Waiver to Adult Court
All cases for waiver will be reviewed by the District Attorney’s (DA) Office in consultation with a juvenile division manager to determine whether to move forward with waiver under ORS 419C.349.
This procedure does not pertain to the waiver of motor vehicle, boating, game, and violations, which are bound by a separate waiver order.
The Juvenile Court, after a hearing would decide to a waiver of youth ages 15, 16 and 17 years old to adult court for criminal offenses.
Youth ages 15, 16 and 17 years old may be waived for an offense list in ORS 137.707 or under 419C.349.
The juvenile court must find the following criteria to waive youth ages 15, 16 and 17 years old to adult court:
A. The youth at the time of the alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved; and
B. The juvenile court, after considering the following criteria, determines by a preponderance of the evidence that retaining jurisdiction will not serve the best interests of the youth and of society and therefore is not justified:
a. The amenability of the youth to treatment and rehabilitation given the techniques, facilities and personnel for rehabilitation available to the juvenile court and to the criminal court that would have jurisdiction after transfer;
b. The protection required by the community, given the seriousness of the offense alleged, and whether the youth can be safely rehabilitated under the jurisdiction of the juvenile court;
c. The aggressive, violent, premeditated or willful manner in which the offense was alleged to have been committed;
d. The previous history of the youth, including:
(i) Prior treatment efforts and out-of-home placements; and
(ii) The physical, emotional and mental health of the youth;
e. The youth’s prior record of acts [which] that would be crimes if committed by an adult;
f. The gravity of the loss, damage or injury caused or attempted during the offense;
g. The prosecutive merit of the case against the youth; and
h. The desirability of disposing of all cases in one trial if there were adult co-offenders.
If the DA and division manager believe that there is sufficient evidence to support the statutory elements for waiver, the following would also be considered:
a. Number of victims;
b. Number of incidents;
c. Prior or persistent violent history;
d. History of gang involvement;
e. Witness tampering;
f. Victim wishes;
g. Age of the juvenile;
h. Sophistication of the juvenile;
i. Use of a dangerous or deadly weapon; and/or
j. Injury or loss to the victim was greater than typical
The victim of the alleged offense has the right to appear at a hearing and to provide the court with any information reasonably related to the court’s determination.
The Youth’s right to counsel, and the appointment of counsel under ORS 419C.200, applies.
The state has the right to have at least one psychiatrist or licensed psychologist of its selection examine the youth concerning the determination of whether to waive the youth under this section.
If a youth is charged with an offense under the waiver but found guilty of a lesser included offense, which is not an offense listed in ORS 137.707, but constitutes an offense for which waiver is authorized under 419C.349, the Court is to retain jurisdiction or to transfer the case to juvenile court for disposition. In determining whether to retain jurisdiction, the court shall consider the criteria for waiver in ORS 419C.349. If the court retains jurisdiction, the court shall sentence the youth as an adult under sentencing guidelines. If the court does not retain jurisdiction, the court shall:
a. Order that a presentence report be prepared;
b. Set forth in a memorandum any observations and recommendations that the court deems appropriate;
c. Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 and 419C.411; and
d. Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255.
After the juvenile court has entered an order waiving a youth to an adult court, the court may, if the youth is 16 years of age or older, enter a subsequent order providing that in all future cases involving the same youth, the youth shall be waived to the appropriate court without further proceedings under statute (ORS 419C.364).
ORS 419C.352 addresses waiver of youth under 15 years of age. Waivers for this group may be considered only when the charge is Murder, Rape I, Sodomy I or Sexual Penetration I.
When a youth is convicted of an offense based on the waiver, the court shall impose at least the presumptive term of imprisonment provided for the offense. Youth would be placed at an Oregon Youth Authority Youth Correctional Facility.
Youth charged in adult court under a waiver will continue to be held in the juvenile detention facility and will be subject to release on the same terms and conditions as for adults.