[DV_listserv] Happy New Year - DV Edition

[Domestic Violence issues]

Hello!

Happy (almost) 2019!  Just a reminder, there are a few statutory changes that take effect as January 1 rolls around.

FIREARM/AMMUNITION RESTRICTION
- HB 4145<https://olis.leg.state.or.us/liz/2018R1/Downloads/MeasureDocument/HB4145> extended the circumstances under which certain persons are prohibited from possessing a firearm or ammunition under to ORS 166.255.

Qualifying DV Offenses:  In order for the firearm prohibition to attach to an offender under the DV conviction component, 2 parts must exist.

1) qualifying misdemeanor conviction: to be a qualifying offense, the misdemeanor crime of conviction has "as an element of the offense, the use or attempted use of physical force or the threatened use of a deadly weapon."

2) qualifying relationship: The relationship requirement for a qualifying offense has been changed to mirror the "family or household" definition (ORS 135.230) that we apply to "constituting domestic violence." This eliminates what was previously referred to as the "boyfriend loophole".  Be aware that 166.255 also imposes this firearm restriction if at the time of the offense the person was the guardian of the victim (not otherwise contemplated in "family or household")

Stalking: A conviction for stalking under ORS 163.732 now prohibits a person from possessing a firearm or ammunition.

The amendments made by HB 4145 also extend the firearm prohibition to any person convicted of stalking under ORS 163.732.  Note: it does not attach when the conviction is for violating a court stalking protective order under ORS 163.750.  That is something that prosecutors may want to take into consideration when pleading and/or resolving stalking-related offenses.

*Notice of Firearm Prohibition:
The Oregon Judicial Department has put together a Notice of Firearms Prohibition form for judges to enter into Odyssey when there has been a qualifying DV convictions.  Some things to be aware of on the OJD form are that 1) it only includes the prohibition as a result of a qualifying DV offenses, even though this prohibition will also attach on the stalking offenses and 2) that it does not reference prohibition under federal law.  I know that some prosecutors' offices have elected to create their own form to submit to the Courts.  If anyone has questions about this or wants to talk more about this, I'm happy to chat about this you.  I'd also love to hear feedback on whether the OJD forms are being used in your jurisdictions and how they are working.

*Enforcement:
Myself and a number of other individuals are continuing to work with OSP to have persons that are subject to the prohibitions under ORS 166.255 flagged as such.  Currently, the plan and expectation is that the Notices from the court will be sent to OSP in a way that will cause the person to be marked as subject to ORS 166.255.  A similar notice (without the formal Notice document) is also expected to go to OSP when a qualifying stalking conviction is entered for the same restriction entry.  These entries are expected to attach to the person so that the prohibition will be noticed when a person is run through LEDS (ie by dispatch), rather than needing to look at the criminal history itself.  Again, if you have specific questions about this and/or you have feedback about how this is or is not working, please let me know.

CHANGES TO STRANGULATION + FELONY DOMESTIC VIOLENCE STRANGULATION

Method of Strangulation:
- The statutory language has been expanded to include impeding the normal breathing or circulation of the blood of another person by "applying pressure on the throat, neck or chest of the other person; or blocking the nose or mouth of the other person"

Felony DV Strangulation:
- Starting January 1, all strangulations committed against a family or household member are now automatically a felony offense.  The definition for family or household member is the same as used for "constituting domestic violence" (ORS 135.230) A strangulation that has "constituting domestic violence" as the additional element is a level 5 felony.

- All previous felony strangulation modifiers (witnessed by child, victim under 10, use/ threatened use of a weapon, prior conviction same victim, 3 previous convictions any victim, pregnant v) remain in effect.  A felony strangulation with one of these additional elements remains a level 6 felony.

*Please be sure that your law enforcement agencies are all aware of this change as it will effect booking charges and will likely effect release decisions/ bail amounts for offenders that arrested on strangulation offenses.



Sarah Sabri
Domestic Violence Resource Prosecutor
Sr. Assistant Attorney General | Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist St. SE Ste. 100
Salem, OR 97302

Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1936

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