(2) In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider at least the following factors:
(a) The nature of the offense; however, except as provided in subsection (3) of this section, the offense must not have involved physical injury to another person;
(b) Any special characteristics or difficulties of the offender;
(c) Whether the defendant is a first-time offender; if the offender has previously participated in diversion, according to the certification of the Department of Justice, diversion may not be offered;
(d) Whether there is a probability that the defendant will cooperate with and benefit from alternative treatment;
(e) Whether the available program is appropriate to the needs of the offender;
(f) The impact of diversion upon the community;
(g) Recommendations, if any, of the involved law enforcement agency;
(h) Recommendations, if any, of the victim;
(i) Provisions for restitution; and
(j) Any mitigating circumstances.
(3) In determining whether diversion of a defendant who is a servicemember is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider all of the factors listed in subsection (2) of this section, including the nature of the offense, except that diversion may not be offered if the offense:
(a) Involved serious physical injury to another person;
(b) Is classified as a Class A or B felony and involved physical injury to another person;
(c) Is described in ORS 163.365, 163.375, 163.395, 163.405, 163.408, 163.411 or 163.427; or
(d) Involved domestic violence as defined in ORS 135.230 and, at the time the offense was committed, the defendant was subject to a protective order in favor of the victim of the offense.
(4) As used in this section:
(a) "Physical injury" and "serious physical injury" have the meanings given those terms in ORS 161.015.
(b) "Protective order" means:
(A) An order issued under ORS 30.866, 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750; or
(B) A condition of probation, parole or post-prison supervision, or a release agreement under ORS 135.250, that prohibits the defendant from contacting the victim. [1977 c.373 §2; 1981 c.64 §1; 1981 c.803 §2; 1983 c.338 §889; 2010 c.25 §2]