Oregon
Chapter 813
2005 EDITION
Driving Under the Influence of Intoxicants
GENERAL PROVISIONS
813.010 Driving under the influence of intoxicants;
penalty
813.012 Crime classification for purposes of rules
of Oregon Criminal Justice Commission
813.020 Fee to be paid on conviction; screening
and treatment; mandatory imprisonment
or community service; attendance at victim
impact treatment session; session fee
813.021 Requirements for screening interview and
treatment program
813.025 Designation of agency to perform screening,
diagnostic assessment and treatment;
qualifications; rules
813.030 Amount of fee; distribution
813.040 Standards for determination of problem
condition involving alcohol, inhalants or
controlled substances
813.050 Out-of-service orders for operators of
commercial motor vehicles; grounds; duration;
rules; penalty
813.052 Civil penalty for violation of out-of-service
order or notice
IMPLIED CONSENT
(Breath or Blood Test)
813.095 Offense of refusal to take a breath test;
penalty
813.100 Implied consent to breath or blood test;
confiscation of license upon refusal or
failure of test
813.110 Temporary permit upon confiscation of license
813.120 Police report to department
813.130 Rights of and consequences for person
asked to take test
(Urine Test)
813.131 Implied consent to urine test; privacy;
laboratories for analysis
813.132 Consequences of refusing to take urine
test; exception
(Field Sobriety Tests)
813.135 Implied consent to field sobriety tests
813.136 Consequence of refusal to submit to or
failure of field sobriety tests
CHEMICAL TESTS; METHODS
AND REQUIREMENTS
813.140 Chemical test with consent; unconscious
person
813.150 Chemical test at request of arrested person
813.160 Methods of conducting chemical analyses;
duties of Department of State Police; reports;
costs
PLEA AGREEMENT
813.170 Plea agreement prohibited
DIVERSION
813.200 Notice of availability of diversion; petition;
form; contents
813.210 Petition; filing fee; diagnostic assessment
fee; service on prosecutor; objection
813.215 Eligibility for diversion
813.220 Matters to be considered by court in determining
to allow diversion agreement;
reasons for denial
813.222 Right of victim to be present at hearing
813.225 Petition for extension of diversion period;
conditions
813.230 Diversion agreement; record; duration;
effect of denial
813.235 Attendance at victim impact treatment
session as condition of diversion; fee
813.240 Amount and distribution of filing fee; diagnostic
assessment fee
813.250 Motion to dismiss charge on completion
of diversion; admissibility of statements
813.255 Termination of diversion
813.260 Designation of agencies to perform diagnostic
assessments; duties of agency
813.270 Intoxicated Driver Program Fund; creation;
uses
EVIDENCE
813.300 Use of blood alcohol percentage as evidence;
percentage required for being under
the influence
813.310 Refusal to take chemical test admissible
as evidence
813.320 Effect of implied consent law on evidence
813.322 Evidence of Department of State Police
rules regarding breath tests and of officer′
s permit
813.324 Use of testimony from implied consent
hearing as evidence in prosecution
813.326 Felony driving while under the influence
of intoxicants; prior convictions
813.328 Notice of intent to challenge validity of
prior convictions
SUSPENSION
(For Conviction)
813.400 Suspension or revocation upon conviction;
duration; review
(Of Commercial Driver License)
813.403 Suspension of commercial driver license
upon conviction; review
813.404 Duration of suspension of commercial
driver license
(Under Implied Consent Law)
813.410 Suspension upon receipt of police report
on implied consent test; hearing; validity
of suspension; appeal
OREGON VEHICLE CODE
813.412 Role of peace officer in implied consent
hearing
813.420 Duration of suspension for refusal or failure
of test
813.430 Grounds for increase in duration of suspension
813.440 Grounds for hearing on validity of suspension;
rules
813.450 Appeal from suspension for refusal or
failure of breath test
813.460 Department procedures upon verification
of suspension of driving privileges of
wrong person
813.470 Department notation on record of person
acquitted after suspension
HARDSHIP PERMITS
813.500 Restrictions on issuance
813.510 Limitations on privileges granted by permit;
conditions of permit
813.520 Limitations on authority to issue hardship
permit or reinstate driving privileges
IGNITION INTERLOCK DEVICES
813.600 Ignition interlock program; rules
813.602 Circumstances under which ignition
interlock device required; costs; failure to
install; exemptions; rules
813.604 Notice of court order; notation on hardship
permit; rules
813.606 Exception for employee otherwise required
to have device
813.608 Knowingly furnishing motor vehicle without
ignition interlock device; penalty
813.610 Soliciting another to blow into ignition
interlock device; penalty
813.612 Unlawfully blowing into ignition interlock
device; penalty
813.614 Tampering with ignition interlock device;
penalty
813.616 Use of certain moneys to pay for ignition
interlock program
DRIVING UNDER THE INFLUENCE OF INTOXICANTS 813.020
GENERAL PROVISIONS
813.010 Driving under the influence of
intoxicants; penalty.
(1) A person commits
the offense of driving while under the influence
of intoxicants if the person drives a vehicle
while the person:
(a) Has 0.08 percent or more by weight
of alcohol in the blood of the person as
shown by chemical analysis of the breath or
blood of the person made under ORS 813.100,
813.140 or 813.150;
(b) Is under the influence of intoxicating
liquor, a controlled substance or an inhalant;
or
(c) Is under the influence of any combination
of intoxicating liquor, an inhalant and
a controlled substance.
(2) A person may not be convicted of
driving while under the influence of intoxicants
on the basis of being under the influence
of a controlled substance or an inhalant
unless the fact that the person was under the
influence of a controlled substance or an
inhalant is pleaded in the accusatory instrument
and is either proved at trial or is admitted
by the person through a guilty plea.
(3) A person convicted of the offense described
in this section is subject to ORS
813.020 in addition to this section.
(4) Except as provided in subsection (5)
of this section, the offense described in this
section, driving while under the influence of
intoxicants, is a Class A misdemeanor and is
applicable upon any premises open to the
public.
(5) Driving while under the influence of
intoxicants is a Class C felony if the defendant
has been convicted of driving while under
the influence of intoxicants in violation
of this section or its statutory counterpart in
another jurisdiction at least three times in
the 10 years prior to the date of the current
offense and the current offense was committed
in a motor vehicle. For purposes of this
subsection, a prior conviction for boating
while under the influence of intoxicants in
violation of ORS 830.325 or its statutory
counterpart in another jurisdiction, or for
prohibited operation of an aircraft in violation
of ORS 837.080 (1)(a) or its statutory
counterpart in another jurisdiction, shall be
considered a prior conviction of driving
while under the influence of intoxicants.
(6) In addition to any other sentence that
may be imposed, the court shall impose a
fine on a person convicted of driving while
under the influence of intoxicants as follows:
(a) For a person′s first conviction, a
minimum of $1,000.
(b) For a person′s second conviction, a
minimum of $1,500.
(c) For a person′s third or subsequent
conviction, a minimum of $2,000 if the person
is not sentenced to a term of imprisonment.
(7) Notwithstanding ORS 161.635, $10,000
is the maximum fine that a court may impose
on a person convicted of driving while under
the influence of intoxicants if:
(a) The current offense was committed in
a motor vehicle; and
(b) There was a passenger in the motor
vehicle who was under 18 years of age and
was at least three years younger than the
person driving the motor vehicle.
[1983 c.338 §587; 1985 c.16 §293; 1987 c.138 §5; 1991 c.835 §7; 1999
c.619 §3; 1999 c.1049 §1; 2003 c.14 §495; 2003 c.445 §1]
813.012 Crime classification for purposes of rules of Oregon Criminal JusticeCommission.
(1) The Oregon Criminal Justice
Commission shall classify a violation of
ORS 813.010 that is a felony as crime category
6 of the rules of the Oregon Criminal
Justice Commission.
(2) In determining criminal history for a
person convicted of a felony that has operation
of a motor vehicle as an element, or of
a felony that involved death, injury or property
damage caused by the use of a motor
vehicle, the commission shall:
(a) Consider two prior convictions of
misdemeanor driving while under the influence
of intoxicants to be equivalent to one
conviction of felony driving while under the
influence of intoxicants; and
(b) Consider felony driving while under
the influence of intoxicants to be a person
felony and consider misdemeanor driving
while under the influence of intoxicants to
be a person Class A misdemeanor. [1999 c.1049 §3]
813.020 Fee to be paid on conviction;screening and treatment; mandatory imprisonmentor community service; attendance
at victim impact treatmentsession; session fee.
When a person is convicted
of driving while under the influence
of intoxicants in violation of ORS 813.010, a
court shall comply with the following in addition
to any fine or other penalty imposed
upon the person under ORS 813.010:
(1) The court shall require the person to:
(a) Pay to the court the fee described
under ORS 813.030 in addition to any fine
imposed under ORS 813.010; and
(b) Complete a screening interview and a
treatment program as provided in ORS 813.021.
(2) The court must impose and not suspend
execution of a sentence requiring the
person either to serve at least 48 hours′ imprisonment,
which shall be served consecutively
unless justice requires otherwise, or
to perform community service for times
specified by the court under ORS 137.129.
For purposes of this subsection:
(a) A court may provide for the imprisonment
to be served in jail, minimum security
facilities or inpatient rehabilitation or
treatment centers.
(b) Whenever the judge provides for the
mandatory imprisonment to be served other
than consecutively, the judgment must specifically
so provide and the judge must state
the reasons in writing.
(3) In a county that has a victim impact
program a court may require the person to
attend a victim impact treatment session. If
the court requires attendance under this
section, the court may require the defendant
to pay a reasonable fee to the victim impact
program to offset the cost of the defendant′s
participation. The fee shall be established for
each county by the victim impact panel coordinator
and steering committee of that
county and shall be not less than $5 or more
than $50.
[1983 c.338 §588; 1985 c.16 §294 and former
487.549; 1989 c.576 §5; 1991 c.557 §3; 1993 c.13 §4; 1993
c.468 §1; 1999 c.126 §1; 2003 c.14 §496]
813.021 Requirements for screeninginterview and treatment program.
(1)
When a court, in accordance with ORS
813.020, requires a person to complete a
screening interview and a treatment program,
the court shall require the person to
do all of the following:
(a) Complete a screening interview for
the purpose of determining appropriate
placement of the person in a program for
treatment for alcoholism, drug dependency
or dependency on inhalants.
(b) Pay directly to the agency or organization
conducting the screening interview a
fee of $150.
(c) Complete the treatment program to
which the person is referred.
(d) Pay for the treatment program to
which the person is referred.
(2) The screening interview required by
this section shall be conducted by an agency
or organization designated by the court. The
designated agency or organization must meet
the standards set by the Director of Human
Services to conduct the screening interviews.
Wherever possible a court shall designate
agencies or organizations to perform the
screening interview that are separate from
those that may be designated to carry out a
treatment program.
(3) An agency or organization doing a
screening interview under this section may
not refer a person to a treatment program
that has not been approved by the Director
of Human Services.
(4) The agency or organization conducting
a screening interview under this section
shall monitor the progress of the person referred
to the agency or organization. The
agency or organization shall make a report
to the referring court stating the person′s
successful completion or failure to complete
all or any part of the screening interview or
of the treatment program to which the person
was referred by the agency or organization.
The report shall be in a form
determined by agreement between the court
and the agency or organization.
[1999 c.126 §3;
1999 c.619 §8a; 2005 c.303 §1]
Note: 813.021 was added to and made a part of the
Oregon Vehicle Code by legislative action but was not
added to ORS chapter 813 or any smaller series therein.
See Preface to Oregon Revised Statutes for further explanation.
813.025 Designation of agency to perform screening, diagnostic assessmentand treatment; qualifications; rules.
A
court may designate a single agency or organization
to perform the screening interviews
and treatment programs described in
ORS 813.021, or the diagnostic assessment
and treatment described in ORS 813.260 (1)
when the Director of Human Services certifies
that:
(1) An agency or organization may accept
such designations due to the lack of alternative
agencies or organizations in the service
area; or
(2) An agency or organization has applied
to and been authorized by the Director of
Human Services to operate a demonstration
project that combines screening interviews
and treatment programs or diagnostic assessment
and treatment. The Director of Human
Services shall by rule set forth the
conditions under which a demonstration
project may be authorized.
[1991 c.557 §2; 1999
c.126 §4]
813.030 Amount of fee; distribution.
The fee required by ORS 471.432 and 813.020
(1) shall be in the amount of $130, except
that the court may waive all or part of the
fee in cases involving indigent defendants.
The court may make provision for payment
of the fee on an installment basis. The fee
shall be ordered paid as follows:
(1) $105 to be credited and distributed
under ORS 137.295 as an obligation payable
to the state; and
(2) $25 to be paid to the Director of Human
Services for deposit in the Intoxicated
Driver Program Fund created by ORS
813.270.
[1985 c.16 §296; 1987 c.905 §29; 1989 c.576 §§6a,7a; 1989 c.635 §§1,3; 1991 c.557 §4; 1993 c.13 §5; 1999
c.646 §3]
813.040 Standards for determination of problem condition involving alcohol, inhalants or controlled substances.
This
section establishes, for purposes of ORS
471.432, 807.060 and 813.500, when a person
has a problem condition involving alcohol,
inhalants or controlled substances. For purposes
of ORS 471.432, 807.060 and 813.500, a
person has a problem condition involving alcohol,
inhalants or controlled substances if
it is determined that the person has a problem
condition in which the person′s health
or that of others is substantially impaired or
endangered or the person′s social or economic
function is substantially disrupted because
of the person′s:
(1) Habitual or periodic use of alcoholic
beverages; or
(2) Use of or loss of the ability to control
the use of controlled substances, inhalants
or other substances with abuse potential including
a condition that may have developed:
(a) A physical dependence in which the
body requires a continuing supply of a drug,
inhalant or controlled substance to avoid
characteristic withdrawal symptoms; or
(b) A psychological dependence characterized
by an overwhelming mental desire for
continued use of a drug, inhalant or controlled
substance.
[1983 c.338 §589; 1999 c.126 §5;
1999 c.619 §9; 1999 c.646 §4]
813.050 Out-of-service orders for operators of commercial motor vehicles;grounds; duration; rules; penalty.
(1) A
police officer or a person authorized by the
Department of Transportation to perform vehicle
safety inspections shall issue an out-ofservice
order to the operator of a commercial
motor vehicle if any of the following applies:
(a) The person has reasonable grounds to
believe that the operator has consumed alcohol
or other intoxicating beverage within
four hours prior to the time the operator began
operating the vehicle or at any time
while operating the vehicle. As used in this
paragraph, “reasonable grounds” includes,
but is not limited to, smelling alcohol on the
breath or person of the operator.
(b) A chemical test of the operator′s
breath discloses any amount of alcohol in the
blood of the operator.
(c) The operator possesses an intoxicating
beverage while operating the vehicle.
This subsection does not apply to possession
of an intoxicating beverage that is manifested
and transported as part of a shipment.
(2) An out-of-service order issued under
this section shall become effective upon its
issuance and shall remain in effect for 24
hours.
(3) The Department of Transportation
shall adopt rules requiring that any driver
issued an out-of-service order under this section
be required to report the order to the
department and to the driver′s employer.
Rules adopted under this section may include,
but need not be limited to, rules specifying
the times within which reports must
be made and the contents of the reports.
(4) Violation of an out-of-service order
issued under this section is a Class A misdemeanor.
[1991 c.185 §14; 1993 c.400 §1]
813.052 Civil penalty for violation ofout-of-service order or notice.
(1) When
the Department of Transportation receives
notice that a person has violated an out-ofservice
order issued under ORS 813.050 or
has knowingly violated any other out-ofservice
order or notice, in addition to suspension
of driving privileges imposed under
ORS 809.413, the department shall impose a
civil penalty of not less than $1,000 or more
than $2,000 on the operator of the commercial
motor vehicle.
(2) For purposes of this section, “notice”
includes, but is not necessarily limited to, a
record of conviction and a record of a determination
by a state or federal agency with
jurisdiction to make such determinations
that the person has violated an out-of-service
order or notice.
(3) Civil penalties under this section
shall be imposed in the manner provided in
ORS 183.745. [1993 c.400 §4; 2003 c.402 §39]
Note: 813.052 was added to and made a part of the
Oregon Vehicle Code by legislative action but was not
added to ORS chapter 813 or any smaller series therein.
See Preface to Oregon Revised Statutes for further explanation.
IMPLIED CONSENT
(Breath or Blood Test)
813.095 Offense of refusal to take abreath test; penalty.
(1) A person commits
the offense of refusal to take a breath test if
the person refuses to take a breath test when
requested to do so in ccordance with the
provisions of ORS 813.100.
(2) The offense described in this section,
refusal to take a breath test, is a traffic offense
punishable by a fine of at least $500
and not more than $1,000. The fine described
in this section is in addition to any other
consequence prescribed by law for refusal to
take a breath test.
[2003 c.814 §2]
813.100 Implied consent to breath or blood test; confiscation of license uponrefusal or failure of test.
(1) Any person
who operates a motor vehicle upon premises
open to the public or the highways of this
state shall be deemed to have given consent,
subject to the implied consent law, to a
chemical test of the person′s breath, or of
the person′s blood if the person is receiving
medical care in a health care facility immediately
after a motor vehicle accident, for the
purpose of determining the alcoholic content
of the person′s blood if the person is arrested
for driving a motor vehicle while under the
influence of intoxicants in violation of ORS
813.010 or of a municipal ordinance. A test
shall be administered upon the request of a
police officer having reasonable grounds to
believe the person arrested to have been
driving while under the influence of intoxicants
in violation of ORS 813.010 or of a
municipal ordinance. Before the test is administered
the person requested to take the
test shall be informed of consequences and
rights as described under ORS 813.130.
(2) No chemical test of the person′s
breath or blood shall be given, under subsection
(1) of this section, to a person under arrest
for driving a motor vehicle while under
the influence of intoxicants in violation of
ORS 813.010 or of a municipal ordinance, if
the person refuses the request of a police officer
to submit to the chemical test after the
person has been informed of consequences
and rights as described under ORS 813.130.
(3) If a person refuses to take a test under
this section or if a breath test under this
section discloses that the person, at the time
of the test, had a level of alcohol in the person′s blood that constitutes being under the
influence of intoxicating liquor under ORS
813.300, the person′s driving privileges are
subject to suspension under ORS 813.410 and
the police officer shall do all of the following:
(a) Immediately take custody of any
driver license or permit issued by this state
to the person to grant driving privileges.
(b) Provide the person with a written notice
of intent to suspend, on forms prepared
and provided by the Department of Transportation.
The written notice shall inform
the person of consequences and rights as described
under ORS 813.130.
(c) If the person qualifies under ORS
813.110, issue to the person, on behalf of the
department, a temporary driving permit described
under ORS 813.110.
(d) Within a period of time required by
the department by rule, report action taken
under this section to the department and
prepare and cause to be delivered to the department
a report as described in ORS
813.120, along with the confiscated license or
permit and a copy of the notice of intent to
suspend.
(4) If a blood test under this section discloses
that the person, at the time of the
test, had a level of alcohol in the person′s
blood that constitutes being under the influence
of intoxicating liquor under ORS
813.300, the person′s driving privileges are
subject to suspension under ORS 813.410 and
the police officer shall report to the department
within 45 days of the date of arrest
that the person failed the blood test.
[1983
c.338 §591; 1985 c.16 §298; 1985 c.672 §19; 1993 c.305 §1;
1995 c.568 §1]
813.110 Temporary permit upon confiscationof license.
(1) Except as otherwise
provided by this section, police officers, on
behalf of the Department of Transportation,
shall issue temporary driving permits described
under this section to persons when
required under ORS 813.100.
(2) The department shall provide police
departments and agencies with permits for
issuance as required by this section. The
department shall establish the form and content
of permits described in this section as
the department determines appropriate, but
in a manner consistent with this section.
(3) A permit described in this section is
subject to all the following:
(a) Except as provided in paragraph (b)
of this subsection, the permit is valid until
the 30th day after the date of arrest.
(b) During the 12-hour period following
issuance of the permit, the person is subject
to ORS 807.570, and the permit is not a defense
to a charge under ORS 807.570.
(c) The permit shall be issued without
payment of any fee.
(d) The permit grants the same driving
privileges as those granted by the person′s
license taken into possession under ORS
813.100.
(4) A police officer shall not issue a permit
under this section if:
(a) Driving privileges of the person were
suspended, revoked or canceled at the time
the person was arrested;
(b) The person whose license was taken
into custody was operating on an invalid license;
(c) The person was not entitled to driving
privileges at the time of the arrest for any
other reason; or
(d) The person holds a license or permit
granting driving privileges that was issued
by another state or jurisdiction and that is
not taken into custody under ORS 813.100.
[1985 c.16 §142; 1985 c.672 §17]
813.120 Police report to department.
(1) A report required by ORS 813.100 shall
disclose substantially all of the following information:
(a) Whether the person, at the time the
person was requested to submit to a test, was
under arrest for driving a motor vehicle
while under the influence of intoxicants in
violation of ORS 813.010 or of a municipal
ordinance.
(b) Whether the police officer had reasonable
grounds to believe, at the time the
request was made, that the person arrested
had been driving under the influence of intoxicants
in violation of ORS 813.010 or of a
municipal ordinance.
(c) Whether the person refused to submit
to a test or if the person submitted to a
breath or blood test whether the level of alcohol
in the person′s blood, as shown by the
test, was sufficient to constitute being under
the influence of intoxicating liquor under
ORS 813.300.
(d) Whether the person was driving a
commercial motor vehicle and refused to
submit to a test or if the person submitted
to a breath or blood test whether the level
of alcohol in the person′s blood, as shown by
the test, was 0.04 percent or more by weight.
(e) Whether the person was informed of
consequences and rights as described under
ORS 813.130.
(f) Whether the person was given written
notice of intent to suspend required by ORS
813.100 (3)(b).
(g) If the arrested person took a test, a
statement that the person conducting the
test was appropriately qualified.
(h) If the arrested person took a test, a
statement that any methods, procedures and
equipment used in the test comply with any
requirements under ORS 813.160.
(2) A report required by ORS 813.100 may
be made in one or more forms specified by
the Department of Transportation.
[1983 c.338 §405; 1985 c.16 §215; 1985 c.672 §20; 1989 c.636 §42; 1993
c.305 §3; 1993 c.751 §70; 1995 c.568 §3]
813.130 Rights of and consequences forperson asked to take test.
This section establishes
the requirements for information
about rights and consequences for purposes
of ORS 813.100 and 813.410. The following
apply to the information about rights and
consequences:
(1) The information about rights and
consequences shall be substantially in the
form prepared by the Department of Transportation.
The department may establish any
form it determines appropriate and convenient.
(2) The information about rights and
consequences shall be substantially as follows:
(a) Driving under the influence of intoxicants
is a crime in Oregon, and the person
is subject to criminal penalties if a test under
ORS 813.100 shows that the person is
under the influence of intoxicants. If the
person refuses a test or fails, evidence of the
refusal or failure may also be offered against
the person.
(b) The person will fail a test under ORS
813.100 for purposes of criminal penalties if
the test discloses a blood alcohol content of
0.08 percent or more by weight. The person
will fail a test for purposes of the Motorist
Implied Consent Law if the test discloses a
blood alcohol content of:
(A) 0.08 percent or more by weight if the
person was not driving a commercial motor
vehicle;
(B) 0.04 percent or more by weight if the
person was driving a commercial motor vehicle;
or
(C) Any amount if the person was under
21 years of age.
(c) If the person refuses or fails a test
under ORS 813.100, the person′s driving
privileges will be suspended. The outcome of
a criminal charge for driving under the influence
of intoxicants will not affect the suspension.
The suspension will be substantially
longer if the person refuses a test.
(d) If the person refuses a test or fails a
breath test under ORS 813.100 and has an
Oregon driver license or permit, the license
or permit will be taken immediately and, unless
the person does not currently have full
valid driving privileges, a temporary driving
permit will be issued to the person.
(e) If the person refuses a test under ORS
813.100, the person will not be eligible for a
hardship permit for at least 90 days, and
possibly for one year, depending on the person′s driving record. The person may possibly
qualify for a hardship permit in 30 days if the
person fails a test, depending on the person′s
driving record.
(f) If the person refuses a breath test under
ORS 813.100, the person is subject to a
fine of at least $500 and not more than
$1,000.
(g) After taking a test under ORS
813.100, the person will have a reasonable
opportunity, upon request, for an additional
chemical test for blood alcohol content to be
performed at the person′s own expense by a
qualified individual of the person′s choosing.
(h) The person has a right to a hearing
to challenge the validity of the suspension
before the suspension becomes effective. The
person must make a written request to the
department for such a hearing. If the person
wins at the hearing, the person′s driving
privileges will not be suspended. If the person
loses at the hearing, the suspension will
remain in effect during any court review of
the hearing.
813.131 OREGON VEHICLE CODE
(i) The following times:
(A) If the person is issued a temporary
driving permit under ORS 813.100, the number
of hours before the driving permit will
be effective and the number of days the permit
will be effective.
(B) The number of days within which a
person must request a hearing under ORS
813.410.
(C) The number of days within which a
hearing under ORS 813.410 will be held.
(3) If the person is driving a commercial
motor vehicle, the information about rights
and consequences shall include, in addition
to the provisions of subsection (2) of this
section, substantially the following:
(a) If the person refuses a test under ORS
813.100 or submits to a breath or blood test
and the level of alcohol in the person′s blood
is 0.04 percent or more by weight, the person′s commercial driver license or right to
apply for a commercial driver license will be
suspended and no hardship permit authorizing
the person to drive a commercial motor
vehicle will be issued. The suspension will
be substantially longer if the person refuses
a test.
(b) The suspension of the person′s commercial
driver license or right to apply for a
commercial driver license will be for the
person′s lifetime if the person refuses a test
under ORS 813.100 or submits to a breath or
blood test and the level of alcohol in the
person′s blood is 0.04 percent or more by
weight and:
(A) The person previously has been convicted
of failure to perform the duties of a
driver;
(B) The person previously has been convicted
of a crime punishable as a felony and
the person was driving a motor vehicle at
the time the offense was committed;
(C) The person previously has been convicted
of driving a commercial motor vehicle
while the person′s commercial driver license
or right to apply for a commercial driver license
was suspended or revoked;
(D) The person previously has been convicted
of any degree of murder, manslaughter
or criminally negligent homicide resulting
from the operation of a commercial motor
vehicle or assault in the first degree resulting
from the operation of a commercial motor
vehicle;
(E) The person previously has been convicted
of driving while under the influence
of intoxicants;
(F) The person′s commercial driver license
previously has been suspended or revoked
for refusal to submit to, or failure of,
a breath or blood test under ORS 813.100; or
(G) The person′s right to apply for a
commercial driver license previously has
been suspended or revoked for refusal to
submit to, or failure of, a breath or blood test
under ORS 813.100 resulting from the operation
of a commercial motor vehicle.
(4) Nothing in this section prohibits the
department from providing additional information
concerning rights and consequences
that the department considers convenient or
appropriate.
[1985 c.672 §22; 1987 c.673 §3; 1987 c.801 §11; 1989 c.171 §92; 1989 c.636 §43; 1991 c.185 §15; 1991
c.860 §10; 1993 c.305 §4; 1995 c.568 §4; 2003 c.814 §3; 2005
c.649 §28]
(Urine Test)
813.131 Implied consent to urine test;privacy; laboratories for analysis.
(1) Any
person who operates a motor vehicle upon
premises open to the public or the highways
of this state shall be deemed to have given
consent, subject to the Motorist Implied
Consent Law, to a chemical test of the person′s urine for the purpose of determining
the presence of a controlled substance or an
inhalant in the person′s body if the person is
arrested for driving while under the influence
of intoxicants in violation of ORS
813.010 or of a municipal ordinance and either:
(a) The person takes the breath test described
in ORS 813.100 and the test discloses
a blood alcohol content of less than 0.08
percent; or
(b) The person is involved in an accident
resulting in injury or property damage. A
urine test may be requested under this paragraph
regardless of whether a breath test has
been requested and regardless of the results
of a breath test, if one is taken.
(2) A police officer may not request a
urine test unless the officer is certified by
the Board on Public Safety Standards and
Training as having completed at least eight
hours of training in recognition of drug impaired
driving and the officer has a reasonable
suspicion that the person arrested has
been driving while under the influence of a
controlled substance, an inhalant or any
combination of an inhalant, a controlled
substance and intoxicating liquor.
(3) A person asked to give a urine sample
shall be given privacy and may not be observed
by a police officer when producing the
sample.
(4) A chemical analysis of a person′s
urine under this section shall be performed
in an accredited or licensed toxicology laboratory.
[1995 c.676 §1; 1999 c.619 §10; 1999 c.752 §1]
813.132 Consequences of refusing totake urine test; exception.
(1) Except as
otherwise provided in this section, a refusal
to take a urine test requested under ORS
813.131 shall be treated for all purposes as a
refusal to take a breath test. A suspension
imposed for refusal to take a urine test shall
be consecutive to any other suspension imposed
under the Motorist Implied Consent
Law. If a person is subject to consecutive
suspensions, the length of time that must
elapse before the Department of Transportation
may reinstate driving privileges or issue
a hardship permit under ORS 813.520 shall
be doubled.
(2) Before any test of urine may be administered
under ORS 813.131, in addition to
information described in ORS 813.130, the
person asked to take the test shall be informed
that if the person refuses the test, the
person′s driving privileges will be suspended
for the same time period and with the same
consequences as if the person had refused
the breath test and that a suspension for refusal
of the urine test will be consecutive to
any other suspension under the Motorist Implied
Consent Law.
(3) Notwithstanding subsection (1) of this
section, no suspension of driving privileges
shall be imposed for refusal to provide a
urine sample if the person provides documentation
from a physician licensed by this
state showing that the person has a medical
condition that makes it impossible for the
person to provide a sample.
[1995 c.676 §2; 1997
c.25 §3]
(Field Sobriety Tests)
813.135 Implied consent to fieldsobriety tests.
Any person who operates a
vehicle upon premises open to the public or
the highways of the state shall be deemed to
have given consent to submit to field
sobriety tests upon the request of a police
officer for the purpose of determining if the
person is under the influence of intoxicants
if the police officer reasonably suspects that
the person has committed the offense of
driving while under the influence of intoxicants
in violation of ORS 813.010 or a municipal
ordinance. Before the tests are
administered, the person requested to take
the tests shall be informed of the consequences
of refusing to take or failing to submit
to the tests under ORS 813.136.
[1989 c.576 §15]
813.136 Consequence of refusal to submitto or failure of field sobriety tests.
If
a person refuses or fails to submit to field
sobriety tests as required by ORS 813.135,
evidence of the person′s refusal or failure to
submit is admissible in any criminal or civil
action or proceeding arising out of allegations
that the person was driving while
under the influence of intoxicants.
[1989 c.576 §14]
CHEMICAL TESTS; METHODSAND REQUIREMENTS813.140 Chemical test with consent;unconscious person.
Nothing in ORS
813.100 is intended to preclude the administration
of a chemical test described in this
section. A police officer may obtain a chemical
test of the blood to determine the amount
of alcohol in any person′s blood or a test of
the person′s blood or urine, or both, to determine
the presence of a controlled substance
or an inhalant in the person as
provided in the following:
(1) If, when requested by a police officer,
the person expressly consents to such a test.
(2) Notwithstanding subsection (1) of this
section, from a person without the person′s
consent if:
(a) The police officer has probable cause
to believe that the person was driving while
under the influence of intoxicants and that
evidence of the offense will be found in the
person′s blood or urine; and
(b) The person is unconscious or otherwise
in a condition rendering the person incapable
of expressly consenting to the test
or tests requested.
[1983 c.338 §593; 1985 c.16 §299;
1999 c.619 §11]
813.150 Chemical test at request ofarrested person.
In addition to a chemical
test of the breath, blood or urine administered
under ORS 813.100 or 813.140, upon the
request of a police officer, a person shall be
permitted upon request, at the person′s own
expense, reasonable opportunity to have any
licensed physician and surgeon, licensed professional
nurse or qualified technician,
chemist or other qualified person of the person′s own choosing administer a chemical
test or tests of the person′s breath or blood
for the purpose of determining the alcoholic
content of the person′s blood or a chemical
test or tests of the person′s blood or urine,
or both, for the purpose of determining the
presence of a controlled substance or an
inhalant in the person. The failure or inability
to obtain such a test or tests by a person
shall not preclude the admission of evidence
relating to a test or tests taken upon the request
of a police officer.
[1983 c.338 §594; 1985 c.16 §300; 1999 c.619 §12]
813.160 Methods of conducting chemicalanalyses; duties of Department ofState Police; reports; costs.
(1) A chemical
analysis is valid under ORS 813.300 if:
(a) It is an analysis of a person′s blood
for alcohol content and is performed in:
(A) A laboratory certified or accredited
under 42 C.F.R. part 493 and approved for
toxicology testing;
(B) A laboratory licensed under ORS
438.110 and approved for toxicology testing;
or
(C) A forensic laboratory established by
the Department of State Police under ORS
181.080 that is accredited by a national
forensic accrediting organization.
(b) It is an analysis of a person′s breath
and is performed by an individual possessing
a valid permit to perform chemical analyses
issued by the Department of State Police and
is performed according to methods approved
by the Department of State Police. For purposes
of this paragraph, the Department of
State Police shall do all of the following:
(A) Approve methods of performing
chemical analyses of a person′s breath.
(B) Prepare manuals and conduct courses
throughout the state for the training of police
officers in chemical analyses of a person′s breath, which courses shall include, but
are not limited to, approved methods of
chemical analyses, use of approved equipment
and interpretation of test results together
with a written examination on these
subjects.
(C) Test and certify the accuracy of
equipment to be used by police officers for
chemical analyses of a person′s breath before
regular use of the equipment and periodically
thereafter at intervals of not more than 90
days. Tests and certification required by this
subparagraph must be conducted by trained
technicians. Certification under this subparagraph
does not require a signed document.
(D) Ascertain the qualifications and competence
of individuals to conduct chemical
analyses in accordance with one or more
methods approved by the department.
(E) Issue permits to individuals according
to their qualifications. Permits may be issued
to police officers only upon satisfactory completion
of the prescribed training course and
written examination. A permit must state the
methods and equipment that the police officer
is qualified to use. Permits are subject to
termination or revocation at the discretion
of the Department of State Police.
(2) In conducting a chemical test of the
blood, only a duly licensed physician or a
person acting under the direction or control
of a duly licensed physician may withdraw
blood or pierce human tissue. A licensed
physician, or a qualified person acting under
the direction or control of a duly licensed
physician, is not civilly liable for withdrawing
any bodily substance, in a medically acceptable
manner, at the request of a peace
officer.
(3) An individual who performs a chemical
analysis of breath or blood under ORS
813.100 or 813.140 shall prepare and sign a
written report of the findings of the test that
must include the identification of the police
officer upon whose request the test was administered.
(4) Any individual having custody of the
report mentioned in subsection (3) of this
section shall, upon request of the person
tested, furnish that person or that person′s
attorney, a copy of the report.
(5) The expense of conducting a chemical
test as provided by ORS 813.100 or 813.140
must be paid by the governmental unit on
whose equipment the test is conducted or by
the governmental unit upon whose request
the test was administered if no governmental
unit′s equipment is used to conduct the test.
[1983 c.338 §173; 1985 c.16 §57; 1985 c.337 §2; 1995 c.351 §1; 2003 c.19 §1]
PLEA AGREEMENT
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]
DIVERSION
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 diagnostic
assessment 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 indicated as necessary by the diagnostic
assessment;
(d) An agreement by the defendant to not
use intoxicants in conjunction with the defendant′s operation of a motor vehicle and to
comply fully with the laws of this state designed
to discourage the use of intoxicants in
conjunction with motor vehicle operation;
(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; and
(i) An agreement by the defendant to pay
court-appointed attorney fees as determined
by the court.
[1983 c.338 §369; 1985 c.16 §191; 1987
c.441 §4; 2003 c.816 §1]
Note: Section 6 (1), chapter 816, Oregon Laws 2003,
provides:
Sec. 6. (1) The amendments to ORS 813.200, 813.210,
813.225, 813.230 and 813.255 by sections 1 to 5 of this
2003 Act, apply only to petitions for driving while under
the influence of intoxicants diversion agreements filed
on and after the effective date of this 2003 Act [January
1, 2004].
[2003 c.816 §6(1)]
813.210 Petition; filing fee; diagnosticassessment fee; service on prosecutor;objection.
(1) After an accusatory instrument
has been filed charging the defendant
with the offense of driving while under the
influence of intoxicants, a defendant may file
with the court a petition for a driving while
under the influence of intoxicants diversion
agreement described in ORS 813.200. The petition:
(a) Must be filed within 30 days after the
date of the defendant′s first appearance on
the summons, unless a later filing date is allowed
by the court upon a showing of good
cause. For purposes of this paragraph, the
filing of a demurrer, a motion to suppress or
a motion for an omnibus hearing does not
constitute good cause.
(b) Notwithstanding paragraph (a) of this
subsection, may not be filed after entry of a
guilty plea or a no contest plea or after
commencement of any trial on the charge
whether or not a new trial or retrial is ordered
for any reason.
(2) The defendant shall pay to the court,
at the time of filing a petition for a driving
while under the influence of intoxicants diversion
agreement, a filing fee established
under ORS 813.240. The court may make
provision for payment of the filing fee by the
defendant on an installment basis. The court
may waive all or part of the filing fee in
cases involving indigent defendants. The filing
fee paid to the court under this subsection
shall be retained by the court if the
petition is allowed. The filing fee shall be
distributed as provided by ORS 813.240.
(3) The defendant shall pay to the agency
or organization providing the diagnostic assessment,
at the time the petition is allowed,
the fee required by ORS 813.240 (2).
(4)(a) Unless otherwise provided under
paragraph (b) of this subsection, the defendant
shall pay to the court any courtappointed
attorney fees agreed to under ORS
813.200 (4)(i). Payments shall be made prior
to the end of the diversion period on a
schedule determined by the court.
(b) The court may waive all or part of the
court-appointed attorney fees agreed to under
ORS 813.200 (4)(i).
(5) The defendant shall cause a copy of
the petition for a driving while under the
influence of intoxicants diversion agreement
to be served upon the district attorney or
city attorney. The district attorney or city
attorney may file with the court, within 15
days after the date of service, a written objection
to the petition and a request for a
hearing.
[1983 c.338 §370; 1985 c.16 §192; 1987 c.441 §5; 1987 c.534 §1; 1993 c.13 §6; 2003 c.816 §2]
Note: See note under 813.200.
813.215 Eligibility for diversion.
A defendant
is eligible for diversion if:
(1) The defendant had no charge of an
offense of driving while under the influence
of intoxicants or its statutory counterpart in
any jurisdiction, other than the charge for
the present offense, pending on the date the
defendant filed the petition for a driving
while under the influence of intoxicants diversion
agreement;
(2) The defendant has not been convicted
of an offense described in subsection (1) of
this section within the period beginning 10
years before the date of the commission of
the present offense and ending on the date
the defendant filed the petition for a driving
while under the influence of intoxicants diversion
agreement;
(3) The defendant was not participating
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 any other jurisdiction on the date
the defendant filed the petition for a driving
while under the influence of intoxicants diversion
agreement;
(4) The defendant did not participate in
a diversion or rehabilitation program described
in subsection (3) of this section, other
than a program entered into as a result of
the charge for the present offense, within the
period beginning 10 years before the date of
the commission of the present offense and
ending on the date the defendant filed the
petition for a driving while under the influence
of intoxicants diversion agreement;
(5) The defendant had 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 the defendant filed the petition
for a driving while under the influence of
intoxicants diversion agreement;
(6) The defendant has not been convicted
of an offense described in subsection (5) of
this section within the period beginning 10
years before the date of the commission of
the present offense and ending on the date
the defendant filed the petition for a driving
while under the influence of intoxicants diversion
agreement;
(7) The defendant did not have a commercial
driver license at the time of the offense;
(8) The defendant was not operating a
commercial motor vehicle at the time of the
offense; and
(9) The present driving while under the
influence of intoxicants offense did not involve
an accident resulting in:
(a) Death of any person other than the
defendant; or
(b) Physical injury as defined in ORS
161.015 to any person other than the defendant.
[1987 c.441 §3; 1997 c.749 §5; 1999 c.445 §1; 1999
c.1051 §295; 2005 c.649 §29]
813.220 Matters to be considered by court in determining to allow diversionagreement; reasons for denial.
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 the defendant was
charged with or convicted of an offense of
driving while under the influence of intoxicants
or its statutory counterpart in any jurisdiction
after the date the defendant filed
the petition.
(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 any other 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
murder, manslaughter, criminally negligent
homicide or assault that resulted from the
operation of a motor vehicle in this state or
in any other jurisdiction after the date the
defendant filed the petition.
[1983 c.338 §371; 1987
c.441 §6; 1997 c.749 §6; 1999 c.1051 §296; 2003 c.445 §2]
813.222 Right of victim to be presentat hearing.
(1) If a driving while under the
influence of intoxicants offense involves
damage to property of a person other than
the defendant, the victim of the property
damage has a right to be present and to be
heard at any hearing on a petition for a diversion
agreement.
(2) The district attorney or city attorney
shall notify the victim that the defendant
may be eligible for diversion and that if there
is a hearing on a petition for diversion, the
victim has a right to be present and to be
heard at the hearing. [1999 c.445 §3]
813.225 Petition for extension of diversionperiod; conditions.
(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.
(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.
(6) A court may grant a defendant only
one extension of a diversion period under
this section.
(7) 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) 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.
[1997 c.749 §7; 2003 c.816 §3]
Note: Section 6, chapter 816, Oregon Laws 2003,
provides:
Sec. 6.
(1) The amendments to ORS 813.200, 813.210,
813.225, 813.230 and 813.255 by sections 1 to 5 of this
2003 Act, apply only to petitions for driving while under
the influence of intoxicants diversion agreements filed
on and after the effective date of this 2003 Act [January
1, 2004].
(2) The provisions of ORS 813.225 in effect on the
day before the effective date of this 2003 Act apply to
a person who files a petition under ORS 813.225 to extend
a diversion agreement that was entered into prior
to the effective date of this 2003 Act. [2003 c.816 §6]
813.230 Diversion agreement; record;duration; effect of denial.
(1) When the
court allows a petition for a driving while
under the influence of intoxicants diversion
agreement filed as provided in ORS 813.210,
the judge taking that action shall:
(a) Accept the guilty plea or no contest
plea filed as part of the petition for a diversion
agreement but withhold entry of a judgment
of conviction; and
(b) Sign the petition and indicate thereon
the date of allowance of the diversion period,
the length of the diversion period and the
date upon which the driving while under the
influence offense occurred.
(2) The petition when signed and dated
becomes the diversion agreement between
the defendant and the court. The court shall
make the agreement a part of the record of
the case. The court shall notify the Department
of Transportation of the diversion
agreement in a form agreed to by the department
and the State Court Administrator
within 48 hours after allowing the petition.
The department shall make the fact of the
diversion agreement a part of the defendant′s
operating record.
(3) A driving while under the influence
of intoxicants diversion agreement shall be
for a period of one year after the date the
court allows the petition. During the diversion
period the court shall stay the driving
while under the influence of intoxicants offense
proceeding pending completion of the
diversion agreement or its termination.
(4) When the court denies a petition for
a driving while under the influence of intoxicants
diversion agreement, it shall continue
the offense proceeding against the defendant.
The guilty plea or no contest plea filed as
part of the petition for the diversion agreement
may not be used in the offense proceeding
under this subsection.
[1983 c.338 §372;
1985 c.16 §193; 1985 c.710 §7; 1993 c.751 §71; 2003 c.816 §4]
Note: See note under 813.200.
813.235 Attendance at victim impacttreatment session as condition of diversion;fee.
In a county that has a victim impact
program a court may require as a
condition of a driving while under the influence
of intoxicants diversion agreement that
the defendant attend a victim impact treatment
session. If the court requires attendance
under this section, the court may
require the defendant, as part of the diversion
agreement, to pay a reasonable fee to
the victim impact program to offset the cost
of the defendant′s participation. The fee shall
be established for each county by the victim
impact panel coordinator and steering committee
of that county and shall be not less
than $5 or more than $50.
[1987 c.830 §2; 1993
c.468 §2]
813.240 Amount and distribution offiling fee; diagnostic assessment fee.
(1)
The filing fee paid by a defendant at the time
of filing a petition for a driving while under
the influence of intoxicants diversion agreement
as provided in ORS 813.210 shall be
$237 and shall be ordered paid as follows if
the petition is allowed:
(a) $112 to be credited and distributed
under ORS 137.295 as an obligation payable
to the state;
(b) $100 to be treated as provided for disposition
of fines and costs under ORS
153.630; and
(c) $25 to be paid to the Director of Human
Services for deposit in the Intoxicated
Driver Program Fund created under ORS
813.270, to be used for purposes of the fund.
(2) In addition to the filing fee under
subsection (1) of this section, the court shall
order the defendant to pay $150 directly to
the agency or organization providing the diagnostic
assessment.
(3) In addition to the filing fee provided
for in subsection (1) of this section, for the
period commencing on August 3, 2005, and
ending December 31, 2006, a circuit court
shall collect a surcharge of $71 upon the filing
of a petition for a driving while under
the influence of intoxicants diversion agreement
that is allowed.
[1983 c.338 §373; 1985 c.16 §194; 1985 c.277 §3; 1987 c.905 §30; 1989 c.576 §§8a,9a; 1989
c.635 §§2,4; 1991 c.557 §6; 1993 c.13 §7; 1999 c.1051 §297;
2003 c.737 §§71,72; 2005 c.303 §§2,3; 2005 c.702 §§85,86]
Note: The amendments to 813.240 by section 87,
chapter 702, Oregon Laws 2005, become operative January
1, 2007. See section 88, chapter 702, Oregon Laws
2005. The text that is operative on and after January
1, 2007, is set forth for the user′s convenience.
813.240.
(1) The filing fee paid by a defendant at
the time of filing a petition for a driving while under
the influence of intoxicants diversion agreement as
provided in ORS 813.210 shall be $261 and shall be ordered
paid as follows if the petition is allowed:
(a) $136 to be credited and distributed under ORS
137.295 as an obligation payable to the state;
(b) $100 to be treated as provided for disposition
of fines and costs under ORS 153.630; and
(c) $25 to be paid to the Director of Human Services
for deposit in the Intoxicated Driver Program
Fund created under ORS 813.270, to be used for purposes
of the fund.
(2) In addition to the filing fee under subsection (1)
of this section, the court shall order the defendant to
pay $150 directly to the agency or organization providing
the diagnostic assessment.
813.250 Motion to dismiss charge oncompletion of diversion; admissibility ofstatements.
(1) At any time after the conclusion
of the period of a driving while under
the influence of intoxicants diversion agreement
described in ORS 813.230, a defendant
who has fully complied with and performed
the conditions of the diversion agreement
may apply by motion to the court wherein
the diversion agreement was entered for an
order dismissing the charge with prejudice.
(2) The defendant shall cause to be
served on the district attorney or city attorney
a copy of the motion for entry of an order
dismissing with prejudice the charge of
driving while under the influence of intoxicants.
The motion shall be served on the
district attorney or city attorney at the time
it is filed with the court. The district attorney
or city attorney may contest the motion.
(3) If the defendant does not appear as
provided by subsection (1) of this section
within six months after the conclusion of the
diversion period, and if the court finds that
the defendant fully complied with and performed
the conditions of the diversion agreement,
and if it gives notice of that finding to
the district attorney or city attorney the
court may on its own motion enter an order
dismissing the charge of driving while under
the influence of intoxicants with prejudice.
(4) No statement made by the defendant
about the offense with which the defendant
is charged shall be offered or received in evidence
in any criminal or civil action or
proceeding arising out of the same conduct
which is the basis of the charge of driving
while under the influence of intoxicants, if
the statement was made during the course
of the diagnostic assessment or the rehabilitation
program and to a person employed by
the program.
[1983 c.338 §374; 1985 c.16 §195; 1987
c.441 §7]
813.255 Termination of diversion.
(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) 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 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) 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.
[1987 c.441 §9; 2003 c.816 §5]
Note: See note under 813.200.
813.260 Designation of agencies toperform diagnostic assessments; dutiesof agency.
(1) Courts having jurisdiction
over driving while under the influence of intoxicants
offenses shall designate agencies or
organizations to perform the diagnostic assessment
and treatment required under driving
while under the influence of intoxicants
diversion agreements described in ORS
813.200. The designated agencies or organizations
must meet the standards set by the
Director of Human Services to perform the
diagnostic assessment and treatment of problem
drinking, alcoholism and drug dependency
and must be certified by the Director
of Human Services. Wherever possible a
court shall designate agencies or organizations
to perform the diagnostic assessment
that are separate from those that may be
designated to carry out a program of treatment.
(2) Monitoring of a defendant′s progress
under a diversion agreement shall be the responsibility
of the diagnostic assessment
agency or organization. It shall make a report
to the court stating the defendant′s
successful completion or failure to complete
all or any part of the treatment program
specified by the diagnostic assessment. The
form of the report shall be determined by
agreement between the court and the diagnostic
assessment agency or organization.
The court shall make the report of the diagnostic
assessment agency or organization
that is required by this subsection a part of
the record of the case.
[1983 c.338 §375; 1991 c.557 §7]
813.270 Intoxicated Driver ProgramFund; creation; uses.
The Intoxicated
Driver Program Fund is created to consist
of moneys placed in the fund under ORS
813.030 and 813.240 or as otherwise provided
by law and of gifts and grants made to the
fund for carrying out the purposes of the
fund. The moneys in the fund may be used
only for the following purposes:
(1) To pay for providing treatment for individuals
who enter diversion agreements
under ORS 813.200 and who are found to be
indigent. Payment for treatment under this
subsection may include treatment for problem
drinking, alcoholism or drug dependency.
Payment shall be made as provided by the
Director of Human Services by rule to agencies
or organizations providing treatment.
(2) To pay for evaluation as provided by
law of programs used for diversion agreements.
(3) To pay the cost of administration of
the fund by the Director of Human Services.
(4) To pay for materials, resources and
training supplied by the Director of Human
Services to those persons, organizations or
agencies performing the diagnostic assessments
or providing education or treatment to
persons under diversion agreements.
(5) To pay for providing treatment programs
required under ORS 813.020 and
treatment or information programs required
under ORS 471.432 for individuals who are
found to be indigent.
(6) To pay for special services required to
enable a disabled person, or a person whose
proficiency in the use of English is limited
because of the person′s national origin, to
participate in treatment programs that are
used for diversion agreements under ORS
813.200 or are required under ORS 813.020.
This subsection applies:
(a) Whether or not the person is indigent;
and
(b) Only to special services required
solely because of the person′s disability or
limited proficiency in the use of English.
[1983 c.338 §141; 1985 c.16 §42; 1989 c.576 §10; 1991 c.557
§8; 1993 c.757 §1; 1999 c.126 §6; 1999 c.646 §5a]
EVIDENCE
813.300 Use of blood alcohol percentageas evidence; percentage required forbeing under the influence.
(1) At the trial
of any civil or criminal action, suit or proceeding
arising out of the acts committed by
a person driving a motor vehicle while under
the influence of intoxicants, if the amount of
alcohol in the person′s blood at the time alleged
is less than 0.08 percent by weight of
alcohol as shown by chemical analysis of the
person′s breath or blood, it is indirect evidence
that may be used with other evidence,
if any, to determine whether or not the person
was then under the influence of intoxicants.
