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THE DUII DIVERSION GUIDE
I'm facing an Oregon DUII charge. What should I know about the diversion program?
The successful completion of the Oregon DUII diversion program will result in the dismissal of your DUI charge. Therefore, diversion is an attractive option for many people facing a first time DUII charge.
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 DUI charges. See ORS 813.170. Oregon also does not use a deferred prosecution program as does Washington State.
If you enter and successfully complete the DUI 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 DUI conviction. Diversion is typically the choice of someone facing a first time DUI (assuming no injury accident and no CDL).
How do I know if I am eligible for the Oregon DUII Diversion Program?
You are likely eligible for 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 jurisdiction, 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 an offense described in paragraph (1) 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 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 diversion or rehabilitation program described in paragraph (3), 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 House Bill 2773);
(5) You have no charge of an offense of murder, manslaughter, criminally negligent homicide or 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 an offense described in paragraph (5) 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 license (CDL) 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.
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.
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 to learn more.
What is required from a person opting to enter the Oregon DUII diversion program?
In order to successfully complete diversion a defendant 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);
• pay fees, assessments, and other costs to the court, to the evaluator, and to the treatment provider;
• 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).
What will the diversion program 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);
• $150 for the alcohol / drug assessment (also known as the evaluation) and monitoring;
• $50 or less for the victims impact treatment session (commonly referred to as the victims panel class);
• 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.) and possibly an additional fee for ignition interlock monitoring payable to ADES.
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 diversion program vary from county to county?
No. Diversion is a program that is governed by Oregon Revised Statutes, so the requirements are the same whether you're in Portland, Beaverton, Hillsboro, Gresham, Oregon City, or Lake Oswego. Individual counties do use their own evaluators however.
Is a DUII diversion the same as a conviction?
No. If you successfully complete the 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 does the DUII diversion program last?
By law, the diversion program lasts exactly one year. On rare occasions, persons may need a six month extension to complete the program requirements.
So will I be in treatment for a year?
Probably not. Often the treatment portion of diversion is completed in 12 weeks or so. ADES will refer you to either DUII treatment or DUII information (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 class in Oregon.
What is ADES?
ADES stands for Alcohol and Drug Evaluation and Screening Specialists." ADES serves two primary functions. First, they conduct your evaluation / assessment and refer you to alcohol / drug treatment. Second, they monitor your compliance with the treatment requirements. Every court contracts with an ADES to handle these functions. By law, ADES charges $150 for the evaluation / assessment. An additional fee may be charged for ignition interlock monitoring.
ADES serve the same function whether you're in diversion or if you're on probation following a DUII conviction.
Will an Oregon DUI diversion go on "my record?"
Yes. A diversion will go on your Oregon driving (DMV) record as a 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."
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.
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 diversion 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 DUI 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 DUII diversion program?
The advantages of successfully completing the diversion program over a DUII conviction 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.
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 diversion program?
Representing Clients in Multnomah County (Portland / Gresham); Clackamas County (Oregon City / Milwaukie / Wilsonville); Washington County (Hillsboro / Tigard / Forest Grove / Shewood); Columbia County (St Helens); Clatsop County (Seaside / Astoria); Tillamook County, and Yamhill County (McMinnville / Newberg) courts as well as Lake Oswego, Beaverton, Gladstone, Canby, Scappoose, McMinnville, West Linn, Astoria, and Troutdale Municipal Courts.
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.
Mr. Lesh accepts American Express, Discover, Visa and MasterCard credit cards. © Copyright 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015 by David N Lesh, firstname.lastname@example.org.