Bill Text: OR HB2702 | 2011 | Regular Session | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to driving while under the influence of intoxicants diversion agreement; and declaring an emergency.

Sponsorship: Unknown

Status: (Passed) 2011-06-01 - Chapter 197, (2011 Laws): Effective date June 1, 2011. [HB2702 Detail]

Download: Oregon-2011-HB2702-Engrossed.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1621

                           A-Engrossed

                         House Bill 2702
                  Ordered by the House March 8
            Including House Amendments dated March 8

Introduced and printed pursuant to House Rule 12.00. Presession
  filed (at the request of House Interim Committee on Judiciary)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.

  Prohibits court from denying petition for driving while under
influence of intoxicants diversion agreement because applicant is
person who may serve in active military service.
  Permits court to extend period of diversion agreement for
person serving in active military service.
  Permits person serving in active military service to appear at
show cause hearing by telephone or other approved communication
device and to stay hearing under specified circumstances.
  Permits court to allow person serving in active military
service to complete treatment program required as condition of
driving while under influence diversion agreement in another
jurisdiction.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to driving while under the influence of intoxicants
  diversion agreement; creating new provisions; amending ORS
  813.220, 813.225 and 813.255; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 813.220 is amended to read:
  813.220. 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, 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. + }
  SECTION 2. ORS 813.225 is amended to read:
  813.225.   { - (1) Within 30 days prior to the end of the
period of a driving while under the influence of intoxicants
diversion agreement described in ORS 813.230, a defendant may
apply by motion to the court in which the diversion agreement was
entered for an order extending the diversion period. - }
   { +  (1) A defendant may apply by motion to the court in which
a driving while under the influence of intoxicants diversion

agreement described in ORS 813.230 was entered for an order
extending the diversion period:
  (a) Within 30 days prior to the end of the diversion period; or
  (b) If the defendant is serving on active duty as a member of
the Armed Forces of the United States, or is a member of the
reserve components of the Armed Forces of the United States or
the National Guard, at any time prior to the end of the diversion
period. + }
  (2) Petition forms for an application for an extension under
this section shall be available to a defendant at the court.
  (3) The form of the petition for an extension under this
section 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 of the Supreme
Court.
  (4) The court may grant a petition for an extension filed under
this section if the court finds that the defendant made a good
faith effort to complete the conditions of the diversion
agreement and that the defendant can complete the conditions of
the diversion agreement within the requested extended diversion
period.
  (5) An extension granted under this section may be for no more
than 180 days  { + from the ending date of the original diversion
period or for another time period the court allows under
subsection (7) of this section + }.
  (6) { +  Except as provided in subsection (7) of this
section, + } a court may grant a defendant only one extension of
a diversion period under this section.
   { +  (7) The court may extend the diversion period as
necessary to allow the defendant sufficient time to complete the
conditions of the diversion agreement if the defendant:
  (a) 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;
  (b) Is on active duty or has received orders that the defendant
will be called to active duty; and
  (c) Demonstrates that the military service will impair the
defendant's ability to complete the conditions of the diversion
agreement and no comparable treatment program described in
section 5 of this 2011 Act is available. + }
    { - (7) - }  { +  (8) + } If the court grants the petition
for an extension under this section, the following apply:
  (a) If the defendant fully complies with the conditions of the
diversion agreement within the extended diversion period, the
court may dismiss the charge with prejudice under ORS 813.250.
  (b) If the court finds that the defendant failed to comply with
the diversion agreement within the extended diversion period, the
court shall enter the guilty plea or no contest plea filed as
part of the petition for a diversion agreement, shall enter a
judgment of conviction and shall sentence the defendant.
    { - (8) - }  { +  (9) + } If the court denies the petition
for an extension under this section, the court shall enter the
guilty plea or no contest plea filed as part of the petition for
a diversion agreement, shall enter a judgment of conviction and
shall sentence the defendant.
  SECTION 3. ORS 813.255 is amended to read:
  813.255. (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
defendant to appear and show cause why the court should not
terminate the diversion agreement. The order to show cause shall
state the reasons for the proposed termination and shall 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 subsection (4) 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:
  (a) At the hearing on the order to show cause, the court finds
by a preponderance of the evidence that any of the reasons for
termination described in this section exist; or
  (b) The defendant fails to appear at the hearing on the order
to show cause.
   { +  (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. + }
    { - (4) - }  { +  (5) + } 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.
    { - (5) - }  { +  (6) + } The court shall terminate a
diversion agreement under this section for any of the following
reasons:
  (a) The defendant fails to fulfill the terms of the diversion
agreement.
  (b) The defendant does not qualify for the diversion agreement
under the criteria in ORS 813.215.
  SECTION 4.  { + Section 5 of this 2011 Act is added to and made
a part of the Oregon Vehicle Code. + }
  SECTION 5.  { + In lieu of completing a treatment program in
this state as a part of completing the conditions of a driving
while under the influence of intoxicants diversion agreement in
this state, the court may allow a defendant who 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
who is serving on active duty to participate in a comparable
treatment program conducted by or authorized by a government
entity in another jurisdiction. + }
  SECTION 6.  { + Section 5 of this 2011 Act and the amendments
to ORS 813.220, 813.225 and 813.255 by sections 1 to 3 of this
2011 Act apply to petitions for driving while under the influence
of intoxicants diversion agreements filed before, on or after the
effective date of this 2011 Act. + }
  SECTION 7.  { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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