Title 161 · ORS Chapter 161

to 427.292;

Citation: ORS 427.235

Section: 427.235

427.235 to 427.292;

�� (D) Commencement of protective proceedings under ORS chapter 125; or

�� (E) Dismissal of the charges pursuant to ORS 135.755 and in accordance with ORS 161.367 (6).

�� (d) If the court, while considering or ordering an appropriate action under this subsection, does not order the defendant committed to a state mental hospital or other facility, but finds that appropriate community restoration services are not present and available in the community, for any defendant remaining in custody after such determination, the court shall set a review hearing seven days from the date of the determination under paragraph (a) of this subsection. At the review hearing, the court shall consider all relevant information and determine if commitment to the state mental hospital or other facility is appropriate under subsection (3) or (4) of this section, or if another action described in paragraph (c) of this subsection is appropriate. At the conclusion of the hearing the court shall enter an order in accordance with the defendant�s constitutional rights to due process.

�� (e) If the court determines that the appropriate action in the case is an order for the defendant to engage in community restoration services, but the defendant has a pending criminal case, warrant or hold in one or more other jurisdictions, the other jurisdictions shall, within two judicial days of becoming aware of the proceeding under this section, communicate with the court and the other jurisdictions, if applicable, to develop a plan to address the interests of all jurisdictions in the defendant in a timely manner.

�� (3)(a) If the most serious offense in the charging instrument is a felony, the court shall commit the defendant to the custody of the superintendent of a state mental hospital or director of a facility designated by the Oregon Health Authority if the defendant is at least 18 years of age, or to the custody of the director of a secure intensive community inpatient facility designated by the authority if the defendant is under 18 years of age, if the court makes the following findings:

�� (A) The defendant requires a hospital level of care due to public safety concerns if the defendant is not hospitalized or in custody or the acuity of symptoms of the defendant�s qualifying mental disorder; and

�� (B) Based on the findings resulting from a consultation described in ORS 161.365 (1), if applicable, from any information provided by community-based mental health providers or any other sources, and primary and secondary release criteria as defined in ORS 135.230, the appropriate community restoration services are not present and available in the community.

�� (b) If the defendant is committed under this subsection, the community mental health program director, or director�s designee, shall at regular intervals, during any period of commitment, review available community restoration services and maintain communication with the defendant and the superintendent of the state mental hospital or director of the facility in order to facilitate an efficient transition to treatment in the community when ordered.

�� (c) If the court does not order the commitment of the defendant under this subsection, the court shall proceed in accordance with subsection (2)(c) of this section to determine and order an appropriate action other than commitment.

�� (4)(a) If the most serious offense in the charging instrument is a misdemeanor, the court may not commit the defendant to the custody of the superintendent of a state mental hospital or director of a facility designated by the Oregon Health Authority if the defendant is at least 18 years of age, or to the custody of the director of a secure intensive community inpatient facility designated by the authority if the defendant is under 18 years of age, unless the court:

�� (A)(i) Receives a recommendation from a certified evaluator that the defendant requires a hospital level of care due to the acuity of symptoms of the defendant�s qualifying mental disorder; and

�� (ii) Receives a recommendation from a community mental health program director, or director�s designee, that the appropriate community restoration services are not present and available in the community; or

�� (B) Determines that the defendant requires a hospital level of care after making all of the following written findings:

�� (i) The defendant needs a hospital level of care due to the acuity of the symptoms of the defendant�s qualifying mental disorder;

�� (ii) There are public safety concerns; and

�� (iii) The appropriate community restoration services are not present and available in the community.

�� (b) If at the time of determining the appropriate action for the case, the court is considering commitment under paragraph (a)(A) of this subsection and:

�� (A) Has not received a recommendation from a certified evaluator as to whether the defendant requires a hospital level of care due to the acuity of symptoms of the defendant�s qualifying mental disorder, the court shall order a certified evaluator to make such a recommendation.

�� (B) Has not received a recommendation from the community mental health program director or designee concerning whether appropriate community restoration services are present and available in the community, the court shall order the director or designee to make such a recommendation.

�� (d) If the defendant is committed under this subsection, the community mental health program director, or director�s designee, shall at regular intervals, during any period of commitment, review available community restoration services and maintain communication with the defendant and the superintendent of the state mental hospital or director of the facility in order to facilitate an efficient transition to treatment in the community when ordered.

�� (5) If the most serious offense in the charging instrument is a violation, the court may not commit the defendant to the custody of the superintendent of a state mental hospital or director of a facility designated by the Oregon Health Authority if the defendant is at least 18 years of age, or to the custody of the director of a secure intensive community inpatient facility designated by the authority if the defendant is under 18 years of age.

�� (6)(a) If the court does not order the commitment of the defendant under subsection (3) or (4) of this section, if commitment is precluded under subsection (5) of this section or if the court determines that care other than commitment would better serve the defendant and the community, the court shall release the defendant, pursuant to an order that the defendant engage in community restoration services, until the defendant has gained or regained fitness to proceed, or until the court finds there is no substantial probability that the defendant will, within the foreseeable future, gain or regain fitness to proceed. The court may not order the defendant to engage in community restoration services in another county without permission from the other county.

�� (b) The court may order a community mental health program director coordinating the defendant�s treatment in the community to provide the court with status reports on the defendant�s progress in gaining or regaining fitness to proceed. The director shall provide a status report if the defendant is not complying with court-ordered restoration services.

�� (c) A community mental health program director coordinating the defendant�s treatment in the community shall notify the court if the defendant gains or regains fitness to proceed. The notice shall be filed with the court and may be filed electronically. The clerk of the court shall cause copies of the notice to be delivered to both the district attorney and the counsel for the defendant.

�� (d) When a defendant is ordered to engage in community restoration services under this subsection:

�� (A) The court may place conditions that the court deems appropriate on the release, including the requirement that the defendant regularly report to a state mental hospital or a certified evaluator for examination to determine if the defendant has gained or regained fitness to proceed.

�� (B) Following discharge from commitment at a state mental hospital or other facility, and the court finds that the defendant has violated a condition of the release agreement, the court may order that the defendant be recommitted to the custody of the superintendent of the state mental hospital or director of the facility.

�� (7)(a) As part of an order committing the defendant under this section, the court shall additionally determine whether the defendant may only be discharged to a facility that is of the most restrictive class under the classification system described in ORS 426.035, if the superintendent of the state mental hospital or director of the facility to which the defendant is committed determines that the defendant no longer requires a hospital level of care due to the acuity of the symptoms of the defendant�s qualifying mental disorder.

�� (b) When making the determination described in this subsection, the court shall consider the charges, primary and secondary release criteria as defined in ORS 135.230 and public safety concerns, and may consider any other information relevant to the court�s determination.

�� (c) A determination described in this subsection is a critical stage of the proceeding for purposes of ORS 147.500 to 147.550.

�� (d) The court may reconsider a determination described in this subsection under the same circumstances in which the court may modify a release decision as defined in ORS 135.230.

�� (e) A defendant whose release was denied under ORS 135.240 is not eligible for discharge, from the state hospital or other facility to which the defendant was committed under this section, to any other facility for treatment to gain or regain fitness to proceed.

�� (8) The Oregon Health Authority shall establish by rule standards for the recommendation provided to the court described in subsection (2) of this section. [1971 c.743 �52; 1975 c.380 �5; 1993 c.238 �3; 1999 c.931 ��1,2; 2005 c.685 �6; 2009 c.595 �107; 2011 c.508 �1; 2011 c.724 �8; 2015 c.130 �2; 2017 c.49 �1; 2017 c.233 �3; 2017 c.628 �1; 2017 c.634 �16; 2019 c.311 �5; 2019 c.318 �2; 2019 c.538 �2a; 2021 c.395 �7; 2023 c.227 �2; 2025 c.559 �52]

�� 161.371 Procedures upon commitment of defendant; placement process; maximum term of commitment. (1) The superintendent of a state mental hospital or director of a facility to which the defendant is committed under ORS 161.370 shall cause the defendant to be evaluated by a certified evaluator within 60 days from the defendant�s delivery into the superintendent�s or director�s custody, for the purpose of determining whether there is a substantial probability that, in the foreseeable future, the defendant will have fitness to proceed. In addition, the superintendent or director shall:

�� (a) Immediately notify the committing court if the defendant, at any time, gains or regains fitness to proceed or if there is no substantial probability that, within the foreseeable future, the defendant will gain or regain fitness to proceed.

�� (b) Within 90 days of the defendant�s delivery into the superintendent�s or director�s custody, notify the committing court that:

�� (A) The defendant has present fitness to proceed;

�� (B) There is no substantial probability that, in the foreseeable future, the defendant will gain or regain fitness to proceed; or

�� (C) There is a substantial probability that, in the foreseeable future, the defendant will gain or regain fitness to proceed. If the probability exists, the superintendent or director shall give the court an estimate of the time in which the defendant, with appropriate treatment, is expected to gain or regain fitness to proceed.

�� (c) Notify the court if court-ordered involuntary medication is necessary for the defendant to gain or regain fitness to proceed and, if appropriate, submit a report to the court under ORS 161.372.

�� (2)(a) If the superintendent of the state mental hospital or director of the facility to which the defendant is committed determines that there is a substantial probability that, in the foreseeable future, the defendant will gain or regain fitness to proceed, unless the court otherwise orders, the defendant shall remain in the superintendent�s or director�s custody where the defendant shall receive treatment designed for the purpose of enabling the defendant to gain or regain fitness to proceed. In keeping with the notice requirement under subsection (1)(b) of this section, the superintendent or director shall, for the duration of the defendant�s period of commitment, submit a progress report to the committing court, concerning the defendant�s fitness to proceed, at least once every 180 days as measured from the date of the defendant�s delivery into the superintendent�s or director�s custody.

�� (b) A progress report described in paragraph (a) of this subsection may consist of an update to:

�� (A) The original examination report conducted under ORS 161.365; or

�� (B) An evaluation conducted under subsection (1) of this section, if the defendant did not receive an examination under ORS 161.365.

�� (3)(a) Notwithstanding subsection (2) of this section, if the superintendent of the state mental hospital or director of the facility to which the defendant is committed determines that a hospital level of care is no longer necessary due to the acuity of symptoms of the defendant�s qualifying mental disorder, the superintendent or director may file notice of the determination with the court. Upon receipt of the notice, the court shall order that a community mental health program director or the director�s designee, within five judicial days:

�� (A) Consult with the defendant and with any local entity that would be responsible for providing community restoration services, if the defendant were to be released in the community, to determine whether community restoration services are present and available in the community;

�� (B) Determine, if the defendant is subject to a secure placement determination under ORS 161.370 (7), whether a placement at a facility that is of the most restrictive class under the classification system described in ORS 426.035 is present and available; and

�� (C) Provide the court and the parties with a report with recommendations from the consultation.

�� (b) As part of the consultation described in paragraph (a) of this subsection, the director or designee may be assisted by any staff member of the Oregon Health Authority who is able to assist in identifying and securing placements. If the director or designee identifies one or more appropriate placements for the defendant, the director or designee shall specify the placements in the consultation report.

�� (c) If the defendant is subject to a secure placement determination under ORS 161.370 (7), the director or designee may recommend a placement option other than a placement at a facility that is of the most restrictive class under the classification system described in ORS 426.035 only if, in the opinion of the director, the defendant may be appropriately served in such an environment.

�� (d)(A) If, during the consultation, the director or designee determines that there are one or more appropriate placements for the defendant, the consultation report must contain information, when available, on whether the proposed placements are currently accepting referrals or have an open waiting list.

�� (B) If, during the consultation, the director or designee determines that there are no appropriate placements for the defendant, the director shall notify the Oregon Health Authority. The director or designee shall provide in the consultation report information concerning why there are no appropriate placements. Upon the court�s receipt of the report, the defendant�s commitment is continued, and no further action of the court is required except as described in subsection (6) of this section.

�� (4)(a) Upon the provision to the court and the parties of a consultation report with recommended placements under subsection (3)(d)(A) of this section, either party may object to any placement option by filing a motion within 10 days after the date the consultation report was provided.

�� (b) Except as otherwise provided in paragraphs (c) and (d) of this subsection, the court shall, within 10 days after the filing of an objection under paragraph (a) of this subsection, set a hearing for the purpose of hearing the objection.

�� (c) At either party�s request, or on the court�s own motion, the court may defer hearing the objection until the placement hearing described in subsection (5) of this section.

�� (d) If both parties object to all proposed placements, the defendant�s commitment is continued, and no further action of the court is required except as described in subsection (6) of this section.

�� (e) If both parties indicate, prior to the expiration of the time period for filing an objection, that neither party will be filing an objection, the court shall notify the community mental health program director and proceed as described in subsection (5) of this section.

�� (f) At the hearing on the objection, the court shall determine whether to grant the objection to a proposed placement. If the court:

�� (A) Finds that a proposed placement subject to the objection is not appropriate, the court shall grant the objection motion with respect to that placement. If a proposed placement option remains following the court�s decision on the motion, the court shall proceed as described in subsection (5) of this section. If no proposed placement options remain following the court�s decision, the commitment of the defendant is continued, and no further action of the court is required except as described in subsection (6) of this section.

�� (B) Finds that a proposed placement subject to an objection is appropriate, the court shall deny the motion with respect to that placement and proceed as described in subsection (5) of this section.

�� (g) At a hearing described in this subsection, the court may enter an order continuing the defendant�s commitment and directing the community mental health program director to discontinue attempts to identify appropriate placements for the defendant.

�� (h) A hearing described in this subsection is a critical stage of the proceeding for purposes of ORS 147.500 to 147.550.

�� (5)(a) If a motion to object to a proposed placement is not filed, if the court defers hearing an objection to a proposed placement or if an appropriate placement option remains following a hearing described in subsection (4) of this section, the community mental health program director shall continue to attempt to secure all proposed placements for the defendant that were not subject to a granted objection and shall provide a placement status update, in the form of a written memo or report, to the court no less frequently than every 30 days.

�� (b) As soon as the director has secured a placement for the defendant and obtained an anticipated availability date for the placement, the director shall immediately notify the court and the parties, and when possible provide information concerning the availability date and the timing of transfer to the placement.

�� (c) The court shall hold a hearing as soon as practicable after receiving the notice described in paragraph (b) of this subsection to confirm the placement and set any conditions of release. The court may hear an objection filed under subsection (4) of this section that was deferred, or may hear a new or renewed objection upon the showing of changed circumstances or new information by the objecting party.

�� (d) A hearing described this subsection is a critical stage of the proceeding for purposes of ORS 147.500 to 147.550.

�� (6)(a) If the report from the consultation described in subsection (3) of this section does not identify any appropriate placements for the defendant, if no appropriate placement options remain following the granting of a motion objecting to a proposed placement, or if both parties object to all proposed placements:

�� (A) The community mental health program director shall continue to regularly evaluate placement options for the defendant, using guidance from the consultation report, and provide status updates to the court, in the form of a written memo or report, no less frequently than every 30 days.

�� (B) The court may at any time set a hearing on the case and enter appropriate orders, including an order directing the community mental health program director to discontinue evaluating placement options for the defendant until a new notice is received under subsection (3)(a) of this section. If the court enters such an order, the superintendent of the state mental hospital or director of the facility to which the defendant is committed may only issue a new notice under subsection (3)(a) of this section if circumstances regarding the defendant or available placement options have changed.

�� (b) If the community mental health program director identifies an appropriate placement for the defendant while evaluating placement options under paragraph (a)(A) of this subsection, the director shall immediately notify the court and the parties. If the defendant is subject to a secure placement determination under ORS 161.370 (7), the director or designee may recommend a placement option other than a placement at a facility that is of the most restrictive class under the classification system described in ORS 426.035 only if, in the opinion of the director, the defendant may be appropriately served in such an environment. The parties may file a motion objecting to any of the placement options as described in subsection (4) of this section.

�� (7)(a) Notwithstanding ORS 161.370 (7)(d), the determination by a court under ORS