813.215
Eligibility for diversion.
(1) A defendant is eligible for diversion if the defendant meets all of the
following conditions:
(a) On the date
the defendant filed the petition for a driving while under the influence of
intoxicants diversion agreement, the defendant had no charge, other than the
charge for the present offense, pending for:
(A) An offense of
driving while under the influence of intoxicants in violation of:
(i) ORS 813.010;
or
(ii) The
statutory counterpart to ORS 813.010 in another jurisdiction;
(B) A driving
under the influence of intoxicants offense in another jurisdiction that
involved the impaired driving of a vehicle due to the use of an intoxicant or a
combination of intoxicants; or
(C) A driving
offense in another jurisdiction that involved operating a vehicle while having
a blood alcohol content above that jurisdiction’s permissible blood alcohol
content.
(b) The defendant
has not been convicted of an offense described in paragraph (a) of this
subsection within the period beginning 15 years before the date of the
commission of the present offense and ending on the date the defendant filed
the petition for a driving while under the influence of intoxicants diversion
agreement.
(c) The defendant
has not been convicted of a felony offense described in ORS 813.010 (5)(a).
(d) The defendant
was not participating in a driving while under the influence of intoxicants
diversion program or in any similar alcohol or drug rehabilitation program in
this state or in another jurisdiction on the date the defendant filed the
petition for a driving while under the influence of intoxicants diversion
agreement.
(e) The defendant
did not participate in a diversion or rehabilitation program described in
paragraph (d) of this subsection within the period beginning 15 years before
the date of the commission of the present offense and ending on the date the
defendant filed the petition for a driving while under the influence of
intoxicants diversion agreement.
(f) The defendant
had no charge of an offense of aggravated vehicular homicide or of murder,
manslaughter, criminally negligent homicide or assault that resulted from the
operation of a motor vehicle pending in this state or in another jurisdiction
on the date the defendant filed the petition for a driving while under the
influence of intoxicants diversion agreement.
(g) The defendant
has not been convicted of an offense described in paragraph (f) of this
subsection within the period beginning 15 years before the date of the
commission of the present offense and ending on the date the defendant filed
the petition for a driving while under the influence of intoxicants diversion
agreement.
(h) The defendant
did not hold commercial driving privileges on the date of the commission of the
offense.
(i) The defendant
was not operating a commercial motor vehicle at the time of the offense.
(j) The present
driving while under the influence of intoxicants offense did not involve an
accident resulting in:
(A) Death of any
person; or
(B) Physical
injury as defined in ORS 161.015 to any person other than the defendant.
(2) For the
purposes of subsection (1)(a) of this section, a conviction for a driving
offense in another jurisdiction based solely on a person under 21 years of age
having a blood alcohol content that is lower than the permissible blood alcohol
content in that jurisdiction for a person 21 years of age or older does not
constitute a prior conviction.
(3)
Notwithstanding subsection (1)(d) or (e) of this section, a defendant is
eligible for diversion if the defendant participated in a diversion program or
any similar alcohol or drug rehabilitation program:
(a) As a result
of the charge for the present offense or a charge for violation of ORS 471.430.
(b) As a ward,
youth or adjudicated youth, as those terms are defined in ORS 419A.004,
pursuant to an order of the juvenile court under ORS chapter 419B or 419C, or
referral of the juvenile department under ORS chapter 419C, and such order or
referral was made when the defendant was under 18 years of age.
(c) As the parent
or guardian of a ward, youth or adjudicated youth, as those terms are defined
in ORS 419A.004, pursuant to an order of the juvenile court under ORS chapter
419B or 419C.
(4) A defendant
is eligible for a second or subsequent diversion if the defendant meets all of
the conditions of subsection (1) of this section and the defendant has not been
convicted of any other criminal offense involving a motor vehicle within the period
beginning 15 years before the date of the commission of the present offense and
ending on the date the defendant filed the petition for the second or
subsequent driving while under the influence of intoxicants diversion
agreement. [1987 c.441 §3; 1997 c.749 §5; 1999 c.445 §1; 1999 c.1051 §295; 2005
c.649 §29; 2007 c.122 §11; 2007 c.867 §14; 2007 c.879 §10; 2009 c.515 §1; 2013
c.134 §1; 2013 c.237 §28; 2016 c.24 §62; 2017 c.21 §85; 2021 c.253 §11; 2023
c.498 §13]
Notes of Decisions
Cited in
37
cases (
12 in the last 5 years), 1988–2026 · leading case:
State v. Orueta, 164 P.3d 267 (Or. 2007).
State v. Orueta, 164 P.3d 267 (Or. 2007).
· cites it 44× “A trial court can only order diversion if a driver has no DUII conviction within ten years of the commission of the present offense, ORS 813.215(2), and even then can only do so if the judge determines that diversion will benefit the community as well as the defendant, ORS 813.”
State v. Guzman/Heckler, 455 P.3d 485 (Or. 2019).
· cites it 6× “Rawleigh interpreted the phrase “statutory counterpart” as it appeared in ORS 813.215, where it governs which foreign convictions or charges make a defendant ineligible for DUII 3 The parties also disagree on whether it is appropriate to treat prior judicial decisions as context…”
State v. Donovan, 256 P.3d 196 (Or. Ct. App. 2011).
· cites it 16× “010 and ORS 813.215 are to the 2007 version of those statutes.”
State v. Parker, 230 P.3d 55 (Or. Ct. App. 2010).
· cites it 15× “That statute provides, in part, that, even if a defendant has established eligibility for diversion under ORS 813.215, the court must then determine whether to allow diversion by reference to a variety of considerations, including “whether the diversion will be of benefit to the…”
State v. Wright, 131 P.3d 838 (Or. Ct. App. 2006).
· cites it 6× “ORS 813.215. In seeking diversion, defendant had the burden of proving, inter alia, that she had not “participated] in a [DUII] diversion program or in any similar alcohol or drug rehabilitation program,” ORS 813.”
State v. Colgrove, 521 P.3d 456 (Or. 2022).
· cites it 2× “ORS 813.215. The content of the petition is governed by ORS 813.”
State v. Young, 103 P.3d 1180 (Or. Ct. App. 2004).
· cites it 4× “He sought enrollment in DUII diversion, but the state objected, citing ORS 813.215. That statute provides that an individual is eligible for DUII diversion if, among other things, he or she had not already participated in a DUII diversion program “or in any similar alcohol or…”
State v. Lagrassa, 230 P.3d 96 (Or. Ct. App. 2010).
· cites it 9× “In addition, a “similar” rehabilitation program must be compelled in the same way as a DUII diversion program — by order of a governmental decision-maker with a potential sanction if the rehabilitation program is not completed.”
State v. Rawleigh, 192 P.3d 292 (Or. Ct. App. 2008).
· cites it 4× “ORS 813.215 provides, in part: “A defendant is eligible for diversion if: “(1) The defendant had no charge of an offense of driving while under the influence of intoxicants or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending…”
State v. Williamson, 345 Or. App. 506 (Or. Ct. App. 2025).
· cites it 11× “010, in which he reserved for appeal the sole assignment of error of whether the trial court erred when it denied him entry into DUII diversion under ORS 813.215. On appeal, defendant argues that the legislature did not intend for DUII convictions older than 15 years to be…”
Koch v. State, 288 P.3d 582 (Or. Ct. App. 2012).
· cites it 7× “215(1), which lists the requirements for eligibility for diversion, provides, in paragraph (f), that the defendant must have “no charge of an offense of aggravated vehicular homicide or of murder, manslaughter, criminally negligent homicide or assault that resulted from the…”
State v. Ramirez, 493 P.3d 522 (Or. Ct. App. 2021).
· cites it 3× “010(5) (increasing crime of DUII from a misdemeanor to a felony); ORS 813.215 and ORS 813.220 (disqualifying individuals from DUII diversion programs); ORS 809.”
— Or. Rev. Stat. § 813.215(1) — 12 cases
State v. Donovan, 256 P.3d 196 (Or. Ct. App. 2011).
“010 and ORS 813.215 are to the 2007 version of those statutes.”
State v. Rawleigh, 192 P.3d 292 (Or. Ct. App. 2008).
“ORS 813.215 provides, in part: “A defendant is eligible for diversion if: “(1) The defendant had no charge of an offense of driving while under the influence of intoxicants or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending…”
State v. Williamson, 345 Or. App. 506 (Or. Ct. App. 2025).
“010, in which he reserved for appeal the sole assignment of error of whether the trial court erred when it denied him entry into DUII diversion under ORS 813.215. On appeal, defendant argues that the legislature did not intend for DUII convictions older than 15 years to be…”
State v. Parker, 230 P.3d 55 (Or. Ct. App. 2010).
“That statute provides, in part, that, even if a defendant has established eligibility for diversion under ORS 813.215, the court must then determine whether to allow diversion by reference to a variety of considerations, including “whether the diversion will be of benefit to the…”
— Or. Rev. Stat. § 813.215(1)(a) — 4 cases
State v. Guzman/Heckler, 455 P.3d 485 (Or. 2019).
“Rawleigh interpreted the phrase “statutory counterpart” as it appeared in ORS 813.215, where it governs which foreign convictions or charges make a defendant ineligible for DUII 3 The parties also disagree on whether it is appropriate to treat prior judicial decisions as context…”
State v. Ramirez, 493 P.3d 522 (Or. Ct. App. 2021).
“010(5) (increasing crime of DUII from a misdemeanor to a felony); ORS 813.215 and ORS 813.220 (disqualifying individuals from DUII diversion programs); ORS 809.”
— Or. Rev. Stat. § 813.215(1)(a)(A)(ii) — 4 cases
State v. Guzman/Heckler, 455 P.3d 485 (Or. 2019).
“Rawleigh interpreted the phrase “statutory counterpart” as it appeared in ORS 813.215, where it governs which foreign convictions or charges make a defendant ineligible for DUII 3 The parties also disagree on whether it is appropriate to treat prior judicial decisions as context…”
State v. Rawleigh, 192 P.3d 292 (Or. Ct. App. 2008).
“ORS 813.215 provides, in part: “A defendant is eligible for diversion if: “(1) The defendant had no charge of an offense of driving while under the influence of intoxicants or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending…”
— Or. Rev. Stat. § 813.215(1)(a)(B) — 2 cases
— Or. Rev. Stat. § 813.215(1)(b) — 2 cases
— Or. Rev. Stat. § 813.215(1)(d) — 1 case
— Or. Rev. Stat. § 813.215(1)(e) — 4 cases
— Or. Rev. Stat. § 813.215(1)(f) — 1 case
Koch v. State, 288 P.3d 582 (Or. Ct. App. 2012).
“215(1), which lists the requirements for eligibility for diversion, provides, in paragraph (f), that the defendant must have “no charge of an offense of aggravated vehicular homicide or of murder, manslaughter, criminally negligent homicide or assault that resulted from the…”
— Or. Rev. Stat. § 813.215(1)(h) — 1 case
— Or. Rev. Stat. § 813.215(1)(j)(B) — 1 case
Koch v. State, 288 P.3d 582 (Or. Ct. App. 2012).
“215(1), which lists the requirements for eligibility for diversion, provides, in paragraph (f), that the defendant must have “no charge of an offense of aggravated vehicular homicide or of murder, manslaughter, criminally negligent homicide or assault that resulted from the…”
— Or. Rev. Stat. § 813.215(2) — 2 cases
State v. Orueta, 164 P.3d 267 (Or. 2007).
“A trial court can only order diversion if a driver has no DUII conviction within ten years of the commission of the present offense, ORS 813.215(2), and even then can only do so if the judge determines that diversion will benefit the community as well as the defendant, ORS 813.”
— Or. Rev. Stat. § 813.215(3) — 6 cases
State v. Wright, 131 P.3d 838 (Or. Ct. App. 2006).
“ORS 813.215. In seeking diversion, defendant had the burden of proving, inter alia, that she had not “participated] in a [DUII] diversion program or in any similar alcohol or drug rehabilitation program,” ORS 813.”
State v. Lagrassa, 230 P.3d 96 (Or. Ct. App. 2010).
“In addition, a “similar” rehabilitation program must be compelled in the same way as a DUII diversion program — by order of a governmental decision-maker with a potential sanction if the rehabilitation program is not completed.”
State v. Young, 103 P.3d 1180 (Or. Ct. App. 2004).
“He sought enrollment in DUII diversion, but the state objected, citing ORS 813.215. That statute provides that an individual is eligible for DUII diversion if, among other things, he or she had not already participated in a DUII diversion program “or in any similar alcohol or…”
State v. Williamson, 345 Or. App. 506 (Or. Ct. App. 2025).
“010, in which he reserved for appeal the sole assignment of error of whether the trial court erred when it denied him entry into DUII diversion under ORS 813.215. On appeal, defendant argues that the legislature did not intend for DUII convictions older than 15 years to be…”
— Or. Rev. Stat. § 813.215(4) — 4 cases
State v. Wright, 131 P.3d 838 (Or. Ct. App. 2006).
“ORS 813.215. In seeking diversion, defendant had the burden of proving, inter alia, that she had not “participated] in a [DUII] diversion program or in any similar alcohol or drug rehabilitation program,” ORS 813.”
State v. Williamson, 345 Or. App. 506 (Or. Ct. App. 2025).
“010, in which he reserved for appeal the sole assignment of error of whether the trial court erred when it denied him entry into DUII diversion under ORS 813.215. On appeal, defendant argues that the legislature did not intend for DUII convictions older than 15 years to be…”
— Or. Rev. Stat. § 813.215(5) — 1 case
State v. Young, 103 P.3d 1180 (Or. Ct. App. 2004).
“He sought enrollment in DUII diversion, but the state objected, citing ORS 813.215. That statute provides that an individual is eligible for DUII diversion if, among other things, he or she had not already participated in a DUII diversion program “or in any similar alcohol or…”
— Or. Rev. Stat. § 813.215(7) — 2 cases
State v. Orueta, 164 P.3d 267 (Or. 2007).
“A trial court can only order diversion if a driver has no DUII conviction within ten years of the commission of the present offense, ORS 813.215(2), and even then can only do so if the judge determines that diversion will benefit the community as well as the defendant, ORS 813.”
— Or. Rev. Stat. § 813.215(A) — 2 cases
— Or. Rev. Stat. § 813.215(l)(a) — 1 case
State v. Donovan, 256 P.3d 196 (Or. Ct. App. 2011).
“010 and ORS 813.215 are to the 2007 version of those statutes.”
— Or. Rev. Stat. § 813.215(l)(a)(A)(ii) — 1 case
State v. Donovan, 256 P.3d 196 (Or. Ct. App. 2011).
“010 and ORS 813.215 are to the 2007 version of those statutes.”
— Or. Rev. Stat. § 813.215(l)(a)(B) — 1 case
State v. Donovan, 256 P.3d 196 (Or. Ct. App. 2011).
“010 and ORS 813.215 are to the 2007 version of those statutes.”
— Or. Rev. Stat. § 813.215(l)(b) — 4 cases
State v. Donovan, 256 P.3d 196 (Or. Ct. App. 2011).
“010 and ORS 813.215 are to the 2007 version of those statutes.”
— Or. Rev. Stat. § 813.215(l)(d) — 3 cases
State v. Parker, 230 P.3d 55 (Or. Ct. App. 2010).
“That statute provides, in part, that, even if a defendant has established eligibility for diversion under ORS 813.215, the court must then determine whether to allow diversion by reference to a variety of considerations, including “whether the diversion will be of benefit to the…”
— Or. Rev. Stat. § 813.215(l)(e) — 2 cases
State v. Parker, 230 P.3d 55 (Or. Ct. App. 2010).
“That statute provides, in part, that, even if a defendant has established eligibility for diversion under ORS 813.215, the court must then determine whether to allow diversion by reference to a variety of considerations, including “whether the diversion will be of benefit to the…”
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