ORS 131.525
Previous prosecution

  • when not a bar to subsequent prosecution

(1)

A previous prosecution is not a bar to a subsequent prosecution when the previous prosecution was properly terminated under any of the following circumstances:

(a)

The defendant consents to the termination or waives, by motion, by an appeal upon judgment of conviction, or otherwise, the right to object to termination.

(b)

The trial court finds that a termination, other than by judgment of acquittal, is necessary because:

(A)

It is physically impossible to proceed with the trial in conformity with law; or

(B)

There is a legal defect in the proceeding that would make any judgment entered upon a verdict reversible as a matter of law; or

(C)

Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the state; or

(D)

The jury is unable to agree upon a verdict; or

(E)

False statements of a juror on voir dire prevent a fair trial.

(c)

When the former prosecution occurred in a court which lacked jurisdiction over the defendant or the offense.

(d)

When the subsequent prosecution was for an offense which was not consummated when the former prosecution began.

(2)

A plea of guilty or resulting judgment is not a bar under ORS 131.515 (Previous prosecution) (2) to a subsequent prosecution under an accusatory instrument which is filed no later than 30 days after entry of the guilty plea. The defendant’s prior plea of guilty or resulting judgment, notwithstanding ORS 135.365 (Withdrawal of plea of guilty or no contest), shall be vacated upon motion by the defendant if made within 30 days after defendant’s arraignment for the subsequent prosecution. The provisions of ORS 135.445 (Withdrawn plea or statement not admissible) apply to such a vacated plea or resulting judgment and any statements made in relation to those proceedings. [1973 c.836 §28; 1983 c.509 §2]

Source: Section 131.525 — Previous prosecution; when not a bar to subsequent prosecution, https://www.­oregonlegislature.­gov/bills_laws/ors/ors131.­html.

Notes of Decisions

The constitutional standard of “manifest necessity” and the statutory standard concerning impossibility to proceed without justice require at least that a trial not be terminated if any reasonable alternative action is possible under the facts of each case. State v. Embry, 19 Or App 934, 530 P2d 99 (1974)

Where defense objected to continuance, unavailability of witnesses due to extraordinary circumstance could justify mistrial on basis of physical impossibility of proceeding. State v. Misten, 26 Or App 681, 554 P2d 584 (1976), Sup Ct review denied

Termination of first trial of defendant because of illness of trial judge was termination for “physical necessity” under this section and did not subject defendant to double jeopardy. State v. Cole, 286 Or 411, 595 P2d 466 (1979)

Where jury’s inability to reach verdict was caused by bailiff’s improper remarks, this section could not be constitutionally applied to permit retrial of defendant. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)

Where juror failed on voir dire to respond to question as to his ability to be impartial but later stated in camera to court and counsel that he could not impartially consider the case, juror was dismissed because of “false statement” within meaning of this section. State v. McFerron, 52 Or App 325, 628 P2d 440 (1981), Sup Ct review denied

Defendant would be twice put in jeopardy if state were allowed to proceed with driving while suspended charge after defendant pleaded guilty to driving under influence of intoxicants charge because defendant’s conduct consisted of single forbidden act of driving. State v. Farley, 301 Or 668, 725 P2d 359 (1986)

Where defendant appealed conviction of driving while suspended on grounds he previously had been placed in jeopardy when convicted of giving false name to police officer during same criminal episode, for constitutional purposes, giving false identification was separate offense from unlawful driving because acts did not occur simultaneously and were not in pursuit of single objective. State v. Ellison, 301 Or 676, 725 P2d 363 (1986)

State is not prohibited from retrying defendant after conviction has been set aside because of procedural error in trial. State v. Mohler, 102 Or App 75, 792 P2d 1239 (1990), overruled on other grounds, 158 Or App 479, 974 P2d 783 (1999)

Defendant’s guilty plea to theft does not bar subsequent prosecution of burglary when requirements of this section are met. State v. Wilson, 115 Or App 217, 836 P2d 1380 (1992)

Granting defendant’s motion for judgment of acquittal during trial on sole ground that indictment did not state facts sufficient to establish crime, did not bar later prosecution. State v. Wolfs, 312 Or 646, 826 P2d 623 (1992)

Where inability of jury to reach verdict is not result of prosecutorial or judicial misconduct, second prosecution does not violate double jeopardy prohibition. State v. Bannister, 118 Or App 252, 846 P2d 1189 (1993)

Finding that jury has failed to reach verdict does not constitute finding that jury is unable to reach verdict as required to nullify attachment of jeopardy and permit retrial. State ex rel Turner v. Frankel, 322 Or 363, 908 P2d 293 (1995)

Administrative order by presiding judge cannot deprive court of jurisdiction so as to render proceeding legally defective. State v. Allbritton, 145 Or App 373, 931 P2d 797 (1996)

Failure to move to vacate prior plea of guilty or judgment waives claim of double jeopardy based on ORS 131.515. State v. Talbert, 153 Or App 594, 958 P2d 902 (1998)

Exception to double jeopardy where jury is unable to reach verdict applies, even in absence of explicit finding by court, where: 1) record demonstrates jury was unable to reach verdict and further deliberation would be unavailing; 2) trial court discharges jury after confirming inability to reach verdict; and 3) record does not disclose any other plausible reason for court to discharge jury at that time. State v. O’Donnell, 192 Or App 234, 85 P3d 323 (2004)

Hung jury exception applies for all subsequent prosecutions described in ORS 131.515, whether for same offense or based on new charges or theories. State v. Toste, 196 Or App 11, 100 P3d 738 (2004), Sup Ct review denied

Law Review Citations

27 WLR 913 (1991)

131.005
General definitions
131.007
“Victim” defined
131.015
Application to prior and subsequent actions
131.025
Parties in criminal action
131.035
When departures, errors or mistakes in pleadings or proceedings are material
131.040
When law enforcement officer may communicate with person represented by counsel
131.045
Appearances by simultaneous electronic transmission
131.105
Timeliness of criminal actions
131.125
Time limitations
131.135
When prosecution commenced
131.145
When time starts to run
131.155
Tolling of statute
131.205
Definition for ORS 131.205 to 131.235
131.215
Jurisdiction
131.225
Exceptions
131.235
Criminal homicide
131.305
Place of trial
131.315
Special provisions
131.325
Place of trial
131.335
Change of venue
131.345
Motion for change of venue
131.355
Change of venue for prejudice
131.363
Change of venue in other cases
131.375
Notification on change of venue
131.385
When change of venue is complete
131.395
Expenses of change
131.405
Attendance of defendant at new place of trial
131.415
Conveyance of defendant in custody after change of venue
131.505
Definitions for ORS 131.505 to 131.525
131.515
Previous prosecution
131.525
Previous prosecution
131.535
Proceedings not constituting acquittal
131.550
Definitions for ORS 131.550 to 131.600
131.553
Legislative findings
131.556
Right, title and interest in forfeited property vests in seizing agency
131.558
Property subject to forfeiture
131.561
Seizure of property subject to forfeiture
131.564
Status of seized property
131.566
Motor vehicle with hidden compartment
131.567
Recorded notice of intent to forfeit real property
131.570
Notice of seizure for forfeiture
131.573
Petition for expedited hearing
131.576
Order restoring custody of property after expedited hearing
131.579
Affidavit in response to notice of seizure for forfeiture
131.582
Prosecution of criminal forfeiture
131.585
Extent of judgment
131.588
Judgment of forfeiture
131.591
Equitable distribution of property or proceeds
131.594
Disposition and distribution of forfeited property when seizing agency not the state
131.597
Disposition and distribution of forfeited property when seizing agency is the state
131.600
Record keeping and reporting requirements
131.602
Prohibited conduct for purposes of instrumentalities of crime
131.604
Disposition of forfeited cigarettes
131.605
Definitions for ORS 131.605 to 131.625
131.615
Stopping of persons
131.625
Frisk of stopped persons
131.655
Detention and interrogation of persons suspected of theft committed in a store or unlawful operation of audiovisual device in a motion picture theater
131.665
Prevention by public officers
131.675
Dispersal of unlawful assemblages
131.685
Authority of Governor to enter into agreements with other states for crime prevention purposes
131.705
Definitions for ORS 131.705 to 131.735
131.715
Proclamation of emergency period by Governor
131.725
Exclusion from public property
131.735
Review of exclusion order
131.805
Authority to employ special agents
131.815
Presentment of facts to circuit court
131.825
Hearing
131.835
Request that judge of another district conduct hearing
131.845
Findings
131.855
Appointment of special officers on finding that laws are not enforced
131.860
Qualifying of special officers
131.865
Compensation of special officers
131.875
Effect of appointment of special officers on salary of regular officers
131.880
Appointment of railroad police officers
131.885
Offer of reward
131.890
Entitlement to reward
131.892
Offer of reward for information on commission of criminal offense
131.895
Procedure for payment
131.897
Authority to order repayment of reward as part of sentence
131.900
Liability for medical expenses for person restrained, detained or taken into custody
131.905
Legislative findings
131.906
Law Enforcement Contacts Policy and Data Review Committee
131.908
Funding contributions
131.909
Moneys received
131.915
Definitions
131.920
Policies and procedures prohibiting profiling
131.925
Complaints alleging profiling
131.930
Definitions
131.935
Collection of officer-initiated stop data
131.940
Analysis of stop data to identify profiling
131.945
Training for law enforcement agencies
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