(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 or on the motion of the district attorney or city attorney may issue an order requiring the defendant to appear and show cause why the court should not terminate the diversion agreement. The order to show cause must:
(a) State the reasons for the proposed termination;
(b) Specify the amount of any fees owed and, if the amount owed is $500 or less, inform the defendant that the court may dismiss with prejudice the charge of driving while under the influence of intoxicants if the person has complied with and performed all of the conditions of the diversion agreement and pays the remaining amount before or on the date of the hearing; and
(c) Set an appearance date.
(2) The order to show cause shall be served on the defendant and on the defendant’s attorney, if any. Service may be made by first class mail, postage paid, addressed to the defendant at the mailing address shown on the diversion petition and agreement or at any other address that the defendant provides in writing to the court.
(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 the defendant fails to appear at the hearing on the order to show cause or if, at the hearing on the order to show cause, the court finds by a preponderance of the evidence that:
(a) The defendant no longer qualifies for the diversion agreement under the conditions described in ORS 813.215; or
(b) The defendant failed to fulfill all of the terms of the diversion agreement.
(4) If a defendant is a member of the Armed Forces of the United States, the reserve components of the Armed Forces of the United States or the National Guard and is on active duty, the court shall:
(a) Allow the defendant to appear at the hearing by telephone or other communication device approved by the court, if the defendant’s military service permits such an appearance; or
(b) Stay the termination proceeding if the defendant’s military service prohibits the defendant’s appearance by telephone or other communication device and prohibits the defendant from aiding and assisting the attorney who would appear on the defendant’s behalf.
(5) If the defendant appears at the hearing on the order to show cause, the court shall dismiss with prejudice the charge of driving while under the influence of intoxicants if:
(a) The defendant has complied with and performed all of the conditions of the diversion agreement except that the defendant owes $500 or less of the fees required under ORS 813.200, 813.210, 813.235 and 813.240; and
(b) The defendant pays the balance of the fees owed by 5 p.m. on the day the hearing is held. The defendant may also pay the balance of the fees owed before the day the hearing is held.
(6) A court may not terminate a diversion agreement under this section for failure to pay restitution under ORS 137.108 if the defendant has otherwise complied with and performed all of the conditions of the diversion agreement.
(7) Before the court dismisses with prejudice the charge of driving while under the influence of intoxicants under this section, the court shall enter a judgment containing a money award, as defined in ORS 18.005, for any remaining amount of restitution owed by the defendant.
(8) If the court terminates the diversion agreement and enters the guilty plea or no contest plea, the court may take into account at time of sentencing any partial fulfillment by the defendant of the terms of the diversion agreement. [1987 c.441 §9; 2003 c.816 §5; 2011 c.197 §3; 2013 c.78 §1]