2015 ORS 166.270¹
Possession of weapons by certain felons

(1) Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the persons possession or under the persons custody or control any firearm commits the crime of felon in possession of a firearm.

(2) Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the persons possession or under the persons custody or control any instrument or weapon having a blade that projects or swings into position by force of a spring or by centrifugal force or any blackjack, slungshot, sandclub, sandbag, sap glove, metal knuckles or an Electro-Muscular Disruption Technology device as defined in ORS 165.540 (Obtaining contents of communications), or who carries a dirk, dagger or stiletto, commits the crime of felon in possession of a restricted weapon.

(3) For the purposes of this section, a person has been convicted of a felony if, at the time of conviction for an offense, that offense was a felony under the law of the jurisdiction in which it was committed. Such conviction shall not be deemed a conviction of a felony if:

(a) The court declared the conviction to be a misdemeanor at the time of judgment; or

(b) The offense was possession of marijuana and the conviction was prior to January 1, 1972.

(4) Subsection (1) of this section does not apply to any person who has been:

(a) Convicted of only one felony under the law of this state or any other state, or who has been convicted of only one felony under the laws of the United States, which felony did not involve criminal homicide, as defined in ORS 163.005 (Criminal homicide), or the possession or use of a firearm or a weapon having a blade that projects or swings into position by force of a spring or by centrifugal force, and who has been discharged from imprisonment, parole or probation for said offense for a period of 15 years prior to the date of alleged violation of subsection (1) of this section; or

(b) Granted relief from the disability under 18 U.S.C. 925(c) or ORS 166.274 (Relief from prohibition against possessing or receiving firearm) or has had the persons record expunged under the laws of this state or equivalent laws of another jurisdiction.

(5) Felon in possession of a firearm is a Class C felony. Felon in possession of a restricted weapon is a Class A misdemeanor. [Amended by 1975 c.702 §1; 1985 c.543 §4; 1985 c.709 §2; 1987 c.853 §1; 1989 c.839 §4; 1993 c.735 §2; 1995 c.518 §1; 1999 c.1040 §16; 2003 c.14 §64; 2009 c.189 §1; 2009 c.499 §3]

Notes of Decisions

In General

In pros­e­cu­­tion under this sec­tion, testimony re­gard­ing value of items stolen from defendants house was permissible to show that defendant may have had a different motive for carrying gun than his alleged fear of an­oth­er individual, namely, the motive to protect large amounts of cash and other valuable assets in his pos­ses­sion. State v. Jackson, 33 Or App 139, 575 P2d 1002 (1978), Sup Ct review denied

Where penitentiary inmate living at work release center did not come into pos­ses­sion of weapons until after leaving center, his con­vic­­tion for committed felon in pos­ses­sion of weapon under ORS 166.275 (Possession of weapons by inmates of institutions) was reduced to ex-convict in pos­ses­sion of firearm under this sec­tion. State v. Larsen, 44 Or App 643, 606 P2d 1159 (1980), Sup Ct review denied

Where defendant was convicted of violating this sec­tion and sen­tenced to max­i­mum one year term of im­pris­on­­ment, he had not been accorded misdemeanor treat­ment under ORS 161.585 (Classification of certain crimes determined by punishment). State ex rel Redden v. Davis, 288 Or 283, 604 P2d 879 (1980)

Defini­tion of firearm capable of being concealed upon the per­son in ORS 166.210 (Definitions) does not limit same term in this sec­tion since such defini­tion states that it does apply to and include firearms with barrels less than 12 inches long. State v. Miller, 87 Or App 439, 742 P2d 692 (1987)

On remand, court did not err in denying defendants mo­tion for judg­ment of acquittal on ex-convict in pos­ses­sion of weapon charge because fact that he had been sen­tenced to one year in county jail on underlying felony did not make it misdemeanor under this sec­tion. State v. Aldrich, 92 Or App 70, 757 P2d 440 (1988)

Trial court properly imposed min­i­mum term sen­tence under ORS 161.610 (Enhanced penalty for use of firearm during commission of felony) based upon finding that defendant had threatened use of firearm while com­mit­ting felony of being ex-convict in pos­ses­sion of firearm under this sec­tion. State v. Gilbert, 99 Or App 116, 781 P2d 389 (1989)

For purposes of this sec­tion, convicted of a felony means not only determina­tion of guilt but also entry of judg­ment of con­vic­­tion. State v. Dintelman, 112 Or App 350, 829 P2d 719 (1992)

Applica­tion of 1990 statutory amend­ment to felons convicted of crimes prior to amend­ment does not violate ex post factopro­vi­sion of U.S. Constitu­tion. U.S. v. Huss, 7 F3d 1444 (9th Cir. 1993)

Voiding of felony con­vic­­tion removes firearm disability prospectively, but does not legalize pos­ses­sion of firearm during period disability was in place. Bailey v. Lampert, 203 Or App 45, 125 P3d 771 (2005), affd 342 Or 321, 153 P3d 95 (2007)

For purposes of merger under ORS 161.067 (Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations), public is single collective victim of viola­tion of felony pos­ses­sion of firearm. State v. Torres, 249 Or App 571, 277 P3d 641 (2012), Sup Ct review denied

Ninja climbing claws that are metal bands with short metal spikes on one side and are designed to be worn on hand with spikes on palm side to enable wearer to climb trees, are not metal knuckles as that term is used in this sec­tion. State v. Behee, 267 Or App 77, 340 P3d 127 (2014)

Defendant and defendants partner, who had pattern of com­mit­ting organized shoplifting together at grocery stores with intent to resell items, participated in enterprise for purposes of Oregon Racketeer Influenced and Corrupt Organiza­tion Act. Enterprise includes formal and informal organiza­tions or associa­tions of individuals that engage in pattern of rack­et­eering ac­tivity. State v. Walker, 356 Or 4, 333 P3d 316 (2014)

Ex Convict

Notwithstanding that suspended sen­tence resulting from defendants 1970 con­vic­­tion of felony had become misdemeanor by virtue of defendants successful comple­tion of proba­tion, prior con­vic­­tion was con­vic­­tion of a felony for purposes of this sec­tion. State v. Pritchard, 31 Or App 53, 569 P2d 690 (1977), Sup Ct review denied

Defini­tion of firearm in ORS 164.055 (Theft in the first degree) (theft in first de­gree) is applicable under this sec­tion inasmuch as both crimes have closely related policy founda­tion, i.e., to deter obtaining of guns by those most likely to use them crim­i­nally. State v. Hash, 34 Or App 281, 578 P2d 482 (1978), Sup Ct review denied

State was re­quired only to prove pos­ses­sion of concealable firearm and that defendant knowingly had pos­ses­sion. State v. Hash, 34 Or App 281, 578 P2d 482 (1978), Sup Ct review denied

Evidence of defendants prior felony con­vic­­tion was properly admitted at trial for pos­ses­sion of firearm by ex-convict since prior con­vic­­tion was not reduced to misdemeanor at time of judg­ment by sen­tence imposed. State v. Erb, 101 Or App 444, 790 P2d 1211 (1990)

Restric­tion on pos­ses­sion of firearms by felons does not violate right to bear arms granted by sec­tion 27, Article I of Oregon Constitu­tion. State v. Hirsch, 177 Or App 441, 34 P3d 1209 (2001), affd 338 Or 622, 114 P3d 1104 (2005)

Provision that per­son has been convicted of felony if of­fense was felony at time of con­vic­­tion and court did not declare con­vic­­tion to be misdemeanor at time of judg­ment supersedes ORS 161.585 (Classification of certain crimes determined by punishment) pro­vi­sion that felony subject to that sec­tion is automatically reduced to misdemeanor at sen­ten­cing if court imposes only fine. Koennecke v. Lampert, 198 Or App 444, 108 P3d 653 (2005), Sup Ct review denied

This sec­tion does not require culpable mental state with respect to per­sons status as felon. State v. Rainoldi, 351 Or 486, 268 P3d 568 (2011)

For purpose of determining when court declares felony con­vic­­tion to be misdemeanor, time of judg­ment refers to time when original judg­ment of felony con­vic­­tion is entered, not to time when judg­ment reducing that con­vic­­tion to misdemeanor status is entered. State v. Stark, 248 Or App 573, 273 P3d 941 (2012), affd 354 Or 1, 307 P3d 418 (2013)

Possession

For purposes of pos­ses­sion require­ment it is sufficient that defendant have constructive pos­ses­sion and immediate access to weapon. State v. Kelley, 12 Or App 496, 507 P2d 837 (1973); United States v. Rousseau, 257 F3d 925 (9th Cir. 2001)

Possession of firearm may be es­tab­lished from evidence it was at premises jointly occupied by defendant. State v. Strong, 41 Or App 665, 598 P2d 1254 (1979)

Enhanced sen­tence authorized and imposed pursuant to ORS 161.610 (Enhanced penalty for use of firearm during commission of felony), following con­vic­­tion under this sec­tion, did not offend vindictive justice principles of Oregon Constitu­tion Article I, Sec­tion 15. State v. Lippert, 53 Or App 358, 632 P2d 28 (1981), Sup Ct review denied

Venue on charge of pos­ses­sion of restricted weapon was proper in Multnomah County, where defendant had been taken after being picked up by police in Clackamas County, because, although in custody, defendant exercised control of weapon until it was taken from him in Multnomah County. State v. Guest, 103 Or App 594, 798 P2d 708 (1990), Sup Ct review denied

Indict­ment alleging that defendant possessed pistol sufficiently alleged that defendant possessed firearm capable of being concealed. State v. Wolfs, 119 Or App 262, 850 P2d 1139 (1993), Sup Ct review denied

Where defendant was a convicted felon at the time of the alleged firearm pos­ses­sion and his con­vic­­tion was declared a misdemeanor after by the time of the alleged pos­ses­sion, defendant was felon in pos­ses­sion because at the time of judg­ment in this sec­tion refers to judg­ment of con­vic­­tion in effect at time of alleged pos­ses­sion. State v. Stark, 354 Or 1, 307 P3d 418 (2013)

Completed Cita­tions

State v. Miller, 5 Or App 501, 484 P2d 1132 (1971), Sup Ct review denied

Law Review Cita­tions

11 WLJ 296 (1975)

Law Review Cita­tions

26 WLR 566 (1990)

Chapter 166

Law Review Cita­tions

51 OLR 427-637 (1972); 69 OLR 169 (1990)


1 Legislative Counsel Committee, CHAPTER 166—Offenses Against Public Order; Firearms and Other Weapons; Racketeering, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors166.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 166, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano166.­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.