Since Proposition (Prop) 36 enactment on 7Th November 2000, defendants charged with particular non-violent drug crimes can avoid a jail term by participating in a drug treatment or diversion program. Once you complete your drug diversion program and adhere to the required conditions, the court will drop your case. That means you will not have a criminal record for the alleged offense.

Apart from helping you avoid a detrimental criminal record, participating in a drug treatment program under Prop 36 can help you on your journey to fighting drug addiction to become a productive citizen in your community. Unfortunately, not all defendants charged with drug crimes are eligible for a diversion under Prop 36.

If you have a drug charge or conviction in Santa Ana, attorneys at California Criminal Lawyer Group can explore your legal options, including your eligibility for Prop 36 drug diversion program. Even if you are ineligible to participate in a drug diversion program, we will stop at nothing until we achieve the best possible results in your case.

Prop 36 at a Glance

Penal Code section 1210 is the statute that explains rules and eligibility for a drug diversion plan or program under Prop 36. “Drug diversion” is typically the practice of letting qualifying defendants have their non-violent or non-severe drug-related charges or convictions dropped once they complete a drug diversion or treatment program approved by the court.

Specifically, Prop 36 allows defendants charged and convicted with non-violent drug possession offenses to seek rehabilitative services instead of serving time behind bars. Although every drug case is different, the drug treatment or diversion program the court will require you to participate in will include one or more of the following:

  • Detoxification services
  • Drug treatment
  • Outpatient services
  • Aftercare services

Your defense attorney will access the alleged drug charge to know which drug treatment programs will best suit your unique case to achieve the optimal results necessary to make you a productive citizen. Although Prop 36 could seem like a simple legal issue, it is in your best interests to hire an attorney to help you qualify for this pretrial relief option.

Non-Violent Drug Possession Offense Definition Under Prop 36

As mentioned in the previous paragraph, not every drug crime qualifies for the Prop 36 diversion program. For the sake of Prop 36, “a non-violent drug possession crime” is a drug offense involving illegal:

  • Use of a controlled drug substance
  • Being impaired by a controlled drug substance
  • Possession or transportation of narcotics or any controlled drug substance for recreational or personal use

You could be familiar with the term “controlled drug substances,” but there are chances you do not know which drugs fall under this category. These are some of the most common ones:

  • Peyote
  • Heroin
  • Cocaine
  • Ecstasy
  • Marijuana or pot
  • Methamphetamines “meth”
  • Prescription drugs, including Codeine and Vicodin
  • Ketamine
  • Phencyclidine

Examples of Drug Crimes That Qualify You for a Prop 36 Drug Diversion Program

Generally speaking, if you have a conviction or charge for any non-violent or non-severe drug offense, you could qualify for a drug treatment program under Prop 36 to avoid incarceration:

     1. Possession of Less than an Ounce (approximately 25.8 grams) of Marijuana

Although Prop 64 decriminalized adult use and possession of not more than an ounce of dried marijuana, possessing lesser amounts could also attract criminal charges under certain circumstances. Typically, even if you are aged 18 years but under 21, you cannot possess or consume any amount of marijuana unless you have a valid medical marijuana prescription.

According to section 11357 of the Health and Safety Code (HS), a conviction for this drug offense will attract the following potential penalties upon conviction:

  • A fine not exceeding $100 if you are 18 and over
  • Not less than six hours of drug counseling and a maximum of twenty hours of community service if you are under 18 and you have a past conviction on your record
  • Not less than four hours of drug counseling and up to ten hours of community service if you are a first-time offender

      2. Possession of an Unlawful or Controlled Substance

As the name suggests, the offense of possession of a controlled substance occurs if you have any controlled drug substance in your possession without a valid prescription or vending license. According to HS 11350 (a), this offense is a misdemeanor punishable by a sentence of not more than one (1) year in jail and a fine of not more than $1,000.

Below are examples of acts that could attract a drug charge under HS 11350 (a):

  • Going to a concert or a party with a baggie of marijuana or cocaine
  • Walking or driving to your neighborhood park or basketball court with a bundle of meth or heroin in your pocket
  • Driving to a cousin’s house or apartment with Vicodin in your glove box

     3. Being Intoxicated by Controlled Drug Substance

HS 11550 is the statute that defines the crime of being under the influence or intoxicated by a controlled substance. Typically, you are guilty of HS 11550 violation if the prosecutor can prove that:

  • You willfully and knowingly did consume a controlled drug substance or narcotic
  • You were willfully and knowingly under the influence of the alleged controlled drug substance
  • You did not have a prescription for the drug

For a conviction under this statute, the prosecutor must further identify the drug which led to your impairment or intoxication. If guilty of the charge, you could end up with a prison sentence of up to one year.

Beyond the jail term and the high fine, a conviction for a drug crime could negatively impact your gun rights and immigration status for those who are non-citizens. Therefore, it is important to work with an attorney hand in hand if you are under investigation or perhaps an arrest for an alleged drug crime.

A skilled defense attorney can help you avoid a conviction or incarceration by seeking a drug diversion program under Prop 36 on your behalf for a fresh start that you deserve to put your mistakes behind.

Common Offenses That Do Allow You to Enter a 36 Drug Diversion Program

Unfortunately, convictions for manufacturing-related and sales drug crimes disqualify you from participating in a drug treatment under Prop 36 because they are not “non-violent drug possession offenses” in the eyes of the court. Common drug-related offenses that do not allow you to participate in a drug treatment program after an arrest or conviction include:

  • Possession of a controlled drug substance for sale under HS 11351
  • Selling or transportation of marijuana under HS 11360
  • Possession of marijuana for sale under HS 11359
  • Selling or transportation of controlled drug substances under HS 11352
  • Possession of meth for sale under HS 11378
  • Marijuana cultivation under HS 11358
  • Forging a prescription to secure drugs under HS 11368
  • Possession of a controlled drug substance while armed with a firearm offense under HS 11370.1 (a)

If you are unsure of whether or not your drug charge or conviction could allow you to participate in a drug diversion program under Prop 36, you should speak with an attorney. Your defense attorney will keenly access your unique case to determine your eligibility and the best treatment option for your unique case if you are an excellent candidate for this drug diversion plan.

Other Factors That Disqualify You From Prop 36 Eligibility

Generally speaking, the judge will consider several factors when determining whether or not you can participate in a drug treatment program instead of imprisonment. Not only do your crime need to “count” for Proposition 36 purposes, but also you as the defendant. Briefly explained below are factors that could affect your eligibility for a drug diversion program under Prop 36:

  1. You Had Deadly Weapon

Typically, prosecutors and judges treat crimes involving a firearm severely. Even if you were charged or convicted for a non-violent or non-severe drug offense, you would be ineligible for a drug diversion under Prop 36 if you had a firearm or any deadly weapon in your possession when committing the offense.

  1. You Have Prior “Three Strikes” Convictions

If you have one or more convictions for a crime that qualifies as a strike under the Three Strikes Law (Penal Code section 667 PC), you will be ineligible for pretrial diversion or sentencing under Prop 36 unless:

  • The eligible non-violent drug crime occurred five years after your last release from jail and
  • The conviction was for either a felony or misdemeanor offense that involved bodily injury

On a separate note, any case resolved by the juvenile criminal justice system will not prevent you from participating in a drug diversion under Prop 36, even if it is considered a violent or severe felony under PC 667.

  1. You Are Simultaneously Guilty of a Misdemeanor or Felony Non-Drug-Related Offense

If, in addition to the qualifying non-severe drug offense, the prosecutor secures a conviction against you for a felony or misdemeanor non-drug-related offense in the same proceeding, you will be ineligible for Prop 36 sentencing. For the sake of Prop 36, a “non-drug-related offense” is any crime that does not involve:

  • Simple possession or use of drug paraphernalia
  • Failing or refusing to register your details as a drug offender
  • Any activity similar or related to simple possession or use offense
  • Being present where someone is using unlawful or controlled drug substances

For example, driving under the influence of drugs (DUID) is a misdemeanor offense under Vehicle Code section 23152 (f) unrelated to the use or possession of drugs. Hence, when the prosecutor obtains a conviction against you for a non-violent drug charge and DUID charge simultaneously at trial, you will be ineligible for sentencing under Prop 36.

  1. You Refused to Undertake a Drug Treatment Program

As a condition of your probation under Prop 36, the court will require you to undertake a drug treatment program. Therefore, when you refuse to do so, or perhaps you are not willing to undertake a drug diversion program, Prop 36 will not apply or work on your case.

  1. You Have Two or More Prop 36 Diversion Programs on Your Record

If you ever had to undertake two drug diversion programs in the past for two different non-violent or non-severe drug crime convictions, Prop 36 will be inapplicable in your current case. Typically, the court will see you as a notorious offender and unlikely to benefit from rehabilitative services under Prop 36. The court will also sentence you to serve time in the county jail for not more than 30 days.

As you can see above, there are several restrictions on Prop 36 drug diversion eligibility. To increase your odds of qualifying for a Prop 36 drug treatment instead of going through the usual prosecution process or sentencing, you could want to hire a skilled defense attorney to represent your best interests in court.

Receiving a Prop 36 Sentence

To qualify for a drug diversion program under Prop 36 following a conviction for a drug charge, you must:

  • Enter a no contest or guilty plea to the alleged non-violent drug charge
  • Have a conviction for a non-violent drug charge which occurred through a bench trial
  • Be a parolee (a person who has come out of prison), and while out of custody, you violate conditions specifically on drugs as a requirement of your probation or commit a non-severe drug charge

When you receive both probation or parole and Prop 36 treatment sentence, the judge could require you to comply with additional conditions on that parole, including:

  • Perform community service
  • Obtain family counseling
  • Participate in vocational training

Note the parole conditions and terms the court will require you to abide by will depend on your case’s nature and sophistication.

Consequences of Violating Conditions of a Prop 36 Parole

Generally speaking, you could face different detrimental consequences when you violate any of your parole sentence terms. Fortunately, in most cases, the court could allow you to participate in drug treatment under Prop 36 when you go against the conditions of your parole.

If you are on parole and do any of the following, the court could imprison you for not more than thirty days as it determines whether or not to reinstate your parole terms:

  • Commit a crime that does not qualify as a non-violent drug offense
  • Contravene or breach a non-drug-related condition of your parole or probation

When the court decides to reinstate your Prop 36 parole, it could modify your drug diversion program and other necessary terms. To encourage your future compliance to probation terms, the judge could also decide to impose a jail term of not more than thirty days.

Unfortunately, if the judge finds that you are unlikely to benefit from the drug treatment and rehabilitative services offered by Prop 36, prosecution of the alleged offense will resume. That means you will face the usual sentence upon conviction for the alleged non-violent drug-related offense.

Even though you are already convicted, you will also be ineligible for sentencing under Prop 36. To obtain the fresh start you deserve in life, you should abide by the terms of your Prop 36 parole for the required period.

If you have an attorney in your corner, he/she can explain the terms and conditions of your Prop 36 parole with more straightforward and unsophisticated words to ensure your compliance.

Benefits of Successfully Completing Your Prop 36 Parole and Drug Treatment Plan

Undoubtedly, completing your Prop 36 parole and drug treatment program or plan successfully has several benefits you cannot undermine. When you complete your Prop 36 drug diversion program successfully or as required, your defense attorney can help you file the necessary petition to dismiss and clear your records for the fresh start you deserve.

Typically, completing your Prop 36 drug treatment program or plan successfully means:

  • You did not violate or go against any Prop 36 parole terms and requirements
  • The judge presiding over your case has a reason to believe that you are a rehabilitated person and you are no longer involved in drug substance abuse

If you have an arrest record for a drug charge, your defense attorney can help you file a petition to seal the records under section 851.8 of the Penal Code (PC). Your petition to seal an arrest record must include the following information:

  • Name of the police or law enforcement agency that arrested you
  • Your case number
  • Location and date of the arrest
  • The alleged drug charge
  • A statement showing that you are eligible to have your arrest record sealed under PC 851.8

When your arrest record is sealed and destroyed, your arrest details will not appear in most criminal background searches. Similarly, if you already have a conviction for a non-violent drug charge, your defense attorney can help you seek an expungement under PC 1203.4.

For a misdemeanor drug charge conviction, the court will require you to pay a fee of $60 for each conviction when filing an expungement petition. Typically, expungement allows you to withdraw a “no contest” or “guilty” plea to re enter a “not guilty” plea. If you are eligible to expunge your drug charge conviction under PC 1203.4, the court will drop or “set aside” your conviction.

That means most disabilities and negative consequences you were experiencing due to the conviction record will end, giving you a fresh start in your life. Typically, the benefits of sealing an arrest record and expunging a criminal record are the same, and they include:

  • Landlords cannot discriminate against you when looking for an apartment or house to rent based on your past arrest or conviction record
  • You will avoid possible negative immigration consequences of a conviction for a drug charge, for example, deportation
  • You will have peace of mind and the satisfaction of knowing you have a “clean” criminal record
  • You do not have to disclose to a potential employer that you have a criminal record, increasing your job opportunities unless you are applying for a job:
    • As a law enforcement officer
    • As a peace officer
    • In a public office

Other Drug Diversion Options You Can Consider

In addition to Proposition 36 drug diversion, there are a few other drug diversion options you can consider. If you are ineligible for a drug treatment plan under Prop 36, your defense attorney can help you seek the following alternative drug diversion options:

DEJ (Deferred Entry of Judgment) Under PC 1000

Like Prop 36 drug diversion, DEJ also allows you to have the alleged charges dropped once you complete a court-approved drug treatment plan. However, there are significant differences regarding judicial discretion, restrictions, and the length of these two drug diversion options.

While Prop 36 drug diversion will take not more than two years to complete, diversion programs under PC 1000 will take between six months to three years. Also, under PC 1000, the court does not impose additional eligibility restrictions as you would expect when pursuing Prop 36 drug diversion.

Once you complete your DEJ program successfully, you will be eligible for automatic dismissal of the alleged charges.

Drug Court

Drug court is another drug diversion option you can consider if you are ineligible to participate in a drug treatment plan under Proposition 36. Like DEJ and Prop 36, the court will dismiss your charges when you successfully complete your drug treatment program.

The main advantage of participating in a drug diversion through drug court is that it allows you to go through counseling and drug treatment without choosing a “no contest” or “guilty” plea. Typically, depending on your case’s facts, drug treatment programs through drug court could include:

  • Therapy
  • Drug testing
  • Penalties and rewards
  • Close court supervision and monitoring
  • Vocational or educational counseling

Find a Santa Ana Criminal Attorney Near Me

While participating in a drug treatment program has several benefits you cannot overlook if you have a drug charge or conviction, it would be wise to speak with an attorney before taking this path. We at California Criminal Lawyer Group can help you explore various drug diversion options, including Prop 36, to determine which option is best for your unique drug-related charge or conviction.

Call us at 714-844-4151 to discuss your drug-related case with our understanding attorneys wherever you are in Santa Ana at no cost.