ORS 164.354: Criminal Mischief 2 Penalties and Defenses

Under ORS 164.354, criminal mischief in the second degree is a Class A misdemeanor in Oregon that covers two kinds of property damage: intentionally damaging someone else’s property in any amount, or recklessly causing damage that exceeds $500. A conviction carries up to 364 days in county jail, fines up to $6,250, and mandatory restitution to the property owner.¹²

What the Statute Prohibits

ORS 164.354 sets out two separate routes to the same charge, and the proof requirements differ depending on which one the prosecutor uses.

Intentional or Reckless Damage Without Authorization

The direct pathway applies when you have no right to damage someone’s property and no reasonable basis to believe you do. Intentional damage triggers the charge at any dollar amount. Reckless damage triggers it only when the total exceeds $500.¹

Oregon defines recklessness as being aware of a substantial and unjustifiable risk of damage and consciously ignoring it, in a way that grossly deviates from how a reasonable person would act. A genuine accident, where you had no awareness of the risk, falls outside that definition. Ordinary carelessness does too. The gap between “should have been more careful” and “knew the risk and went ahead” is where many of these cases are fought.³

Elevated Third-Degree Conduct

The second pathway is an upgrade. Third-degree criminal mischief covers tampering with someone else’s property to cause substantial inconvenience, without authorization.⁴ On its own, that’s a Class C misdemeanor. When the tampering results in more than $500 in damage, the charge steps up to second degree.

“Property of Another” Includes Property You Co-Own

Oregon defines “property of another” as any property in which someone other than the accused has a legal or equitable interest that the accused has no right to defeat or impair. You can be charged even if you also own the item. Smashing a window in a co-owned vehicle or destroying fixtures in a jointly leased apartment qualifies, because the other owner or tenant holds an interest you have no right to damage.⁵

Where Second Degree Fits Between the Other Charges

Oregon splits criminal mischief into three degrees, and the boundaries matter if you’re trying to figure out whether the charge is correct.

Third degree (ORS 164.345): tampering with another person’s property without authorization. Class C misdemeanor.⁴
Second degree (ORS 164.354): intentional unauthorized damage in any amount, or reckless damage over $500, or third-degree conduct causing over $500 in damage. Class A misdemeanor.¹
First degree (ORS 164.365): intentional damage over $1,000, damage caused with explosives, or damage to certain protected property (utilities, railroads, medical facilities, telecommunications carriers, livestock). Class C felony.⁶

One detail worth catching: first-degree criminal mischief requires intent to damage. Reckless damage of $1,500 doesn’t automatically become a felony. It stays a second-degree charge because the first-degree statute specifically requires intentional conduct.

Penalties for a Conviction

Class A is Oregon’s most serious misdemeanor tier.

Jail: up to 364 days in county jail.²
Fines: up to $6,250.⁷
Probation: up to five years, with conditions the court can set, including substance abuse evaluation, regular check-ins with a probation officer, and restrictions on travel outside Oregon.⁸

There’s also a lesser-known enhancement. If the court finds you profited from the offense, it can impose a fine up to double your gain instead of the $6,250 cap.⁷ This comes up when damage was tied to stealing materials or stripping parts.

Restitution Is Mandatory and Separate

On top of any fine or jail time, Oregon requires courts to order restitution to victims whenever a crime causes economic damages. The statute says the court “shall” order restitution equal to the full amount of the victim’s losses. It isn’t discretionary. Repair bills, replacement costs, and documented business estimates are all presumed reasonable as evidence of damages.⁹

A court can only reduce restitution below the full amount if the victim consents. If the prosecutor can’t present restitution evidence at sentencing, they have 90 days to file a motion for a supplemental judgment, which the court can extend for good cause. The financial hit can arrive well after sentencing. You have the right to challenge the amount, but the burden is steep when the victim shows up with documented bills.⁹

Defenses Built Into the Statute

Claim of Right

The statute itself requires the state to prove you had “no right” and “no reasonable ground to believe” you had the right to damage the property.¹ If you genuinely and reasonably believed you had permission — say a landlord told you to pull out old shelving and you damaged the wall doing it — the prosecution has to disprove that belief. It doesn’t have to be legally correct. It has to be reasonable under the circumstances.

The Wrong Mental State

For intentional damage, the state must prove you acted with a conscious objective to cause damage. For reckless damage, the state must prove you were aware of a substantial risk and consciously ignored it.³ Ordinary carelessness, even expensive carelessness, doesn’t meet Oregon’s recklessness standard.

Damage Under $500

Where the charge is built on the reckless-damage pathway, the $500 threshold is an element the state must prove. Defense attorneys often challenge inflated estimates, especially when the prosecutor relies on a single repair quote rather than the item’s fair market value. Damage at or below $500 belongs in third degree at most.

What a Conviction Follows You With

The jail sentence and fine are the visible penalties. The record is the one that lingers. A Class A misdemeanor conviction can appear on employment background checks, housing applications, and professional licensing reviews for years, and licensing boards in fields like healthcare, pharmacy, education, and real estate routinely ask about misdemeanor convictions on every renewal.

Setting the Conviction Aside

Oregon allows people to apply to have certain convictions set aside, the state’s version of expungement. For a Class A misdemeanor, you must wait at least three years from the date of conviction or your release from any jail time, whichever comes later. You must have fully completed your sentence, including probation, and you cannot have any other convictions (excluding traffic violations) within the three years before filing.¹⁰

If your probation was revoked at any point, the waiting period extends to three years from the revocation date or the standard eligibility date, whichever is later. The process requires submitting fingerprints to the Department of State Police and filing a motion in the court where you were convicted. A set-aside removes the conviction from most public background checks and lets you legally state you were not convicted in most employment contexts.¹⁰

Civil Liability Is a Separate Track

A criminal conviction for property damage doesn’t block the property owner from also suing you in civil court. The two proceedings are separate, and civil cases use a lower standard of proof (preponderance of evidence) than criminal cases (beyond a reasonable doubt). A criminal conviction often makes the civil case straightforward for the owner because the facts have already been established. Oregon generally allows up to six years to file a civil lawsuit for property damage, and where the damage was intentional, a court may also award punitive damages on top of the repair or replacement value. A civil judgment can cover categories of loss that restitution might not fully address, like lost use of the property or diminished value.

1
Oregon State Legislature. Oregon Revised Statutes 164.354 – Criminal Mischief in the Second Degree
2
Oregon Public Law. Oregon Code 161.615 – Maximum Terms of Imprisonment for Misdemeanors
3
Oregon State Legislature. Oregon Revised Statutes 161.085 – Definitions With Respect to Culpability
4
Oregon State Legislature. Oregon Revised Statutes 164.345 – Criminal Mischief in the Third Degree
5
Oregon State Legislature. Oregon Revised Statutes 164.305 – Definitions for ORS 164.305 to 164.377
6
Oregon State Legislature. Oregon Revised Statutes 164.365 – Criminal Mischief in the First Degree
7
Oregon State Legislature. Oregon Revised Statutes 161.635 – Fines for Misdemeanors
8
Oregon State Legislature. Oregon Revised Statutes Chapter 137 – Judgment and Execution
9
Oregon Public Law. Oregon Code 137.106 – Restitution to Victims; Objections by Defendant
10
Oregon State Legislature. Oregon Revised Statutes 137.225 – Order Setting Aside Conviction or Record of Criminal