The diversion statutes, ORS 813.200 , et seq permit a person charged with their first DUII to avoid conviction by agreeing to complete treatment and comply with various requirements. For a person eligible for diversion, it’s usually a good idea, because even a strong defense at trial is not ironclad, and the certainty of escaping conviction usually makes it worth the hassle of completing the diversion program.
Diversion is not available to a person convicted of vehicular assault within the last fifteen years, which is a reasonable enough requirement. It is also unavailable to a person accused of assault but not yet convicted, which is not reasonable. In my view, depriving a person of the right to complete diversion and escape conviction cannot be based on an as-yet-unproved allegation of assault. It is a fundamental principle of American constitutional law that a person is presumed innocent of a crime until the state proves his or her guilt beyond a reasonable doubt. But, under the diversion statutes, if a person is accused of both assault and DUII (because, for example, the person was in an accident, and the state alleges that the person was drunk and someone else was injured in the accident), it is very hard to separate the two offenses. See State v. Dimmick on the strong legislative preference for trying related offenses at the same time.
If they are tried at the same time, then, even if the person is acquitted of assault, it is too late under the statute to enter diversion. As a result, a bare allegation of assault can prevent a person from completing diversion, even if the person wins the assault case at trial.
I recently had such a case. My client was accused of DUII, and the state had a strong case on that offense, and so diversion was the best outcome for him. He was also accused of assault, and the state’s case was much, much weaker. The mere accusation of an assault made him ineligible for diversion. The court denied an initial request to enter diversion, and denied a request to separate the charges for trial. So, we went to trial. To no surprise at all, I won the assault and lost the DUII. But then, after trial, the court let my client enter diversion anyway. I have never heard of such a case before now, but the judge reasoned that, with the repeated attempts to enter the diversion program, and with no real attempt to win acquittal on the DUII charge, my client was entitled to perform diversion. So, even after losing the DUII at trial, my client will be able to escape without a conviction.
