HomeMy WebLinkAboutItem 3: PH/Ord.on OffensesEUGENE CITY COUNCIL
AGENDA ITEM SUMMARY
Public Hearing: An Ordinance Concerning Offenses: Amending Sections 4.105, 4.807
and 4.990 of the Eugene Code, 1971; Adding Sections 4.710, 4.728, 4.822, 4.880 and
4.922 to that Code
Meeting Date: July 25, 2005 Agenda Item Number: 3
Department: Central Services, City Prosecutor Staff Contact: Dan Barkovic
www. eugene-or, gov Contact Telephone Number: 682-8414
ISSUE STATEMENT
This item is a public hearing on proposed changes to Chapter 4 of the Eugene Code. The changes being
proposed add seven new offenses to the Eugene Code, to allow prosecution of these offenses in Eugene
Municipal Court, and include some minor language changes in the description of two other offenses
currently in the Eugene Code.
BACKGROUND
The council received a memo entitled "Prosecuting Additional Misdemeanors in Eugene Municipal
Court" on June 30, 2005. The memo explained that as of May 10, 2005, the Lane County District
Attorney's Office (DA) stopped prosecuting most non-violent misdemeanor crimes due to budget
constraints, a decision that significantly affects the quality of life and sense of safety within the city of
Eugene. As the District Attorney's Office has attempted to reduce its workload to match its reduced
number of staff, the media has reported on the changes in prosecution for various offenses. On May 10,
after receiving feedback from the State Police, District Attorney Harcleroad issued a modified list of
offenses that would no longer be prosecuted (Attachment A). The DA continues to prosecute any
misdemeanor filed in conjunction with a felony offense, and in rare instances when the crime is
aggravated and a police supervisor requests an exception.
The Eugene Municipal Court, which in 2004 adjudicated over 7,000 misdemeanor cases in addition to
approximately 27,000 traffic and ordinance violations, has experienced a 26% increase since 2002 in
case processing activity for all case types. Attachment B illustrates how selected misdemeanor offenses,
such as DUll and Petty Larceny, have increased during that period of time. The June 30 memorandum
to the Mayor and City Council highlighted the many changes made by the City Prosecutor and
Municipal Court over the past two years to streamline case processing and avoid a backlog in dealing
with increasing case load. These innovative program options and efficiencies have helped to maintain a
fragile balance between the judicial and law enforcement partners of the local criminal justice system.
For example, the number of misdemeanor cases reduced to violations has increased. When a case is
reduced to a violation and the defendant is found guilty, the sanction is limited to a fine or community
service rather than jail time. The defendant is also no longer eligible for a jury trial or public defender.
If the defendant does not appear, rather than issuing a warrant, the case goes "guilty by default" and the
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financial judgment is sent to a collections agency.
A staff team from the City Prosecutor's Office, Eugene Police and Municipal Court met for several
weeks to analyze the potential outcomes of the DA's "No File" List (Attachment A). The options
described below illustrate the range of actions the council could take to address the reduction in criminal
prosecution that will result from the DA's policy change.
Other changes in the proposed ordinance provide clarification in the definitions of the offenses of
Open Alcoholic Beverage Container and Criminal Trespass in the Second Degree. These changes are
for housekeeping purposes to align Eugene City Code with the Oregon Revised Statutes (ORS).
The joint staff team developed two options for City Council review that can improve the sense of
security and the quality of life for the Eugene community. The preferred option, which adds some but
not all of the offenses from the DA's "No File" List to the Eugene Code, will not satisfy all of the
community' s concerns, but is a reasonable level of service that ensures many serious offenses will
continue to be prosecuted while being mindful of the City's budgetary constraints.
RELATED CITY POLICIES
The proposed changes to the Eugene Code support the Council Goals of Safe Community, and
Effective, Accountable Municipal Government.
COUNCIL OPTIONS
The council may choose any of the three options described below or request that staff modify or
combine one or more of the options. Three options have been presented which range from taking no
action to adopt offenses into the Eugene Code, leaving 700 to 850 crimes per year with no sanctions, to
adopting all of the offenses on the DA's "No File" List which would increase the City's misdemeanor
case load by more than 10% and cost approximately $210,000 per year.
Option 1 - Do Nothing in Response to DA Reduction (No Financial Impact)
This option represents an acceptance of a lower level of service in criminal prosecution for the offenses
the District Attorney' s Office will no longer file (Attachment A). Prior to the DA reducing service in
2004, the DA's office handled an average of 850 misdemeanor cases per year of the types on the "No
File" List that were brought to it by the Eugene Police. These cases were misdemeanors not filed in
conjunction with a felony charge; they do not meet the eligibility criteria established in May 2005 by the
DA's office for filing. In 2004, some reductions were made by the DA in cases accepted for filing.
Eugene Police still charged 764 of these misdemeanor offenses in 2004, even though the DA did not file
the charges and returned the cases to Police. With this option, the City would not pursue adoption of
new offenses into the Eugene Code, and would not take on additional case load for prosecution,
resulting in 700 to 850 criminal offenses annually with no sanctions.
Option 2 - Adoption of All Charges on DA's No File List (Highest Financial Impact)
With this option, the City would increase its misdemeanor case load by over 10 percent. This would be
a very costly option. In addition to the need for more prosecution, judicial and court staff to
accommodate processing these additional cases, the City would take on new costs for public defense and
additional jail space by taking these cases through Municipal Court. When cases are handled through
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Circuit Court, public defense costs are borne by the State and jail costs are borne by Lane County. Fine
revenue for misdemeanors is extremely low, averaging less than $100 per case, and cannot be
considered an offset to the additional costs that would be incurred by the City.
Misdemeanor case filings in Municipal Court have increased steadily for the past four years (Attachment
B). Additionally, police officer positions were added in the FY05 budget with no increase in court staff
to manage the cases these officers will generate. As described in the June 30 memorandum to the
Mayor and City Council, the Court and Prosecutor's Office have implemented numerous efficiencies in
order to keep pace with the workload and minimize the need for budget increases. A workload increase
of the magnitude represented by this option cannot be absorbed; additional staff and contract resources
would be required.
Additional time would be required to develop a full analysis of the financial impact of this decision. A
rough estimate of costs to implement Option 2 is provided to help illustrate the scope of this option:
On-going Expenditures Estimate (FY06 Dollars)
City Prosecutor Office $ 53,000
Judicial contracts 28,080
Public defense contract 39,493
Court staff 29,433
Jail space contract 58,854
TOTAL ON-GOING: $208,860
One-time Expenditures
Court materials and supplies $ 5,000
TOTAL ON-GOING AND ONE-TIME: $213,860
Option 3 - Modified INcrease in Prosecution Service (Minimal Financial Impact)
This option has the City adopting some but not all of the misdemeanor offenses from the DA's "No
File" List, which would allow the City to prosecute some of the more critical cases based on community
impact. By adopting into Chapter 4 of the Eugene Code the offenses of Unlawful Entry into a Motor
Vehicle, Possession of Burglary Tool, Telephonic Harassment, Theft 2, Theft 3, and Failing to Report as
a Sex Offender, staff estimates 400 to 450 additional misdemeanors could be prosecuted in Eugene
Municipal Court. This number represents more than half of the cases from the DA's "No File" List. IN
order to mitigate the impact of this additional workload, the City Prosecutor would more critically
review, on a case-by-case basis, the lesser offenses to reduce the misdemeanor charges to violations.
The number of cases reduced from misdemeanor to violation would significantly increase. An officer's
ability to arrest someone on the misdemeanor charge and to remove them from the scene of a crime
would be retained, but if the prosecutor reduces the charge, the person would be released from jail. No
additional public defense, jail space, judicial or court costs would be incurred. Staff work would be
added to the City Prosecutor's Office, but very little additional attorney costs would be incurred.
The types of offenses where cases are currently reduced from misdemeanor to violation are: Criminal
Trespass 2, Consumption of Alcohol on Unlicensed Premise/Open Container, and Violation of Park
Rules. Attachment B shows the number of these cases in Municipal Court and how often these cases are
currently reduced to violations. With Option 3, cases in these crime categories, as well as other low-
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level offenses, will more likely be reduced to violations. In addition the City Prosecutor would
recommend more cases for diversion. By reducing the charges or recommending diversion on an
increased number of cases, time and resources will be freed to accommodate the additional
misdemeanor case load.
There would be a need for additional support staff for the City Prosecutor's Office to amend complaints
reducing misdemeanor charges to violations and to handle the new misdemeanor complaint filings. A
0.5 FTE Administrative Aide II! position would be sufficient to handle this additional workload, but has
not been addressed in the FY06 adopted budget.
On-~oin~ Expenditure Estimate (FY06 Dollars)
0.5 Admin. Aide III $ 28,000
TOTAL ON-GOING: $ 28,000
Option 3 does not include City prosecution of financial misdemeanors, such as Forgery, Fraud, or
Negotiating a Bad Check. While statistics show these crimes have been declining, this information is
misleading. Due to lack of prosecution of these offenses last year by the DA's office, there is a high
amount of non-reporting of these types of crimes. Metro areas throughout Oregon have established high
thresholds of dollar loss before a crime will be investigated. The number of these crimes, if actively
investigated and prosecuted, would significantly increase. Officers indicate the current statistics are "the
tip of the iceberg." In addition, financial crime cases are very complex to investigate and prosecute and,
therefore, very costly in terms of staff, attorney and judge time. Aside from the cost involved, staff does
not recommend prosecuting these crimes because victims have an alternative civil remedy available to
pursue, if they so choose.
CITY MANAGER'S RECOMMENDATION
The City Manager recommends that the council proceed with action on the proposed ordinance on
August 8, 2005.
SUGGESTED MOTION
No motion is required for the public hearing.
ATTACHMENTS
A. District Attorney's "No File" List
B. Eugene Municipal Court Misdemeanor Statistics
C. Judge Wayne Allen Letter
D. Proposed Ordinance
FOR MORE INFORMATION
Staff Contact: Dan Barkovic, City Prosecutor
Telephone: (541) 682-8414
Staff E-Mail: Dan. J.Barkovic~ci.eugene.or.us
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ATTACHMENT A
LANE COUNTY DISTRICT ATTORNEY'S OFFICE
MISDEMEANOR CRIMES THAT WILL NOT BE PROSECUTED BEGINNING MAY 10, 2005
THESE CRIMES HAVE BEEN ADDED AND WILL NOT BE PROSECUTED
Animal Abandonment Improper Use of 911 System
Animal Fighting Initiate False Report
Attempt Elude Police on Foot Interf With Public Transport
Conspiracy Commit A/Mis Interfere W Agriculture Oper
Contempt Of Court-unless it is domestic violence Interfering w/Peace Officer
Contracting w/o Registration Mail Theft
Crim Trespass W/Firearm Manu/Del Cntrld Sub-SC 4
Criminal Mischief-2 Misrep Age By Minor
Criminal Mischief-3 Negotiating Bad Check (unless it is a "Bounceback" check)
Criminal Trespass-1 Obstruct Govt Admin
Criminal Trespass-2 Obtain Cntrld Sub Unlaw
Cut/Trans Special Forest Prod Offensive Littering
Del Marij 10z-No Pay Plac Poll Sub Highw/Prop
Deposit Trash In Water Place Pollut Sub In Watr
Deposit Trash Near Water Poss Burglary Tool
Disorderly Conduct Poss Cntrld Sub-SC 3
Driving While Revoked/Mis Poss Cntrld Sub-SC 4
DWS/A MIS/DUII Poss Forged Instr-2
DWS/A MIS/Habitual Offender Possess 1 oz Marij Near School
DWS/A MIS/Reckless Driving Possession of Iodine
DWS/A MIS/Refused Alcohol Test Possession of Iodine Matrix
DWS/Misdemeanor Prohibited Camping-Willful
DWS/Misdemeanor Prostitution
Escape-3 Prov False Info-Handgun Trans
Fail Carry/Present License Solicitation Of C/Fei
Fail Perform Duties Driver/Pd Tamper W/Phys Evidence
Fail to Report as Sex Offender Telephonic Harassment-unless it is domestic violence
Failure To Appear-2 Theft of Services $50 - $750
False Appl Comm F & G Lic Theft of Services $50.-$499.
False Application DL Theft of Services < $50
False Business Record Theft-2
False Info to Workers Comp Board Theft-3
False Liab Ins Info to Police Throw Lighted Material
False Statement in Reg Appltn Unlawful Burning
False Swearing Unauthorized Departure
Fish & Game Misdemeanor Unlaw Handle Haz Waste 2nd Deg
Fish & Game Season Violation Unlawful Entry Motor Vehicle
Fl Perfm Duty Of Driver (non-injury) Unlawful Hunting By Juvenile
Forgery-2 Unlawful Poss of Phosphorus
Fraud-Credit Card/S750- Unlawful Sale/Use Fireworks
Freq Plc Cntrld Sub Used Unlic Serve Liquor
Furn Liquor Minor Unsworn Falsification
Furnish Obscen Mat Minor Use Of Another's ODL
Harassment Use Of Invalid License
Harassment Physical Vio Out of Service Notice
HARASSMENT-Threat Vio Post St Sch-1 >12500 Lbs
Hunt Cult/Enclosed Area Vio Post Wt Sch-3 >10000 Lbs
Hunt From Vehicle Violation of Park Rules
Hunt W/Artificial Light Waste Wildlife
Illegal Consignment Practices Wildlife Law Viol with CMS
Update: May 10, 2005
SELECTED MISDEMEANOR CASES ATTACHMENT B
IN EUGENE MUNICIPAL COURT 2001-2004
2001 2002 2003 2004
ASSAULT 39 73 76 88
CRIMINAL MISCHIEF 2 79 141 148 155
CRIMINAL MISCHIEF 3 38 31 41 64
DISORDERLY CONDUCT 97 157 187 171
DUll 564 981 1068 1226
HARRAS SMENT 84 173 195 180
HIT & RUN - PROP DAMAGE 43 48 45 56
HIT & RUN - VEH DAMAGE 49 55 68 69
PETTY LARCENY 1 32 55 61 68
PETTY LARCENY 2 19 27 35 54
RECKLESS DRIVING 193 299 319 371
SHOPLIFTING 1 237 379 429 439
SHOPLIFTING 2 509 773 793 681
CONSUMPTION-UNLIC PREM
Total by Charge 1,154 1,089 1,318 1,417
Misdemeanor 255 210 588 617
Violation 899 879 730 800
CRIMINAL TRESPASS 2
Total by Charge 579 545 653 957
Misdemeanor 458 382 476 750
Violation 121 163 177 207
VIOL PARK RULES
Total by Charge 443 555 563 413
Misdemeanor 59 95 223 113
Violation 384 460 340 300
ATTACHMENT C
Central Servic s
Finance & Court Services
Municipal Court
City of Eugene
MEMORANDUM 777 Pearl Street, Room 104
Eugene, Oregon 97401
(541) 682-5400
(541) 682-5417 FAX
(541) 682-5058 TTY
Date: June 28, 2005 www.ci.eugene.or.us
To: Mayor Kitty Piercy and City Council
From: Wayne Allen
Presiding Judge
RE: Prosecuting Additional Misdemeanors in Municipal Court and Reducing Some
Current Misdemeanors to Violations.
The District Attorney's decision to not prosecute certain misdemeanors has created an
untenable situation. That decision leaves a large void regarding prosecution of crimes which
undermine the quality of life in the county and the city. It is the citizens' expectation that there
will be consequences when someone breaks into their motor vehicle, harasses them over the
telephone or commits theft.
Yet, the city would be hard pressed to take on all of the cases the District Attorney's office
refuses to prosecute, particularly those involving financial crimes. Resources and finances
dictate a more practical approach.
Option three as presented in the memorandum to which this is attached would add offenses
which should be prosecuted to the growing numbers of cases which are currently being filed
in Eugene Municipal Court. Those charges would be the following: 1) unlawful entry into a
motor vehicle, 2) telephonic harassment, 3) theft 2 and theft 3, 4) failing to report as a sex
offender, and 5) possession of burglary tools.
Option three also contemplates that almost all the cases charging Consumption or
Possession of Alcoholic Beverages on Unlicenced Premises, Open Container, Criminal
Trespass, and Violation of Park Rules would be filed and prosecuted as violations, not
crimes. Frankly, I have long questioned the effectiveness of pursuing these offenses as
crimes. As crimes, they offer the option of a court appointed attorney and a jury trial. They
also result in warrants when the defendant fails to appear. If and when the case is finally
adjudicated, I am concerned that the court sentence does little to deter this conduct in the
future. Many of these cases charge defendants who are alcohol dependant with crimes.
Court sanctions have proven to have little effect in solving that issue. I believe that the court's
time and energies could be better spent on the category of cases noted above.
I would be pleased to discuss these or any other issues with the Mayor or Council at their
convenience.
Memo-Court.frm
ATTACHMENT D
ORDINANCE NO.
AN ORDINANCE CONCERNING OFFENSES; AMENDING SECTIONS
4.105, 4.807 AND 4.990 OF THE EUGENE CODE, 1971; ADDING
SECTIONS 4.710, 4.728, 4.822, 4.880, 4.882 AND 4.922 TO THAT
CODE.
The City of Eugene does ordain as follows:
Section 1. The definition for "Open alcoholic beverage container" in Section 4.105
of the Eugene Code, 1971 is amended to provide:
4.105 Definitions. The following words and phrases, as used in sections 4.115 to
4.235 shall mean:
Open alcoholic beverage container [A "'-'"*o; ...... ~;"~ "'-'"*o; .... ] Any
bottle, can or other receptacle containing any alcoholic liquor, hard liquor,
or malt beverage, which has been opened, or a seal broken, or the
contents of which have been partially removed r~,~, ,,~, ~,,
~r~ I~r~l~ r,~n~ nl~ r,, ,n~ r~r r~H~r r,r~n~in~r~ r,~n~l~l~
Section 2. Section 4.710 is added to the Eugene Code, 1971, to provide:
4.710 Telephonic Harassment. A telephone caller commits the crime of
telephonic harassment if the caller intentionally harasses or annoys
another person:
(1) By causing the telephone of the other person to ring, such caller
having no communicative purpose; or
(2) By causing such other person's telephone to ring, knowing that
the caller has been forbidden from so doing by a person
exercising lawful authority over the receiving telephone.
Section 3. Section 4.728 is added to the Eugene Code, 1971, to provide:
4.728 Recklessly Endanqerin.q Another Person. A person commits the crime
of recklessly endangering another person if the person recklessly
engages in conduct which creates a substantial risk of serious physical
injury to another person.
Section 4. Section 4.807 of the Eugene Code, 1971 is amended to provide:
Ordinance- 1
4.807 Criminal Trespass in the Second Deqree. A person commits the crime of
criminal trespass in the second degree if the person enters or remains
unlawfully in a motor vehicle or in or upon premises.
Section 5. Section 4.822 is added to the Eugene Code, 1971, to provide:
4.822 Theft.
(1) Theft in the Third Deqree. A person commits the crime of theft in
the third degree if the total value of the property in a single or an
aggregate transaction is under $50, and the person, with the intent
to deprive another of property or to appropriate property to the
person or a third person, the person:
(a) Takes, appropriates, obtains or withholds such property from
an owner thereof; or
(b) Comes into control of property of another that the person
knows or has good reason to know to have been lost, mislaid
or delivered under a mistake as to the nature or amount of
the property or the identify of the recipient, and with the
intent to deprive the owner thereof fails to take reasonable
measures to restore the property to the owner; or
(c) Obtains property of another, and with the intent to defraud:
1. Creates or confirms another's false impression of law,
value, intention or other state of mind which the actor
does not believe to be true; or
2. Fails to correct a false impression which the person
previously created or confirmed; or
3. Prevents another from acquiring information pertinent
to the disposition of the property involved; or
4. Sells or otherwise transfers or encumbers property,
failing to disclose a lien, adverse claim or other legal
impediment to the enjoyment of the property, whether
such impediment is or is not valid, or is or is not a
matter of official record; or
5. Promises performance which the person does not
intend to perform or knows will not be performed.
(d) Receives, retains, conceals or disposes of property of
another knowing or having good reason to know that the
property was the subject of theft. For purposes of this
subsection, "receiving" means acquiring, possession,
control or title, or lending on the security of the property.
(2) Theft in the Second Deqree. A person commits the crime of theft
in the second degree if the person commits a theft described in
subsection (1) of this section and the total value of the property in
a single or aggregate transaction is $50 or more, but is under $200
if a theft described in (1)(d), and under $750 if a theft described in
(1)(a), (1)(b) or (1)(c).
Ordinance - 2
Section 6. Sections 4.880 and 4.882 are added to the Eugene Code, 1971 to
provide:
4.880 Possession of a Burqlary Tool or Theft Device.
(1) A person commits the crime of possession of a burglary tool or
theft device if the person possesses a burglary tool or theft device
and the person:
(a) Intends to use the tool or device to commit or facilitate a
forcible entry into premises or a theft by a physical taking; or
(b) Knows that another person intends to use the tool or device
to commit or facilitate a forcible entry into premises or a theft
by a physical taking.
(2) For purposes of this section, "burglary tool or theft device" means
an acetylene torch, electric arc, burning bar, thermal lance, oxygen
lance or other similar device capable of burning through steel,
concrete or other solid material, or nitroglycerine, dynamite,
gunpowder or any other explosive, tool, instrument or other article
adapted or designed for committing or facilitating a forcible entry
into premises or theft by a physical taking.
4.882 Unlawful Entry Into a Motor Vehicle. A person commits the crime of
unlawful entry into a motor vehicle if the person enters a motor vehicle,
or any part of a motor vehicle, with the intent to commit a crime. As
used in this section, "enters" includes, but is not limited to, inserting
any part of the body or any object connected with the body.
Section 7. Section 4.922 is added to the Eugene Code, 1971 to provide:
4.922 Failure to Report as a Sex Offender. A person who is required to report
as a sex offender and who has knowledge of the reporting requirement
commits the crime of failure to report as a sex offender if the person
fails to:
(1) Report following a change of residence, school enrollment or
employment if the crime for which the person is required to report
is a misdemeanor;
(2) Make an annual report; or
(3) Provide complete and accurate information,
within the time and in the manner required by state statute and
administrative rule.
Section 8. The matrix of Subsection (1) of Section 4.990 of the Eugene Code,
1971, is amended by adding penalties for violation of the provisions of Sections 4.710,
Ordinance - 3
4.728, 4.822, 4.880, 4.882, and 4.922 of that Code, in numerical order therein, to
provide:
4.990 Penalties - Specific.
(1) Violation of the following sections is punishable by fine or confinement
in jail, or both, up to the amounts indicated opposite each:
Section Penalty
4.710 1,000 fine or 100 days in jail, or both
4.728 2,500 fine or 100 days in jail, or both
4.822(1) 500 fine or 30 days in jail, or both
4.822(2) 1,000 fine or 6 months in jail, or both
4.880 500 fine or 30 days in jail, or both
4.882 1,000 fine or 6 months in jail, or both
4.922 1,000 fine or 100 days in jail, or both
Section 9. The City Recorder, at the request of, or with the concurrence of the
City Attorney, is authorized to administratively correct any reference errors contained
herein or in other provisions of the Eugene Code, 1971, to the provisions added,
amended or repealed herein.
Passed by the City Council this Approved by the Mayor this
~ day of ,2005. ~ day of ,2005.
City Recorder Mayor
Ordinance - 4