2015 ORS 161.346¹
Hearings on discharge, conditional release, commitment or modification
  • jurisdiction
  • psychiatric reports
  • notice of hearing

(1) When the Psychiatric Security Review Board or the Oregon Health Authority conducts a hearing under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by agency), the agency conducting the hearing shall enter an order and make findings in support of the order. If the agency finds that a person under the jurisdiction of the agency:

(a) Is no longer affected by mental disease or defect, or, if so affected, no longer presents a substantial danger to others, the agency shall order the person discharged from commitment and conditional release.

(b) Is still affected by a mental disease or defect and is a substantial danger to others, but can be controlled adequately if conditionally released with treatment as a condition of release, the agency shall order the person conditionally released as provided in ORS 161.336 (Conditional release by agency).

(c) Has not recovered from the mental disease or defect, is a substantial danger to others and cannot adequately be controlled if conditionally released on supervision, the agency shall order the person committed to, or retained in, a state hospital, or if the person is under 18 years of age, a secure intensive community inpatient facility, for care, custody and treatment.

(2)(a) Except as otherwise provided in ORS 161.349 (Commission of crime by person committed under ORS 161.315 to 161.351), the Psychiatric Security Review Board shall exercise exclusive jurisdiction over a tier one offender until the board discharges the person from the jurisdiction of the board or the maximum period of jurisdiction expires.

(b) When the board orders a tier two offender committed to a state hospital, or a secure intensive community inpatient facility, under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by agency), the order shall transfer jurisdiction over the person to the Oregon Health Authority.

(c) When the authority orders a tier two offender conditionally released under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by agency), the order shall transfer jurisdiction over the person to the board.

(d) The authority shall assume jurisdiction over a tier two offender when the person is returned to a state hospital, or to a secure intensive community inpatient facility, under ORS 161.336 (Conditional release by agency) (4).

(3) To assist the agency in making the determination described in subsection (1) of this section, the agency exercising jurisdiction over the person may, at any time, appoint a psychiatrist or licensed psychologist to examine the person and to submit a report to the agency. The report must include 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.

(4) The agency exercising jurisdiction over the person may make the determination regarding discharge or conditional release based upon the written reports submitted pursuant to this section. If the authority or any member of the board desires further information from the examining psychiatrist or licensed psychologist who submitted the report, the agency shall summon the person to give testimony. The agency shall consider all evidence available to it that is material, relevant and reliable regarding the issues before the agency. The evidence may include but is not limited to the record of trial, the information supplied by the attorney representing the state or by any other interested party, including the person, and information concerning the person’s mental condition and the entire psychiatric and criminal history of the person. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible at hearings. Testimony shall be taken upon oath or affirmation of the witness from whom received. The officer presiding at the hearing shall administer oaths or affirmations to witnesses.

(5) The agency exercising jurisdiction over the person shall furnish to the person about whom the hearing is being conducted, the attorney representing the person, the Attorney General, the district attorney and the court or department of the county from which the person was committed written notice of any hearing pending under this section within a reasonable time prior to the hearing. The notice shall include:

(a) The time, place and location of the hearing.

(b) The nature of the hearing and the specific action for which a hearing has been requested, the issues to be considered at the hearing and a reference to the particular sections of the statutes and rules involved.

(c) A statement of the legal authority and jurisdiction under which the hearing is to be held.

(d) A statement of all rights under subsection (7) of this section.

(6) Prior to the commencement of the hearing, the agency shall serve personally or by mail a written notice to each party as provided in ORS 183.413 (Notice to parties before hearing of rights and procedure) (2).

(7) At the hearing, the person about whom the hearing is being held shall have the right:

(a) To appear at all proceedings held pursuant to this section, except for deliberations.

(b) To cross-examine all witnesses appearing to testify at the hearing.

(c) To subpoena witnesses and documents as provided in ORS 161.395 (Subpoena power).

(d) To be represented by suitable legal counsel possessing skills and experience commensurate with the nature and complexity of the case, to consult with counsel prior to the hearing and, if financially eligible, to have suitable counsel appointed at state expense.

(e) To examine all information, documents and reports that the agency considers. If then available to the agency, the information, documents and reports shall be disclosed to the person so as to allow examination prior to the hearing.

(8) A record shall be kept of all hearings conducted under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by agency), except for deliberations.

(9) Upon request of any party, or on motion of the agency conducting the hearing, the hearing may be continued for a reasonable period not to exceed 60 days to obtain additional information or testimony or for other good cause shown.

(10) Within 15 days following the conclusion of the hearing, the agency shall provide to the person, the attorney representing the person, the Attorney General or other attorney representing the state, if any, written notice of the order entered by the agency.

(11) The burden of proof on all issues at hearings under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by agency) shall be by a preponderance of the evidence.

(12) If the agency conducting the hearing determines that the person about whom the hearing is being held is financially eligible, the agency shall appoint suitable counsel to represent the person. Counsel so appointed shall be an attorney who satisfies the professional qualifications established by the Public Defense Services Commission under ORS 151.216 (Duties). The public defense services executive director shall determine and allow fair compensation for counsel appointed under this subsection and the reasonable expenses of the person in respect to the hearing. Compensation payable to appointed counsel shall not be less than the applicable compensation level established under ORS 151.216 (Duties). The compensation and expenses so allowed shall be paid by the public defense services executive director from funds available for the purpose.

(13) The Attorney General may represent the state at contested hearings under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by agency) unless the district attorney of the county from which the person was committed elects to represent the state. The district attorney of the county from which the person was committed shall cooperate with the Attorney General in securing the material necessary for presenting a contested hearing. If the district attorney elects to represent the state, the district attorney shall give timely written notice of such election to the Attorney General, the agency conducting the hearing and the attorney representing the person. [1977 c.380 §15 (enacted in lieu of 161.345); 1979 c.867 §6; 1979 c.885 §5; 1981 c.711 §7; 1981 s.s. c.3 §130; 1983 c.430 §1; 1985 c.502 §23; 1987 c.803 §19; 1991 c.827 §3; 2001 c.962 §40; 2003 c.449 §32; 2005 c.685 §4; 2007 c.288 §7; 2009 c.595 §105; 2011 c.708 §1]

Notes of Decisions

In hearing on revoca­tion of condi­tional release, where peti­tioner failed to apply for discharge under this sec­tion, Board's only op­­tions were to order condi­tional release or commit­ment. Cardwell v. Psychiatric Security Review Board, 38 Or App 565, 590 P2d 787 (1979)

Under this sec­tion, due process does not require greater standard of proof than preponderance of evidence in hearings before PSRB. Ashley v. PSRB, 53 Or App 333, 632 P2d 15 (1981)

Since decision as to dangerousness of individual confined under jurisdic­tion of Psychiatric Security Review Board must be made on basis of evidence in record, where decision was made on basis of non-record opinion in­for­ma­­tion case was remanded for further hearing. Rolfe v. Psychiatric Security Review Board, 53 Or App 941, 633 P2d 846 (1981), Sup Ct review denied

In hearing to determine whether peti­tioner should be discharged, condi­tionally released or retained in state hospital, evidence did not support finding by Psychiatric Security Review Board that peti­tioner suffered from mental disease or defect at time of hearing and case was remanded for further considera­tion. Martin v. Psychiatric Security Review Board, 312 Or 157, 818 P2d 1264 (1991)

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)

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.