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Prop 36

Proposition 36, also known as Prop 36 or as the “Substance Abuse and Crime Prevention Act”, was passed in California in the year of 2000. The proposition objective is to offer an alternative sentencing method to eligible non-violent drug offenders, which are not going to serve time in jail, but in drug treatment programs.

The Proposition 36 is one type of diversion, and it is defined in the sections 1220-1210.1 of the Penal Code and 3063.1.

Drug diversion allows eligible defendants to have their criminal charges or conviction dismissed in the successful completion of a court-approved drug treatment program, which means, a program that includes at least one or more of the following subjects; 1) drug education, 2) outpatient services or residential treatment, 3) detoxification services or narcotic replacement therapy, 4) aftercare services.

As a type of drug diversion, Proposition 36 requires that first and second time defendants convicted of nonviolent drug possession might receive twelve months of substance abuse treatment, extendable up to two more six month periods, in replacement of jail time. The Proposition 36 also applies to parties that violate their parole by a non-violent drug possession offense.

Nonviolent drug possession offenses

In order to consist in a nonviolent drug possession offense, the offender must be unlawfully 1) using and/or being under the influence of any drugs listed in the United States “Controlled Substances Act”, and/or 2) possessing or transporting any of those narcotics for personal use.

The drugs listed on the United States “Controlled Substances Act” are includes the following but are not limited to: a) cocaine, b) heroin, c) peyote, d) gamma-hydroxybutyric acid, known as “GHB”, e) ecstasy, known as “X”, f) ketamine, known as “Special K”, methamphetamines, marijuana, certain hallucinogic substances, for instance, phencyclidine, known as “PCP”, and some prescription drugs, for instance, codeine and hydrocodone, known as “Vicodin”.

Here are some examples nonviolent drug possession that would trigger the Proposition 36:

A girl smoking marijuana in her apartment and answers the door with a joint in her hand, without knowing that the police was verifying a complain about loud music in the house.

A boy carrying someone’s Vicodin in his car, without knowing that it was there and whose drug is it, when stopped by the police because of a broken light.

Offenses that "don't count" for Proposition 36 purposes

  • Health and Safety Code 11351 HS - California's law against possession of a controlled substance for sale.
  • Health and Safety Code 11352 HS - California's law against selling or transporting controlled substances (unless you are only convicted of transporting the drugs for personal use).
  • Health and Safety Code 11359 HS - California's law against possessing marijuana for sale.
  • Health and Safety Code 11360 HS - California's law against selling or transporting marijuana (unless you are only convicted of transporting the marijuana for personal use).
  • Health and Safety Code sections 11378 and 11379 HS - California's laws regulating the sales of "less serious" controlled substances.

Other crimes that do not trigger the Proposition 36

Because their activities consist of more than possessing, using or for personal transportation, courts decided that they do not trigger the Proposition 36 alternative sentencing method.

  • Health and Safety Code 11358 -HS California's law against cultivating marijuana (even if the cultivation is for one's own use).
  • Health and Safety Code 11370.1(a) - California's law against possessing a controlled substance while armed with a loaded, operable firearm.
  • Health and Safety Code 11368 HS - California's law against forging or presenting a forged prescription to obtain drugs.

Other restriction on the eligibility to the Proposition 36. Not only the offense must qualify, but also the offender.

There are five factors that could disqualify a defendant from the alternative sentencing of the Proposition 36.

1)Prior “strike” convictions.

If the defendant was convicted of one or more violent or serious felonies, unless the qualifying nonviolent drug possession offense occurred at least five years after the defendant a) was released from prison, and b) was convicted of either a felony other than nonviolent drug possession offense or a misdemeanor that involved physical injury or the threat of physical injury to another person.

For example:

The defendant was convicted of robbery and was released from prison in 2008. In 2011, the defendant is arrested for the possession of methamphetamine. Because the drug possession offense happened less than five years after his release from prison on and strike conviction under the California Three Strikes Law, the defendant is ineligible for the means of the Proposition 36.

2)Contemporaneous conviction of a non-drug-related misdemeanors or felony.

At the same time of the nonviolent drug possession offense, the defendant is convicted of an additional non-drug-related misdemeanor or felony.

A good example of a misdemeanor not related to drugs is offense of driving under the influence of drugs, known as “DUI”, defined on the Vehicle Code 23152(a) of California. It might seem strange at the first glance, but courts have decided that a DUI offense is more than simply a personal use of drugs, since it puts in danger the physical safety of others.

3)The defendant is armed with a firearm or any other deadly weapon at the time of the nonviolent drug possession offense.

4)The defendant refuses drug treatment as a condition of the probation.

5)The defendant already made use of two previous Proposition 36 programs.

Also, it is important to mention that defendants can fight for their cases and still trigger the Proposition 36 if they lose.

Probation in a California Prop 36 Case. Receiving a Proposition 36 Sentence

1)Plead guilty or “no contest" to a nonviolent drug possession charge.

2)Be convicted of such an offense following a judge ("bench") or California jury trial.

3)Be a parolee (that is, a person who has been released from the California state prison on parole) and, while on parole, either commit a nonviolent drug possession offense or violate a drug-related term of your parole.

With the sentence of a probation under the Proposition 36, the court may, but is not required to, impose some additional terms, such as 1) vocational training, 2) family counseling, and 3) community service.

Violations of the probation or parole under the Proposition 36

If the defendant violates the terms of the probation or parole, the court may impose different consequences. It will vary depending on the degree of the violation.

1)Unamenable to treatment.

When the treatment provider believes that the offender will not benefit from the program, the department or the parole board may revoke your probation or parole, and the judge, agreeing with the outcome, may also revoke the probation or parole and sentence to a period of incarceration.

2)Violation of the terms of the probation or parole.

The court may still allow the offender to continue on Proposition 36 if, with respect to offenses other than nonviolent drug possession offenses, the offender on probation or parole either:

  • Commits an offense that is not a nonviolent drug possession offense.
  • Violates a non-drug-related condition of your probation/parole.

Here is an example of an offense other than nonviolent drug possession while in parole.

  • The parolee while under the Proposition 36 drug treatment program, after a conviction of possessing unlawfully marijuana in the streets of San Diego, hits a parked car and run away of the scene, consisting on a hit and run misdemeanor under California Law.

The court may incarcerate the offender for a limited period of 30 days while it determines to maintain the probation or parole. Even reinstating the probation or parole, the court may also modify the terms of the probation or parole as well as modify the treatment provided.

With respect to nonviolent drug related possession offenses, if the offender violates probation or parole by:

  • Committing a nonviolent drug possession offense
  • Committing a misdemeanor related either to using drugs or to possessing drugs or drug paraphernalia
  • Being in an area where drugs are used
  • Failing to register as a drug offender
  • Violating a drug-related condition of probation (which includes conditions regarding drug treatment, employment, vocational training, and counseling).

A hearing will be conducted, but the court must revoke the probation or parole if there is enough evidence to prove that the offender is a danger to the society.

If the court decides to reinstate the probation or parole, the decision may modify the terms of the program and add up a forty-eight hours of continuous jail time to encourage the offender compliance to the program.

The completion of the Drug Treatment

After the successful completion of the drug treatment offered by the Proposition 36, the defendant may petition to the court in order to dismiss the conviction. If the court agrees with the successful completion of the probation or parole, it will dismiss the case.

Successful completion of drug treatment means that the offender have completed the course of drug treatment that was recommended by the treatment provider and ordered by the court.  It additionally means that there is reasonable cause to believe that he will no longer abuse controlled substances.

Legal Defenses

If you have been charged with this offense, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems. 

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