135.070
Informing defendant as to charge, right to counsel, use of statement and
preliminary hearing.
When the defendant against whom an information has been filed in a preliminary
proceeding appears before a magistrate on a charge of having committed a crime
punishable as a felony, before any further proceedings are had the magistrate
shall read to the defendant the information and shall inform the defendant:
(1) Of the
defendant’s right to the aid of counsel, that the defendant is not required to
make a statement and that any statement made by the defendant may be used
against the defendant.
(2) That the
defendant is entitled to a preliminary hearing and of the nature of a
preliminary hearing. If a preliminary hearing is requested, it shall be held as
soon as practicable but in any event within five judicial days if the defendant
is in custody or within 30 days if the defendant is not in custody. The time
may be extended for good cause shown.
(3) That if the
defendant is on parole, evidence received and the order of the court at the
preliminary hearing may be used by the State Board of Parole and Post-Prison
Supervision to establish that probable cause exists to believe that a violation
of a condition of parole has occurred; and further, that should the defendant
waive the defendant’s right to a preliminary hearing, such waiver shall also
constitute a waiver of a hearing by the board to determine whether there is
probable cause to believe that a violation of one or more of the conditions of
parole has occurred. [Formerly 133.610; 1981 c.644 §2; 1997 c.823 §1; 2013 c.74
§1]
Notes of Decisions
Cited in
20
cases (
2 in the last 5 years), 1979–2022 · leading case:
State v. Smith, 725 P.2d 894 (Or. 1986).
State v. Smith, 725 P.2d 894 (Or. 1986).
· cites it 30× “115: "If the defendant waives the right of the defendant to make a statement, the magistrate shall make a memorandum thereof in the proceedings; but the fact of the waiver cannot be used against the defendant on the trial.”
State v. Clark, 630 P.2d 810 (Or. 1981).
· cites it 4× “[3] These include the right to the aid of counsel, ORS 135.070, 135.075; the right to subpoena witnesses, ORS 135.”
State v. Wright, 843 P.2d 436 (Or. 1992).
· cites it 8× “" [6] The problem with that argument is that ORS 135.070 to 135.225 reveal that the "preliminary hearing" to which ORS 135.”
State v. Freeland, 667 P.2d 509 (Or. 1983).
· cites it 2× “100; and ultimately, the right to the judgment of a trained judicial officer whether probable cause for the prosecution has been shown, based on evidence which the person to be charged could challenge or meet by opposing evidence or by his own statement, if he chose to do so.”
State v. Gray, 515 P.3d 348 (Or. 2022).
· cites it 2× ““(d) Notwithstanding ORS 135.070 and paragraph (c) of this subsection, in order to accommodate a schedul- ing conflict, upon the request of the defendant the time limit for holding a preliminary hearing described in ORS 135.”
State v. Meyrick, 831 P.2d 666 (Or. 1992).
“” ORS 135.070 requires a preliminary hearing magistrate to inform the defendant of the right “to the aid of counsel.”
State v. Jackson, 655 P.2d 592 (Or. Ct. App. 1982).
· cites it 2× “The court conducted defendant's initial appearance in compliance with ORS 135.070 and did not delay that hearing to gain some advantage over defendant.”
State v. Thompson-Seed, 986 P.2d 732 (Or. Ct. App. 1999).
“435, for another example, provides that evidence obtained directly or indirectly as a result of a magistrate failing to provide the advice *489 of rights required in ORS 135.070 is inadmissible. The state’s reading of ORS 136.”
State v. Wright, 829 P.2d 93 (Or. Ct. App. 1992).
· cites it 2× “ORS 135.070 et seq. Hearings on motions to suppress under ORS chapter 135 are omnibus hearings authorized by ORS 135.”
State v. Holliday, 824 P.2d 1148 (Or. Ct. App. 1992).
“The timing of the series of court proceedings is consistent with the processing of a single offense that occurred in January, 1976, for which defendant was arraigned in February and then indicted within the five-day period before a preliminary hearing would have been required…”
State v. Vasquez-Hernandez, 977 P.2d 400 (Or. Ct. App. 1999).
· cites it 2× “Also because of this, the Defendant was not given a right to provide this statement to the Grand Jury as required by ORS 135.105. "3. Approximately two and a half days after the arrest, the police officers came to his room and took a statement.”
State v. Freeland, 647 P.2d 966 (Or. Ct. App. 1982).
· cites it 2× “The complexty of the case is also relevant to the prosecuting attorney’s bility to prepare the case for a preliminary hearing, ecause of local judicial constraints (apparently based on rmer ORS 135.070), a preliminary hearing must be held ithin five days or as soon as possible…”
— Or. Rev. Stat. § 135.070(1) — 1 case
State v. Smith, 725 P.2d 894 (Or. 1986).
“115: "If the defendant waives the right of the defendant to make a statement, the magistrate shall make a memorandum thereof in the proceedings; but the fact of the waiver cannot be used against the defendant on the trial.”
— Or. Rev. Stat. § 135.070(2) — 1 case
State v. Gray, 515 P.3d 348 (Or. 2022).
““(d) Notwithstanding ORS 135.070 and paragraph (c) of this subsection, in order to accommodate a schedul- ing conflict, upon the request of the defendant the time limit for holding a preliminary hearing described in ORS 135.”
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treatment. Dots show Syfertize treatment of the citing case itself.