161.365 Fitness to proceed consultation; examination; report; rules. (1)(a) When the court has reason to doubt the defendant’s fitness to proceed by reason of incapacity as described in ORS 161.360, the court may call any witness to assist it in reaching its decision. Except as provided in paragraph (b) of this subsection, the court shall order that a community mental health program director, or the director’s designee, consult with the defendant and with any local entity that would be responsible for providing community restoration services to the defendant if the defendant were to be released in the community, to determine whether appropriate community restoration services are present and available in the community. The court may order the consultation either before or after determining the issue of fitness to proceed. After the consultation, the program director or the director’s designee shall provide to the court a copy of the findings resulting from the consultation.
(b) If the defendant is charged with one or more of the following offenses the court is not required to, but may in its discretion, order the consultation described in paragraph (a) of this subsection:
(A) Aggravated murder;
(B) Murder in any degree;
(C) Attempted aggravated murder;
(D) Attempted murder in any degree;
(E) Manslaughter in any degree;
(F) Aggravated vehicular homicide;
(G) Arson in the first degree when classified as crime category 10 of the sentencing guidelines grid of the Oregon Criminal Justice Commission;
(H) Assault in the first degree;
(I) Assault in the second degree;
(J) Kidnapping in the first degree;
(K) Kidnapping in the second degree;
(L) Rape in the first degree;
(M) Sodomy in the first degree;
(N) Unlawful sexual penetration in the first degree;
(O) Robber
Stored review status: 2025_edition_later_amendments_unresolved. A text match is a research starting point; applicability is not established.
Official chapter context and edition notices
TITLE 16
CRIMES AND PUNISHMENTS
Chapter 161. General Provisions
162. Offenses Against the State and Public Justice
163. Offenses Against Persons
163A. Sex Offender Reporting and Classification
164. Offenses Against Property
165. Offenses Involving Fraud or Deception
166. Offenses Against Public Order; Firearms and Other Weapons; Racketeering
167. Offenses Against General Welfare and Animals
169. Local and Regional Correctional Facilities; Prisoners; Juvenile Facilities
_______________
Chapter 161 — General Provisions
Uncodified sections printed in this chapter were amended or repealed by the Legislative Assembly during its 2026 regular session. See the table of uncodified sections amended or repealed during the 2026 regular session: 2026 A&R Tables
2025 EDITION
GENERAL PROVISIONS
CRIMES AND PUNISHMENTS
PRINCIPLES
CRIMINAL LIABILITY
PARTIES TO CRIME
JUSTIFICATION
RESPONSIBILITY
(Temporary provisions relating to maximum periods of commitment and community restoration are compiled as notes following ORS 161.371)
INCHOATE CRIMES
CLASSES OF OFFENSES
DISPOSITION OF OFFENDERS
AUTHORITY OF SENTENCING COURT
PRINCIPLES
File SHA-256: 8773685681f1bf26a63d62a05c338a6e76c17f6dd1b69da0a77625951fdf2fe5. The original may include catalog metadata, neighboring provisions, or embedded records outside this collection's scope. This page displays the selected Oregon section record with its printed versions and adjoining notes. Historical editions and unverified snapshots are not a statement of current law.
Authority boundary: official snapshot extraction not current law verified.
Stable record: oregon_criminal_law:legal_authorities:161.365 Source file: ors161.html Pages: Not recorded – Not recorded Passage SHA-256: 2153e348d44b1a1c8637a392e75faa7276d03c73bf92f3bf321a1ca960f4a267 Retained source evidence SHA-256: 8773685681f1bf26a63d62a05c338a6e76c17f6dd1b69da0a77625951fdf2fe5
Source location: ORS 161.365 (all printed versions and notes)
Stored source content
161.365 Fitness to proceed consultation; examination; report; rules. (1)(a) When the court has reason to doubt the defendant’s fitness to proceed by reason of incapacity as described in ORS 161.360, the court may call any witness to assist it in reaching its decision. Except as provided in paragraph (b) of this subsection, the court shall order that a community mental health program director, or the director’s designee, consult with the defendant and with any local entity that would be responsible for providing community restoration services to the defendant if the defendant were to be released in the community, to determine whether appropriate community restoration services are present and available in the community. The court may order the consultation either before or after determining the issue of fitness to proceed. After the consultation, the program director or the director’s designee shall provide to the court a copy of the findings resulting from the consultation.
(b) If the defendant is charged with one or more of the following offenses the court is not required to, but may in its discretion, order the consultation described in paragraph (a) of this subsection:
(A) Aggravated murder;
(B) Murder in any degree;
(C) Attempted aggravated murder;
(D) Attempted murder in any degree;
(E) Manslaughter in any degree;
(F) Aggravated vehicular homicide;
(G) Arson in the first degree when classified as crime category 10 of the sentencing guidelines grid of the Oregon Criminal Justice Commission;
(H) Assault in the first degree;
(I) Assault in the second degree;
(J) Kidnapping in the first degree;
(K) Kidnapping in the second degree;
(L) Rape in the first degree;
(M) Sodomy in the first degree;
(N) Unlawful sexual penetration in the first degree;
(O) Robbery in the first degree; or
(P) Robbery in the second degree.
(c) If the court determines the assistance of a psychiatrist or psychologist would be helpful to the court in making a determination under ORS 161.363, the court may:
(A) Order that a psychiatric or psychological examination of the defendant be conducted by a certified evaluator and a report of the examination be prepared; or
(B) Order the defendant to be committed for the purpose of an examination to a state mental hospital or other facility designated by the Oregon Health Authority if the defendant is at least 18 years of age, or to a secure intensive community inpatient facility designated by the authority if the defendant is under 18 years of age. The state mental hospital or other facility may retain custody of a defendant committed under this paragraph for the duration necessary to complete the examination of the defendant, not to exceed 30 days. The examination may include a period of observation.
(d) The court shall provide a copy of any order entered under this subsection to the community mental health program director or designee and to the state mental hospital or other facility by the end of the next judicial day.
(2)(a) A defendant committed under subsection (1)(c)(B) of this section shall be transported to the state mental hospital or other facility for the examination.
(b) At the conclusion of the examination, the superintendent of the state mental hospital or the superintendent’s designee or the director of the facility may:
(A) Return the defendant to the facility from which the defendant was transported; or
(B) Inform the court and the parties that the defendant requires a hospital level of care due to the acuity of symptoms of the defendant’s qualifying mental disorder and request that the defendant remain at the state mental hospital or other facility pending a hearing or order under ORS 161.363 and 161.370.
(3) The report of an examination described in this section must include, but is not necessarily limited to, the following:
(a) A description of the nature of the examination;
(b) A statement of the mental condition of the defendant;
(c) If the defendant suffers from a qualifying mental disorder, an opinion as to whether the defendant is incapacitated within the description set out in ORS 161.360; and
(d) If the defendant is incapacitated within the description set out in ORS 161.360, a recommendation of treatment and services necessary to allow the defendant to gain or regain capacity, including whether a hospital level of care is required due to the acuity of symptoms of the defendant’s qualifying mental disorder.
(4) Except when the defendant and the court both request to the contrary, the report may not contain any findings or conclusions as to whether the defendant as a result of a qualifying mental disorder was subject to the provisions of ORS 161.295 or 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]
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Oregon criminal law — ORS Title 16 (2025 snapshot) · legal_authorities
161.295 Guilty except for insanity. (1) A person is guilty except for insanity if, at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law, and:
(a) But for a qualifying mental disorder, the person would have had such substantial capacity;
(b) A mental disorder other than a qualifying mental disorder is not the primary cause of the lack of substantial capacity; and
(c) The lack of substantial capacity is not the result of voluntary intoxication in combination with a qualifying mental disorder, a mental disorder other than a qualifying mental disorder or both.
(2) As used in chapter 743, Oregon Laws 1971, the term “qualifying mental disorder” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor does the term include any abnormality constituting solely a personality disorder. [1971 c.743 §36; 1983 c.800 §1; 2017 c.634 §3; 2025 c.119 §1]
Note: See note under 161.015.
161.360 Qualifying mental disorder affecting fitness to proceed. (1) If, before or during the trial in any criminal case, the court has reason to doubt the defendant’s fitness to proceed by reason of incapacity, the court may order an examination in the manner provided in ORS 161.365.
(2) A defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable:
(a) To understand the nature of the proceedings against the defendant;
(b) To assist and cooperate with the counsel of the defendant; or
(c) To participate in the defense of the defendant. [1971 c.743 §50; 1993 c.238 §1; 2017 c.634 §14; 2021 c.97 §16]
161.363 Procedure for determining fitness to proceed. (1) When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by the court. In making the determination, the court may consider:
(a) An examination ordered under ORS 161.365 (1)(c);
(b) Evidence of a prior diagnosis of the defendant made by a certified evaluator or a qualified mental health practitioner;
(c) A prior examination or evaluation of the defendant conducted under ORS 161.309, 161.315, 161.365, 161.370 or 161.371;
(d) Prior judicial determinations that the defendant lacked fitness to proceed;
(e) Prior commitments of the defendant under ORS 427.235 to 427.292 or ORS chapter 426;
(f) The defendant’s conduct as observed by the court;
(g) Prior court records or assessments relating to actions involving the defendant that contain a mental health diagnosis of the defendant;
(h) Relevant information on the defendant’s mental health diagnosis in the possession of the local supervisory authority, if the defendant is under active supervision; and
(i) Any other information the court deems relevant.
(2)(a) The court may hear a motion to find that the defendant is fit to proceed or lacks fitness to proceed from either party. The motion may be made orally or in writing.
(b) If a motion under this subsection is uncontested, the court may make the determination of fitness based on the motion and any supporting evidence. If the motion is contested, the moving party shall file a written motion and supporting evidence with the court, if a written motion has not already been filed.
(3)(a) The court shall hold a hearing on a contested motion as soon as practicable and in accordance with this subsection. If either party requests, or upon the court’s own motion, the court shall hold
161.315 Right of state to obtain mental examination of defendant; limitations; report. (1) Upon filing of notice or the introduction of evidence by the defendant as provided in ORS 161.309, the state shall have the right to have at least one psychiatrist or licensed psychologist of its selection examine the defendant. The state shall file notice with the court of its intention to have the defendant examined.
(2)(a) Upon filing of the notice, the court, in its discretion, may order the defendant committed to a state mental hospital or any other suitable facility, if the defendant is 18 years of age or older, for observation and examination, which may include treatment as permitted by law.
(b) If the defendant is under 18 years of age, upon filing of the notice, the court, in its discretion, may order the defendant committed to a secure intensive community inpatient facility designated by the Oregon Health Authority for examination.
(c) The state mental hospital or other facility may retain custody of a defendant committed under this subsection only for the duration necessary to complete the observation and examination of the defendant, not to exceed 30 days.
(3) If the defendant objects to the examiner chosen by the state, the court for good cause shown may direct the state to select a different examiner.
(4) An examiner performing an examination on the issue of insanity of a defendant under this section is not obligated to examine the defendant for fitness to proceed unless, during the examination, the examiner determines that the defendant’s fitness to proceed is drawn in question. If, during the examination, the examiner determines that the defendant’s fitness to proceed is in doubt, the examiner shall report the issue to the court and to the superintendent of th
161.370 Proceedings upon finding of unfitness; commitment; rules. (1) When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by the court as described in ORS 161.363.
(2)(a) If the court determines under ORS 161.363 that the defendant lacks fitness to proceed, the criminal proceeding against the defendant shall be suspended and the court shall proceed in accordance with this subsection.
(b) After making the determination under paragraph (a) of this subsection, the court shall receive a recommendation from a community mental health program director or the director’s designee, and from any local entity that would be responsible for treating the defendant if the defendant were to be released in the community, concerning whether appropriate community restoration services are present and available in the community.
(c) If the parties agree as to the appropriate action under this section, the court may, after making all findings required by law, enter any order authorized by this section. If the parties do not agree as to the appropriate action, the court and the parties shall, at a hearing, consider an appropriate action in the case, and the court shall make a determination and enter an order necessary to implement the action. In determining the appropriate action, the court shall consider the primary and secondary release criteria as defined in ORS 135.230, the least restrictive option appropriate for the defendant, the needs of the defendant and the interests of justice. Actions may include but are not limited to:
(A) Commitment for the defendant to gain or regain fitness to proceed under subsection (3) or (4) of this section;
(B) An order to engage in community restoration services, as recommended by the community mental health pr
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
161.390 Rules for assignment of persons to state mental hospitals or secure intensive community inpatient facilities; release plan prepared by Oregon Health Authority. (1) The Oregon Health Authority shall adopt rules for the assignment of persons to state mental hospitals or secure intensive community inpatient facilities after commitment under ORS 161.365 and 161.370 and for establishing standards for evaluation and treatment of persons committed to a state hospital or a secure intensive community inpatient facility or ordered to a community mental health program under ORS 161.315 to 161.351.
(2) When the Psychiatric Security Review Board requires the preparation of a predischarge or preconditional release plan before a hearing or as a condition of granting discharge or conditional release for a person committed under ORS 161.315 to 161.351 to a state hospital or a secure intensive community inpatient facility for custody, care and treatment, the authority is responsible for and shall prepare the plan.
(3) In carrying out a conditional release plan prepared under subsection (2) of this section, the authority may contract with a community mental health program, other public agency or private corporation or an individual to provide supervision and treatment for the conditionally released person.
(4)(a) The board shall maintain and keep current the medical, social and criminal history of all persons committed to its jurisdiction. The confidentiality of records maintained by the board shall be determined pursuant to ORS 161.353 and 192.311 to 192.478.
(b) Except as otherwise provided by law, upon request of the board, a state hospital, a community mental health program and any other health care service provider shall provide the board with all medical records pertaini