(1).

133.709 (1).

����� (b) The Attorney General shall consult with the Department of State Police and custodians before adopting rules under this subsection. [2009 c.489 �1; 2011 c.275 �1]

����� Note: See note under 133.705.

����� 133.709 Notice of intent to dispose; motion to preserve. (1)(a) A custodian may seek to dispose of biological evidence before the period of time specified in ORS 133.707 (2), by providing written notice, in the form developed under ORS 133.707 (7), to the district attorney having jurisdiction over the prosecution of the covered offense. Upon receipt of the notice, the district attorney shall determine whether to object to the disposal of any of the biological evidence identified in the custodian�s notice.

����� (b) If the district attorney objects to the disposal of any of the biological evidence identified in the custodian�s notice, the district attorney shall provide written notice of the objection to the custodian that identifies the biological evidence that the district attorney determines must be preserved. The custodian shall preserve any biological evidence identified by the district attorney in the notice until the period of time specified in ORS 133.707 (2) has elapsed.

����� (c) If the district attorney does not object to the disposal of all or a portion of the biological evidence identified in the custodian�s notice, the district attorney shall provide written notice of the intent to dispose of biological evidence, identifying the biological evidence that the district attorney has determined may be disposed of, to:

����� (A) The defendant;

����� (B) The most recent attorney of record for the defendant; and

����� (C) The Department of Justice.

����� (2) If evidence that is subject to ORS 133.707 is the property of the victim, the victim may request that the district attorney determine whether the property may be returned to the victim. The request must be in writing and must identify the property that the victim seeks to have returned. If the district attorney:

����� (a) Objects to the return of any of the property to the victim, the district attorney shall notify the victim of that determination.

����� (b) Does not object to the return of all or a portion of the property, the district attorney shall provide written notice of the intent to dispose of biological evidence, identifying the property the district attorney has determined may be returned, to:

����� (A) The victim;

����� (B) The defendant;

����� (C) The most recent attorney of record for the defendant; and

����� (D) The Department of Justice.

����� (3)(a) Not later than 120 days after the date the district attorney provides written notice to the defendant under subsection (1)(c) or (2)(b) of this section, the defendant may file a motion to preserve biological evidence in the convicting court. The defendant shall provide a copy of the motion to the district attorney and the custodian. If the motion is timely filed, the court shall enter an order as provided in ORS 133.715.

����� (b) If the defendant fails to file a motion to preserve biological evidence before the expiration of the 120-day period specified in paragraph (a) of this subsection, the district attorney shall file with the court a copy of the notice of intent to dispose of biological evidence sent to the defendant under subsection (1)(c) or (2)(b) of this section. Following the filing of the notice, the court shall, without hearing, enter an order authorizing the disposal of the biological evidence described in the notice. The court shall provide a copy of the order to the custodian, the district attorney and each person or entity described in subsection (1)(c) or (2)(b) of this section, as applicable.

����� (c) The 120-day period specified in this subsection begins on the date the notice is mailed. [2011 c.275 �3]

����� Note: See note under 133.705.

����� 133.710 [Renumbered 135.115]

����� 133.713 Inventory; right to review. (1) Upon written request by the defendant, the district attorney shall provide the defendant with an inventory of biological evidence that has been preserved under ORS 133.705 to 133.717 and is related to the covered offense for which the defendant was convicted.

����� (2) A defendant or, if the defendant is represented by an attorney, the defendant�s attorney has the right to reasonably review biological evidence that is the subject of a written notice of intent to dispose of biological evidence under ORS 133.709 for the purpose of preparing a motion to preserve biological evidence. [2011 c.275 �5]

����� Note: See note under 133.705.

����� 133.715 Order; appeal. (1) Upon receipt of a timely motion to preserve biological evidence under ORS 133.709 (3), the court shall:

����� (a) Conduct a hearing to resolve the motion; or

����� (b) Enter an order directing the custodian to preserve the biological evidence.

����� (2)(a) In determining whether to order the preservation of biological evidence, the court shall consider, in addition to other factors the court considers appropriate, the following factors:

����� (A) Whether the identification of the offender was a disputed issue;

����� (B) Whether other biological evidence in the case contains DNA in an amount that is sufficient to develop a DNA profile and will not be disposed of;

����� (C) If the biological evidence has not previously been tested, whether it is possible to perform testing on the biological evidence;

����� (D) Whether the defendant has served all of the sentence imposed; and

����� (E) Whether the defendant has exhausted the defendant�s appellate or post-conviction rights.

����� (b) If the defendant has not exhausted the defendant�s appellate and post-conviction rights, there is a presumption that the biological evidence should be preserved.

����� (c) In making the determination described in this subsection, except as otherwise provided in paragraph (b) of this subsection, the court may assign the weight the court deems appropriate to the factors described in paragraph (a) of this subsection and to any other factor the court determines is appropriate.

����� (d) For purposes of subparagraph (2)(a)(A) of this section, the court need not presume that identification of the offender is not a disputed issue solely because the defendant has pleaded guilty or no contest to the crime, has confessed to the crime or has made an admission.

����� (3) If the court enters an order authorizing the disposal of biological evidence, the order may not authorize disposal to occur sooner than 45 days after the date the order is entered. The court shall provide a copy of the order to the custodian, the district attorney and the defendant.

����� (4) Either the state or the defendant may appeal from an order entered under this section in the manner provided in ORS chapter 19 for appeals from judgments. Notwithstanding ORS 19.330, the filing of a notice of appeal automatically stays an order entered under this section. [2011 c.275 �4]

����� Note: See note under 133.705.

����� 133.717 Provision of notice or order to defendant. When a provision of ORS 133.705 to 133.717 requires a district attorney or the court to provide written notice or an order to the defendant and the defendant:

����� (1) Is incarcerated for any offense in a Department of Corrections institution, the notice must be sent by regular United States mail in an envelope prominently displaying the words �Legal Mail.�

����� (2) Is supervised by a supervisory authority for any offense, the notice must be sent by regular United States mail to the defendant�s last-known address on record with the supervisory authority.

����� (3) Is no longer supervised by a supervisory authority, the notice must be sent by certified mail to the defendant�s last-known address. [2011 c.275 �6]

����� Note: See note under 133.705.

����� 133.720 [Renumbered 135.125]

INTERCEPTION OF COMMUNICATIONS

����� 133.721 Definitions for ORS 41.910 and 133.721 to 133.739. As used in ORS 41.910 and 133.721 to 133.739, unless the context requires otherwise:

����� (1) �Aggrieved person� means a person who was a party to any wire, electronic or oral communication intercepted under ORS 133.724 or 133.726 or a person against whom the interception was directed and who alleges that the interception was unlawful.

����� (2) �Contents,� when used with respect to any wire, electronic or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport or meaning of that communication.

����� (3) �Electronic communication� means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a radio, electromagnetic, photoelectronic or photo-optical system, or transmitted in part by wire, but does not include:

����� (a) Any oral communication or any communication that is completely by wire; or

����� (b) Any communication made through a tone-only paging device.

����� (4) �Electronic, mechanical or other device� means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:

����� (a) Any telephone or telegraph instrument, equipment or facility, or any component thereof that is furnished to the subscriber or user by a telecommunications carrier in the ordinary course of its business and that is being used by the subscriber or user in the ordinary course of its business or being used by a telecommunications carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of official duties; or

����� (b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

����� (5) �Intercept� means the acquisition, by listening or recording, of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.

����� (6) �Investigative or law enforcement officer� means:

����� (a) An officer or other person employed to investigate or enforce the law by:

����� (A) A county sheriff or municipal police department, or a police department established by a university under ORS 352.121 or 353.125;

����� (B) The Oregon State Police, the Department of Corrections, the Attorney General or a district attorney; or

����� (C) Law enforcement agencies of other states or the federal government;

����� (b) An authorized tribal police officer as defined in ORS 181A.940; or

����� (c) A regulatory specialist exercising authority described in ORS 471.775 (2).

����� (7) �Oral communication� means:

����� (a) Any oral communication, other than a wire or electronic communication, uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation; or

����� (b) An utterance by a person who is participating in a wire or electronic communication, if the utterance is audible to another person who, at the time the wire or electronic communication occurs, is in the immediate presence of the person participating in the communication.

����� (8) �Telecommunications carrier� means:

����� (a) A telecommunications utility as defined in ORS 759.005; or

����� (b) A cooperative corporation organized under ORS chapter 62 that provides telecommunications services.

����� (9) �Telecommunications service� has the meaning given that term in ORS 759.005.

����� (10) �Wire communication� means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception, whether furnished or operated by a public utility or privately owned or leased. [1979 c.716 �2; 1983 c.824 �6; 1987 c.320 �18; 1987 c.447 �103; 1989 c.983 �6; 1999 c.1093 �1; 2001 c.385 �1; 2003 c.14 �53; 2005 c.22 �104; 2011 c.644 ��17,62,70; 2012 c.54 ��10,11; 2013 c.180 ��12,13; 2015 c.174 �6; 2015 c.614 ��141,142]

����� 133.723 Records confidential. The application for any order under ORS 133.724 and any supporting documents and testimony in connection therewith shall remain confidential in the custody of the court, and these materials shall not be released or information concerning them in any manner disclosed except upon written order of the court and as required under ORS 135.805 to 135.873. No person having custody of any records maintained under ORS 133.721 to 133.739 shall disclose or release any materials or information contained therein except upon written order of the court and as required under ORS 135.805 to 135.873. [Formerly 141.740; 1979 c.716 �13]

����� 133.724 Order for interception of communications; application; grounds for issuance; contents of order; progress reports. (1) An ex parte order for the interception of wire, electronic or oral communications may be issued by any circuit court judge upon written application made upon oath or affirmation of the individual who is the district attorney or a deputy district attorney authorized by the district attorney for the county in which the order is sought. The application shall include:

����� (a) The name of the district attorney or the deputy district attorney making the application and the authority of the district attorney or the deputy district attorney to make the application;

����� (b) The identity of the investigative or law enforcement officer making the application and the officer authorizing the application;

����� (c) A statement demonstrating that there is probable cause to believe that an individual is committing, has committed or is about to commit:

����� (A) A particular felony of murder, kidnapping, arson, robbery, bribery, extortion or other crime dangerous to life and punishable as a felony;

����� (B) A crime punishable as a felony under ORS 163.266 (1)(b) or (c), 163.413, 166.720,