2007 ORS § 813.215¹

Eligibility for diversion

(1) A defendant is eligible for diversion if the defendant meets all of the following conditions:

(a) On the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement, the defendant had no charge, other than the charge for the present offense, pending for:

(A) An offense of driving while under the influence of intoxicants in violation of:

(i) ORS 813.010 (Driving under the influence of intoxicants); or

(ii) The statutory counterpart to ORS 813.010 (Driving under the influence of intoxicants) in another jurisdiction;

(B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving of a vehicle due to the use of intoxicating liquor, a controlled substance, an inhalant or any combination thereof; or

(C) A driving offense in another jurisdiction that involved operating a vehicle while having a blood alcohol content above that jurisdiction’s permissible blood alcohol content.

(b) The defendant has not been convicted of an offense described in paragraph (a) of this subsection within the period beginning 10 years before the date of the commission of the present offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement.

(c) The defendant has not been convicted of a felony offense described in ORS 813.010 (Driving under the influence of intoxicants) (5)(a).

(d) The defendant was not participating in a driving while under the influence of intoxicants diversion program or in any similar alcohol or drug rehabilitation program, other than a program entered into as a result of the charge for the present offense, in this state or in another jurisdiction on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement.

(e) The defendant did not participate in a diversion or rehabilitation program described in paragraph (d) of this subsection, other than a program entered into as a result of the charge for the present offense, within the period beginning 10 years before the date of the commission of the present offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement.

(f) The defendant had no charge of an offense of aggravated vehicular homicide or of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle pending in this state or in another jurisdiction on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement.

(g) The defendant has not been convicted of an offense described in paragraph (f) of this subsection within the period beginning 10 years before the date of the commission of the present offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement.

(h) The defendant did not hold a commercial driver license on the date of the commission of the offense.

(i) The defendant was not operating a commercial motor vehicle at the time of the offense.

(j) The present driving while under the influence of intoxicants offense did not involve an accident resulting in:

(A) Death of any person; or

(B) Physical injury as defined in ORS 161.015 (General definitions) to any person other than the defendant.

(2) For the purposes of subsection (1)(a) of this section, a conviction for a driving offense in another jurisdiction based solely on a person under 21 years of age having a blood alcohol content that is lower than the permissible blood alcohol content in that jurisdiction for a person 21 years of age or older does not constitute a prior conviction. [1987 c.441 §3; 1997 c.749 §5; 1999 c.445 §1; 1999 c.1051 §295; 2005 c.649 §29; 2007 c.122 §11; 2007 c.867 §14; 2007 c.879 §10]

Notes of Decisions

Under this sec­tion, per­son who has participated in driving under influence diversion program in last 10 years is disqualified from an­oth­er diversion even if pre­vi­ous program did not include drug or alcohol component. State v. Underwood, 91 Or App 668, 756 P2d 72 (1988), Sup Ct review denied

Court should not have used con­vic­­tion as basis for mandatory denial of diversion where there was complete absence of any evidence that defendant voluntarily and intelligently waived right to counsel at time of that con­vic­­tion. State v. Manfredonia, 105 Or App 537, 805 P2d 738 (1991)

Participa­tion in "similar drug or alcohol rehabilita­tion program" includes program participa­tion ordered for reasons other than DUII con­vic­­tion. State v. Dunbrasky, 122 Or App 90, 856 P2d 1054 (1993); State v. Young, 196 Or App 708, 103 P3d 1180 (2004), Sup Ct review denied

Drug or alcohol rehabilita­tion program may be "similar" to diversion program, notwithstanding that sanc­tion avoided through attending rehabilita­tion program was not crim­i­nal in nature. State v. Wright, 204 Or App 724, 131 P3d 838 (2006)

Notes of Decisions

Effect of defendant's pre­vi­ous participa­tion in diversion program is not affected by whether or not he acted on counsel's advice. State v. Maynard, 85 Or App 631, 738 P2d 210 (1987), Sup Ct review denied

Law Review Cita­tions

20 WLR 319 (1984)


1 Legislative Counsel Committee, CHAPTER 813—Driving Under the Influence of Intoxicants, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­813.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 813, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­813ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.