164.035
Defenses. (1) In a
prosecution for theft it is a defense that the defendant acted under an honest
claim of right, in that:
(a) The defendant
was unaware that the property was that of another; or
(b) The defendant
reasonably believed that the defendant was entitled to the property involved or
had a right to acquire or dispose of it as the defendant did.
(2) In a
prosecution for extortion committed by instilling in the victim a fear that the
victim or another person would be charged with a crime, it is a defense that
the defendant reasonably believed the threatened charge to be true and that the
sole purpose of the defendant was to compel or induce the victim to take
reasonable action to make good the wrong which was the subject of the
threatened charge.
(3) In a
prosecution for theft by receiving, it is a defense that the defendant
received, retained, concealed or disposed of the property with the intent of
restoring it to the owner.
(4) It is a
defense that the property involved was that of the defendant’s spouse, unless
the parties were not living together as spouses in a marriage and were living
in separate abodes at the time of the alleged theft.
(5) In a
prosecution for theft, it is a defense that:
(a) The defendant
is an animal holding agency, as defined in ORS 609.425, or an employee,
volunteer or other agent acting on behalf of an animal holding agency; and
(b) The defendant
complied with the provisions of ORS 609.425. [1971 c.743 §132; 2001 c.104 §53;
2015 c.629 §31; 2016 c.47 §9; 2025 c.159 §1]
164.040 [Amended by 1959 c.236 §4;
repealed by 1971 c.743 §432]
Notes of Decisions
Cited in
23
cases (
2 in the last 5 years), 1974–2025 · leading case:
State v. Pusztai, 348 P.3d 241 (Or. Ct. App. 2015).
State v. Pusztai, 348 P.3d 241 (Or. Ct. App. 2015).
· cites it 8× “ORS 164.035 sets forth the “honest claim of right” defense and provides, in pertinent part: “(1) In a prosecution for theft it is a defense that the defendant acted under an honest claim of right, in that: “(a) The defendant was unaware that the property was that of another; or…”
State v. Ramsey, 56 P.3d 484 (Or. Ct. App. 2002).
· cites it 4× “ORS 164.035 provides, in part: *472 “(1) In a prosecution for theft it is a defense that the defendant acted under an honest claim of right, in that: if: ‡ % “(b) [t]he defendant reasonably believed that the defendant was entitled to the property involved!.”
State v. Lasky, 314 P.3d 304 (Or. Ct. App. 2013).
· cites it 4× “Defendant contends that, even if the statutory claim of right defense, ORS 164.035, 5 is limited to theft charges and, thus, is inapplicable to UUV charges, the state was, nevertheless, required to prove every element of the UUV charge, including that defendant knew that he did…”
State v. Kaino-Smith, 371 P.3d 1256 (Or. Ct. App. 2016).
· cites it 2× “” ORS 164.035(1). In addition, “[i]t is a defense that the property involved was that of the defendant’s spouse.”
State v. Vasquez-Rubio, 917 P.2d 494 (Or. 1996).
“) See also ORS 164.035 (“[i]n a prosecution for theft it is a defense that the defendant acted under a claim of right”); ORS 164.”
State v. Byam, 393 P.3d 252 (Or. Ct. App. 2017).
“015, and concluding that UUV is not a “prosecution for theft” for purposes of availability of an “honest claim of right” defense under ORS 164.035(1)). As noted, it is undisputed that Feist refused defendant’s initial demand to give him the car keys—and did so only after…”
State v. HREN, 241 P.3d 1168 (Or. Ct. App. 2010).
“ORS 164.035(1)(b). Here, the statement by the store clerk was not offered for its truth— that is, that defendant was actually entitled to take the *608 bottle — but, rather, was offered to show that defendant reasonably believed that she was entitled to take it.”
State v. Washington, 543 P.2d 1058 (Or. 1975).
“ORS 164.035 specifically provides for certain defenses to the crime of theft.”
State v. McCoy, 521 P.2d 1074 (Or. Ct. App. 1974).
· cites it 2× “035(1) which describes what is a "defense" and what is not a "defense" to bribery, ORS 164.035 which labels each defense to theft as a "defense," ORS 163.”
State v. Vasquez-Rubio, 897 P.2d 324 (Or. Ct. App. 1995).
“690; ORS 164.035; ORS 164.828; ORS 167.085; ORS 167.”
— Or. Rev. Stat. § 164.035(1) — 8 cases
State v. Pusztai, 348 P.3d 241 (Or. Ct. App. 2015).
“ORS 164.035 sets forth the “honest claim of right” defense and provides, in pertinent part: “(1) In a prosecution for theft it is a defense that the defendant acted under an honest claim of right, in that: “(a) The defendant was unaware that the property was that of another; or…”
State v. Kaino-Smith, 371 P.3d 1256 (Or. Ct. App. 2016).
“” ORS 164.035(1). In addition, “[i]t is a defense that the property involved was that of the defendant’s spouse.”
State v. Byam, 393 P.3d 252 (Or. Ct. App. 2017).
“015, and concluding that UUV is not a “prosecution for theft” for purposes of availability of an “honest claim of right” defense under ORS 164.035(1)). As noted, it is undisputed that Feist refused defendant’s initial demand to give him the car keys—and did so only after…”
State v. Ramsey, 56 P.3d 484 (Or. Ct. App. 2002).
“ORS 164.035 provides, in part: *472 “(1) In a prosecution for theft it is a defense that the defendant acted under an honest claim of right, in that: if: ‡ % “(b) [t]he defendant reasonably believed that the defendant was entitled to the property involved!.”
— Or. Rev. Stat. § 164.035(1)(b) — 1 case
State v. HREN, 241 P.3d 1168 (Or. Ct. App. 2010).
“ORS 164.035(1)(b). Here, the statement by the store clerk was not offered for its truth— that is, that defendant was actually entitled to take the *608 bottle — but, rather, was offered to show that defendant reasonably believed that she was entitled to take it.”
— Or. Rev. Stat. § 164.035(3) — 1 case
— Or. Rev. Stat. § 164.035(4) — 2 cases
State v. Kaino-Smith, 371 P.3d 1256 (Or. Ct. App. 2016).
“” ORS 164.035(1). In addition, “[i]t is a defense that the property involved was that of the defendant’s spouse.”
— Or. Rev. Stat. § 164.035(l)(b) — 1 case
State v. Lasky, 314 P.3d 304 (Or. Ct. App. 2013).
“Defendant contends that, even if the statutory claim of right defense, ORS 164.035, 5 is limited to theft charges and, thus, is inapplicable to UUV charges, the state was, nevertheless, required to prove every element of the UUV charge, including that defendant knew that he did…”
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