How do I know if I am eligible for diversion on my DUII charge?

The rules for diversion eligibility are set out in ORS 813.215 (below).  Most first offenders will be eligible for diversion if their DUII does not involve an injury accident and they do not hold commercial driving privileges.  However, you must meet all eligibility requirements to enter diversion.  To enter the program you must declare, under oath, that all of the following are true:

1. I have never been convicted of a felony DUII offense in Oregon or any other place

2. On the date I sign the petition for a DUII diversion agreement:

a. Except for the DUII charge in this case, there is no charge pending against me in Oregon or any other place for an offense involving operation of a vehicle while:

• under the influence of alcohol, cannabis, a controlled substance, an inhalant, or any combination of the four, or

• having a blood alcohol content above the allowable blood alcohol content

b. I am not participating in a DUII diversion program or any similar alcohol or drug rehabilitation program in Oregon or any other place except:

• a program I may have entered as a result of the DUII charge in this case, or

• a charge for minor in possession of alcohol under ORS 471.430

c. There is no charge of an offense pending against me in Oregon or any other place for any degree of aggravated vehicular homicide, murder, manslaughter, criminally negligent homicide, or assault that resulted from the operation of a motor vehicle

3. During the fifteen (15) years before the date of the alleged DUII offense in this case and from the time between the alleged DUII offense and the date I sign the attached petition:

a. I have not been convicted in Oregon or any other place for an offense involving the operation of a vehicle while:

• under the influence of alcohol, cannabis, a controlled substance, an inhalant, or any combination of the four, or

• having a blood alcohol content above the allowable blood alcohol content

b. I have not participated in a DUII diversion program or any similar alcohol or drug rehabilitation program in Oregon or any other place except a program I may have entered as a result of a charge for minor in possession of alcohol under ORS 471.430

c. I have not been convicted, in Oregon or any other place, on any charge of an offense in any degree for aggravated vehicular homicide, murder, manslaughter, criminally negligent homicide, or assault that resulted from the operation of a motor vehicle, and

d. If this is my second or subsequent diversion, I have not been convicted of any criminal offenses involving a motor vehicle

4. The DUII offense described in the attached petition did not involve any deaths or any physical injury to any other person (“physical injury” means impairment of physical condition or substantial pain)

5. At the time of the alleged offense, I did not have commercial driving privileges

6. At the time of the alleged offense, I was not operating a commercial motor vehicle.

If all of the above are true, you should be eligible for diversion.

Occasionally, the DA's Office will object to a defendant's entry into diversion even though they meet the eligibility requirements set forth above.  This sometimes happens if there was a child in the car when the defendant was arrested for DUII or if the defendant has a number of DUII convictions more than 15 years old.  See ORS 813.220.

     ORS 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 intoxicating liquor, cannabis, 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.

      (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. A defendant is not ineligible for diversion under this paragraph by reason of participation in a diversion program or any similar alcohol or drug rehabilitation program as a result of the charge for the present offense or a charge for violation of ORS 471.430.

      (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. A defendant is not ineligible for diversion under this paragraph by reason of participation in a diversion program or rehabilitation program described in paragraph (d) of this subsection as a result of the charge for the present offense or a charge for violation of ORS 471.430.

      (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) 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]

      ORS 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, 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]

      ORS 807.018 Persons considered to hold commercial driving privileges. A person holds commercial driving privileges for the purposes of the Oregon Vehicle Code if:

      (1) The person has an unexpired commercial learner driver permit; or

      (2) The person’s most recently issued driver license is or was a commercial driver license issued by the Department of Transportation or the licensing agency of another jurisdiction, without regard to whether:

      (a) The person’s commercial driver license has expired; or

      (b) The person’s commercial driving privileges are suspended, canceled or revoked. [2013 c.237 §3; 2017 c.190 §13]

      ORS 801.208 “Commercial motor vehicle.” (1) “Commercial motor vehicle” means a motor vehicle or combination of motor vehicles and one or more vehicles that:

      (a) Has a gross combination weight rating or gross combination weight of 26,001 pounds or more, whichever is greater, inclusive of one or more towed units, with a gross vehicle weight rating or gross vehicle weight of more than 10,000 pounds, whichever is greater;

      (b) Has a gross vehicle weight rating or gross vehicle weight of 26,001 pounds or more;

      (c) Is designed to transport 16 or more persons, including the driver; or

      (d) Is of any size and is used in the transportation of hazardous materials.

      (2) Notwithstanding subsection (1) of this section, the term “commercial motor vehicle” does not include the following:

      (a) An emergency fire vehicle being operated by firefighters as defined in ORS 652.050;

      (b) Emergency vehicles being operated by qualified emergency service volunteers as defined in ORS 401.358;

      (c) A motor home used to transport or house, for nonbusiness purposes, the operator or the operator’s family members or personal possessions; or

      (d) A recreational vehicle that is operated solely for personal use. [1989 c.636 §2; 1991 c.185 §1; 1991 c.676 §1; 1999 c.359 §1; 2007 c.387 §1; 2009 c.395 §3; 2009 c.718 §27; 2011 c.470 §1; 2013 c.237 §48]