Many individuals who face their first DUII charge elect to participate in Oregon’s Diversion program. Those who successfully complete the DUII Diversion have the criminal charge dismissed. To successfully complete a DUII diversion program there are multiple requirements imposed by the court. Those requirements include: (a) payment of diversion fees, (b) completion of a victim impact panel, (c) participation in an alcohol evaluation, (d) completion of an alcohol treatment program, (e) the installation and use of an ignition interlock device, and (f) the abstinence from the use of alcohol. The DUII Diversion period is originally one year, during which all conditions must be completed. In some cases, however, individuals fail to complete one of more of these requirements and put in jeopardy the dismissal of their DUII charge. Recognizing the possibility of failing to timely complete all requirements of a diversion, the Oregon legislature included a provision that would allow extension of the Diversion period and grant a way for individuals to obtain the benefits of a diversion even if they did not strictly comply with the conditions.
Recently, the Oregon Court of Appeals addressed the issue of whether judges can dismiss DUII charges even when the individual has had some failure of the diversion terms. In State v. Zook decided October 7, 2020 the court allowed the dismissal of a DUII case even though the defendant had failed to completely abstain from the use of alcohol. In the Zook case, the defendant was found to be in violation of the terms of the diversion because she consumed alcohol during her diversion period. The court was provided with a report from the IID provider that indicated the defendant had multiple breath test failures when trying to start her vehicle.
At the Show Cause Hearing, the defendant admitted to the judge that she had in fact consumed alcohol in violation of the terms of her diversion. She however, provided evidence to the court that she had completed her alcohol program, had paid the costs of the diversion, had completed her victim impact panel, and was actively using the ignition interlock device as ordered. She explained her reasons for relapse and asked the court to make a finding that she was making a good faith effort to complete her diversion. The trial court found that she was in fact making a good faith effort and agreed to extend the defendant’s diversion rather than simply terminating her diversion. In making its decision, the court indicated “Good faith is about as broad a consideration as is ever delegated to a court.” This sentiment was accepted by the Court of Appeals, which agreed that the trial court could extend a diversion even if there had been some violations of the diversion agreement.
Though the Zook case makes clear the ability of a trial court to extend a diversion agreement, it is also important to note that not every case will receive the same treatment. Extension of a diversion agreement is never a guarantee. Therefore, it is always best to strictly comply with all terms of a diversion agreement, rather than risking a criminal conviction due to what may appear to be a small indiscretion.
If you are participating in a diversion agreement and are facing the possible termination of that agreement because you did not do everything exactly as required, we can help. At Gunn & Gunn we have years of experience with DUII cases, including hundreds of diversion cases. We handle every aspect of DUII defense, from the initial stop through the eventual dismissal. When it comes to DUII cases, Gunn & Gunn has you covered.