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OREGON DUII DIVERSION GUIDE



David N Lesh
Oregon Diversion Attorney
Oregon Super Lawyer 2018 and 2019

Call today to speak with Mr. Lesh about the diversion program
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   "The DUII diversion program may be an option for persons who have not had a previous drunk driving arrest in the past 15 years.  If you successfully complete the program, your DUII charge will be dismissed without a conviction or jail time. 

 

   "You can learn more about my background as an Oregon Diversion Lawyer by visiting my website or calling my office for a no cost consultation.  Should you hire me to represent you with your diversion, I will be your attorney and point of contact.  I don't use associate attorneys, paralegals, legal assistants, or case managers.  I personally respond to your calls and emails; I meet with you; I appear with you in court.  Call me today for expert diversion representation." 

 

David N Lesh, Oregon DUII Diversion Guide Author and Attorney at Law

 

What is the DUII diversion program?

Diversion is a program that gives defendants the opportunity to earn a dismissal of their DUII charge by successfully completing court ordered obligations.  Therefore, diversion is an attractive option for many people facing a first time DUII charge.  The Oregon driving under the influence diversion statutes are found at ORS 813.200 et seq.

Diversion is the only alternative to taking your DUII to trial or pleading guilty / no contest to the charge.  Oregon does not use or allow deferred prosecutions, deferred judgments, other deferrals, probation before judgment, or pleas to lesser included offenses such as negligent driving or reckless driving on DUII charges.  See ORS 813.170(2).  Oregon also does not use a deferred prosecution program as does Washington State.

ORS 813.170 Plea agreement prohibited.

 

        (1) Notwithstanding ORS 135.405 to 135.445, a person charged with the offense of driving under the influence of intoxicants shall not be allowed to plead “guilty” or “no contest” to any other offense in exchange for a dismissal of the offense charged. No district attorney or city attorney shall make any motion and no judge shall enter any order in derogation of this section. This section does not prohibit diversion as provided under ORS 813.200.

      (2) Notwithstanding ORS 135.881 to 135.901, a person charged with the offense of driving under the influence of intoxicants shall not be allowed to enter into any program of supervised performance or diversion except as provided under ORS 813.200. [1983 c.338 §382; 1999 c.1051 §294]

If you enter and successfully complete the DUII diversion program, you will avoid most of the mandatory penalties (jail time, fines, and the additional year long license suspension among other things) required for a DUII conviction.  Diversion is typically the choice of someone facing a first time DUII (assuming no injury accident and no CDL).

ORS 813.200 Notice of availability of diversion; petition; form; contents. 

 

      (1) The court shall inform at arraignment a defendant charged with the offense of driving while under the influence of intoxicants as defined in ORS 813.010 or a city ordinance conforming thereto that a diversion agreement may be available if the defendant meets the criteria set out in ORS 813.215 and files with the court a petition for a driving while under the influence of intoxicants diversion agreement.

      (2) The petition forms for a driving while under the influence of intoxicants diversion agreement shall be available to a defendant at the court.

      (3) The form of the petition for a driving while under the influence of intoxicants diversion agreement and the information and blanks contained therein shall be determined by the Supreme Court under ORS 1.525. The petition forms made available to a defendant by any city or state court shall conform to the requirements adopted by the Supreme Court.

      (4) In addition to any other information required by the Supreme Court to be contained in a petition for a driving while under the influence of intoxicants diversion agreement, the petition shall include:

      (a) A plea of guilty or no contest to the charge of driving while under the influence of intoxicants signed by the defendant;

      (b) An agreement by the defendant to complete at an agency or organization designated by the city or state court a screening interview to determine the possible existence and degree of an alcohol or drug abuse problem;

      (c) An agreement by the defendant to complete, at defendant’s own expense based on defendant’s ability to pay, the program of treatment:

      (A) Indicated as necessary by the screening interview; or

      (B) If ordered by the court under ORS 813.640 after the court receives at least two negative reports;

      (d) Except as provided in subsection (5) of this section, an agreement by the defendant to not use intoxicants during the diversion period and to comply fully with the laws of this state designed to discourage the use of intoxicants;

      (e) A notice to the defendant that the diversion agreement will be considered to be violated if the court receives notice that the defendant at any time during the diversion period committed the offense of driving while under the influence of intoxicants or committed a violation of ORS 811.170;

      (f) An agreement by the defendant to keep the court advised of the defendant’s current mailing address at all times during the diversion period;

      (g) A waiver by the defendant of any former jeopardy rights under the federal and state Constitutions and ORS 131.505 to 131.525 in any subsequent action upon the charge or any other offenses based upon the same criminal episode;

      (h) A sworn statement, as defined in ORS 162.055, by the defendant certifying that the defendant meets the criteria set out in ORS 813.215 to be eligible to enter into the driving while under the influence of intoxicants diversion agreement;

      (i) An agreement by the defendant to pay court-appointed attorney fees as determined by the court; and

      (j) An agreement by the defendant to pay restitution if ordered by the court under ORS 137.108.

      (5) A person may use intoxicants during the diversion period if:

      (a) The person consumes sacramental wine given or provided as part of a religious rite or service;

      (b) The person has a valid prescription for a substance and the person takes the substance as directed; or

      (c) The person is using a nonprescription drug, as defined in ORS 689.005, in accordance with the directions for use that are printed on the label for that nonprescription drug. [1983 c.338 §369; 1985 c.16 §191; 1987 c.441 §4; 2003 c.816 §1; 2011 c.468 §3; 2013 c.78 §4; 2015 c.318 §50; 2017 c.655 §9]

Am I eligible for the DUII diversion program in Oregon?

You are likely eligible for DUII diversion if you can meet all of the criteria listed below:

(1) You have no charge of a DUII or similar charge (DWI / DUI / OUI / OVI)  in any State, other than the charge for the present offense, pending on the date you file the petition for a DUII diversion agreement;

(2) You have not been convicted of a DUII type charge within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(3) You are not already participating in a DUII 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 any other jurisdiction on the date you file the petition for a DUII diversion agreement;

(4) You did not participate in a DUII or drug diversion or rehabilitation program, other than a program entered into as a result of the charge for the present offense, within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement [Beginning in 2014, MIP and possession of less than an ounce of marijuana diversions / treatment will not keep participants out of the DUII diversion program (See ORS 813.215(1)(e));

(5) You have no charge of an offense of a vehicular homicide or vehicular assault that resulted from the operation of a motor vehicle pending in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;

(6) You have not been convicted of a vehicular homicide or vehicular assault within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(7) You did not hold a commercial driver privileges at the time of the offense;

(8) You were not operating a commercial motor vehicle at the time of the offense; and

(9) The present DUII offense did not involve an accident resulting in death of any person or physical injury to any person other than yourself;

(10) You have not been convicted of a felony DUII / DUI / DWI in Oregon or anywhere else. 

See ORS 813.215 for complete eligibility requirements.

Entry into diversion does not affect the implied consent license suspension that may have been imposed for a breath or blood test failure or refusal.  A challenge to this suspension must be done in a separate and earlier proceeding (the DMV hearing discussed above).  Likewise, entry into diversion does not affect other criminal charges (such as hit and run, reckless driving, or criminal mischief).  Some jurisdictions, however, will dismiss violations such as speeding if you enter diversion. 

 Contact Oregon diversion attorney David Lesh at 503.546.2928 to learn more.

What am I required to do in order to complete diversion for my Oregon DUII?

In order to successfully complete your DUII diversion program, you must do each of the following:

•  undergo a diagnostic assessment to determine whether or not you have an alcohol or drug problem (this is commonly referred to as an alcohol / drug evaluation);

•  complete whatever course of treatment is deemed necessary by the assessment (often 12 weeks of classes or more);

•  attend a one-time victims impact treatment session (victims panel class) (ORS 813.235);

•  pay fees, assessments, and other costs to the court, to the evaluator, and to the treatment provider (ORS 813.240);

•  not consume intoxicants (alcohol / non-prescribed drugs) for one year;

•  install an ignition interlock device on any vehicle you drive during the one year diversion period (unless you qualify for an exception for an employer owned vehicle or due to a medical condition).  This period may be shortened to as little as six months under some conditions.

How much does diversion cost?

There are no fines associated with diversion.  However, there are a number of fees that are required for completion of the program.  You can expect to pay:

 

•  $490 in fees to the court (a payment plan is available) (ORS 813.240);

•  $150 - $225 for the alcohol / drug assessment (also known as the evaluation) and monitoring of your diversion;

•  $50 or less for the victims impact treatment session (commonly referred to as the victims panel class) (ORS 813.235);

•  Fees for each of the alcohol / drug treatment classes which will vary (your health insurance may cover this);

•  Fees for the urine tests (UA's);

•  Fees for the ignition interlock device if you intend to drive during your one year diversion period ($55 - $70 / mo.).

 

The treatment fees will vary depending on which state certified treatment provider you select and the length of treatment that you are required to complete.  Note that the providers' fees vary widely so check with your health insurance for possible coverage and call around.

 

Does the DUII diversion vary from county to county in Oregon?

 

No.  The DUII diversion program is governed by Oregon Revised Statutes, so the requirements are the same whether you're in Portland, Beaverton, Hillsboro, Gresham, Oregon City, McMinnville, St. Helens, Astoria, or Lake Oswego.  Individual counties do use their own evaluators (ADES / ADSS) however.  Treatment providers follow State of Oregon guidelines.

 

Is completing the diversion program the same as a conviction?

 

No.  If you successfully complete the Oregon DUII diversion program, the DUII charge is dismissed and no conviction results.  However, if diversion is terminated for failing to comply with the program requirements a conviction is automatic.  Your driving record will reflect the diversion even after the program has been completed and the charge is dismissed.

 

How long is the diversion program in Oregon?

 

By law, the diversion program lasts exactly one year in Oregon.  ORS 813.230(3).  On rare occasions, persons may need a six month extension to complete the program requirements. 

 

So will I be in treatment for a year if I enter diversion?

 

Hopefully no.  Often the treatment portion of diversion is completed in 12 weeks or so.  ADES / ADSS will refer you to either DUII Rehabilitation Program or DUII Education Prtogram (a shorter program).  In either program you will be required to show at least 90 days of abstinence from alcohol and non-prescribed drugs.  Urine tests (UA's) are used to ensure compliance with this abstinence requirement.

 

Substance abuse treatment must be with an out-patient program.  Programs completed while in a "controlled environment" such as residential treatment, in-house, in-patient, or treatment obtained while incarcerated do not meet the requirements to obtain a DUII Treatment Completion Certificate.  Online programs are also not acceptable.

 

Can I do my alcohol classes / treatment online?

 

No.  There is no state certified online alcohol / drug treatment class in Oregon.

 

Will I have to install an ignition interlock device in my car if I enter diversion?

 

Almost always yes.  The DUII diversion program requires the installation of an ignition interlock device during the one year diversion period under most circumstances.  [If you have a controlled substance DUII, you may be able to avoid this requirement.]  See ORS 813.602.  If you have the device installed for at least six months and have no failures / lockouts you may be able to have the device removed early.  See ORS 813.645.  Consult your attorney about applying for early termination.

 

What is ADES / ADSS?

 

ADES is a historical acronym which stands for "Alcohol and Drug Evaluation and Screening Specialists."  The State of Oregon now uses the acronym ADSS which refers to "alcohol and other drug screening specialist."  OAR 415-054-0462(1).

 

ADES / ADSS serves four primary functions.  First, they conduct your evaluation / assessment.  Second, they refer you to an approved alcohol / drug treatment program.  Third, they monitor your compliance with the treatment (and often other) requirements.  Finally, they report to the court compliance to the court. 

 

Every court contracts with an ADES / ADSS to handle these functions.  By law, ADES / ADSS charges $150 for the evaluation / assessment.  An additional fee may be charged for ignition interlock monitoring ($75 to $100).  See generally ORS 813.021(1); 813.025; and 813.260.

 

ADES / ADSS serves the same function whether you're in diversion or if you're on probation following a DUII conviction.  The court or your attorney will provide you with the contact information for your ADES / ADSS once you enter diversion.  Learn more about what ADES / ADSS does here

 

A partial list of ADES / ADDS evaluators is set forth below:

 

Clackamas County Circuit Court

Pioneer Alcohol & Drug Evaluation Services, Inc. (PADES)

511 Main Street, Suite 203

Oregon City, OR 97045-1830

Phone: 503-722-5250

Fax: 503-722-5254

PADES also covers:

City of Lake Oswego Municipal Court

City of Molalla Municipal Court

City of West Linn Municipal Court



City of Canby Municipal Court

City of Gladstone Municipal Court

 

Clarke’s Assessments, LLC

 

501 Pleasant Avenue, Suite 4E

Oregon City, OR 97045

Phone: 503-974-9683

Fax: 503-908-7509

 


Columbia County Circuit Court

ADES of Columbia County

Deborah Ruiz

230 Strand Street

St. Helens, OR  97051-2040

Phone: 503-740-5653

Fax: 503-719-5742

ADES of Columbia County also covers

Columbia County Justice Court

City of Rainier Municipal Court

City of Scappoose Municipal Court

City of St. Helens Municipal Court

 


Multnomah County Circuit Court

ADES of Portland

506 SW 6th Avenue, Suite 611

Portland, OR 97204-1526

Phone: 503-719-5741

Fax: 503-719-5742

ADES of Portland also covers

Troutdale Municipal Court

City of Beaverton Municipal Court

 


Tillamook County Circuit Court

Pacific NW Sentencing Alternatives

Michel Meiffren

100 39th Street Pier 39, Suite 22C

Astoria, OR 97103-2499

Phone: 503-791-7405

Fax: 503-325-8782

 


Washington County Circuit Court

Evaluation Services

150 NE 3rd Avenue Suite B

Hillsboro, OR 97124-3150

Phone: 503-648-3800

Fax: 503-648-7321

 


Beaverton Municipal Court

Deborah Ruiz

Phone: 503-350-4027

Cell: 503-740-5653

Fax: 503-350-4031

 

Can I choose where I do my treatment classes?

 

Yes, so long as the treatment provider is a "DUII Service Provider" (DSP) approved by the Health Systems Division of the Oregon Health Authority (translation, you can go to any state certified DUII treatment provider).  ADES / ADSS cannot force you to go to a certain provider.  See OAR 415-054-0481(1)(b).

 

The DUII Services Provider conducts their own assessment and then provides education and sometimes individualized treatment services.  They also report your progress to ADES / ADSS.

Will an Oregon DUI diversion go on "my record?"  Will diversion show up on a background check?

Yes.  A diversion will go on your Oregon driving (DMV) record as a DUII diversion (not as a conviction).  The entry is made as soon as you enter diversion.  Oregon does not use a point system so points are not assessed.  In Oregon, DUI diversions and DUI convictions cannot be expunged or sealed or otherwise taken off your "record."

Is diversion the same as probation?

When you enter diversion on your DUII charge you are NOT on probation for the DUII.  Diversion is like probation in that you have obligations that you must complete or face negative consequences from the court.  However, because diversion does not result in conviction of the DUII, you are not placed on probation.

How long will the diversion stay on my record?

DUII diversion stays on your Oregon driving record essentially forever.

What happens if I don't complete the diversion program?

Oregon law requires participants to plead guilty / no contest to enter the diversion program.  Therefore, if you are terminated from diversion (flunk out) you will be convicted of the DUII and sentenced.  You will have to do treatment again from the beginning; pay a large fine; and go to jail or do community service.  You will also be placed on probation and have your right to drive in Oregon suspended for at least one year.

It is never beneficial to flunk out of diversion and "just take the conviction."  Once convicted, you'll have to repeat all the diversion requirements plus do jail; probation; and serve a new license suspension.  If possible, seek a six month extension to complete your diversion requirements.

Contact attorney David Lesh at 503.546.2928 for additional information. 

If I enter the diversion program will my (implied consent) suspension for failing or refusing a breath or blood test be rescinded, shortened, withdrawn, or cancelled?

No.  Entry into diversion has no affect on your implied consent license suspension (the suspension for failing or refusing the breath / blood / urine test).  However, successful completion of diversion means that you will receive no additional one year license suspension for a DUII conviction.  Remember that the implied consent suspension and the DUII charge are separate issues.

Can I complete the DUII diversion program even though I live in another state?

Yes.  Although it is more work to set up, you will be able to complete the diversion program even if you live in another state.  You will be required to complete alcohol / drug treatment in your own state but the program must comply with Oregon's guidelines.  Most states also have a victims panel class and ignition interlock devices.

 

Will I be placed on probation in the diversion program?

 

Not for the diversion.  Diversion is like probation in that there are specific rules you must follow but its not considered probation.  You will be placed on probation if you flunk out of diversion and are convicted of the DUII charge.  If you're convicted of another charge separate from the DUI in diversion you will likely be placed on probation for the second charge.

 

Can I go into a bar if I'm in the diversion program?

 

Yes.  There is no prohibition on entering bars or taverns with the DUII diversion program.  You cannot consume alcohol however.  If you are convicted of a DUII, you generally are prohibited from entering bars and taverns.

 

What are the advantages / disadvantages of participating in the diversion program?

 

The advantages of successfully completing the diversion program include:  no criminal conviction; no conviction based license suspension; no probation; no jail or community service; no mandatory SR-22 filing; and less fines and fees.

 

The disadvantages of electing to enter the diversion program include:  you cannot fight or otherwise challenge your impairment or the officers' actions (except at a DMV hearing); you can do diversion only once every 15 years; and participation in diversion will go on your driving record.

Are there any concerns if I have a commercial driver license (CDL) and got arrested for DUII

Unfortunately, yes.  In 2005, the Oregon Legislature made a number of changes effecting CDL holders.  Among other things, a person may enter Oregon's DUI diversion program only if the driver did not hold a commercial driver license on the date of the commission of the offense.  'Holds a commercial driver license' means a person has a commercial driver license that is:   (1) valid; (2) expired less than one year; or (3) suspended, but not canceled or revoked. See ORS 153.090.

 

But I wasn't driving commercially at the time of my arrest, so even though I have a CDL I can enter the diversion program . . . right?

 

No.  No CDL holder may enter the DUII diversion program regardless of whether or not they were driving commercially at the time of the arrest. 

 

Can I represent myself to enter the DUII diversion program?

 

Yes.  You have a constitutional right to represent yourself on any criminal charge no matter how serious.  Keep in mind that DUII law and the diversion forms are complicated as evidenced by the information above. 

If you cannot afford to hire your own lawyer, you definitely should apply for court appointed counsel to represent you. 

You have no right to court appointed counsel on an appeal of your implied consent license suspension as this is an administrative (non-criminal) proceeding.


If you would like to hire an Oregon diversion lawyer for your charge, consider contacting attorney David Lesh at 503.546.2928.  There is no charge for the initial consultation.

Mr. Lesh's office is located at 434 NW 19th Avenue in Portland on the corner of NW 19th Avenue and NW Glisan Street. 

     
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Websites, including this one, provide general Oregon DUI information and processes but do not provide legal advice or create a lawyer / client relationship.  General information cannot replace legal advice specific to your case, problem, or situation.  Consult qualified Oregon attorneys for advice about any specific problem or DUI charge that you have.  Oregon attorneys are governed by the Oregon Code of Professional Responsibility.   This website may be considered an advertisement for services under the Code.  Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way.  ORS 813010.

 

Mr. Lesh accepts American Express, Discover, Visa and MasterCard credit cards.  © Copyright 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019 by David N Lesh, duii @ outlook.com.