Oregon DUII Diversion: Eligibility, Costs & Process

Oregon DUII Diversion

Oregon DUII diversion is a one-year program that lets many first-time DUII defendants avoid a conviction and have the charge dismissed. You enter a guilty or no contest plea, the court holds off on entering a conviction, and if you finish every condition, the charge is dismissed with prejudice, meaning it cannot be refiled. Diversion is only available in certain circumstances, and you must ask for it soon after your first court appearance, or you may lose the chance to use it.

Diversion is not always the best option. If there are real problems with the stop, the testing, or the evidence, fighting the charge may make more sense. This page explains how the program works under Oregon law, who qualifies, what it costs, and what can go wrong, so you can make an informed decision with an attorney.

What Is Oregon DUII Diversion?

Diversion is an agreement between you and the court, set out in ORS 813.200 through 813.270. When the court allows your petition, the judge accepts your plea but withholds a judgment of conviction and pauses the DUII case for one year (ORS 813.230). During that year you complete an alcohol and drug screening, any treatment it recommends, and the other conditions the court sets.

If you complete everything, you can ask the court to dismiss the charge with prejudice. If you don’t, the court can end the agreement and enter the plea you already signed, which leads straight to a conviction and sentencing. That is the trade-off: diversion offers a clean outcome, but you give up the chance to contest the charge if things go wrong.

The diversion agreement does go on your Oregon driving record. The court must notify ODOT within 48 hours, and that entry matters later because a past diversion can block another diversion for 15 years.

Who Is Eligible for Oregon DUII Diversion?

Eligibility is set by ORS 813.215. You generally qualify only if all of the following are true:

No other pending DUI charge. When you file the petition, you have no other DUII charge pending in Oregon, and no DUI or “over the legal limit” driving charge pending in another state.
No DUI conviction in 15 years. You have no DUII conviction (in Oregon or an equivalent offense elsewhere) during the period starting 15 years before the date of this offense and ending when you file the petition.
No prior felony DUII conviction at any time.
No current or recent diversion. You are not currently in a DUII diversion or similar alcohol or drug rehabilitation program anywhere, and you have not participated in one in the 15-year lookback period.
No vehicle-related homicide or assault. You have no pending charge, and no conviction in the 15-year period, for aggravated vehicular homicide, murder, manslaughter, criminally negligent homicide, or assault resulting from driving.
No commercial driving privileges. You did not hold a commercial driver license (CDL) on the date of the offense, even if you were driving your personal car.
No commercial vehicle. You were not operating a commercial motor vehicle at the time.
No death or injury to others. The incident did not involve an accident that killed anyone or caused physical injury to anyone other than you.

Out-of-State Programs Count

The 15-year rule covers diversion and “similar alcohol or drug rehabilitation” programs in other states. For Washington drivers, that can include a prior Washington DUI deferred prosecution. Out-of-state DUI convictions also count as priors. One narrow exception: an out-of-state conviction based only on an under-21 driver being over a lower “zero tolerance” limit does not count.

An out-of-state plea to a lesser charge, such as Reckless Driving or Negligent Driving, may not count, but it depends on the facts and the other state’s law. Talk to an attorney about how your record affects your eligibility.

Second Diversions

A second diversion is possible only if more than 15 years have passed and you meet every condition above. You also must have no conviction for any other criminal offense involving a motor vehicle in that 15-year period.

The Court Can Still Say No

Meeting the eligibility rules does not guarantee you get in. Under ORS 813.220, the judge considers whether diversion will benefit you and the community, and may consider things like whether a passenger under 18 was in the car. The court must deny the petition if you missed your arraignment without good cause, or if you are charged with or convicted of another DUI after filing. The district attorney or city attorney can also object and ask for a hearing.

Petition Deadline and Process

At arraignment, the judge must tell you that diversion may be available (ORS 813.200). The petition is a court form, and it includes:

A signed plea of guilty or no contest to DUII
An agreement to complete a screening interview and any treatment it recommends, at your own expense based on your ability to pay
An agreement not to use intoxicants during diversion (with narrow exceptions for sacramental wine, valid prescriptions taken as directed, and over-the-counter medicine used as labeled)
A waiver of former jeopardy rights
A sworn statement that you meet the eligibility rules
Agreements to keep your mailing address current with the court and to pay any court-appointed attorney fees and restitution

The 30-Day Deadline

Under ORS 813.210, the petition must be filed within 30 days after your first appearance in court. The court can allow a later filing for good cause, but filing motions to suppress or other pretrial motions does not count as good cause. You also cannot file after you’ve entered a plea or after trial has started.

There is one exception for drug-related cases. If the charge alleges impairment by a controlled substance or inhalant, you did not have a known blood alcohol content of 0.08 or more, and police took a blood or urine sample, you may file up to 14 days after the lab results are sent to you or your attorney.

After you file, you must serve a copy on the district attorney or city attorney, who has 15 days to object and request a hearing. If no one objects, or after a hearing, the judge decides whether to allow the petition. If it is denied, your case continues and the plea in the petition cannot be used against you.

What Does Oregon DUII Diversion Cost?

The fees are set by law, but your total depends on the treatment you need:

Filing fee: $490, paid to the court when you file the petition (ORS 813.240). The court can allow installment payments or waive part or all of it if you can’t afford it.
Screening interview fee: $150, paid directly to the agency doing the alcohol and drug screening.
Victim impact panel fee: between $5 and $50, set by each county (ORS 813.235).
Treatment costs, which vary with the level of treatment recommended. Health insurance or the Oregon Health Plan may cover part of it.
Ignition interlock costs, if required, paid to the interlock vendor.

Conditions During the One-Year Diversion Period

The diversion period lasts one year from the date the court allows the petition. During that time you will typically need to:

Complete the screening and treatment. The screening determines whether you need education, outpatient treatment, or more.
Attend a victim impact panel, if your county has one and the court requires it.
Avoid alcohol and drugs entirely, not just driving after drinking.
Install an ignition interlock device, if required. Under ORS 813.602(3), the court must require an interlock in any vehicle you drive during the agreement, whenever you have driving privileges, if your breath or blood test showed 0.08 or more, if you refused a test, or if a test showed some alcohol along with another intoxicant. The court may require one in other cases. A narrow medical exemption exists. See our ignition interlock page for how the devices work.
Pay all fees and any restitution.
Commit no new DUII and no violation of ORS 811.170 (driving with an open container).
Keep the court informed of your current mailing address.

The court will also make sure you are booked (fingerprinted and photographed) if that hasn’t happened already.

Extending Diversion

If you are running out of time, ORS 813.225 lets you ask for an extension within the last 30 days of the diversion period. The court can grant it if you made a good faith effort and can finish within the extended time. An extension is limited to 180 days, and usually only one is allowed. Active-duty service members have more flexibility.

What Happens If Diversion Fails?

Under ORS 813.255, the court, on its own or at the district attorney’s request, can order you to appear and explain why your diversion should not be terminated. If you don’t show up, or the court finds you no longer qualify or didn’t complete the terms, the court enters the guilty or no contest plea you signed. You are then convicted of DUII and sentenced, with all the usual consequences, including a license suspension and a later interlock requirement.

If the only thing left is $500 or less in fees, the court can still dismiss the charge if you’ve completed everything else and pay the balance by the hearing (see also ORS 813.252).

Dismissal With Prejudice After You Finish

Once the diversion period ends and you have completed every condition, you can file a motion to dismiss under ORS 813.250, served on the district attorney or city attorney. If you don’t file within six months, the court may dismiss on its own if it finds you complied. A dismissal “with prejudice” means the charge cannot be brought again. Statements you make during the screening or treatment can’t be used as evidence in a case based on the same incident.

Diversion Does Not Stop the DMV Suspension

This surprises many people. Diversion resolves the criminal case. It does not stop the separate implied consent suspension from Oregon DMV. If you failed a breath test, a first suspension is usually 90 days, and a refusal is usually one year, longer if you have certain priors (ORS 813.420). You have only 10 days from the arrest to request a DMV hearing (ORS 813.410). To get your license back after a suspension you may need SR-22 insurance. Successfully completing diversion does avoid the additional suspension that comes with a DUII conviction.

Washington Drivers in Oregon Diversion

Our office is in Vancouver, and many of our clients are Washington drivers arrested in Portland. Washington residents can use Oregon diversion, and treatment can often be completed closer to home if the court approves. But Oregon reports the case to Washington’s Department of Licensing, and an Oregon diversion may affect your eligibility for Washington programs later. Read more about DUI license suspensions across state lines, or see our main Oregon DUII defense page.

Oregon DUII Diversion FAQ

Will diversion keep a DUII conviction off my record?

If you complete it, the charge is dismissed and you are not convicted. The arrest and the diversion agreement still appear on your Oregon driving record, and arrest records may show up in background checks. You may be able to seal the arrest record later. Ask us about your options.

Can I get diversion if I refused the breath test?

Refusing a test does not by itself disqualify you. But the court must require an ignition interlock during diversion, and DMV will still impose the refusal suspension.

I have a CDL but was driving my own car. Can I get diversion?

No. Anyone who held commercial driving privileges on the date of the offense is ineligible, regardless of what vehicle they were driving.

Does a Washington deferred prosecution make me ineligible?

Usually, if you were in it within the 15-year lookback. Oregon counts similar alcohol or drug rehabilitation programs in other states.

What if I miss the 30-day deadline?

The court can allow a late petition only for good cause, and it is not guaranteed. Contact an attorney as soon as possible after your arrest.

Can I drink alcohol during diversion?

No. The agreement requires you not to use intoxicants for the whole period, with narrow exceptions for sacramental wine and medicine taken as directed.

Do I need an attorney for diversion?

You aren’t required to have one, but the decision is a big one. Once you sign the plea, you’ve given up the chance to fight the charge if diversion fails. An attorney can review whether you have defenses worth pursuing first, such as problems with field sobriety tests.

Talk to an Oregon DUII Attorney

Oregon DUI diversion is not always the best option if you are facing a DUI. Kris Carrasco is an experienced attorney who has handled hundreds of DUI cases and can help you decide whether diversion or another strategy makes sense in your case. Every case is different, and no attorney can promise a particular result.

Kris Carrasco, Attorney at Law
1014 Franklin St, Vancouver, WA 98660
Phone: (360) 975-4673
Licensed in Washington and Oregon

Feb 28, 2024

by GC on Kris Carrasco Attorney at Law

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