California voters in the November 2000 election passed California Proposition 36 or "Prop 36". It requires that non-violent drug offenders who meet the standard of eligibility serve their sentence in an approved drug treatment program instead of in a county jail or state prison.
At the Law Offices of Pereira & Moffatt, our drug charge criminal defense attorneys are experienced in getting clients accused of drug charges into treatment programs such as those authorized under Prop 36. We believe that alternative adjudication systems like Prop 36, Drug Court, and PC1000 "Diversion" can both provide much-needed treatment and rehabilitation for drug addiction. Furthermore, these alternative systems of adjudication keep clients accused of drug charges out of the traditional criminal justice system, where no such treatment options exist.
What is Prop 36?
Prop 36 is contained with CA Penal Code 1210 and 1210.1. It is one type of "drug diversion". We refer to programs that offer treatment and rehabilitation instead of incarceration as "diversion" programs, because these programs divert the accused away from the traditional criminal justice system towards alternative systems designed for those with substance abuse problems.
A court-approved drug treatment and rehabilitation program will typically include the following:
Prop 36 requires that those convicted of first or second-time nonviolent drug possession charges receive up to 12 months of treatment in lieu of incarceration. It also prohibits incarceration, as a term of probation or parole, unless a violation of probation or parole occurs.
How is Prop 36 different from PC1000 "Diversion" or "Deferred Entry of Judgment" ("DEJ")?
Penal Code 1000 "Diversion" or "DEJ" is a program exclusively for first-time offenders. Furthermore, drug offenders are not eligible for Prop 36 if there is a simultaneous non-drug related charge with the underlying drug charge. PC1000 "DEJ" has no such limitation.
Am I eligible for Prop 36?
Prop 36 is designed to help those who are addicted to all types of drugs. These drugs include marijuana, cocaine, heroin, "ecstasy", methamphetamines, PCP, and prescription drugs such as codeine and hydrocodone or "Vicodin".
Prop 36 is designed to help those who are charged with personal possession crimes. Those crimes include:
If you have been charged with a California drug sales crime, such as:
You are generally not eligible for Prop 36.
Other drug crimes that are not eligible for Prop 36 diversion include:
Even if you have been convicted of a qualifying drug possession offense, you may still be disqualified from Prop 36 diversion. The court will consider the following in determining eligibility:
If I am found eligible for Prop 36 sentencing, can I still fight my case and remain eligible?
Yes! If you wish to fight your case all the way through trial, your Prop 36 eligibility is not affected even if a jury finds you guilty.
How do I receive a Prop 36 sentence?
There are three ways to be sentenced under Prop 36.
The judge will place you on probation (or in the case of #3, modify the terms of your parole) with the requirement of successfully completing a drug treatment and rehabilitation program as one of the terms of probation/parole.
Unless you violate the terms of probation, including failing to complete a treatment program, the court is prohibited from sentencing you to jail or prison time under Prop 36.
What happens after I complete a Prop 36 drug treatment program?
Once you have successfully completed your Prop 36 drug treatment program and all other terms and conditions of your probation, you may petition the court to dismiss your conviction.