Californians changed the way the state handles non-violent drug offenders by voting Prop 36, otherwise known as the Substance Abuse and Crime Prevention Act of 2000. Under the Act, eligible offenders face lenient penalties like drug treatment instead of incarceration. Not every individual who faces a drug charge is eligible for the sentencing program. However, when a conviction for a non-violent narcotics crime is inevitable, Proposition 36 sentencing is the most lenient outcome. The laws prescribing qualifications for the diversion are complex. At Monterey Criminal Attorney, we understand the complexity of the Act, which is why we have discussed the diversion program below.

Understanding Prop 36

Many first-time or second-time non-violent drug possession or use crimes stem from drugs or controlled substance use. Addiction pushes many people into committing drug-related crimes. Before the passage of Prop 36 in 2000, such addicts used to be sent to serve jail time after a guilty verdict.

Thankfully, the legal system has discovered a better way of helping convicts with substance abuse problems without having to incarcerate them. One of these programs is drug diversion, where you undergo rehabilitation, and once you complete the program, your charges or guilty verdicts are dismissed.

The court must approve the drug treatment you will enroll in, which includes:

  • Drug or alcohol treatment and education.
  • Inpatient and outpatient options.
  • Detoxification for alcohol addicts or abusers.
  • Replacement therapy for substance addicts.
  • Treatment services.
  • Aftercare services.

Alternative sentencing does not take away the fact that drug or alcohol rehabilitation programs exist in jails and prisons. Nevertheless, these programs are not a component of drug diversion. First- or second-time offenders who face counts like simple possession or narcotic use without violence are eligible for alternative sentencing instead of serving time. After undergoing treatment and rehabilitation, these offenders are less likely to repeat their offenses because, in the first place, they committed them due to their dependence on substances.

Just because there is no jail time for a non-violent narcotics or drug crime conviction does not mean that Prop 36 decriminalizes the sale, use, or simple possession of drugs. Instead, it gives individuals with dependence on these substances a chance to become clean and resume their everyday lives. The chances of the rehabilitated person engaging in drug possession or use are minimal, reducing the rate of these crimes.

Most drug-related crime convicts have a tough time behind bars when they have an addiction because of the withdrawal symptoms. These increase the risk of them committing additional crimes to acquire drugs. Besides, to avoid the withdrawal symptoms, these people find themselves deeper into the abuse.

Instead of punishing a convicted addict with more jail time, the best way to help them is through rehabilitation. That way, the chances of the person repeating the drug-related offense are minimal.

Apart from the benefits to the defendant, Prop 36 also benefits the justice system by reducing jail congestion and lowering the cost of operating these detention facilities.

You will benefit from drug diversion under Prop 36 if you belong to any of these categories:

  • When charged with first non-violent drug possession for personal use.
  • You are on parole after a guilty verdict for unlawful use or possession of drugs.
  • When you violate your parole by engaging in non-violent narcotics possession.

If you fall into any of these categories, the presiding judge can sentence you to probation and require that you enroll in a diversion program for no more than a year.

The conditions you must satisfy to qualify for diversion under Prop 36 are:

  • You were found guilty of a non-violent offense.
  • You lack a previous criminal conviction. Even if you have a conviction record, you qualify for diversion if it is more than 60 months after your discharge from prison for a non-violent narcotics or drug crime.
  • You are willing to adhere to the probation conditions, including enrolling in a drug treatment program.
  • You have not previously enrolled in the diversion program for two separate violations. It indicates you will be less likely to benefit from a third enrollment if you have one. The court evaluates your circumstances to establish if a third diversion will be beneficial.

You are unqualified for a diversion if your non-violent drug offense involves the manufacture, transportation, possession for sale, or cultivation of drugs. Others include:

  • Methamphetamine possession for sale.
  • Marijuana cultivation.
  • Controlled substance possession while possessing a loaded or operable gun.
  • Falsifying or forging prescriptions to acquire prescription medication.

Under these circumstances, you should speak to an experienced drug crimes attorney to compel the court that the violation was due to your substance or drug addiction. For example, a crime involving the sale of drugs is ineligible for diversion under PEN 1210. Nevertheless, if your actions were motivated by drug addiction, the court lets you engage in a drug diversion.

Prop 36 Non-Violent Drug Crimes

When arrested for a drug-related offense in California, you risk criminal counts and a possible conviction. Drug diversion provided under Prop 36 offers alternative sentencing to many drug offenders, but not all of them. Violations that are eligible for drug diversion rather than the standard penalties include:

  • Possession of drugs for own use and not for sale or distribution.
  • Abuse of addictive drugs, alcohol or medicine.

Non-violent drug offenses eligible for diversion include the illegal use or intoxication by drugs listed as controlled substances and possession or transportation of these substances for own use. These controlled substances include:

  • Peyote.
  • Cocaine.
  • Vicodin.
  • Codeine.
  • Ketamine.
  • Heroin.
  • Ecstacy.
  • Marijuana.
  • Methamphetamine.

Non-violent drug possession violations eligible for diversion under Prop 36 are:

  • Health and Safety (HS) Code 11377 and HS 11350 that criminalize any form of controlled substance possession.
  • HS 11357, which prohibits possession of not less than 28 grams of cannabis.
  • HS 11550, which criminalizes being intoxicated by controlled substances.

For instance, you had a long day at work, and you decided to buy some marijuana to smoke when you reached home. Upon arriving in your apartment, you put on some loud music and start smoking your cannabis. Unfortunately, your neighbors are unhappy with the loud music and call the police. After some time, you hear a knock, and you go to open the door while smoking the marijuana because you think it is your boyfriend knocking. To your surprise, you find police on the door and are arrested.

Under these circumstances, you will face charges for disturbing the peace and having or using drugs. Luckily, because you have no prior record and your conviction does not involve a violent narcotics offense, your defense attorney can compel the judge to impose an alternative sentence that does not involve jail time.

Nevertheless, when the marijuana found in your possession exceeds an ounce or you have equipment used for the sale or distribution of drugs, the crime will be severe. You are unqualified for alternative sentencing despite the absence of violence in the case. So, even when you cooperate with the investigators or do not resist arrest, committing a crime involving the sale or manufacture of drugs makes you ineligible for drug diversion. Violations ineligible for the alternative sentencing include:

  • HS 11351 prohibiting controlled substance possession for sale.
  • HS 11352 forbids the sale or transportation of controlled drugs unless they are for personal consumption.
  • HS 11360 criminalizes the transportation or sale of marijuana unless it is for one's own use.
  • HS 11359 prohibiting cannabis possession for sale.
  • HS 11378 and HS 11379 prohibit methamphetamine or other narcotics sale.

These drug-related violations do not involve violence. Nevertheless, because they involve the distribution or possession of narcotics for profit, they are severe and, therefore, ineligible for alternative sentencing under Proposition 36.

Other non-violent narcotics crimes that are ineligible for drug diversion because of their personal nature include:

  • HS 11358, which forbids marijuana cultivation unless it is for personal consumption.
  • HS 11370.1(a) makes it illegal to possess controlled substances with a packed or operable gun.
  • HS 11368, which prohibits falsifying or forging prescriptions to acquire drugs.

Other Restrictions on Qualification

Your charge or conviction could be eligible for diversion but still face the standard penalties that involve incarceration. The factors that make you ineligible for Proposition 36 even when your violation is eligible for the diversion include:

You Have a Previous Strike Conviction on your Record

If you commit a crime in California and are arrested, charged, or convicted, the criminal records become a reference point for the authorities. Therefore, if you have a prior guilty verdict for a severe or violent felony, you are unqualified for alternative sentencing unless the current non-violent drug-related offense happened not less than 60 months ago:

  • After you were discharged from prison.
  • After a guilty verdict for a misdemeanor crime involving bodily harm or a threat of bodily injury to the victim or a non-violent drug-related felony.

For instance, you were found guilty of a strike offense like robbery in 2000. You served your sentence and were released from prison in 2004 on good behavior.  Three years later, you are arrested for simple possession. The current crime is eligible for drug diversion. However, because it is only three years after release from jail for a violent felony, you are unqualified for alternative sentencing and will face the standard penalties for simple possession.

However compelling your attorney is, the judge has no discretion to terminate the disqualifying offense to make you qualify for diversion. Nevertheless, if the juvenile delinquency court handled the previous conviction, you will be considered for alternative sentencing even if the crime adds a strike to your record.

You Were Concurrently Convicted for a Misdemeanor or Felony Offense Not Related to Drug Use

It is possible to face two crimes simultaneously in a single hearing. A common offense is drug possession for own use, which is eligible for drug diversion, while the second crime is a misdemeanor unrelated to drug possession or a felony violation. You will be ineligible for the diversion when the two convictions happen simultaneously.

Non drug-related misdemeanors mean the violation did not involve:

  • Simple possession of controlled drugs or paraphernalia or use.
  • Being in a location where narcotics are commonly used.
  • Failure to enlist as an offender.
  • Any activity that resembles the possession or use of drugs.

You should know that under this factor, the judge can cancel or terminate the disqualifying additional charge unrelated to drug use to make you eligible for alternative sentencing under Prop 36.

Engaging in a Drug Offense with an Operative Firearm

The presence of a firearm when engaging in a drug-related crime alone disqualifies you from drug diversion as it is an aggravating factor. Your intentions with the gun are not relevant to the case.

You Declined Drug Treatment as a Probationary Term

Your violation could be eligible for alternative sentencing, but you could still opt for the standard penalties. The court cannot force you to enroll in drug treatment. So, if you decline to take part in the program, the court concludes that it will not be beneficial, thus disqualifying you.

You are a Two-Time Prop 36 Participant

You are unqualified or ineligible for diversion if you have undergone the program two times in the past. The fact that you face another charge or conviction for another eligible offense shows that previous rehabilitation attempts have been unsuccessful, and sending you to the program again will be unfruitful. Therefore, a third conviction means you will automatically face the standard penalties the law provides, including thirty days of mandatory jail.

Contesting the Charges and Participating in Drug Diversion

If you are eligible for Proposition 36, the judge will still sentence you to the diversion even if you contested the changes in trial but were convicted. You do not have to enter a plea deal with the prosecutor to qualify for the treatment. You can fight the charges to the end and have the charges dropped. However, even if the presiding judge finds you guilty in the trial if you qualify for diversion, they will sentence you under Prop 36 instead of the usual penalties for the violation. Your attorney will petition for alternative sentencing. After evaluating the motion, the judge will consider the prosecutor’s opinion on the diversion program and decide.

Prop 36 Probation Conditions

Before eligibility for alternative sentencing, you should:

  • Enter a guilty or no-contest plea to the drug charge in question.
  • Be found guilty of a non-violent narcotic possession offense in a jury or bench trial.
  • Be on parole for a non-violent crime.

Under Proposition 36, the judge can sentence you to probation or change your parole conditions, requiring you to finish a rehabilitation program. In the program, you should adhere to random drug tests, failure to which the probation will be revoked, and the initial standard penalties for the offense imposed.  Apart from random drug tests, the court can impose conditions including vocational training, therapy or counseling participation, and community labor.

So, when eligible for alternative sentencing, the court does not impose a mandatory jail term. Instead, you are sentenced to probation with strict probationary terms. When you break the probation terms, the court withdraws the probation and sentences you to the standard penalties for the baseline crime.

Instances that Lead to Probation or Parole Conditions Violation

When on probation or are a parolee, you must satisfy particular conditions. So, once you are enrolled in the treatment plan, you should adhere to its conditions because a violation attracts severe ramifications. Actions that amount to probation violation include:

  • Declined to engage in the said program.
  • Engaging in another crime while still on probation.
  • Declining to take part in community services.
  • Refusal to make court-imposed payments.

Being Unamenable to The Diversion Plan

Not every convict sentenced to a drug diversion program can benefit from it. Therefore, your probation officer evaluates the treatment progress to prepare reports on whether the plan is beneficial. If the officer feels the diversion is not helpful, they will indicate this in their report.

Once the parole board or probation department obtains the report, they schedule a probation or parole cancellation proceeding with the court. In the hearing, your attorney will argue that you did not violate the terms, so the program should not be canceled. However, if the judge's decision is not in your favor, the program will be revoked, and you will be sent to jail to serve the standard sentence for the baseline crime.

The factors the court considers to determine if you can benefit from the program are:

  • Whether you declined to engage in the program or requested to be excluded.
  • You continually violated the program’s conditions, hampering your capacity to comply with its terms.
  • You engaged in a severe offense of the conditions set by the drug rehabilitation facility.

 After these considerations, the judge decides whether to continue or revoke the treatment plan.

Prop 36 Ramifications for Breaking Parole or Probation Conditions

After a breach of the program’s conditions, the judge will likely let you continue with the drug treatment. You are allowed to continue with treatment if you break parole or probation conditions for a crime unrelated to narcotics possession or engage in a crime that is not a nonviolent narcotics possession. However, before the court allows you to continue the program, you will serve a compulsory thirty days in jail. If the judge or court decides to let you continue with the program, they will adjust the terms. The judge can also impose up to thirty days in jail to encourage you to comply with the program in the future.

If the judge chooses not to restore your treatment program, they will impose the standard penalties for the crime, which include incarceration and payment of hefty court fines.

Additionally, while on parole or probation, you could commit the following offenses, and the judge could revoke the program:

  • Breaking drug-related probation conditions.
  • Neglecting to enlist as a narcotics or drug offender.
  • Engaging in a misdemeanor drug use or possession violation.
  • Being present in a location associated with drug use.

After any of these violations, the court arranges a proceeding to decide whether to retain or revoke your program. A revocation happens when the prosecutor proves with a preponderance or majority of evidence that you threaten society’s safety.

If the decision is to reinstate the program, they will sentence you to compulsory two days of jail incarceration to encourage compliance with the term. When the violation relates to substance use, the judge can recommend residential treatment or incarceration in a jail with a detox center.

Note that a second contrevention will result in a revocation if it is proved that you are unamenable to the treatment or a threat to society’s safety. In the event of reinstatement, you will serve a mandatory 120 days of incarceration. You will not qualify if the violation was for a parole program.

A third contravention will also cause a hearing, although the judge will disqualify you from drug treatment if you put society’s safety at risk or cannot benefit from the diversion.

Successful Prop 36 Completion

Once you complete the diversion program under Prop 36, you can request the court, through your attorney's help, dismiss the guilty verdict. If the judge is satisfied you have completed the program and satisfied all the probationary conditions, the conviction will be overturned, and the charges will be dropped.

Successful completion means you have enrolled in and completed the drug rehabilitation or treatment program as required by the treating facility and judge. Completing the programs sends the message that you will not engage in crime because of substance abuse or addiction. From what you have heard, you could assume that completing the treatment is straightforward. However, many convicts do not complete the treatment.

When your petition is accepted, the judge expunges the record after dismissing the case. With the record erased, you can comfortably say you have no criminal record. Also, people who run background checks like employers will not find any criminal record for the expunged crime, increasing your chances of finding employment.

Find a Competent Drug Offenses Attorney Near Me

When an offense for simple drug possession does not involve the use of violence, a conviction does not result in jail time. Instead, the court sentences you to drug treatment under Prop 36, where you receive treatment and rehabilitation for the drug addiction. Diversion is the most lenient punishment for a drug offense conviction and also helps you fight drug abuse, which is usually the one that encourages you to commit a crime. If you want to know whether you are eligible for the plan, contact the Monterey Criminal Attorney at 831-574-1791 to evaluate your case.