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Practices - California Proposition 36

California Proposition 36 or "PROP 36"

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:

  1. Drug education classes,
  2. Outpatient services or residential treatment,
  3. Detoxification procedures or narcotic replacement therapy,
  4. Some sort of follow-up treatment or services.

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:

  1. Health and Safety Code 11377 and HS 11350 – Possession of a Controlled Substance
  2. Health and Safety Code 11550 – Being Under the Influence of a Controlled Substance

If you have been charged with a California drug sales crime, such as:

  1. Health and Safety Code 11351 – Possession for Sale of a Controlled Substance
  2. Health and Safety Code 11352 – Sale or Transportation of a Controlled Substance
  3. Health and Safety Code 11360 – Sale or Transportation of Marijuana (not for personal use)

You are generally not eligible for Prop 36.

Other drug crimes that are not eligible for Prop 36 diversion include:

  1. Health and Safety Code 11358 – Cultivation of Marijuana (even for personal use)
  2. Health and Safety Code 11370.1(a) – Possessing a controlled substance while armed with a loaded firearm
  3. Health and Safety Code 11368 – Forging a prescription to obtain controlled narcotics

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:

  1. Prior "Strike" Convictions – Those with prior violent felony convictions which qualify as a "Strike" under California's 3 Strikes Law are not eligible for Prop 36 sentencing unless it has been at least 5 years since you were released from prison, and either:

    1. Were convicted of a felony other than a nonviolent drug offense, or
    2. Were convicted of a misdemeanor that involved physical injury or threat of physical injury to another person.

    It is important to note that juvenile convictions, even those for violent felonies, are not legally considered criminal "convictions" and thus do not adversely affect Prop 36 eligibility.

    It is also important to note that a judge does not have the discretion to dismiss the offense or offenses that render you ineligible for Prop 36 sentencing.
  2. Simultaneous conviction of non-drug related misdemeanor or felony – Those who are convicted of both a nonviolent drug possession crime and a non-drug related misdemeanor or felony at the same time are not eligible for Prop 36. "Non-drug related" crimes are defined as crimes that do not involve:

    1. Possession of drugs or drug paraphernalia,
    2. Failure to register as a drug offender,
    3. Being present when drugs are used,
    4. Any other activity similar to a drug use or personal possession charge.

    Courts have held that DUI-Drugs is a "non-drug related" crime that precludes Prop 36 eligibility. Therefore, if you are convicted of both personal drug possession and DUI-Drugs at the same time, you are not eligible for Prop 36 sentencing.

    Unlike "Strike" cases, here a judge has the discretion to dismiss the simultaneous non-drug related charges, in order to make a drug offender Prop 36 eligible.

  3. Refusal of drug treatment,

  4. You were armed with a firearm or other deadly weapon at the time of the nonviolent drug possession offense,

  5. You have previously participated in 2 Prop 36 programs and the judge does not think a third would benefit you – If Prop 36 sentencing is denied for this reason, you will be required to serve a minimum 30 days in jail.

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.

  1. Plead guilty or "no contest" to a non-violent drug possession charge,
  2. Be convicted of a non-violent drug possession charge by a bench or jury trial,
  3. Commit a non-violent drug possession charge while on parole or violate a drug-related term of your parole.

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.

If you face drug charges and want an attorney to assist you in getting into a Prop 36 program or other California drug diversion program, contact the drug charge attorneys at the Law Offices of Pereira & Moffatt for more information.

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