DUII outrage in Astoria

The Associated Press ASTORIA, Ore. (AP) — After complaints two years ago about the way a drunken driving case was handled, the Astoria Municipal Court is facing criticism from Clatsop County District Attorney Josh Marquis about whether the court is following a new state law he wrote to tighten the rules on entering a diversion program to avoid fines or jail.

But Municipal Court Judge Kris Kaino, City Attorney Dan Van Thiel and a local attorney who handles many driving under the influence of intoxicants — or DUII — cases, all say the court is following the letter of the law.

"I think the court is acting appropriately," said Van Thiel, who acts as prosecutor in municipal court.

Marquis, however, notes the municipal court is not an official "court of record" supervised by the Oregon Supreme Court and answers only to the Astoria City Council.

Local municipal courts generally handle minor offenses such as traffic citations while the state circuit court system handles more serious cases along with civil lawsuits.

But DUII cases sometimes fall in a gray area between municipal and state courts.

"The concern I have is if the law is being interpreted in an utterly different way" in municipal court, Marquis said.

State law allows a person arrested for DUII to undergo court-ordered substance abuse treatment, called a diversion program. If the program is completed and the person follows other conditions, the DUII charge is erased from his or her criminal record.

But to be eligible, a person cannot have any other DUII convictions or participation in diversion on his or her record within the previous 10 years.

The Astoria Municipal Court did not apply that rule two years ago when Lake Oswego attorney Stephen Moore was allowed to enter diversion despite the fact he had a prior DUII arrest within the 10-year window.

The Daily Astorian newspaper filed a motion asking the court to reconsider the case, and Moore's diversion petition was rejected.

Moore was convicted on the DUII charge and sentenced to two days in jail and 18 months probation, and was required to pay $1,289 in fines and assessments by visiting Judge Robert Moberg. His driver's license also was suspended for a year.

Marquis claims the municipal court is again skirting the rules of the diversion program, this time by allowing people to fight their arrests while still leaving open the chance to seek diversion.

Last year, Marquis introduced a bill to the Oregon Legislature tightening the requirements for diversion applications. Senate Bill 302 was one of a series of DUII-related pieces of legislation approved by state lawmakers and signed by Gov. Ted Kulongoski. It took effect Jan. 1.

The bill requires defendants, as a condition for the diversion program, to first plead guilty or no contest to the DUII charge. It also limits the reasons to extend the diversion filing deadline.

The new diversion law specifically states that filing a motion to challenge evidence in a case is not good reason for a deadline extension.

Prior to the new law, Marquis said, many DUII defendants were challenging their cases in court, sometimes for several months, with motions to suppress evidence, then turning to the diversion option when all their legal arguments were exhausted.

"The intention of diversion generally is that you either take responsibility up front in a relatively quick span of time, or you challenge it. But you can't do both," he said.

In three recent cases in Astoria Municipal Court, defendants arrested for DUII were allowed to submit diversion petitions with the court while also filing motions challenging their arrests.

Kaino, who heard the three cases, says nothing in the diversion law, including the new language added last year, prevents a defendant from pursuing both a motion to suppress and diversion, if both are filed within the 30-day window.

"As far as the intent of the statute, it is clear on its face it says what it says," he said. "If the Legislature did not want to allow motions on diversions, it could have said that."

The Daily Astorian contacted five other municipal courts in The Dalles, Roseburg, McMinnville, Eugene and Lake Oswego to see how they would handle the potential legal loophole.

Officials from the other municipal courts said most people who are eligible for diversion apply for it rather than fight the charge.

Eugene Municipal Court supervisor Gabrielle Glenn said her court would never allow a defendant to simultaneously enter a diversion petition while fighting the charge with a suppression motion.

But Bruce Shepley, a Lake Oswego municipal judge, said the new law might actually make him more willing to allow a person to challenge a DUII arrest.

By requiring defendants to plead guilty or no contest as a condition of diversion, the law now forces them to effectively give up their rights to raise constitutional issues about their arrests, Shepley said.