75th OREGON LEGISLATIVE ASSEMBLY--2009 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 1562
 
                         House Bill 2324
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of House Interim Committee on
  Judiciary for Oregon Criminal Defense Lawyers 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.
 
  Grants court discretion to allow persons to enter substance
abuse diversion agreement under certain circumstances. Creates
Substance Abuse Treatment Fund. Continuously appropriates moneys
in fund to Department of Human Services for specified purposes.
 
                        A BILL FOR AN ACT
Relating to substance abuse diversion agreements; creating new
  provisions; amending ORS 1.525; and appropriating money.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) After an accusatory instrument has been
filed charging a defendant with the commission of a crime other
than a person crime or driving while under the influence of
intoxicants as defined in ORS 813.010, the defendant may file
with the court a petition for a substance abuse diversion
agreement described in sections 1 to 6 of this 2009 Act. Upon
receipt of the petition, the court shall determine if a substance
abuse diversion agreement is in the interests of justice and of
benefit to the defendant and the community in accordance with
sections 1 to 6 of this 2009 Act.
  (2) As used in this section, 'person crime' means a person
felony or person Class A misdemeanor, as those terms are defined
in the rules of the Oregon Criminal Justice Commission. + }
  SECTION 2.  { + (1) The petition forms for a substance abuse
diversion agreement shall be available to a defendant at the
court.
  (2) The form of the petition for a substance abuse diversion
agreement and the information and blanks contained in the
petition shall be determined by the Supreme Court under ORS
1.525. The petition forms made available to a defendant by the
court shall conform to the requirements adopted by the Supreme
Court.
  (3) In addition to any other information required by the
Supreme Court to be contained in a petition for a substance abuse
diversion agreement, the petition shall include:
  (a) A plea of guilty or no contest to the primary charge,
signed by the defendant.
  (b) An agreement by the defendant to complete, at the
defendant's own expense based on the defendant's ability to pay,
a substance abuse treatment program designated by the court.
  (c) 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 a
new criminal offense.
  (d) An agreement by the defendant to keep the court advised in
writing of the defendant's current mailing address at all times
during the diversion period.
  (e) A waiver by the defendant of any former jeopardy and speedy
trial rights under the federal and state Constitutions and ORS
131.505 to 131.525 and 135.745 to 135.757 in any subsequent
action upon the charge or any other offenses based upon the same
criminal episode.
  (f) An agreement by the defendant to abide by any additional
orders of the court, including but not limited to payment of
restitution, performance of community service, maintenance of
gainful employment and participation in programs offering
medical, educational, vocational, social and psychological
services, corrective and preventive guidance and other
rehabilitative services.
  (4) The defendant shall cause a copy of the petition for a
substance abuse diversion agreement to be served upon the
district attorney. The district 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.
  (5) The district attorney shall notify the victim, if any, that
the defendant may be eligible for diversion and that if there is
a hearing on a petition for diversion, the victim has a right to
be present and to be heard at the hearing.
  (6) After the time for requesting a hearing under subsection
(4) of this section has expired with no request for a hearing, or
after a hearing if one is requested, the court shall determine
whether to allow or deny a petition for a substance abuse
diversion agreement. In making a determination under this
subsection, the court shall consider:
  (a) The nature of the offense;
  (b) The relationship between the offense and the defendant's
substance abuse addiction;
  (c) Whether there is a probability that the defendant will
cooperate with and benefit from alternative treatment;
  (d) The defendant's criminal history or lack thereof, including
any previous participation in a diversion program;
  (e) Any special characteristics of the defendant;
  (f) The impact of the diversion on the community;
  (g) Recommendations, if any, of the involved law enforcement
agency and the victim; and
  (h) Any mitigating circumstances.
  (7) If, after considering the factors listed in subsection (6)
of this section, the court allows the petition for a substance
abuse diversion agreement, the court shall:
  (a) Accept the guilty plea or no contest plea filed as part of
the petition for a substance abuse diversion agreement but
withhold entry of judgment of conviction;
  (b) Sign the petition and indicate thereon the date of
allowance of the diversion agreement, the length of the diversion
period and the date upon which the offense occurred; and
  (c)(A) Dismiss any remaining charges against the defendant if
the parties have so agreed; and
  (B) Stay the remaining charges for the duration of the
diversion period.
  (8) The petition, when signed and dated, becomes the substance
abuse diversion agreement between the defendant and the court.
The court shall make the diversion agreement a part of the record
of the case.
  (9) A substance abuse diversion agreement shall be in effect
for a period of 12 months after the date the court allows the
petition. During the diversion period the court shall stay the
criminal proceeding pending completion of the diversion agreement
or its termination.
  (10)(a) The defendant shall pay to the court, at the time of
filing a petition for a substance abuse diversion agreement, a
filing fee established under section 6 of this 2009 Act. 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.
  (b) The defendant shall pay to the court any court-appointed
attorney fees imposed by the court. Payments shall be made prior
to the end of the diversion period on a schedule determined by
the court. The court may waive all or part of the court-appointed
attorney fees.
  (11) When the court denies a petition for a substance abuse
diversion agreement, the court shall continue the criminal
proceeding against the defendant. The plea of guilty or no
contest filed as part of the petition for the substance abuse
diversion agreement may not be used in the criminal proceeding.
  (12) As used this section:
  (a) 'Primary charge' means the crime alleged in the accusatory
instrument that carries the longest possible term of
imprisonment. If there is more than one charge that meets this
definition, the district attorney may designate the primary
charge.
  (b) 'Victim' has the meaning given that term in ORS
131.007. + }
  SECTION 3.  { + (1) At the conclusion of the period of a
substance abuse diversion agreement, a defendant who has fully
complied with and performed the conditions of the diversion
agreement may apply by motion to the court in which the diversion
agreement was entered for an order dismissing the accusatory
instrument with prejudice.
  (2) The defendant shall cause to be served on the district
attorney a copy of the motion for entry of an order dismissing
the accusatory instrument with prejudice at the time the motion
is filed with the court. The district attorney may contest the
motion.
  (3) If the court finds the defendant has fully complied with
and performed the conditions of the substance abuse diversion
agreement, the court shall dismiss the accusatory instrument with
prejudice.
  (4) If the defendant does not apply as provided in subsection
(1) of this section within six months after the conclusion of the
diversion period and if the court makes the finding described in
subsection (3) of this section, after notice of that finding is
given to the district attorney, the court may on its own motion
enter an order dismissing the accusatory instrument with
prejudice.
  (5) A statement made by the defendant about the offense with
which the defendant is charged may not be offered or received in
evidence in any criminal or civil action or proceeding arising
out of the same conduct that is the basis of the substance abuse
diversion agreement if the statement was made during the course
of the substance abuse treatment program and to a person employed
by the program.
  (6) At any time before the court dismisses with prejudice the
accusatory instrument, the court on its own motion or on motion
of the district attorney may issue an order requiring the
defendant to appear and show cause why the court should not
terminate the substance abuse diversion agreement. The order to
show cause shall state the reasons for the proposed termination
and shall set an appearance date.
  (7) 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 petition for a substance abuse
diversion agreement or at any other address that the defendant
provides in writing to the court.
  (8) The court shall terminate the substance abuse diversion
agreement if:
  (a) At the hearing on the order to show cause, the court finds
by a preponderance of the evidence that the defendant has failed
to fulfill the terms of the diversion agreement; or
  (b) The defendant fails to appear at the hearing on the order
to show cause.
  (9) If the court terminates the substance abuse diversion
agreement:
  (a) The court shall enter the guilty plea or no contest plea,
enter a judgment of conviction and sentence the defendant. The
court may take into account at the time of the sentencing any
partial fulfillment by the defendant of the terms of the
diversion agreement.
  (b) The court shall resume the criminal proceeding if any
charges were stayed under section 2 of this 2009 Act. + }
  SECTION 4.  { + (1) Within 30 days prior to the conclusion of
the period of a substance abuse diversion agreement, 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 court
shall conform to the requirements of the Supreme Court.
  (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 substance abuse
diversion agreement and that the defendant can complete the
conditions of the diversion agreement within the requested
extended diversion period.
  (5) An extension granted under this section may be for no more
than 180 days.
  (6) A court may grant a defendant only one extension of a
diversion period under this section.
  (7) If the court grants the petition for an extension under
this section and the defendant fully complies with the conditions
of the substance abuse diversion agreement within the extended
diversion period, the court may dismiss the accusatory instrument
with prejudice under section 3 of this 2009 Act.
  (8) If the court denies the petition for an extension under
this section:
  (a) The court shall enter the guilty plea or no contest plea,
enter a judgment of conviction and sentence the defendant. The
court may take into account at the time of the sentencing any
partial fulfillment by the defendant of the terms of the
diversion agreement.
  (b) The court shall resume the criminal proceeding if any
charges were stayed under section 2 of this 2009 Act. + }
  SECTION 5.  { + (1) Each judicial district in this state shall
designate agencies or organizations to administer the substance
abuse treatment program required under the substance abuse
diversion agreement.
  (2) Monitoring of a defendant's progress under a substance
abuse diversion agreement shall be the responsibility of the
substance abuse treatment provider. The provider shall make a
report to the court stating the defendant's successful completion
or failure to complete all or any part of the substance abuse
treatment program. The form of the report shall be determined by
agreement between the court and the substance abuse treatment
provider. The court shall make the report that is required by
this subsection a part of the record of the case. + }
 
  SECTION 6.  { + (1) The filing fee paid by a defendant at the
time of filing a petition for a substance abuse diversion
agreement under sections 1 to 6 of this 2009 Act shall be $261
and shall be ordered paid as follows if the petition is allowed:
  (a) $100 to be credited and distributed under ORS 137.295 as an
obligation payable to the state; and
  (b) $161 to be paid to the Director of Human Services for
deposit in the Substance Abuse Treatment Fund established under
subsection (3) of this section, to be used for the purposes of
the fund.
  (2) In addition to the filing fee under subsection (1) of this
section, the court shall order the defendant to pay $150 directly
to the substance abuse treatment provider.
  (3) The Substance Abuse Treatment Fund is established, separate
and distinct from the General Fund, to consist of moneys
deposited in the Substance Abuse Treatment Fund under subsection
(1) of this section, or as otherwise provided by law, and of
gifts and grants made to the fund for carrying out the purposes
of the fund. All moneys credited to the fund are continuously
appropriated to the Department of Human Services and may be used
only for the following purposes:
  (a) To pay for providing treatment to individuals who enter
substance abuse diversion agreements and who are found to be
indigent. Payment shall be made as provided by the director by
rule to agencies or organizations providing treatment.
  (b) To pay for evaluation, as provided by law, of programs used
for diversion agreements.
  (c) To pay the director's cost of administering the fund.
  (d) To pay for materials, resources and training supplied by
the director to agencies or organizations providing treatment to
individuals participating in diversion agreements.
  (e) To pay for special services required to enable an
individual with disabilities, or an individual whose proficiency
in the use of English is limited, to participate in a substance
abuse treatment program. This paragraph applies:
  (A) Whether or not the person is indigent; and
  (B) Only to special services required solely because of the
individual's disability or limited proficiency in the use of
English. + }
  SECTION 7. ORS 1.525 is amended to read:
  1.525. (1) The Supreme Court shall adopt one or more forms for
the following purposes:
  (a) A form of uniform violation citation for the purposes of
ORS 153.045;
  (b) A form of uniform criminal citation without complaint for
the purposes of ORS 133.068;
  (c) A form of uniform criminal citation with complaint for the
purposes of ORS 133.069;
  (d) Any form of uniform citation for categories of offenses as
the court finds necessary or convenient;   { - and - }
  (e) A uniform petition for a driving while under the influence
of intoxicants diversion agreement for the purposes of ORS
813.210  { - . - }  { + ; and
  (f) A uniform petition for a substance abuse diversion
agreement and a uniform petition for an extension of the
diversion period for the purposes of sections 1 to 6 of this 2009
Act. + }
  (2) If changes are made to a uniform citation form under this
section, the Supreme Court shall make a reasonable effort to
minimize the financial impact of the changes on the state
agencies and political subdivisions of this state that use the
uniform citation form. Where possible, the effort to minimize the
financial impact shall include a reasonable time for the state
agencies and political subdivisions to exhaust their existing
supplies of the citation form before the changes become
effective.
  (3) Except as provided in subsection (4) of this section, the
uniform citation forms adopted by the Supreme Court under this
section must be used by all enforcement officers, as defined in
ORS 153.005, when issuing a violation citation or criminal
citation.
  (4) The uniform citation forms adopted by the Supreme Court
under this section need not be used for:
  (a) Offenses created by ordinance or agency rule governing
parking of vehicles; or
  (b) Offenses created by the ordinances of political
subdivisions.
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