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Law Offices of James F. O'Rourke Jr. and Associates

503-221-1425 - Portland Office

 

PROBATION

Almost everyone convicted of a crime in Oregon is placed on probation.  It is important to understand what probation is and how it works from the beginning to avoid serious problems and probation violation hearings.

Oregon Courts are granted authority to place you on probation rather than send you to jail or prison at the time of sentencing for misdemeanor and felony convictions.  The purposes of probation are to promote offender reformation and to protect the public.

For misdemeanor convictions the court often orders unsupervised bench or enhanced bench probation rather than formal or supervised probation.  Probation is usually between 12 and 60 months.

For felony convictions, the court almost always orders formal or supervised probation.  The length of probation is determined by the felony sentencing guidelines and is usually between 12 and 36 months although it can be a long as 60 months.

Bench probation involves being monitored by the court for compliance with certain probation conditions. The court monitors local and state court and law enforcement data bases for police contacts and new criminal charges.  The court may order the defendant to do certain things, like community service and to provide verification directly to the court that the ordered task has been completed..

Enhanced Bench probation involves being monitored by community corrections for compliance with certain probation conditions.  In Multnomah County a monthly monitoring fee is charged to persons on Enhanced Bench Probation. Enhanced Bench Probation is used mostly for DUII cases where the courts want to monitor compliance with conditions about drinking and driving.  There is no reporting with Enhanced Bench Probation.

Formal or Supervised  probation involves reporting to a probation officer who makes sure that you are not engaged in criminal activity and are following the court’s orders for reformation, like alcohol evaluation and treatment.  The probation officer is granted a great deal of authority over the supervised person.  Probationers are charged a monthly supervision fee.

The length of probation is up to the judge.  Most misdemeanor probations are set for one to three years.  Most Felony probations are set between 18 and 60 months. Probationary periods can be extended if conditions are violated or not completed.  Probation periods can be shortened if we can convince the court that the purposes of probation have been fulfilled.  This is called Early Termination Of Probation.

POST PRISON SUPERVISION

If you are convicted of a felony crime and are sent to prison you will be placed on post prison supervision upon release.  The conditions of post prison supervision can include many of the same conditions as probation. 

If you violate the conditions of post prison supervision you can agree to an administrative sanction or be taken before the Board Of Parole And Post Prison Supervision for a “Morrissey” hearing.  If the Board Of Parole And Post Prison Supervision finds that you violated the terms of post prison supervision your supervision can be continued or revoked.  If supervision is revoked, you will be returned to prison.

CONDITIONS OF PROBATION

If you are convicted of a misdemeanor or felony crime and you are not sent to prison, the judge can sentence you to comply with some or all of the general conditions of probation.

The judge can also sentence you to obey special conditions of probation for felony and misdemeanor convictions.

Conditions of probation require you to do certain things and not to do other certain things. 

The purposes of probation conditions are to promote offender rehabilitation and to protect the public. They must be reasonably related to the conduct involved in the underlying conviction.

Courts have authority to change the terms of any individual condition of probation or delete or substitute other conditions for those originally ordered at the time of sentencing. We ask for such a change, by filing a Motion for Modification Of Terms Of Probation.

If you violate the conditions of probation, you can be taken before the court for a Probation Violation Hearing. If the State proves that you violated your probation the Judge can impose penalties, add or modify the probation conditions and extend or revoke probation.  If the judge revokes probation you will be sent to jail or prison.

We at James F. O’Rourke, Jr. And Associates advise our clients to study the general and special conditions of probation carefully before sentencing. We discuss these conditions with our clients so that we are aware of any problems the conditions may cause and so that we can bring such problems to the attention of the Court and argue for different conditions to avoid probation violation hearings later.

GENERAL CONDITIONS OF PROBATION

 ORS 137.540 (1) General Conditions Of Probation apply to all misdemeanor and felony convictions where the defendant is placed on probation unless each condition is specifically modified or deleted by the court.

(a) Pay supervision fees, fines, restitution or other fees ordered by the court.

Fees specifically include probation supervision fees.  Other court ordered fees include CAA (Court Appointed Attorney) fees, costs to extradite a defendant, statutory witness fees and fees for the psychological evaluation of the victim for trial preperation.

Fines include punitive fines as well as compensatory fines to the victim. 

Restitution is paid to the victims of the crimes for which the defendant is convicted.

(b) Not use or possess controlled substances except pursuant to a medical prescription.

(c) Submit to testing of breath or urine for controlled substance or alcohol use if the probationer has a history of substance abuse or if there is a reasonable suspicion that the probationer has illegally used controlled substances.

Being on probation for or having prior convictions for Drug Crimesor DUII would be a sufficient history to justify a request to take breath or blood test.   

(d) Participate in a substance abuse evaluation as directed by the supervising officer and follow the recommendations of the evaluator if there are reasonable grounds to believe there is a history of substance abuse.

In cases where supervised probation is ordered, the probation officer can send you to an alcohol or drug evaluation require you to complete any recommended treatment.

If you are placed on unsupervised probation, the judge will require you to get an evaluation and do any recommended treatment on you own and provide proof to the court that you have done so.  Most often, the Court will refer you to a specific agency for evaluation and treatment.

We refer our clients to certain treatment providers before court, who we have found to be fair priced, effective and respected by the Courts.  Be very careful in choosing a treatment provider.  The Court evaluators follow the evaluation and recommendations of the private treatment providers to whom we send our clients.

Many treatment providers do not let persons use certain medicines prescribed for pain and mental health conditions including depression.  Most do not allow patients to use medical marijuana.

(e) Remain in the State of Oregon until written permission to leave is granted by the Department of Corrections or a county community corrections agency.

If you live or want to move out of the state of Oregon, this condition can cause a lot of problems.

The Interstate Compact On Offender Supervision applies to all felony probations and certain misdemeanor probations (generally, more serious misdemeanors and people who have multiple convictions in the past).  This Compact requires that a person wishing to move to another state complete certain paperwork and have the move approved by the probation officer (or Court) and have the move approved by the other state before leaving the State of Oregon.

If you live outside of the State of Oregon or desire to move out of the State of Oregon, you should consult with an experienced criminal defense attorney to determine whether and/or how the Interstate Compact On Offender Supervision will apply to you.

(f) If physically able, find and maintain gainful full-time employment, approved schooling, or a full-time combination of both. Any waiver of this requirement must be based on a finding by the court stating the reasons for the waiver.

If you are placed on supervised probation the probation officer will monitor your school and employment efforts. 

(g) Change neither employment nor residence without prior permission from the Department of Corrections or a county community corrections agency.

If you are placed on supervised probation, you will be required to obey this condition, unless it is deleted by the Court.

If you are placed on unsupervised probation, at a minimum, you will be required to keep the Court informed of your current address.

(h) Permit the parole and probation officer to visit the probationer or the probationer’s work site or residence and to conduct a walk-through of the common areas and of the rooms in the residence occupied by or under the control of the probationer.

This condition applies only to supervised probations.

(i) Consent to the search of person, vehicle or premises upon the request of a representative of the supervising officer if the supervising officer has reasonable grounds to believe that evidence of a violation will be found, and submit to fingerprinting or photographing, or both, when requested by the Department of Corrections or a county community corrections agency for supervision purposes.

This diminishment of constitutional privacy rights applies only when dealing with one’s supervising probation officer who must have reasonable grounds to believe that evidence of a violation will be found.   This condition does not remove or limit one’s constitutional rights when dealing with other agents of the State including police officers.

(j) Obey all laws, municipal, county, state and federal.

(k) Promptly and truthfully answer all reasonable inquiries by the Department of Corrections or a county community corrections agency.

This condition only applies when a person is on Supervised Probation only and does not apply to encounters with the police. 

(L) Not possess weapons, firearms or dangerous animals.

Persons convicted of felonies lose their right to bear arms forever or until their conviction is expunged. See Expungement and Restoration Of Gun Rights.

We ask that this condition be waived for almost every misdemeanor conviction.  This would make it illegal for every person convicted of a DUII to hunt or possess a firearm.

The definition of weapon is very broad and it is very easy to violate this condition.

Many pets qualify as dangerous animals.  This condition must be waived or you violate your probation by not getting rid of your pet.

(n) Participate in a mental health evaluation as directed by the supervising officer and follow the recommendation of the evaluator.

In cases where supervised probation is ordered, the probation officer can send you to a mental health evaluation and require you to complete any recommended treatment.

If you are placed on unsupervised probation, the judge can require you to get an evaluation and do any recommended treatment on you own and provide proof to the court that you have done so.  Most often, the court will refer you to a specific agency for evaluation and treatment.

We refer our clients to certain mental health treatment providers, who we have found to be fair priced, effective and respected by the Courts.  Be careful in choosing a mental health treatment provider.  Many are either not sympathetic to persons charged with crimes or do not know how to effectively communicate with Courts.

(o) Report as required and abide by the direction of the supervising officer.

The supervising officer can not add conditions to your probation.  For instance the probation officer can not make you take a polygraph if it was not ordered by the court. 

If you ever have questions about your probation supervisor’s authority to direct you to do certain things, consult an experienced criminal defense attorney before disobeying the probation supervisor. 

You must attend appointments and file reports in lieu of appointments.

SPECIAL CONDITIONS OF PROBATION

ORS 137.540 (2) Special Conditions Of Probation that can be imposed on any person convicted of a felony or misdemeanor crime. 
“ORS 137.540(2) Special Conditions Of Probation.  In addition to the general conditions, the court may impose any special conditions of probation that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both, including, but not limited to... (emphasis added)”

Jail which can take many forms, including confinement in the county jail, electronic home detention (house arrest), and work release.  It can include in custody drug and alcohol treatment programs and day for day credit for time spent in private residential treatment centers.  We refer our clients to treatment programs who are familiar with our firm and who have demonstrated a willingness to work with and support our clients through the criminal justice system.

Community service may be ordered as a special condition of probation in the place of jail.  The defendant must agree to community service.  We at James F. O’Rourke And Associates, refer our clients to community service programs who are familiar with our firm and who have demonstrated a willingness to work with and support our clients in completing their community service obligations for the Courts.

Sell assets to pay restitution to crime victims.

Submit to polygraph testing.

Attend AA/NA meetings.

Attend Parenting Class.

Release phone records to the Court or the Probation Officer.

Not father children until certain things are done and then only with permission of the court.

Obey a curfew.

Not enter or remain on certain property or locations. (No trespass.)

No alcohol consumption.

No contact or association with certain persons.

ORS 137.540 (1) General conditions of probation that apply only to convicted sex offenders: sex offender treatment, polygraph examination and sex offender registration.

ORS 137.540 (2) Special conditions of probation which apply to convicted sex offenders: including statutory conditions about where a sex offender may reside.

Packages of Probation Conditions for certain types of Crimes

All Oregon Counties, including Multnomah, Washington and Clackamas Counties have packages of general and special conditions of probation for convictions for certain types of crimes. Comparing the packages from the different counties shows that while they are similar, they are not identical.  The following packages from Multnomah and Clackamas Counties are representative of the packages from the rest of the counties.

Multnomah County Circuit Court General and Special Conditions Of Probation Packages

Alcohol Package is used when the offense involved the use of alcohol or there is reasonable basis to believe that the defendant abuses or is dependent upon alcohol.  This package is sentenced for convictions for DUII, 

Drug Package is used when the offense involved the use of controlled substances or there is reasonable basis to believe that the defendant abuses or is dependent upon drugs.  This package is sentenced for convictions for Drug Crimes, Manufacture, Delivery and Possession of controlled substances, including marijuana, cocaine, methamphetamine, ecstasy and heroin.

Enhanced Bench Probation Package is used when the defendant is sentenced for a conviction for DUII, DUI and may be used for a conviction for Felony DUII when the defendant is not sent to prison.

Financial Crimes Package is used when the defendant is sentenced for a conviction for a crime which involves theft or fraud including embezzlement, theft by deception, identity theft, theft in the first degree, or forgery.

Sex Offender Package is used when the defendant is sentenced for a conviction for a Sex Crime.

Clackamas County Circuit Court General and Special Conditions Of Probation Packages

Substance Abuse Packageis used when the offense involved the use of alcohol or drugs and there is reasonable basis to believe that the defendant abuses or is dependent upon alcohol or drugs. This package is sentenced for convictions for DUII, DUI, Felony DUII when the defendant is not sent to prison, Manufacture, Delivery and Possession of controlled substances, including marijuana, cocaine, methamphetamine, ecstasy and heroin.

Financial Crimes Package is used when the defendant is sentenced for a conviction for a Theft Crime which involve theft or fraud including embezzlement, theft by deception, Identity Theft,Theft In The First Degree or Forgery.

Sex Offender Package is used when the defendant is sentenced for a conviction which involves sexual conduct including, most Sex Crimes sex abuse in the second or third degree, (porn, indecent exposure, look at sex crimes

Violent Crimes Package is used when the defendant is sentenced for a conviction for a crime which involves violence including Felony Assault In The Fourth Degree, Assault In The Fourth Degree, Assault In The Third Degree, and Strangulation.

Driving Offenses Package is used when the defendant is sentenced for a conviction for a Major Traffic Crime including Reckless Driving and Driving While Suspended.

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