Conditions of probation
- evaluation and treatment
- effect of failure to abide by conditions
- modification
Amended by SB 1510
Effective since March 23, 2022
Relating to public safety; creating new provisions; amending ORS 131.615, 137.540, 144.102, 181A.530 and 810.410 and sections 8, 12, 33, 38, 53, 56 and 60, chapter 649, Oregon Laws 2013, and section 7, chapter 98, Oregon Laws 2018; and declaring an emergency.
Source:
Section 137.540 — Conditions of probation; evaluation and treatment; effect of failure to abide by conditions; modification, https://www.oregonlegislature.gov/bills_laws/ors/ors137.html.
Notes of Decisions
Specific condition prohibiting entry into marriage without court permission was valid. State v. Allen, 12 Or App 455, 506 P2d 528 (1973), Sup Ct review denied
Specific condition prohibiting association with any person ever convicted of crime was not facially invalid. State v. Allen, 12 Or App 455, 506 P2d 528 (1973), Sup Ct review denied
The fact that defendant’s conviction is for an attempt to commit theft would not preclude the court from conditioning probation upon restitution of the amount actually taken, even though a larger amount. State v. Foltz, 14 Or App 582, 513 P2d 1208 (1973), Sup Ct review denied
The “aggrieved party” status is limited to the owner of the automobile damaged. State v. Getsinger, 27 Or App 339, 556 P2d 147 (1976)
“Restitution” means return of sum of money, object or value of object which defendant wrongfully obtained in course of committing crime. State v. Stalheim, 275 Or 683, 552 P2d 829 (1976)
“Reparation” encompasses only reimbursement for victim’s liquidated or easily measurable damages resulting from charged offense, embracing medical expenses, wages actually lost, and reimbursement for easily measurable property damage. State v. Stalheim, 275 Or 683, 552 P2d 829 (1976)
A probationer retains all civil liberties except those which are taken away as conditions of probation and the standard against which the validity of conditions imposed is to be measured is whether they bear a reasonable relationship to the reformation of the offender or the protection of the public; overruling State v. Davis/Travis, 9 Or App 412, 496 P2d 923 (1972), Sup Ct review denied. State v. Culbertson, 29 Or App 363, 563 P2d 1224 (1977)
Condition of probation, requiring defendant convicted of criminally negligent homicide to pay $7,100 to victim’s estate, was improper absent evidence that such sum constituted reparation or reimbursement for liquidated or easily measurable damages actually resulting from the offense. State v. Wanrow, 30 Or App 75, 566 P2d 533 (1977)
In trial of defendant convicted of theft and resale of $18,000 antique auto, court order requiring restitution of $18,000 within ninety days as condition of probation did not set forth so short a repayment period as to make condition impossible, was not inconsistent with court’s prior finding that defendant was indigent for purposes of appointment of counsel, and was not abuse of discretion. State v. Ledder, 31 Or App 487, 570 P2d 994 (1977)
Probation condition, requiring consent of defendant to warrantless searches for drugs of her person, premises, or vehicle at any time, was not demonstrably in aid of her probation following guilty plea to check forgery. State v. Fisher, 32 Or App 465, 547 P2d 354 (1978), Sup Ct review denied
Condition of probation, requiring defendant to make restitution for items which she was not convicted of taking and had not admitted taking, was improper. State v. Cox, 35 Or App 169, 581 P2d 104 (1978)
Where probation condition interferes with marital right, court must consider whether spouse would be bad influence endangering rehabilitation or public safety and whether restriction less than total separation would protect societal interests. State v. Martin, 282 Or 583, 580 P2d 536 (1978); State v. Saxon, 131 Or App 662, 886 P2d 505 (1994)
Condition requiring probationer to submit to polygraph tests could constitutionally be imposed with no more than general finding of court that it was reasonably necessary to accomplish purpose of probation. State v. Age, 38 Or App 501, 590 P2d 759 (1979)
Under former statute, which allowed reparation or restitution to crime victim, estate of homicide victim was not direct victim of crime entitled to restitution. State v. Wanrow, 39 Or App 13, 591 P2d 751 (1979)
Conditions of probation may not be fixed by probation officers. State v. Maag, 41 Or App 133, 579 P2d 838 (1979)
Imposition of probation condition that allowed probation officer to search probationer’s person, residence, or property without warrant at any time was invalid where this condition was imposed by probation officer and not by sentencing court. State v. Stephens, 47 Or App 305, 614 P2d 1180 (1980)
Trial court had no authority to require defendant to pay probation fee. State v. Haynes, 53 Or App 850, 633 P2d 38 (1981), Sup Ct review denied
Where defendant was convicted on two felony counts for crimes committed while on probation for earlier felony conviction and court continued earlier probation but added new conditions by imposing consecutive county jail terms of imprisonment to be served after prison term for most recent convictions, court could act under authority of this section to modify conditions of probation. State v. Walker, 77 Or App 464, 713 P2d 612 (1986), Sup Ct review denied
When defendant is placed on probation and, as condition of that probation, he is ordered to serve 180 days, with 165 days suspended, trial court may require him to serve that 165 days when he violates conditions of probation, and still continue probation. State v. Kreitzer, 85 Or App 151, 735 P2d 1274 (1987)
Trial court had statutory authority to increase DUII defendant’s jail time by modifying conditions of probation although defendant had not violated terms of probation. State v. Jones, 90 Or App 176, 750 P2d 1211 (1988)
Where submission to searches as condition of probation is authorized only if probation officer has reasonable grounds to believe that search will disclose evidence of probation violation, search imposed to verify compliance with conditions of probation fails to conform to statute. State v. Schwab, 95 Or App 593, 771 P2d 277 (1989); State v. Guzman, 164 Or App 90, 990 P2d 370 (1999), Sup Ct review denied
Where defendant pleaded guilty to rape in second degree of girl under age 14, probation condition that defendant not be present in any private residence or vehicle with child under age 18 was proper for protection of public. State v. Crocker, 96 Or App 111, 771 P2d 1026 (1989)
Where trial court imposed as condition of probation that defendant build entire new fence, record that shows cattle strayed through hole in fence not sufficient to support condition of probation that defendant build entire new fence. State v. Holdner, 96 Or App 445, 772 P2d 1382 (1989), Sup Ct review denied
Authority of probation officer to conduct home visit does not encompass authority to conduct search. State v. Altman, 97 Or App 462, 777 P2d 969 (1989); State v. Guzman, 164 Or App 90, 990 P2d 370 (1999), Sup Ct review denied
Court did not err in assessing, as condition of probation, $250 rather than $90 for reimbursement of court-appointed attorney fees since only evidence regarding what state would pay for defendant’s representation was his counsel’s $250 calculation during sentencing. State v. Westby, 99 Or App 371, 781 P2d 1270 (1989)
Special condition of probation may be imposed only for purposes specified by statute and not as additional punishment. State v. Donovan, 307 Or 461, 770 P2d 581 (1989); State v. Qualey, 138 Or App 74, 906 P2d 835 (1995)
Trial court has authority to modify conditions of probation and extend it without finding violation of probation. State v. Stanford, 100 Or App 303, 786 P2d 225 (1990)
Although court may prohibit defendant from possessing and owning firearms as condition of probation, court may not confiscate and destroy defendant’s firearms under this section. State v. Wilson 105 Or App 20, 803 P2d 769 (1990)
Condition of probation requiring confinement for conviction of misdemeanor was impermissible. State v. Wold, 105 Or App 158, 803 P2d 782 (1991); State v. Armstrong, 106 Or App 486, 808 P2d 109 (1991); State v. Taylor, 115 Or App 76, 836 P2d 755 (1992)
In exercising discretion under this section, court may not exceed sentence defined by other statute. State v. Stockton, 105 Or App 162, 803 P2d 1227 (1991)
Department of Corrections, acting through probation officers, is responsible for notifying sentencing court of probation violations. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)
Discretionary immunity under ORS 30.265 does not protect probation officer from liability for exercising reporting duties. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)
Court has no authority to impose jail sentence as condition of probation for misdemeanor offense committed after November 1, 1989. State v. Van Gorder, 108 Or App 333, 813 P2d 1136 (1991)
ORS 813.020 controls misdemeanor DUII convictions, and this section has no application to those convictions. State v. Oary, 109 Or App 580, 820 P2d 857 (1991), as modified by 112 Or App 296, 829 P2d 90 (1992); State v. Taylor, 115 Or App 76, 836 P2d 755 (1992)
Court erred in authorizing searches by probation officer without including requirement they be based on reasonable grounds to believe search would disclose evidence of probation violation. State v. Tejeda, 111 Or App 201, 826 P2d 25 (1992)
Limits placed on defendant’s contact with his wife secured public’s safety and interfered with his marital rights only to permissible degree. State v. Gilkey, 111 Or App 303, 826 P2d 69 (1992)
Evidence that defendant’s codefendant and boyfriend was involved in methamphetamine manufacturing and trafficking and that he had recently been shot in narcotics related incident was sufficient to sustain trial court’s imposition as condition of probation that defendant refrain from associating with him. State v. Quackenbush, 113 Or App 263, 832 P2d 1236 (1992)
Trial court must make fact record that condition of probation is appropriate. State v. Quackenbush, 113 Or App 263, 832 P2d 1236 (1992)
Where, as condition of probation, defendant was required to take Antabuse but order did not make condition subject to medical approval as required by this section and orders concerning urine, blood and breath tests and polygraph tests did not list terms and limitations required by this section, remand for resentencing was required. State v. Robertson, 113 Or App 467, 833 P2d 326 (1992)
Board of Parole erred in imposing parole condition that prohibited petitioner from entering or residing in named county because restriction was broader than necessary to accomplish purpose of protecting victim or other potential victims. Owens v. Board of Parole, 113 Or App 507, 834 P2d 547 (1992)
Trial court has discretion to fashion its own condition of probation if condition serves to reform offender or to protect public. State v. Caffee, 116 Or App 23, 840 P2d 720 (1992), Sup Ct review denied
Retroactive application of amended version of this section violates constitutional proscription against ex post facto laws, because amended version of this section exposes defendant to greater punishment than defendant faced when defendant committed offense. State v. Harding, 116 Or App 29, 840 P2d 113 (1992), Sup Ct review denied
This statute reflects legislative policy that trial courts should have maximum flexibility to determine conditions of probation and modify those conditions “at any time.” State v. Peterson, 116 Or App 418, 841 P2d 666 (1992)
Trial court has continuing jurisdiction to administer probation, which, despite filing of appeal, includes modifying conditions of probation. State v. Peterson, 116 Or App 418, 841 P2d 666 (1992)
Trial court could not require defendant to submit to personal search by police as condition of probation where statute specifically limits such searches to probation officers. State v. Smith, 117 Or App 473, 844 P2d 276 (1992)
Court erred in imposing separate probation conditions for merged offenses. State v. Brown, 122 Or App 632, 857 P2d 915 (1993), Sup Ct review denied
Prohibiting probationer in child endangerment case from residing with spouse if spouse used illegal drugs did not impermissibly interfere with marriage right. State v. McSweeney, 123 Or App 460, 860 P2d 305 (1993)
Provision identifying personnel authorized to perform searches related to parole violations did not restrict searches by other personnel for other purposes. State v. Campbell, 128 Or App 592, 876 P2d 799 (1994)
Probationer’s mere acquiescence to search by probation officer can constitute consent where evidence of undue coercion is absent. State v. Davis, 133 Or App 467, 891 P2d 1373 (1995), Sup Ct review denied
“Reasonable grounds” for probation officer to search requires more than reasonable suspicion but less than probable cause. State v. Gulley, 324 Or 57, 921 P2d 396 (1996)
Probation officer has “reasonable grounds” to search if possessing information that causes officer to believe probationer is violating condition of probation and that search of probationer’s person, residence, vehicle or property would disclose evidence of violation. State v. Gulley, 324 Or 57, 921 P2d 396 (1996)
Court may impose requirement that defendant pay cost of incarceration as general condition of probation. State v. Johnston, 176 Or App 418, 31 P3d 1101 (2001)
Sanctions available upon failure to abide by probation conditions are alternatives that are not mutually exclusive. State v. Melton, 189 Or App 411, 76 P3d 156 (2003)
State may separately adjudicate discrete probation violations. State v. Melton, 189 Or App 411, 76 P3d 156 (2003)
Where probation conditions are reasonably related to offense, court is not required to make particularized factual findings before imposing sex offender conditions on person convicted of nonsex offense. State v. McCollister, 210 Or App 1, 150 P3d 7 (2006)
Failure to make restitution payments, alone, is not sufficient to establish that purpose of probation are not being served. State v. Kacin, 237 Or App 66, 240 P3d 1099 (2010)
Trial court could not prohibit defendant from drinking when defendant was not on probation for DUII, as special conditions on probation imposed by trial court must reasonably relate to crime of conviction or defendant’s needs. State v. Borders, 293 Or App 791, 429 P3d 1067 (2018)
Requirement that probationer abide by direction of supervising officer relates exclusively to directions associated with reporting requirements of probation. State v. Hardges, 294 Or App 445, 432 P3d 268 (2018)
Violation of court order that is directly related to general or special probation condition but is not itself probation condition may not serve as basis for probation violation. State v. Arrellano Ramirez, 298 Or App 596, 448 P3d 714 (2019)
Probationers not prohibited from possessing or using marijuana, because term “controlled substances” does not include marijuana. State v. Heaston, 308 Or App 694, 482 P3d 167 (2021)
Law Review Citations
10 WLJ 196 (1974); 55 OLR 101 (1976); 24 WLR 1159 (1988)
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