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Erickson v. Municipal Court of City of Corvallis12/12/1984
a city ordinance conforming thereto that a diversion agreement may be available if the defendant meets the criteria set out in ORS 484.450 and files with the court a petition for a driving while under the influence of intoxicants diversion agreement."
An applicant for a diversion program must satisfy the criteria stated in ORS 484.450. See State v. Wright, 63 Or App 482, 664 P2d 1131 (1983). Compliance with those criteria, however, is not the end of the inquiry. We said in State v. Dendurent, 64 Or App 575, 578, 669 P2d 361 (1983), that "ORS 484.450(4) unambiguously confers discretion on the trial court to grant or deny a petition for diversion, unless the defendant is disqualified under one of the exceptions listed in the subsection * * *." That is, if a petitioner for a diversion comes within one or more of the exceptions, the trial court has no discretion. It must deny the petition. The absence of a plea of guilty or no contest is not among the listed exceptions.
ORS 484.455 provides guidelines for the trial court in determining whether to allow a diversion petition:
"In making a determination of whether to allow or deny a petition for a driving while under the influence of intoxicants diversion agreement under ORS 484.450, a 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."
The diversion law was submitted to the 1981 legislature as HB 2010. The initial draft of the bill provided, in part:
"Section 4.(1) Upon the entry of a plea of guilty or no contest to a complaint charging the defendant with the offense of driving while under the influence of intoxicants, the defendant may file with the court a petition for a driving while under the influence of intoxicants diversion agreement * * *." (Emphasis supplied.)
After consideration by the House Judiciary Committee, the requirement of a plea of "guilty" or "no contest" was deleted. See Testimony before Subcommittee 2 of the House Judiciary Committee, Tape Number H-81-Jud-362 (May 7, 1981). We believe that the legislature framed those matters it considered significant in determining whether a diversion petition should be granted in the terms stated in ORS 484.455. The existence of those express considerations, combined with the fact that the legislature deleted the proposed requirement of a plea of "guilty" or "no contest," is convincing that the legislature did not intend to grant the trial court discretion to require such a plea.
As observed by the circuit court judge, the common understanding of diversion is to take a defendant out of a
traditional criminal prosecution. The legislature contemplated that, before a plea, a defendant may be diverted from a pending prosecution and permitted to have the rehabilitative advantages of a diversion agreement. Defendant erred in requiring a guilty plea as a condition precedent to the granting o
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