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Oregon Bulletin

February 1, 2012

 

Oregon Criminal Justice Commission
Chapter 213

Rule Caption: Amends Oregon sentencing guidelines in light of Oregon Laws 2011, Chapter 666 (House Bill 2940).

Adm. Order No.: CJC 2-2011(Temp)

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12 thru 4-27-12

Notice Publication Date:

Rules Amended: 213-003-0001, 213-017-0006

Rules Suspended: 213-003-0001(T), 213-017-0006(T)

Subject: HB 2940 (2011) becomes effective on January 1, 2012. Section 1 of HB 2940 makes the crime of strangulation under ORS 163.187 a Class C felony under certain circumstances. The Criminal Justice Commission (CJC) is required under ORS 137.667 to review all legislation creating new crimes or modifying existing crimes, and to adopt by rule necessary changes to the crime seriousness scale. The rule change is necessary to comply with that legislative directive. By statute CJC also may classify offenses as person felonies or person misdemeanors. ORS 137.667(1). CJC has reviewed the legislation creating the new felony, and has voted to classify that felony as a person felony. The temporary rule will put that classification and the change to the crime seriousness scale into effect by the January 1, 2012 effective date of the legislation that created the new felony offense. The rule amendments classify felony strangulation committed under ORS 163.187(4) as a person felony and as a Crime Category 6 on the crime seriousness scale. The rule changes also include numbering changes necessitated by adding to the list of numerically ordered crimes, and updated statutory citations.

Rules Coordinator: Craig Prins—(503) 378-4830

213-003-0001

Definitions

As used in these rules:

(1) “Bench probation” means a probationary sentence, which directs the probationer to remain under the supervision and control of the sentencing judge.

(2) “Board” means the State Board of Parole and Post-Prison Supervision.

(3) “Correctional supervision status” means any form of incarcerative or non-incarcerative supervision which is served by an offender as part of a sentence for a criminal conviction.

(4) “Department” means the Department of Corrections.

(5) “Departure” means a sentence, except an optional probationary sentence, which is inconsistent with the presumptive sentence for an offender.

(6) “Dispositional departure” means a sentence which imposes probation when the presumptive sentence is prison or prison when the presumptive sentence is probation. An optional probationary sentence is not a dispositional departure.

(7) “Dispositional line” means the solid black line on the Sentencing Guidelines Grid (Appendix 1) which separates the grid blocks in which the presumptive sentence is a term of imprisonment and post-prison supervision from the grid blocks in which the presumptive sentence is probation which may include local custodial sanctions. [Appendix not included. See ED. NOTE.]

(8) “Durational departure” means a sentence which is inconsistent with the presumptive sentence as to term of incarceration, term of supervised probation or number of sanction units which may be imposed as a condition of probation.

(9) “Grid” means the Sentencing Guidelines Grid set forth as Appendix 1. [Appendix not included. See ED. NOTE.]

(10) “Grid block” means a box on the grid formed by the intersection of the crime seriousness ranking of a current crime of conviction and an offender’s criminal history classification.

(11) “Juvenile adjudication” means a formal adjudication or finding by a court that the juvenile has committed an act, which, if committed by an adult, would be punishable as a felony.

(12) “Non-person felonies” are any felonies not defined as a person felony in section (14) of this rule.

(13) “Optional probationary sentence” means any probationary sentence imposed pursuant to OAR 213-005-0006.

(14) “Person felonies” are in numerical statutory order: ORS 162.165 Escape I; ORS 162.185 Supplying Contraband as defined in Crime Categories 6 and 7 (OAR 213-018-0070(1) and (2)); ORS 163.095 Aggravated Murder; ORS 163.115 Murder; ORS 163.115 Felony Murder; ORS 163.118 Manslaughter I; ORS 163.125 Manslaughter II; ORS 163.145 Negligent Homicide; ORS 163.160(3) Felony Domestic Assault; ORS 163.165 Assault III; ORS 163.175 Assault II; ORS 163.185 Assault I; ORS 163.187(4) Felony Strangulation; ORS 163.205 Criminal Mistreatment I; ORS 163.207 Female Genital Mutilation; ORS 163.208 Assaulting a Public Safety Officer; ORS 163.213 Use of Stun Gun, Tear Gas, Mace I; ORS 163.225 Kidnapping II; ORS 163.235 Kidnapping I; ORS 163.275 Coercion as defined in Crime Category 7 (OAR 213-018-0035(1)); ORS 163.355 Rape III; ORS 163.365 Rape II; ORS 163.375 Rape I; ORS 163.385 Sodomy III; ORS 163.395 Sodomy II; ORS 163.405 Sodomy I; ORS 163.408 Sexual Penetration II; ORS 163.411 Sexual Penetration I; ORS 163.425 Sexual Abuse II; ORS 163.427 Sexual Abuse I; ORS 163.465 Felony Public Indecency; ORS 163.479 Unlawful Contact with a Child; ORS 163.452 Custodial Sexual Misconduct in the First Degree; ORS 163.525 Incest; ORS 163.535 Abandon Child; ORS 163.537 Buying/Selling Custody of a Minor; ORS 163.547 Child Neglect I; ORS 163.670 Using Child In Display of Sexual Conduct; ORS 163.684 Encouraging Child Sex Abuse I; ORS 163.686 Encouraging Child Sex Abuse II; ORS 163.688, Possession of Material Depicting Sexually Explicit Conduct of Child I; ORS 163.689, Possession of Material Depicting Sexually Explicit Conduct of Child II; ORS 163.732 Stalking; ORS 163.750 Violation of Court’s Stalking Order; ORS 164.075 Theft by Extortion as defined in Crime Category 7 (OAR 213-018-0075(1)); ORS 164.225 Burglary I as defined in Crime Categories 8 and 9 (OAR 213-018-0025(1) and (2)); ORS 164.325 Arson I; ORS 164.395 Robbery III; ORS 164.405 Robbery II; ORS 164.415 Robbery I; ORS 164.877(3) Tree Spiking (Injury); ORS 166.087 Abuse of Corpse I; ORS 166.165 Intimidation I; ORS 166.220 Unlawful Use of a Weapon; ORS 166.275 Inmate In Possession of Weapon; ORS 166.385(3), Felony Possession of a Hoax Destructive Device; ORS 166.643 Unlawful Possession of Soft Body Armor as defined in Crime Category 6 (OAR 213-018-0090(1)); ORS 167.012 Promoting Prostitution; ORS 167.017 Compelling Prostitution; ORS 167.320(4) Felony Animal Abuse I; ORS 167.322 Aggravated Animal Abuse I; ORS 468.951 Environmental Endangerment; ORS 475.908 Causing Another to Ingest a Controlled Substance as defined in Crime Categories 8 and 9 (OAR 213-019-0007 and 0008); ORS 475.910 Unlawful Administration of a Controlled Substance as defined in Crime Categories 5, 8, and 9 (OAR 213-019-0007, 0008, and 0011); ORS 609.990(3)(b) Maintaining Dangerous Dog; ORS 811.705 Hit and Run Vehicle (Injury); ORS 813.010(5), Felony Driving Under the Influence of Intoxicants (as provided in OAR 213-004-0009); 2011 Or Laws ch 598, Felony Driving Under the Influence of Intoxicants (as provided in OAR 213-004-0009); ORS 830.475(2) Hit and Run Boat; ORS 97.981 Purchase or Sale of a Body Part for Transplantation or Therapy, ORS 97.982 Alteration of a Document of Gift; Subjecting Another Person to Involuntary Servitude I ORS 163,264, and II ORS 163.422, Trafficking in Persons; ORS 166.149 Aggravated Vehicular Homicide; ORS 167.057 Luring a Minor; Online Sexual Corruption of a Child I ORS 163.433, and II 163.422; ORS 166.070 Aggravated Harassment; 163.196; Aggravated Driving While Suspended or Revoked ORS 475.840(6)(a); Manufacturing or Delivering a Schedule IV Controlled Substance Thereby Causing Death to a Person; and attempts or solicitations to commit any Class A or Class B person felonies as defined herein.

(15) “Person Class A misdemeanors” are in numerical statutory order: ORS 162.315 Resisting Arrest; ORS 163.160 Assault IV; ORS 163.187 Strangulation; ORS 163.190 Menacing; ORS 163.195 Recklessly Endanger Another; ORS 163.200 Criminal Mistreatment II; ORS 163.212 Use of Stun Gun, Tear Gas, Mace II; ORS 163.415 Sexual Abuse III; ORS 163.454 Custodial Sexual Misconduct in the Second Degree; ORS 163.465, Public Indecency; ORS 163.467 Private Indecency; ORS 163.476 Unlawfully Being in a Location Where Children Regularly Congregate; ORS 163.545 Child Neglect II; ORS 163.575 Endanger Welfare of Minor; ORS 163.687 Encouraging Child Sex Abuse III; ORS 163.700 Invasion of Personal Privacy; ORS 163.709 Unlawfully Directing a Laser Pointer; ORS 163.732(1) Stalking; ORS 163.750(1) Violating Court’s Stalking Order; ORS 165.572 Interfering with Making a Police Report; ORS 166.065(4) Harassment/Offensive Sexual Contact; ORS 166.155 Intimidation II; ORS 166.385(2) Misdemeanor Possession of a Hoax Destructive Device; ORS 475.986(1)(d) Unlawful Administration of a Controlled Substance; ORS 609.990(3)(a) Maintaining Dangerous Dog; ORS 813.010, Driving Under the Influence of Intoxicants (as provided in OAR 213-004-0009); ORS 167.054 Furnishing Sexually Explicit Material to a Child; and attempts or solicitations to commit any Class C person felonies as defined in section (14) of this rule.

(16) “Presumptive sentence” means the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime seriousness ranking of the current crime of conviction and the offender’s criminal history or a sentence designated as a presumptive sentence by statute.

(17) “Primary offense” means the offense of conviction with the highest crime seriousness ranking. If more than one offense of conviction is classified in the same crime category, the sentencing judge shall designate which offense is the primary offense.

(18) “Supervisory agent” means the local community corrections agency responsible for supervising the offender.

(19) “Supervisory authority” means the state and local corrections agency or official designated in each county by that county’s Board of County Commissioners or county court to operate corrections supervision services, custodial facilities or both.

(20) “Straight jail” means a sentence of jail imposed instead of a presumptive probationary sentence that is not followed by a term of post-prison supervision defined in OAR 213-005-0002.

[ED. NOTE: Appendices referenced are available from the agency.]

Stat. Auth.: ORS 137.667, 475.986, 475.998 & 2003 OL Ch. 453

Stats. Implemented: ORS 137.667 - 137.669, 2001 OL Ch. 387, 510, 635, 828, 857, 884 & 2003 OL Ch. 453, 577 & 2007 OL Ch. 681, 811, 867, 869, 876 & 2009 OL Ch. 774, 783, 876, 898; 2011 OL Ch. 3 §1; 2011 OL Ch. 598; 2011 OL Ch 666

Hist.: SSGB 2-1988, f. 12-30-88, cert. ef, 9-1-89; SSGB 1-1989, f. 5-25-89, cert. ef. 9-1-89; SSGB 2-1993, f. 10-28-93, cert. ef. 11-1-93; CJC 2-1995, f. & cert. ef. 11-2-95; CJC 1-1996, f. 3-6-96, cert. ef. 3-8-96, Renumbered from 253-003-0001; CJC 3-1997, f. 10-29-97, cert. ef. 11-1-97; CJC 1-1999, f. & cert. ef. 11-1-99; CJC 2-2001, f. 12-26-01, cert. ef. 1-1-02; CJC 2-2003, f. 12-31-03, cert. ef. 1-1-04; CJC 1-2006, f. & cert. ef. 4-12-06; CJC 3-2007, f. 12-31-07 & cert. ef. 1-1-08; CJC 1-2009(Temp), f. 3-24-09, cert. ef. 1-1-10 thru 6-29-10; CJC 2-2009(Temp), f. 3-24-09, cert. ef. 1-1-10 thru 6-29-10; CJC 7-2009, f. 12-31-09, cert. ef. 1-1-10; CJC 1-2011(Temp), f. & cert. ef. 11-1-11 thru 4-27-12; CJC 2-2011(Temp), f. 12-30-11, cert. ef. 1-1-12 thru 4-27-12

213-017-0006

Crime Category 6

The following offenses are classified at crime category 6 on the Crime Seriousness Scale:

(1) Chapter 59 – BLUE SKY LAWS & SECURITIES LAWS* – (C).

(2) MAJOR DRUG OFFENSES (See division 19.)

(3) ORS 162.015 – BRIBERY – (B).

(4) ORS 162.025 – BRIBE RECEIVING – (B).

(5) ORS 162.065 – PERJURY – (C).

(6) ORS 162.117 – PUBLIC INVESTMENT FRAUD – (B).

(7) ORS 162.155 – ESCAPE II – (C).

(8) ORS 162.185 – SUPPLYING CONTRABAND – (C).

The contraband involves a dangerous weapon not a firearm CC 7; Otherwise CC 4 or 5.

(9) ORS 162.265 – BRIBING A WITNESS – (C).

(10) ORS 162.275 – BRIBE RECEIVING BY WITNESS – (C).

(11) ORS 162.285 – TAMPERING W/ WITNESS – (C).

(12) ORS 162.325 – HINDERING PROSECUTION – (C).

(13) ORS 163.160(3) – FELONY DOMESTIC ASSAULT – (C).

(14) ORS 163.165 – ASSAULT III – (C).

If the offense cannot be ranked at CC 8.

(15) ORS 163.187(4) – FELONY STRANGULATION – (C).

(16) ORS 163.208 – ASSAULT OF A PUBLIC SAFETY OFFICER – (C).

(17) ORS 163.213 – USE OF A STUN GUN, TEAR GAS, MACE I – (C).

(18) ORS 163.257 – CUSTODIAL INTERFERENCE I – (C).

(19) ORS 163.264 – SUBJECTING ANOTHER PERSON TO INVOLUNTARY SERVITUDE I – (B).

If offender physically restrained or threatened to physically restrain a person; otherwise CC 9.

(20) ORS 163.275 – COERCION – (C). (No threat of physical injury; otherwise CC 7.)

(21) ORS 163.355 – RAPE III – (C).

(22) ORS 163.385 – SODOMY III – (C).

(23) ORS 163.432 – ONLINE SEXUAL CORRUPTION OF A CHILD II – (C).

(24) ORS 163.465 – FELONY PUBLIC INDECENCY – (C).

(25) ORS 163.525 – INCEST – (C).

If one of the participants is under the age of 18; otherwise CC 1.

(26) ORS 163.547 – CHILD NEGLECT IN THE FIRST DEGREE – (B).

(27) ORS 163.688 – POSSESSION OF MATERIAL DEPICTING SEX. EXPLICIT CONDUCT OF A CHILD I – (B).

(28) ORS 164.055 – THEFT I* – (C).

(29) ORS 164.057 – AGGRAVATED THEFT – (B).

Economic loss was greater than $50,000; otherwise CC 5.

(30) ORS 164.065 – THEFT OF LOST/MISLAID PROPERTY * – (C).

(31) ORS 164.075 – THEFT BY EXTORTION* – (B).

(32) ORS 164.085 – THEFT BY DECEPTION* – (C).

(33) ORS 164.125 – THEFT OF SERVICES* – (C).

(34) ORS 164.135 – UNAUTHORIZED USE OF VEHICLE* – (C).

(35) ORS 164.138 – CRIMINAL POSSESSION OF A RENTED OR LEASED MOTOR VEHICLE* – (C).

(36) ORS 164.140(4) – POSSESSION OF RENTED PROPERTY* – (C).

(37) ORS 164.162 – MAIL THEFT OR RECEIPT OF STOLEN MAIL – (C).

For sentences imposed prior to February 15, 2010, and for sentences imposed for crimes committed on or after January 1, 2012; otherwise a Class A misdemeanor.

(38) ORS 164.215 – BURGLARY II* – (C).

(39) ORS 164.315 – ARSON II* – (C).

(40) ORS 164.365 – CRIMINAL MISCHIEF I* – (C).

(41) ORS 164.377 – COMPUTER FRAUD (LOTTERY)* – (C).

(42) ORS 164.377(3) – COMPUTER CRIME* – (C).

(43) ORS 164.868 – UNLAWFUL LABEL SOUND RECORDING* – (C).

(44) ORS 164.869 – UNLAWFUL RECORD LIVE PERFORMANCE* – (C).

(45) ORS 164.872 – UNLAWFUL LABEL VIDEOTAPE* – (C).

(46) ORS 164.877(1) – TREE-SPIKING – (C).

(47) ORS 164.889 – INTERFERE W/ AGRICULTURAL RESEARCH* – (C).

(48) ORS 165.013 – FORGERY I* – (C).

(49) ORS 165.022 – CRIMINAL POSSESSION OF FORGED INSTRUMENT I* – (C).

(50) ORS 165.055(3)(A) – CREDIT CARD FRAUD* – (C).

(51) ORS 165.065 – NEGOTIATING BAD CHECKS* – (C).

(52) ORS 165.074 – UNLAWFUL FACTORING PAYMENT CARD* v (C).

(53) ORS 165.692 – FILING A FALSE CLAIM FOR HEALTH CARE PAYMENT – (C).

(54) ORS 165.800 – IDENTITY THEFT* – (C).

(55) ORS 166.015 – RIOT – (C).

(56) ORS 166.070 – AGGRAVATED HARRASSMENT – (C).

(57) ORS 166.165 – INTIMIDATION I – (C).

(58) ORS 166.220 – UNLAWFUL USE OF WEAPON – (C).

(59) ORS 166.270 – EX-CON IN POSSESSION OF FIREARM – (C).

(60) ORS 166.272 – UNLAWFUL POSSESSION OF FIREARM – (B).

(61) ORS 166.370(1) – INTENT POSS. FIREARM OR DANG. WEAP. IN and (5)(a) – PUBLIC BUILDING; DISCHARGE FIREARM IN SCHOOL – (C).

(62) ORS 166.382 – POSSESSION OF DESTRUCTIVE DEVICE – (C).

(63) ORS 166.384 – UNLAWFUL MANUFACTURE OF DESTRUCTIVE DEVICE – (C).

(64) ORS 166.410 – ILLEGAL MANUFACTURE, IMPORTATION OR TRANSFER OF FIREARMS – (B).

(65) ORS 166.643 – UNLAWFUL POSSESS SOFT BODY ARMOR – (B).

If offender committed or was attempting to commit a person felony or misdemeanor involving violence, otherwise CC 4.

(66) ORS 167.057 – LURING A MINOR – (C).

(67) ORS 167.339 – ASSAULT OF A LAW ENFORCEMENT ANIMAL – (C).

(68) ORS 167.388 – INTERFERE LIVESTOCK PRODUCTION* – (C).

(69) ORS 647.145 – TRADEMARK COUNTERFEITING II* – (C).

(70) ORS 647.150 – TRADEMARK COUNTERFEITING I* – (B).

(71) ORS 811.182 – DRIVING WHILE SUSPENDED/REVOKED – (C).

(72) ORS 811.705 – HIT & RUN VEHICLE (INJURY) – (C).

(73) ORS 813.010(5) – FELONY DRIVING UNDER THE INFLUENCE – (C).

(74) ORS 819.300 – POSSESSION OF STOLEN VEHICLE* – (C).

(75) ORS 819.310 – TRAFFICKING IN STOLEN VEHICLES – (C).

If part of an organized operation or if value of property taken from one or more victims was greater than $50,000; otherwise CC 5.

(76) ORS 830.475 – HIT AND RUN BOAT – (C).

* Property offenses marked with an asterisk shall be ranked at Crime Category 6 if the value of the property stolen or destroyed was $50,000 or more, excluding the theft of a motor vehicle used primarily for personal rather than commercial transportation.

Stat. Auth.: ORS 137.667, 2003 OL Ch. 453, & 2009 OL Ch. 660

Stats. Implemented: ORS 137.667 - 137.669, 2001 OL Ch. 147, 635, 828 2003 2001 OL Ch. 383, 453, 543, 2005 OL Ch. 708, 2007 OL Ch. 684, 811, 869, 876, SB 1087 (2008), Ballot Measure 57 (2008), & 2009 OL Ch. 660 & HB 3508 (2009) & 2009 OL Ch. 783; 2011 OL Ch. 3 §1; 2011 OL Ch. 598; 2011 OL Ch. 666

Hist.: CJC 1-1999, f. & cert. ef. 11-1-99; CJC 2-2001, f. 12-26-01, cert. ef. 1-1-02; CJC 2-2003, f. 12-31-03, cert. ef. 1-1-04; CJC 1-2005(Temp), f. & cert. ef. 10-14-05 thru 4-12-06; CJC 1-2006, f. & cert. ef. 4-12-06; CJC 3-2007, f. 12-31-07 & cert. ef. 1-1-08; CJC 2-2008(Temp), f. 12-31-08, cert. ef. 1-1-09 thru 6-29-09; CJC 2-2009(Temp), f. 3-24-09, cert. ef. 1-1-10 thru 6-29-10; CJC 3-2009(Temp), f. & cert. ef. 6-17-09 thru 12-13-09; CJC 4-2009(Temp), f. & cert. ef. 9-16-09 thru 3-14-10; CJC 5-2009, f. 12-11-09, cert. ef. 12-13-09; CJC 7-2009, f. 12-31-09, cert. ef. 1-1-10; CJC 3-2010(Temp), f. & cert. ef. 6-30-10 thru 12-26-10; CJC 5-2010, f. 12-13-10, cert. ef. 12-26-10; CJC 1-2011(Temp), f. & cert. ef. 11-1-11 thru 4-27-12; CJC 2-2011(Temp), f. 12-30-11, cert. ef. 1-1-12 thru 4-27-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

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