New DUII Diversion Law Eliminates Discrimination Against Military

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by: Jessbarton • June 7, 2011 • no comments

In March and May of this year, the House and Senate unanimously passed House Bill 2702, which, on June 1, 2001, the Governor signed the bill into law. It has been enrolled as Oregon Laws 2011, chapter 197. The bill eliminates the former DUII-diversion statutory scheme's discrimination against servicemembers who are on or are called onto active duty.

The discrimination resulted from the scheme's provisions that allow DUII diversion-eligible defendants one year, and an extension of up to 180 days, to complete their diversion agreements. The problem is that the former scheme did not accommodate servicemembers whose active-duty military service kept them from completing diversion agreements within the standard time allowed. HB 2702 eliminates this discrimination by:

1. Specifying that as a matter of state policy, a court may not deny diversion solely because military service would impair a servicemember-defendant's ability to complete the diversion agreement.
2. Authorizing a court to allow an active-duty servicemember the extensions necessary to complete a diversion agreement if the defendant shows that active-duty military service would prevent completion of the diversion agreement within the standard time allowed. As part of this showing, the servicemember must establish that "no comparable treatment program" is or will be available at the active-duty station.
3. Authorizing a court to allow an active-duty servicemember to complete the conditions of a diversion agreement in a "comparable treatment program" conducted or authorized by a government entity in another state.
4. If the state moves to terminate an active-duty servicemember's diversion agreement, authorizing the court to:

• Allow the defendant's attorney to appear at the termination hearing on the servicemember's behalf, if military service prevents a personal appearance.
• Allow the servicemember to appear at the termination hearing by telephone or other communication device approved by the court, if the servicemember's military service prevents a personal appearance and if appearance by telephone or other communication device can be arranged. If such an alternative appearance cannot be arranged, the court must stay the termination proceeding.

Item 2 above requires some amplification. A diversion-eligible active-duty servicemember either will complete the diversion agreement while on active duty, or the diversion period will be stayed until active duty is completed. The servicemember will complete the diversion agreement while on active duty only if, in the opinion of Oregon authorities, a comparable diversion program will be available at the active-duty station

The servicemember may or may not be able to provide local authorities the necessary information before shipping for active duty. But at one time or another-before or after arrival at the active-duty station-the servicemember must provide local authorities the information they will need. A letter from the commanding officer to the local authorities, attesting to the availability or non-availability of a local program, should suffice. If the letter attests to the availability of a program, it should include information from which local authorities can determine whether the program is "comparable."

If a comparable program is available to the servicemember, the diversion agreement will not be stayed. Instead, the diversion agreement must be completed during active duty. On the other hand, if a comparable program flatly is not available-because, for example, the servicemember will be posted to a forward operating base in Afghanistan-then the diversion agreement will be stayed. Similarly, if a comparable program is not available to the servicemember specifically-because, for example, program classes are held in the evening, but the servicemember will be assigned to evening duties-then for that servicemember there is no program and the diversion agreement should be stayed.

HB 2702 also clarifies that the standard, 180-day extension period to complete a diversion agreement runs from the end of the initial, one-year diversion period. This clarification essentially is consistent with Court of Appeals interpretation of the diversion statutes in State v. Maul, 205 Or App 14 (2006). It establishes that in standard cases, the maximum length of a diversion agreement is one year plus 180 days.

Finally, HB 2702 has an emergency clause, so it took effect on the date of the Governor's signature (a week ago today). Its provisions "apply to petitions for driving while under the influence of intoxicants diversion agreements filed before, on or after the [June 1] effective date of this 2011 Act." Or Laws 2011, ch 197, § 5. In other words, if a servicemember filed a diversion petition before June 1, and is called onto active duty on or after June 1, the bill applies.

HB 2702 is the product of the state bar's Military Assistance Panel (MAP). The Oregon Criminal Defense Lawyers Association, the Oregon Anti-Crime Alliance, and the Governor's Task Force on DUII actively supported the bill. The MAP wishes to thank those organizations for their support.

The MAP particularly wishes to thank Shannon Mortimer, a staff attorney with Multnomah Defenders, Inc. and his state representative, Ben Cannon, who brought the former statutes' discrimination against servicemembers to everyone's attention. If they'd stayed silent, that discrimination would still be the law.