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State v. Tuter

Court of Appeals of Oregon

November 14, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
ANDREW WAYNE TUTER, Defendant-Appellant.

Submitted on December 28, 2012.

Crook County Circuit Court MI100343 Gary Lee Williams, Judge.

Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General, filed the brief for respondent.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.

WOLLHEIM, J.

Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010. The trial court determined that defendant was ineligible for a DUII diversion program because he had previously participated in a drug treatment program as a result of a juvenile court disposition. Following the denial of his petition for diversion, defendant entered a conditional guilty plea for DUII. On appeal, defendant contends that the trial court erred in determining that defendant was ineligible for a DUII diversion program. Defendant argues that the trial court erred because the juvenile court treatment program did not meet the statutory requirement establishing ineligibly under ORS 813.215 and as described in State v. Wright, 204 Or.App. 724, 731, 131 P.3d 838 (2006). We review a trial court's determination of a defendant's eligibility for diversion for errors of law, State v. Lagrassa, 235 Or.App. 150, 152, 230 P.3d 96, rev den, 349 Or 57 (2010), and affirm.

In April 2008, when he was 16 years old, defendant was found within the juvenile court's jurisdiction because he had committed an act that--if committed by an adult--would constitute a violation of state law. ORS 419C.005(1). The juvenile court determined that defendant possessed marijuana within 1, 000 feet of a school. ORS 475.864(4). The disposition included a year of probation. The juvenile court ordered defendant to complete a drug and alcohol assessment at Rimrock Trails and to comply with all recommended treatment.[1] Defendant enrolled in a Rimrock Trails outpatient drug and alcohol treatment program. However, he was terminated from the program for his failure to comply with the program's rules. As a consequence, the juvenile court ordered defendant to serve five days of detention at a youth correctional facility, and, upon his release from detention, defendant was ordered to attend and complete a 30-day inpatient cognitive restructuring program. His probation was extended, and defendant re-enrolled in the Rimrock Trails treatment program. In July 2009, defendant tested positive for marijuana and was discharged, again, from the treatment program. The juvenile court held defendant in contempt for his failure to complete the terms of his probation, i.e., complete the treatment program, and placed defendant in a youth correctional facility for 30 days. In August 2009, defendant was ordered, again, to complete his drug treatment program.

On July 5, 2010, when he was 19 years old, an officer stopped defendant for a traffic violation. Defendant appeared intoxicated, smelled of alcohol, and did not have his driver's license with him. Defendant admitted to the officer that he had "had a few to drink." Defendant took and failed field sobriety tests and admitted that he should not have been driving; he was transported to the Crook County Jail. Defendant agreed to take a breath test, which measured a 0.12 blood alcohol content. Defendant was charged with DUII.

Defendant petitioned the trial court to enter a DUII diversion program, which the trial court denied.[2] The court determined that defendant was ineligible for a diversion program because he had previously participated in a similar program. ORS 813.215(1)(e).[3] In Wright, we concluded that, for the purposes of ORS 813.215, participation in a DUII diversion program requires that the defendant have been given "the opportunity to avoid a substantial, judicially imposed adverse consequence related to her substance abuse by successfully completing a substance abuse program." 204 Or.App. at 731. The trial court explained that,

"five days in detention at [a youth correctional facility] is a substantial penalty for a youth. I think that 30 days [in the cognitive restructuring program] * * * constitutes a substantial penalty. * * * [H]aving a contempt action filed against a person, with a maximum penalty of six months in custody, in detention, is certainly a substantial penalty."

Following the denial of his petition for diversion, defendant entered a conditional guilty plea, reserving the right to challenge the court's decision; the court imposed 18 months of bench probation and a fine.

On appeal, defendant argues that the trial court erred in determining that defendant was ineligible for a diversion program. He argues that he was eligible for a diversion program because the Rimrock Trails treatment program is not sufficiently similar to a DUII diversion program under ORS 813.200 to 813.270.[4] Defendant takes the view that the Rimrock Trails treatment program, ordered by the juvenile court, did not pose an adequate detriment, because it did not motivate juveniles "to avoid a substantial, judicially imposed adverse consequence." Wright, 204 Or.App. at 731. The state responds that defendant's participation in the Rimrock Trails treatment program was motivated by a sufficiently adverse and substantial judicially imposed consequence and was, thus, similar to a DUII diversion program and disqualified defendant from a DUII diversion program. For the reasons that follow, we agree with the state.

Pursuant to ORS 813.215(1)(e), a defendant is ineligible for a drug or alcohol diversion program if, within the 15 years preceding an arrest, the defendant participated in "any similar alcohol or drug rehabilitation program." ORS 813.215(1)(d) (emphasis added). In Lagrassa, we affirmed the trial court's denial of the defendant's diversion petition. 235 Or.App. at 158. We concluded that "an essential characteristic of DUII diversion is that a defendant is required by a governmental actor to participate in a rehabilitation program in order to avoid a substantial adverse consequence." Id. at 157; see also State v. Bentley, 239 Or.App. 18, 24, 243 P.3d 859 (2010), rev den, 349 Or 654 (2011) (holding that a defendant is ineligible for a DUII diversion program if the defendant ...


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