Offenses Against Property

ORS 164.205
Definitions for ORS 164.205 to 164.270


As used in ORS 164.205 (Definitions for ORS 164.205 to 164.270) to 164.270 (Closure of premises to motor-propelled vehicles), except as the context requires otherwise:

(1)

“Building,” in addition to its ordinary meaning, includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein. Where a building consists of separate units, including, but not limited to, separate apartments, offices or rented rooms, each unit is, in addition to being a part of such building, a separate building.

(2)

“Dwelling” means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.

(3)

“Enter or remain unlawfully” means:

(a)

To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the entrant is not otherwise licensed or privileged to do so;

(b)

To fail to leave premises that are open to the public after being lawfully directed to do so by the person in charge;

(c)

To enter premises that are open to the public after being lawfully directed not to enter the premises; or

(d)

To enter or remain in a motor vehicle when the entrant is not authorized to do so.

(4)

“Open to the public” means premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required.

(5)

“Person in charge” means a person, a representative or employee of the person who has lawful control of premises by ownership, tenancy, official position or other legal relationship. “Person in charge” includes, but is not limited to the person, or holder of a position, designated as the person or position-holder in charge by the Governor, board, commission or governing body of any political subdivision of this state.

(6)

“Premises” includes any building and any real property, whether privately or publicly owned. [1971 c.743 §135; 1983 c.740 §33; 1999 c.1040 §10; 2003 c.444 §1; 2015 c.10 §1]

Notes of Decisions

Farm shed which was large enough to hold several trucks was "building" within meaning of section. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied

Railway boxcar was not building within meaning of this section. State v. Scott, 38 Or App 465, 590 P2d 743 (1979)

Where church camp building was lived in for eight weeks each summer and was vacant for following 44 weeks, and where burglary occurred months after last occupant left, structure was not "regularly or intermittently" occupied, and thus was not "dwelling" within meaning of this section. State v. Eaton, 43 Or App 469, 602 P2d 1159 (1979), Sup Ct review denied

Mobile home parked in driveway and used intermittently by guests for sleeping was "dwelling" within meaning of this section. State v. McDonald, 77 Or App 267, 712 P2d 163 (1986)

Separate storage units in commercial storage warehouse are "buildings" within meaning of this section. State v. Barker/Phelps, 86 Or App 394, 739 P2d 1045 (1987); State v. Handley, 116 Or App 591, 843 P2d 456 (1992)

"Enter" includes intrusion by instrument if used to enable person introducing instrument to consummate criminal objective. State v. Williams, 127 Or App 574, 873 P2d 471 (1994), Sup Ct review denied

Area within building that lacks discrete means for controlling access and has function encompassed by purpose of building is not separate unit. State v. Jenkins, 157 Or App 156, 969 P2d 1048 (1998)

Where permission for person to enter and remain on premises is conditional, person's continued presence on premises after failure to comply with condition constitutes remaining unlawfully on premises. State v. Holte, 170 Or App 377, 12 P3d 553 (2000)

Where person has been directed by nonjudicial order to leave public premises, person may raise statutory or constitutional right to remain as defense to charge that person remained unlawfully on premises. State v. Riddell, 172 Or App 675, 21 P3d 128 (2001), Sup Ct review denied

Mere entry onto premises open to public does not constitute failure to leave premises after lawful direction to leave. State v. Collins, 179 Or App 384, 39 P3d 925 (2002)

Where building was temporarily vacant following relatively long period of regular overnight occupancy, building qualified as "dwelling." State v. Kautz, 179 Or App 458, 39 P3d 937 (2002), Sup Ct review denied

Adaptation of vehicle to business use need not be permanent in order to qualify vehicle as "building." State v. Nollen, 196 Or App 141, 100 P3d 788 (2004)

City may "lawfully" exclude attendee of ordinary public event held on public property only if attendee has violated valid statute or ordinance. Gathright v. City of Portland, 315 F. Supp. 2d 1099 (D. Or. 2004)

Phrase "lawfully directed," as used in definition for term "enter," requires inquiry into lawfulness of direction beyond delegated authority of person issuing direction. State v. Koenig, 238 Or App 297, 242 P3d 649 (2010), Sup Ct review denied

Person does not enter or remain unlawfully when person is invited by tenant of leased or rented property to common area of that property. State v. Schneider, 246 Or App 163, 265 P3d 36 (2011), Sup Ct review denied

When read with ORS 164.225, where defendant entered breezeway that is attached to home, covered, permits access to garage and in which homeowners stored food and other items, defendant entered "dwelling" as used in this section. State v. Taylor, 271 Or App 292, 350 P3d 525 (2015)

Where there was no evidence that any rooms in house where defendant lived with defendant's parents were rented rooms and occupation of bedroom was not exclusive because defendant had permission to enter bedroom at certain times, fact that bedroom door was locked does not make bedroom "separate building" under this section. State v. Rodriguez, 283 Or App 536, 390 P3d 1104 (2017), Sup Ct review denied

Chapter 164

Law Review Citations

51 OLR 427-637 (1972)


Source

Last accessed
Jun. 26, 2021