2007 ORS 426.130¹
Court determination of mental illness
  • discharge
  • release for voluntary treatment
  • conditional release
  • commitment
  • prohibition relating to firearms
  • period of commitment

(1) After hearing all of the evidence, and reviewing the findings of the examining persons, the court shall determine whether the person is mentally ill. If, in the opinion of the court, the person is:

(a) Not mentally ill, the person shall be discharged forthwith.

(b) Mentally ill based upon clear and convincing evidence, the court:

(A) Shall order the release of the individual and dismiss the case if:

(i) The mentally ill person is willing and able to participate in treatment on a voluntary basis; and

(ii) The court finds that the person will probably do so.

(B) May order conditional release under this subparagraph subject to the qualifications and requirements under ORS 426.125 (Qualifications and requirements for conditional release). If the court orders conditional release under this subparagraph, the court shall establish a period of commitment for the conditional release.

(C) May order commitment of the individual to the Department of Human Services for treatment if, in the opinion of the court, subparagraph (A) or (B) of this paragraph is not in the best interest of the mentally ill person. If the court orders commitment under this subparagraph:

(i) The court shall establish a period of commitment.

(ii) The department may place the committed person in outpatient commitment under ORS 426.127 (Outpatient commitment).

(D) Shall order that the person be prohibited from purchasing or possessing a firearm if, in the opinion of the court, there is a reasonable likelihood the person would constitute a danger to self or others or to the community at large as a result of the person’s mental or psychological state as demonstrated by past behavior or participation in incidents involving unlawful violence or threats of unlawful violence, or by reason of a single incident of extreme, violent, unlawful conduct. When a court makes an order under this subparagraph, the court shall cause a copy of the order to be delivered to the sheriff of the county who will enter the information into the Law Enforcement Data System.

(2) A court that orders a conditional release or a commitment under this section shall establish a period of commitment for the person subject to the order. Any period of commitment ordered for commitment or conditional release under this section shall be for a period of time not to exceed 180 days.

(3) If the commitment proceeding was initiated under ORS 426.070 (Initiation) (1)(a) and if the notice included a request under ORS 426.070 (Initiation) (2)(d)(B), the court shall notify the two persons of the court’s determination under subsection (1) of this section. [Amended by 1973 c.838 §12; 1975 c.690 §8; 1979 c.408 §3; 1987 c.903 §17; 1989 c.839 §36; 1993 c.735 §9; 1995 c.498 §2]

Notes of Decisions

Evidence was sufficient to find defendant mentally ill beyond reasonable doubt where he suffered from manic depressive psychosis, behaved in bizarre manner, and made threats of violence to others accompanied by violent acts. State v. Allmendinger, 36 Or App 381, 584 P2d 773 (1978)

Where one examining physician stated that peti­tioner was "probably" suffering from mental illness and an­oth­er physician stated that peti­tioner suffered from a "psychosis," without any further supporting evidence or explana­tion, this was not sufficient evidence upon which to base involuntary commit­ment order under this sec­tion. State v. Jepson, 48 Or App 411, 617 P2d 284 (1980)

A Court is not forbidden to commit a per­son simply because he has submitted himself voluntarily to treat­ment. State v. Kerrigan, 67 Or App 399, 678 P2d 271 (1984)

That per­son is mentally ill must be proven by clear and convincing evidence; that is, truth of acts asserted must be "highly probable." State v. Waites, 71 Or App 366, 692 P2d 654 (1984)

Where defendant testified he would stay at YMCA or motel, had been eating at local hospital cafeteria, had some money and was looking for work and apart­ment and state did not provide any evidence to contradict such testimony, there was lack of clear and convincing evidence to show defendant dangerous to self or others or unable to provide for his basic needs. State v. Garibbo, 77 Or App 321, 713 P2d 671 (1986)

Where defendant made threats of violence to members of his family, treated his sister violently and roughly and two examining mental health professionals disagreed as to whether defendant was a danger to himself or others, defendant's con­duct and state­ments provides clear and convincing evidence that he is dangerous to others. State v. Furnish, 86 Or App 194, 738 P2d 607 (1987)

Where "mental health examiner" examined appellant as part of commit­ment after attorney told examiner appellant did not wish to speak with him, and at trial appellant moved to suppress all evidence obtained during interview, and trial court denied mo­tion on de novo review excluding examiner's report and observa­tions, remaining evidence clearly and convincingly demonstrates that statutory criteria for commit­ment was met. State of Oregon v. Haller, 95 Or App 752, 770 P2d 615 (1989)

Where only evidence of danger to himself was single automobile accident, order com­mit­ting appellant to Mental Health Division was reversed. State v. Siebold, 100 Or App 365, 786 P2d 219 (1990)

This sec­tion in prohibiting mentally ill per­son from pos­ses­sing firearm does not violate right to bear arms under Oregon Constitu­tion, Art. I, sec. 27. State v. Owenby, 111 Or App 270, 826 P2d 51 (1992)

This sec­tion requires trial court to review findings of examining per­sons in determining whether per­son is mentally ill, but does not bind court to findings or require court to explain why it rejects those findings. State v. Evjen, 111 Or App 368, 826 P2d 92 (1992)

Court need not release per­son who provides evidence of willingness to participate voluntarily in treat­ment if court does not find that per­son "will probably do so." State v. Doe, 116 Or App 18, 840 P2d 727 (1992)

Mental illness was demonstrated by clear and convincing evidence where: Defendant was seriously malnourished when not under doctor's care; she had no credible plan to acquire adequate nutri­tion in future, minimized danger faced from malnutri­tion and had history of failing to follow through with plans for care; she had no family or friends who would assist her. State v. Johnson, 117 Or App 237, 843 P2d 985 (1992)

Where court had ample evidence that delusional per­son would commit violent acts in future, specific acts of past violence were not re­quired to es­tab­lish that per­son was dangerous. State v. Bodell, 120 Or App 548, 853 P2d 841 (1993)

Proper standard of proof in disposi­tional phase of mental commit­ment pro­ceed­ing is preponderance of evidence. State v. Brenhuber, 146 Or App 719, 934 P2d 550 (1997)

Where per­son crim­i­nally liable for past acts has mental disorder that includes impaired impulse control, per­son may fall within narrow group of per­sons subject to both crim­i­nal system and civil commit­ment system. State v. Gibson, 187 Or App 207, 66 P3d 560 (2003), Sup Ct review denied

Court authority to prohibit per­son from purchasing or pos­ses­sing firearms does not allow court to order seizure and disposal of firearms. State v. Gifford, 200 Or App 40, 113 P3d 445 (2005)

Atty. Gen. Opinions

Mental Health Division recogni­tion of commit­ment order issued by Indian tribal court, (1970) Vol 40, p 31

Law Review Cita­tions

26 WLR 566 (1990)

Notes of Decisions

Where defendant in involuntary commit­ment pro­ceed­ing asserted he was denied due process because investigator misled him as to how soon hearing would take place and did not take long enough to complete investiga­tion but defendant did not assert that investiga­tion report was inaccurate or incomplete, due process viola­tion was not es­tab­lished. State v. Pieretti, 110 Or App 379, 823 P2d 426 (1991), Sup Ct review denied

Atty. Gen. Opinions

Mental Health Division recogni­tion of commit­ment order issued by Indian tribal court, (1979) Vol 40, p 31

Law Review Cita­tions

53 OLR 245-270 (1974)

Notes of Decisions

The doctor-patient privilege applies under these sec­tions. State v. O'Neill, 274 Or 59, 545 P2d 97 (1976)

Prior to commit­ment there must be evidence proving beyond a reasonable doubt that the individual is mentally ill as defined. State v. O'Neill, 274 Or 59, 545 P2d 97 (1976)

The Oregon commit­ment statutes are not unconstitu­tional on the grounds of vagueness or as an invasion of privacy as protected by the Ninth and Fourteenth Amend­ments to the United States Constitu­tion. State v. O'Neill, 274 Or 59, 545 P2d 97 (1976)

Oregon Constitu­tion did not require jury in mental commit­ment hearings. State v. Mills, 36 Or App 727, 585 P2d 1143 (1978), Sup Ct review denied

Alleged mentally ill per­son does not have right to remain silent in civil commit­ment pro­ceed­ing. State v. Matthews, 46 Or App 757, 613 P2d 88 (1980), Sup Ct review denied

Law Review Cita­tions

9 WLJ 63-85 (1973)

Chapter 426

Notes of Decisions

The entire statutory scheme of involuntary commit­ment provides adequate procedural safeguards which satisfies the require­ments of due process and equal protec­tion. Dietrich v. Brooks, 27 Or App 821, 558 P2d 357 (1976), Sup Ct review denied

Atty. Gen. Opinions

County of residence paying mental commit­ment costs, (1979) Vol 40, p 147; civil commit­ment to Mental Health Division of per­son against whom crim­i­nal charges are pending, (1980) Vol 41, p 91

Law Review Cita­tions

16 WLR 448 (1979)


1 Legislative Counsel Committee, CHAPTER 426—Persons With Mental Illness; Sexually Dangerous Persons, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­426.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 426, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­426ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
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.