or state hospital is prohibited by statute, rule or order from obtaining or possessing, and whose use would endanger the safety or security of such institution or any person therein.


“Contraband” does not include authorized currency possessed by an adult in custody in a work release facility.


“Correctional facility” means any place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order and includes but is not limited to a youth correction facility. “Correctional facility” applies to a state hospital or a secure intensive community inpatient facility only as to persons detained therein charged with or convicted of a crime, or detained therein after having been found guilty except for insanity of a crime under ORS 161.290 (Incapacity due to immaturity) to 161.373 (Records for fitness to proceed examination).


“Currency” means paper money and coins that are within the correctional institution.


“Custody” means the imposition of actual or constructive restraint by a peace officer pursuant to an arrest or court order, but does not include detention in a correctional facility, youth correction facility or a state hospital.


“Escape” means the unlawful departure of a person from custody or a correctional facility. “Escape” includes the unauthorized departure or absence from this state or failure to return to this state by a person who is under the jurisdiction of the Psychiatric Security Review Board under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by board). “Escape” does not include failure to comply with provisions of a conditional release in ORS 135.245 (Release decision).


“Youth correction facility” means:


A youth correction facility as defined in ORS 420.005 (Definitions); and


A detention facility as defined in ORS 419A.004 (Definitions).


“State hospital” means the Oregon State Hospital and any other hospital established by law for similar purposes.


“Unauthorized departure” means the unauthorized departure of a person confined by court order in a youth correction facility or a state hospital that, because of the nature of the court order, is not a correctional facility as defined in this section, or the failure to return to custody after any form of temporary release or transitional leave from a correctional facility. [1971 c.743 §189; 1973 c.836 §342; 1983 c.740 §28; 1983 c.815 §7; 1985 c.565 §16; 1989 c.790 §53; 1991 c.809 §1; 1993 c.33 §307; 1995 c.738 §2; 1997 c.249 §47; 1999 c.504 §1; 2001 c.295 §8; 2001 c.900 §24; 2005 c.685 §10; 2007 c.14 §3; 2011 c.708 §21; 2013 c.36 §36; 2015 c.318 §8; 2017 c.442 §20; 2019 c.213 §39]

Notes of Decisions

The facts warranted submission to the jury the question whether defendant "escaped" within the meaning of this provision and a related provision, ORS 162.155, and not only a charge of attempt to escape, where defendant broke away and ran from a guard in courthouse parking lot and was caught only moments later, having never been more than 20 steps ahead of the guard. State v. Fitzgerald, 16 Or App 376, 518 P2d 678 (1974), Sup Ct review denied

The State of Oregon had no jurisdiction over the Indian defendant for an escape which occurred solely and entirely upon the Warm Springs Reservation. State v. Smith, 277 Or 251, 560 P2d 1066 (1977)

Definition of contraband is not unconstitutionally vague. State v. Williams, 37 Or App 419, 587 P2d 1049 (1978)

Evidence, inter alia, that two grams of marijuana were prized possession likely to be subject of contention between inmates was insufficient to establish that item was "article or thing whose use would endanger safety and security" of county jail or any person in it. State v. Franklin, 283 Or 439, 583 P2d 557 (1978)

Language of this section is broad enough to include marijuana as potentially being "contraband." State v. Meyer, 283 Or 449, 583 P2d 553 (1978)

Defendant, who fled when officer told her he had warrant for her arrest and wanted to talk with her about it, was not in "custody" at time of flight and did not commit "escape." State v. Gleason, 94 Or App 208, 764 P2d 964 (1988)

On remand, phrase "unlawful departure" in ORS 162.135 is not unconstitutionally vague since one can ascertain with reasonable degree of certainty when departure would be unlawful and when lawful. State v. McKenzie, 97 Or App 267, 775 P2d 907 (1989)

Notwithstanding statutory definition of "custody," as used in definition of "unauthorized departure," custody includes detention in correctional facility. State v. Galligan, 312 Or 35, 816 P2d 601 (1991)

Where defendant was cited for being minor in possession of alcohol and pulled away and ran when officers tried to take him to detoxification center, he was not in "custody" within meaning of this section. State v. McVay, 313 Or 292, 833 P2d 297 (1992)

Pretrial release into home detention program without posting security or being released on own recognizance constitutes conditional release that cannot form basis of escape charge. State v. Wilde, 123 Or App 493, 862 P2d 105 (1993)

As used in definition of unauthorized departure, "temporary release" means authorization for inmate to leave assigned quarters for particular purpose. State v. Manley, 326 Or 204, 951 P2d 686 (1997)

Inclusion of article on list of items banned by statute, rule or order does not, by itself, satisfy independent requirement that use of article would endanger safety or security of institution or person. State v. Hernandez, 186 Or App 86, 61 P3d 951 (2003)

For purposes of failure to appear statute (ORS 162.205), "custody" does not include constructive restraint by court. State v. Ford, 207 Or App 407, 142 P3d 107 (2006)

Person fails to return after temporary release if person is not in custody when temporary release expires. State v. Elvig, 230 Or App 57, 213 P3d 851 (2009)

When read with ORS 162.145, escape for purposes of escape in third degree occurs when person runs away from officer who lawfully asserted authority to control person's freedom in course of carrying out arrest. State v. Davis, 360 Or 201, 377 P3d 583 (2016)

Chapter 162

Law Review Citations

51 OLR 427-637 (1972)


Last accessed
Jun. 26, 2021