ORS 161.365¹
Procedure for determining issue of fitness to proceed
  • examination
  • report
  • rules

(1)(a) When the court has reason to doubt the defendant’s fitness to proceed by reason of incapacity as described in ORS 161.360 (Qualifying mental disorder affecting fitness to proceed), the court may call any witness to assist it in reaching its decision and shall order that a community mental health program director, or the director’s designee, consult with the defendant and with any local entity that would be responsible for supervising the defendant if the defendant were to be released in the community, to determine whether services and supervision necessary to safely allow the defendant to gain or regain fitness to proceed are available in the community. After the consultation, the program director or the director’s designee shall provide to the court a copy of the findings resulting from the consultation. If the court determines the assistance of a psychiatrist or psychologist would be helpful, the court may:

(A) Order that a psychiatric or psychological examination of the defendant be conducted by a certified evaluator and a report of the examination be prepared; or

(B) Order the defendant to be committed for the purpose of an examination to a state mental hospital or other facility designated by the Oregon Health Authority if the defendant is at least 18 years of age, or to a secure intensive community inpatient facility designated by the authority if the defendant is under 18 years of age. The state mental hospital or other facility may retain custody of a defendant committed under this paragraph for the duration necessary to complete the examination of the defendant, not to exceed 30 days. The examination may include a period of observation.

(b) The court shall provide a copy of any order entered under this subsection to the community mental health program director or designee and to the state mental hospital or other facility by the end of the next judicial day.

(2)(a) A defendant committed under subsection (1)(a)(B) of this section shall be transported to the state mental hospital or other facility for the examination.

(b) At the conclusion of the examination, the superintendent of the state mental hospital or the superintendent’s designee or the director of the facility may:

(A) Return the defendant to the facility from which the defendant was transported; or

(B) Inform the court and the parties that the defendant requires a hospital level of care due to the defendant’s dangerousness and the acuity of symptoms of the defendant’s qualifying mental disorder and request that the defendant remain at the state mental hospital or other facility pending a hearing or order under ORS 161.370 (Determination of fitness to proceed).

(c) If both parties consent, the court may, without holding a hearing, enter any order authorized by ORS 161.370 (Determination of fitness to proceed) based on a report resulting from an examination conducted under this section.

(3) The report of an examination described in this section must include, but is not necessarily limited to, the following:

(a) A description of the nature of the examination;

(b) A statement of the mental condition of the defendant;

(c) If the defendant suffers from a qualifying mental disorder, an opinion as to whether the defendant is incapacitated within the description set out in ORS 161.360 (Qualifying mental disorder affecting fitness to proceed); and

(d) If the defendant is incapacitated within the description set out in ORS 161.360 (Qualifying mental disorder affecting fitness to proceed), a recommendation of treatment and services necessary to allow the defendant to gain or regain capacity, including whether a hospital level of care is required due to the defendant’s dangerousness and the acuity of symptoms of the defendant’s qualifying mental disorder.

(4) Except when the defendant and the court both request to the contrary, the report may not contain any findings or conclusions as to whether the defendant as a result of a qualifying mental disorder was subject to the provisions of ORS 161.295 (Effect of qualifying mental disorder) or 161.300 (Evidence of qualifying mental disorder admissible as to intent) at the time of the criminal act charged.

(5) If the examination by the certified evaluator cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report must so state and must include, if possible, an opinion as to whether the unwillingness of the defendant was the result of a qualifying mental disorder affecting capacity to proceed.

(6)(a) The report resulting from the examination of a defendant under this section may be filed electronically and must be filed with the clerk of the court, who shall cause copies to be delivered to the district attorney and to counsel for defendant.

(b) The entity or evaluator conducting the examination shall provide a copy of the report resulting from the examination to the community mental health program director or designee in:

(A) The county in which the defendant is charged; and

(B) The county of the defendant’s last known residence.

(c) Reports prepared under this section are confidential and may be made available only:

(A) To the court, prosecuting attorney, defense attorney, agent of the prosecuting or defense attorney, defendant, community mental health program director or designee and any facility in which the defendant is housed; or

(B) As ordered by a court.

(d) Any facility in which a defendant is housed may not use a report prepared under this section to support a disciplinary action against the defendant.

(e) Nothing in this subsection prohibits the prosecuting attorney, defense attorney or agent of the prosecuting or defense attorney from discussing the contents of a report prepared under this section with witnesses or victims as otherwise permitted by law.

(7)(a) When upon motion of the court or a financially eligible defendant, the court has ordered a psychiatric or psychological examination of the defendant, a county or justice court shall order the county to pay, and a circuit court shall order the public defense services executive director to pay from funds available for the purpose:

(A) A reasonable fee if the examination of the defendant is conducted by a certified evaluator in private practice; and

(B) All costs including transportation of the defendant if the examination is conducted by a certified evaluator in the employ of the Oregon Health Authority or a community mental health program established under ORS 430.610 (Legislative policy) to 430.670 (Contracts to provide services).

(b) When an examination is ordered at the request or with the acquiescence of a defendant who is determined not to be financially eligible, the examination shall be performed at the defendant’s expense. When an examination is ordered at the request of the prosecution, the county shall pay for the expense of the examination.

(8) The Oregon Health Authority shall establish by rule standards for the consultation described in subsection (1) of this section.

(9) As used in this section and ORS 161.370 (Determination of fitness to proceed), “certified evaluator” has the meaning given that term in ORS 161.309 (Notice of mental defense). [1971 c.743 §51; 1975 c.380 §4; 1981 s.s. c.3 §131; 1983 c.800 §11; 1987 c.803 §18; 1993 c.238 §2; 2001 c.962 §90; 2005 c.685 §5; 2009 c.595 §106; 2011 c.724 §7; 2015 c.130 §1; 2017 c.252 §25; 2017 c.634 §15; 2019 c.311 §4; 2019 c.318 §1; 2019 c.538 §1a]

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 (2019) (last ac­cessed May 16, 2020).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2019) (last ac­cessed May 16, 2020).
 
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. Currency Information