2015 ORS 813.215¹
Eligibility for diversion

Caution-flag-2-25x25
This section is amended
Effective March 3, 2016
Relating to cannabis; creating new provisions; amending ORS 90.396, 305.620, 316.680, 419C.239, 419C.420, 419C.443, 471.001, 471.775, 475.245, 475.752, 475.856, 475.858, 475.860, 475.862, 475.864, 475.898, 475B.015, 475B.063, 475B.070, 475B.075, 475B.090, 475B.100, 475B.110, 475B.150, 475B.160, 475B.185, 475B.218, 475B.235, 475B.245, 475B.250, 475B.255, 475B.340, 475B.375, 475B.415, 475B.420, 475B.428, 475B.435, 475B.443, 475B.450, 475B.705, 475B.710, 475B.760, 475B.800, 809.265 and 813.215 and section 3, chapter 20, Oregon Laws 2015; repealing ORS 475B.120, 475B.285 and 811.481 and sections 173 and 175b, chapter 614, Oregon Laws 2015; and declaring an emergency.

(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 15 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 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. A defendant is not ineligible for diversion under this paragraph by reason of participation in a diversion program or any similar alcohol or drug rehabilitation program as a result of the charge for the present offense, a charge for violation of ORS 471.430 (Purchase or possession of alcoholic beverages by person under 21) or a charge for violation of ORS 475.864 (Unlawful possession of marijuana or marijuana product) (3).

(e) The defendant did not participate in a diversion or rehabilitation program described in paragraph (d) of this subsection within the period beginning 15 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. A defendant is not ineligible for diversion under this paragraph by reason of participation in a diversion program or rehabilitation program described in paragraph (d) of this subsection as a result of the charge for the present offense, a charge for violation of ORS 471.430 (Purchase or possession of alcoholic beverages by person under 21) or a charge for violation of ORS 475.864 (Unlawful possession of marijuana or marijuana product) (3).

(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 15 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 commercial driving privileges 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.

(3) A defendant is eligible for a second or subsequent diversion if the defendant meets all of the conditions of subsection (1) of this section and the defendant has not been convicted of any other criminal offense involving a motor vehicle within the period beginning 15 years before the date of the commission of the present offense and ending on the date the defendant filed the petition for the second or subsequent driving while under the influence of intoxicants diversion agreement. [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; 2009 c.515 §1; 2013 c.134 §1; 2013 c.237 §28]

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; State v. Lagrassa, 235 Or App 150, 230 P3d 96 (2010), 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)

Person who holds, but is not qualified to use, commercial driver license is barred from entering diversion program. State v. Orueta, 343 Or 118, 164 P3d 267 (2007)

Barring commercial drivers from entering diversion program available to noncommercial drivers does not violate constitu­tional guarantee of equal protec­tion. State v. Orueta, 343 Or 118, 164 P3d 267 (2007)

Statute of other jurisdic­tion may be "statutory counterpart" of Oregon statute for driving under influence of intoxicants if statutes share sufficient common uses, roles and characteristics, despite possible difference in substantive scope. State v. Rawleigh, 222 Or App 121, 192 P3d 292 (2008)

Diversion program means all special and general condi­tions that, if satisfied, permit defendant to avoid con­vic­­tion. State v. Ellis, 224 Or App 478, 199 P3d 359 (2008), Sup Ct review denied

Participa­tion in diversion or rehabilita­tion program requires interactive involve­ment with program. State v. Parker, 235 Or App 40, 230 P3d 55 (2010)

Statutory counterpart to ORS 813.010 (Driving under the influence of intoxicants) in an­oth­er jurisdic­tion may include statutory of­fense involving impaired driving of vehicle due to use of intoxicating liquor or involving opera­tion of vehicle while having impermissible blood alcohol content. State v. Donovan, 243 Or App 187, 256 P3d 196 (2011)

When read with ORS 801.307, this sec­tion makes ineligible for diversion defendant to whom Oregon Depart­ment of Transporta­tion issued commercial driver license where at time of of­fense, license was not expired, cancelled or revoked even though defendant did not meet all require­ments to hold valid license. State v. Crisafi, 271 Or App 267, 350 P3d 519 (2015)

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/­ors813.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 813, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano813.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.