at the time of the criminal act charged.

161.300 at the time of the criminal act charged.

����� (5) If the examination by the certified evaluator cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report must so state and must include, if possible, an opinion as to whether the unwillingness of the defendant was the result of a qualifying mental disorder affecting fitness to proceed.

����� (6) The report resulting from the examination of a defendant under this section may be filed electronically and must be filed with the clerk of the court, who shall cause copies to be delivered to the district attorney and to counsel for defendant.

����� (7)(a) When upon motion of the court or a financially eligible defendant, the court has ordered a psychiatric or psychological examination of the defendant, a county or justice court shall order the county to pay, a municipal court shall order the city to pay, and a circuit court shall order the executive director of the Oregon Public Defense Commission to pay from funds available for the purpose:

����� (A) A reasonable fee if the examination of the defendant is conducted by a certified evaluator in private practice; and

����� (B) All costs including transportation of the defendant if the examination is conducted by a certified evaluator in the employ of the Oregon Health Authority or a community mental health program established under ORS 430.610 to 430.670.

����� (b) When an examination is ordered at the request or with the acquiescence of a defendant who is determined not to be financially eligible, the examination shall be performed at the defendant�s expense. When an examination is ordered at the request of the prosecution, the county shall pay for the expense of the examination.

����� (8) The Oregon Health Authority shall establish by rule standards for the consultation described in subsection (1) of this section. [1971 c.743 �51; 1975 c.380 �4; 1981 s.s. c.3 �131; 1983 c.800 �11; 1987 c.803 �18; 1993 c.238 �2; 2001 c.962 �90; 2005 c.685 �5; 2009 c.595 �106; 2011 c.724 �7; 2015 c.130 �1; 2017 c.252 �25; 2017 c.634 �15; 2019 c.311 �4; 2019 c.318 �1; 2019 c.538 �1a; 2021 c.395 �6; 2023 c.281 �43; 2025 c.559 �51]

����� 161.367 Gaining or regaining fitness; credit for time served; firearm prohibition. (1) If at any time the court determines that the defendant lacks fitness to proceed, the court shall further determine whether there is a substantial probability that the defendant, in the foreseeable future, will gain or regain fitness to proceed. If the court determines that there is no substantial probability that the defendant, in the foreseeable future, will gain or regain fitness to proceed, the court shall dismiss, without prejudice and in accordance with subsection (6) of this section, all charges against the defendant and:

����� (a) Order that the defendant be discharged; or

����� (b) Initiate commitment proceedings under ORS 426.070, 426.701 or 427.235 to 427.292.

����� (2)(a) The superintendent of the hospital or director of the facility in which the defendant is committed under ORS 161.370 or a person examining the defendant as a condition of release to community restoration services shall notify the court if the defendant gains or regains fitness to proceed.

����� (b) A party to the case may notify the court if the defendant has gained or regained fitness to proceed.

����� (c) The court may, upon its own motion or the request of either party, hold a hearing to determine whether the defendant has gained or regained fitness to proceed. If the court determines that the defendant has gained or regained fitness to proceed, the court shall resume the criminal proceeding unless the court determines that so much time has elapsed since the commitment or release of the defendant to community restoration services that it would be unjust to resume the criminal proceeding. If the court determines that it would be unjust to resume the criminal proceeding, the court, on motion of either party, may dismiss the charge in accordance with subsection (6) of this section, and may order the defendant to be discharged or cause a proceeding to be commenced forthwith under ORS 426.070 to 426.170, 426.701 or 427.235 to 427.292.

����� (3) If the defendant gains or regains fitness to proceed, the defendant shall be given credit against each charge alleged in the accusatory instrument for each day the defendant was committed under ORS 161.370 to the custody of a state mental hospital, or to the custody of a secure intensive community inpatient facility designated by the Oregon Health Authority.

����� (4) Notwithstanding the suspension of the criminal proceeding under ORS 161.370 (2), the fact that the defendant is unfit to proceed does not preclude any objection through counsel and without the personal participation of the defendant on the grounds that the indictment is insufficient, that the statute of limitations has run, that double jeopardy principles apply or upon any other ground at the discretion of the court which the court deems susceptible of fair determination prior to trial.

����� (5) At the time that the court determines that the defendant lacks fitness to proceed under ORS