State v. Oeleis

PER CURIAM Defendant appeals his conviction for driving under the influence of intoxicants. ORS 813.010. He first contends that the court erred in denying his petition for diversion, because it incorrectly found that he was not eligible for diversion. In fact, the court found defendant eligible for diversion but nonetheless denied his petition pursuant to its discretionary authority. ORS 813.220; State v. Thomas, 85 Or App 460, 737 P2d 143 (1987). Defendant does not argue, nor do we find, that the court abused its discretion. Defendant also contends that the court erred in imposing a three-year suspension of his driver’s license. Because defendant had no prior conviction when the citation was issued, we agree with the state’s concession that the court was not authorized to impose the three-year suspension. ORS 809.420(2); State v. Carney, 94 Or App 302, 765 P2d 232 (1988). Conviction affirmed; suspension of driver’s license vacated and remanded for reconsideration.