San Diego Criminal Attorney firm is an established criminal defense law firm that offers criminal defense legal services to residents of San Diego and its surrounding areas.
What is Proposition 36?
In the year 2000, California voters enacted a criminal sentencing initiative that allows eligible non-violent drug offense defendants to attend a drug rehabilitation or treatment program rather than serving jail or prison time. It is formally known as the Substance Abuse and Crime Prevention Act of 2000 and commonly referred to as Proposition 36 or simply prop 36. It is prescribed under the California Penal Code 1210-1210.1 PC and Division 10.8 of the California Health and Safety Code. It is basically a drug diversion program.
Drug diversion programs are government approved initiatives that allow the dismissal of criminal convictions for eligible drug offenders if they undergo a court-sponsored drug rehabilitation or treatment program. This does not refer to the drug rehabilitation services offered in correctional facilities. The program includes residential treatment or outpatient services, drug education, narcotics detoxification services, and aftercare services.
Proposition 36 in its current state, was passed on November 2012, to counteract the adverse impact of the ‘three (3) strikes law’ which was initially meant to discourage repeat offenders but instead resulted in an overcrowded prison system. Basically, if an individual was convicted for a felonious crime for the second time, they were to serve double the jail time as per the later crime. And if they commit a third felony, they would get between 25 years to life in prison, thus the name ‘three strikes.’ The ‘three strikes policy was aiming at keeping murderers, rapists, and other violent criminals behind bars, but instead, most prisoners were serving for non-violent crimes, mostly drug offenses.
Proposition 36 also enables parolees who break their parole rules and regulations by involving in non-violent drug possession offenses while they are on parole not to be re-imprisoned but instead undertake a drug treatment or rehabilitation program.
Prop 36 amended the California law to require that first time and second-time defendants convicted of non-violent drug possession crimes get up to 18 months of drug abuse treatment in lieu of incarceration.
The California laws that established this alternative sentencing and drug diversion program are pretty complex and technical, but a qualified criminal defense attorney from the San Diego Criminal Attorney firm will elaborate further on Proposition 36 below.
Who is Eligible for Prop 36?
To determine who is eligible for the alternative sentencing program, Prop 36, the facts of your drug crime and your criminal record are critical. California Proposition 36 only allows non-violent drug offenders convicted with possessing or transporting drugs for personal use to participate in this program. This means that the crime must not involve any allegations of violence, and it must be drug-related. Any drug listed under the United States Controlled Act qualifies. Such drugs include Heroin, Peyote, Cocaine, ecstasy, methamphetamine, or marijuana qualifies. Unless you are charged with possession, manufacturing or transporting drugs for sale, you may be eligible for prop 36.
Non-violent drug possession offenses that may qualify for Prop 36 include the Health and Safety Code 11357 HS which is California’s law against possessing less than an ounce of cannabis, the Health and Safety Code 11377 HS and the Health and Safety Code 11350 HS both of which set out California’s laws against simple possession of a controlled substance, and the Health and Safety Code 11550 HS which is the code against being under the influence of a controlled or illegal substance.
Common Crimes that are Disqualified Under Prop 36
Typical drug-related offenses which do not qualify under Prop 36 include Health and Safety Code 11351 HS-Possession of a controlled substance for sale, Health and Safety Code 11352 HS California’s laws on transporting for sale of controlled substances, Health and Safety code 11359 HS-California’s laws against possessing marijuana for sale, Health and Safety Code 11378 HS-California’s laws on possession for sale of methamphetamine and Health and Safety Code 11379 HS which prohibits the transportation for sale of methamphetamine. Also, if you are charged with drug possession while in prison or jail, you are not allowed to participate in Prop 36.
The following notable crimes are ineligible for a Prop 36 sentence since they infringe on a ‘simple’ personal possession, use, or transportation. These are California Health and Safety Code 11368 HS which is California’s code on forging or altering a prescription for narcotic drugs, the California cultivation of Marijuana laws under Health and Safety Code 11358 HS, and the California’s laws against possessing a controlled substance while with a loaded firearm under the Health and Safety Code 11370 HS.
California Prop 36 Eligibility Restrictions
It is not always obvious that you will be eligible for Prop 36 alternative sentencing even if your crime qualifies for drug treatment. There are certain specific instances that could make you ineligible. They are;
Previous ‘3 Strike’ Convictions - In case there are prior convictions on you for serious felony charges that can be classified under the three strikes law in California, you may not be qualified for Prop 36, in case you left prison within the past 5 years, or had been convicted of a felony or a misdemeanor involving physical harm or threats of physical harm to someone else within the past 5 years. If the felonious conviction within those 5 years was for non-violent drug possession, you may be entitled to the alternative sentencing program.
A court judge has no authority to dismiss any offense that renders you ineligible under this section. However, a juvenile person would qualify for Prop 36 sentencing even if they had serious felony cases against them adjudicated by a juvenile court since the court’s decision is not legally viewed as a criminal conviction.
If you had a deadly weapon - such as a firearm while committing the non-violent drug possession offense, you will not be entitled to the Prop 36 program.
If you decline to undertake drug treatment - as a requirement for probation, then Prop 36 will not apply to your case.
A simultaneous conviction for a misdemeanor or a felony unrelated to drug use - If you were convicted for a non-violent drug possession crime and a misdemeanor or felony crime not involving drug use at the same time then you are not eligible for California alternative sentencing under Prop 36. A ‘misdemeanor unrelated to drug use’ implies that you were not convicted for the simple possession; of drugs, or drug paraphernalia or possession of drugs for personal use. It also means that the misdemeanor was not for being arrested in a drug house, failure to register as a drug offender or any crime similar to simple or personal possession offense.
For instance, Driving Under the Influence of Drugs (DUID) conviction under the Vehicle Code 23152(f) is known to be a misdemeanor not related to drugs, and as such, it disqualifies you from a California Prop 36 sentencing. According to the courts, this is because a DUID offense poses a risk to others just like a drug sale crime, thus going beyond merely being under the influence.
In this case, though, a judge can use their discretion to dismiss these charges to enable you to qualify for the alternative sentencing program.
Two prior California Prop 36 Programs - under Prop 36, if you have taken part in 2 previous drug treatment or rehabilitation programs after being convicted for two separate non-violent drug possession crimes the court may order you not benefit from any more drug treatment. Thus, a third Prop 36 drug treatment would not be applicable in your case. You will also be sentenced to serve for not less than a month in jail.
Drug Possession Defense and Prop 36
Fortunately, it is possible to have a defense lawyer fight your drug possession charge as personal use in court. In case you win, then the charge is dismissed, but if you are found guilty and convicted, you still can do Prop 36 instead of serving jail time.
How does Prop 36 and Probation Work?
For you to receive a Proposition 36 sentence, you have to admit guilt or take a no contest plea to your drug possession charge and for you to be sentenced for such an offense after a jury or bench trial. The judge then places you on probation and requires you to complete a drug rehabilitation program.
Also, if you are a parolee, (who is an individual released on parole), and when on parole you carry out a non-violent drug possession crime or violate a drug-connected condition of parole, you may be entitled to a California Prop 36 program. The judge may modify the parole and obligate you to attend a drug rehabilitation program.
At times, the court may set additional conditions to the parole or probation, including vocational training, community service, or family counseling. However, it cannot sentence you to incarceration unless you break your probation terms.
What if one violates the Probation Terms or Parole Terms?
You are bound to face different consequences if you go against the terms set out in the parole or probation pursuant to the kind of violation you commit.
Violating Probation Terms or Parole Terms with Respect to Crimes or Offenses
Non-Violent Drug Possession Offenses
If you contravene the probation conditions or parole terms by; committing a non-violent drug possession offense, or committing a misdemeanor involving the use of drugs, drug possession or possession drug paraphernalia, or by declining to register as a drug offender, visiting a drug house, or violating probation terms relating to drugs, the court will, after a hearing, decide to either revoke or reinstate your probation.
Your probation will be revoked if the court determines that you are a risk to the public. If your probation is reinstated, the probation terms will be intensified, and include up to 48 hours of jail time to force compliance. A recent misdemeanor drug use offense will have you transferred to a residential drug treatment facility or a jail offering detox services.
For a second violation, your probation will be revoked if you are unresponsive to treatment or if you pose a danger to society. If the probation is reinstated, you may get up to 120 days behind bars to encourage you to comply. If you were on parole and you violated the terms for the second time, you can no longer be eligible for Prop 36, and thus you will be arrested and jailed. A third violation will trigger a court hearing, and in most cases, you cannot continue on drug treatment under Prop 36 unless the court decides that you do not pose any danger to the society, and you might benefit from continued treatment.
If you are on parole or probation and you commit a crime that is not a ‘nonviolent drug possession offense’ or contravenes a non-drug related term of your parole or probation, you may be jailed for up to 30 days as the court decides whether to reinstate your probation terms or not, If they are not reinstated, you may be sentenced according to the underlying crimes. In case your Prop 36 sentence is reinstated, your probation and parole terms will be modified, and you will be required to serve a 30 days penalty in jail to enforce compliance.
Violating Probation Terms or Parole Terms with Respect to Your Response to Treatment
Your behavior towards the drug rehabilitation program may have the parole board or probation department revoke your parole or probation if they believe that you are un-amenable to treatment. This then necessitates a California probation violation hearing or a parole revocation hearing where the judge may revoke the probation or parole in addition to sentencing you to jail depending on the crime.
In a bid to determine if you are responsive to treatment or not, a judge looks at things like whether you’ve; committed serious violations of the drug facility rules and regulations, repeatedly gone against the program’s regulations undermining your potential to gain from it or repeatedly declined to take part in the drug rehabilitation program or you have requested to leave the program.
Benefits of Successful Completion of Drug Treatment and Dismissing your Charges Under Prop 36
Unless a California court judge acknowledges that you successfully fulfilled the conditions of your Prop 36 alternative sentencing program for drug treatment, they may not dismiss or set aside your charges. Successful completion of treatment for drugs means that you undertook the course that the court ordered, within the terms of the treatment provider, and that the court has no reason to worry that you will relapse to using controlled substances again.
Most defenders that are sent into this program do not complete the drug treatment successfully meaning that they do not enjoy the benefits of undertaking Prop 36 programs.
Successful completion would mean that you can petition the court to remove the drug charges from your criminal record according to the California expungement laws. A dismissal would mean that you are free from the negative consequences, penalties, and drawbacks that ensued from your crime.
If your case is expunged, the arrest and conviction are deemed as if they never occurred. You may now lawfully state that you’ve never been convicted of drug possession crime that caused the Prop 36 treatment.
You may not, however, be allowed to own, possess or control a firearm, or have in your custody, a concealable weapon. Nonetheless, our San Diego attorney firm may help you explore some avenues that may clear this exception as well.
Another exception to the dismissal is that you are not released from the obligation to disclose the arrest and subsequent conviction when; applying to be a peace officer, applying for a public office, applying to a local or state body that enters into agreements with the State Lottery of California, responding to any police inquiry or when serving a jury.
Other Alternative Drug Diversion Programs in California
Besides California’s Proposition 36, there are other notable California drug diversion programs including;
California’s Drug Courts
California drug courts provide an opportunity for non-violent drug offenders to settle their charges away from the conventional criminal justice system. They are keen on defendants who are likely to benefit from drug treatment and allow successful participants of the drug treatment or rehabilitation program to have their criminal charges dismissed.
An advantage of the California drug courts over the Prop 36 drug diversion program is that a drug court mandates you to seek drug rehabilitation without having to admit guilt or no contest to the drug charges you are facing. Drug treatment may include testing for drugs, a graduated system of rewards and penalties, therapy, close monitoring and supervision, vocational and educational monitoring, and any additional terms as constituted the judge, the prosecutor, and your attorney.
The ground for the drug courts is that drug rehabilitation is better than incarceration for non-violent drug offenders. The main objectives of these courts are; to reduce drug use and repeat drug use offenses, to save the taxpayers money (treatment is cheaper than incarceration), and to merge drug treatment with supplementary rehabilitation services in a bid to promote long-term recovery.
California’s "Pretrial Diversion" for Drug Crimes
Formerly referred to as California’s Deferred Entry of Judgment (DEJ), the program is established under California’s Penal Code 1000PC. It is similar to Proposition 36 in that it provides an opportunity for non-violent drug possession offenders to have their charges dismissed if they successfully complete a drug rehabilitation or treatment program. Major differences though exist in the length, judicial discretion, and the requirements of these two programs.
Proposition 36 takes up to two (2) years to cover while the Penal Code 1000 PC DEJ takes between one and a half years (1.5) to three (3) years to complete. Also, under Prop 36, eligible offenders must undergo drug treatment instead of incarceration, but under the DEJ or the pretrial diversion for drug offenses program, the judge maintains the option to render you unfit to attend the program. If that happens, you may defend your case, seek Proposition 36 eligibility or plead guilty to the charges.
Under Prop 36, a judge has to impose probation on you while you engage in the treatment, but under the Penal Code 1000 PC drug diversion program, you are not sentenced to any probation, and thus, a judge cannot enforce additional limitations on participation. A defendant who successfully undertakes a DEJ program has the right to an automatic dismissal of their charges, unlike in Prop 36 where the judge has to be convinced that you obeyed all the probation terms in order to allow you to petition the court to dismiss your case.
Requirements for California’s Penal Code 1000 PC Pretrial Diversion
For you to be entitled to a drug diversion under this law your offense must be listed under the Penal Code 1000 PC and you must fulfill all these conditions; first, your offense should not be a crime involving violence or threats to violence, you should not have committed a crime that does not fall under PC 1000 or have felony conviction within the past 5 years, you should not have had another drug diversion case within the past 5 years even if it was successfully completed, you should have no instances of parole or probation revocation, and your case should not include any evidence supporting more severe drug crimes for instance possession for sale.
Crimes Covered Under PC 1000
The California Penal Code 1000 PC is only entitled to defendants who are facing drug charges related to personal use or simple possession. Common crimes covered under this code includes:
- Possession of a schedule III, IV, or V drug-HS 11350
- Possession of marijuana- HS 11357
- Possession of drug paraphernalia-HS 11364
- Possession of Methamphetamine-HS 11377
- Under the influence of drugs-HS 11550
- Cultivation of marijuana for personal use-HS 11358
- Forging a drug prescription-HS 11368
Find a Prop 36 San Diego Criminal Lawyer Near Me
Whereas the benefits of taking part in a drug diversion program are many, it is of paramount importance to engage a San Diego drug offense lawyer to help you determine the most appropriate option as per your case. They will also advise you on whether to enter a Prop 36 drug diversion program or defend your case first.
At San Diego Criminal Attorney firm, we have the requisite experience to help you address your case in court. We will offer you individual attention as we help build your case. Kindly call us at 619-880-5474 to have us by your side. We serve all people charged with a criminal offense in San Diego County.
If you are being charged with a crime in Los Angeles I recommend you call this law firm: Los Angeles Criminal Defense Lawyer