ORS 161.370¹
Determination of fitness to proceed
  • proceedings upon finding of unfitness
  • commitment
  • rules

(1)(a) When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by the court.

(b) If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed under ORS 161.365 (Procedure for determining issue of fitness to proceed), the court may make the determination on the basis of the report. If the finding is contested, the court shall hold a hearing on the issue. If the report is received in evidence in the hearing, the party who contests the finding has the right to summon and to cross-examine any certified evaluator who submitted the report and to offer evidence upon the issue. Other evidence regarding the defendant’s fitness to proceed may be introduced by either party.

(2)(a) If the court determines that the defendant lacks fitness to proceed, the criminal proceeding against the defendant shall be suspended and the court shall, at a hearing, proceed in accordance with this subsection.

(b) After making the determination under paragraph (a) of this subsection, the court shall receive a recommendation, to be considered at the hearing, from a community mental health program director or the director’s designee, and from any local entity that would be responsible for supervising the defendant if the defendant were to be released in the community, concerning whether services and supervision necessary to safely allow the defendant to gain or regain fitness to proceed are available in the community.

(c) The court and the parties shall at the hearing determine an appropriate action in the case, and the court shall enter an order necessary to implement the action. In determining the appropriate action, the court shall consider the primary and secondary release criteria as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290), the least restrictive option appropriate for the defendant, the needs of the defendant and the interests of justice. Actions may include but are not limited to:

(A) Commitment for the defendant to gain or regain fitness to proceed under subsection (3) or (5) of this section;

(B) Community restoration as recommended by the community mental health program director or designee;

(C) Release on supervision;

(D) Commencement of a civil commitment proceeding under ORS 426.070 (Initiation) to 426.170 (Delivery of certified copy of record), 426.701 (Commitment of “extremely dangerous” person with mental illness) or 427.235 (Notice to court of need for commitment) to 427.290 (Determination by court of need for commitment);

(E) Commencement of protective proceedings under ORS chapter 125; or

(F) Dismissal of the charges pursuant to ORS 135.755 (Dismissal on motion of court or district attorney).

(d) If the court, while considering or ordering an appropriate action under this subsection, determines that the defendant does not require a hospital level of care due to the defendant’s dangerousness and the acuity of symptoms of the defendant’s qualifying mental disorder, but that services and supervision necessary to safely allow the defendant to gain or regain fitness to proceed are not available in the community, for any defendant remaining in custody after such determination, the court shall set a review hearing seven days from the date of the determination under paragraph (a) of this subsection. At the review hearing, the court shall consider all relevant information and determine an appropriate action in the case as described in paragraph (c) of this subsection. If the defendant remains in custody following the initial review hearing, the court shall hold further review hearings every seven days thereafter until the defendant is no longer in custody.

(3)(a) Unless the court orders an action other than commitment under subsection (2) of this section, and except as otherwise provided in subsections (4) and (5) of this section, if the court finds that the defendant is dangerous to self or others as a result of a qualifying mental disorder, that a hospital level of care is necessary due to the defendant’s dangerousness and the acuity of symptoms of the defendant’s qualifying mental disorder, and that, based on the findings resulting from the consultation described in ORS 161.365 (Procedure for determining issue of fitness to proceed) (1) and from any information provided by community-based mental health providers or any other sources, the services and supervision necessary to allow the defendant to gain or regain fitness to proceed are not available in the community, the court shall commit the defendant to the custody of the superintendent of a state mental hospital or director of a facility designated by the Oregon Health Authority if the defendant is at least 18 years of age, or to the custody of the director of a secure intensive community inpatient facility designated by the authority if the defendant is under 18 years of age.

(b) If the defendant is committed under this subsection, the community mental health program director shall at regular intervals, during any period of commitment, review available community resources and maintain communication with the defendant and the superintendent of the state mental hospital or director of the facility in order to facilitate an efficient transition to treatment in the community when ordered.

(4)(a) If the court does not make a finding described in subsection (3) of this section, if commitment is precluded under subsection (5) of this section or if the court determines that care other than commitment for incapacity to stand trial would better serve the defendant and the community, the court shall release the defendant on supervision for as long as the unfitness endures.

(b) The court may order a community mental health program director providing treatment to the defendant in the community to provide the court with status reports on the defendant’s progress in gaining or regaining fitness to proceed.

(c) A community mental health program director providing treatment to the defendant in the community shall notify the court if the defendant gains or regains fitness to proceed.

(5)(a) If the most serious offense in the charging instrument is a violation, the court may not commit the defendant under subsection (3) of this section.

(b) If the most serious offense in the charging instrument is a misdemeanor, the court may not commit the defendant under subsection (3) of this section unless the finding 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 is based on a recommendation by a certified evaluator as defined in ORS 161.309 (Notice of mental defense), or a community mental health program director or the director’s designee, that the defendant requires such level of care.

(c) If at the time of determining the appropriate action for the case the court has not received a recommendation as to whether 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, the court shall order a certified evaluator or a community mental health program director, or the director’s designee, to make such a recommendation.

(d) If the court does not order the commitment of a defendant described in this subsection to the state mental hospital or other facility, the court shall hold a hearing in accordance with subsection (2)(c) of this section to determine and order an appropriate action other than commitment.

(6) When a defendant is released on supervision under subsection (4) of this section, the court may place conditions that the court deems appropriate on the release, including the requirement that the defendant regularly report to the authority or a community mental health program for examination to determine if the defendant has gained or regained capacity to stand trial.

(7) When the court, on its own motion or upon the application of the superintendent of the hospital or director of the facility in which the defendant is committed, a person examining the defendant as a condition of release on supervision, or either party, determines, after a hearing, if a hearing is requested, that the defendant has gained or regained fitness to proceed, the criminal proceeding shall be resumed. If, however, the court is of the view that so much time has elapsed since the commitment or release of the defendant on supervision that it would be unjust to resume the criminal proceeding, the court on motion of either party may dismiss the charge and may order the defendant to be discharged or cause a proceeding to be commenced forthwith under ORS 426.070 (Initiation) to 426.170 (Delivery of certified copy of record), 426.701 (Commitment of “extremely dangerous” person with mental illness) or 427.235 (Notice to court of need for commitment) to 427.290 (Determination by court of need for commitment).

(8) The superintendent of a state hospital or director of a facility to which the defendant is committed shall cause the defendant to be evaluated within 60 days from the defendant’s delivery into the superintendent’s or director’s custody, for the purpose of determining whether there is a substantial probability that, in the foreseeable future, the defendant will have the capacity to stand trial. In addition, the superintendent or director shall:

(a) Immediately notify the committing court if the defendant, at any time, gains or regains the capacity to stand trial or will never have the capacity to stand trial.

(b) Within 90 days of the defendant’s delivery into the superintendent’s or director’s custody, notify the committing court that:

(A) The defendant has the present capacity to stand trial;

(B) There is no substantial probability that, in the foreseeable future, the defendant will gain or regain the capacity to stand trial; or

(C) There is a substantial probability that, in the foreseeable future, the defendant will gain or regain the capacity to stand trial. If the probability exists, the superintendent or director shall give the court an estimate of the time in which the defendant, with appropriate treatment, is expected to gain or regain capacity.

(c) Notify the court if court-ordered involuntary medication is necessary for the defendant to gain or regain the capacity to proceed and, if appropriate, submit a report to the court under ORS 161.372 (Involuntary administration of medication for fitness to proceed).

(9)(a) If the superintendent or director determines that there is a substantial probability that, in the foreseeable future, the defendant will gain or regain the capacity to stand trial, unless the court otherwise orders, the defendant shall remain in the superintendent’s or director’s custody where the defendant shall receive treatment designed for the purpose of enabling the defendant to gain or regain capacity. In keeping with the notice requirement under subsection (8)(b) of this section, the superintendent or director shall, for the duration of the defendant’s period of commitment, submit a progress report to the committing court, concerning the defendant’s capacity or incapacity, at least once every 180 days as measured from the date of the defendant’s delivery into the superintendent’s or director’s custody.

(b)(A) Notwithstanding paragraph (a) of this subsection, if the superintendent or director determines that a defendant committed under this section is no longer dangerous to self or others as a result of a qualifying mental disorder, that a hospital level of care is not necessary due to the defendant’s dangerousness and the acuity of symptoms of the defendant’s qualifying mental disorder, or that the services and supervision necessary to allow the defendant to gain or regain fitness to proceed are available in the community, the superintendent or director shall file notice of that determination with the court.

(B) Upon receipt of the notice, the court shall order that a community mental health program director or the director’s designee, within five judicial days:

(i) 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; and

(ii) Provide the court and the parties with recommendations from the consultation.

(C) Within 10 judicial days of receiving the recommendations from the consultation, the court shall hold a hearing to determine an appropriate action in accordance with subsection (2)(c) of this section as follows:

(i) If, after consideration of the factors and possible actions described in subsection (2)(c) of this section, and any recommendations from the consultation described in this paragraph, the court determines that the defendant remains dangerous to self or others as a result of a qualifying mental disorder, a hospital level of care is necessary due to the defendant’s dangerousness and the acuity of symptoms of the defendant’s qualifying mental disorder, and the services and supervision necessary to allow the defendant to gain or regain fitness to proceed are not available in the community, the court may, after making specific findings to that effect, continue the commitment.

(ii) If the court does not make the findings described in sub-subparagraph (i) of this subparagraph, the court shall terminate the commitment and shall set a review hearing seven days from the date of the commitment termination for any defendant remaining in custody. At the review hearing, the court shall consider all relevant information and determine an appropriate action in the case as described in subsection (2)(c) of this section. If the defendant remains in custody following the initial review hearing, the court shall hold further review hearings every seven days thereafter until the defendant is no longer in custody.

(c) A progress report described in paragraph (a) of this subsection may consist of an update to:

(A) The original examination report conducted under ORS 161.365 (Procedure for determining issue of fitness to proceed); or

(B) An evaluation conducted under subsection (8) of this section, if the defendant did not receive an examination under ORS 161.365 (Procedure for determining issue of fitness to proceed).

(10)(a) A defendant who remains committed under subsection (9) of this section shall be discharged within a period of time that is reasonable for making a determination concerning whether or not, and when, the defendant may gain or regain capacity. However, regardless of the number of charges with which the defendant is accused, in no event shall the defendant be committed for longer than whichever of the following, measured from the defendant’s initial custody date, is shorter:

(A) Three years; or

(B) A period of time equal to the maximum sentence the court could have imposed if the defendant had been convicted.

(b) For purposes of calculating the maximum period of commitment described in paragraph (a) of this subsection:

(A) The initial custody date is the date on which the defendant is first committed under this section on any charge alleged in the accusatory instrument; and

(B) The defendant shall be given credit against each charge alleged in the accusatory instrument:

(i) For each day the defendant is committed under this section, whether the days are consecutive or are interrupted by a period of time during which the defendant has gained or regained fitness to proceed; and

(ii) Unless the defendant is charged on any charging instrument with aggravated murder or a crime listed in ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences) (2), for each day the defendant is held in jail before and after the date the defendant is first committed, whether the days are consecutive or are interrupted by a period of time during which the defendant lacks fitness to proceed.

(11) The superintendent or director shall notify the committing court of the defendant’s impending discharge 30 days before the date on which the superintendent or director is required to discharge the defendant under subsection (10) of this section.

(12) When the committing court receives a notice from the superintendent or director under subsection (8) or (11) of this section concerning the defendant’s progress or lack thereof, the committing court shall determine, after a hearing, if a hearing is requested, whether the defendant presently has the capacity to stand trial.

(13) If at any time the court determines that the defendant lacks the capacity to stand trial, the court shall further determine whether there is a substantial probability that the defendant, in the foreseeable future, will gain or regain the capacity to stand trial and whether the defendant is entitled to discharge under subsection (10) of this section. If the court determines that there is no substantial probability that the defendant, in the foreseeable future, will gain or regain the capacity to stand trial or that the defendant is entitled to discharge under subsection (10) of this section, the court shall dismiss, without prejudice, all charges against the defendant and:

(a) Order that the defendant be discharged; or

(b) Initiate commitment proceedings under ORS 426.070 (Initiation) or 427.235 (Notice to court of need for commitment) to 427.290 (Determination by court of need for commitment).

(14) All notices required under this section shall be filed with the court and may be filed electronically. The clerk of the court shall cause copies of the notices to be delivered to both the district attorney and the counsel for the defendant.

(15) If the defendant gains or regains fitness to proceed, the term of any sentence received by the defendant for conviction of the crime charged shall be reduced by the amount of time the defendant was committed under this section to the custody of a state mental hospital, or to the custody of a secure intensive community inpatient facility designated by the Oregon Health Authority.

(16) Notwithstanding the suspension of the criminal proceeding under subsection (2) of this section, the fact that the defendant is unfit to proceed does not preclude any objection through counsel and without the personal participation of the defendant on the grounds that the indictment is insufficient, that the statute of limitations has run, that double jeopardy principles apply or upon any other ground at the discretion of the court which the court deems susceptible of fair determination prior to trial.

(17) At the time that the court determines that the defendant lacks fitness to proceed under subsection (2) of this section, the court shall notify the defendant that federal law prohibits the defendant from purchasing or possessing a firearm unless the person obtains relief from the prohibition under federal law. The court shall again notify the defendant of the prohibition if the court finds that the defendant has gained or regained fitness to proceed under subsection (7) of this section.

(18)(a) The entity or evaluator conducting an examination of a defendant under this section shall provide a copy of any report described in this section 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.

(b) 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.

(c) 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.

(d) 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.

(19) The court shall ensure that an order entered under this section is provided, by the end of the next judicial day, to any entity ordered to provide services and supervision necessary to restore the defendant’s fitness to proceed.

(20) Unless the court orders otherwise or either party objects, a defendant committed to a state hospital or other facility, or a certified evaluator or other expert witness, may attend hearings held under this section via simultaneous electronic transmission.

(21) The Oregon Health Authority shall establish by rule standards for the recommendation provided to the court described in subsection (2) of this section. [1971 c.743 §52; 1975 c.380 §5; 1993 c.238 §3; 1999 c.931 §§1,2; 2005 c.685 §6; 2009 c.595 §107; 2011 c.508 §1; 2011 c.724 §8; 2015 c.130 §2; 2017 c.49 §1; 2017 c.233 §3; 2017 c.628 §1; 2017 c.634 §16; 2019 c.311 §5; 2019 c.318 §2; 2019 c.538 §2a]

Notes of Decisions

Holding incapacitated crim­i­nal defendant in jail for extended period pending acceptance by state mental hospital violates defendant’s due process rights. Oregon Advocacy Center v. Mink, 322 F3d 1101 (9th Cir. 2003)

Where trial court finds, based on medical evidence, that defendant is not fit to stand trial, this sec­tion implicitly authorizes court to issue Sell order to administer antipsychotic medica­tions to defendant to enable defendant to stand trial, regardless of whether doctor agrees that antipsychotic medica­tion is medically necessary. Oregon State Hospital v. Butts, 358 Or 49, 359 P3d 1187 (2015)

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