Non-violent drug crime offenders in California have the privilege to seek alternative forms of sentencing compared to the traditional punishment that applies to their offenses. If you are facing any drug charge that is eligible for a diversion program, you should seek an experienced attorney who will represent you during the diversion program hearing. We at the California Criminal Lawyer Group can offer credible legal services when seeking a pre-trial diversion for your drug crimes.

Definition of Pre-Trial Diversion for Drug Crimes in California

To start with, pre-trial diversion for drug crimes in California is offered under three ways which include:

  • Proposition 36: Penal Code section 1210, 1210.1, and 30631.1)

  • Penal Code 1000 Deferred Entry for Judgment

  • California Drug Court

California Proposition 36

Everything to do with proposition 36 is defined under Penal Code 1210-1210.1 and 30361 as defined above since it is related to people who get parole and probation in their convictions. A drug diversion is a legal practice that allows a drug-related defendant to seek dismissal of their criminal charges once they complete a court-approved drug therapy program.

Eligibility for Proposition 36

Initially, drug convicts charged with non-violent drug possession offenses were expected to receive imprisonment for twelve months with the possibility of extension of more than six months to two years, if found necessary. However, with the passing of proposition 36, such offenders are eligible for a drug diversion program that allows them to attend a drug treatment program and have their conviction expunged by the court.

The program also applies to parolees who have committed non-violent drug possession offenses. Ideally, anyone who has violated parole should return to prison, but proposition 36 allows one to participate in a drug treatment program rather than going back to jail.

Crimes that Fall Under Proposition 36

Different crimes fall under California’s proposition 36. These crimes are a violation of several California codes that are mainly related to the California Health and Safety Code (HSC). These codes are as follows:

  • HSC 23222: Possession of marijuana while driving

  • HSC 11357: Possession of concentrated hashish and marijuana

  • HSC 11350:Possession of cocaine or other illicit drugs for personal usage

  • HSC 11364:Possession of paraphernalia

  • HSC 653(f); Soliciting another person to get illegal drugs for your usage

  • HSC 11357: Possession of prescribed drugs without a prescription

Although most of the non-violent offenses fall under the Health and Safety Code, other codes do not fall under Proposition 36. Therefore, a violation of these codes does not make one eligible for the pre-trial diversion program. These laws are as follows:

  • HSC 11351: Possession of a controlled substance for sale

  • HSC 11352: Sale or transportation of a controlled substance

  • HSC 11360: Sale and transportation of marijuana

  • HSC 11378: Possession for sale of methamphetamine

  • HSC 11379:Transportation or sale of methamphetamine

  • HSC 11358: Growing marijuana for personal usage

  • HSC11368: Obtaining narcotics through forged prescription

  • HSC 11370(a): Possession of a controlled substance while armed with an operable or loaded firearm

From the above-stated California code, there are drugs that are part of the non-violent drugs. These drugs include (and are not limited to):

  • Heroin

  • cocaine

  • peyote

  • gamma-hydroxybutyric acid (GHB)

  • ketamine

  • ecstasy

  • marijuana

  • methamphetamines

  • hallucinogens such as phencyclidine

  • prescription drugs such as Vicodin and codeine

Additional Restrictions that Apply in the Eligibility of Proposition 36

Although you might have qualified for proposition 36, other factors might turn down your eligibility. These aspects are as follows:

Having a Strike in Your Criminal History

Anyone who has suffered a “strike” in a previous conviction under California’s three-strikes law is not eligible for prop 36 unless the non-violent drug possession offense happened within a minimum of five years after:

  • Release from prison

  • you were convicted of either a felony or a non-violent drug possession charge or a misdemeanor that injured another person physically or through threats

Please note, juveniles who are facing severe violent felonies are still eligible for proposition 36 since their cases are not legally regarded as criminal convictions.

You Had a Similar non-drug-related Conviction

If you had a previous non-drug-related offense during your arrest for a non-violent drug offense, whether a misdemeanor or a felony, you automatically become ineligible for proposition36. This means that you faced similar convictions of a misdemeanor that does not relate to drug usage or a felony.

The term “misdemeanor that does not relate to drug usage” might seem confusing. It alludes to a misdemeanor that involves:

  • The possession or usage of drugs paraphernalia

  • Your presence while drugs were being used

  • Registering as a drug offender

  • Something similar to a personal possession offense or simple usage

Please note, the judge does not have any discretion to dismiss the additional charges, making it impossible to maintain eligibility for Proposition 36.

Armament with a Deadly Weapon

If you were found armed with a deadly weapon while committing the non-violent drug possession offense, you automatically become ineligible for Proposition 36.

Refusal for Drug Treatment

Anyone with a history of refusing drug treatment as part of probation also does not qualify for the pre-trial diversion program. This also applies to eligible paroles who have violated their probation due to one thing or another.

Previous Participation in Two Proposition 36 Programs

One can end up ineligible for Proposition 36 if convicted with two separate non-violent convictions and:

  • Was sentenced to Proposition 36 for both the offenses

  • The judge believed that your situation is unamenable, meaning that you cannot benefit from any drug treatment.

Please note, proposition 36 sentencing allows eligible offenders to pursue it even after proceeding to a trial. This means that you can still pursue it even after being charged with the non-violent drug possession offense and are bound to start your jail time. You can use Prop 36 to start a drug-treatment program, instead of serving your jail time.

Advantage of Pre-Trial Diversion for Drug Crimes in California

You have probably learned that there are advantages of a pre-trial diversion for drug crimes. These benefits are a follows:

Helps in Avoiding Jail Time Service

Most offenses that are related to drug possession are felonies and carry potential imprisonment of three years. However, a jail diversion program allows one to avoid the jail sentence and attend a drug-treatment program. In most cases, you should consider pleading guilty for your offense to continue with the diversion program.

Dismisses Your Drug Possession Case

Once you have completed your drug treatment program, paid all required fines and complied with other court-ordered conditions, the court might allow you to withdraw your guilty plea and dismiss our charges. Therefore, your criminal records get cleared and won’t appear in your felony convictions.

Offers the Opportunity to Truthfully Report your Conviction

Once you have your drug possession charges dismissed by the court, you can truthfully report that you have no prior conviction during a job interview. The only exception that applies is to someone seeking a public officer or wants to become a law enforcement officer.

You can Continue with Your Schooling and Work

Since proposition 36 helps in avoiding a jail sentence, you can easily continue with your work or schooling, although you will have to attend a drug therapy program. This is a better alternative to losing your employment or scholarship when you have to serve jail time. This also helps in maintaining your association with family members, work colleagues, and friends.

Avoids a Possible Loss of Professional State License

Drug-related felony convictions might impact your life more than you expect. You can end up facing disciplinary proceedings that can result in the suspension of your state license. Some of the licenses that you risk losing include therapist, broker, attorney, teacher, physician, and nurse.

Offers a Chance to Recover from Drug Problems

One of the reasons behind the drug diversion program is to help people with drug problems. Therefore, if you are a drug-dependent, you might utilize this opportunity to deal with your situation. This will also benefit tax-payers from the enormous costs spent to keep people in jail.

Probation in Proposition 36 Case

For an offender to receive proposition 36, he or she must fulfill any of the following:

  • Plea guilty or no contest to a non-violent drug conviction

  • Have a similar conviction of a similar offense through a jury trial, or

  • Be on parole, and while serving parole committed a non-violent drug possession offense or violated a drug-related term during parole

Once you have been proven as eligible for proposition 36, the judge will place you on probation or modify your parole with the expectations of completing a drug therapy program. The court might also impose additional conditions such as community service, family counseling, and vocational training as part of your probation or parole.

However, the court cannot impose any jail time as a condition for your probation unless you violate some terms of the probation.

Violation of Probation or Parole After Proposition 36 Sentencing

There are consequences that follow once you have violated the terms of your probation or parole. These consequences depend on the type of violation that you have violated.

Unamenable to Treatment

If your drug treatment provider reasonably believes that you cannot benefit from any forms of drug treatment, the probation department might move to revoke your probation or parole. During the probation or parole violation hearing, the judge will decide to impose a prison sentence based on your convicted offense.

For the judge to determine whether or not you are amenable for treatment, you must have done the following:

  • Committed a serious offense that is contrary to the rules of the drug therapy facility

  • Repeatedly violated the regulations provided in the facility, which end up prohibiting you from functioning while in the program

  • Continually resisted participating in the program or have gone to the extent of asking to terminate your participation.

Violating Probation or Parole Conditions

In most cases, the court might allow one to continue with the proposition 36 sentencing if he or she violates the terms and conditions provided for parole or probation.

If you have violated a non-violent drug offense, the court might order a prison sentence for thirty days while it checks whether or not to reinstate your probation or parole terms. Also, it can modify the treatment plans and any other conditions that are considered necessary. The thirty-day imprisonment is usually used to encourage you into compliance with the drug treatment program in the future.

Once the court decides to reinstate your Proposition 36 terms, it will subject its sentence according to the underlying offense.

If you violate probation or parole concerning non-violent drug-related possession, the court might conduct a hearing to determine whether to revoke the parole or probation. The court usually revokes the parole or probation of the prosecutor proves that you are likely to be a danger to society.

If the probation is reinstated, the court makes the terms intensive by adding forty-eight hours of continuous jailing to encourage you to comply. Also, if your violation of probation has a relation with drug abuse, the court might force you to join a residential therapy facility or a facility offering detox services.

If found with a second violation, the court might consider placing you on a detox or a residential facility. However, it might proceed into revoking your probation or parole if it proves that you are a danger to society and cannot respond to treatment.

In case your probation does not get reinstated., the court will have to place you in a 120-days jail sentence to encourage compliance. If it finds out that you have violated parole, you will no longer be eligible for proposition 36 and end up serving your jail time.

A third or subsequent violation can also trigger a hearing. At this point, the court will consider you ineligible for Proposition 36 unless it reasonably believes that you will benefit from the treatment, and you do not pose any danger to society.

Completion of Drug Treatment

Once you have completed a drug treatment program, you can file a petition to dismiss your charges. However, you should convince the judge beyond any reasonable doubt that you have fulfilled all the terms provided in the treatment substantially.

The term “completion of drug treatment” means that you have completed your course of treatment as recommended by the court. Also, it means a reasonable belief that you will no longer abuse any controlled substance. As soon as your convictions have been expunged, you are no longer subject to all penalties or disabilities resulting from your offense. The only exception that applies would be ineligibility to own a firearm. Also, you are capable of concealing your prior offense and conviction, but with a few exceptions. These exceptions are as follows:

  • Application for a peace enforcement officer opportunity

  • Application for a public office

  • Application for a local license under the California State Lottery

  • Any issues regarding your service to the jury

Alternatives to Proposition 36

As indicated at the beginning of this article, there are other forms of diversion programs that one can consider. These diversion programs include Penal Code 100 and drug court. Let’s have a closer look at them.

California Penal Code 1000

California deferred entry of judgment program is stated under California Penal Code 1000. It functions similarly to Pop 36 but has slight differences as well. It also guarantees an opportunity for non-violent drug possession offenders the opportunity to have their cases dismissed after completing a drug treatment program.

However, deferred entry of judgment differs with Prop 36 in the following two ways.

Length Requirement

There is a difference in the length requirements when it comes to Prop 36 and penal code 1000. In Prop 36, the program takes a maximum of two years while under penal code 1000, the program takes eighteen months to a maximum of three years. Under Proposition 36, the judge sentences the offender to probation during the treatment while in Penal Code 1000, one is convicted of drug diversion.

Judicial Discretion

In Prop 36, eligible defendants receive drug treatment in place of imprisonment. However, if you pursue Penal Code 1000, the judge has the discretion to consider you as unsuitable for the program, which can force you to plead guilty to the charge, continue to a trial, or pursue proposition 36.

Since Prop 36 requires one to pursue a probation sentence, the judge can impose additional restrictions like the condition to submit to seizure or search of your person, property, and other aspects without a search warrant. Also, the judge should be reasonably convinced about your compliance with the probation condition to expunge your charges.

In contrast, Penal Code 1000 prohibits the court from imposing any additional restrictions on your participation, which allows the defendant to have his or her case dismissed after completing the Deferred entry of judgment.

California Drug Court

California drug court offers a chance for drug diversion, similar to the Prop 36 and Deferred Entry Program. If one completes the drug treatment program, one can have his or her charges dismissed.

The primary benefit that hails from attending the drug court is the capacity to participate in a drug treatment program without pleading guilty to your non-violent drug charges. If you have to participate in a drug treatment program through a California drug court, the following conditions might apply:

  • A graduate system that allows penalties and rewards

  • Drug testing

  • Therapy

  • Close monitoring and supervision by the court

  • Vocational or education counseling

  • Any other condition that the judge, your attorney or prosecutor might agree on

A Brief Overview of the Drug Diversion Program

Since most of the non-violent drug issues are related to the dependence of drugs, most courts in the United States prefer enrolling such offenders to a drug diversion program. This helps in reducing the number of drug-related offenders in the United State prison and reduces the prevalence of drug addiction.

Unfortunately, prison programs do not address issues to do with drug addictions hence the need for a drug treatment program. This is based on statistics that show that 95% of inmates return to abusing drugs and consuming alcohol once they leave jail, while more than 60% of inmates released from jail end up committing another drug-related crime.

How the Court-ordered Rehab Works

For one to obtain a court-ordered drug therapy program, one must undergo a screening investigation. Family members and loved ones might request the screening program and have addiction specialists, and police officers conduct the investigation.

Through the investigation, the professionals will check the following:

  • Whether the person under investigation can control his or her action depending on the extent of addiction

  • Whether one is suffering from any health problem

  • Whether the person is endangering his or her life due to addiction

Once the investigating officers prove these aspects, the court orders a hearing. The hearing determines whether the person will continue serving jail time or will have to enroll in a drug treatment program.

Payment for the Drug Therapy Program

The person expected to serve the program pays for it. One can choose the facility to attend, and their insurance can cater to the cost as well. Some programs can also offer subsidized pay for eligible members.

Once an offender gets an order to attend the rehab, the court usually assembles a treatment team. The team consists of the judge, attorney, health care providers, therapists, and case managers. All these professionals work together to ensure that the offender completes the program successfully.

There are aspects that the offender must complete through the court-ordered program. These aspects are as follows:

  • Attend the program for the period issued by the court

  • Abstain from drugs

  • Provide regular updates of their progress to the appointed officials

  • Submit to random alcohol or drug tests

  • Complete a court-ordered community service

Find a San Jose Criminal Attorney Near Me

There are various expectations that the court needs from you while petitioning for a drug diversion program. Such expectations cannot succeed easily without the help of a professional criminal defense attorney. You do not just need an attorney, but someone capable of delivering credible services. The California Criminal Lawyer Group has the attorneys you need for your hearing. If you are in San Jose, CA, contact us at 408-622-0204 and let us help you.