State v. Rose

An out-of-jurisdiction offense is a “statutory counterpart” of Oregon DUII only if the elements of the defendant’s prior convictions are the close equivalent, or “match,” the elements of the Oregon offense. State v. Nelson, 318 Or App 230, 231 (2022).

Defendant appealed a denial of his petition to enter a DUII diversion guilty plea. He assigned error to the trial court's discretionary ruling that he was ineligible for a diversion plea. The trial court found that because of his “driving while ability impaired” (DWAI) conviction in Colorado, he was not eligible for diversion under ORS 813.215(1)(a)(A)(ii) and ORS 813.215(1)(b), which make defendants who have been convicted of a DUII under ORS 813.010 or its “statutory counterpart in another jurisdiction” ineligible. An out-of-jurisdiction offense is a “statutory counterpart” of Oregon DUII only if the elements of the defendant’s prior convictions are the close equivalent, or “match,” the elements of the Oregon offense. State v. Nelson, 318 Or App 230, 231 (2022). Colorado’s DWAI offense does not include an element of “perceptible impairment,” as required by Supreme Court case law under ORS 813.010, and therefore is not a “statutory counterpart” to ORS 813.010 under ORS 813.215(1)(a)(A)(ii). State v. Guzman/Heckler, 366 Or 18, 46 (2019). In light of Guzman/Heckler, the Court found that the trial court erred in holding that Defendant had a previous conviction for an offense involving impaired driving that made him ineligible for diversion. Reversed and remanded.