2015 ORS 161.341¹
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 agency) 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 mental disease or defect, or, if so affected, no longer presents a substantial danger to others or that the person continues to be affected by mental disease or defect 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 agency having jurisdiction over the person 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 agency shall hold a hearing on the application within 60 days of its receipt. Not less than 20 days prior to the hearing before the agency, 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 agency having jurisdiction over the person on discharge or conditional release. The results of the examination shall be in writing and filed with the agency, 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 agency), or another person acting on the person’s behalf, may apply to the agency having jurisdiction over the person for an order of discharge or conditional release upon the grounds:

(a) That the person is no longer affected by mental disease or defect;

(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 mental disease or defect 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 agency having jurisdiction over the person 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 agency hearing.

(5) The agency having jurisdiction over the person 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)(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 agency having jurisdiction over the person 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 agency 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]

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 (Orders in contested cases) 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)

Atty. Gen. 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)

Notes of Decisions

Under former version of these sec­tions, Psychiatric Security Review Board could, at initial disposi­tional hearing, order only commit­ment to mental hospital or condi­tional release, so it had no authority to make independent redetermina­tion of dangerousness of defendant or to order her discharged on basis of such redetermina­tion. Adams v. Psychiatric Security Review Bd., 290 Or 273, 621 P2d 572 (1980)

Law Review Cita­tions

18 WLR 23 (1982)

Law Review Cita­tions

51 OLR 428 (1972); 52 OLR 285-295 (1973)

Chapter 161

Notes of Decisions

A juvenile court adjudica­tion of whether or not a child committed acts which would be a crim­i­nal viola­tion if committed by an adult must necessarily include an adjudica­tion of all af­firm­a­tive de­fenses that would be available to an adult being tried for the same crim­i­nal viola­tion. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Cita­tions

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature's adop­tion of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.