(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 defendant to appear and show cause why the court should not terminate the diversion agreement. The order to show cause shall state the reasons for the proposed termination and shall 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) 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:
(a) At the hearing on the order to show cause, the court finds by a preponderance of the evidence that any of the reasons for termination described in this section exist; or
(b) The defendant fails to appear at the hearing on the order to show cause.
(4) 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.
(5) The court shall terminate a diversion agreement under this section for any of the following reasons:
(a) The defendant fails to fulfill the terms of the diversion agreement.
(b) The defendant does not qualify for the diversion agreement under the criteria in ORS 813.215. [1987 c.441 §9; 2003 c.816 §5]
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