Prop 36

If you have been sentenced to Prop 36, you might not know that you can file a petition at the court and have your criminal conviction dismissed. Even though you may be aware that you can obtain a dismissal, you can just assume that the court has automatically dismissed your conviction upon completion of the program. If so, you will be completely shocked to find out about the drug conviction on your record.

In this article, we will explain to you all you need to know about the California Proposition 36 program. We will also inform you about other drug diversion alternative programs in California, including drug courts and PC 1000.

We at California Criminal Lawyer Group have extensive experience in helping defendants facing drug charges. Get in touch with us if you have been charged with a drug crime. We will aggressively defend your legal rights.

We have in-depth familiarity with all the local court processes in San Jose. We also have the technical knowhow to enable you to get a drug diversion program. Our primary goal is to protect your best interests and help you obtain the most favorable outcome.

What is Proposition 36?

Proposition 36 is set out under the Penal Code of California, sections 1210 – 1210.1 and 3063.1. Generally, Proposition 36 is a drug diversion program.

Defendants who have been convicted for or charged with drug crimes can obtain a dismissal upon completion of a drug diversion program. Some people may refer to a drug diversion program as a ‘drug treatment program.’

For the court to dismiss your charges, you must complete a treatment program that has been approved. A drug treatment program may encompass the following activities:

• Drug education

• Residential treatment or outpatient services

• Replacement therapy or detoxification services

• Aftercare services

Do not confuse between a drug treatment program and a drug rehabilitation program. A drug rehabilitation program is only offered to convicts who are already serving a jail or state prison time.

Prop 36 was passed in the year 2000 to modify California’s Three Strikes Law. The California Three Strikes Law was passed in 1994. Before 2000, individuals who had two prior convictions of felonious offenses would automatically receive a life sentence upon the third conviction of a felony. Proposition 36 modified the California Three Strikes Law by stating that the court can only impose a life sentence if the third conviction is for a severe or violent felony.

According to Ballotpedia, immediately after Proposition 36 was approved, approximately 3,000 felons who were sentenced to life imprisonment had their state prison terms reduced. Some experts estimated that the State Government could save between $150-$200 million each year due to the reduced sentences.

Specifically, the aftermath of Proposition 36 was that it altered California’s drug crime law. It required that defendants who have two prior convictions for non-violent offenses involving possession of drugs complete a drug treatment program of up to 12 months instead of receiving a jail or state prison sentence. The judge may have the discretion to lengthen the period for the treatment program.

During the implementation of Prop 36, it was found out that many participants opted for outpatient programs. A few of the participants preferred residential treatment programs. Very few chose to attend a drug-based detoxification program, such as a methadone clinic.

Additionally, Proposition 36 applies to a parolee who violates his/her parole through the commission of a drug possession criminal offense that is non-violent. It also applies to a parolee who violates any of the parole conditions that relate to drugs. Such parolees will not be sent back to prison but will be subjected to a drug diversion program.

Examples of Drug Possession Criminal Offenses that are Considered as Non-violent

According to Prop 36, a non-violent drug possession offense may include:

• The unlawful transportation or possession of narcotics for the defendant’s personal use

• Being intoxicated by or using any drug specified in the US Controlled Substances Act

Often, such an offense may involve the following drugs:

• Cocaine

• Heroin

• Marijuana

• Peyote

• Methamphetamines

• Gamma-hydroxybutyric acid (GHB)

• Ketamine (Special K)

• Ecstasy (X)

• Certain prescription medications, such as hydrocodone (Vicodin) and codeine

• Certain hallucinogens, for example, phencyclidine (PCP)

Here are some examples of drug possession criminal offenses that are considered as non-violent:

• HS 11350 - Possessing a controlled substance for personal use

• HS 11357 - Possessing marijuana whose amount does not exceed one ounce

• HS 11550 - Being intoxicated by a controlled substance

Criminal Offenses Exempted from Proposition 36

Convictions that involve the sale and manufacturing of controlled substances do not qualify for Proposition 36. This is because they are not deemed to be non-violent offenses. Some of these offenses include:

• HS 11351 - Possessing a controlled substance to sell

• HS 11352 - Transporting or selling controlled substances

• HS 11360 - Transporting or selling marijuana

• HS 11359 - Possessing marijuana to sell

• HS 11378 - Possessing methamphetamine or any less serious prohibited substance to sell

• HS 11379 - Selling or transporting methamphetamine

Also, an individual won’t qualify for Proposition 36 if he/she is convicted of any offense that involves possession of controlled substances while incarcerated. Additionally, California courts have ruled that the following crimes cannot qualify for Prop 36, because they do not involve 'simple use, personal transportation, or possession’:

• HS 11358 - Cultivation of marijuana

• HS 11370.1(a) - Possessing a drug while having a loaded, functional gun

• HS 11368 - Forging or utilizing a fake prescription to get drugs

Eligibility for Proposition 36

Even though you may have been convicted of an offense that qualifies for Proposition 36, you wouldn’t be admitted into the drug diversion program if the judge believes that you are ineligible. Specifically, certain five factors can render you ineligible for Proposition 36:

1. Prior Convictions of Serious or Violent Felonies

If you have a previous conviction of a serious or a violent felony or any offense that can qualify as a strike as per California's Three Strikes Law, you will not be eligible for Prop 36. However, you can still qualify for Prop 36 while having a conviction of a violent or serious felony if the qualifying non-violent drug crime occurred within a period of five or more years after

• You had completed your prison sentence for the last prior offense, and

• If one of the prior convictions is for a felony that doesn’t involve non-violent possession of controlled substances or for a misdemeanor that does not involve a threat of physical injuries or physical injury to someone else

If you cannot qualify for Proposition 36 due to a prior conviction of a serious or a violent felony, the judge isn’t legally permitted to dismiss any offense that has rendered you ineligible. Note that if you were a minor when you were convicted of a severe or violent crime, you would still be eligible for Proposition 36 because juvenile trials are not considered to be of the same level as criminal trials.

2. Simultaneous Conviction of a Felony or a Misdemeanor that does not Involve Drugs

You will not qualify for Prop 36 if you have a conviction of a felony or a misdemeanor that isn’t related to the use or possession of drugs, in addition to the qualifying non-violent drug crime. An offense is held to be non-drug-related if it doesn’t involve the following activities:

• Simple use or possession of drug paraphernalia or controlled substances

• Being present in instances where another person or group is using drugs

• Not registering as a drug offender

• Any activity that is similar to simple possession or use of controlled substances

For example, if you have been convicted under VC 23152(f) – intoxicated drug-driving, you will be disqualified from Proposition 36 because the criminal offense of intoxicated-drug driving is categorized as a misdemeanor that isn’t related to the use or possession of drugs. Generally, intoxicated drug-driving poses a danger to other road users, and it cannot be categorized as ‘simple use.’ But, the judge can dismiss the additional conviction for you to be eligible for Proposition 36, unlike in a situation where the convict had a prior strike conviction.

3. Armed with a Gun or a Deadly Weapon during the Commission of the Qualifying Offense

You would not qualify for Proposition 36 if you were armed with a gun or a deadly weapon during the commission of the offense. This is because law enforcement takes very seriously practices involving the mishandling of firearms and deadly weapons.

4. Drug Treatment Refusal

The primary goal of Proposition 36 is to enable a convict to solve his/her drug addiction problems. Prop 36 is a drug treatment program, which the convict must complete. If the convict shows any slight indication of possible refusal to undergo drug treatment, he/she will not be eligible for Prop 36 sentencing.

5. Previous Participation in Other Prop 36 Programs

You may be rendered ineligible for proposition 36 if you had already participated in this program before, and the court believes that you may not benefit from another form of drug treatment. Not only will you be rendered ineligible for Prop 36, but the judge will also sentence you to a county jail term of a period not exceeding 30 days.

Do I Qualify for Proposition 36 After Fighting my Case and Losing?

Yes, you will still qualify for Proposition 36 even if you had pleaded not guilty, and the jury has already convicted you. This means that you can fight your criminal charges during pre-trial and trial in the hope of a dismissal or an acquittal. If the jury convicts you, you can opt for proposition 36 as an alternative sentencing option instead of jail or state prison time.

Probation for Proposition 36

For the judge to issue you a Proposition 36 sentence, you must have pleaded guilty or no contest to a drug possession criminal charge that is non-violent. Then, the jury will convict you for the drug possession offense. Additionally, you must have been a parolee. A parolee is a person whom the state prison has released on parole, and he/she commits a non-violent drug crime or any other drug-related offense, in violation of the parole conditions.

After the judge has determined that you qualify for Proposition 36, he/she will sentence you to probation or modify the conditions of your parole. During probation, you will be required to observe certain conditions. Particularly, you will be required to participate in and complete a substance abuse treatment program. Often, this treatment program involves drug testing. You will have to pass the drug test so that you can petition the court for a dismissal of your charges. Here are other examples of probation conditions that the judge may impose:

• Community service

• Vocational training

• Family counseling

Take note that the judge cannot impose an incarceration period as one of the terms of the probation.

What Happens if I Violate a Probation Condition?

You can face various consequences if you violate any of the probation conditions. The most common way in which California parolees violate Proposition 36 probation conditions is by becoming non-responsive to drug treatment.

If your treatment provider firmly believes that you can’t benefit from the program, he/she will inform the Parole Board or the Probation Department. Then, the Probation Department or the Parole Board may apply at the courthouse to revoke the Proposition 36 sentencing. The court will convene a violation hearing, and you will be allowed to defend yourself. If you lose this hearing, you will be sentenced to a county jail or state prison term, whose length will be determined by the nature of the convicted criminal offense. The judge will consider various factors when deciding as to whether or not you cannot benefit from the drug treatment program. Some of these factors include:

• If you violate any rules of the treatment facility

• If you continually refused to take part in the treatment program

• If you had requested to be struck off from the treatment program

Generally, becoming non-responsive to treatment is the only probation violation that can trigger incarceration. If you violate any other probation term, the judge may still permit you to complete the Proposition 36 program.

You may be incarcerated for a period not exceeding 30 days, even before the court convenes a violation hearing if you commit a criminal offense that isn’t related to a non-violent drug crime. You also risk incarceration if you violate a probation condition that is not drug-related. You may also be imprisoned for a period not exceeding 30 days, even before the court convenes a violation hearing. During the violation hearing, the judge will assess how you violated the probation conditions and make an appropriate ruling. He/she may opt to reinstate your prop 36 sentence, alter your drug treatment plan, or even impose more probation conditions. The judge can also sentence you to a county jail term of a maximum of 30 days. Sometimes, you may receive a sentence for the criminal offense you committed while on probation if the judge doesn’t reinstate the treatment program.

On the other hand, if you had committed a non-violent drug crime or any other drug-related offense, the judge will convene a hearing to determine whether or not they should revoke the Prop 36 sentence. If the government provides sufficient evidence that you pose a danger to society, the judge will revoke the drug treatment program.

If the judge decides to reinstate the treatment program, he/she may impose more restrictive and intensive probation conditions. Additionally, you may receive a 48-hour jail sentence to encourage you to be more compliant. If you had committed an offense that is related to drug use, you might be ordered to participate in a residential treatment program, or you may be sent to jail with ‘detox facilities.’

These procedures will also apply to a parolee who violates the probation conditions for the second time. If the judge reinstates the treatment program upon a second violation, he/she may require you to serve a 120-day county jail sentence. Likewise, a third probation violation will result in a hearing. However, the judge will rule that you cannot continue the Prop 36 program, and you will be sent to state prison unless he/she believes that you can still benefit from the treatment program, and you do not pose a danger to the society.

What Happens after you have Successfully Completed the Proposition 36 Program?

Upon successful completion of the Proposition 36 program, you can file a petition at the courthouse to have your conviction dismissed. If the judge believes that you have completed the program, and you have fully complied with the probation conditions, he/she may dismiss your conviction.

During the hearing of the dismissal application, you will have to show proof of completing the drug treatment program. Additionally, the judge should find a justifiable reason for him/her to believe that you are no longer addicted to a controlled substance.

Although this dismissal process seems to be quite straightforward, very few individuals have managed to successfully petition the court and obtained a dismissal of their convictions. After you have received an expungement, you will be able to state without fear of being charged with perjury that you have never been convicted for or arrested for a criminal offense, which triggered the treatment program.

However, you will still be required to disclose the conviction in any inquiry of the law enforcement, in any public office or questionnaire application, when applying to serve as a jury member, or in an application to a local or state agency that is linked with the State Lottery. Moreover, you will not be permitted to possess or own a concealed firearm.

Other Drug Treatment Programs in California

Besides Proposition 36, there are other alternative drug treatment programs offered by California courts. Below, we discuss drug courts and PC 1000:

PC 1000

PC 1000 is quite similar to Proposition 36. Just like Prop 36, PC 1000 is an alternative sentencing option that is available to parolees who have been charged with non-violent drug crimes. Parolees, who complete the PC 1000 program, can petition the court to dismiss their convictions.

You can distinguish between Prop 36 and PC 1000 in two significant ways. The first distinction involves the length of the treatment program. A person can complete the Prop 36 program in a maximum of two years, while it will take an offender up to three years to complete the PC 1000 program.

The second distinction deals with probation. In Prop 36, the judge will place you on formal probation, and one of the probation conditions will be to participate in a drug treatment program. On the contrary, you won’t be placed on probation if you opt for PC 1000. This means that while under PC 1000, your only obligation will be to participate in the drug treatment program, and not observing any additional probation conditions. After you have completed the program, the judge will automatically dismiss your conviction.

Drug Courts

Just like PC 1000 and Prop 36, drug court is an alternative sentencing option to drug crime offenders. If an individual completes the drug court treatment program, he/she can petition the court to obtain a dismissal.

One of the primary benefits of a drug court program is that it permits a defendant to participate in counseling and drug treatment without pleading guilty to the criminal charges. Some examples of treatment options that can be offered in a drug court program include therapy, vocational or educational counseling, drug testing, and close court supervision and monitoring. The judge may impose other conditions, which you should abide by while participating in the drug court program.

Find a San Jose Criminal Lawyer Near Me

Although there are various benefits to taking part in a court-approved drug treatment program, you should first discuss with your attorney about the best steps to take. Your attorney can advise which drug diversion program you should opt for and if you should voluntarily enter the program or fight your charges first.

Contact us at the California Criminal Lawyer Group if you are facing drug crime charges. We are here to help you. Call us today at 408-622-0204 for a free case evaluation.