State v. Bentley, 243 P.3d 859

DUII charge arising from July 10, 2008 incident; defendant had prior DUII convictions in 1995 and 1998.
Prior 1998 conviction included participation in a court-ordered treatment program as a probation condition.
Defendant filed a petition for a DUII diversion; State objected asserting ineligibility due to prior treatment participation.
ORS 813.215(1) defines eligibility with provisions (d) and (e) governing participation in other rehabilitation programs.
Trial court denied the diversion petition; defendant appeals on the theory that prior treatment differed from a DUII diversion program and thus was not a “similar” rehabilitation program.
Court addresses whether participation in a rehabilitation program while on probation can render a defendant ineligible for DUII diversion under ORS 813.215(1).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prior alcohol/drug treatment on probation qualifies as a 'similar' program under ORS 813.215(1).	Bentley argues prior program is not similar to DUII diversion because not exchange for milder sanctions.	Bentley contends prior treatment is sufficiently similar to diversion to trigger ineligibility.	Yes; prior program deemed similar; ineligible for diversion.

Dunbrasky v. State, 122 Or.App. 90 (1993) (treatment on probation can be similar to diversion if its purpose is to address substance abuse and avoid a sanction)
State v. Young, 196 Or.App. 708 (2004) (ordinary meaning of 'similar' includes comparable rehabilitation programs with charge-dismissal outcomes)
State v. Wright, 204 Or.App. 724 (2006) (prior treatment from non-judicial source can be similar to DUII diversion; broad interpretation of similarity)
State v. LaGrassa, 235 Or.App. 150 (2010) (rehabilitation imposed by government to avoid sanctions is similar; government actor requirement broadened)
State v. Hamlin, 151 Or.App. 481 (1997) (probation-based considerations shaping interpretation of DUII diversion)