In 2000, Californians passed Proposition 36, otherwise called the Substance Abuse and Crime Prevention Act of 2000, an initiative requiring qualified suspects apprehended or charged with drug crimes that are not violent to serve time in a drug diversion program instead of jail or prison.

If you face a nonviolent narcotic-related charge and the court issues a guilty verdict, the most lenient punishment you will attract is the drug treatment or diversion program. Unfortunately, not every drug offender is eligible for sentencing. Still, with the help of the experienced California Criminal Lawyer Group in Bakersfield, you can improve your chances of obtaining Prop 36.

Prop 36 At a Glance

California PEN 1210 to 1210.1 and PC 3063.1 prescribe Prop 36, also known as Proposition 36. The proposition is a narcotic or drug diversion or treatment program that primarily allows nonviolent narcotic offenders to have their counts dismissed or a guilty verdict reversed and instead sign up for a court-approved or sponsored diversion program. For you to enroll in the treatment, it must receive the court’s approval. The objective of the government initiative is to reduce the number of drug addicts in custody and curb the ever-increasing number of drug or substance addiction cases. The activities involved in the program are:

  • Drug or alcohol education.
  • In-patient or outpatient treatment.
  • Narcotic replacement treatment and detoxification services for alcohol.
  • Aftercare services.

Also, you must understand that drug diversion and drug rehabilitation are not the same. Rehabilitation programs only exist for drug offenders who have been convicted and are now serving jail or prison sentences.

The government initiative was adopted in 2000 to amend California’s Three Strikes Statute. The Three Strikes Statute was adopted in 1994. From 1994 to 2000, any individual with two previous convictions for felony crimes would automatically be sentenced to life imprisonment for a subsequent felony guilty verdict. However, after 2000, Prop 36 made changes to the Three Strikes Statutes, requiring courts to impose life incarceration when the third guilty verdict is for a violent or severe felony.

The outcome of the Prop 36 initiative also altered the drug crime statutes. Usually, the treatment program is available for first- and second-time drug possession convicts whose offenses do not involve violence. A conviction for narcotics possession for personal consumption also qualifies for diversion instead of serving time.

Usually, when the court enrolls you in the program, it will take twelve months to complete, which is not long considering you want to avoid incarceration. Nevertheless, the judge, usually the program coordinator, can extend the program by six months. Moreover, you can only qualify for the program two times. A third or subsequent apprehension or charge will attract the regular penalties the law provides.

Many participants preferred outpatient services at the onset of the government initiative, while a few opted for residential or in-patient treatment, other parties enrolled in the court-sponsored methadone clinics for narcotics detoxification.

The leniency of the initiative also relates to parolees. When you are on parole and you breach your release terms by engaging in a nonviolent narcotics crime, you are eligible for drug diversion. Instead of parole cancellation and incarceration, Prop 36 allows you to enroll in a drug treatment program.

Nonviolent Narcotic Possession Offenses In Prop 36

California criminalizes several drug-related crimes. Prop 36 focuses on drug crimes, but this should not mean that all drug offenses are eligible for the initiative. The drug crimes that qualify for a diversion program in place of the regular legal penalties include:

  • The illegal possession or transportation of drugs for your ingestion.
  • Use or being impaired by narcotics outlined under the Controlled Substances Act.

Drugs prescribed under the Controlled Substances Act include:

  • Peyote.
  • Ketamine.
  • Heroin.
  • Ecstasy.
  • Prescriptions like Vicodin and Codeine.
  • Marijuana.
  • Cocaine.
  • Methamphetamine.

Drug possession crimes that are deemed nonviolent and can qualify for the drug treatment program are:

  • Health and Safety Code (HS) 11377 — Possession of narcotics for own use.
  • HS 11357 — Possession or having less than 28 grams of cannabis.
  • HS 11550 — Criminalizes the act of being high on controlled substances.

For example, you are feeling tired after a long day at work and decide to purchase some marijuana for private use. After arriving at your apartment, you put some loud music on and smoke cannabis. Unfortunately, the loud music annoys your neighbors, who decide to call law enforcement. After a few minutes, you hear a knock on your door. You go to answer the door with the joint in your hand, thinking it is a friend knocking. To your surprise, you find a police officer at the door, responding to a loud music complaint by your neighbor.

Under the circumstances, the prosecutor will file a violation of HS 11377 or HS 11550 and disturbing peace charges. When you did not resist or were not violent during arrest, you have a clean record, or it is your first or second nonviolent drug offense arrest or conviction, your defense lawyer can convince the judge to enroll you in the diversion program instead of imposing the regular penalties provided for the crime.

However, when the officers responding to the noise complaint found more than an ounce of the drugs or paraphernalia, it would suggest that the drugs were for sale or you manufactured them, attracting severe charges. You will not be eligible for a treatment program even if you do not resist arrest. Therefore, you can deduce that some drug offenses, particularly those involving the sale or production of narcotics, are exempt from receiving Prop 36 even when no violence is involved. Drug crimes ineligible for drug diversion are:

  • HSC 11352: Possessing a substantial amount of drugs that suggests they are for sale or transportation.
  • HSC 11359: Marijuana possession for sale.
  • HSC 11378: Having methamphetamine or other less severe criminalized narcotics for sale.
  • HSC 11379: Methamphetamine sale or transportation.

These drug offenses are nonviolent. Nevertheless, the fact that they involve the sale or distribution of substances makes them serious, exempting them from the Proposition 36 initiative. Other drug offenses exempted from sentencing because they lack simple possession, use, or personal transportation nature are:

  • Marijuana farming, production, or cultivation for own use, per HSC 11358.
  • Having drugs while possessing a loaded and functional firearm, as codified under HS 11370.1(a). The loaded gun is an aggravating circumstance that exempts you from receiving Prop 36.
  • Forging a prescription to obtain drugs under HS 11368.

Other Aspects that Rule You Out of the Drug Treatment

Even when your conviction is for a crime eligible for drug diversion under Prop 36, the judge can deny you admission to the program because they reasonably believe you are unqualified. The factors that the judge considers to deem you unfit for Prop 36 include:

You Have a Strike Conviction Record

When the police arrest you or the court issues a guilty verdict against you, they retain the records for future reference. Therefore, if you have been previously sentenced for a violent or severe felony that qualifies as a strike, you are disqualified from the diversion program. The only way you will qualify for the initiative is if the sentence happened at least sixty months after you completed your punishment for the strike offense or if the previous sentence was for a nonviolent felony controlled substance possession or a misdemeanor devoid of bodily injury threats or inflicting physical injury to another party.

You should know that the judge cannot end the sentence that disqualifies you because of a strike conviction. Nevertheless, if the sustained petition happens in the juvenile justice court, the judge will enroll you for the drug diversion despite the sentence being for a violent felony. It happens because juvenile proceedings are less severe than adult criminal courts.

You Have Simultaneous Convictions for Felony or Misdemeanor Non-narcotic-related Crimes

It is possible to face two criminal offenses simultaneously. The first count is the use of controlled substances or possession for use. The crime is eligible for drug diversion in Prop 36 upon conviction. However, when the drug possession crime is charged alongside a felony or misdemeanor crime that is unrelated to drugs, and you are found guilty, you will face the standard punishment for the offense instead of Prop 36. A crime is non-narcotic-linked if it does not encompass the following:

  • Simple usage or having controlled substances or paraphernalia.
  • Presence in a place where people are taking drugs.
  • Failure to enlist as a narcotics or drug offender.
  • Activities resembling standard possession or drug use.

Unlike the rule that applies when you have a previous strike conviction on your record, the court can dismiss the additional count to qualify you for the drug diversion sentencing.

For example, when you consume controlled substances and drive, you will attract two simultaneous charges when apprehended. The prosecutor will charge you with drugged driving and drug use. A conviction for drugged driving under Vehicle Code (VC) 23152(f) will disqualify you from drug treatment sentencing as it is a misdemeanor unrelated to drug consumption or simple possession. Usually, drugged driving is a serious offense because it endangers your life and the lives of other motorists and, therefore, cannot be classified as simple or standard use.

A violation of VC 23152(f) is a nonviolent misdemeanor, but it does not qualify for Proposition 36 sentencing. Nevertheless, the presiding judge can consider your case’s circumstances and criminal record. They can use their discretion to terminate the additional charge that makes you ineligible for drug treatment and qualify you for drug diversion sentencing. However, the judge cannot remove the extra count where you have a previous strike sentence.

You Had a Loaded and Functioning Gun When Committing the Drug Crime

You are unqualified for drug diversion sentencing if, during the drug offense, you had a loaded firearm. The loaded firearm acts as an aggravating circumstance because any practice that involves gun or lethal weapon mishandling is taken seriously by authorities.

You Decline Drug Treatment as a Probation Condition

You can qualify for drug diversion but refuse treatment. Law enforcement makes it mandatory to enroll because treatment refusal shows that the narcotic treatment will not generate the desired outcome, which is to solve the alcohol or drug addiction problem. Proposition 36 sentencing is a narcotics treatment program, meaning participants must complete the treatment to benefit. If there are indications that you will not satisfy treatment requirements or refuse treatment, you shall be disqualified from the sentencing.

You Have Previously Participated in Two Drug Diversions or Treatments

You are disqualified from participating in the third narcotics treatment program if you have previously participated in two Prop 36 initiatives. The court feels that sentencing you to the program for the third time will not be fruitful, as the previous two have failed. Therefore, a third nonviolent drug crime will lead to a legal trial. If the court finds you guilty, you will serve the standard penalties the law provides, including jail incarceration.

Drug Diversion and a Misplaced Cause

When you have solid evidence against the prosecutor’s arguments, you could feel that the case odds are in your favor and decide to proceed until trial, hoping the prosecutor will throw it out. If the case is dismissed, you will obtain an acquittal. Nevertheless, when you fail to attain the desired outcome, resulting in a conviction, your option for Prop 36 will still be available. You can choose the treatment instead of the typical penalties.

However, it would help if you had an experienced lawyer. At the California Criminal Lawyer Group in Bakersfield, we will file a motion in court after sentencing, requesting to be enrolled in the narcotic treatment initiative instead of serving time. The court has the discretion to consider the petition or impose the standard penalties provided by the law for a guilty verdict.

Prop 36 Probation

Before the judge sentences you to a narcotics treatment program, you must satisfy the following:

  • Enter a guilty or no contest plea to a nonviolent narcotics possession crime.
  • Must be a parolee serving a sentence for a nonviolent narcotics possession criminal count.
  • A California criminal court must have issued a guilty verdict against you for a non-violent narcotics crime.

Once the judge deems you eligible for the drug treatment sentencing, they will impose probation or adjust parole conditions. Treatment comes with strict conditions that you should abide by, failing which the court could revoke probation and set the initial criminal penalties. One primary requirement is for you to complete the narcotics treatment, which involves random narcotic tests. You must agree to these tests and pass for the nonviolent drug offense charge to be dismissed. Other probationary requirements you must fulfill are:

  • Going for vocational training.
  • Enrolling in family therapy.
  • Participating in community labor.

You should know that jail incarceration cannot be part of the probation requirements. However, when you break probation terms, the court will revoke probation and send you to prison.

Probation Violation

A breach of probationary requirements attracts severe penalties. As a parolee, the first of the ways you breach probation requirements is by being non-responsive to the drug diversion. Your conduct towards the treatment can force the provider to notify the parole panel or probation department that you are not deriving any benefits from the initiative. If the board is convinced you cannot benefit, they will request probation bleach or parole revocation proceedings where your probation will be canceled, and the standard jail sentence will be imposed.

In the proceeding, you will also have a chance to contest the allegations, so having a defense lawyer in your corner is crucial. Before the court revokes your probation, they must establish your responsiveness to the treatment. The factors they take into account are:

  • Whether you have participated in a bleach of the narcotic treatment facility’s drug rules.
  • Whether you have persistently declined to participate in the program.
  • Whether you have persistently broken the program’s regulations, undermining potential benefits.
  • Whether you have asked to be removed from the treatment.

Not responding to Prop 36 is the only violation of probation that attracts jail time. Judges are lenient to other breaches because they can still allow you to continue with the drug diversion sentencing.

However, before the court schedules a probation violation proceeding, you will be jailed for at most 30 days if your violation was engaging in a nonviolent drug offense while on probation. Also, you will spend 30 days behind bars if the crime you commit while serving probation is not narcotic-related. When the court schedules the proceeding, the judge evaluates your probation violation to decide whether to revoke the program and trigger incarceration. The court can let you continue with the Prop 36 initiative, adjust the terms of the drug diversion, or increase probation terms. Alternatively, you can be sent to county jail for thirty days. The judge can impose the standard penalties for a crime when there is sufficient evidence that you committed a criminal offense while serving probation.

When the probation violation involves a nonviolent drug offense or other narcotics-related offenses, the court will schedule a proceeding to decide whether to revoke the program. The court will revoke your treatment if the state has compelling evidence that you are a community threat.

Nevertheless, if the court chooses to reinstate drug diversion, it will impose stricter and additional probationary terms. Also, you could go to jail for forty-eight hours to encourage compliance.

The same guidelines apply when a parolee engages in a second violation of probation terms. If the court opts to reinstate the probation, it will encourage you to comply with the terms in the future by sending you to jail for one hundred and twenty days. This is your only chance for Prop 36 sentencing because a third violation will return you to prison.

Advantages of Successful Conclusion of the Program

Once you abide by all probation terms and complete the drug treatment, your lawyer will petition the court to dismiss the nonviolent drug charges. Before dismissing your charges, the judge listens to the opinions of your parole or probation officer and the drug diversion provider. If the reports from these officers show you were compliant with probation conditions, the court will drop your charges or dismiss the conviction.

Successful completion of treatment means complying with all court conditions and stopping the abuse of narcotics. From this information, Prop 36 sounds like an easy alternative to the standard penalties, but sadly, very few drug offenders have petitioned the court after completing treatment and received a dismissal.

The court will expunge your apprehension or conviction record if you are among the few who obtain a dismissal. With an expunction, you can confidently say you have no conviction without committing perjury. Nevertheless, you must reveal the record to police officers during a questionnaire or when applying for public office. Also, the expungement will not allow you to possess a firearm.

Alternative Drug Diversion Programs

Apart from Prop 36, other drug treatment options in California are:

  1. PEN 1000

California PEN 1000 prescribes pretrial diversion, previously known as deferred entry judgment. The program functions the same way as Prop 36 by offering nonviolent drug offenders a chance to have their charges dismissed if they complete drug diversion.

However, they differ in terms of the duration of the program. Prop 36 lasts no more than twenty-four months, while PEN 1000 lasts 36 months. Also, apart from enrolling in drug treatment, pretrial diversion has no other probation conditions. However, Prop 36 comes with additional conditions on top of drug diversion.

  1. Drug Courts

Another sentencing option for nonviolent narcotic offenders is drug courts. The advantage of the treatment over Prop 36 is that you do not have to plead guilty or no contest to enroll. Once you start the program, you participate in the following treatments:

  • Therapy.
  • Vocational training.
  • Drug testing.
  • Educational counseling.
  • Close supervision or monitoring by the court.

Once you comply with the treatment terms and complete them, you can request a charge dismissal from the court through a petition for a charge dismissal.

Find an Experienced Drug Crimes Lawyer Near Me

Court-sponsored drug diversions offer multiple benefits, but you should not consider the sentencing option before consulting with a criminal lawyer to ensure it is the best alternative to defending against the charges in a trial. At the California Criminal Lawyer Group in Bakersfield, we have the necessary experience to assist you in avoiding incarceration and receiving a fair Prop 36 sentencing. Call us today at 661-750-8230 to arrange a meeting and evaluate your charges.