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Oregon Revised Statutes

Or. Rev. Stat. § 161.360 (2026)

Qualifying mental disorder affecting fitness to proceed

✓ current as of May 2026
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      161.360 Qualifying mental disorder affecting fitness to proceed. (1) If, before or during the trial in any criminal case, the court has reason to doubt the defendant’s fitness to proceed by reason of incapacity, the court may order an examination in the manner provided in ORS 161.365.

      (2) A defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable:

      (a) To understand the nature of the proceedings against the defendant;

      (b) To assist and cooperate with the counsel of the defendant; or

      (c) To participate in the defense of the defendant. [1971 c.743 §50; 1993 c.238 §1; 2017 c.634 §14; 2021 c.97 §16]

Notes of Decisions
Cited in 30 cases (7 in the last 5 years), 1980–2026 · leading case: State v. Simon, 433 P.3d 385 (Or. Ct. App. 2018).
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State v. Simon, 433 P.3d 385 (Or. Ct. App. 2018). · cites it 10× “The trial court approached the issue the same way-with the understanding that the statute and federal law were sufficiently parallel that it was not necessary to distinguish between them in making the competency determination.”
State v. Cunningham, 995 P.2d 561 (Or. Ct. App. 2000). · cites it 27× “Thus, we understand defendant to argue that the content of his motions for continuance preserved for purposes of appeal his claim of error under ORS 161.360. The state counters by arguing that defendant's assignment of error is not preserved and, even if it is, that defendant…”
State v. Peterson, 689 P.2d 985 (Or. Ct. App. 1984). · cites it 8× “" Neither party challenges the court's finding that defendant was "able to aid and assist in his own defense and to understand the nature of the proceedings against him," see ORS 161.360, [1] and both parties accept it as a finding that defendant was competent to stand trial.”
State v. Smith, 872 P.2d 966 (Or. 1994). · cites it 8× “That defendant does not meet the criteria in ORS 161.360 excluding fitness to proceed; "4.”
State v. Cunningham, 105 P.3d 929 (Or. Ct. App. 2005). · cites it 6× “See generally ORS 161.360 (describing mental disease or defect that may render criminal defendant incapacitated from standing trial).”
State v. Ward, 437 P.3d 298 (Or. Ct. App. 2019). · cites it 5× “Under ORS 161.360(2), "[a] defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable: *643 "(a) To understand the nature of the proceedings against the defendant; or "(b) To assist and cooperate with the counsel of the…”
State v. Lopes, 322 P.3d 512 (Or. 2014). · cites it 4× “The Oregon legislature enacted ORS 161.360 to 161.370, the statutes that govern a defendant’s incompetence to stand trial, in 1971, before Sell was decided.”
Oregon State Hosp. v. Butts, 359 P.3d 1187 (Or. 2015). · cites it 4× “After concluding that “trial court authority to issue Sell orders must be found in Oregon law,” 355 Or at 78 , the court observed that the enactment of ORS 161.360 to 161.370 predated Sell: “Unlike many states, Oregon has not enacted statutes that explicitly grant trial courts…”
Jenkins v. Cain, 487 P.3d 433 (Or. Ct. App. 2021). · cites it 2× “ORS 161.360 provides: “(2) A defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable: “(a) To understand the nature of the proceedings against the defendant; or “(b) To assist and cooperate with the counsel of the defendant;…”
State v. Ryan, 473 P.3d 90 (Or. Ct. App. 2020). · cites it 3× “As we explain, we conclude that those measures do not suffice to determine proportionality and, further, that the serious intellectual disability that has been determined requires evaluation of defendant’s relative culpability as part of the gravity of the offense in determining…”
State v. Meiser, 551 P.3d 349 (Or. 2024). “360 (provid- ing that a defendant may be found incapacitated if unable to understand the nature of the proceedings, to assist and cooperate with defense counsel, or to participate in the defense). Defendant spent nearly four years confined at the Oregon State Hospital before the…”
State v. Gilmore, 792 P.2d 1242 (Or. Ct. App. 1990). · cites it 4× “ORS 161.360. 2 The trial court clerk apparently presented the motion to the court with a note attached which read, “What shall I do w/ trial?” The court responded by writing on the note, “Motion Denied/ filed too late/JJT.”
Show all 30 citing cases →
— Or. Rev. Stat. § 161.360(1) — 7 cases
State v. Cunningham, 995 P.2d 561 (Or. Ct. App. 2000). “Thus, we understand defendant to argue that the content of his motions for continuance preserved for purposes of appeal his claim of error under ORS 161.360. The state counters by arguing that defendant's assignment of error is not preserved and, even if it is, that defendant…”
Snyder v. Amsberry, 474 P.3d 417 (Or. Ct. App. 2020).
Jenkins v. Cain, 487 P.3d 433 (Or. Ct. App. 2021). “ORS 161.360 provides: “(2) A defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable: “(a) To understand the nature of the proceedings against the defendant; or “(b) To assist and cooperate with the counsel of the defendant;…”
State v. Ryan, 473 P.3d 90 (Or. Ct. App. 2020). “As we explain, we conclude that those measures do not suffice to determine proportionality and, further, that the serious intellectual disability that has been determined requires evaluation of defendant’s relative culpability as part of the gravity of the offense in determining…”
State v. Lopes, 322 P.3d 512 (Or. 2014). “The Oregon legislature enacted ORS 161.360 to 161.370, the statutes that govern a defendant’s incompetence to stand trial, in 1971, before Sell was decided.”
— Or. Rev. Stat. § 161.360(2) — 9 cases
State v. Simon, 433 P.3d 385 (Or. Ct. App. 2018). “The trial court approached the issue the same way-with the understanding that the statute and federal law were sufficiently parallel that it was not necessary to distinguish between them in making the competency determination.”
State v. Ward, 437 P.3d 298 (Or. Ct. App. 2019). “Under ORS 161.360(2), "[a] defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable: *643 "(a) To understand the nature of the proceedings against the defendant; or "(b) To assist and cooperate with the counsel of the…”
State v. Smith, 872 P.2d 966 (Or. 1994). “That defendant does not meet the criteria in ORS 161.360 excluding fitness to proceed; "4.”
State v. Ryan, 473 P.3d 90 (Or. Ct. App. 2020). “As we explain, we conclude that those measures do not suffice to determine proportionality and, further, that the serious intellectual disability that has been determined requires evaluation of defendant’s relative culpability as part of the gravity of the offense in determining…”
State v. Heriman, 546 P.3d 305 (Or. Ct. App. 2024).
— Or. Rev. Stat. § 161.360(2)(a) — 2 cases
State v. Simon, 433 P.3d 385 (Or. Ct. App. 2018). “The trial court approached the issue the same way-with the understanding that the statute and federal law were sufficiently parallel that it was not necessary to distinguish between them in making the competency determination.”
Tharp v. Washburn, 334 Or. App. 810 (Or. Ct. App. 2024).
— Or. Rev. Stat. § 161.360(2)(b) — 1 case
State v. Simon, 433 P.3d 385 (Or. Ct. App. 2018). “The trial court approached the issue the same way-with the understanding that the statute and federal law were sufficiently parallel that it was not necessary to distinguish between them in making the competency determination.”
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