135.245
Release decision.
(1) Except as provided in ORS 135.240, a person in custody has the right to be
taken before a magistrate without undue delay.
(2)(a) A
magistrate shall make a release decision at the time of arraignment or other
first appearance after the defendant is taken into custody unless good cause to
postpone the release decision is shown, in which case a release hearing shall
be held pursuant to subsection (7) of this section.
(b) The district
attorney shall make reasonable efforts to inform the victim of the location,
date and time of the arraignment or other first appearance and to determine if
the victim is present at the arraignment or appearance. If the victim is
present, the victim has the right to reasonably express any views relevant to
the issues at the appearance.
(c) As used in
this subsection, “good cause” includes circumstances in which:
(A) The district
attorney plans to seek preventative detention; or
(B) There is a
reasonable belief that additional evidence exists and would be relevant to the
release decision, but is not currently available.
(3) If the
magistrate, having given priority to the primary release criteria, decides to
release a defendant or to set security, the magistrate shall impose the least
onerous condition reasonably likely to ensure the safety of the public and the
victim and the person’s later appearance and, if the person is charged with an
offense involving domestic violence, ensure that the person does not engage in
domestic violence while on release. A person in custody, otherwise having a
right to release, shall be released upon the personal recognizance unless:
(a) Release
criteria show to the satisfaction of the magistrate that such a release is
unwarranted; or
(b) Subsection
(6) of this section applies to the person.
(4) Upon a
finding that release of the person on personal recognizance is unwarranted, the
magistrate shall proceed to consider conditional release under ORS 135.260.
Only after determining that conditional release is unwarranted, or if otherwise
required by ORS 135.230 to 135.290, may the magistrate proceed to consider
security release under ORS 135.265.
(5) At the
release hearing:
(a) The district
attorney has a right to be heard in relation to issues relevant to the release
decision; and
(b) The victim
has the right:
(A) Upon request
made within the time period prescribed in the notice required by ORS 147.417,
to be notified by the district attorney of the release hearing;
(B) To appear
personally at the hearing; and
(C) If present,
to reasonably express any views relevant to the issues before the magistrate.
(6) If a person
refuses to provide a true name under the circumstances described in ORS 135.060
and 135.065, the magistrate may not release the person on personal recognizance
or on conditional release. The magistrate may release the person on security release
under ORS 135.265 except that the magistrate shall require the person to
deposit the full security amount set by the magistrate.
(7)(a) After the
postponement of a release decision under subsection (2) of this section, upon
the request of either party, or upon the magistrate’s own motion, the
magistrate shall make a release decision or reconsider the release decision, as
applicable, at a release hearing. The release hearing must be held within 48
hours of arraignment or other first appearance after the defendant is taken into
custody unless both parties agree, or the court finds good cause, to hold the
hearing at a later time. Under no circumstances may the release hearing be held
more than five days after arraignment or other first appearance after the
defendant is taken into custody unless the defendant consents to holding the
hearing at a later time.
(b) A hearing
held under this subsection may not be used for purposes of discovery.
(8) This section
shall be liberally construed to carry out the purpose of relying upon criminal
sanctions instead of financial loss to ensure the appearance of the defendant. [1973
c.836 §149; 1993 c.731 §5; 1997 c.313 §20; 2003 c.645 §6; 2009 c.178 §27; 2021
c.643 §5]
Notes of Decisions
Sexson v. Merten, 631 P.2d 1367 (Or. 1981).
· cites it 4× “250(1) may appear to conflict with the purpose of the release statutes, as stated by ORS 135.245(3), to the effect that “the magistrate shall impose the least onerous condition reasonably likely to assure the person’s later appearance.”
Easton v. Hurita, 625 P.2d 1290 (Or. 1981).
· cites it 3× “A person in custody, otherwise having a right to release, shall be released upon his personal recognizance unless release criteria show to the satisfaction of the magistrate that such a release is unwarranted.”
State v. Douglas, 800 P.2d 288 (Or. 1990).
· cites it 2× “175; a security release hearing cannot, ORS 135.245. Neither of those differences, however, changes the fundamental point: In either circumstance, the defendant has both an opportunity to cross-examine the state's witnesses and a motive that is similar to the motive at trial.”
State v. Wilde, 862 P.2d 105 (Or. Ct. App. 1993).
· cites it 5× “” 1 The state argues that it does not, because conditional release is defined as “a nonsecurity release which imposes regulations on the activities and associations of the defendant.”
Mercy Med. Ctr., Inc. v. Douglas Cnty., 559 P.2d 1286 (Or. Ct. App. 1977).
· cites it 2× “230(6) as required by ORS 135.245; failure to hear the district attorney on the question of general release as required by ORS 135.”
State v. Esmond, 866 P.2d 494 (Or. Ct. App. 1994).
· cites it 3× “A “correctional facility” is defined as “anyplace used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order.”
Knutson v. Cupp, 601 P.2d 129 (Or. 1979).
· cites it 2× “240(3), (2) conditional release, ORS 135.245(4) and 135.260, or (3) security release, ORS 135.”
State v. McKenzie, 771 P.2d 264 (Or. 1989).
“135(4) provides: “ ‘Escape’ means the unlawful departure, including failure to return to custody after temporary leave granted for a specific purpose or limited period, of a person from custody or a correctional facility but does not include failure to comply with provisions of…”
Cooper v. Burks, 702 P.2d 1107 (Or. 1985).
· cites it 4× “” ORS 135.245(3). By legislative mandate, the ascending degrees of onerous conditions begin with release upon personal recognizance, move to conditional release, and, finally, end with a security release.”
Application of Liberman, 650 P.2d 83 (Or. 1982).
· cites it 12× “on the following day, July 28, 1982, unless in the interim another release decision had been made which was "reasonably designed to assure the plaintiff's appearance within the criteria of ORS 135.245, 135.250, 135.260, and 135.265.”
Fay v. City of Portland, 804 P.2d 1155 (Or. 1991).
· cites it 2× “215 provides that: "[t]he commitment [of the defendant] shall be directed to the sheriff of the county in which the [committing] magistrate is sitting. Such sheriff shall receive and detain the defendant, as thereby commanded, in a jail located in the county of the sheriff or,…”
— Or. Rev. Stat. § 135.245(1) — 3 cases
State v. Wilde, 862 P.2d 105 (Or. Ct. App. 1993).
“” 1 The state argues that it does not, because conditional release is defined as “a nonsecurity release which imposes regulations on the activities and associations of the defendant.”
— Or. Rev. Stat. § 135.245(2) — 2 cases
Fay v. City of Portland, 804 P.2d 1155 (Or. 1991).
“215 provides that: "[t]he commitment [of the defendant] shall be directed to the sheriff of the county in which the [committing] magistrate is sitting. Such sheriff shall receive and detain the defendant, as thereby commanded, in a jail located in the county of the sheriff or,…”
Cooper v. Burks, 702 P.2d 1107 (Or. 1985).
“” ORS 135.245(3). By legislative mandate, the ascending degrees of onerous conditions begin with release upon personal recognizance, move to conditional release, and, finally, end with a security release.”
— Or. Rev. Stat. § 135.245(2)(a) — 1 case
— Or. Rev. Stat. § 135.245(3) — 11 cases
Easton v. Hurita, 625 P.2d 1290 (Or. 1981).
“A person in custody, otherwise having a right to release, shall be released upon his personal recognizance unless release criteria show to the satisfaction of the magistrate that such a release is unwarranted.”
Sexson v. Merten, 631 P.2d 1367 (Or. 1981).
“250(1) may appear to conflict with the purpose of the release statutes, as stated by ORS 135.245(3), to the effect that “the magistrate shall impose the least onerous condition reasonably likely to assure the person’s later appearance.”
— Or. Rev. Stat. § 135.245(4) — 1 case
Knutson v. Cupp, 601 P.2d 129 (Or. 1979).
“240(3), (2) conditional release, ORS 135.245(4) and 135.260, or (3) security release, ORS 135.”
— Or. Rev. Stat. § 135.245(5) — 1 case
Mercy Med. Ctr., Inc. v. Douglas Cnty., 559 P.2d 1286 (Or. Ct. App. 1977).
“230(6) as required by ORS 135.245; failure to hear the district attorney on the question of general release as required by ORS 135.”
— Or. Rev. Stat. § 135.245(6) — 3 cases
Sexson v. Merten, 631 P.2d 1367 (Or. 1981).
“250(1) may appear to conflict with the purpose of the release statutes, as stated by ORS 135.245(3), to the effect that “the magistrate shall impose the least onerous condition reasonably likely to assure the person’s later appearance.”
Cooper v. Burks, 702 P.2d 1107 (Or. 1985).
“” ORS 135.245(3). By legislative mandate, the ascending degrees of onerous conditions begin with release upon personal recognizance, move to conditional release, and, finally, end with a security release.”
— Or. Rev. Stat. § 135.245(7)(a) — 1 case
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