State v. Payzant , 32 Or. App. 371 ( 1978 )

SCHWAB, C. J.

Defendant was indicted by the Lane County grand jury on two counts of failing to report child abuse as provided for by ORS 418.750.¹ He moved to quash the indictment on the ground that the offense charged was a violation, not a crime, and therefore the grand jury had no authority to return an indictment thereon. The circuit court granted the motion. The state appeals from an order granting the motion. We affirm.

A person who violates ORS 418.750, by the explicit terms of ORS 418.990(6), "commits a violation punishable by a fine of $250.” ORS 161.505 provides:

"An offense is conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law or ordinance of a political subdivision of this state. An offense is either a crime ora violation or a traffic infraction.” (Emphasis supplied.)

In its original form as enacted in Oregon Laws 1971, ch 743, § 65, p 1895, the second sentence of ORS 161.505 read: "An offense is either a crime or a violation.” By Oregon Laws 1975, ch 451, § 173, p 832, the phrase "or a traffic infraction” was added.

ORS 161.515 defines a crime as:

"(1) A crime is an offense for which a sentence of imprisonment is authorized.

"(2) A crime is either a felony or a misdemeanor.”

ORS 161.565 defines a violation as:

"An offense is a violation if it is so designated in the statute defining the offense or if the offense is punishable only by a fine, forfeiture, fine and forfeiture or other civil penalty. Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime.”

ORS 132.310 restricts grand jury indictments to crimes. It provides:

"The grand jury shall retire into a private room and may inquire into crimes committed or triable in the county and present them to the court, either by presentment or indictment, as provided in ORS 132.310 to 132.390.” (Emphasis supplied.)

This statute was amended by Oregon Laws 1973, ch 836, § 45, p 2717. Both before and after that amendment, ORS 132.310 referred to grand juries as authorized to inquire only "into crimes.” At the time ORS 132.310 was first enacted, "violations” were not explicitly recognized in Oregon law as they are now by ORS 161.505, and it may be that the word "crimes” was then intended to include all offenses against the state. However, it is significant that when the legislature amended ORS 132.310 in 1973, two years after introducing "violations” into Oregon law, it did not amend the phrase "into crimes.” Civil Rights Div. v. Williams, 280 Or 595, 573 P2d 270 (1977).²

Affirmed.

1 ORS 418.750 provides:

"Any public or private official having reasonable cause to believe that any child with whom he comes in contact in his official capacity has suffered abuse, or that any adult with whom he comes in contact in his official capacity has abused a child shall report or cause a report to be made in the manner required in ORS 418.755. Nothing contained in ORS 44.040 shall affect the duty to report imposed by this section, except that a psychiatrist, psychologist, clergyman or attorney shall not be required to report information communicated to him by an adult if the communication is privileged under ORS 44.040.”

2 At least 10 statutes in ORS ch 132 governing grand juries speak only of "crimes,” and none speak of "violations.”