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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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OREGON CRIMINAL JUSTICE COMMISSION

 

DIVISION 8

DEPARTURES

213-008-0001

Departure Sentences

Except as provided in OAR 213-005-0006, the sentencing judge shall impose the presumptive sentence provided by the guidelines unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.

Stat. Auth.: ORS 137.667
Stats. Implemented: ORS 137.667 - ORS 137.669
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; CJC 1-1996, f. 3-6-96, cert. ef. 3-8-96; Renumbered from 253-008-0001

213-008-0002

Departure Factors

(1) Subject to the provisions of sections (2) and (3) of this rule, the following nonexclusive list of mitigating and aggravating factors may be considered in determining whether substantial and compelling reasons for a departure exist:

(a) Mitigating factors:

(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.

(B) The defendant acted under duress or compulsion (not sufficient as a complete defense).

(C) The defendant's mental capacity was diminished (excluding diminished capacity due to voluntary drug or alcohol abuse).

(D) The offense was principally accomplished by another and the defendant exhibited extreme caution or concern for the victim.

(E) The offender played a minor or passive role in the crime.

(F) The offender cooperated with the state with respect to the current crime of conviction or any other criminal conduct by the offender or other person. The offender's refusal to cooperate with the state shall not be considered an aggravating factor.

(G) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.

(H) The offender's criminal history indicates that the offender lived conviction-free within the community for a significant period of time preceding his or her current crime of conviction.

(I) The offender is amenable to treatment and an appropriate treatment program is available to which the offender can be admitted within a reasonable period of time; the treatment program is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and the probation sentence will serve community safety interests by promoting offender reformation.

(J) The offender’s status as a servicemember as defined in ORS 135.881.

(b) Aggravating factors:

(A) Deliberate cruelty to victim.

(B) The offender knew or had reason to know of the victim's particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the criminal conduct.

(C) Threat of or actual violence toward a witness or victim.

(D) Persistent involvement in similar offenses or repetitive assaults. This factor may be cited when consecutive sentences are imposed only if the persistent involvement in similar offenses or repetitive assaults is unrelated to the current offense.

(E) Use of a weapon in the commission of the offense.

(F) The offense involved a violation of public trust or professional responsibility.

(G) The offense involved multiple victims or incidents. This factor may not be cited when it is captured in a consecutive sentence.

(H) The crime was part of an organized criminal operation.

(I) The offense resulted in a permanent injury to the victim.

(J) The degree of harm or loss attributed to the current crime of conviction was significantly greater than typical for such an offense.

(K) The offense was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim.

(L) Disproportionate impact (for Theft I under ORS 164.055, and Aggravated Theft I under ORS 164.057).

(2) If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the Crime Seriousness Scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.

(3) Any aspect of the current crime of conviction which serves as a necessary element of a statutory mandatory sentence may not be used as an aggravating factor if that aspect is also used to impose the mandatory sentence.

(4) As used in this rule, “disproportionate impact” means:

(a) The offender caused damage to property during the commission of the theft and the cost to restore the damaged property to the condition the property was in immediately before the theft is more than three times the value of the property that was the subject of the theft; or

(b) The theft of the property creates a hazard to public health or safety or the environment.

Stat. Auth.: ORS 137.667
Stats. Implemented: ORS 137.667 - 137.669 & SB 570 (2009); SB 124 (2013)
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 2-1989, f. 10-17-89, cert. ef. 11-1-89; SSGB 2-1993, f. 10-28-93, cert. ef. 11-1-93; CJC 1-1996, f. 3-6-96, cert. ef. 3-8-96, Renumbered from 253-008-0002; CJC 1-2010(Temp), f. & cert. ef. 4-15-10 thru 10-11-10; CJC 2-2010, f. 6-30-10, cert. ef. 7-1-10; CJC 1-2014, f. 1-31-14, cert. ef. 2-3-14

213-008-0003

Duration of Departures

(1) When a sentencing judge departs in setting the duration of a prison term, the judge shall consider the purposes and principles of these guidelines as described in OAR 213-002-0001 to impose a sentence which is proportionate to the seriousness of the crime of conviction and the offender's criminal history.

(2) A durational departure from a presumptive prison term shall not total more than double the maximum duration of the presumptive prison term. In no case may the sentence exceed the statutory maximum indeterminate sentence described in ORS 161.605.

(3) The limit on durational departures established by section (2) of this rule does not apply to the indeterminate sentence imposed on a dangerous offender ORS 161.725 and 161.737.

(4) Durational departure sentences of 12 months or less shall be served at the direction of the supervisory authority. Durational departure sentences greater than 12 months shall be served in the legal and physical custody of the Department.

(5) Notwithstanding section (4) of this rule, terms of incarceration 12 months or less imposed pursuant to ORS 166.070(2) shall be served in the legal and physical custody of the Department.

Stat. Auth.: ORS 137.667
Stats. Implemented: ORS 137.667 - 137.669 & 1999 OL Ch. 1011 (HB 2273)
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 1-1993(Temp), f. & cert. ef. 9-15-93; SSGB 2-1993, f. 10-28-93, cert. ef. 11-1-93, Sections (2) and (3) Renumbered from 253-008-0004; CJC 1-1996, f. 3-6-96, cert. ef. 3-8-96, Renumbered from 253-008-0003; CJC 3-1997, f. 10-29-97, cert. ef. 11-1-97; CJC 1-1999, f. & cert. ef. 11-1-99; CJC 4-2012, f. & cert. ef. 10-16-12

213-008-0005

Dispositional Departure Limitations

(1) When a sentencing judge imposes a prison term as a dispositional departure, the term of incarceration shall be:

(a) Up to six months for offenses classified in Crime Categories 1 and 2, or grid blocks 3-G, 3-H and 3-I;

(b) Up to twelve months for offenses classified in grid blocks 3-A through 3-F, 4-C through 4-I, and 5-G through 5-I; and

(c) Up to eighteen months for offenses classified in grid blocks 5-F, 6-F through 6-I, and 7-F through 7-I.

(2) When a sentencing judge imposes a prison term as a dispositional departure, the term of post-prison supervision shall be determined by the crime seriousness category of the most serious current crime of conviction as required by OAR 213-005-0002.

(3) Any sentence inconsistent with the provisions of this rule shall constitute an additional departure and shall require substantial and compelling reasons independent of the reasons given for the dispositional departure. Such a sentence shall not exceed double the maximum duration set forth in section (1) of this rule.

(4) Any sentence imposed pursuant to this section that is 12 months or less shall be served at the direction of the supervisory authority. Any sentence imposed pursuant to this section that is greater than 12 months shall be served in the legal and physical custody of the Department.

(5) Notwithstanding section (4) of this rule, terms of incarceration 12 months or less imposed pursuant to ORS 166.070(2) shall be served in the legal and physical custody of the Department.

Stat. Auth.: ORS 137.667
Stats. Implemented: ORS 137.667 –137.669 & 1999 OL Ch. 1011 (HB 2273); 166.070(2)
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 1-1996, f. 3-6-96, cert. ef. 3-8-96, Renumbered from 253-008-0005; CJC 3-1997, f. 10-29-97, cert. ef. 11-1-97; CJC 1-1999, f. & cert. ef. 11-1-99; CJC 4-2012, f. & cert. ef. 10-16-12

213-008-0006

Departure Limitations on the Use of Sanction Units

(1) A departure on the number of sanction units imposed as part of a probationary sentence shall not total more than double the maximum number of sanction units permitted as part of the sentence as described in OAR 213-005-0011(2) and (3).

(2) Notwithstanding the provisions of section (1) of this rule, the maximum number of sanction units that may be used to impose a jail term as part of a probationary sentence shall be limited to the maximum number of sanction units included in the sentence as provided by OAR 213-005-0011(2) and (3).

Stat. Auth.: ORS 137.667
Stats. Implemented: ORS 137.667 - ORS 137.669
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 1-1996, f. 3-6-96, cert. ef. 3-8-96; Renumbered from 253-008-0006

213-008-0007

Departure Limitations In Consecutive Sentences

(1) The court may depart from the limits established by OAR 213-012-0002 for consecutive sentences only if the judge finds substantial and compelling reasons to impose a departure sentence for any individual offense being sentenced consecutively.

(2) Except as provided by section (3) of this rule, the sentencing judge shall comply with the provisions of OAR 213-008-0001 to 213-008-0006 when a departure sentence is imposed for an offense sentenced consecutively.

(3) When a departure sentence is imposed for any individual offense sentenced consecutively, the incarceration term of that departure sentence shall not exceed twice the maximum incarceration term that may be imposed for that offense as provided in OAR 213-012-0020(2)(a). This limit on the duration of a departure sentence does not apply to any indeterminate sentence imposed on a dangerous offender under ORS 161.725 and 161.737 nor to consecutive sentences imposed for crimes that have different victims.

Stat. Auth.: ORS 137.667
Stats. Implemented: ORS 137.667 – ORS 137.669
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 1-1993(Temp), f. & cert. ef. 9-15-93; SSGB 2-1993, f. 10-28-93, cert. ef. 11-1-93; CJC 1-1996, f. 3-6-96, cert. ef. 3-8-96; Renumbered from 253-008-0007; CJC 2-1997(Temp), f. & cert. ef. 8-13-97; CJC 3-1997, f. 10-29-97, cert. ef. 11-1-97; CJC 1-1999, f. & cert. ef. 11-1-99

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