49
Argued and submitted February 11, affirmed October 7, 2020, petition for
review denied March 18, 2021 (367 Or 709)
STATE OF OREGON,
Plaintiff-Appellant,
v.
DANA CHRISTINE ZOOK,
Defendant-Respondent.
Clackamas County Circuit Court
17CR25725; A169897
476 P3d 508
The state appeals from an order dismissing a charge that defendant had committed the offense of driving under the influence of intoxicants (DUII). The state
assigns error to the trial court’s extension of defendant’s diversion agreement
upon finding that her initial efforts were in “good faith” and to the dismissal of
the charge. Invoking ORS 813.225(4) and ORS 813.255(3), the state contends that
the trial court lacked discretion to do so where defendant violated her diversion
agreement by consuming alcohol. Held: Reading ORS 813.225 and ORS 813.255
together, the trial court may grant an extension of a diversion agreement, despite
defendant’s violation of an alcohol condition, when the court finds that defendant
made a good faith effort to complete the conditions of the diversion agreement
and that the defendant can complete the conditions of the agreement within the
extended diversion period. Accordingly, the trial court did not err in terminating
the agreement and dismissing the DUII charge pursuant to ORS 813.225(8)(a).
Affirmed.
Douglas V. Van Dyk, Judge.
Rolf Moan, Assistant Attorney General, argued the cause
for appellant. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Andy Simrin waived appearance for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeVORE, P. J.
Affirmed.
Mooney, J., dissenting.
50 State v. Zook
DeVORE, P. J.
The state appeals from an order dismissing a charge
that defendant had committed the offense of driving under
the influence of intoxicants. The trial court dismissed the
charge upon finding that defendant had successfully completed treatment under a diversion agreement. Defendant
had done so after the court had extended the diversion
agreement upon findings that her initial efforts were in
“good faith,” that she had violated the agreement by consuming alcohol, and that she still could complete the conditions of the diversion agreement within the extended diversion period. The state assigns error to the court’s extension
of the agreement and to the dismissal of the charge, contending that the trial court had no discretion but to act on
defendant’s guilty plea and enter a judgment of conviction.
For the reasons that follow, we determine that the
trial court had a choice, when finding defendant in violation
but having acted in “good faith” to complete the diversion
agreement, either to revoke or extend the diversion agreement to allow defendant the opportunity to complete it.
Accordingly, we conclude that, after defendant’s successful
completion of the extended diversion agreement, the trial
court did not err in dismissing the charge. We affirm the
order of dismissal.
The relevant facts are procedural and uncontested.
In March 2017, defendant drove with a blood alcohol content (BAC) exceeding 0.08 percent. The state charged her
with driving under the influence of intoxicants (DUII), ORS
813.010. Defendant pleaded guilty to the offense, and she
petitioned to enter into a one-year DUII diversion agreement. The court accepted the guilty plea and entered an
order withholding entry of a judgment of conviction pending
completion or termination of the diversion agreement.
The order and diversion agreement required that
defendant use an ignition interlock device, participate in a
victim-impact panel, complete a recommended treatment
program, pay required fees, and “comply with all terms
in the Petition and Agreement.” The diversion agreement
required, among other things, that, during the term of
Cite as 307 Or App 49 (2020) 51
diversion, defendant not use any alcohol or other intoxicant.1 The agreement warned that “the court will terminate
the diversion agreement if at any time during the diversion
period the court finds that [defendant] failed to fulfill all of
the terms of the agreement.” It added that, “[i]f the court
terminates [defendant’s] diversion agreement or [defendant]
fail[s] to fulfill the terms of the agreement by the end of the
diversion period, the court will sentence [defendant] without
a trial.”
In early 2018, data from the company that monitored defendant’s ignition interlock device revealed that
four breath tests over two months indicated she had BAC
readings ranging from 0.022 percent to 0.039 percent. Upon
receiving a letter from the company, the trial court entered
an order to defendant to show cause as to why it should not
terminate the diversion due to her failure to comply with the
requirement to abstain from the use of alcohol.
At the show cause hearing, defendant stipulated
that she was “in violation of the terms of the diversion program.” Through counsel, she reported that she had paid
her fines and fees, attended the victim-impact program,
and completed alcohol treatment. She advised that she
had remained sober for a six-month period with no negative reports but admitted that, after emotional challenges,
including the death of her grandmother, she “drank on a
couple of occasions.” She admitted that she “knows she
wasn’t supposed to” and insisted that she is committed to
sobriety and “moving forward regardless of whether she’s on
diversion or not.” Asking the court to “continue her on strict
compliance,” defendant urged the court to extend the diversion agreement.
The state responded that the court only had authority under ORS 813.225 to grant an extension if defendant
could complete the conditions of the diversion agreement,
and, because defendant had already failed to do so, ORS
813.255 required the court to revoke diversion, enter the
guilty plea, and impose a judgment of conviction.2
1
The diversion agreement incorporated another document, “Explanation of
Rights and DUII Diversion Agreement,” which outlined those terms.
2
We review those statutes below.
52 State v. Zook
The trial court determined that it would allow defendant to continue the diversion program. The court cautioned
defendant, “So from this point forward, it is strict compliance and you’ll have to restart your alcohol treatment. You
have to go back to the beginning.” The court added:
“The risks here that are created by this crime are so
great, the suffering is indescribable, the suffering that
attaches to it sometimes when someone’s injured, it’s on you
to, you know, show you’re not a risk. … Depression and
the like, get help for it, but don’t expect that the community’s going to relax its approach to this particular crime. It’s
not. We’re not.”
That day, defendant filed a written motion and declaration
for an extension, in which she attested that she had made
a good faith effort to complete the conditions of the diversion agreement, including payment of fees, attendance at
a victim’s impact panel, and completion of treatment, and
she admitted her failure to achieve “complete sobriety.”
She sought a six-month extension. In one order recording
the results of the hearing, the court found a violation of
the diversion agreement but permitted defendant to continue diversion by “restart[ing] [her] alcohol treatment”
and observing “strict compliance.” In a form order, the court
determined that defendant had made “a good faith effort
to complete the conditions of the diversion agreement” and
that she “can … complete the conditions of the diversion
agreement in the requested extended diversion period.” A
notation on the form order reiterated that defendant must
“Restart Treatment.”
Defendant had no further violations. At the end
of the extended diversion period, she moved to dismiss the
DUII charge. The state opposed dismissal, contending that
the trial court lacked discretion to dismiss the DUII charge
because defendant had consumed alcohol during the original diversion period. The court responded with skepticism,
asking the state:
“Why do you think the legislature allows for an extension of diversion if a person’s made a good faith effort? Good
faith is about as broad a consideration as is ever delegated
to a court.”
Cite as 307 Or App 49 (2020) 53
The state responded that consideration of “good faith”
should apply only to payment of fees, restitution, or time to
complete a treatment program, but should not apply to the
alcohol prohibition itself. The trial court was unpersuaded,
indicating that all of the terms were equal requirements
of the diversion agreement. The court commented that the
state’s interpretation seemed to run counter to the public
policy goal of rehabilitation expressed, in particular, in ORS
813.220 (reviewed below). The court explained:
“It seems inconsistent with the notion that a person would
be in treatment if treatment did not allow for any possibility of even the slightest relapse. It seems not to recognize
that alcohol[ism] is a disease and the cure isn’t instantaneous … [I]t takes time and reinforcement and encouragement and accountability[.]”
After further colloquy, the court indicated:
“I think that this scheme, in order to make any sense, needs
to have—needs to recognize that there’s some latitude for
a person to engage in treatment and have some latitude
for a person to violate requirements of treatment and not
necessarily be foreclosed from completing the treatment
thereafter.”
The court found that defendant had “completed all of the
terms of the diversion agreement” despite her use of alcohol
during the initial diversion period. The court determined,
“[I]t’s appropriate to dismiss since she was able to continue
in the program in a manner consistent with the rules,
including the abstinence requirement.” The court entered
an order dismissing diversion and the DUII charge.
The state now appeals that order. Reprising its
arguments from below, the state argues that the trial court
erred by extending the diversion period and dismissing the
DUII charge. The state contends that the statutory scheme
required the court to enter the guilty plea and judgment of
conviction once it had found that defendant had failed to
fulfill the terms of the diversion agreement.3
This case presents questions of statutory construction. It asks whether ORS 813.225(4) permits a trial court
3
Defendant did not file an answering brief on appeal.
54 State v. Zook
to extend a diversion agreement upon findings of both a
violation and yet “good faith” completion of something less
than all of the requirements of a diversion agreement, and,
after such findings, whether ORS 813.255(3)(b) requires
a trial court to revoke the diversion agreement and enter
the guilty plea. Those are questions of law that we review
for legal error. State v. Maul, 205 Or App 14, 18,
132 P3d
665, rev den,
341 Or 80 (2006). To construe the statutes, we
employ the familiar methodology outlined in State v. Gaines,
346 Or 160, 171-73,
206 P3d 1042 (2009). We examine the
statute’s text and context within the statutory scheme. State
v. Walker,
356 Or 4, 13,
333 P3d 316 (2014) (recognizing text
and context of the statute as “the best indications of the legislature’s intent”).
As relevant here, a person commits the offense of
driving while under the influence of intoxicants if the person
has 0.08 percent or more by weight of alcohol in the person’s
blood.4 ORS 813.010(1)(a). A defendant charged with DUII
may petition the court to enter into a diversion agreement.
ORS 813.210(1).5 The trial court will determine whether to
allow such a petition considering a number of factors. In
part, ORS 813.220 provides:
“In making a determination under this section, the court:
“(1) Shall consider whether the diversion will be of
benefit to the defendant and the community.
“(2) May take into consideration whether there was an
early recognition by the defendant during the proceeding
that a course of diagnosis and treatment of problem drinking, alcoholism or drug dependency would be beneficial.
“(3) May take into consideration whether there is a
probability that the defendant will cooperate with the diagnostic assessment and treatment agencies.
4
When offering her guilty plea with her petition for a diversion agreement,
defendant admitted that her BAC had been 0.17 percent.
5
In part, ORS 813.210(1) provides:
“After an accusatory instrument has been filed charging the defendant
with the offense of driving while under the influence of intoxicants, a defendant may file with the court a petition for a driving while under the influence
of intoxicants diversion agreement described in ORS 813.200.”
Cite as 307 Or App 49 (2020) 55
“(4) May take into consideration whether the defendant will observe the restrictions contained in the diversion agreement.”
Those were the considerations from which the trial court
drew its sense of a rehabilitative purpose in the statutory
scheme.
With exceptions not relevant here, a petition for a
diversion agreement must include “an agreement by the
defendant to not use intoxicants during the diversion period
and to comply fully with the laws of this state designed to
discourage the use of intoxicants.” ORS 813.200(4)(d). The
defendant’s petition must include an agreement to pay, based
on ability to pay, for a program of treatment, as indicated to
be necessary by a screening interview. ORS 813.200(4)(c).
The defendant must also pay to the court a filing fee of $490
(ORS 813.210(2) (payment requirement); ORS 813.240(1)
(setting $490 fee)), plus $150 to the organization providing
the screening interview (ORS 813.240(3) (setting $150 fee)),
and potentially the cost of any court-appointed attorney fees
(ORS 813.200(4)(i) (court-appointed attorney fees in petition
for diversion agreement); ORS 813.210(4) (attorney fees,
unless waived by the court)).
If the trial court allows the petition, it will accept a
plea of guilty or no contest, but the court will withhold entry
of the judgment of conviction, pending the completion or termination of the diversion. ORS 813.230(1)(a), (3). “The petition when signed and dated becomes the diversion agreement between the defendant and the court.” ORS 813.230(2).
The diversion agreement operates for a period of one year.
ORS 813.230(3).
After a defendant enters into a diversion agreement,
the court might face a choice whether to extend the duration
of diversion or to terminate the agreement and enter a judgment of conviction. Both possibilities turn on the failure of
a defendant to have satisfied all the terms of a diversion
agreement. To allow an extension, ORS 813.225 requires
two findings. The statute provides, in relevant part:
“(1) A defendant may apply by motion to the court in
which a driving while under the influence of intoxicants
56 State v. Zook
diversion agreement described in ORS 813.230 was entered
for an order extending the diversion period[.]
“…
“(4) The court may grant a petition for an extension
filed under this section if the court finds that the defendant made a good faith effort to complete the conditions of
the diversion agreement and that the defendant can complete the conditions of the diversion agreement within the
requested extended diversion period.
“…
“(8) If the court grants the petition for an extension
under this section, the following apply:
“(a) If the defendant fully complies with the conditions
of the diversion agreement within the extended diversion
period, the court may dismiss the charge with prejudice
under ORS 813.250.”
(Emphases added.) If, however, the court is unwilling to
allow an extension, the diversion agreement ends as the
result of the defendant’s failure to have satisfied all terms of
the agreement. ORS 813.225(9) provides:
“If the court denies the petition for an extension under
this section, the court shall enter the guilty plea or no contest plea filed as part of the petition for a diversion agreement, shall enter a judgment of conviction and shall sentence the defendant.”
If the court does grant the extension, the extension may be
for no more than 180 days from the end of the original diversion period.6 ORS 813.225(5).
Coincidentally, the statute governing removal of
the ignition interlock device, a device required by the diversion agreement, employs essentially the same 180-day time
period as the maximum extension of a diversion agreement.
In part ORS 813.645(1) provides:
“A defendant may apply by motion to the court in which
a driving while under the influence of intoxicants diversion
agreement described in ORS 813.230 was entered for an
6
Although not relevant here, a further extension is allowed under conditions
involving a defendant in military service. ORS 813.225(7).
Cite as 307 Or App 49 (2020) 57
order vacating the requirement to install and use an ignition interlock device if the defendant:
“(a) Has complied with the condition of the diversion
agreement described in ORS 813.602(3) for at least six consecutive months and provides a certificate to the court from
the ignition interlock device manufacturer’s representative
stating that the device has not recorded a negative report[.]”
(Emphases added.) The referenced statute, ORS 813.602(3),
is the source of the requirement that a person subject to a
diversion agreement install an ignition interlock device. A
“negative report” includes a report of an attempt to start a
vehicle while the person has a BAC higher than 0.02 percent
by weight, ORS 813.599(3) and (5), like those that prompted
defendant’s show cause hearing.
Ultimately, several statutes contemplate the end of
the diversion program, allowing for a defendant’s success or
failure. The defendant may move to terminate the diversion
agreement upon its successful conclusion pursuant to ORS
813.250(1), which provides, in part:
“At any time after the conclusion of the period of a
driving while under the influence of intoxicants diversion
agreement described in ORS 813.230, a defendant who
has fully complied with and performed the conditions of
the diversion agreement may apply by motion to the court
wherein the diversion agreement was entered for an order
dismissing the charge with prejudice.”
Similarly, the court may, on its own motion may terminate
the diversion agreement upon its successful conclusion pursuant to ORS 813.255, which provides, in part:
“(1) At any time before the court dismisses with prejudice the charge of driving while under the influence of intoxicants, the court on its own motion … may issue an order
requiring the defendant to appear and show cause why the
court should not terminate the diversion agreement.
“…
“(5) If the defendant appears at the hearing on the
order to show cause, the court shall dismiss with prejudice
the charge of driving under the influence of intoxicants if:
“(a) The defendant has complied with and performed
all of the conditions of the diversion agreement except that
58 State v. Zook
the defendant owes $500 or less of the fees required under
ORS 813.200, 813.210, 813.235, and 813.240[.]”
To like effect, parallel provisions permit termination of the
diversion and dismissal of the DUII charge upon successful
completion of the diversion program and an immediate cure
of any outstanding fees of $500 or less.7
Of particular relevance here, ORS 813.255(3), contemplates the potential of a defendant’s failure to satisfy the
diversion agreement. When a defendant fails to fulfill all
the terms of the diversion agreement, the trial court must
terminate the diversion agreement and enter the guilty plea
as provided by ORS 813.255(3). Omitting cross-references
not relevant here, ORS 813.255(3) provides:
“[T]he court shall terminate the diversion agreement
and enter the guilty plea or no contest plea that was filed
as part of the petition for the diversion agreement … if, at
the hearing on the order to show cause, the court finds by a
preponderance of the evidence that:
“…
“(b) The defendant failed to fulfill all of the terms of
the diversion agreement.”
(Emphasis added.)
We recognize the appearance of a potential tension
within the statutes—particularly with the state’s construction of the statutes. The state stresses that ORS 813.255(3)
requires that, when the court finds that a defendant failed
to fulfill all of the terms of a diversion agreement, the
court “shall terminate the diversion agreement and enter
the guilty plea.”8 The state, however, fails to reconcile, in a
7
Specifically, ORS 813.252 permits a defendant to move to terminate the
diversion agreement and dismiss the DUII charge upon completion of the diversion agreement, provided that defendant owes no more than $500 in fees and
pays them by the end of the day of the hearing and provided further that a judgment be entered for any restitution still owing. The court may do the same on its
own motion. ORS 813.255(5)(b), (7).
8
We acknowledge that ORS 813.255(3) uses the word “shall,” demonstrating
a duty. “Ordinarily, use of the word ‘shall’ implies that the legislature intended
to create an obligation,” as opposed to “may,” which “generally implies that the
legislature intended to create only the authority to act.” Doyle v. City of Medford,
347 Or 564, 570-71,
227 P3d 683 (2010) (citing Friends of Columbia Gorge v.
Cite as
307 Or App 49 (2020) 59
convincing way, its interpretation of ORS 813.255(3) with
ORS 813.225(4), which also addresses a defendant’s failure
to have complied with all terms of a diversion agreement.
By its terms, ORS 813.225(4) contemplates that a
defendant might have failed to comply with all of the terms
of a diversion agreement and yet provides that the court
may allow the defendant more time to bring herself into
compliance when the court is able to make two findings. The
court must be able to find, first, that “defendant made a good
faith effort to complete the conditions of the diversion agreement” and, second, that “the defendant can complete the
conditions of the diversion agreement within the requested
extended diversion period.” The phrase, “good faith effort,”
expressly recognizes the potential that a defendant has
violated some condition of the diversion agreement. Even
so, the statute provides the court authority to extend the
diversion agreement if the court also finds that defendant
can bring herself into compliance “within the requested
extended diversion period.” (Emphasis added.) Therefore,
whatever ORS 813.225(4) might mean, its accommodation
of incomplete compliance is unavoidably inconsistent with
the state’s strict view that ORS 813.255(3) means that any
failure to fulfill all of the terms of the diversion agreement
at any time during the diversion period compels revocation
of the agreement and conviction of the DUII charge.9
The potential tension between ORS 813.225(4) and
ORS 813.255(3), as construed by the state, is not resolved
with legislative history. In the trial court, the state offered
no help with legislative history. On appeal, the state proffers the inconclusive testimony of two witnesses who made
Columbia River, 346 Or 415, 426-27,
212 P3d 1243 (2009); Webster’s Third New
Int’l Dictionary 2085 (unabridged ed 2002) (defining “shall,” in part, as “used
in laws, regulations, or directives to express what is mandatory”); Legislative
Administration Committee, Form and Style Manual for Legislative Measures 6
(2008) (“To impose an obligation to act, use ‘shall.’ ”)).
9
The dissenting opinion misapprehends the “tension” to which we refer as
if it were between “may” versus “shall” in ORS 813.255(1) and (3). The tension to
which we refer is between ORS 813.225(4) and ORS 813.255(3). It arises due to
the legislature’s choice to grant the court authority to accept a good faith effort to
complete the conditions of a diversion agreement—i.e., acknowledge a violation—
yet allow completion within extension period. That potential tension is resolved,
as we shall describe, with emphasis ORS 813.225(8)(a), in the larger framework
of the statutes.
60 State v. Zook
comments about legislation in 2011 that deleted the phrase
“in conjunction with the defendant’s operation of a vehicle”
from the prohibition in ORS 813.200(4)(d) against use of
alcohol during diversion. Or Laws 2011, ch 468, § 3. The
testimony of nonlegislator witnesses is a problematic indication of legislative intent in ordinary circumstances. See
State v. Stamper, 197 Or App 413, 424-25,
106 P3d 172,
rev den,
339 Or 230 (2005) (“[W]e are hesitant to ascribe
to the Legislative Assembly as a whole the single remark
of a single nonlegislator at a committee hearing.”); Suchi
v. SAIF,
238 Or App 48, 55,
241 P3d 1174 (2010), rev den,
350 Or 231 (2011) (“[W]e generally are reluctant to place too
much weight on a single statement of a single witness in a
legislative hearing.”). That is especially true where the comments, as here, are ambiguous and do not concern the statutes at issue. They address a revision of a different statute.
The critical statute in this case is ORS 813.225
on extensions of diversion agreements. That statute was
enacted earlier as part of Senate Bill (SB) 35 (1997). Or
Laws 1997, ch 749, § 7. In its legislative history, we find no
testimony that would explain the purpose of ORS 813.225(4).
However, for the same reason, we observe that there is no
legislative history to diminish the accommodation that ORS
813.225(4) expressly provides for “good faith effort” at compliance with a diversion agreement.
We are not persuaded by the state’s argument that
a “good faith effort” at complying with a diversion agreement
should be read narrowly to encompass only delays in paying
fees or completing the VIP or a treatment program. As the
trial court noted, the requirements to pay fees, use an ignition interlock device, attend a victim-impact program, and
complete a treatment program are all conditions of a diversion agreement. See ORS 813.210(2) (payment requirement);
ORS 813.240(1) (setting $490 fee); ORS 813.240(3) ($150 fee
for screening interview); ORS 813.200(4)(i) (agreement to pay
court-appointed attorney fees in petition for diversion agreement); ORS 813.210(4) (attorney fees due unless waived by
the court); ORS 813.235 (victim impact panel attendance and
$5-50 fee); ORS 813.602(3) (use of ignition interlock device).
Violation of those terms is no less a violation of a diversion
agreement than violation of the alcohol prohibition condition.
Cite as 307 Or App 49 (2020) 61
Such failures to act or to pay are acts of omission,
while the use of alcohol is an act of commission, but the factual distinction between acts of omission and acts of commission is not a legal distinction here. Such failures are
all violations of a diversion agreement just the same. See,
e.g., State v. Canales, 301 Or App 668, 669-70,
458 P3d 720,
rev den,
366 Or 552 (2020) (failure to attend victim impact
panel program within time set by diversion agreement held
a violation of diversion agreement). That is especially true
because ORS 813.225(4) speaks broadly of the court’s authority to find that “the defendant made a good faith effort to
complete the conditions of the diversion agreement.” The
statute does not restrict the conditions that the court may
and may not assess in that determination. And, needless to
say, we may not insert words into the statute that the legislature did not use. ORS 174.010.
The import of ORS 813.225(4) now becomes apparent. Before a diversion agreement expires, when a defendant
recognizes she will be unable to fully comply with all the
terms of the diversion agreement, she may seek an extension
of the agreement. If the defendant admits a failure to satisfy
a condition, she may petition the court to find a “good faith
effort” at completing her diversion agreement and to find
further that she can complete the conditions of the agreement within the requested extended diversion period. The
legislature has given the trial court the authority to accommodate, at that juncture, something less than full compliance, while allowing the defendant to continue the chance
to succeed with the diversion agreement. Of course, ORS
813.225(9) also permits the court to reject the defendant’s
motion for an extension, agree with the state that the alcohol violations were too grave, revoke the diversion agreement, and enter the guilty plea and judgment of conviction.
The court’s authority embraces both choices. If, however, we
were to adopt the state’s strict view that a failure to satisfy a
condition categorically precludes an extension of the agreement, then we would render ORS 813.225(4) ineffectual or
meaningless, which we cannot do. State v. Cloutier, 351 Or
68, 98,
261 P3d 1234 (2011) (“[I]f possible, we give a statute
with multiple parts a construction that will give effect to all
of those parts.” (Internal quotation marks omitted.))
62 State v. Zook
Excepting the alcohol use, the state does not otherwise challenge the factual basis of the trial court’s findings
that defendant had made a good faith effort to complete the
terms of her diversion agreement.10 Defendant had paid
her fees, paid her fines, attended the victim’s impact panel,
and completed her alcohol treatment. Excepting the alcohol
use within the initial term of the diversion, the state also
does not challenge the finding that defendant could and did
complete the conditions of the diversion agreement “within
the requested extended diversion period.” The trial court
required her to restart alcohol treatment, and, by the end of
the extended time, the court found that she had completed
the terms of diversion. The six-month extension was the
same as the six-month period required before she could seek
to remove her ignition interlock device. See ORS 813.645(1)(a)
(six-month use required for persons subject to a diversion
agreement before motion to remove device).
Because ORS 813.225(4) permitted defendant to
overcome her failure in her first effort, she put herself in a
position under ORS 813.225(8)(a) and ORS 813.250 for termination of the diversion and dismissal of the DUII charge.
The court “may dismiss the charge with prejudice” if she
“fully complies with the conditions of the diversion agreement.” ORS 813.225(8)(a). We do recognize, as the state
insists, that ORS 813.255(3) provides that “the court shall
terminate the diversion agreement and enter a guilty plea
… if … the court finds … that … [t]he defendant
failed to fulfill all of the terms of the diversion agreement.”
However, we are required to construe the statutes together.
Stamper, 197 Or App at 425 (“[W]e have an obligation to give
meaning and effect to all relevant statutes, whenever those
statutes were enacted, based on the assumption that the
legislature always intends its enactments to be construed
together as a workable whole.”). Accordingly, when the statutes are read together, we observe that the “diversion agreement” to which ORS 813.255(3)(b) refers has been effectively
10
Aside from its categorical argument, the state also does not otherwise
challenge the trial court’s determination that defendant had made a “good faith
effort” with respect to the requirement that she not use alcohol; in other words,
the state does not contend that the court misapplied the “good faith effort” standard as to alcohol use, if the court was authorized to invoke it.
Cite as 307 Or App 49 (2020) 63
modified by the extension permitted by ORS 813.225(4).
Further, the more particular provision of ORS 813.225(8)(a)
then provides for dismissal of the agreement and the charge
upon compliance with the agreement within the extended
diversion period.11
Our case law is not to the contrary. The state argues
that cases involving a violation of a diversion agreement
require strict compliance with the alcohol prohibition condition under ORS 813.255(3). None of our prior cases, however,
considered an extension under ORS 813.225(4), and none
construed ORS 813.225(4) together with ORS 813.255(3). Our
prior cases only dealt with a defendant’s failure to comply
with conditions of a diversion agreement within the time of
the agreement or within the added time of an extension. See
Canales, 301 Or App 668 (failure to attend victims impact
panel within the time of the diversion agreement); State v.
Lopez,
266 Or App 705, 707,
338 P3d 799 (2014) (failure to
pay fee within time of the diversion agreement made before
a beneficial statutory change); State v. Wilson,
247 Or App
761, 763,
270 P3d 411 (2012) (failure to pay fees timely and
failure to seek an extension); State v. Reed,
241 Or App 47,
58,
249 P3d 557, rev den,
350 Or 574 (2011) (failure to make
timely payment); State v. Rowland,
234 Or App 494, 500-01,
228 P3d 670 (2010) (failure to comply with financial obligations within extended time); State v. Vargas-Garcia,
217 Or
App 70, 73,
174 P3d 1046 (2007) (failure to timely pay fees);
State v. Maul,
205 Or App 14, 18-19,
132 P3d 665, rev den,
341 Or 80 (2006) (failure to complete treatment program
within extended time).12 This is a case of first impression.
We conclude that under ORS 813.225(4) the trial
court may grant an extension, despite defendant’s violation
of the alcohol condition, when the court finds that defendant
11
As a consequence, ORS 813.255(3) is not the only door out of a diversion
agreement—a door marked “failure.” After an extension, ORS 813.225(8)(a) is an
alternate door out of a diversion agreement, providing, “If the defendant fully
complies with the conditions of the diversion agreement within the extended
diversion period, the court may dismiss the charge with prejudice under ORS
813.250.” (Emphasis added.) Upon success, ORS 813.225(8)(a) permits dismissal.
12
As noted above, legislative changes in 2013, see Or Laws 2013, ch 78,
§§ 1, 3, eased conditions related to fees by permitting payment by the end of the
day of a hearing on the diversion agreement. ORS 813.252(3); ORS 813.255(5).
64 State v. Zook
made a good faith effort to complete the conditions of the
diversion agreement and that the defendant can complete
the conditions of the agreement within the extended diversion period. The record here supports the trial court’s findings, and the statutes permit the trial court’s decisions.
Accordingly, the trial court did not err in terminating the
agreement and dismissing the DUII charge pursuant to
ORS 813.225(8)(a).
Affirmed.
MOONEY, J., dissenting.
Defendant admitted to drunk driving. Specifically,
she admitted that her blood-alcohol content had been .17
percent while driving on a public roadway. After pleading
guilty to the crime of driving under the influence of intoxicants (DUII), ORS 813.010, she petitioned the court to allow
her to enter into a diversion program under ORS 813.200 to
813.270. In her petition, defendant expressly agreed that,
“if the court allows this petition,” she would not drink any
alcohol (with strict exceptions for medical and religious purposes) and she would pay certain fees, complete a drug and
alcohol assessment, undergo any treatment recommended
as a result of that assessment, attend a victim impact panel
(VIP) session, install an ignition interlock device (IID) in
her car, and keep the court apprised of her current address.
After determining defendant’s eligibility for diversion and in consideration of her express promises, the trial
court granted the petition and entered an order that withheld entry of judgment of conviction pending completion or
termination of diversion. If defendant were to comply with
the conditions of diversion, the case would be dismissed. The
obvious benefit to defendant would be dismissal of the criminal charge. The less obvious benefit would be the information and insight gained from participation in the diversion
program. The benefit to society, stemming from that information and insight, would be a decreased risk of defendant
driving impaired and, therefore, an associated decrease
in the risk of harm to others. Noncompliance, on the other
hand, would result in termination of diversion and entry of
a judgment of conviction based upon defendant’s guilty plea.
Diversion, simply put, is an opportunity. If successful, it is
Cite as 307 Or App 49 (2020) 65
a win-win: for defendant and for everyone who travels on
Oregon’s public roadways.
But that is not what happened here. In fact, defendant violated the terms of diversion. She drank alcohol—
arguably the core condition of diversion. More importantly,
she drank alcohol and attempted to drive on at least four
occasions. We know that because the IID installed in her
car documented those four occasions. But the trial court
nevertheless permitted defendant to continue with diversion, extending its duration, and ultimately dismissing the
criminal charge against her. My colleagues conclude that it
was within the trial court’s discretion to proceed as it did in
this case. I do not agree, and I offer this dissent to explain
why.
A trial court must terminate a diversion agreement
and enter the guilty plea held in abeyance during the diversionary period if the defendant does not fulfill the terms of
diversion. Specifically, ORS 813.255 provides, in part:
“(1) At any time before the court dismisses with prejudice the charge of driving while under the influence of
intoxicants, the court on its own motion … may issue an
order requiring the defendant to appear and show cause
why the court should not terminate the diversion agreement ….
“…
“(3) Except as provided in subsections (4), (5) and (6) of
this section, the court shall terminate the diversion agreement and enter the guilty plea or no contest plea that was
filed as part of the petition for the diversion agreement …
if, at the hearing on the order to show cause, the court finds
by a preponderance of the evidence that:
“…
“(b) The defendant failed to fulfill all of the terms of
the diversion agreement.”
(Emphases added.)
In arguing for termination at the show cause hearing set by the trial court after learning of the IID data, the
state focused on the word “shall” in subsection (3). It argued
66 State v. Zook
that ORS 813.255 required the court to terminate diversion
and enter the guilty plea because defendant violated the
diversion agreement. The court disagreed, citing the word
“may” in subsection (1), and concluding that it had discretion to continue or terminate diversion.
Whether ORS 813.255(3)(b) imbues the trial court
with discretion to choose between (1) overlooking a violation
of—and continuing—the agreement and (2) terminating
the agreement and proceeding to enter the guilty plea is a
question of statutory construction. Employing the familiar
methodology outlined in State v. Gaines, 346 Or 160, 171-73,
206 P3d 1042 (2009), we first examine the statute’s text in
context. State v. Walker,
356 Or 4, 13,
333 P3d 316 (2014)
(“We begin with the text and context of the statute, which
are the best indications of the legislature’s intent.”).
Use of the word “shall” in ORS 813.255(3)(b) demonstrates a duty. “Ordinarily, use of the word ‘shall’ implies
that the legislature intended to create an obligation,” as
opposed to “may,” which “generally implies that the legislature intended to create only the authority to act.” Doyle
v. City of Medford, 347 Or 564, 570-71,
227 P3d 683 (2010)
(citing Friends of Columbia Gorge v. Columbia River,
346
Or 415, 426-27,
212 P3d 1243 (2009)); Webster’s Third
New Int’l Dictionary 2085 (unabridged ed 2002) (defining
“shall,” in part, as “used in laws, regulations, or directives
to express what is mandatory”); Legislative Administration
Committee, Form and Style Manual for Legislative
Measures 6 (2008) (“To impose an obligation to act, use
‘shall.’ ”). Although the legislature uses “shall” on occasion
to create a permissive statute, its use of “shall” alongside
the word “may” demonstrates an intention to give “shall”
obligatory meaning. Doyle,
347 Or at 570 (so concluding);
Friends of Columbia Gorge,
346 Or at 426 (when “shall” and
“may” appear side-by-side, “shall” creates duty, whereas
“may” creates only authority). Under such circumstances,
“our normal interpretive principles dictate that we presume different meanings are intended” by the two terms.
Id. at 427.
Said another way, “shall” and “may” are different
words. The legislature used both words in the same statute.
Cite as 307 Or App 49 (2020) 67
We should presume that the legislature used both words
on purpose and that it did so intending that the different
meanings be applied. The majority dismisses the obvious
difference as “potential tension” in the statute, but I do not
see it that way. “[M]ay” in ORS 813.255(1) means that the
trial court is permitted to issue an order for the defendant
to appear and show cause why diversion should not be terminated. “[S]hall” in ORS 813.255(3)(b) means that the trial
court must terminate the diversion agreement and enter the
guilty plea if it finds that the defendant violated the agreement. See Force v. Dept. of Rev.,
350 Or 179, 188,
350 P3d
179 (2011) (“ ‘[C]ontext’ includes, among other things, other
parts of the statute at issue.”). That the legislature used the
word “may” in subsection (1) and “shall” in subsection (3)
reflects an appreciation for the difference between the two
terms, and an intention to create an obligation with respect
to the latter. The court may schedule a hearing concerning
whether to terminate diversion, but, regardless of whether it
conducts a show-cause hearing, it must terminate diversion
where it finds a defendant has, in fact, violated the agreement. There is no tension.
The statute’s context further supports the conclusion that termination of the diversion agreement and entry
of the guilty plea is not merely an option, when a violation
is found. In State v. Canales, 301 Or App 668, 669,
458 P3d
720, rev den,
366 Or 552 (2020), we interpreted ORS 813.255
(3)(b) to require termination and entry of the guilty plea
when the court finds a defendant violated a term of the
diversion agreement. See also State v. Bryan,
221 Or App
455, 459,
190 P3d 470 (2008), rev den,
347 Or 290 (2009)
(“Prior construction of a statute by this court is always relevant to our analysis of the statute’s text.”). In Canales, the
defendant completed all terms of the diversion agreement
within the diversion period, except for attendance at a victim impact panel, which he completed one week late.
301
Or App at 669. The trial court terminated diversion and
entered a judgment of conviction for DUII.
Id. The defendant appealed, arguing that ORS 813.255(3)(b) does not
require a trial court to terminate the diversion agreement
because he violated a term.
Id. He contended, instead, that
the court had discretion to excuse the late completion of the
68 State v. Zook
victim impact panel and to dismiss his case.
Id. We rejected
that argument without written discussion and affirmed.
Id. at 670.
We have reached a similar conclusion with respect
to analogous language in a related statute. In State v. Maul,
205 Or App 14, 18-19,
132 P3d 665, rev den,
341 Or 80 (2006),
we examined former ORS 813.225(7)(b) (2006), renumbered
as ORS 813.225(8)(b), Or Law 2011, ch 197, § 2. In that case,
the defendant received an extension to his diversion period.
Id. at 17. After failing to complete the diversion agreement’s
requirements within the extended time, he sought a second extension. Id. The trial court declined that request,
but, rather than enter a conviction, continued the matter
to a later date. Id. That later date arrived and, again, the
defendant had failed to satisfy the terms of diversion, and
was denied an extension but permitted a continuance. Id.
Finally, the defendant successfully completed all of the conditions of his diversion. Id. at 18. The court dismissed the
DUII charge. Id. On appeal, we concluded that the requirement that the court “shall enter a judgment of conviction
and shall sentence the defendant” if it finds that the defendant failed to comply with terms of diversion within the
extended diversion period is obligatory. Id. at 18 (emphases
added). We reversed and remanded for entry of a judgment
of conviction. Id.
Reviewing related statutory provisions, I find no
support for the assertion that ORS 813.255(3)(b) is discretionary. See State v. Klein, 352 Or 302, 309,
283 P3d 350
(2012) (a statute’s context includes “related statutes”). Other
sections of ORS chapter 813 grant the trial court authority
to allow a petition for diversion (ORS 813.220), to extend
the diversion period (ORS 813.225), and to dismiss the DUII
charges (ORS 813.250), but they do not provide discretion
with regard to the requirements of ORS 813.255(3).
For its part, ORS 813.220 pertains to considerations
for allowing diversion in the first place; it does not address
the question of whether to continue or terminate diversion already underway. Insofar as those qualifying factors
emphasize treatment and rehabilitation and contemplate
Cite as 307 Or App 49 (2020) 69
behavioral issues associated with addiction—like relapse—
they do so for the purpose of determining a person’s suitability for entering diversion, not for resuming it after failing to
adhere to its conditions.
ORS 813.225 allows the trial court to grant a petition for an extension of the diversion period upon finding,
among other things, that the defendant can complete the
conditions of diversion within the additional time requested.
It is axiomatic that a defendant cannot “complete the conditions of the diversion agreement” if she has already violated the agreement. If the court finds that the defendant
violated the terms of the diversion agreement, and if the
record supports that conclusion, the record necessarily cannot also permit the court to find that, with more time, the
defendant can meet the conditions of diversion. In effect, the
findings that implicate ORS 813.255(3)(b) and ORS 813.225
are mutually exclusive.
There is an important difference between requesting additional time to attend a VIP class because defendant
has not yet been able to attend the class and requesting
additional time to not drink alcohol when defendant has
already violated diversion by drinking alcohol. An extension
to attend VIP would allow full compliance. An extension to
not drink will never result in full compliance if the defendant has already consumed alcohol. I find it significant that
a defendant requesting an extension of time must make that
request “[w]ithin 30 days prior to the end of the diversion
period.” That requirement clearly exists to allow compliance
where compliance can still be achieved.
I acknowledge that the trial court’s decision to
extend the diversionary period and to essentially restart
the clock on the “no alcohol” requirement reflects compassion and hope. But, the court’s assertion that mandatory
termination of diversion is not consistent with an understanding of alcoholism as a disease or with “the public policy
goal of rehabilitation” is not correct and it misses the point.
ORS 813.010 penalizes drunk driving as criminal conduct.
It does not penalize, criminalize, or seek to cure alcoholism. The goal is to reduce drunk driving and the human
risks associated with drunk driving. The DUII diversion
70 State v. Zook
statutory framework requires full compliance. I believe it is
our job to enforce the law as it is written.
Because the trial court found that defendant violated diversion when she used alcohol, I would conclude that
it erred by not terminating her diversion agreement and
entering her guilty plea. I would reverse and remand for
entry of judgment of conviction and sentencing. I respectfully dissent from the majority’s decision to the contrary.
