2015 ORS 813.255¹
Termination of diversion

(1) At any time before the court dismisses with prejudice the charge of driving while under the influence of intoxicants, the court on its own motion or on the motion of the district attorney or city attorney may issue an order requiring the defendant to appear and show cause why the court should not terminate the diversion agreement. The order to show cause must:

(a) State the reasons for the proposed termination;

(b) Specify the amount of any fees owed and, if the amount owed is $500 or less, inform the defendant that the court may dismiss with prejudice the charge of driving while under the influence of intoxicants if the person has complied with and performed all of the conditions of the diversion agreement and pays the remaining amount before or on the date of the hearing; and

(c) Set an appearance date.

(2) The order to show cause shall be served on the defendant and on the defendant’s attorney, if any. Service may be made by first class mail, postage paid, addressed to the defendant at the mailing address shown on the diversion petition and agreement or at any other address that the defendant provides in writing to the court.

(3) Except as provided in subsections (4), (5) and (6) of this section, the court shall terminate the diversion agreement and enter the guilty plea or no contest plea that was filed as part of the petition for the diversion agreement if the defendant fails to appear at the hearing on the order to show cause or if, at the hearing on the order to show cause, the court finds by a preponderance of the evidence that:

(a) The defendant no longer qualifies for the diversion agreement under the conditions described in ORS 813.215 (Eligibility for diversion); or

(b) The defendant failed to fulfill all of the terms of the diversion agreement.

(4) If a defendant is a member of the Armed Forces of the United States, the reserve components of the Armed Forces of the United States or the National Guard and is on active duty, the court shall:

(a) Allow the defendant to appear at the hearing by telephone or other communication device approved by the court, if the defendant’s military service permits such an appearance; or

(b) Stay the termination proceeding if the defendant’s military service prohibits the defendant’s appearance by telephone or other communication device and prohibits the defendant from aiding and assisting the attorney who would appear on the defendant’s behalf.

(5) If the defendant appears at the hearing on the order to show cause, the court shall dismiss with prejudice the charge of driving while under the influence of intoxicants if:

(a) The defendant has complied with and performed all of the conditions of the diversion agreement except that the defendant owes $500 or less of the fees required under ORS 813.200 (Notice of availability of diversion), 813.210 (Petition), 813.235 (Attendance at victim impact treatment session as condition of diversion) and 813.240 (Amount and distribution of filing fee); and

(b) The defendant pays the balance of the fees owed by 5 p.m. on the day the hearing is held. The defendant may also pay the balance of the fees owed before the day the hearing is held.

(6) A court may not terminate a diversion agreement under this section for failure to pay restitution under ORS 137.108 (Restitution when defendant has entered into diversion agreement) if the defendant has otherwise complied with and performed all of the conditions of the diversion agreement.

(7) Before the court dismisses with prejudice the charge of driving while under the influence of intoxicants under this section, the court shall enter a judgment containing a money award, as defined in ORS 18.005 (Definitions), for any remaining amount of restitution owed by the defendant.

(8) If the court terminates the diversion agreement and enters the guilty plea or no contest plea, the court may take into account at time of sentencing any partial fulfillment by the defendant of the terms of the diversion agreement. [1987 c.441 §9; 2003 c.816 §5; 2011 c.197 §3; 2013 c.78 §1]

Notes of Decisions

Failure to appear at hearing on termina­tion of diversion agree­ment is failure to appear in connec­tion with charge as de­scribed in ORS 162.195 (Failure to appear in the second degree). State v. McCoin, 193 Or App 623, 91 P3d 760 (2004)

Where defendant fails to comply fully with terms of diversion agree­ment, court may not dismiss charge or dec­line to revoke agree­ment. State v. Vargas-Garcia, 217 Or App 70, 174 P3d 1046 (2007)

Failure to fully pay diversion filing fee is failure to fulfill terms of diversion agree­ment. State v. Reed, 241 Or App 47, 249 P3d 557 (2011), Sup Ct review denied

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.