813.220
Matters to be considered by court in determining to allow diversion agreement;
reasons for denial.
After the time for requesting a hearing under ORS 813.210 has expired with no
request for a hearing, or after a hearing requested under ORS 813.210, the
court shall determine whether to allow or deny a petition for a driving while
under the influence of intoxicants diversion agreement. In making a
determination under this section, the court:
(1) Shall
consider whether the diversion will be of benefit to the defendant and the
community.
(2) May take into
consideration whether there was an early recognition by the defendant during
the proceeding that a course of diagnosis and treatment of problem drinking,
alcoholism or drug dependency would be beneficial.
(3) May take into
consideration whether there is a probability that the defendant will cooperate
with the diagnostic assessment and treatment agencies.
(4) May take into
consideration whether the defendant will observe the restrictions contained in
the diversion agreement.
(5) May take into
consideration whether the offense was committed in a motor vehicle and whether
there was a passenger in the motor vehicle who was under 18 years of age and at
least three years younger than the defendant.
(6) Shall deny
the petition for a driving while under the influence of intoxicants diversion
agreement if the defendant failed to appear at an arraignment on the present
offense without good cause.
(7) Shall deny
the petition for a driving while under the influence of intoxicants diversion
agreement if, after the date the defendant filed the petition, the defendant
was charged with or convicted of:
(a) An offense of
driving while under the influence of intoxicants in violation of:
(A) ORS 813.010;
or
(B) 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 intoxicating
liquor, cannabis, psilocybin, a controlled substance, an inhalant or any
combination thereof; 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.
(8) Shall deny
the petition for a driving while under the influence of intoxicants diversion
agreement if the defendant participated in a driving while under the influence
of intoxicants diversion program or in any similar alcohol or drug
rehabilitation program, other than a program entered into as a result of the
charge for the present offense, in this state or in another jurisdiction after
the date the defendant filed the petition.
(9) Shall deny
the petition for a driving while under the influence of intoxicants diversion
agreement if the defendant was charged with or convicted 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 in this state or in
another jurisdiction after the date the defendant filed the petition.
(10) Shall deny
the petition for a driving while under the influence of intoxicants diversion
agreement if the defendant has been convicted of a felony offense described in
ORS 813.010 (5)(a).
(11) For the
purposes of subsection (7) of this section, may not consider 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 as a
prior conviction.
(12) May not deny
the petition for a driving while under the influence of intoxicants diversion
agreement solely on the basis that the defendant is a member of the Armed
Forces of the United States, the reserve components of the Armed Forces of the
United States or the National Guard and has been called or demonstrates that
the defendant will be called to active duty, and the military service will
impair the defendant’s ability to complete the diversion program. [1983 c.338 §371;
1987 c.441 §6; 1997 c.749 §6; 1999 c.1051 §296; 2003 c.445 §2; 2007 c.867 §15;
2007 c.879 §7; 2011 c.197 §1; 2017 c.21 §86; 2021 c.253 §12]
Notes of Decisions
Cited in
30
cases (
11 in the last 5 years), 1986–2026 · leading case:
State v. Orueta, 164 P.3d 267 (Or. 2007).
State v. Orueta, 164 P.3d 267 (Or. 2007).
· cites it 6× “210; ORS 813.220. A judge is required to exercise discretion in granting or withholding diversion and can adduce the necessary facts in that proceeding.”
State v. Parker, 230 P.3d 55 (Or. Ct. App. 2010).
· cites it 9× “The state also reprises its arguments before the trial court and further contends that, even if defendant established eligibility for diversion, we should affirm the trial court on the alternative basis that the trial court, at least implicitly, exercised its discretion under…”
State v. Warrington, 184 P.3d 1160 (Or. Ct. App. 2008).
· cites it 4× “However, because the trial court has discretion about whether to permit a defendant to enter diversion in light of various considerations, see ORS 813.220(1) to (5), we do not order the court to accept defendant’s petition to enter *569 diversion.”
State v. Guzman/Heckler, 455 P.3d 485 (Or. 2019).
“215(1)(a)(A)(ii) (disqualification from DUII diversion based on pending charges); ORS 813.220(7)(a)(B) (disqualification from DUII diversion based on subsequent charges or convictions); ORS 813.”
State v. Ramirez, 493 P.3d 522 (Or. Ct. App. 2021).
· cites it 2× “215 and ORS 813.220 (disqualifying individuals from DUII diversion programs); ORS 809.”
State v. Wright, 131 P.3d 838 (Or. Ct. App. 2006).
“ORS 813.220. The requirements for eligibility are found in ORS 813.”
State v. Manfredonia, 805 P.2d 738 (Or. Ct. App. 1991).
· cites it 2× “Because the trial court denied the petition solely on the basis of the prior conviction, the question remains whether the court, in the exercise of its discretion under ORS 813.220, will allow diversion. *541 Judgment vacated; remanded for reconsideration of diversion under ORS…”
State v. Williamson, 345 Or. App. 506 (Or. Ct. App. 2025).
· cites it 3× “Defendant points to ORS 813.220, which lays out factors a court shall, may, and may not consider in granting DUII diversion.”
State v. Burton, 337 Or. App. 336 (Or. Ct. App. 2025).
· cites it 7× “See ORS 813.220 (noting 12 factors, some of which “may” be considered, some of which “shall” be considered, and some of which require denial if they are 338 State v.”
State v. Romanov, 149 P.3d 1224 (Or. Ct. App. 2006).
“ORS 813.220; Wright, 204 Or App at 726 . Here, defendant petitioned for a diversion agreement, and the trial court allowed it.”
State v. Burton, 562 P.3d 1135 (Or. Ct. App. 2025).
· cites it 7× “See ORS 813.220 (noting twelve factors, some of which “may” be considered, some of which “shall” be considered, and some of which require denial if 338 State v.”
State v. Lagrassa, 230 P.3d 96 (Or. Ct. App. 2010).
“” 4 The trial court in Warrington denied the defendant diversion under ORS 813.220(8), which provides, similarly to ORS 813.”
— Or. Rev. Stat. § 813.220(1) — 6 cases
State v. Orueta, 164 P.3d 267 (Or. 2007).
“210; ORS 813.220. A judge is required to exercise discretion in granting or withholding diversion and can adduce the necessary facts in that proceeding.”
State v. Warrington, 184 P.3d 1160 (Or. Ct. App. 2008).
“However, because the trial court has discretion about whether to permit a defendant to enter diversion in light of various considerations, see ORS 813.220(1) to (5), we do not order the court to accept defendant’s petition to enter *569 diversion.”
State v. Parker, 230 P.3d 55 (Or. Ct. App. 2010).
“The state also reprises its arguments before the trial court and further contends that, even if defendant established eligibility for diversion, we should affirm the trial court on the alternative basis that the trial court, at least implicitly, exercised its discretion under…”
State v. Williamson, 345 Or. App. 506 (Or. Ct. App. 2025).
“Defendant points to ORS 813.220, which lays out factors a court shall, may, and may not consider in granting DUII diversion.”
— Or. Rev. Stat. § 813.220(2) — 1 case
— Or. Rev. Stat. § 813.220(3) — 1 case
State v. Parker, 230 P.3d 55 (Or. Ct. App. 2010).
“The state also reprises its arguments before the trial court and further contends that, even if defendant established eligibility for diversion, we should affirm the trial court on the alternative basis that the trial court, at least implicitly, exercised its discretion under…”
— Or. Rev. Stat. § 813.220(7) — 1 case
— Or. Rev. Stat. § 813.220(7)(a) — 1 case
State v. Ramirez, 493 P.3d 522 (Or. Ct. App. 2021).
“215 and ORS 813.220 (disqualifying individuals from DUII diversion programs); ORS 809.”
— Or. Rev. Stat. § 813.220(7)(a)(B) — 1 case
State v. Guzman/Heckler, 455 P.3d 485 (Or. 2019).
“215(1)(a)(A)(ii) (disqualification from DUII diversion based on pending charges); ORS 813.220(7)(a)(B) (disqualification from DUII diversion based on subsequent charges or convictions); ORS 813.”
— Or. Rev. Stat. § 813.220(8) — 4 cases
State v. Warrington, 184 P.3d 1160 (Or. Ct. App. 2008).
“However, because the trial court has discretion about whether to permit a defendant to enter diversion in light of various considerations, see ORS 813.220(1) to (5), we do not order the court to accept defendant’s petition to enter *569 diversion.”
State v. Lagrassa, 230 P.3d 96 (Or. Ct. App. 2010).
“” 4 The trial court in Warrington denied the defendant diversion under ORS 813.220(8), which provides, similarly to ORS 813.”
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