665
Submitted April 7, reversed and remanded August 30, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
JESSE RYAN ROSE,
Defendant-Appellant.
Deschutes County Circuit Court
22CR01210; A178325
537 P3d 174
Defendant, who was charged with driving under the influence of intoxicants (DUII), ORS 813.010, appeals from a judgment of conviction on a conditional guilty plea after the trial court denied his petition to enter into diversion,
ORS 813.200 to 813.270, based on the court’s conclusion that defendant’s prior
Colorado conviction for “driving while ability impaired” (DWAI) was a conviction
involving “impaired driving,” as provided in ORS 813.215(1)(a)(B). On appeal,
defendant seeks reversal of his conviction and remand to allow him to withdraw
his conditional guilty plea and enter his already-filed DUII diversion guilty plea.
Held: The state conceded that the trial court erred in denying defendant’s petition to enter into diversion, and the Court of Appeals agreed with and accepted
the state’s concession. Under the Supreme Court’s opinion in State v. Guzman/
Heckler, 366 Or 18, 46,
455 P3d 485 (2019), because defendant’s former conviction
of DWAI did not require proof that defendant’s alcohol and/or drug use necessarily had any actual effect on his driving, the conviction did not require a determination of impaired driving, and therefore is not a conviction described in ORS
813.215(1)(a)(B). The Court of Appeals addressed and rejected the trial court’s
other rationales for rejecting defendant’s request for diversion as not supported
by the record.
Reversed and remanded.
Walter Randolph Miller, Jr., Judge.
Richard E. Oberdorfer and Oberdorfer Law Firm LLC
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Reversed and remanded.
666 State v. Rose
TOOKEY, P. J.
Defendant was charged with driving under the
influence of intoxicants (DUII), ORS 813.010. After the trial
court denied his petition to enter into diversion, ORS 813.200
to 813.270, defendant entered a conditional guilty plea. On
appeal, he seeks reversal of his conviction and remand to
allow him to withdraw his conditional guilty plea and enter
his already-filed DUII diversion guilty plea. The state concedes that the trial court erred in denying defendant’s petition to enter into diversion for the reasons the court stated
and that the case should be remanded for the court to reconsider its ruling. We agree and accept the concession. We
therefore reverse defendant’s conviction and remand.
As relevant here, ORS 813.215 provides:
“(1) A defendant is eligible for diversion if the
defendant meets all of the following conditions:
“(a) On the date the defendant filed the petition for
a driving while under the influence of intoxicants diversion
agreement, the defendant had no charge, other than the
charge for the present offense, pending for:
“(A) An offense of driving while under the influence of intoxicants in violation of:
“(i) ORS 813.010; or
“(ii) The statutory counterpart to ORS 813.010 in
another jurisdiction;
“(B) A driving under the influence of intoxicants
offense in another jurisdiction that involved the impaired
driving of a vehicle due to the use of intoxicating liquor,
cannabis, psilocybin, a controlled substance, an inhalant
or any combination thereof; or
“…
“(b) The defendant has not been convicted of an
offense described in paragraph (a) of this subsection within
the period beginning 15 years before the date of the commission of the present offense and ending on the date the
defendant filed the petition for a driving while under the
influence of intoxicants diversion agreement.
“(c) The defendant has not been convicted of a felony offense described in ORS 813.010(5)(a).
Cite as 327 Or App 665 (2023) 667
“(d) The defendant was not participating in a driving while under the influence of intoxicants diversion program or in any similar alcohol or drug rehabilitation program in this state or in another jurisdiction on the date the
defendant filed the petition for a driving while under the
influence of intoxicants diversion agreement. A defendant
is not ineligible for diversion under this paragraph by reason of participation in a diversion program or any similar
alcohol or drug rehabilitation program as a result of the
charge for the present offense or a charge for violation of
ORS 471.430.
“(e) The defendant did not participate in a diversion or rehabilitation program described in paragraph (d)
of this subsection within the period beginning 15 years
before the date of the commission of the present offense
and ending on the date the defendant filed the petition for
a driving while under the influence of intoxicants diversion
agreement. A defendant is not ineligible for diversion under
this paragraph by reason of participation in a diversion
program or rehabilitation program described in paragraph
(d) of this subsection as a result of the charge for the present offense or a charge for violation of ORS 471.430.”
(Emphases added.)
Under ORS 813.215(1)(a)(A)(ii) and ORS 813.215(1)(b),
a defendant is ineligible for diversion if they have been convicted of DUII under ORS 813.010 or its “statutory counterpart … in another jurisdiction” within the prior 15 years.
Under ORS 813.215(1)(a)(B) and ORS 813.215(1)(b), a defendant is ineligible for diversion if they have been convicted
in the prior 15 years of, “[a] driving under the influence of
intoxicants offense in another jurisdiction that involved the
impaired driving of a vehicle due to the use of intoxicating
liquor, cannabis, a controlled substance, an inhalant or any
combination thereof.” Under ORS 813.215(1)(e), a defendant
is ineligible for diversion if they have participated in a diversion or rehabilitation program “within the period beginning
15 years before the date of the commission of the present
offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants
diversion agreement.”
In his written motion to enter a diversion program,
defendant disclosed a 2016 Colorado conviction for “driving
668 State v. Rose
while ability impaired” (DWAI), defined in Colo Rev Stat
§ 42-4-1301(1)(b). But defendant directed the trial court’s
attention to State v. Guzman/Heckler, 366 Or 18, 46,
455 P3d
485 (2019), in which the Supreme Court held that 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). See also State
v. Nelson,
318 Or App 230, 231,
505 P3d 1105 (2022) (Under
Guzman/Heckler, 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.).
Defendant also argued that he had no previous
conviction for an offense involving “impaired driving,” ORS
813.215(1)(a)(B); see State v. Mazzola, 356 Or 804, 813,
345
P3d 424 (2015) (the impairment element of ORS 813.010(1)
can be proved either by a blood alcohol content (BAC) level
of .08 percent or by showing “that the driver was impaired
to a perceptible degree while driving”).
The trial court nonetheless denied defendant’s motion
for diversion under ORS 813.215(1)(a)(B):
“THE COURT: Okay. After considering the arguments, and then further reviewing the materials attached
to the motion to enter diversion that are from the Colorado
DWAI conviction, I do find as a result of the DWAI conviction in Colorado, that defendant is disqualified under
ORS 813.215(A)—excuse me, subsection (1)(B) because
the DWAI conviction does constitute a driving under the
influence of intoxicants [offense] in another jurisdiction
that involved the impaired driving of a vehicle through the
use of intoxicating liquor, cannabis, psylocibin, controlled
substance, inhalant, or any combination thereof. [T]hose
are elements of the DWAI. I do not believe that the Court
is required to element match to determine whether that
DWAI constitutes a statutory counterpart …, because
this is not being argued as a … *disqualifying statutory
counterpart under the other provisions that would make
[defendant] ineligible for diversion. And even if the Court
were to accept the argument of defense counsel … that he
was not statutorily disqualified, the Court would exercise
its discretion … to deny the diversion petition due to the
Cite as 327 Or App 665 (2023) 669
fact that, you know, approximately six years ago or less,
in relation to the Colorado DWAI, [defendant] would have
been ordered to participate and engage in the same nature
of treatment … that is contemplated by the Oregon
diversion education and treatment and that would be a—
another basis for disqualification. So, I’m denying … the
petitioner for diversion.”
The court thus did not base its rejection of defendant’s petition on the rationale that the Colorado offense was
a “statutory counterpart” under ORS 813.215(1)(a)(A)(ii);
rather, the court reasoned that the Colorado offense required
a rejection of petitioner’s request for diversion because it
was a “driving under the influence of intoxicants offense in
another jurisdiction that involved the impaired driving of a
vehicle.” ORS 813.215(1)(a)(B). After the trial court rejected
defendant’s petition for diversion, defendant entered a conditional guilty plea to the charge of DUII, reserving his right
to appeal the trial court’s denial of his entry into diversion.
On appeal, defendant contends (and the state concedes) that, in light of Guzman/Heckler, the trial court erred in
denying his petition for diversion, and we agree. In Guzman/
Heckler, the court did not address ORS 813.215(1)(a)(B).
But citing Mazzola, 356 Or at 813, the court noted in Guzman/
Heckler that the impairment element of ORS 813.010(1) can
be proved either by a blood alcohol content (BAC) level of .08
percent or by showing “that the driver was impaired to a
perceptible degree while driving.” Guzman/Heckler,
366 Or
at 46. See also State v. Clark,
286 Or 33, 39,
593 P2d 123
(1979) (describing state’s burden to establish that driver was
“under the influence” either through BAC level or based on
“observable physical symptoms”). The court emphasized that
the “perceptible degree” standard has applied to “impairment” in proof of DUII for “close to a century.”
Id. The court
said, “the ‘perceptible degree’ standard draws a line between
slight impairment that does not violate the law and the more
significant impairment that does.”
Id. at 48. The court noted
in Guzman/Heckler that although Colorado’s DWAI offense
required “impairment,” it was not impairment to a perceptible degree. Rather, the Colorado offense “extends to drivers
who are slightly and imperceptibly impaired.”
366 Or at 47.
670 State v. Rose
Thus, the court concluded, the Colorado offense was not a
statutory counterpart of DUII.
In conceding that the trial court erred in holding
that defendant had a previous conviction for an offense
involving impaired driving, ORS 813.215(1)(a)(B), the
state argues that, to prove that defendant committed the
Colorado offense of DWAI, the prosecution “did not need to
prove that defendant’s alcohol and/or drug use necessarily
had any actual effect on his driving,” and that, because the
prosecution did not need to prove that the use of intoxicants
made defendant’s driving any different or worse than it
otherwise would have been, it did not need to prove that
defendant’s offense involved “impaired driving.”1 Thus, the
state contends, the record did not support the trial court’s
conclusions that defendant’s Colorado offense “involved the
impaired driving of a vehicle” due to intoxicants.
We accept the state’s concession that the trial court
erred. The court said in Guzman/Heckler that the Colorado
offense of DWAI did involve impairment, but not impairment to a “perceptible degree.” Thus, the court said, a person could be convicted of DWAI even if the intoxication was
imperceptible. Id. at 47.2 Under ORS 813.215(1)(a)(B), the
1
The state argued:
“Because the prosecution [for defendant’s Colorado DWAI] did not need to
prove that use of intoxicants made defendant’s driving any different or worse
than it otherwise would have been, it did not need to prove that defendant’s
offense involved “impaired driving.”
2
The court said:
“Under Colorado law, the impairment element is satisfied when a person is
‘affect[ed] … to the slightest degree so that the person is less able than
the person ordinarily would have been, either mentally or physically, or both
mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Colo Rev Stat § 42-4-1301
(1)(g) (2010). By contrast, the impairment element of ORS 813.010(1) can be
proved either by a blood alcohol content (BAC) level of .08 percent or by showing ‘that the driver was impaired to a perceptible degree while driving.’ State
v. Mazzola, 356 Or 804, 813,
345 P3d 424 (2015). The ‘perceptible degree’
standard has been part of our law for close to a century. See State v. Noble,
119 Or 674, 678,
250 P 833 (1926); State v. Robinson,
235 Or 524, 531,
385 P2d
754 (1963). The state argues that there is little difference between DWAI and
DUII under ORS 813.010. We disagree. Colorado’s DWAI law criminalizes
driving even while imperceptibly intoxicated, provided that the individual’s
mental or physical abilities relating to driving are affected ‘to the slightest degree.’ Colo Rev Stat § 42-4-1301(1)(g) (2010). That conduct falls below
the ‘perceptible degree’ of intoxication threshold set by ORS 813.010(1). To
Cite as
327 Or App 665 (2023) 671
Colorado offense must have been for “impaired driving.” If,
as the court said in Guzman/Heckler, the Colorado offense
of DWAI is established by intoxication that is imperceptible,
then, as the state correctly concedes, the person’s driving
is not impaired as required by ORS 813.215(1)(a)(B). Thus,
a person who has been convicted of the Colorado offense of
DWAI has not necessarily been convicted of an offense involving impaired driving, as required by ORS 813.215(1)(a)(B).
See also State v. Santos-Ramirez,
312 Or App 117,
493 P3d
522 (2021) (construing the same statutory wording in ORS
809.235(1)(b)(B) “to encompass out-of-state offenses only to
the degree that those offenses require proof that a person’s
driving was impaired by the use of intoxicants”). We therefore conclude that defendant’s Colorado conviction for DWAI
is not a conviction involving “impaired driving,” as required
by Oregon law under ORS 815.215(1)(a)(B).
The trial court said that, alternatively, it would
“exercise its discretion” to
“deny the diversion petition due to the fact that, you know,
approximately six years ago or less, in relation to the
Colorado DWAI [defendant] would have been ordered to
participate and engage in the same nature of treatment
… that is contemplated by the Oregon diversion education
and treatment.”
The trial court’s discussion appears to refer to ORS
813.215(1)(e), under which a person is not eligible for diversion if they have participated in a diversion program within
the last 15 years. See ORS 813.215(1)(e). But, as the parties
agree, the evidence here did not establish that defendant
had participated in a diversion or rehabilitation program
after his Colorado DWAI conviction.
It is possible that, by referencing its “discretion,”
the court had in mind ORS 813.220, which lists criteria
that a court, in its discretion, should consider in determining whether to allow diversion for a person who establishes
eligibility under ORS 813.215. See, e.g., State v. Warrington,
be sure, imperceptible intoxication can also violate ORS 813.010(1)(a), but
only when the person’s BAC at the time of driving was 0.08 or higher. DWAI,
under Colorado law, criminalizes lower levels of imperceptible intoxication
because it extends to even the ‘slightest degree’ of impairment.”
Guzman/Heckler, 366 Or at 45-46.
672 State v. Rose
219 Or App 566,
184 P3d 1160 (2008); State v. Wright,
204
Or App 724, 726,
131 P3d 838 (2006) (“Once a defendant
establishes eligibility, whether contested or not, the decision
to allow diversion in a particular case is a matter of discretion left to the trial court. ORS 813.220.”). We agree with
defendant that the circumstances described by the court do
not appear to relate to the criteria listed in that statute.
We therefore reverse defendant’s conviction and
remand for reconsideration of defendant’s petition for
diversion.
Reversed and remanded.
