72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1540
Senate Bill 302
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon
District Attorneys Association)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires person petitioning for driving while under the
influence of intoxicants diversion agreement to file guilty plea
as part of petition. Requires person to agree to pay attorney
fees. Extends time for filing petition. Provides for court entry
of guilty plea if diversion is terminated.
A BILL FOR AN ACT
Relating to driving while under the influence of intoxicants
diversion; creating new provisions; and amending ORS 813.200,
813.210, 813.225, 813.230 and 813.255.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 813.200 is amended to read:
813.200. (1) The court shall inform at arraignment a defendant
charged with the offense of driving while under the influence of
intoxicants as defined in ORS 813.010 or a city ordinance
conforming thereto that a diversion agreement may be available if
the defendant meets the criteria set out in ORS 813.215 and files
with the court a petition for a driving while under the influence
of intoxicants diversion agreement.
(2) The petition forms for a driving while under the influence
of intoxicants diversion agreement shall be available to a
defendant at the court.
(3) The form of the petition for a driving while under the
influence of intoxicants diversion agreement and the information
and blanks contained therein shall be determined by the Supreme
Court under ORS 1.525. The petition forms made available to a
defendant by any city or state court shall conform to the
requirements adopted by the Supreme Court.
(4) In addition to any other information required by the
Supreme Court to be contained in a petition for a driving while
under the influence of intoxicants diversion agreement, the
petition shall include:
{ - (a) A waiver by the defendant of the right to speedy
trial or sentencing in any subsequent action upon the charge; - }
{ + (a) A plea of guilty to the charge of driving while under
the influence of intoxicants signed by the defendant; + }
(b) An agreement by the defendant to complete at an agency or
organization designated by the city or state court a diagnostic
assessment to determine the possible existence and degree of an
alcohol or drug abuse problem;
(c) An agreement by the defendant to complete, at defendant's
own expense based on defendant's ability to pay, the program of
treatment indicated as necessary by the diagnostic assessment;
(d) An agreement by the defendant to not use intoxicants in
conjunction with the defendant's operation of a motor vehicle and
to comply fully with the laws of this state designed to
discourage the use of intoxicants in conjunction with motor
vehicle operation;
(e) A notice to the defendant that the diversion agreement will
be considered to be violated if the court receives notice that
the defendant at any time during the diversion period committed
the offense of driving while under the influence of intoxicants
or committed a violation of ORS 811.170;
(f) An agreement by the defendant to keep the court advised of
the defendant's current mailing address at all times during the
diversion period;
(g) A waiver by the defendant of any former jeopardy rights
under the federal and state constitutions and ORS 131.505 to
131.525 in any subsequent action upon the charge or any other
offenses based upon the same criminal episode; { - and - }
(h) A sworn statement, as defined in ORS 162.055, by the
defendant certifying that the defendant meets the criteria set
out in ORS 813.215 to be eligible to enter into the driving while
under the influence of intoxicants diversion agreement { - . - }
{ + ; and
(i) An agreement by the defendant to pay attorney fees as
determined by the court. + }
SECTION 2. ORS 813.210 is amended to read:
813.210. (1) After an accusatory instrument has been filed
charging the defendant with the offense of driving while under
the influence of intoxicants, a defendant may file with the court
a petition for a driving while under the influence of intoxicants
diversion agreement described in ORS 813.200. The petition:
(a) Must be filed within { - 30 - } { + 60 + } days after
the date of the defendant's first appearance on the summons,
unless { - a later filing date is allowed by the court upon a
showing of good cause - } { + the district attorney or the city
attorney specifically consents to an extension of the time + }.
(b) Notwithstanding paragraph (a) of this subsection, may not
be filed after entry of a guilty plea or a no contest plea or
after commencement of any trial on the charge whether or not a
new trial or retrial is ordered for any reason.
(2) The defendant shall pay to the court, at the time of filing
a petition for a driving while under the influence of intoxicants
diversion agreement, a filing fee established under ORS 813.240.
The court may make provision for payment of the filing fee by the
defendant on an installment basis. The court may waive all or
part of the filing fee in cases involving indigent defendants.
The filing fee paid to the court under this subsection shall be
retained by the court if the petition is allowed. The filing fee
shall be distributed as provided by ORS 813.240.
(3) The defendant shall pay to the agency or organization
providing the diagnostic assessment, at the time the petition is
allowed, the fee required by ORS 813.240 (2).
(4) The defendant shall cause a copy of the petition for a
driving while under the influence of intoxicants diversion
agreement to be served upon the district attorney or city
attorney. The district attorney or city attorney may file with
the court, within 15 days after the date of service, a written
objection to the petition and a request for a hearing.
SECTION 3. ORS 813.225 is amended to read:
813.225. (1) Within 30 days prior to the end of the period of a
driving while under the influence of intoxicants diversion
agreement described in ORS 813.230, a defendant may apply by
motion to the court in which the diversion agreement was entered
for an order extending the diversion period.
(2) Petition forms for an application for an extension under
this section shall be available to a defendant at the court.
(3) The form of the petition for an extension under this
section shall be determined by the Supreme Court under ORS 1.525.
The petition forms made available to a defendant by any city or
state court shall conform to the requirements of the Supreme
Court.
{ - (4) In addition to any other information required by the
Supreme Court to be contained in a petition for an extension
under this section, the petition must include a plea of guilty to
the charge of driving while under the influence of intoxicants
signed by the defendant. - }
{ - (5) - } { + (4) + } The court may grant a petition for
an extension filed under this section if the court finds that the
defendant made a good faith effort to complete the conditions of
the diversion agreement and that the defendant can complete the
conditions of the diversion agreement within the requested
extended diversion period.
{ - (6) - } { + (5) + } An extension granted under this
section may be for no more than 180 days.
{ - (7) - } { + (6) + } A court may grant a defendant only
one extension of a diversion period under this section.
{ - (8) - } { + (7) + } If the court grants the petition
for an extension under this section, { - the court shall accept
the plea of guilty filed as part of the petition for an extension
but withhold entry of judgment of conviction. If the court
extends the diversion period under this subsection, - } the
following apply:
(a) If the defendant fully complies with the conditions of the
diversion agreement within the extended diversion period, the
court may dismiss the charge with prejudice under ORS 813.250.
(b) If the court finds that the defendant failed to comply with
the diversion agreement within the extended diversion period, the
court shall enter the guilty plea filed as part of the petition
for { - an extension and - } { + a diversion agreement, shall
enter + } a judgment of conviction and shall sentence the
defendant.
{ - (9) - } { + (8) + } If the court denies the petition
for an extension under this section, { + the court shall
enter + } the guilty plea filed as part of the petition for
{ - an extension may not be used in the proceeding on the charge
of driving while under the influence of intoxicants - } { + a
diversion agreement, shall enter a judgment of conviction and
shall sentence the defendant + }.
SECTION 4. ORS 813.230 is amended to read:
813.230. (1) When the court allows a petition for a driving
while under the influence of intoxicants diversion agreement
filed as provided in ORS 813.210, the judge taking that action
shall { + :
(a) Accept the guilty plea filed as part of the petition for a
diversion agreement but withhold entry of a judgment of
conviction; and
(b) + } Sign the petition and indicate thereon the date of
allowance of the diversion period, the length of the diversion
period and the date upon which the driving while under the
influence offense occurred.
{ + (2) + } The petition when signed and dated becomes the
diversion agreement between the defendant and the court. The
court shall make the agreement a part of the record of the case.
The court shall notify the Department of Transportation of the
diversion agreement in a form agreed to by the department and the
State Court Administrator within 48 hours after allowing the
petition. The department shall make the fact of the diversion
agreement a part of the defendant's operating record.
{ - (2) - } { + (3) + } A driving while under the influence
of intoxicants diversion agreement shall be for a period of one
year after the date the court allows the petition. During the
diversion period the court shall stay the driving while under the
influence of intoxicants offense proceeding pending completion of
the diversion agreement or its termination.
{ - (3) - } { + (4) + } When the court denies a petition
for a driving while under the influence of intoxicants diversion
agreement, it shall continue the offense proceeding against the
defendant. { + The guilty plea filed as part of the petition for
the diversion agreement may not be used in the offense proceeding
under this subsection. + }
SECTION 5. ORS 813.255 is amended to read:
813.255. (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
defendant to appear and show cause why the court should not
terminate the diversion agreement. The order to show cause shall
state the reasons for the proposed termination and shall 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) The court shall terminate the diversion agreement and
{ - continue the offense proceeding - } { + enter the guilty
plea that was filed as part of the petition for the diversion
agreement + } if:
(a) At the hearing on the order to show cause, the court finds
by a preponderance of the evidence that any of the reasons for
termination described in this section exist; or
(b) The defendant fails to appear at the hearing on the order
to show cause.
(4) If the court terminates the diversion agreement and
{ - continues the offense proceeding - } { + enters the
guilty plea + }, the court { - : - }
{ - (a) On defendant's motion and for good cause shown, may
reinstate the diversion agreement at any time before conviction,
acquittal or dismissal with prejudice. - }
{ - (b) If defendant is convicted, - } may take into account
at time of sentencing any partial fulfillment by the defendant of
the terms of the diversion agreement.
(5) The court shall terminate a diversion agreement under this
{ - subsection - } { + section + } for any of the following
reasons:
(a) { - If - } The defendant { - has failed - }
{ + fails + } to fulfill the terms of the diversion agreement.
(b) { - If - } The defendant { - did - } { + does + }
not qualify for the diversion agreement under the criteria in ORS
813.215.
SECTION 6. { + (1) The amendments to ORS 813.200, 813.210,
813.225, 813.230 and 813.255 by sections 1 to 5 of this 2003 Act,
apply only to petitions for driving while under the influence of
intoxicants diversion agreements filed on and after the effective
date of this 2003 Act.
(2) The provisions of ORS 813.225 in effect on the day before
the effective date of this 2003 Act apply to a person who files a
petition under ORS 813.225 to extend a diversion agreement that
was entered into prior to the effective date of this 2003
Act. + }
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