Drug crimes carry severe punishment in California, including hefty fines and a possible jail term or imprisonment in state prison. A drug charge could arise from manufacturing, distribution, simple possession, and dealing with illegal or controlled substances like cocaine. However, according to Penal Code 1000 of the California law, if you are charged with a non-violent drug crime, you could participate in a pretrial diversion program instead of a jail term. A pretrial diversion is a great way to avoid potential penalties associated with convictions for drug offenses. In addition, the diversion could help you reform if you are a drug addict or have a drug use disorder.
If you are charged with a non-violent drug crime, you need to consult a criminal defense attorney since not everyone is eligible for a pretrial diversion. At Riverside Criminal Defense Attorney Law Firm, we have helped thousands of clients facing drug crime charges avoid jail terms through drug diversion programs. Our experienced attorneys will review your charges' to determine if you qualify for a pretrial diversion.
Drug Offenses In California
Over time, the public perception of the word ‘’drug’’ has changed in California, particularly after the amendment of the laws that allow medical and recreational marijuana use. Before the amendment of this law, you could face drug charges when you least expected. For example, you could face drug charges for simple possession of a controlled substance like marijuana, even if you had no intention of distributing or selling it.
The prosecutor could charge you with a misdemeanor or a felony, depending on the drug’s nature and your criminal history. For instance, possession of controlled substances for personal use could be a misdemeanor crime, while trafficking or transportation could be a felony crime. If there are aggravating factors surrounding the alleged crime, drug charges could be severe, mainly if you use weapons or violence while committing a crime.
Since January 1, 2018, defendants charged with misdemeanor drug offenses could avoid a jail term and fines by engaging in a court-approved rehabilitation program known as ‘’pretrial diversion’’. A pretrial diversion for drug crimes enables a defendant to recover from drug addiction while undergoing an approved drug treatment program rather than serving a jail term. A pretrial diversion for drug crimes also assists in relieving congestion in prisons for some petty offenses.
Pretrial Diversion Program Evolution
The former pretrial diversion law has since undergone an evolution that has given birth to the current pretrial drug diversion for drug crimes. Initially, it used to be known as ''Deferred Entry of Judgment (DEJ)’’ according to California Penal Code 1000. As outlined by the Narcotic Addicts and Rehabilitation Act, Congress in the U.S. adopted a statute to give defendants facing non-violent drug crime charges an opportunity to change and recover from drug addiction.
Those charged with non-violent drug crimes in California have participated in drug rehabilitation programs since 1971 instead of serving a jail term. However, you had to plead guilty to the alleged charges to qualify for a deferred entry judgment for a non-violent drug crime charge. If you completed a court-approved rehabilitation program, the judge presiding over your case would seal and clear your arrest records. However, you would remain guilty if you failed to obey the proposed probation conditions or failed to complete the rehabilitation program.
The drug diversion laws have been slightly more favorable since January 1, 2018. Most defendants feel more comfortable with drug offense charges after the passage of the law on pretrial diversion that replaced the laws on deferred entry of judgment. The good news about this new drug diversion statute is that you do not need to plead guilty to the drug charges you are accused of to be eligible for rehabilitation treatment instead of a jail term.
Once you complete the court-approved drug treatment program, your case is sealed and dismissed. After sealing or expungement of your charges, you will not need to disclose your drug crime charges to your future employers unless you seek a job in the police force. The new drug diversion program's primary purpose is to assist you in coming back to sound health and drug-free life. Therefore, if you are under arrest for any eligible drug crime, you should not hesitate to take a drug diversion program.
Crimes That Qualify For Diversion Under Penal Code 1000 In California
The crimes that qualify for participation in PC 1000 pretrial diversion are:
- Possession of toxic substances for ‘’huffing’’— Penal Code 381
- Lewd conduct related to being under the influence of a controlled substance — Penal Code 647 (f)
- Soliciting someone to commit a crime to facilitate the defendant’s personal use of narcotics —Penal Code 653f
- Possession of a controlled substance— HS 11350
- Possession of drug paraphernalia — HS 11364
- Aiding or abetting the use of an unlawful controlled substance — HS 11365
- Possession of or using a forged prescription to obtain drugs for personal use— HS 11368
- Illegal possession of certain prescription sedatives— HS 11375 (b) (2)
- Possession of meth for personal use — HS 11377
- Being under the influence of a controlled substance —HS 11550
- Possessing an open container of cannabis in a motor vehicle — VC 23222 (b)
Penal code 1000 covers the following controlled substances in California:
- Prescription opioids like codeine and hydrocodone
- Certain hallucinogenic substances, like phencyclidine (PCP)
Additionally, for you to qualify for pretrial diversion under PC 1000, the following must apply:
- You must not have faced a charge for any crime related to a controlled substance other than the crime for which you face charges within five years of committing the crime.
- The charges you face do not relate to a crime of threatened violence or violence.
- No proof of simultaneous violation involving restricted dangerous drugs or narcotics other than a violation of the crime listed in the law
- You had no prior felony conviction within five years before committing the current drug crime.
How You Could Get Referred To Pretrial Diversion
The prosecutor will review your case first to determine your eligibility for the pretrial diversion program. The prosecutor will guide you and your attorney in writing if you qualify for the program. The written notification of possible qualifications from the prosecutor will include:
- The full details of the steps to follow while applying for a pretrial diversion
- The general explanation of the authorities and roles of the prosecuting attorney, the probation department, the court, and the program
- A statement highlighting the consequences of failure to complete the proposed pretrial diversion program
- A detailed statement that highlights what you must meet to proceed with the proposed pretrial drug treatment program. To proceed with the program, you have to plead not guilty to the charges and waive your legal rights to a speedy preliminary hearing, a speedy trial, and a trial by the jury.
Once you decide to undergo a drug diversion program, you must complete all the allocated courses within the required period. Often, the court-proposed drug treatment program will include the following:
- Drug treatment
- Alcohol treatment
- Victim compensation
- Additional relevant classes
The probation officer will supervise you during the treatment process to ensure that you adhere to all the pretrial diversion requirements. You need to be careful because the court presiding over your case could decide to terminate your program under the following circumstances:
- Failure to take a drug test
- Conviction of any crime that shows a tendency for violence
- If there is a violation of the requirements of the pretrial drug treatment program
- Conviction of any felony crime during treatment
- Failure to participate in the proposed drug diversion program
The consequences resulting from termination of a pretrial diversion are unbearable. Therefore, it is essential to complete the proposed program without violating the treatment requirements. If you are under arrest for any drug crime, you should also avoid giving up on your right to engage in a pretrial diversion. Let the judge handling your case, and your criminal defense attorney decide whether you qualify for the program before giving in to the alleged charges. A pretrial diversion for drug crimes would favor your case to avoid the potential penalties resulting from a conviction for the drug crime.
Additionally, the probation officer could determine whether you qualify for the pretrial diversion for drug crimes. However, before the probation officer commences their duty, the court would first stage a hearing to determine whether you are eligible and consents to the program. The court, at its discretion, would authorize the probation department to investigate your case before making its determination. The probation officer carrying out the investigation would consider the following:
- Your age
- Your treatment history, if any
- Community and family ties
- Employment and service records
- Demonstrable motivation
- Prior controlled substance use
- Your educational background
- Other mitigating factors
It is important to note that your statements to the drug treatment worker or a probation officer during the investigation are not admissible to prove your original charges. The court and the probation department will use your information solely to determine whether you would benefit from rehabilitation, education, or treatment. The probation officer involved in the investigation will guide the court on the appropriate programs that will help you.
The court will decide what type of rehabilitation, education, or treatment would be appropriate for you. You will also have an opportunity to consent to participation in the diversion program. If you agree to do so, you will plead "not guilty" to your charges and complete a speedy trial, a speedy preliminary hearing, and a trial by the jury.
After the process is completed, you will be allowed to participate in the drug treatment, and the court will dismiss any bail bond or other deposit. The probation department will file progress reports with the court as treatment progresses. The reports will assist the court in determining your continued eligibility under PC 1000. If the court decides that a pretrial diversion is inappropriate or you do not want to participate in the program, the proceedings in the original drug charges will continue. Your right to a speedy pretrial hearing, speedy trial, and trial by the jury will be preserved.
How Pretrial Diversion Programs Work
The pretrial drug diversion you register for must offer services at no cost. The county drug program administrator and the court must approve the program as credible and effective. The drug treatment provider must be certified by the county drug program administrator according to chapter 1.5 of Title 8 of the California PC 1211. You could also enroll in a treatment program in other states or countries so long as the program meets the court’s basic requirements or criteria.
You will be required to pay a diversion restitution fee to the court. The fee will cover a portion or all the reasonable expenses of any pre-plea investigation or probation supervision and report. The court will impose a diversion restitution fee and any other administrative fee allowed or required by the law. You will pay the diversion restitution fee that does not exceed $1000 but is not less than $100. The court, at its discretion, will determine the amount, taking into account all critical factors like:
- Your ability to pay
- The extent to which another person suffered any loss resulting from your crime
- The severity of the crime
However, the fee will not exceed the actual average expense of the service you are provided for. The court will charge a minimum fee of $100 regardless of your apparent ability to pay. Fortunately, the court will also waive the imposition of the fee if you show extraordinary and compelling reasons.
You will have to take drug tests occasionally during the treatment, often through urinalysis, according to California PC 1000. However, the urinalysis outcome cannot create new criminal charges against you. Therefore, to avoid termination of the pretrial diversion, you must comply with the treatment program. The drug tests are meant to ensure that you adhere to the California PC 1000 requirements.
If you are addicted to narcotics, a licensed healthcare provider will order some particular drugs to handle withdrawal symptoms. These drugs could include Buprenorphine, methadone, and Levo Alpha Acetylmethadol. You will not create grounds for termination of your pretrial diversion if you use the above drugs.
However, if you fail to comply with the general requirements of the treatment or the drug test requirements, your program could be terminated. After the termination, you would have to face the process of court prosecution. The prosecution process could cost you fines and a jail term, negatively affecting your reputation because the conviction will remain on your criminal record unless you expunge it.
Other Alternative Drug Diversion Programs In California
In addition to pretrial diversion PC 1000 in California, the state has other optional drug diversion programs in which you would qualify to participate rather than serving a jail term. The programs include:
California Drug Court
If you are not eligible for pretrial diversion in California, you could qualify for drug court. A drug court in California is a diversion program for defendants under lawful representation by civil defenders. Penal Code 1000.5 of the California law defines requirements for undergoing a drug court treatment program. If you are eligible for this diversion, the court demands that you perform the following:
- Participate in vocational and educational counseling
- Satisfy other court requirements that would be beneficial to your case
- Participate in the relevant drug education classes
- Meet with the probation officer regularly
- Attend school
- Seek or maintain your job or employment
- Submit drug testing results periodically
- Participate in group or individual counseling
If you complete a drug court treatment program, the judge presiding over your case will expunge and dismiss your charges from your criminal record. However, if you fail to comply with the drug court diversion program requirements, the judge will dismiss the program and recommend harsher penalties.
The L.A. County Drug Court Program
The Los Angeles County Drug Court Program, was effected in 1994. It gave non-violent offenders with severe substance use disorders a chance to register for a drug treatment program rather than serving a jail term. This program is not accusative, and it has earned its success because of collaborating with prosecutors, drug treatment providers, probation officers, judicial officers, and defense lawyers. The Los Angeles County drug court offers drug treatment and recovery services. However, the services offered depend on the defendant's drug addiction severity.
At least 70% of the L.A. drug court program graduates remain conviction-free five years after graduating. However, the number is slightly lower than the recidivism rate for similar people who fail to register for a drug court program.
Additionally, the L.A. drug court program has two juvenile drug courts, 12 traditional drug courts, and other specialized court programs staffed by the L.A County Public Defender based on the drug court model. The specialty courts include:
- Sentenced Offender Drug Court
- Women’s Reentry Court
- Project STAR
- Adult Drug Court
- Co-Occurring Disorders Court
- Juvenile Drug Court
- Veterans Court
- Homeless Alternative (HALO) Mental Health Court
California’s Proposition 36
As with a pretrial diversion, California Prop 36 is also a drug diversion program you could participate in rather than serving a jail term. The Penal Code 1210.1 of the California law defines the requirements and laws for qualifying for the Prop 36 diversion program. The only differences that exist between Prop 36 and pretrial diversion include:
- In a Prop 36 case, the judge has the discretion to determine whether or not to dismiss your charges. Once you complete your pretrial diversion, your charges are automatically dismissed.
- Penal code 1000 covers a variety of drug-related offenses. For example, eligible crimes include forging a prescription for personal use and unlawful cultivation of marijuana for personal use.
- In Prop 36, you need a guilty plea, after which you would be placed on formal probation and subjected to several additional terms and conditions.
- You would qualify for pretrial diversion if you had severe prior felony crime, but you would not be eligible for Prop 36.
Military diversion allows the judge to postpone criminal proceedings for misdemeanor offenses while you receive treatment for drug abuse or other mental health issues like sexual trauma or PTSD. The judge will dismiss your charges once you complete the military diversion program. Your arrest will be deemed to have never happened.
‘’Back On Track’’ San Francisco Program
The San Francisco court system provides a ''back on track'' program unique from the other pretrial diversion programs. This pretrial diversion program is specific to:
- Defendants arrested for first-time non-violent, low-level drug sales charges — It covers the charges related to possession of fewer than five grams of controlled substances.
- Defendants who are 18 to 30 years of age
Unfortunately, ‘’back on track” is very rigorous. Eligible defendants must complete a six-week screening program that includes 120 hours of community service to show their commitment to the program. Once you complete a six-week screening program, you have to plead guilty to the charges, and your sentence will be postponed for one year.
If you are charged with a new drug offense, your program will be terminated immediately, and the judge will impose a sentence. However, if you complete the program successfully, your charges will ultimately be dismissed. ‘’Back on track’’ pretrial diversion program is tailored to a person’s needs and will include the following:
- Securing full-time employment
- Attending counseling or therapy
- Obtaining a high school diploma
- Seeking stable housings
- Enrolling in a city college
Find A Criminal Defense Attorney Near Me
An arrest for any simple drug possession crime in California could ruin your reputation and life. A pretrial diversion for drug crimes gives you a chance you would not want to miss. You will be on your way to having your charges dismissed upon completing pretrial drug treatment. Usually, after completing the program, the judge presiding over your case entirely seals and dismisses it. At Riverside Criminal Defense Attorney Law Firm, we offer unmatched legal guidance. Our experienced criminal attorneys will help you understand a pretrial diversion program for drug crimes. We will also help you to determine whether you qualify to participate. Contact us at 951-946-6366 and talk to one of our attorneys.