161.367 Gaining or regaining fitness; credit for time served; firearm prohibition. (1) If at any time the court determines that the defendant lacks fitness to proceed, the court shall further determine whether there is a substantial probability that the defendant, in the foreseeable future, will gain or regain fitness to proceed. If the court determines that there is no substantial probability that the defendant, in the foreseeable future, will gain or regain fitness to proceed, the court shall dismiss, without prejudice and in accordance with subsection (6) of this section, all charges against the defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070, 426.701 or 427.235 to 427.292.
(2)(a) The superintendent of the hospital or director of the facility in which the defendant is committed under ORS 161.370 or a person examining the defendant as a condition of release to community restoration services shall notify the court if the defendant gains or regains fitness to proceed.
(b) A party to the case may notify the court if the defendant has gained or regained fitness to proceed.
(c) The court may, upon its own motion or the request of either party, hold a hearing to determine whether the defendant has gained or regained fitness to proceed. If the court determines that the defendant has gained or regained fitness to proceed, the court shall resume the criminal proceeding unless the court determines that so much time has elapsed since the commitment or release of the defendant to community restoration services that it would be unjust to resume the criminal proceeding. If the court determines that it would be unjust to resume the criminal proceeding, the court, on motion of either party, may dismiss the charg
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
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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
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Stable record: oregon_criminal_law:legal_authorities:161.367 Source file: ors161.html Pages: Not recorded – Not recorded Passage SHA-256: cbb495a8cef2b0704d53412b3756bd0e53150ad882f02580120668764bd2521e Retained source evidence SHA-256: 8773685681f1bf26a63d62a05c338a6e76c17f6dd1b69da0a77625951fdf2fe5
Source location: ORS 161.367 (all printed versions and notes)
Stored source content
161.367 Gaining or regaining fitness; credit for time served; firearm prohibition. (1) If at any time the court determines that the defendant lacks fitness to proceed, the court shall further determine whether there is a substantial probability that the defendant, in the foreseeable future, will gain or regain fitness to proceed. If the court determines that there is no substantial probability that the defendant, in the foreseeable future, will gain or regain fitness to proceed, the court shall dismiss, without prejudice and in accordance with subsection (6) of this section, all charges against the defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070, 426.701 or 427.235 to 427.292.
(2)(a) The superintendent of the hospital or director of the facility in which the defendant is committed under ORS 161.370 or a person examining the defendant as a condition of release to community restoration services shall notify the court if the defendant gains or regains fitness to proceed.
(b) A party to the case may notify the court if the defendant has gained or regained fitness to proceed.
(c) The court may, upon its own motion or the request of either party, hold a hearing to determine whether the defendant has gained or regained fitness to proceed. If the court determines that the defendant has gained or regained fitness to proceed, the court shall resume the criminal proceeding unless the court determines that so much time has elapsed since the commitment or release of the defendant to community restoration services that it would be unjust to resume the criminal proceeding. If the court determines that it would be unjust to resume the criminal proceeding, the court, on motion of either party, may dismiss the charge in accordance with subsection (6) of this section, and may order the defendant to be discharged or cause a proceeding to be commenced forthwith under ORS 426.070 to 426.170, 426.701 or 427.235 to 427.292.
(3) If the defendant gains or regains fitness to proceed, the defendant shall be given credit against each charge alleged in the accusatory instrument for each day the defendant was committed under ORS 161.370 to the custody of a state mental hospital, or to the custody of a secure intensive community inpatient facility designated by the Oregon Health Authority.
(4) Notwithstanding the suspension of the criminal proceeding under ORS 161.370 (2), the fact that the defendant is unfit to proceed does not preclude any objection through counsel and without the personal participation of the defendant on the grounds that the indictment is insufficient, that the statute of limitations has run, that double jeopardy principles apply or upon any other ground at the discretion of the court which the court deems susceptible of fair determination prior to trial.
(5) At the time that the court determines that the defendant lacks fitness to proceed under ORS 161.370 (2), the court shall notify the defendant in writing that federal law prohibits the defendant from purchasing or possessing a firearm unless the person obtains relief from the prohibition under federal law. The court shall again notify the defendant in writing of the prohibition if the court finds that the defendant has gained or regained fitness to proceed under subsection (2) of this section.
(6) If the court intends to dismiss all charges involving orders of commitment against a defendant who is committed to and currently located at a state mental hospital or other facility, the court shall order that the defendant be immediately transported back to the jurisdiction in which the charges were initiated, and the dismissal shall take effect only upon the defendant’s arrival in that jurisdiction. [2021 c.395 §4; 2023 c.227 §1]
Cross-references
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Oregon criminal law — ORS Title 16 (2025 snapshot) · legal_authorities
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