Offenses Against Persons

ORS 163.738
Effect of citation

  • contents
  • hearing
  • court’s order
  • use of statements made at hearing

(1)(a) A citation shall notify the respondent of a circuit court hearing where the respondent shall appear at the place and time set forth in the citation. The citation shall contain:

(A)

The name of the court at which the respondent is to appear;

(B)

The name of the respondent;

(C)

A copy of the stalking complaint;

(D)

The date, time and place at which the citation was issued;

(E)

The name of the law enforcement officer who issued the citation;

(F)

The time, date and place at which the respondent is to appear in court;

(G)

Notice to the respondent that failure to appear at the time, date and place set forth in the citation shall result in the respondent’s arrest and entry of a court’s stalking protective order; and

(H)

Notice to the respondent of potential liability under federal law for the possession or purchase of firearms or firearm ammunition and for other acts prohibited by 18 U.S.C. 2261 to 2262.

(b)

The officer shall notify the petitioner in writing of the place and time set for the hearing.
(2)(a) The hearing shall be held as indicated in the citation. At the hearing, the petitioner may appear in person or by telephonic appearance. The respondent shall be given the opportunity to show cause why a court’s stalking protective order should not be entered. The hearing may be continued for up to 30 days. The court may enter:

(A)

A temporary stalking protective order pending further proceedings; or

(B)

A court’s stalking protective order if the court finds by a preponderance of the evidence that:

(i)

The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person’s immediate family or household thereby alarming or coercing the other person;

(ii)

It is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; and

(iii)

The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim’s immediate family or household.

(b)

In the order, the court shall specify the conduct from which the respondent is to refrain, which may include all contact listed in ORS 163.730 (Definitions for ORS 30) and any attempt to make contact listed in ORS 163.730 (Definitions for ORS 30). The order is of unlimited duration unless limited by law. If the respondent was provided notice and an opportunity to be heard, the court shall also include in the order, when appropriate, terms and findings sufficient under 18 U.S.C. 922 (d)(8) and (g)(8) to affect the respondent’s ability to possess firearms and ammunition or engage in activities involving firearms.

(3)

The circuit court may enter an order under this section against a minor respondent without appointment of a guardian ad litem.

(4)

If the respondent fails to appear at the time, date and place specified in the citation, the circuit court shall issue a warrant of arrest as provided in ORS 133.110 (Issuance) in order to ensure the appearance of the respondent at court and shall enter a court’s stalking protective order.

(5)

The circuit court may also order the respondent to undergo mental health evaluation and, if indicated by the evaluation, treatment. If the respondent is without sufficient resources to obtain the evaluation or treatment, or both, the court shall refer the respondent to the mental health agency designated by the community mental health director for evaluation or treatment, or both.

(6)

If the circuit court, the mental health evaluator or any other persons have probable cause to believe that the respondent is dangerous to self or others or is unable to provide for basic personal needs, the court shall initiate commitment procedures as provided in ORS 426.070 (Initiation) or 426.180 (Emergency commitment of individuals in Indian country).

(7)

A law enforcement officer shall report the results of any investigation arising from a complaint under ORS 163.744 (Initiation of action seeking citation) to the district attorney within three days after presentation of the complaint.

(8)

Except for purposes of impeachment, a statement made by the respondent at a hearing under this section may not be used as evidence in a prosecution for stalking as defined in ORS 163.732 (Stalking) or for violating a court’s stalking protective order as defined in ORS 163.750 (Violating a court’s stalking protective order). [1993 c.626 §4; 1995 c.353 §4; 1997 c.863 §6; 1999 c.1052 §2; 2003 c.292 §2]
Note: See note under 163.730 (Definitions for ORS 30).

Notes of Decisions

Statutory and constitutional rights to counsel do not apply to hearing for issuance of court stalking protective order because subject is not defendant in criminal action. Johnson v. McGrew, 137 Or App 55, 902 P2d 1209 (1995), Sup Ct review denied

Inclusion of potentially protected speech as conduct that court may elect to prohibit by protective stalking order does not make statute facially overbroad. Shook v. Ackert, 152 Or App 224, 952 P2d 1044 (1998)

Where source of reasonable alarm is causally unrelated to action constituting contact, prerequisites for stalking protective order are not met. Schiffner v. Banks, 177 Or App 86, 33 P3d 701 (2001)

Averments required in stalking complaint form, without presentation of additional evidence at hearing, do not provide basis for issuance of permanent stalking protective order. Lomax v. Carr, 194 Or App 518, 95 P3d 1163 (2004)

Source

Last accessed
Mar. 11, 2023

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