Non-violent drug offenses, especially those involving personal use, arise because the offender has a drug and substance use problem. Drug addiction often lands these individuals into trouble, and some might end up in jail.
However, the criminal justice system has invented a way to help these offenders and keep them out of jail. The most common programs are diversion programs, which “divert” the offender into a treatment program.
Once you complete the program, the court will dismiss the charges you are facing or set aside your conviction.
Proposition 36 (prop 36) is a program that allows first and second-time offenders of low-level drug possession offenses to complete a treatment program instead of going to jail. These programs are available for offenders, including parolees and those who have already been convicted.
The Los Angeles Criminal Defense attorney works closely with clients to help them determine their eligibility for the program. We also provide post-treatment help with criminal defense and petitioning for the dismissal of your charges or conviction.
Overview of Prop 36
The Substance Abuse and Crime Prevention Act is a program California passed in 2000 to allow first and second-time offenders to attend drug treatment instead of incarceration for their offenses.
Lawmakers proposed the program as an initiative to reduce drug-related convictions, which had increased 25 times more within 20 years. Such an increase meant courts and the taxpayer had to pay more to facilitate the conviction of these offenders.
The approach increases the likelihood that offenders will not repeat these offenses since they can deal with their drug addiction or dependence issues. Unlike most people might think, proposition 36 does not decriminalize drug use or encourage trafficking and selling of drugs.
Instead, it gives consumers and addicts of these drugs (who purchase for personal use) a chance to live normal lives. They are free from addictions and less likely to commit a crime related to drug use (or to facilitate their drug use).
When an offender with a drug and substance addiction is placed in jail, he or she will experience severe withdrawal symptoms, which might lead to further violations and sinking deeper into addiction.
Such a person requires help, more than they need to be punished for the offense. Therefore, providing drug treatment gives the person a chance to control and stop using these drugs. That way, he or she has a lesser likelihood of becoming a repeat offender.
Prop 36 is a form of diversion program that is both effective for the defendant and cost-saving for the criminal justice system. It is available for three groups of offenders as follows:
- People who are charged with the first non-violent drug possession offense, for personal use (you must take a guilty or no contest plea at arraignment)
- Persons on probation for drug possession or illegal use of drugs (after a conviction during trial)
- People who violate their parole by committing a non-violent drug possession offense
If you are in one of these three groups, the judge will order probation and require that you attend a certified drug program for up to twelve months. The judge might allow an extension of the period depending on your case. During the program, you will receive:
- Drug education
- Detox and narcotic replacement therapy
- Outpatient or residential treatment services
- Aftercare services
However, before joining the program, the offender must meet the eligibility standards, which include:
- You are convicted of a non-violent drug offense
- You do not have a prior strike conviction on your record. However, you are eligible if five years have passed since your release from prison to the time you committed the non-violent drug offense.
- You were not convicted for a non-drug related offense (misdemeanor or felony) at the same proceedings as the non-violent drug offense
- You accept drug treatment as a condition of probation
- You have not participated in two previous prop 36 programs for two separate offense, and if you have, the court will determine whether you are likely to benefit from the program
The first determinant of your eligibility is the offense you have committed. The eligible offenses include:
- Possession of a controlled substance for personal use
- Possession of less than an ounce of marijuana
- Being under the influence of a controlled substance
You can also qualify for the program if you were transporting the controlled substance for personal use.
A controlled substance that qualifies under prop 36 includes cocaine, ecstasy, heroin, GHB, Ketamine, peyote, methamphetamines, PCP, marijuana, and prescription drugs like Vicodin and codeine.
Committing offenses in the list below will disqualify you from joining the program:
- Possessing a controlled substance for sale
- Selling or transporting a controlled substance
- Possession of marijuana for sale
- Possession of methamphetamine for sale
- Cultivation of marijuana
- Possession of a controlled substance while in possession of an operable and loaded firearm
- Forging or using a false prescription to obtain prescription drugs
You are also ineligible if you commit a drug possession offense while you are incarcerated. A lawyer working on your case can help you negotiate with the court to prove that a crime you committed was related to your drug use. For instance, selling a controlled substance would lead to ineligibility. However, if you committed the offense to further your use of the drugs, then the court might allow you to participate in the program.
How Prop 36 Works
Proposition 36 is available to eligible offenders, as discussed previously. You can also qualify for the program if you fail to complete PC 1000, pretrial drug diversion. You are also allowed two probation violations during the program. Subsequent violations will result in the termination of your proposition 36 probation.
Once you meet the eligibility conditions, you have to:
- Get an assessment with a drug addiction expert
- Attend an approved treatment facility (ensure that you go through a program that the court has either licensed or certified)
- Attend follow-up care six months after you complete the treatment
- Attend regular meetings with the court, paying your treatment costs, and avoid taking drugs or being in areas where people are using drugs. You must also be available for drug screenings.
You might also receive vocational and literacy training, which helps you in securing employment and developing positive life skills.
Most proposition 36 programs provide different levels of training and supervision, depending on the progress of the offender.
The first level involves outpatient counseling and random drug testing. It is usually less strict. The program administrator will review your progress and response to determine whether to introduce you to a stricter level of treatment, such as the inpatient program.
The next level of the treatment will depend on the extent of your drug addiction problem and your response to treatment. If the treatment providers determine that you are more likely to fail in the program, due to previous violations or relapses, it will enroll you into a stricter and more structured residential treatment program.
Once you complete counseling and pass your drug tests, you will continue through an unsupervised treatment program for the next few months. During this time, you must keep obeying the requirements of your probation so that you can successfully complete the program.
You must comply with all the requirements of the treatment program to prevent adverse action from the court. The consequences of violating the terms of the program will differ depending on the type of violation.
The probation department and parole board are responsible for monitoring your progress during the program. In most cases, they will allow you to continue with the program for violating the terms of probation or parole. Some of the violations include:
- Violating conditions of probation that are not related to drugs*
- Committing a possession crime that is outside the non-violent category
However, you might have to spend at least 30 days in jail while the court determines whether to revoke the probation or modify the terms of your treatment.
A non-drug related misdemeanor is an offense not related to the use of drugs. This means that a DUI of drugs would be a non-drug related offense. The reasoning behind it is that a DUI of drugs goes beyond use, and puts other road users at danger.
If you commit offenses such as:
- Non-violent drug possession offense
- A misdemeanor related to drug use, possession of drug paraphernalia
- Being present in an area where people are using drugs
- Failure to register as a drug offender
- Violating drug-related conditions of probation,
The court will determine whether to revoke your probation or parole through a preponderance of evidence to establish whether you are a threat to society. If it terminates the probation or parole, you will receive a sentence for the offense, and sometimes, additional penalties for the offense you committed while on Prop 36 treatment.
If the court reinstates your probation, it will mandate that you spend up to 48 hours in jail or go through a detox program.
For a second violation of parole or probation, the court is more likely to revoke the probation, particularly if you are a danger to society or cannot benefit from the program. Alternatively, the court might mandate 120-day incarceration to encourage your compliance with the conditions.
A third violation of your probation or parole terms increases the likelihood that the court will bar you from participating in proposition 36 programs.
The court could also terminate the program if it determines that you are not benefiting from the program. Some of the factors that show you are not benefiting from the treatment include:
- You commit serious violations of the laws at the treatment facility
- You have repeated violations of the laws of the facility to the extent that hinders your ability to perform in the program
- You continuously refuse to participate in the program
- You ask to be removed from the program
The court will terminate the program if you are not benefiting from it and sentence you for the offense.
Completion of Prop 36
Once you complete the program, you can petition the court to dismiss your charges or conviction. Successful completion of the program means that you have completed the recommended treatment, and you are not likely to abuse a controlled substance.
You will go through a hearing where you must prove that:
- You have completed the drug program
- You substantially met the terms of probation
- You are not likely to abuse a controlled substance in future
To file the petition, you must complete the required paperwork. This will include forms such as:
- A notice of petition and petition for relief
- Proof of service
- Order of dismissing an accusation
Fill the relevant parts of these forms with the required information. You can seek the help of an attorney to ensure that you complete the paperwork accurately. Make three copies of these forms.
File the paperwork with the court, present a copy of the petition to the probation department, the district attorney, and keep a copy for yourself.
The court will set a hearing date during which it will review your case to determine whether a dismissal is appropriate. A dismissal makes it as if you were never charged or convicted for the offense. Therefore, you do not have to disclose the charge or conviction to potential employers or housing agents.
However, you must disclose the charges or convictions when applying for the position of a peace officer or a police officer. You must also disclose the conviction when applying for a state license.
Diversion under proposition 36, you lose your right to possess or own a gun. This means that it is illegal to possess or control a gun that could be concealed on your person. If you go through diversion under prop 36, you must give up your gun to the police or sell it to a licensed dealer. You can, however, still keep a long rifle or a long-barreled shotgun.
Criminal Defense and Prop 36
Most first-time drug offenders will go through pretrial diversion under PC 1000. Through these programs, the defendant gives up the right to a speedy trial to take the treatment. If the offender does not complete the program, the court will reinstate the charges. You cannot participate in the program again for that charge.
However, if you proceed to trial, you can fight the drug possession charges as you would in a trial. You can fight to get a dismissal or acquittal. Your attorney will, therefore, have to come up with a defense strategy that works for your case.
However, if the court finds you guilty, you can still qualify for drug diversion under proposition 36.
Speak to your attorney if you choose to fight your charges before requesting resentencing under proposition 36. Your attorney will advise you about the advantages and disadvantages of each approach.
The approach of fighting your charges might work, especially if you want a chance at fighting your charges and getting drug treatment. When taking the program, you take either a no contest or guilty plea. This means that if you fail to complete the program successfully, you will be sentenced immediately.
Fighting your charges before prop 36 might take a longer time, but also gives you two chances to avoid incarceration.
Alternative Diversion Programs
Drug use is a complicated problem affecting California and the US. Offenders of simple and non-violent offenses are more likely to benefit from treatment initiatives that help them deal with the root problem – their addiction or drug dependence.
Such people can turn their lives around with such treatment options and become productive members of society. These drug diversion programs also reduce the risk that these offenders will become a threat to society due to their continued use.
Diverting the offenders from the criminal justice system also reduced the risk of recidivism and radicalization. If a defendant is incarcerated, he or she might interact with violent criminals or develop an inclination to violence.
These programs also save costs substantially and reduce congestion in jails and prisons, leaving room for serious and violent offenders who pose a greater threat to society.
Some of the alternative drug diversion programs into which you may enroll are:
One of the drug diversion programs you can enroll in is the pretrial diversion under PC 1000. The program allows you to enroll in a drug treatment program before trial. You, however, have to waive your rights to a speedy trial and a preliminary hearing.
Before enrolling in the program, you must enter a not guilty plea. While both PC 1000 and proposition 36 are drug diversion programs, they have some key differences, which include:
- Proposition 36 allows diversion for a limited number of offenses compared to PC 1000 pretrial diversion
- The defendant must enter a guilty plea before the court can allow you into a prop 36 diversion program
- The law mandates that the court allow eligible defendants to participate in prop 36 programs automatically as opposed to PC 1000 in which the judge weighs in on whether you are allowed to participate in the program
- Under Proposition 36, the defendant must petition for the dismissal of the charges or conviction, which the judge also has the discretion to approve or reject. However, in PC 1000, the court will automatically dismiss your charges upon the successful completion of the program.
Another program that provides rehabilitation services is the Los Angeles County Drug Court Program. It is under the California drug courts and consists of 12 drug courts, juvenile drug courts, and specialized court programs.
The program works through collaboration between the major parties in a defendant’s case. This collaboration is meant to identify the best treatment program that works well for the defendant.
The LA drug court program is one of the most successful in the country, as about 70% of the successful graduates are not convicted for an offense after within five years of the program.
The program is similar to prop 36 in that it caters to offenders charged with possession for personal use. It also offers greater flexibility to who might participate in the program as compared to other drug diversion programs.
Another difference between the Los Angeles drug court and other pretrial diversion programs is that you do not have to enter any plea to participate. This means that if you are a first time offender, you can “postpone” your arraignment.
However, if you have a prior conviction, or are charged with an offense higher than simple possession, you will have to take a guilty plea before you participate. Some of the services offered under the drug court program include:
- Group and individual therapy
- Drug education classes
- Educational or vocational training
- Drug tests
You must also comply with the additional requirements that the court might propose.
Choosing the right program might be complicated for you; therefore, contact an attorney for comparison and evaluation of the best program. The best program depends on the eligibility requirements, the circumstances of the current case, and your criminal history.
For example, you might qualify for both PC 1000 and Prop 36. In that case, you might first enroll in PC 1000 pretrial diversion program. If you fail, you will go through trial and may request Prop 36 as an alternative sentence.
Alternatively, you might go through the LA drug court program, and if you fail and are convicted, you might request diversion instead of incarceration.
Find a Drug Crimes Defense Attorney Near Me
Simple possession drug offenses that do not involve violence do not require incarceration. They are offenses that the criminal justice system can deal with by redirecting the offenders to a treatment program.
These treatment programs, usually called drug diversion programs, offer treatment and rehabilitation to offenders who can be helped without incarceration. Through these programs, an offender can deal with an underlying drug addiction, which also reduces recidivism.
If you are arrested for a possession charge in California, you can enroll in the proposition 36 program, which provides drug treatment and aftercare services. Such a program can help you avoid a conviction or incarceration.
Speak with the Los Angeles Criminal Defense Attorney to help you determine your eligibility for the program. Your attorney will also advise you on the benefits of enrolling in the program. Call our attorney at 310-564-2605 for questions and clarifications on matters concerning Proposition 36.
