Teacher Standards and Practices Commission .us



Teacher Standards and Practices Commission250 Division Street NESalem OR 97301July 24-26, 2013ITEM:DIVERSIONS AND CONDITIONAL DISCHARGESACTION:INFORMATION / DISCUSSION ITEMINFORMATION:What does a diversion or conditional discharge mean and how do they relate to TSPC character questions and disciplinary process?DIVERSION GENERALLY: ORS 135.885 et seq allows for diversion of certain crimes when the crime was committed by a first offender and a series of mitigating factors apply to a circumstances of the case. (See, ORS 135.886).While, a diversion related to driving under the influence of intoxicants (DUII) is the most frequent case the Commission sees in both new candidates and practicing educators, the Commission has also encountered diversions related to prostitution, a few mandatory crimes (sodomy), possession of marijuana and other cases. Most diversions work similarly to the procedure described below as it relates to DUII cases.DUII DIVERSION: ORS 813.215Oregon law gives a DUII driver a break if it is the driver’s first drunk driving offense by allowing them to enter into the diversion program. One is diversion eligible under ORS 813.215 if (1) they have not had a DUII or DUII diversion (or similar drug or alcohol program) in the last 15 years (10 years if arrest was prior to January 1, 2010); (2) one’s DUII didn’t involve an accident where someone (other than the driver) was injured; (3) one doesn’t have a commercial driver’s license; and (4) one otherwise qualifies under the statute. If this is a driver’s second diversion, one must satisfy all of the above factors and must not have been convicted of any other criminal offense involving a motor vehicle in the last 15 years.To enter into the Oregon diversion program, one has to plead guilty or no contest to the charge. Some judges do not accept a no contest plea in a diversion case despite it being statutorily authorized under ORS 813.200(4)(a). One’s guilty plea is held in abeyance during the diversion period. If one complies with the terms (no drinking is a new term effective in 2011 and an ignition interlock device became mandatory in 2012) and stays out of trouble, the DUII is dismissed at the end of one year.“Dismissed” is not the same as expunged or sealed. (See, Agenda Item 5.3 on expungements and Dismissals)CONDITIONAL DISCHARGE: ORS 475.245Whenever any person pleads guilty to or is found guilty of possession of a controlled substance under ORS 475.752 (Prohibited acts generally) (3), 475.814 (Unlawful possession of hydrocodone),475.824 (Unlawful possession of methadone), 475.834 (Unlawful possession of oxycodone),?475.854?(Unlawful possession of heroin),?475.864?(Unlawful possession of marijuana),?475.874(Unlawful possession of 3,4-methylenedi-),?475.884?(Unlawful possession of cocaine)?or?475.894?(Unlawful possession of methamphetamine), of endangering the welfare of a minor under ORS?163.575?(Endangering the welfare of a minor)?(1)(b), or frequenting a place where controlled substances are used under ORS167.222?(Frequenting a place where controlled substances are used)?or of a property offense that is motivated by a dependence on a controlled substance, the court, without entering a judgment of guilt and with the consent of the district attorney and the accused, may defer further proceedings and place the person on probation. Upon violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. There may be only one discharge and dismissal under this section with respect to any person.Conditional discharge is a legal arrangement where a court provides a list of conditions that must be adhered to if a person wishes to avoid incarceration. An offender has the option of whether or not he/she wants to enter into this agreement when it is offered. In some cases, although the offense is minor or the offender has no criminal record, the court cannot enter into such an agreement due to mandatory sentencing.If a person is subject to a conditional discharge, then the person has been found guilty of some type of offense. A conditional discharge is an agreement that is made after a person's guilt has been determined. In this type of arrangement, the court will generally issue a list of probationary terms. These could require a person to take and pass regular drug tests, to maintain employment or school attendance, and to complete an awareness or rehabilitation program.A person, wishing to avoid incarceration, may agree to these terms. There is generally a period that the court will set during which these conditions apply. If a person violates any of the conditions, the person may be brought back before the court and sentenced for the offense to which the conditional discharge applied. In addition, if the person voids that agreement by way of criminal activity, the person can be given the maximum punishments for that offense as well. Although many conditions are specifically outlined, it is usually stated that committing any offense is grounds to revoke the discharge. ................
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