813.255
Termination of diversion.
(1) At any time before the court dismisses with prejudice the charge of driving
while under the influence of intoxicants, the court on its own motion or on the
motion of the district attorney or city attorney may issue an order requiring
the defendant to appear and show cause why the court should not terminate the
diversion agreement. The order to show cause must:
(a) State the
reasons for the proposed termination;
(b) Specify the
amount of any fees owed and, if the amount owed is $500 or less, inform the
defendant that the court may dismiss with prejudice the charge of driving while
under the influence of intoxicants if the person has complied with and
performed all of the conditions of the diversion agreement and pays the
remaining amount before or on the date of the hearing; and
(c) Set an
appearance date.
(2) 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 diversion petition and agreement
or at any other address that the defendant provides in writing to the court.
(3) Except as
provided in subsections (4), (5) and (6) of this section, the court shall
terminate the diversion agreement and enter the guilty plea or no contest plea
that was filed as part of the petition for the diversion agreement if the
defendant fails to appear at the hearing on the order to show cause or if, at
the hearing on the order to show cause, the court finds by a preponderance of
the evidence that:
(a) The defendant
no longer qualifies for the diversion agreement under the conditions described
in ORS 813.215; or
(b) The defendant
failed to fulfill all of the terms of the diversion agreement.
(4) If a
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
is on active duty, the court shall:
(a) Allow the
defendant to appear at the hearing by telephone or other communication device
approved by the court, if the defendant’s military service permits such an
appearance; or
(b) Stay the
termination proceeding if the defendant’s military service prohibits the
defendant’s appearance by telephone or other communication device and prohibits
the defendant from aiding and assisting the attorney who would appear on the
defendant’s behalf.
(5) If the
defendant appears at the hearing on the order to show cause, the court shall
dismiss with prejudice the charge of driving while under the influence of
intoxicants if:
(a) The defendant
has complied with and performed all of the conditions of the diversion
agreement except that the defendant owes $500 or less of the fees required
under ORS 813.200, 813.210, 813.235 and 813.240; and
(b) The defendant
pays the balance of the fees owed by 5 p.m. on the day the hearing is held. The
defendant may also pay the balance of the fees owed before the day the hearing
is held.
(6) A court may
not terminate a diversion agreement under this section for failure to pay
restitution under ORS 137.108 if the defendant has otherwise complied with and
performed all of the conditions of the diversion agreement.
(7) Before the
court dismisses with prejudice the charge of driving while under the influence
of intoxicants under this section, the court shall enter a judgment containing
a money award, as defined in ORS 18.005, for any remaining amount of
restitution owed by the defendant.
(8) If the court
terminates the diversion agreement and enters the guilty plea or no contest
plea, the court may take into account at time of sentencing any partial
fulfillment by the defendant of the terms of the diversion agreement. [1987
c.441 §9; 2003 c.816 §5; 2011 c.197 §3; 2013 c.78 §1]
Notes of Decisions
Cited in
25
cases (
8 in the last 5 years), 1989–2026 · leading case:
State v. Colgrove
State v. Colgrove (2022)
or · cites it 4×
“ORS 813.255(1). The order to show cause must (1) state the rea- sons for the proposed termination; (2) set an appearance date; and (3) specify the amount of any fees owed and, if the fees owed are less than $500, inform the defendant that the court may dismiss the DUII charge…”
State v. Merrill (2021)
orctapp · cites it 2×
“Upon finding that defendant did not satisfy the terms of her diversion agreement, the trial court terminated diversion and entered the judgment of conviction in accordance with ORS 813.255. On appeal, defendant contends that her con- viction must be reversed because, in her…”
State v. Cloutier (2011)
or
“ORS 813.255. The mandatory minimum fine for misdemeanor DUII is $1,000.”
State v. Redick (2021)
orctapp
“He later admitted violating the terms of the diversion agree- ment, and the trial court terminated diversion and entered an amended judgment of conviction in accordance with ORS 813.255. On appeal, defendant contends that the trial court erred in terminating diversion and in…”
State v. Heaton (2021)
orctapp · cites it 3×
“The prior DUII conviction that defendant challenged was within the 10-year statutory window because the plea and judgment of conviction were entered in accordance with ORS 813.255 after defendant failed to finish diversion.”
State v. Canales (2020)
orctapp · cites it 2×
“On the merits, the state argues that the court did not have discretion to excuse defen- dant’s late completion of the victim impact panel, because, under ORS 813.255(3)(b)1 a court must terminate diversion 1 ORS 813.”
State v. Brown (1989)
orctapp · cites it 2×
“When the bench warrant was issued, defendant’s criminal proceeding had been stayed, and he had not been adjudicated to be in violation of the diversion agreement.”
Dyrdahl v. Department of Transportation (2006)
orctapp
“ORS 813.255. In contrast, a driver charged in Arizona with DUII must be convicted of that crime before the driver enters Arizona’s diversion program.”
State v. Reed (2011)
orctapp · cites it 4×
“250 and ORS 813.255, after the one-year diversion period has expired and the defendant has not affirmatively asked the court to dismiss the DUII charge, the defendant may be required to show cause why the *54 court should not terminate the diversion agreement and enter the…”
State v. Donathan (2016)
orctapp
“See ORS 813.255. As that description of the diversion statutes indicates, a court does not enter a finding of guilt when it accepts a diversion petition.”
State v. LAGRASSA (2010)
orctapp
“ORS 813.255. Under ORS 813.215(3) and (4) (2005), 1 a defendant was eligible for diversion if *153 “(3) 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, other…”
State v. Zook (2020)
orctapp · cites it 33×
“225 and ORS 813.255 together, the trial court may grant an extension of a diversion agreement, despite defendant’s violation of an alcohol condition, when the court finds that defendant made a good faith effort to complete the conditions of the diversion agreement and that the…”
— Or. Rev. Stat. § 813.255(1) — 5 cases
State v. Colgrove (2022)
or
“ORS 813.255(1). The order to show cause must (1) state the rea- sons for the proposed termination; (2) set an appearance date; and (3) specify the amount of any fees owed and, if the fees owed are less than $500, inform the defendant that the court may dismiss the DUII charge…”
State v. Reed (2011)
orctapp
“250 and ORS 813.255, after the one-year diversion period has expired and the defendant has not affirmatively asked the court to dismiss the DUII charge, the defendant may be required to show cause why the *54 court should not terminate the diversion agreement and enter the…”
State v. Zook (2020)
orctapp
“225 and ORS 813.255 together, the trial court may grant an extension of a diversion agreement, despite defendant’s violation of an alcohol condition, when the court finds that defendant made a good faith effort to complete the conditions of the diversion agreement and that the…”
— Or. Rev. Stat. § 813.255(2) — 1 case
State v. Colgrove (2022)
or
“ORS 813.255(1). The order to show cause must (1) state the rea- sons for the proposed termination; (2) set an appearance date; and (3) specify the amount of any fees owed and, if the fees owed are less than $500, inform the defendant that the court may dismiss the DUII charge…”
— Or. Rev. Stat. § 813.255(3) — 8 cases
State v. Colgrove (2022)
or
“ORS 813.255(1). The order to show cause must (1) state the rea- sons for the proposed termination; (2) set an appearance date; and (3) specify the amount of any fees owed and, if the fees owed are less than $500, inform the defendant that the court may dismiss the DUII charge…”
State v. Zook (2020)
orctapp
“225 and ORS 813.255 together, the trial court may grant an extension of a diversion agreement, despite defendant’s violation of an alcohol condition, when the court finds that defendant made a good faith effort to complete the conditions of the diversion agreement and that the…”
State v. Reed (2011)
orctapp
“250 and ORS 813.255, after the one-year diversion period has expired and the defendant has not affirmatively asked the court to dismiss the DUII charge, the defendant may be required to show cause why the *54 court should not terminate the diversion agreement and enter the…”
— Or. Rev. Stat. § 813.255(3)(a) — 1 case
— Or. Rev. Stat. § 813.255(3)(b) — 3 cases
State v. Canales (2020)
orctapp
“On the merits, the state argues that the court did not have discretion to excuse defen- dant’s late completion of the victim impact panel, because, under ORS 813.255(3)(b)1 a court must terminate diversion 1 ORS 813.”
State v. Zook (2020)
orctapp
“225 and ORS 813.255 together, the trial court may grant an extension of a diversion agreement, despite defendant’s violation of an alcohol condition, when the court finds that defendant made a good faith effort to complete the conditions of the diversion agreement and that the…”
— Or. Rev. Stat. § 813.255(5) — 3 cases
State v. Merrill (2021)
orctapp
“Upon finding that defendant did not satisfy the terms of her diversion agreement, the trial court terminated diversion and entered the judgment of conviction in accordance with ORS 813.255. On appeal, defendant contends that her con- viction must be reversed because, in her…”
State v. Colgrove (2022)
or
“ORS 813.255(1). The order to show cause must (1) state the rea- sons for the proposed termination; (2) set an appearance date; and (3) specify the amount of any fees owed and, if the fees owed are less than $500, inform the defendant that the court may dismiss the DUII charge…”
State v. Zook (2020)
orctapp
“225 and ORS 813.255 together, the trial court may grant an extension of a diversion agreement, despite defendant’s violation of an alcohol condition, when the court finds that defendant made a good faith effort to complete the conditions of the diversion agreement and that the…”
— Or. Rev. Stat. § 813.255(5)(a) — 5 cases
State v. Reed (2011)
orctapp
“250 and ORS 813.255, after the one-year diversion period has expired and the defendant has not affirmatively asked the court to dismiss the DUII charge, the defendant may be required to show cause why the *54 court should not terminate the diversion agreement and enter the…”
— Or. Rev. Stat. § 813.255(5)(b) — 1 case
State v. Zook (2020)
orctapp
“225 and ORS 813.255 together, the trial court may grant an extension of a diversion agreement, despite defendant’s violation of an alcohol condition, when the court finds that defendant made a good faith effort to complete the conditions of the diversion agreement and that the…”
— Or. Rev. Stat. § 813.255(6) — 1 case
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