State v. Tuter

A drug treatment program that was mandated by a governmental actor in order to avoid adverse, judicially imposed consequences is sufficiently similar to a DUII diversion program and can preclude the participant from being awarded DUII diversion.

Defendant appealed a trial court’s denial of his petition to enter into a DUII diversion program. The trial court found that Defendant was ineligible for the program based on his previous participation in a similar program when he was a juvenile. Under ORS 813.215(1)(e), a defendant is ineligible for diversion if, within the 15 years before arrest, the defendant participated in “any similar alcohol or drug rehabilitation program.” Defendant the program he participated in as a juvenile was not sufficiently similar to a DUII diversion program in that it did not motivate juveniles to “avoid a substantial judicially imposed adverse consequence,” as required by the Court’s holding in State v. Wright. The Court disagreed, and held that, because the juvenile treatment program imposed sanctions if violated (i.e., detention or contempt of court), and those sanctions restricted the juvenile’s liberty, the program subjected Defendant to judicially imposed adverse consequences that are comparable to adult DUII diversion programs. Affirmed.