ORS 161.341
Application for discharge or conditional release

  • release plan
  • examination
  • right to hearing

(1)

If at any time after a person is committed under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by board) to a state hospital or a secure intensive community inpatient facility, the superintendent of the hospital or the director of the secure intensive community inpatient facility is of the opinion that the person is no longer affected by a qualifying mental disorder, or, if so affected, no longer presents a substantial danger to others or that the person continues to be affected by a qualifying mental disorder and continues to be a danger to others, but that the person can be controlled with proper care, medication, supervision and treatment if conditionally released, the superintendent or director shall apply to the Psychiatric Security Review Board for an order of discharge or conditional release. The application shall be accompanied by a report setting forth the facts supporting the opinion of the superintendent or director. If the application is for conditional release, the application must be accompanied by a verified conditional release plan. The board shall hold a hearing on the application within 60 days of its receipt. Not less than 20 days prior to the hearing before the board, copies of the report shall be sent to the Attorney General.

(2)

The attorney representing the state may choose a psychiatrist or licensed psychologist to examine the person prior to the initial or any later decision by the board on discharge or conditional release. The results of the examination shall be in writing and filed with the board, and shall include, but need not be limited to, an opinion as to the mental condition of the person, whether the person presents a substantial danger to others and whether the person could be adequately controlled with treatment as a condition of release.

(3)

Any person who has been committed to a state hospital, or to a secure intensive community inpatient facility, for custody, care and treatment under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by board), or another person acting on the person’s behalf, may apply to the board for an order of discharge or conditional release upon the grounds:

(a)

That the person is no longer affected by a qualifying mental disorder;

(b)

That the person, if so affected, no longer presents a substantial danger to others; or

(c)

That the person continues to be affected by a qualifying mental disorder and would continue to be a danger to others without treatment, but that the person can be adequately controlled and given proper care and treatment if placed on conditional release.

(4)

When application is made under subsection (3) of this section, the board shall require that a report from the superintendent of the hospital or the director of the secure intensive community inpatient facility be prepared and transmitted as provided in subsection (1) of this section. The applicant must prove by a preponderance of the evidence the applicant’s fitness for discharge or conditional release under the standards of subsection (3) of this section, unless more than two years has passed since the state had the burden of proof on that issue, in which case the state shall have the burden of proving by a preponderance of the evidence the applicant’s lack of fitness for discharge or conditional release. Applications for discharge or conditional release under subsection (3) of this section may not be filed more often than once every six months commencing with the date of the initial board hearing.

(5)

The board is not required to hold a hearing on a first application under subsection (3) of this section any sooner than 90 days after the initial hearing. Hearings resulting from any subsequent requests shall be held within 60 days of the filing of the application.

(6)

Intentionally left blank —Ed.

(a)

In no case shall a person committed by the court under ORS 161.327 (Commitment or conditional release of person found guilty except for insanity of felony) to a state hospital, or to a secure intensive community inpatient facility, be held in the hospital or facility for more than 90 days from the date of the court’s commitment order without an initial hearing before the board to determine whether the person should be conditionally released or discharged.

(b)

In no case shall a person be held pursuant to this section for a period of time exceeding two years without a hearing before the board to determine whether the person should be conditionally released or discharged. [1977 c.380 §13 (enacted in lieu of 161.340); 1979 c.885 §4; 1981 c.711 §6; 1983 c.800 §10; 1985 c.192 §3; 1989 c.790 §50; 1991 c.244 §1; 2005 c.685 §3; 2009 c.595 §104; 2011 c.708 §3; 2017 c.442 §4; 2017 c.634 §11]

Source: Section 161.341 — Application for discharge or conditional release; release plan; examination; right to hearing, https://www.­oregonlegislature.­gov/bills_laws/ors/ors161.­html.

Notes of Decisions

Under this section, persons committed under prior law, which provided for court review of commitment after 5 years, are entitled to hearing by January 1980, unless prior 5 year period expires before that date. Valleur v. McGee, 42 Or App 391, 600 P2d 914 (1979)

Habeas corpus petitioner was not entitled to release where Psychiatric Security Review Board failed to hold mandatory hearing on suitability of release or discharge, but could compel hearing by writ of mandamus. Valleur v. McGee, 42 Or App 391, 600 P2d 914 (1979)

Where there was some testimony that petitioner was retarded and aggressive, there was substantial evidence to support finding that he was suffering mental disease or defect and was dangerous to himself and others. Valleur v. Psychiatric Review Board, 43 Or App 843, 604 P2d 439 (1979)

Because Psychiatric Security Review Board is excluded from requirement of ORS 183.470 pertaining to concise statement of underlying facts, its findings of fact need only be sufficient for meaningful judicial review. Welsh v. PSRB, 82 Or App 315, 728 P2d 82 (1986)

Person suffering from dangerous mental disease or defect may be retained in custody even though no longer suffering from same dangerous mental disease or defect that provided original basis for commitment. Osborn v. Psychiatric Security Review Board, 325 Or 135, 934 P2d 391 (1997)

“Mental disease or defect” does not include substance dependency or other personality disorders. Tharp v. Psychiatric Security Review Board, 338 Or 413, 110 P3d 103 (2005)

Attorney General Opinions

Trial visit status of patients acquitted by reason of mental disease or defect, (1977) Vol 38, p 706; responsibility for paying cost of district attorney appearing before Psychiatric Security Review Board in hearings, (1978) Vol 39, p 371

Law Review Citations

18 WLR 36 (1982)

161.005
Short title
161.015
General definitions
161.025
Purposes
161.035
Application of Criminal Code
161.045
Limits on application
161.055
Burden of proof as to defenses
161.067
Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations
161.085
Definitions with respect to culpability
161.095
Requirements for criminal liability
161.105
Culpability requirement inapplicable to certain violations and offenses
161.115
Construction of statutes with respect to culpability
161.125
Drug or controlled substance use or dependence or intoxication as defense
161.150
Criminal liability described
161.155
Criminal liability for conduct of another
161.160
Exclusion of defenses to criminal liability for conduct of another
161.165
Exemptions to criminal liability for conduct of another
161.170
Criminal liability of corporations
161.175
Criminal liability of an individual for corporate conduct
161.190
Justification as a defense
161.195
“Justification” described
161.200
Choice of evils
161.205
Use of physical force generally
161.209
Use of physical force in defense of a person
161.215
Limitations on use of physical force in defense of a person
161.219
Limitations on use of deadly physical force in defense of a person
161.225
Use of physical force in defense of premises
161.229
Use of physical force in defense of property
161.233
Use of physical force by peace officer
161.237
Use of physical force involving pressure on throat or neck by peace officer or corrections officer
161.242
Use of deadly physical force by peace officer
161.245
“Reasonable belief” described
161.249
Use of physical force by private person assisting an arrest
161.255
Use of physical force by private person making citizen’s arrest
161.260
Use of physical force in resisting arrest prohibited
161.265
Use of physical force by guard or peace officer employed in correctional facility
161.267
Use of physical force by corrections officer or official employed by Department of Corrections
161.270
Duress
161.275
Entrapment
161.290
Incapacity due to immaturity
161.295
Effect of qualifying mental disorder
161.300
Evidence of qualifying mental disorder admissible as to intent
161.305
Qualifying mental disorder as affirmative defense
161.309
Notice of mental defense
161.313
Jury instructions
161.315
Right of state to obtain mental examination of defendant
161.319
Form of verdict on guilty except for insanity
161.325
Finding of guilty except for insanity
161.326
Notice to victim
161.327
Commitment or conditional release of person found guilty except for insanity of felony
161.328
Commitment of person found guilty except for insanity of misdemeanor
161.329
Order of discharge
161.332
“Conditional release” defined
161.336
Conditional release by board
161.341
Application for discharge or conditional release
161.346
Hearings on discharge, conditional release, commitment or modification
161.348
Judicial review
161.349
Person committed under ORS 161.315 to 161.351 sentenced to term of incarceration
161.351
Discharge by board
161.355
Definitions
161.360
Qualifying mental disorder affecting fitness to proceed
161.362
Requirements for recommendations, determinations and orders
161.365
Procedure for determining issue of fitness to proceed
161.367
Gaining or regaining fitness
161.370
Determination of fitness to proceed
161.371
Procedures upon commitment of defendant
161.372
Involuntary administration of medication for fitness to proceed
161.373
Records for fitness to proceed examination
161.375
Escape of person placed at hospital or facility
161.385
Psychiatric Security Review Board
161.387
Board to implement policies
161.390
Rules for assignment of persons to state mental hospitals or secure intensive community inpatient facilities
161.392
Certification of psychiatrists and licensed psychologists
161.395
Subpoena power
161.397
Psychiatric Security Review Board Account
161.398
Restorative justice program
161.400
Leave of absence
161.405
“Attempt” described
161.425
Impossibility not a defense
161.430
Renunciation as a defense to attempt
161.435
Solicitation
161.440
Renunciation as defense to solicitation
161.450
“Criminal conspiracy” described
161.455
Conspiratorial relationship
161.460
Renunciation as defense to conspiracy
161.465
Duration of conspiracy
161.475
Defenses to solicitation and conspiracy
161.485
Multiple convictions barred in inchoate crimes
161.505
“Offense” described
161.515
“Crime” described
161.525
“Felony” described
161.535
Classification of felonies
161.545
“Misdemeanor” described
161.555
Classification of misdemeanors
161.566
Misdemeanor treated as violation
161.568
Misdemeanor treated as violation
161.570
Felony treated as misdemeanor
161.585
Classification of certain crimes determined by punishment
161.605
Maximum terms of imprisonment for felonies
161.610
Enhanced penalty for use of firearm during commission of felony
161.615
Maximum terms of imprisonment for misdemeanors
161.620
Sentences imposed upon waiver
161.625
Fines for felonies
161.635
Fines for misdemeanors
161.645
Standards for imposing fines
161.655
Fines for corporations
161.665
Costs
161.675
Time and method of payment of fines, restitution and costs
161.685
Effect of nonpayment of fines, restitution or costs
161.705
Reduction of certain felonies to misdemeanors
161.710
Reduction of certain felony driving offenses after completion of sentence
161.715
Standards for discharge of defendant
161.725
Standards for sentencing of dangerous offenders
161.735
Procedure for determining whether defendant dangerous
161.737
Sentence imposed on dangerous offender as departure from sentencing guidelines
161.740
Sentencing of juvenile offenders
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