While charges for drug crimes carry hefty penalties, California has set diversion programs that could help you if you are facing these charges. The state has Prop 36 and PEN 1000 diversion programs that you can be eligible for, depending on the type of the alleged crime and other factors. Please get in touch with us at the San Diego Criminal Attorney so that we can discuss more about the suitable program and how we can help you.
Understanding Drug Diversion Programs in California
As earlier stated, the state of California has two types of diversion programs concerning drugs. Both these programs are supposed to offer the defendant help with their drug issue and avoid harsh penalties that accompany the crime. These diversion programs are:
Proposition 36 Drug Diversion Program
This program is also commonly known as Prop 36. The sentencing initiative requires eligible defendants charged with nonviolent drug crimes to serve their time getting treatment instead of prison time. The program is also referred to as the Substance Abuse and Crime Prevention Act of 2000.
The statute that defines Prop 36 is under PEN 1210-1210.1 and PEN 3063.1, which relates to individuals on parole. This program allows the dismissing of criminal charges against a qualifying defendant if they complete a treatment program as approved by the court.
The treatment program, as approved by the court, refers to programs including any or more of:
- Drug education,
- Residential treatment programs or outpatient services,
- Drug replacement therapy or detoxification,
- Follow-up care services.
It is essential to understand that this program is not the same as the rehabilitation programs offered in jails or prisons. Prop 36 specifically altered the law to allow persons charged and convicted with the crime of nonviolent drug possession to receive twelve months or less of drug abuse treatment as opposed to incarceration. If the court finds it necessary, the length of time for treatment can get extended for not more than six months.
The initial years after the passing of Prop 36 bill, most participants to the program preferred being outpatients. A minimal number of about 10% of participants opted for residential treatment programs with fewer, choosing for detoxification programs.
Parolees typically are prohibited from violating their parole terms. However, if a parolee is found with drug possession and is not violent, he or she can qualify for the program. Talking to your criminal attorney will help you avoid jail and instead get treatment for your issue.
The question is, however, what crimes qualify as nonviolent drug offenses? According to Prop 36, these offenses include:
- Being intoxicated or using any drugs as documented in the controlled substances act of the U.S.
- Having on you or moving these substances for your personal use.
These drugs include the following but are not limited to:
- Gamma-hydroxybutyric acid
- Ketamine popularly referred to as Special K
- Specific hallucinogenic drugs like phencyclidine and
- Some prescription medicines like Vicodin codeine.
When found in possession of any of the above substances, it is a criminal offense where if convicted, you get jailed, among other punishments. However, your having these drugs in your possession does not mean you are violent. If no violence was involved and they were not for commercial purposes, with an experienced lawyer, you can get sentenced to a diversion program such as Prop 36.
Some of the offenses that qualify under Prop 36 diversion program include:
- HS Code 11350 – The law against having controlled substances in your person.
- HS Code 11357 – The law prohibiting the possession of Marijuana less than an ounce, and
- HS Code 11550 – The statute banning intoxication by a controlled narcotic.
For instance, if you were playing loud music, a neighbor can report you to the police. If the cops come to your door and you open holding a joint in your hand or smoking one, you get charged with a criminal offense. If the weed you had was for personal consumption, you can plead guilty to the crime and qualify for Prop 36 instead of a jail sentence.
However, if the police search your house and find you with large quantities of weed you cannot consume, the crime is different. You will get charged for having a controlled substance for sale. This is considered a violent drug possession crime, disqualifying you from Prop 36.
Additional Eligibility Requirements to Prop 36
Aside from the drug-related crime qualifying for Prop 36, you must also be eligible for the diversion program. Several factors can disqualify you from a drug diversion program in California. These include:
Having a Prior Strike Conviction in your Record
If before this offense, you had a conviction for a violent or a serious felony and earned a strike or your crime qualified for a strike, you are ineligible for Prop 36. But, you can still be eligible for the diversion program if the offense occurred five years or more after:
- Getting released from jail and
- Your conviction was for a felony different from that of possessing drugs or causing physical injuries or threatening to cause them to another individual.
For instance, you have a robbery conviction in your record, which qualifies as a strike in California. Four years later, you are found in possession of heroin for personal use. Unfortunately, because the new offense occurred four years after your release from jail and you earned a strike, you will not qualify for this diversion program.
You were Convicted of Another Offense Not Related to Drugs at the Time
If you get charged with another offense that happened at the same time as you had drugs, a conviction will disqualify you from Prop 36. The sentence can be either for a misdemeanor or a felony offense, making you ineligible for the diversion program. The crime, in this case, should not involve:
- Only having drugs, using them or having the paraphernalia used in drugs,
- Your presence in a place where using drugs occurs,
- Your failure to register as a substance abuser or offender or
- Activities that are similar to merely using or having drugs for personal use.
For instance, if you are facing VEH 23152(f), the offense of driving intoxicated by drugs, you are charged with a misdemeanor offense. This offense is not related to using drugs and will disqualify you from getting sentenced to the Prop 36 program. According to the California courts, a DUID poses a threat to others, making the offense similar to selling drugs. This means it is more severe than merely being high on drugs, disqualifying you from a diversion program.
At the Time of your Arrest, You had a Deadly Weapon or Firearm in Your Possession
Having a deadly weapon or firearm on yourself without proper documents is a crime in California. Having the gun when committing the nonviolent drug offense disqualifies you from the Prop 36 diversion program. For instance, if you are smoking Marijuana in your house while playing loud music, your neighbor can report you for the noise. The police come to your door, and you thought it was one of your friends, you open the door while holding your gun. If this happens, you will not qualify for this drug diversion program.
Refusal of Drug Treatment when Sentenced to Probation
Prop 36 is similar to a probation sentence where you fail to go to jail but serve your sentence with certain conditions. If you refuse to get treatment for drugs, you do not qualify for Prop 36. The diversion program is centered on the offender getting treated and education on drugs and avoiding incarceration. If you refuse this, you forgo the program and instead get incarcerated.
Have Two Prior Participations in Prop 36 Program
If your criminal record shows that you have been convicted of nonviolent drug crimes before and sentenced to Prop 36 twice on both accounts, you are no longer eligible. The judge will rightfully feel the programs are not helping you, and a sentence involving minimum incarceration for 30 days is imposed.
PEN 1000 Drug Diversion Program
This is another drug diversion program in California available to persons charged with a lower-level drug offense. This program is a pretrial diversion allowing qualifying defendants to have a dismissal for their charges if they complete a treatment program on drugs successfully.
Previously, the program was known as the Deferred Entry of Judgment (DEJ). In the old version, you would have been required to plead guilty to the offense you got charged with to qualify for the diversion program. If you completed the rehabilitation program, you would get your charges dropped, but if you failed, you would get convicted and sentenced for the offense.
In January of 2018, the program was altered according to PEN 1000. The diversion remained as a pretrial program. But unlike before, the defendant was not required to plead guilty to the offense to qualify. After completing the treatment program, the charges you are facing get dismissed. However, if you fail to complete the program, you are guilty of the offense and have a right to a hearing before a judge.
Requirements to be Eligible for PEN 1000
Not all drug-related offenses qualify for the PEN 1000 diversion program. However, if charged with any of the following crimes, your attorney can help you get into this program. These offenses include:
- HS Code 11350, the crime of having in your person controlled substances.
- HS Code 11357, being unlawfully in possession of Marijuana or cannabis.
- HS Code 11364, having with you drug paraphernalia.
- HS Code 11365, the offense of helping and protecting the consumption of illegal substances
- HS Code 11375(b)2, the crime of unlawfully having particular sedating prescription drugs.
- HS Code 11377, the offense of having methamphetamines for your personal use.
- HS Code 11550, the crime of being high on or intoxicated by controlled substances.
- VEH 23222(b), the crime of having in your vehicle an open jar or container with cannabis.
- HS Code 11358, the crime of growing cannabis illegally for your personal use.
- HS Code 11368, the offense of using or having an illegal prescription to get drugs for your use.
- PEN 653f(d), the crime of asking another person to carry out an unlawful act to allow you to access medicines for your use.
- PEN 381, the sin of having toxic huffing substances.
- PEN 647(f), the offense of lewd behavior while intoxicated by controlled substances
- Business and Profession Code 4060, having controlled substances according to PEN 1000(a)(2).
If you get charged with any of the above crimes, the offense qualifies for the PEN 1000 diversion program provided you meet the other qualifications. It is important to note that drugs, in this case, involve any substance, as discussed earlier under Prop 36. Generally, the court in deciding if you qualify for the diversion program takes into consideration:
- Whether you had the drugs for your consumption,
- Whether the program would be of benefit to you.
Other Conditions for Eligibility
Apart from the above offenses and the court’s considerations, additional conditions must be met. The following must be fulfilled for you to be eligible for this diversion program. They include:
- In 5 years before the current offense you are charged with, you have not been convicted of other violations involving drugs aside from those listed under PEN 1000.
- The charges you are facing implied no violence or a threat to violence.
- If you are not at the same time charged with another violation on drug-related charges aside from those listed according to PEN 1000.
- You have no history of a felony conviction in the last five years before the current charge.
Getting Referred to a Diversion Program
When you get charged with a drug-related offense, the prosecutor reviews your case to decide. If you seem eligible and qualify for a diversion program, the prosecution attorney will let you know together with your lawyer formally. Typically, a letter to this effect is written, notifying you of eligibility.
The notice from the prosecutor includes the following:
- Detailed information on the pretrial diversion program and the procedures required.
- General details of the authorities and roles played by the prosecutor, probation officer or department, the court involved in the case, and the program.
- A statement indicating for you to qualify for the program, you must:
- Not take a guilty plea to the charges against you, and
- Let go of your right to a quick trial, pretrial hearing, and a jury trial.
- Get the charges against you dismissed if you complete the program in addition to a positive recommendation from the program authorities.
- Not commit a crime that disqualifies you from the program or fail the treatment program. If you do, you receive termination of the program.
- The notice must also outline your rights concerning having a criminal record and how to respond to questions on your arrest and diversion program after completing it successfully.
Probation Officer’s Investigation
The notice by the prosecutor is just to inform you of your qualification to the program, but not an offer for it. This means that a court hearing will still be held to determine your eligibility to consenting to the diversion program. You must remember that the court has the sole discretion to sentence you to the program, even when the prosecutor indicated you qualify for it.
Before a decision, the judge may request an investigation by the probation department. The officer assigned to your case will consider the following:
- Your age,
- Your employment history and service record
- Your academic background
- The family ties you hold and community ties as well,
- If you have an account of using controlled substances,
- If you have previously been treated for drug use and your response to that, and
- If you seem motivated to change your ways.
As the probation officer is investigating the case, he or she will interview you to make their determination. The statements you make during the interviews or investigations are not presented in court as evidence against you. The information obtained is solely used to determine if the program would be beneficial to you.
Determination by the Court
As earlier mentioned, the court has the discretion of sentencing you to a diversion program or not. If the court had ordered an investigation, the probation officer would inform you of the best plan suitable for you. This program needs to be beneficial to you and one that you will feel comfortable with. After receiving the report, the court decides on whether to sentence you to a diversion program. They will then consider the program that will offer you better treatment, education, or rehabilitation.
Next, you will be offered an opportunity to accept to participate in the program or not. If you decide to participate in the program, you will not take a guilty plea and fill in a form waiving your right to:
- A quick trial
- A quick preliminary hearing
- A jury-led trial
If you had been ordered to pay bail or had made a deposit of the same, it will get dismissed, and you are allowed to a diversion program. As you go through the treatment, the probation officer assigned your case will make progress reports and present you to the court. These reports are necessary for determining if you are eligible to continue with the PEN 1000 diversion program.
In some cases, a defendant, after consulting with their criminal attorney, may feel that they do not need a pretrial diversion program. The court, in some cases, may also think that a defendant will not benefit from a diversion program. If any of these is the case, the court returns to the regular proceedings for the drug offense. Your right to a quick trial, pretrial, and a jury trial is retained.
The Permitted Drug Treatment Facilitators
When the court sentences you to a diversion program, you must find a provider that:
- Is Certified according to Chapter 1.5 of Title 8 by the county drug program administrator or
- Provides programs free of charge to those participating, and the court approves of their services as well as the county drug program administrator.
It is essential to know that the law allows you to ask to join a program in a county of your choice in California as long as the program providers meet the above-discussed criteria.
Length of PEN 1000 Diversion
The pretrial diversion program, as provided for under PEN 1000, lasts between 12 months and 18 months. However, if you show good progress, you may be allowed an extension for you to complete a drug treatment program that is approved.
Drug Testing During a Diversion Program
A common question by defendants sentenced to a diversion program is if they will get subjected to drug tests. The answer to the question is yes. However, one need not panic because the results are typically used to measure your compliance with the program. If for any reason, you fail your drug test, the failure is not used as a basis for other criminal charges against you. But, the diversion program can get terminated.
If you make any statements during the treatment program regarding the offense you are in the program for, the information will not be used against you.
Cost of a Diversion Program
Diversion programs are designed to help persons charged with simply having controlled substances for their personal use. However, the defendants incur a loss to the program. You will be required to pay fees to the plan that covers all or some administrative costs. The cost of restitution fees ranges between $100 and $1,000. The court determines the actual amount to pay, taking all factors into consideration that include:
- Your ability to make the payment,
- How severe the offense you are charged with was, and
- To what extent if any other person suffered due to the crime.
It is important to note that irrespective of your ability to pay, a minimum fee of $100 must be paid. However, if you show extraordinary or convincing reasons, the costs may be waived.
Find a San Diego Criminal Defense Lawyer Near Me
If you are facing a drug-related offense, you might be scared because the penalties that accompany these offenses are severe. Hence, it is crucial to have an experienced drug crimes defense attorney that can defend you. Your attorney can advise you on a suitable diversion program. If you are in the San Diego area and would want to hire an experienced drug crimes attorney, get in touch with the San Diego Criminal Attorney at 619-880-5474.