State v. Heaton, 483 P.3d 1209

Heaton drank until he was legally impaired, trespassed into a homeowner's backyard, and was ordered to leave; a homeowner threatened to get a gun to shoot him.
Heaton left the yard, returned to his truck, drove a few blocks to a fire department parking lot, and was later stopped by police and charged.
The State charged felony DUII under ORS 813.011(1) because Heaton had two prior DUII convictions within the prior 10 years.
One prior conviction arose from a guilty plea made as part of a diversion petition; the plea was entered outside the 10-year window but a judgment was entered within 10 years after Heaton failed to complete diversion.
At trial the court refused Heaton’s request for a statutory choice-of-evils instruction (ORS 161.200) and later imposed a $2,000 fine at sentencing.
On appeal Heaton argued (1) the prior conviction did not qualify under the 10-year rule, (2) the court erred by denying a choice-of-evils instruction, and (3) the fine was imposed based on error and without adequate findings.

Issue	State's Argument	Heaton's Argument	Held
Whether the challenged prior DUII conviction qualifies as a prior conviction under ORS 813.011(1)	The qualifying date is the entry of plea/judgment after diversion failure; that occurred within 10 years, so it counts	The relevant date is the earlier guilty plea made to obtain diversion, which was outside the 10‑year window, so it should not count	The court affirmed: conviction counts because the finding of guilt occurred when plea/judgment was entered after diversion failure (within 10 years)
Whether Heaton was entitled to a choice‑of‑evils instruction under ORS 161.200	No instruction needed; evidence did not show he had no reasonable alternative to driving while intoxicated	He had to drive to avoid being shot and thus had no reasonable alternative, so instruction required	Denied: record did not permit a rational inference that he had no other course (e.g., walking to nearby fire station)
Whether the $2,000 fine was imposed in error or without adequate consideration of ability to pay	Court considered arguments and had discretion; defense alerted court fines were not mandatory	Court thought fines mandatory or failed to adequately consider ability to pay; record inadequate	Affirmed: record shows court knew fines were discretionary and Heaton presented ability‑to‑pay evidence; any argument about further explanation was not preserved

State v. Donathan, 281 Or App 781 (2016) (finding of guilt for diversion‑related plea occurs when plea/judgment entered after diversion failure)
State v. Rumley, 295 Or App 667 (2019) (applies Donathan reasoning to ORS 813.011(1) context)
State v. Paul, 289 Or App 408 (2017) (standards for reviewing denial of requested instruction)
State v. Boldt, 116 Or App 480 (1992) (elements required for choice‑of‑evils instruction)
State v. Freih, 270 Or App 555 (2015) (necessity element requires showing no reasonable alternative)
State v. Anderson, 363 Or 392 (2018) (appellate preservation rule when trial court record lacks explanatory findings)