In 2000, California voters approved the Substance Abuse and Crime Prevention Act of 2000, to allow eligible drug-crime convicts to enter treatment programs instead of serving jail time. Also known as Proposition 36, or Prop 36, the statute is an initiative for criminal sentencing to allow people who commit non-violent drug offenses to be on probation and treatment instead of imprisonment. The enactment of Prop 36 was a permanent change to state law to ensure that individuals are not placed in custody due to addiction and to control the staggering addiction cases across California. Prop 36 is especially beneficial for a large number of first offenders. It provides an opportunity for numerous people to quit drug use and become productive in society.
California has made drastic changes to drug crimes within the past decade. Recreational use of marijuana is legal, and the options of probation or treatment are more to avoid the severe consequences of a conviction for a drug crime. However, trafficking or selling of drugs and possession of large amounts of controlled substances remains a criminal offense. The penalties can be stiff depending on your criminal history, where the crime occurred, and the quantity of the controlled substance. If you are facing charges for drug crimes, you should consult the Orange County Criminal Lawyer. We will evaluate your case and defend you aggressively. We have the requisite competence and experience to represent you and possibly have the ruling delivered in your favor.
How Proposition 36 Sentencing Works
Prop 36 requires you to plead guilty to your drug charges, with the knowledge that you will get a dismissal if you complete a drug treatment program. The judge will suspend your criminal trial and place you on probation. When California ratified Prop 36, most drug crimes were felonies, which made many people capitalize on Prop 36 and complete treatment. With the enactment of Prop 47, many drug crimes are misdemeanors, and with it came the reduced possibility of long incarceration periods. However, Prop 36 offers the opportunity for charge dismissal.
In Sections 1210 and 1210.1 PC, California’s Penal Code describes Prop 36 as one among different forms of drug diversion. Section 3063.1 PC also refers to Prop 36 because it relates to parolees. Drug diversion is a practice that allows you, if eligible, to obtain a dismissal of your drug-crime charges or conviction if you complete a court-approved treatment program. These are programs that include at least one of the following services:
- Drug education
- Narcotic replacement therapy or detoxification services
- Residential treatment or outpatient services
- Aftercare services
Court-approved treatment programs do not include drug rehabilitation programs offered in jail facilities or prisons.
Prop 36 specifically changed California law, which now requires that if you are a first or second-time defendant convicted of a non-violent drug possession crime, you receive substance abuse treatment for a maximum of 12 months instead of serving time in prison or jail. If necessary, the court can extend the treatment period by six more months, but not more than two times. Additionally, Prop 36 applies if you are a parolee, and you commit a non-violent drug possession crime in violation of your parole. In most cases, if you commit such a crime or violate a drug-related parole conditions, you will not be sent back to prison. Instead, you will have to take part in a drug-related treatment program.
Under Prop 36, you commit a non-violent drug possession offense when you unlawfully do either or both of the following:
- Use or are under the influence of a drug included in the United States Controlled Substances Act
- Transport or possess any of the narcotics for personal consumption
The drugs include, but are not limited to:
- Ecstasy (“X”)
- Gamma-hydroxybutyric acid ("GHB")
- Ketamine ("Special K")
- Hallucinogens like phencyclidine ("PCP")
- Some types of prescription medications such as hydrocodone ("Vicodin") and codeine
You can also use the provisions of Prop 36 if you do not complete PC-1000, a less rigid drug diversion program. An incomplete PC-1000 can occur if you fail mandatory drug tests or if you acquire new drug charges. Prop 36 offers the advantage that if you are eligible, you can still do the program after a conviction at trial. You can take your case to trial and push for your acquittal. If the verdict is “not guilty,” your lawsuit is over. If you get a conviction, you can do Prop 36 instead of serving jail time.
If you are a personal drug user, Prop 36 restricts the discretion of the court to send you to jail for non-violent drug possession offenses. Additionally, the statute prohibits the probation department from automatically sending you to jail if you violate probation. If the court convicts you on drug possession charges, the judge must allow probation and order you to join and finish a drug treatment program. Therefore, the court cannot prescribe a prison or jail sentence unless you violate probation, refuse treatment, or fail to complete the treatment program.
Eligibility for Prop 36
To determine your eligibility for probation under Prop 36, California’s definition of a “non-violent drug possession crime” is the unlawful possession for private use, transportation for private consumption, or individual consumption of a controlled substance. This definition lumps many drug users into this category, except if your conviction is for possessing for sale, transporting, selling, manufacturing, or producing narcotics. You are eligible for the program provided the drugs are for personal use.
Offenses that qualify as non-violent drug possession crimes include, but are not restricted to:
- Health and Safety Code Sections 11377 HS and 11350 HS: The laws prohibiting personal possession of any controlled substance
- Health and Safety Code Section 11357 HS: The statute that outlaws possession of less than an ounce of marijuana
- Health and Safety Code Section 11550 HS: The code that you violate when you are under the influence of any controlled substance
Other Restrictions on Eligibility
When the court convicts you for a non-violent drug possession crime, you do not automatically qualify for a Prop 36 sentence. Under Section 1210.1(b) PC California's Penal Code, you are ineligible for Prop 36 sentencing if:
- You have a Prior “Strike” Conviction
If you have a previous conviction for at least one grave or violent crime, one that qualifies as a strike under California’s “Three strikes” law, you do not qualify for a Prop 36 sentencing. An exemption is only possible if your qualifying non-violent drug possession crime occurred a minimum of five years after:
- Your last release from prison, and
- Your conviction was for a misdemeanor involving a threat or actual physical injury of another person, or a felony except for a non-violent drug possession crime
If your ineligibility arises from this rule, the judge cannot dismiss the crime or crimes that make you ineligible. Other than that, juvenile judgments do not count as criminal convictions. Therefore, any cases settled by a juvenile court, including violent or grave felonies, will not hinder your eligibility for a Prop 36 sentence.
- You got a Simultaneous Conviction for a Non-drug Related Felony or Misdemeanor
You are ineligible for a Prop 36 sentence if your court proceedings for the qualifying non-violent drug possession crime was in addition to:
- A felony, or
- A misdemeanor unrelated to drug use
Misdemeanors “not related to the use of drugs” are misdemeanors that do not involve:
- Being present where people use drugs
- The simple use or possession of drugs paraphernalia or drugs
- Failure to list your name in the drug offenders register
- Any activity that is similar to the offense of personal possession or simple use
Unlike the rule on prior strikes, the judge can dismiss this category of additional charges to make you eligible for Prop 36 sentencing.
- You were Carrying a Deadly Weapon or Firearm at the Time of Committing the Non-violent Drug Possession Offense
You do not need to have used the weapon to injure or attempt to harm anyone. All that matters is that you had a deadly weapon or gun in your possession.
- You Decline Drug Treatment as one Condition for Probation
Undertaking drug treatment is a requirement for Prop 36 sentencing. Declining will automatically disqualify you.
- You were a Participant in Two Previous Prop 36 Programs
You do not qualify to join another Prop 36 program, and you will also serve a minimum 30-day sentence in jail if you have two previous and separate sentences for non-violent drug possession crimes and:
- You received Prop 36 sentencing for both crimes, and
- The judge believes you are amenable to further drug treatment
Crimes Exempted From Prop 36 Sentencing
Crimes that California laws do not consider as non-violent drug possession offenses do not qualify for Prop 36 sentencing. These include convictions for offenses related to the manufacturing and sale of drugs. You are not eligible for a Prop 36 program if you violate any of the following laws as defined in California’s Health and Safety Code:
- Section 11351 HS: The law prohibiting the possession of any controlled substance to sell
- Section 11352 HS: The statute that outlaws the transportation or sale of controlled substances except if your conviction is for transporting drugs for private use
- Section 11360 HS: The law against the transportation or sale of marijuana, except when your conviction is for transporting marijuana for your private consumption
- Section 11359 HS: The statute that prohibits the possession of marijuana for sale
- Section 11378 HS: The state law that criminalizes the possession with intent to sell methamphetamine and other controlled substances that the law considers “less serious”
- Section 11379 HS: The code that prohibits the sale or transportation of methamphetamine
Additionally, a conviction for drug possession during incarceration will disqualify you from Prop 36 sentencing.
Other Prop 36 Exempt Crimes
California courts have held that some offenses are ineligible for Prop 36 sentencing because their activities surpass simple possession, personal transportation, or use. Various sections of the Health and Safety Code prohibit these offenses:
- Section 11358 HS: This code forbids the cultivation of marijuana, even for private use
- Section 11370.1(a) HS: This law proscribes the possession of controlled substances, while you are carrying a loaded, operable gun
- Section 11368 HS: This code forbids forging or using a falsified prescription to acquire drugs
Prop 36 Probation
You must meet one of the following conditions to receive Prop 36 probation.
- Plead “no contest” or guilty to a charge for non-violent drug possession
- Get a conviction for such a crime following a jury or bench (judge) trial
- Be a parolee, meaning you are out of prison on parole. During your probation, you either breach a drug-related condition of your parole, or you perpetrate a non-violent drug possession crime.
The judge will place you on probation or modify your parole, with an order that you successfully attend a drug treatment program, including drug testing. If necessary, the court will impose additional parole or probation terms such as engaging in
- Family counseling
- Community service
- Vocational training
However, the court cannot legally impose incarceration except when you breach the conditions of probation.
Consequences of Violating Parole or Probation
If you breach the conditions of your parole or probation, the penalties will depend on your specific violation. Probation violation occurs when:
- You are Amenable to Drug Treatment
If your treatment provider thinks that you cannot benefit from any drug treatment, the parole board or probation department may petition for a parole revocation or a probation violation hearing to revoke your parole or probation. If, during that hearing, the judge concurs with the parole or probation officials, the court may sentence you to incarceration for your convicted offense.
Before ruling on whether you are amenable to treatment, the court will consider whether you:
- Committed any serious rule violation at the treatment center
- Repeatedly breached the rules of the program in a manner that impedes your ability to benefit from the program, or
- Consistently refuse to take part in or have requested to be released from the program
- You Violate your Parole or Probation Terms
Under most conditions, the court will still allow your participation in a Prop 36 program even after you breach your parole or probation terms. If your parole or probation is for another offense except for a non-violent drug possession crime, the court may imprison you for a maximum of 30 days if you either:
- Breach a non-drug related term of your parole or probation, or
- Commit a crime that is not a non-violent drug possession offense
During your incarceration, the court will decide whether to restore your terms. If the court restores your parole or probation, it may adjust the terms it regards as necessary, including your treatment plan. The judge may, additionally, sentence you to a maximum of 30 days in jail as a penalty to persuade you to comply with drug treatment in the future. If the judge rules against reinstating your parole or probation, you will receive a sentence for the underlying crime(s).
Concerning non-violent drug-related crimes, you violate parole or probation when you:
- Commit a non-violent drug possession offense
- Commit a misdemeanor involving the use of drugs or the possession of drug paraphernalia or drugs
- Are in a locality where people use drugs
- Fail to record your name in the drug offenders register
- Violate a drug-related term of your probation including counseling, drug treatment, vocational training and employment
The court will schedule a hearing to decide whether to revoke your parole or probation. It must revoke the parole or probation if the prosecutors prove by a preponderance of the evidence, meaning you are more likely than not to pose a risk to society. If the court restores your probation, the terms may be more rigid and include a consecutive jail term not exceeding 48 hours to encourage you to comply. If your violation was due to recent drug use, you might have to go to a residential treatment center or a jail with “detox” services.
The same procedure will apply if you violate your parole or probation for a second time. However, for a second breach, the court will annul your parole or probation if the prosecutors prove that you are either:
- Amenable to treatment
- A threat to society
If the court reinstates your probation, you may serve up to 120 days in jail to motivate you to comply. If it finds you liable for violating parole, you become ineligible for a Prop 36 sentence, and you serve time behind bars.
A third or a successive parole or probation violation also initiates a hearing. The court will terminate your probation and make you ineligible for Prop 36 programs unless it has sufficient proof that:
- Further treatment would benefit you
- You pose no threat to society
If the court terminates your probation, it will sentence you for the underlying offense, a sentence that may include incarceration.
Dismissal of Charges
The court does not automatically dismiss your charges after you complete your Prop 36 sentence. Therefore, you may be eligible for dismissal, but the charges remain in your criminal record. Consequently, you may experience challenges in finding employment, educational loans, or housing. Fortunately, if you complete your Prop 36 sentence, you can file a petition in court and request for dismissal of your case.
After your petition to the court for dismissal of charges, the court will schedule a hearing to review the request and determine whether to grant or deny it. Provided that the judge concurs that you have completed your treatment and considerably complied with your probation terms, they must annul and dismiss your lawsuit. Completing your drug treatment program means that you finish the course of treatment that your treatment provider recommended and for which the court issued an order. It also indicates that the court reasonably believes that you will not resume abusing controlled substances. While it may sound easy, only close to a third of the people who enter the program usually complete it.
Under California expungement laws, after the court expunges your charges, you are free of all disabilities and penalties arising from the crime, but with a few exceptions. A dismissal means that the court dismisses the charging documents, and deems the arrest and conviction as having never occurred. You can, therefore, apply for housing, jobs, and other services or programs, and legally state that you do not have a record of arrest or conviction for the crime that triggered your drug treatment.
Exceptions to Disclosing a Prop 36 Drug Conviction
After the dismissal of your charges, the court will generally act as if you never had such a conviction, but there are two exceptions.
- Dismissal under Section 1210.1 PC of the Penal Code does not allow you to possess, own or have in your control or custody a concealed weapon. There are legal avenues to clear this restriction if you plan to purchase a firearm lawfully.
- The dismissal does not relieve you of the requirement to disclose your arrest and conviction in:
- Any application or questionnaire for public office
- Response to a law enforcement inquiry or in an application for a peace officer
- A request to local or state agencies that contract with the California State Lottery
- Any matters relating to service as a member of a jury
If you plan to get a license, disclosing the conviction is critical. Although that conviction cannot be a basis to deny you a certificate, a permit, a benefit, or employment, licensing agencies may deny you a license if you do not disclose the drug crime. If you need licensing to become a doctor, nurse, teacher, real estate agent, a contractor, a notary, or a lawyer, you will not get the license unless you adequately disclose the conviction.
If you are unsure of the dismissal, you should contact your lawyer. The Department of Justice may still show the conviction on your record even when you believe it was dismissed. Your attorney will take the necessary action to ensure that the dismissal reflects in your criminal record and possibly help you restore your gun rights.
Contact a Criminal Lawyer Near Me
A conviction for a drug crime can last in your criminal record for a long time and deny you significant opportunities, including your dream job. Fortunately, if you are facing drug crime charges in a court within Orange County, CA, you can consult a skilled, dependable attorney at 714-262-4833. We at the Orange County Criminal Lawyer are conversant with Prop 36 and will fight for your rights effectively. We will work towards a possible dismissal of your charges and potentially give you a life free of any evidence of a past conviction.