San Diego Diversion Attorney
California’s deferred entry of judgment program, known as “DEJ” is defined in the Penal Code 1000 PC. The California PC 1000 diversion program allows eligible first-time drug offenders to have treatment or education instead of incarceration time.
Eligibility under California PC 1000 Drug Diversion
The eligibility under California PC 1000 Drug Diversion is based on two factors, 1) the charged offense(s) and 2) the defendant’s personal history.
The charged offense(s)
- Must involve personally possessing or using drugs.as opposed to possessing them for sale or actually selling them, and
- The crime must not involve any allegations of violence or threatened violence.
Following are the most common drug offenses in California, but not limited to:
- Health and Safety Code 11377 HS and Health and Safety Code 11350 HS California's laws against personal possession of a controlled substance.
- Health and Safety Code 11357 HS California's law against possession of less than one ounce of marijuana.
- Health and Safety Code 11358 HS California's law against cultivating marijuana10 (if you can prove that you only cultivated the marijuana for your own personal use).
- Health and Safety Code 11364 HS California's law against possessing drug parafernália.
- Health and Safety Code 11365 HS California's law against knowingly being in a place where drugs are being used.
- Health and Safety Code 11550 HS California's law against being under the influence of a controlled substance.
- Health and Safety Code 11368 HS California's law against forging or presenting a forged prescription to obtain drugs (if you can prove that the acquired controlled substances were exclusively for your personal use).
- Vehicle Code 23222(b) VC California's law against driving while in possession of marijuana.
- Penal Code 647(f) PC California's drunk in public law (if you were under the influence of drugs or drugs and alcohol, as opposed to just alcohol).
- Penal Code 653f(d) PC California's law against soliciting drug sales or transportation17 (if you can prove that you only "solicited".that is, encouraged.another person to engage in these activities so that you could exclusively acquire drugs for your 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, kwon 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”.
Also, it is important to mention that the PC 1000 Drug Diversion allows conviction for certain offenses that the Proposition 36 does not trigger, such as 1) cultivating marijuana for personal use and 2) forging prescriptions of your personal use.
Not only the offense committed must qualify for the means of the PC 100 Drug Diversion program, but the offender's history must as well be eligible, meaning that he will not qualify if he has:
- Any prior drug-related convictions.
- Had the probation or parole revoked without completing the terms and conditions.
- Participated in a drug diversion or DEJ program within five years prior to the alleged commission of the charged offense.
- Any prior felony convictions within five years prior to the alleged commission of the charged offense.
The defendant was charged with unlawful possession of marijuana on the streets of San Diego. Charged of nonviolent drug offense, the defendant was placed on probation. During the probation period, the defendant did not comply with the terms of the program, and had it revoked. The fact of having this probation program revoked would already make the defendant ineligible for the PC 1000 Drug Diversion program.
If the defendant is eligible for the PC 1000 Drug Diversion program, he will have to plead guilty for the offense in question, waving time for the pronouncement of judgement, meaning that the court has the permission to postpone the sentencing and allowing the defendant enough time to go through a drug diversion.
After being sentenced to participate in the PC 1000 Drug Diversion, there will be na analysis to decide which drug treatment is the more appropriate for the defendant.
In that analysis, the local probation department will consider the following factors:
- Any employment and/or service records.
- Community and family ties.
- Any prior drug history, including any prior treatment history.
Unamenable to treatment.
When the prosecutor or treatment provider or the judge believes that the offender 1) is failing to adhere to the program, 2) is not benefiting from the treatment, 3) have been convicted of a felony or a misdemeanor that reflects the preponderance for violence, or 4) have engaged in any criminal activity that renders an unsuitability for the program, the court might strait the judgement on the guilty plea and sentence on the terms of a appropriate punishment for the charges.
The completion of the Drug Treatment of PC 1000
As long as the offender completes successfully the treatment offered under the PC 1000, the chargers will be automatically dismissed, meaning that the offender’s legal arrest almost never occurred.
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.
Other California Drug Diversion Programs
California’s Proposition 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.
As a type of drug diversion, Proposition 36 requires that first and second time defendants convicted of non-violent 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 paroles that violate their parole by a non violent drug possession offense.
Proposition 36 differs from PC 1000 on the following points:
- PC 100 is applicable to a wider variety of drug-related crimes, allowing defendants convicted of violent or serious felony under California’s three strikes law to participate in the program, in the case that the defendant fulfils the mentioned requirements of PC 1000.
- On Proposition 36, the defendant has to plead guilty and is placed on formal probation and subject to additional terms.
- If the defendant is eligible under Proposition 36, he will be automatically sentenced under its provisions. On the other hand, according to PC 1000 the judge must decide if defendant is eligible to participate on a program based on his personal history and his beliefs that the defendant is not failing to adhere to the program, is not benefiting from treatment, have not been convicted of a felony or a misdemeanor that reflects his propensity for violence or not engaged in any criminal activity that would render unsuitability to the program.
- Once successfully completed the PC 1000 Drug Diversion program, the chargers will be automatically dismissed, while under Proposition 36, the offender will have to petition to the court pleading the dismissal of the charges.
California drug court
Similar to the Penal Code 1000 PC and governed by Penal Code 1000.5 PC.
Also, in the same way that the successful completion of the treatment will render the dismissal of the charges under PC 1000, under California drug court the successful completion of the treatment program will have the same outcome.
The main difference is that the California drug court program does not require the defendant to first plead guilty to an offense, meaning that the criminal proceedings will be suspended while the defendant attempt to complete the treatment program.
San Francisco’s “back on track” program
As an unique diversion program, San Francisco’s back to track is specific to offenders who are 18-30 years of age, and those who have been arrested for first-time nonviolent low-level drug "sales" charges (that is, charges involving less than 5 grams of controlled substances).
Possibly more rigorous than the other diversion programs, on back to track participants must complete a six-week screening phase with 120 hours of community services.
Successful completion of the screening phase, the defendant has to plead guilty so that the sentencing process is postponed for a period of a year. During that year, there are two possible outcomes for defendants, being 1) immediate termination of the participation in the program and back to the sentencing procedure once the participant is charged with a new drug case or 2) successful completion of the back on track program, leading to the dismissal of the charges.
Tailored of each one of the participants, the back on track program may include any or all of the following requirements:
- Obtaining a high school diploma.
- Enrolling in a city college.
- Securing full-time employment.
- Stabilizing housing.
- Attending counseling and/or therapy.
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