Arraignment and Pretrial Provisions
ORS
135.886
Requirements for diversion
- factors considered
(1)
After an accusatory instrument has been filed charging a defendant with commission of a crime other than driving while under the influence of intoxicants as defined in ORS 813.010 (Driving under the influence of intoxicants), and after the district attorney has considered the factors listed in subsection (2) of this section, if it appears to the district attorney that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the district attorney may propose a diversion agreement to the defendant the terms of which are established by the district attorney in conformance with ORS 135.891 (Conditions of diversion agreement). A diversion agreement under this section is not available to a defendant charged with the crime of driving while under the influence of intoxicants as defined in ORS 813.010 (Driving under the influence of intoxicants).(2)
In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider at least the following factors:(a)
The nature of the offense; however, except as provided in subsection (3) of this section, the offense must not have involved physical injury to another person;(b)
Any special characteristics or difficulties of the offender;(c)
Whether the defendant is a first-time offender; if the offender has previously participated in diversion, according to the certification of the Department of Justice, diversion may not be offered;(d)
Whether there is a probability that the defendant will cooperate with and benefit from alternative treatment;(e)
Whether the available program is appropriate to the needs of the offender;(f)
The impact of diversion upon the community;(g)
Recommendations, if any, of the involved law enforcement agency;(h)
Recommendations, if any, of the victim;(i)
Provisions for restitution; and(j)
Any mitigating circumstances.(3)
In determining whether diversion of a defendant who is a servicemember is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider all of the factors listed in subsection (2) of this section, including the nature of the offense, except that diversion may not be offered if the offense:(a)
Involved serious physical injury to another person;(b)
Is classified as a Class A or B felony and involved physical injury to another person;(c)
Is described in ORS 163.365 (Rape in the second degree), 163.375 (Rape in the first degree), 163.395 (Sodomy in the second degree), 163.405 (Sodomy in the first degree), 163.408 (Unlawful sexual penetration in the second degree), 163.411 (Unlawful sexual penetration in the first degree) or 163.427 (Sexual abuse in the first degree); or(d)
Involved domestic violence as defined in ORS 135.230 (Definitions for ORS 135) and, at the time the offense was committed, the defendant was subject to a protective order in favor of the victim of the offense.(4)
As used in this section:(a)
“Physical injury” and “serious physical injury” have the meanings given those terms in ORS 161.015 (General definitions).(b)
“Protective order” means:(A)
An order issued under ORS 30.866 (Action for issuance or violation of stalking protective order), 107.700 (Short title) to 107.735 (Duties of State Court Administrator), 124.005 (Definitions for ORS 124) to 124.040 (Short title) or 163.730 (Definitions for ORS 30) to 163.750 (Violating a court’s stalking protective order); or(B)
A condition of probation, parole or post-prison supervision, or a release agreement under ORS 135.250 (General conditions of release agreement), that prohibits the defendant from contacting the victim. [1977 c.373 §2; 1981 c.64 §1; 1981 c.803 §2; 1983 c.338 §889; 2010 c.25 §2]Notes of Decisions
Under this section, district attorney had discretion to decide that persons charged with Class A felonies would not be diverted. State ex rel Anderson v. Haas, 43 Or App 169, 602 P2d 346 (1979), Sup Ct review denied