No. 435 August 30, 2023 665

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JESSE RYAN ROSE,

Defendant-Appellant.

Deschutes County Circuit Court

22CR01210; A178325

Walter Randolph Miller, Jr., Judge.

Submitted April 7, 2023.

Richard E. Oberdorfer and Oberdorfer Law Firm LLC 

filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Rolf C. Moan, Assistant Attorney 

General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and 

Kamins, Judge.

TOOKEY, P. J.

Reversed and remanded.
666 State v. Rose

TOOKEY, P. J.

Defendant was charged with driving under the 

influence of intoxicants (DUII), ORS 813.010. After the trial 

court denied his petition to enter into diversion, ORS 813.200 

to 813.270, defendant entered a conditional guilty plea. On 

appeal, he seeks reversal of his conviction and remand to 

allow him to withdraw his conditional guilty plea and enter 

his already-filed DUII diversion guilty plea. The state concedes that the trial court erred in denying defendant’s petition to enter into diversion for the reasons the court stated 

and that the case should be remanded for the court to reconsider its ruling. We agree and accept the concession. We 

therefore reverse defendant’s conviction and remand.

As relevant here, ORS 813.215 provides:

“(1) A defendant is eligible for diversion if the defendant meets all of the following conditions:

“(a) On the date the defendant filed the petition for 

a driving while under the influence of intoxicants diversion 

agreement, the defendant had no charge, other than the 

charge for the present offense, pending for:

“(A) An offense of driving while under the influence 

of intoxicants in violation of:

“(i) ORS 813.010; or

“(ii) The statutory counterpart to ORS 813.010 in 

another jurisdiction;

“(B) A driving under the influence of intoxicants 

offense in another jurisdiction that involved the impaired 

driving of a vehicle due to the use of intoxicating liquor, 

cannabis, psilocybin, a controlled substance, an inhalant 

or any combination thereof; or

“** * * *

“(b) The defendant has not been convicted of an 

offense described in paragraph (a) of this subsection within 

the period beginning 15 years before the date of the commission of the present offense and ending on the date the 

defendant filed the petition for a driving while under the 

influence of intoxicants diversion agreement.

“(c) The defendant has not been convicted of a felony offense described in ORS 813.010(5)(a).
Cite as 327 Or App 665 (2023) 667

“(d) The defendant was not participating in a driving while under the influence of intoxicants diversion program or in any similar alcohol or drug rehabilitation program in this state or in another jurisdiction on the date the 

defendant filed the petition for a driving while under the 

influence of intoxicants diversion agreement. A defendant 

is not ineligible for diversion under this paragraph by reason of participation in a diversion program or any similar 

alcohol or drug rehabilitation program as a result of the 

charge for the present offense or a charge for violation of 

ORS 471.430.

“(e) The defendant did not participate in a diversion 

or rehabilitation program described in paragraph (d) of this 

subsection within the period beginning 15 years before the 

date of the commission of the present offense and ending on 

the date the defendant filed the petition for a driving while 

under the influence of intoxicants diversion agreement. A 

defendant is not ineligible for diversion under this paragraph by reason of participation in a diversion program or 

rehabilitation program described in paragraph (d) of this 

subsection as a result of the charge for the present offense 

or a charge for violation of ORS 471.430.”

(Emphases added.)

Under ORS 813.215(1)(a)(A)(ii) and ORS 813.215(1)(b), 

a defendant is ineligible for diversion if they have been convicted of DUII under ORS 813.010 or its “statutory counterpart *** in another jurisdiction” within the prior 15 years. 

Under ORS 813.215(1)(a)(B) and ORS 813.215(1)(b), a defendant is ineligible for diversion if they have been convicted 

in the prior 15 years of, “[a] driving under the influence of 

intoxicants offense in another jurisdiction that involved the 

impaired driving of a vehicle due to the use of intoxicating 

liquor, cannabis, a controlled substance, an inhalant or any 

combination thereof.” Under ORS 813.215(1)(e), a defendant 

is ineligible for diversion if they have participated in a diversion or rehabilitation program “within the period beginning 

15 years before the date of the commission of the present 

offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants 

diversion agreement.”

In his written motion to enter a diversion program, 

defendant disclosed a 2016 Colorado conviction for “driving 
668 State v. Rose

while ability impaired” (DWAI), defined in Colo Rev Stat 

§ 42-4-1301(1)(b). But defendant directed the trial court’s 

attention to State v. Guzman/Heckler, 366 Or 18, 46, 455 P3d 

485 (2019), in which the Supreme Court held that Colorado’s 

DWAI offense does not include an element of “perceptible 

impairment,” as required by Supreme Court case law under 

ORS 813.010, and therefore is not a statutory counterpart to 

ORS 813.010 under ORS 813.215(1)(a)(A)(ii). See also State 

v. Nelson, 318 Or App 230, 231, 505 P3d 1105 (2022) (Under 

Guzman/Heckler, an out-of-jurisdiction offense is a “statutory counterpart” of Oregon DUII only if the elements of 

the defendant’s prior convictions are the close equivalent, or 

“match,” the elements of the Oregon offense.).

Defendant also argued that he had no previous 

conviction for an offense involving “impaired driving,” ORS 

813.215(1)(a)(B); see State v. Mazzola, 356 Or 804, 813, 345 

P3d 424 (2015) (the impairment element of ORS 813.010(1) 

can be proved either by a blood alcohol content (BAC) level 

of .08 percent or by showing “that the driver was impaired 

to a perceptible degree while driving.”).

The trial court nonetheless denied defendant’s 

motion for diversion under ORS 813.215(1)(a)(B):

“THE COURT: Okay. After considering the arguments, and then further reviewing the materials attached 

to the motion to enter diversion that are from the Colorado 

DWAI conviction, I do find as a result of the DWAI conviction in Colorado, that defendant is disqualified under 

ORS 813.215(A)—excuse me, subsection (1)(B) because 

the DWAI conviction does constitute a driving under the 

influence of intoxicants [offense] in another jurisdiction 

that involved the impaired driving of a vehicle through the 

use of intoxicating liquor, cannabis, psylocibin, controlled 

substance, inhalant, or any combination thereof. [T]hose 

are elements of the DWAI. I do not believe that the Court 

is required to element match to determine whether that 

DWAI constitutes a statutory counterpart * * *, because 

this is not being argued as a * **disqualifying statutory 

counterpart under the other provisions that would make 

[defendant] ineligible for diversion. And even if the Court 

were to accept the argument of defense counsel *** that he 

was not statutorily disqualified, the Court would exercise 

its discretion * ** to deny the diversion petition due to the 
Cite as 327 Or App 665 (2023) 669

fact that, you know, approximately six years ago or less, 

in relation to the Colorado DWAI, [defendant] would have 

been ordered to participate and engage in the same nature 

of treatment * ** that is contemplated by the Oregon 

diversion education and treatment and that would be a—

another basis for disqualification. So, I’m denying * * * the 

petitioner for diversion.”

The court thus did not base its rejection of defendant’s petition on the rationale that the Colorado offense was 

a “statutory counterpart” under ORS 813.215(1)(a)(A)(ii); 

rather, the court reasoned that the Colorado offense required 

a rejection of petitioner’s request for diversion because it 

was a “driving under the influence of intoxicants offense in 

another jurisdiction that involved the impaired driving of a 

vehicle.” ORS 813.215(1)(a)(B). After the trial court rejected 

defendant’s petition for diversion, defendant entered a conditional guilty plea to the charge of DUII, reserving his right 

to appeal the trial court’s denial of his entry into diversion.

On appeal, defendant contends (and the state concedes) that, in light of Guzman/Heckler, the trial court erred in 

denying his petition for diversion, and we agree. In Guzman/

Heckler, the court did not address ORS 813.215(1)(a)(B). 

But citing Mazzola, 356 Or at 813, the court noted in Guzman/

Heckler that the impairment element of ORS 813.010(1) can 

be proved either by a blood alcohol content (BAC) level of .08 

percent or by showing “that the driver was impaired to a 

perceptible degree while driving.” Guzman/Heckler, 366 Or 

at 46. See also State v. Clark, 286 Or 33, 39, 593 P2d 123 

(1979) (describing state’s burden to establish that driver was 

“under the influence” either through BAC level or based on 

“observable physical symptoms”). The court emphasized that 

the “perceptible degree” standard has applied to “impairment” in proof of DUII for “close to a century.” Id. The court 

said, “the ‘perceptible degree’ standard draws a line between 

slight impairment that does not violate the law and the more 

significant impairment that does.” Id. at 48. The court noted 

in Guzman/Heckler that although Colorado’s DWAI offense 

required “impairment,” it was not impairment to a perceptible degree. Rather, the Colorado offense “extends to drivers 

who are slightly and imperceptibly impaired.” 366 Or at 47. 
670 State v. Rose

Thus, the court concluded, the Colorado offense was not a 

statutory counterpart of DUII.

In conceding that the trial court erred in holding 

that defendant had a previous conviction for an offense 

involving impaired driving, ORS 813.215(1)(a)(B), the 

state argues that, to prove that defendant committed the 

Colorado offense of DWAI, the prosecution “did not need to 

prove that defendant’s alcohol and/or drug use necessarily 

had any actual effect on his driving,” and that, because the 

prosecution did not need to prove that the use of intoxicants 

made defendant’s driving any different or worse than it 

otherwise would have been, it did not need to prove that 

defendant’s offense involved “impaired driving.”1

 Thus, the 

state contends, the record did not support the trial court’s 

conclusions that defendant’s Colorado offense “involved the 

impaired driving of a vehicle” due to intoxicants.

We accept the state’s concession that the trial court 

erred. The court said in Guzman/Heckler that the Colorado 

offense of DWAI did involve impairment, but not impairment to a “perceptible degree.” Thus, the court said, a person could be convicted of DWAI even if the intoxication was 

imperceptible. Id. at 47.2

 Under ORS 813.215(1)(a)(B), the 

1 The state argued:

“Because the prosecution [for defendant’s Colorado DWAI] did not need to 

prove that use of intoxicants made defendant’s driving any different or worse 

than it otherwise would have been, it did not need to prove that defendant’s 

offense involved “impaired driving.”

2 The court said:

“Under Colorado law, the impairment element is satisfied when a person is 

‘affect[ed] *** to the slightest degree so that the person is less able than the 

person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or 

due care in the safe operation of a vehicle. Colo Rev Stat § 42-4-1301(1)(g) 

(2010). By contrast, the impairment element of ORS 813.010(1) can be proved 

either by a blood alcohol content (BAC) level of .08 percent or by showing 

‘that the driver was impaired to a perceptible degree while driving.’ State 

v. Mazzola, 356 Or 804, 813, 345 P3d 424 (2015). The ‘perceptible degree’ 

standard has been part of our law for close to a century. See State v. Noble, 

119 Or 674, 678, 250 P 833 (1926); State v. Robinson, 235 Or 524, 531, 385 P2d 

754 (1963). The state argues that there is little difference between DWAI and 

DUII under ORS 813.010. We disagree. Colorado’s DWAI law criminalizes 

driving even while imperceptibly intoxicated, provided that the individual’s 

mental or physical abilities relating to driving are affected ‘to the slightest 

degree.’ Colo Rev Stat § 42-4-1301(1)(g) (2010). That conduct falls below the 

‘perceptible degree’ of intoxication threshold set by ORS 813.010(1). To be 
Cite as 327 Or App 665 (2023) 671

Colorado offense must have been for “impaired driving.” If, 

as the court said in Guzman/Heckler, the Colorado offense 

of DWAI is established by intoxication that is imperceptible, 

then, as the state correctly concedes, the person’s driving

is not impaired as required by ORS 813.215(1)(a)(B). Thus, 

a person who has been convicted of the Colorado offense of 

DWAI has not necessarily been convicted of an offense involving impaired driving, as required by ORS 813.215(1)(a)(B). 

See also State v. Santos-Ramirez, 312 Or App 117, 493 P3d 

522 (2021) (construing the same statutory wording in ORS 

809.235(1)(b)(B) “to encompass out-of-state offenses only to 

the degree that those offenses require proof that a person’s 

driving was impaired by the use of intoxicants”). We therefore conclude that defendant’s Colorado conviction for DWAI 

is not a conviction involving “impaired driving,” as required 

by Oregon law under ORS 815.215(1)(a)(B).

The trial court said that, alternatively, it would 

“exercise its discretion” to

“deny the diversion petition due to the fact that, you know, 

approximately six years ago or less, in relation to the 

Colorado DWAI [defendant] would have been ordered to 

participate and engage in the same nature of treatment 

* * * that is contemplated by the Oregon diversion education 

and treatment.”

The trial court’s discussion appears to refer to 813.215(1)(e), 

under which a person is not eligible for diversion if they 

have participated in a diversion program within the last 

15 years. See ORS 813.215(1)(e). But, as the parties agree, 

the evidence here did not establish that defendant had participated in a diversion or rehabilitation program after his 

Colorado DWAI conviction.

It is possible that, by referencing its “discretion,” 

the court had in mind ORS 813.220, which lists criteria 

that a court, in its discretion, should consider in determining whether to allow diversion for a person who establishes 

eligibility under ORS 813.215. See, e.g., State v. Warrington, 

sure, imperceptible intoxication can also violate ORS 813.010(1)(a), but only 

when the person’s BAC at the time of driving was 0.08 or higher. DWAI, 

under Colorado law, criminalizes lower levels of imperceptible intoxication 

because it extends to even the ‘slightest degree’ of impairment.”

Guzman/Heckler, 366 Or at 45-46.
672 State v. Rose

219 Or App 566, 184 P3d 1160 (2008); State v. Wright, 204 

Or App 724, 726, 131 P3d 838 (2006) (“Once a defendant 

establishes eligibility, whether contested or not, the decision 

to allow diversion in a particular case is a matter of discretion left to the trial court. ORS 813.220.”). We agree with 

defendant that the circumstances described by the court do 

not appear to relate to the criteria listed in that statute.

We therefore reverse defendant’s conviction and 

remand for reconsideration of defendant’s petition for 

diversion.

Reversed and remanded.