ORS 135.245
Release decision
(1)
Except as provided in ORS 135.240 (Releasable offenses), a person in custody has the right to be taken before a magistrate without undue delay.(2)
Intentionally left blank —Ed.(a)
A magistrate shall make a release decision at the time of arraignment or other first appearance after the defendant is taken into custody unless good cause to postpone the release decision is shown, in which case a release hearing shall be held pursuant to subsection (7) of this section.(b)
The district attorney shall make reasonable efforts to inform the victim of the location, date and time of the arraignment or other first appearance and to determine if the victim is present at the arraignment or appearance. If the victim is present, the victim has the right to reasonably express any views relevant to the issues at the appearance.(c)
As used in this subsection, “good cause” includes circumstances in which:(A)
The district attorney plans to seek preventative detention; or(B)
There is a reasonable belief that additional evidence exists and would be relevant to the release decision, but is not currently available.(3)
If the magistrate, having given priority to the primary release criteria, decides to release a defendant or to set security, the magistrate shall impose the least onerous condition reasonably likely to ensure the safety of the public and the victim and the person’s later appearance and, if the person is charged with an offense involving domestic violence, ensure that the person does not engage in domestic violence while on release. A person in custody, otherwise having a right to release, shall be released upon the personal recognizance unless:(a)
Release criteria show to the satisfaction of the magistrate that such a release is unwarranted; or(b)
Subsection (6) of this section applies to the person.(4)
Upon a finding that release of the person on personal recognizance is unwarranted, the magistrate shall proceed to consider conditional release under ORS 135.260 (Conditional release). Only after determining that conditional release is unwarranted, or if otherwise required by ORS 135.230 (Definitions for ORS 135.230 to 135.290) to 135.290 (Punishment by contempt of court), may the magistrate proceed to consider security release under ORS 135.265 (Security release).(5)
At the release hearing:(a)
The district attorney has a right to be heard in relation to issues relevant to the release decision; and(b)
The victim has the right:(A)
Upon request made within the time period prescribed in the notice required by ORS 147.417 (Victim to be notified of constitutional rights), to be notified by the district attorney of the release hearing;(B)
To appear personally at the hearing; and(C)
If present, to reasonably express any views relevant to the issues before the magistrate.(6)
If a person refuses to provide a true name under the circumstances described in ORS 135.060 (Informing defendant as to use of name in accusatory instrument) and 135.065 (Name used in further proceedings), the magistrate may not release the person on personal recognizance or on conditional release. The magistrate may release the person on security release under ORS 135.265 (Security release) except that the magistrate shall require the person to deposit the full security amount set by the magistrate.(7)
Intentionally left blank —Ed.(a)
After the postponement of a release decision under subsection (2) of this section, upon the request of either party, or upon the magistrate’s own motion, the magistrate shall make a release decision or reconsider the release decision, as applicable, at a release hearing. The release hearing must be held within 48 hours of arraignment or other first appearance after the defendant is taken into custody unless both parties agree, or the court finds good cause, to hold the hearing at a later time. Under no circumstances may the release hearing be held more than five days after arraignment or other first appearance after the defendant is taken into custody unless the defendant consents to holding the hearing at a later time.(b)
A hearing held under this subsection may not be used for purposes of discovery.(8)
This section shall be liberally construed to carry out the purpose of relying upon criminal sanctions instead of financial loss to ensure the appearance of the defendant. [1973 c.836 §149; 1993 c.731 §5; 1997 c.313 §20; 2003 c.645 §6; 2009 c.178 §27; 2021 c.643 §5](2)
If a person in custody does not request a security release at the time of arraignment, the magistrate shall make a release decision regarding the person within 48 hours after the arraignment.(3)
If the magistrate, having given priority to the primary release criteria, decides to release a defendant or to set security, the magistrate shall impose the least onerous condition reasonably likely to ensure the safety of the public and the victim and the person’s later appearance and, if the person is charged with an offense involving domestic violence, ensure that the person does not engage in domestic violence while on release. A person in custody, otherwise having a right to release, shall be released upon the personal recognizance unless:(a)
Release criteria show to the satisfaction of the magistrate that such a release is unwarranted; or(b)
Subsection (6) of this section applies to the person.(4)
Upon a finding that release of the person on personal recognizance is unwarranted, the magistrate shall impose either conditional release or security release.(5)
At the release hearing:(a)
The district attorney has a right to be heard in relation to issues relevant to the release decision; and(b)
The victim has the right:(A)
Upon request made within the time period prescribed in the notice required by ORS 147.417 (Victim to be notified of constitutional rights), to be notified by the district attorney of the release hearing;(B)
To appear personally at the hearing; and(C)
If present, to reasonably express any views relevant to the issues before the magistrate.(6)
If a person refuses to provide a true name under the circumstances described in ORS 135.060 (Informing defendant as to use of name in accusatory instrument) and 135.065 (Name used in further proceedings), the magistrate may not release the person on personal recognizance or on conditional release. The magistrate may release the person on security release under ORS 135.265 (Security release) except that the magistrate shall require the person to deposit the full security amount set by the magistrate.(7)
This section shall be liberally construed to carry out the purpose of relying upon criminal sanctions instead of financial loss to assure the appearance of the defendant.
Source:
Section 135.245 — Release decision, https://www.oregonlegislature.gov/bills_laws/ors/ors135.html.
See also annotations under ORS 140.030, 140.040, 140.050 and 140.150 in permanent edition.
Notes of Decisions
In habeas corpus proceeding, where charges against plaintiff were severe and likely to result in significant jail term if conviction resulted and plaintiff’s ties to community were minimal and where court determined that plaintiff would be under enormous pressure to flee if released, security amount in excess of $200,000 was not excessive. Gillmore v. Pearce, 302 Or 572, 731 P2d 1039 (1987)
Law Review Citations
51 OLR 652, 662 (1972); 53 OLR 275, 279, 283, 286, 300-302, 304, 307, 309 (1974)
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