Driving Under the Influence of Intoxicants

ORS 813.210
Petition

  • filing fee
  • screening interview fee
  • service on prosecutor
  • objection


(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 (Notice of availability of diversion). The petition:

(a)

Must be filed within 30 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. For purposes of this paragraph, the filing of a demurrer, a motion to suppress or a motion for an omnibus hearing does not constitute good cause.

(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.

(c)

Notwithstanding paragraph (a) of this subsection, may be filed up to 14 days after the date the prosecuting attorney sends the laboratory test results of the defendant’s urine or blood sample analysis to the defendant’s attorney or, if the defendant is unrepresented, the defendant, if:

(A)

The accusatory instrument alleges that the defendant was driving under the influence of intoxicants and alleges that at the time the conduct occurred the defendant was under the influence of a controlled substance or an inhalant;

(B)

The defendant has not received notice of what the defendant’s blood alcohol content was at the time the conduct occurred or if at the time the conduct occurred the defendant had less than 0.08 percent by weight of alcohol in the blood; and

(C)

A police officer obtained a urine or blood sample from the defendant.

(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 (Amount and distribution of filing fee). 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 (Amount and distribution of filing fee).

(3)

The defendant shall pay to the agency or organization providing the screening interview, at the time the petition is allowed, the fee required by ORS 813.240 (Amount and distribution of filing fee) (3).

(4)

(a) Unless otherwise provided under paragraph (b) of this subsection, the defendant shall pay to the court any court-appointed attorney fees agreed to under ORS 813.200 (Notice of availability of diversion) (4)(i). Payments shall be made prior to the end of the diversion period on a schedule determined by the court.

(b)

The court may waive all or part of the court-appointed attorney fees agreed to under ORS 813.200 (Notice of availability of diversion) (4)(i).

(5)

The defendant shall begin paying to the court any restitution ordered under ORS 137.108 (Restitution when defendant has entered into diversion agreement). Payments shall be made during the diversion period on a schedule determined by the court.

(6)

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. [1983 c.338 §370; 1985 c.16 §192; 1987 c.441 §5; 1987 c.534 §1; 1993 c.13 §6; 2003 c.816 §2; 2011 c.595 §170; 2013 c.78 §5; 2015 c.318 §51; 2017 c.491 §1]

Notes of Decisions

Under Former Similar Statute

It was not error to require defendant to show that he was not disqualified because offense involved accident required to be reported before trial court decided whether to exercise discretion to grant diversion. State v. Dendurent, 64 Or App 575, 669 P2d 361 (1983), Sup Ct review denied

This section does not violate Article I, Section 20 of the Oregon Constitution. State v. Dendurent, 64 Or App 575, 669 P2d 361 (1983), Sup Ct review denied

Existence of prior conviction divests trial court of any discretion to allow diversion petition and of authority to consider whether prior conviction was valid. State ex rel Schrunk v. Bearden, 66 Or App 209, 673 P2d 585 (1983)

Under this section, denial of diversion from criminal prosecution because of prior uncounseled conviction violates defendant's federal Sixth Amendment right to counsel. City of Pendleton v. Standerfer, 297 Or 725, 688 P2d 68 (1984)

Language of section, "[t]he present driving while under the influence of intoxicant offense" refers not to filing or hearing of petition for diversion, but to accident, which took place on date of commission of offense; context of entire section makes it clear that determinative date for all disqualification provisions is date of violation. State v. Ambrose, 74 Or App 59, 701 P2d 472 (1985), Sup Ct review denied

Court should not have used conviction as basis for mandatory denial of diversion where record did not demonstrate that defendant voluntarily and intelligently waived right to counsel. State v. Winkler, 80 Or App 455, 722 P2d 59 (1986)

§§ 813.200 to 813.270

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)


Source

Last accessed
Jun. 26, 2021