Or. Admin. Code § 407-007-0281

Current through Register Vol. 63, No. 12, December 1, 2024

Section 407-007-0281 - Potentially Disqualifying Convictions

A conviction of any of the following crimes is potentially disqualifying. However, offenses or convictions that are classified as less than a misdemeanor, such as violations or infractions, are not potentially disqualifying (see ORS 161.505 to 161.565).

(1) Pursuant to OAR 125-007-0270, any conviction of a misdemeanor or felony in any jurisdiction, a U.S. military crime, or an international crime is a permanent review crime for the following:

(a) An SI associated with Department Child Welfare adoptive and foster homes subject to criminal records checks under OAR 413-120-0400 to 413-120-0475.

(b) An SI who is an employee, contractor or volunteer for a Department Child Welfare licensed child caring agency governed by OAR chapter 419 division 400.

(c) An SI, as listed in OAR 407-007-0210(12)(a)(H) associated with a child adoptive or foster home licensed by a child caring agency governed by OAR chapter 419 division 400.

(2) Potentially disqualifying convictions for SIs subject to ORS 475 A and OAR 333-333-4100 include section (3) of this rule with the following exceptions:

(a) BCU may not consider the following for SIs applying for license or renewal of license:

(A) The manufacture of psilocybin or the manufacture of a marijuana item, as defined in ORS 475C.009, if:

(i) The date of the conviction is two or more years before the submission date of the application; and

(ii) The SI has not been convicted more than once for the manufacture of psilocybin or a marijuana item; or

(B) The possession of a controlled substance, as defined in ORS 475.005, or a marijuana item, as defined in ORS 475C.009, if:

(i) The date of the conviction is two or more years before the date of the application; or

(ii) The person has not been convicted more than once for the possession of a controlled substance or a marijuana item.

(b) BCU may only consider the following for SIs applying for a permit or renewal of a permit:

(A) Any felony conviction; or

(B) Any felony or misdemeanor conviction under OAR ORS 475A.210 to 475A.722 if the date of the conviction is less than two years before the date of the application or renewal.

(3) For all other SIs subject to these rules:

(a) The crimes listed in this section are permanent review crimes which require that a fitness determination with a weighing test be completed regardless of date of conviction.

(A) ORS 163.095, Aggravated murder

(B) ORS 163.107, Murder I

(C) ORS 163.115, Murder II

(D) ORS 163.118, Manslaughter I

(E) ORS 163.125, Manslaughter II

(F) ORS 163.145, Criminally negligent homicide

(G) ORS 163.149, Aggravated vehicular homicide

(H) ORS 163.165, Assault III

(I) ORS 163.175, Assault II

(J) ORS 163.185, Assault I

(K) ORS 163.187, Strangulation

(L) ORS 163.200, Criminal mistreatment II

(M) ORS 163.205, Criminal mistreatment I

(N) ORS 163.225, Kidnapping II

(O) ORS 163.235, Kidnapping I

(P) ORS 163.263, Subjecting another person to involuntary servitude in the second degree

(Q) ORS 163.264, Subjecting another person to involuntary servitude in the first degree

(R) ORS 163.266, Trafficking in persons

(S) ORS 163.275, Coercion

(T) ORS 163.355, Rape III

(U) ORS 163.365, Rape II

(V) ORS 163.375, Rape I

(W) ORS 163.385, Sodomy III

(X) ORS 163.395, Sodomy II

(Y) ORS 163.405, Sodomy I

(Z) ORS 163.408, Unlawful sexual penetration II

(AA) ORS 163.411, Unlawful sexual penetration I

(BB) ORS 163.413, Purchasing sex with a minor, if the courts designate the offense as a sex crime pursuant to ORS 163.413(3)(d), or the offense is the defendant's second or subsequent convictions under ORS 163.413(3)(b)(B)

(CC) ORS 163.415, Sexual abuse III

(DD) ORS 163.425, Sexual abuse II

(EE) ORS 163.427, Sexual abuse I

(FF) ORS 163.432, Online sexual corruption of a child in the second degree, if the offender reasonably believed the child to be more than five years younger than the offender

(GG) ORS 163.433, Online sexual corruption of a child in the first degree, if the offender reasonably believed the child to be more than five years younger than the offender

(HH) ORS 163.435, Contributing to the sexual delinquency of a minor

(II) ORS 163.445, Sexual misconduct, if the offender is at least 18 years of age

(JJ) ORS 163.465, Public indecency

(KK) ORS 163.467, Private indecency

(LL) ORS 163.525, Incest, with a child victim

(MM) ORS 163.535, Abandonment of a child

(NN) ORS 163.537, Buying or selling a person under 18 years of age

(OO) ORS 163.547, Child neglect I

(PP) ORS 163.670, Using child in display of sexually explicit conduct

(QQ) ORS 163.680, Paying for viewing a child's sexually explicit conduct

(RR) ORS 163.684, Encouraging child sexual abuse I

(SS) ORS 163.686, Encouraging child sexual abuse II

(TT) ORS 163.687, Encouraging child sexual abuse III

(UU) ORS 163.688, Possession of materials depicting sexually explicit conduct of a child I

(VV) ORS 163.689, Possession of materials depicting sexually explicit conduct of a child II

(WW) ORS 163.700, Invasion of personal privacy II

(XX) ORS 163.701, Invasion of personal privacy I

(YY) ORS 163A.005, All crimes listed in definition of "Sex Crime," including Transporting child pornography into the state

(ZZ) ORS 164.055, Theft I

(AAA) ORS 164.057, Aggravated theft I

(BBB) ORS 164.098, Organized retail theft

(CCC) ORS 164.125, Theft of services

(DDD) ORS 164.215, Burglary II

(EEE) ORS 164.225, Burglary I

(FFF) ORS 164.325, Arson I

(GGG) ORS 164.377, Computer crime

(HHH) ORS 164.405, Robbery II

(III) ORS 164.415, Robbery I

(JJJ) ORS 165.013, Forgery I

(KKK) ORS 165.022, Criminal possession of a forged instrument I

(LLL) ORS 165.032, Criminal possession of a forgery device

(MMM) ORS 165.800, Identity theft

(NNN) ORS 165.803, Aggravated identity theft

(OOO) ORS 167.012, Promoting prostitution

(PPP) ORS 167.017, Compelling prostitution

(QQQ) ORS 167.057, Luring a minor

(RRR) ORS 167.320, Animal abuse I

(SSS) ORS 167.322, Aggravated animal abuse I

(TTT) ORS 167.333, Sexual assault of animal

(UUU) ORS 475.752(1), (2) and (6), Prohibited acts generally (regarding delivery and manufacture drug crimes; formerly ORS 475.840, 2005-2011)

(VVV) ORS 475.806, Unlawful manufacture of hydrocodone

(WWW) ORS 475.808, Unlawful manufacture of hydrocodone within 1,000 feet of school

(XXX) ORS 475.810, Unlawful delivery of hydrocodone

(YYY) ORS 475.812, Unlawful delivery of hydrocodone within 1,000 feet of school

(ZZZ) ORS 475.816, Unlawful manufacture of methadone

(AAAA) ORS 475.818, Unlawful manufacture of methadone within 1,000 feet of school

(BBBB) ORS 475.820, Unlawful delivery of methadone

(CCCC) ORS 475.822, Unlawful delivery of methadone within 1,000 feet of school

(DDDD) ORS 475.826, Unlawful manufacture of oxycodone

(EEEE) ORS 475.828, Unlawful manufacture of oxycodone within 1,000 feet of school

(FFFF) ORS 475.830, Unlawful delivery of oxycodone

(GGGG) ORS 475.832, Unlawful delivery of oxycodone within 1,000 feet of school

(HHHH) ORS 475.840(1) and (2), Prohibited acts generally (regarding delivery and manufacture drug crimes formerly ORS 475.992; renumbered to ORS 475.752 in 2011)

(IIII) ORS 475.846, Unlawful manufacture of heroin

(JJJJ) ORS 475.848, Unlawful manufacture of heroin within 1,000 feet of school

(KKKK) ORS 475.850, Unlawful delivery of heroin

(LLLL) ORS 475.852, Unlawful delivery of heroin within 1,000 feet of school

(MMMM) ORS 475.866, Unlawful manufacture of 3,4-methylenedioxymethamphetamine

(NNNN) ORS 475.868, Unlawful manufacture of 3,4-methylenedioxymethamphetamine within 1,000 feet of school

(OOOO) ORS 475.870, Unlawful delivery of 3,4-methylenedioxymethamphetamine

(PPPP) ORS 475.872, Unlawful delivery of 3,4-methylenedioxymethamphetamine within 1,000 feet of school

(QQQQ) ORS 475.876, Unlawful manufacture of cocaine

(RRRR) ORS 475.878, Unlawful manufacture of cocaine within 1,000 feet of school

(SSSS) ORS 475.880, Unlawful delivery of cocaine

(TTTT) ORS 475.882, Unlawful delivery of cocaine within 1,000 feet of school

(UUUU) ORS 475.886, Unlawful manufacture of methamphetamine

(VVVV) ORS 475.888, Unlawful manufacture of methamphetamine within 1,000 feet of school

(WWWW) ORS 475.890, Unlawful delivery of methamphetamine

(XXXX) ORS 475.892, Unlawful delivery of methamphetamine within 1,000 feet of school

(YYYY) ORS 475.904, Unlawful delivery of controlled substance within 1,000 feet of school

(ZZZZ) ORS 475.906, Penalties for distribution to minors

(AAAAA) ORS 475.908, Causing another person to ingest a controlled substance

(BBBBB) ORS 475.910, Application of controlled substance to the body of another person

(CCCCC) ORS 475.912, Unlawful delivery of imitation controlled substance

(DDDDD) ORS 475.914, Prohibited acts for registrants (with the Oregon State Board of Pharmacy)

(EEEEE) ORS 475C.333, Prohibition against giving marijuana item as prize

(FFFFF) ORS 475C.345, Unlawful delivery of marijuana item

(GGGGG) ORS 475C.349, Unlawful manufacture of marijuana item

(HHHHH) 475C.369 Administration to another person under 18 years of age

(IIIII) ORS 475C.373, Unlawful sale or delivery of marijuana paraphernalia

(JJJJJJ) Or Law 2021 Ch. 542 Sec. 41, Unlawful production of marijuana (to be repealed 1/1/2024)

(KKKKK) Any crime of attempt, solicitation, or conspiracy to commit a crime listed in this section pursuant to ORS 161.405, 161.435, or 161.450

(LLLLL) Any crime in any other jurisdiction that is the substantial equivalent of any of the Oregon crimes listed in section (3)(a) of this rule, as determined by BCU. This includes any U.S. military crimes which are the substantial equivalent of crimes listed in section (3)(a) of this rule.

(b) The crimes listed in this section are ten-year review crimes which require that a fitness determination with a weighing test be completed if the date of conviction is within ten years of the background check submission.

(A) Any misdemeanor or felony not listed in section (3)(a) or (3)(c) of this rule in Oregon or any other jurisdiction. This includes U.S. military crimes not considered to be the substantial equivalent of crimes listed in section (3)(a) of this rule.

(B) Any crime of attempt, solicitation, or conspiracy to commit a crime pursuant to ORS 161.405 or 161.435, or 161.450 included in section (3)(b).

(c) Two or more convictions of ORS 813.010 (Driving under the Influence of Intoxicants (DUII)) or 830.325 (Operating Boat while under Influence of Intoxicants) or a misdemeanor conviction under a law in any jurisdiction that imposes criminal penalties for operating a vehicle or boat while under the influences of intoxicants, are potentially disqualifying if they have occurred within five years of the date of the background check submission.

(A) A single conviction of a crime in section (3)(c) is not considered potentially disqualifying regardless of the date of conviction.

(B) If an SI has two or more convictions of a crime in section (3)(c) and only one, or none, occurred within five years from the date of the background check submission, the convictions are not potentially disqualifying.

(4) Evaluations of crimes may be based on available information in Oregon laws and laws in other jurisdictions regarding the crime.

(5) Under no circumstances may a crime be considered potentially disqualifying if it is:

(a) Related to marijuana if the crime is no longer a criminal offense in the originating jurisdiction.

(b) Part of a juvenile record that has been expunged pursuant to ORS 419A.260 to 419A.262.

(c) Part of an adult record that has been set aside pursuant to ORS 137.225.

Or. Admin. Code § 407-007-0281

DHSD 18-2019, temporary adopt filed 09/26/2019, effective 09/27/2019 through 03/24/2020; DHSD 19-2019, temporary adopt filed 10/01/2019, effective 10/1/2019 through 3/24/2020; DHSD 2-2020, adopt filed 02/10/2020, effective 2/10/2020; DHS 7-2021, temporary amend filed 06/25/2021, effective 6/25/2021 through 12/21/2021; DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021; DHS 2-2022, minor correction filed 03/02/2022, effective 3/2/2022; DHS 1-2023, amend filed 01/27/2023, effective 2/1/2023

Statutory/Other Authority: ORS 181A.195 & ORS 409.050

Statutes/Other Implemented: ORS 181A.195, 475A.250 & 475A.483