The Substance Abuse and Crime Prevention Act of 2000 is also known as Proposition 36 or Prop 36. It is an alternative sentencing program for drug offenders that allows them to enter mandatory drug treatment programs instead of spending time behind bars. California voters passed the Act on 7th November 2000, and the alternative sentencing law took effect in July 2021. If you face charges for a drug offense, we invite you to contact Riverside Criminal Defense Attorney Law Firm. We understand the complex and technical eligibility criteria for Prop 36 and can help you understand your legal options better.
Under Prop 36, drug offenders can seek drug rehabilitation instead of facing imprisonment. However, the Act is pretty specific when defining the defendants and the nature of offenses covered under the diversion program. We can evaluate your case and potentially save you from jail time by enrolling you in an alternative sentencing program.
California’s Proposition 36 Defined
Proposition 36 is a type of drug diversion program. Eligible drug offenders can have their charges or convictions dismissed upon completing a court-approved drug rehabilitation program.
Essentially, the Act aims to give thousands of drug offenders a chance to treat their addictions and productively rejoin society. According to reports, there is little or no relationship between drug misuse and prison terms. This makes it counterproductive to imprison persons accused of non-violent drug possession offenses. Keeping the offenders in chains yields low returns despite the state incurring high costs. Over the years, incarcerating certain drug offenders has not led to decreased state drug problems.
Depending on the unique facts of a case, the court can order any of the following programs that are not provided within jail or prison facilities:
- Outpatient or residential drug treatment services
- Drug education
- Narcotic replacement or detoxification therapy
- Drug treatment aftercare services
As long as you qualify for Prop 36, you can apply for the program before or after a conviction. It is perfectly okay not to plead guilty or no contest to a non-violent drug possession crime and instead push for an acquittal during trial. If you lose and the court finds you guilty, this does not disqualify you for a drug diversion program under Prop 36 in place of jail time.
Unfortunately, not everyone qualifies for a diversion program under Prop 36. The defendant must be a first or second-time offender convicted of a non-violent possession offense. The court-imposed drug treatment program runs for 12 months, although the judge has the discretion to extend it by a maximum of two six-month periods when necessary.
Also, defendants on parole who commit non-violent drug possession offenses can qualify for drug diversion programs under Prop 36. The option allows them to avoid going to jail and complete a drug rehabilitation program. Unfortunately, a drug possession offense while serving time in prison is exempt from Prop 36 eligibility.
If you commit a non-violent drug possession offense while on parole, the judge can put you on probation or modify your parole terms. The modifications can include mandatory completion of a drug rehabilitation program and compliance with random drug tests. The court also can impose additional parole or probation terms when necessary. The additional terms can include mandatory family counseling, community service, or vocational training.
Non-Violent Drug Possession Offenses Defined
One of the primary requirements you must meet to benefit from a diversion program under Prop 36 is to be convicted of a “non-violent” drug possession offense. The offenses include the possession, consumption, or transportation of controlled substances for personal use.
An offense also qualifies as a non-violent drug possession crime if it involves being under the influence of controlled substances like heroin, cocaine, meth, ecstasy, peyote, ketamine, and angel dust(phencyclidine), just to mention a few.
Prop 36 Eligibility Requirements
The judge will always consider the characteristics of a defendant and the facts of a case before deciding whether to allow alternative sentencing under Prop 36. There are three crucial case-related requirements you must meet:
The Crime Must Be “Non-Violent”
Drug diversion programs are only available to defendants accused or convicted of nonviolent drug possession offenses.
This includes drug crimes like:
- Health & Safety Code 11350 — Possession of a Narcotic
- Health & Safety Code 11357 — Marijuana possession for personal or recreational use
- Health & Safety Code 11377 — Methamphetamine (meth) possession for personal use
- Health & Safety Code 11550 — Under the influence of a controlled substance
The Offense Must Be Drug-Related
Another eligibility requirement for Prop 36 is the offense must be drug-related. You should be facing charges or convicted of a drug listed under the Federal Controlled Substances Act. This includes marijuana, opioids like Heroin, Vicodin, Morphine or Codeine, or other non-medical use drugs like Methamphetamine, Phencyclidine, etc.
The Drug Crime Must Be For Possession
Also, the offense must be drug possession. You do not qualify for alternative sentencing under Prop 36 if the crime involves the cultivation, manufacture, or sale of a drug listed under the Federal Controlled Substances Act.
Some of the non-violent drug possession offenses exempt from Prop 36 include but are not limited to:
- Health & Safety Code 11351 — Possession for sale of a controlled substance
- Health & Safety Code 11352 — Transporting, selling, administering, furnishing, or importing controlled substances for sale
- Health & Safety Code 11360 — Selling, importing, giving away, or transporting marijuana for sale without a license
- Health & Safety Code 11379 — Selling or transporting methamphetamine
- Health & Safety Code 11359 — Possession of marijuana for sale without a license
- Health & Safety Code 11378 — Possession of methamphetamine for sale
Prop 36 Disqualifying Factors
Sometimes, a defendant is still ineligible for alternative sentencing under Prop 36, even if an offense is a non-violent drug possession crime.
Let us have a look at other Prop 36 disqualifying factors:
A Concurrent Conviction for Non-Drug-Related Offenses
If you face charges for multiple crimes, you cannot qualify for a diversion program under Prop 36 unless all the crimes are non-violent drug possession offenses.
For example, if you are arrested for indecent exposure, and the police also establish that you are under the influence of a controlled substance, you are ineligible for Prop 36. The same applies to defendants facing felony or misdemeanor convictions for any non-drug-related offense.
Typically, the law does not bend for persons facing simultaneous felony convictions. However, a judge can opt to allow Prop 36 if an accompanying misdemeanor conviction is hinged on drug use.
For instance, David faces charges for methamphetamine possession for personal use under Health & Safety Code 11377 and also for possession of drug paraphernalia under Health & Safety Code 11364. David still qualifies for Prop 36 alternative sentencing because both offenses are nonviolent and drug-related.
Two or More Prior Prop 36 Sentences
A history of two or more Prop 36 alternative sentences that bore no fruit is enough reason for a judge to deny another drug treatment rehabilitation program. Even though the judge has the discretion of approving Prop 36 because of the current nonviolent drug possession offense, your history is likely to convince the court that a third program will also not work.
A Prior “Strike” Conviction
Unfortunately, defendants with a history of “strike” convictions within the last five years also do not qualify for Prop 36 alternative sentencing. Under California Three Strikes Laws, strike offenses are serious felonies or violent crimes. These offenses cause great bodily injury to the victims and are subject to sentence enhancements. Moreover, the law demands that an accused serves a minimum of 80% of the imposed sentence.
California’s Penal Code Section 667.5 lists violent felony crimes subject to the state’s Three Strikes Law. Under Penal Code Sections 1192.7 and 1192.8, you will find a list of serious felonies considered strike crimes.
These offenses include but are not limited to:
- Murder and Voluntary Manslaughter
- Sex crimes like rape, lewd acts on a child under 14, armed sexual assault, etc
- All felonies attracting the death penalty or life without parole
- Drive-by shooting
- Residential burglary
- Providing drugs to a minor
- Aggravated assault
- Dissuading a victim
- Conspiracy to commit any of the listed crimes
Even if a felony or misdemeanor conviction within the last five years did not involve a strike offense, you are still ineligible for Prop 36 if it involved physical injury.
Possession of a Dangerous Weapon
Moreover, the court will always consider the facts of a case. If the defendant had a dangerous weapon (not necessarily a firearm) during the commission of a crime, this automatically disqualifies them from Prop 36 diversion programs. This is irrespective of whether they otherwise qualify for alternative sentencing for a nonviolent drug possession offense.
Prop 36 eligibility requirements are pretty complex. Disqualifying factors further increase the technicalities of qualifying for alternative sentencing. It is necessary to consult with a knowledgeable attorney who can study your case and provide in-depth information about your legal options.
Understanding Prop 36 Benefits
Proposition 36 offers a sure way to avoid spending time in jail. The court imposes a mandatory drug treatment program instead, as recommended by a drug counselor. Ideally, drug rehabilitation is successful when a defendant heals from an addiction and is no longer dependent on controlled substances.
The Case Will Be Dismissed
There are critical benefits allied with completing a drug treatment program. The most notable is that the court will dismiss your case, making it appear like an arrest and conviction never happened. A prosecutor cannot use the dismissed conviction against you during future criminal proceedings. The dismissed conviction can also not lead to sentence enhancements for future convictions.
Maintain a Clean Criminal Record
Also, once the conviction is dismissed, you can truthfully report having a clean criminal record. You will have a right not to disclose information about the case to potential employers or rental agencies. The only exception is applying for jury selection or employment in a public office.
Your Life Does Not Have To Come To a Halt
Serving time disconnects you from society. This means you have to discontinue school and lose your job. If the court allows an outpatient drug treatment program, you do not have to worry about losing your academic or professional opportunities.
While the above benefits are pretty enticing, the top-most perk is that a drug rehabilitation program can free you from the shackles of drug addiction. Taxpayers also benefit from dodging the enormous costs of keeping a drug offender in jail. Working with a skilled drug attorney gives you maximum chances of getting approved for Prop 36 sentencing and enjoying the above mentioned perks.
The Repercussions of Failure to Complete a Prop 36 Program
Once the court approves alternative sentencing under Prop 36, it is imperative to follow all the probationary terms and conditions to the latter. Any probation violations can lead to jail time.
For instance, the court can order incarceration for up to 48 hours on your first violation. The second violation can attract a penalty of up to 120 days behind bars. If you commit a third violation, the judge has the discretion of revoking a Prop 36 program and imposing the jail term for the original charge.
Generally, the third probation violation proves that you cannot benefit from the core aim of alternative sentencing, which is to provide effective drug treatment.
Some of the aspects that could lead to the revocation of a drug rehabilitation program include:
- Violating the rules within a drug treatment facility
- Repetitive violation of probationary regulations in a manner that hinders your ability to benefit from a program
- Ongoing refusal to participate in the treatment program
- A repeated formal request where you have asked to be chucked out of the program
Even when you commit the above violations, the court can still find it fit not to revoke your Prop 36 sentence. This can happen if you commit another offense other than a non-violent drug possession crime or violate a probationary term that has nothing to do with drug use.
As the court deliberates whether to revoke or reinstate probation, you could have to wait behind bars for up to 30 days. By law, a judge must revoke probation if the prosecution meets the evidentiary standards to prove that you are a danger to society or cannot benefit from drug treatment. The evidentiary standard is proof “by a preponderance of the evidence during the hearing.”
Often, probation is not reinstated without a few modifications to the drug treatment plan. It is also possible for the judge to order incarceration for up to 30 days to motivate you not to violate probation terms in the future.
Prop 36 Alternatives
All is not lost if you do not qualify for a drug diversion program under Proposition 36. There are other commendable alternatives that a skilled drug attorney can suggest.
Penal Code 1000 — Pretrial Diversion
Penal Code 1000 describes the drug pretrial diversion law. Under the statute, low-level drug offenders can undergo mandatory drug rehabilitation instead of serving time behind bars.
The most basic requirement you must meet to participate in a Penal Code 1000 diversion program is that you must be facing charges for a simple drug crime.
Common examples of simple drug crimes include but are not limited to the following offenses:
- H&S Code 11350 — Possession of a controlled substance
- H&S Code 11364 — Possession of drug paraphernalia
- H&S Code 11357 —Marijuana Possession for personal use
- H&S Code 11377 — Methamphetamine (meth) possession for personal use
- H&S Code 11550 — Under the influence of a controlled substance
- H&S Code 11358 — Unlawful cultivation of Marijuana for personal use
- Penal Code 647f — Public Intoxication
- Vehicle Code Section 23222(b) — Possession of Marijuana While Driving
The court will consider two essential aspects before deciding whether to grant or deny a deferred entry of judgment (DEJ):
- Whether the accused faces charges for drug possession for personal or recreational use
- Whether the defendant is likely to benefit from a drug rehabilitation program
If you face charges for drug possession for personal use and have the potential to benefit from drug treatment, it will also be necessary for you to match the following requirements:
- The current offense must be a non-violent drug crime
- At least five years must have elapsed between the current charges and any prior drug-related conviction
- At least five years must have elapsed between the current charge and any prior felony conviction
Before 2018, a defendant needed to plead guilty or no contest to qualify for a DEJ program under Penal Code 1000. The law has changed to allow those charged with drug offenses to enter a not guilty plea. If you fail to complete the treatment program successfully, you will have to undergo a bench trial where a judge will reevaluate your case and decide whether you are guilty of the charges or not.
Moreover, the court can decide to terminate the drug diversion program before it is complete. This can happen if:
- The accused fails to adhere to the court-imposed probationary terms and conditions
- The defendant is convicted of a felony or any offense showing a tendency for violence before the program is complete
Pretrial diversion programs under Penal Code 100 typically run for 12 to 18 months. However, the court can extend this time whenever there is a good reason. The drug treatment diversion program can be offered by practitioners approved by the court and county’s drug program administrator or certified by the county drug program administrator.
Upon successful completion of pretrial diversion, the court will dismiss the case and have records of arrest sealed. Essentially, you will enjoy benefits identical to a Proposition 36 diversion program.
California Drug Court
If you face charges for a non-violent drug crime, the California drug courts are another superb alternative to Prop 36 or Penal Code 1000. This alternative allows you to resolve a drug possession-related case without going through the conventional criminal justice system.
One of the key benefits of drug courts is that defendants do not need to enter a guilty or no contest plea to qualify for a drug diversion program. It is adequate for the court to simply establish that you are likely to benefit from a drug treatment program. Again, the court will dismiss all charges upon completing drug rehabilitation.
Drug courts have been around since the 1900s. There are over 200 drug courts spread over the 58 counties in California. These courts aim to improve lives by offering drug treatment instead of incarceration. Consequently, the alternative sentencing option saves taxpayers’ dollars while reducing the recidivism rate of drug offenders.
Generally, you qualify for drug diversion if you are charged with the possession of controlled substances for personal use. Again, the crime must be nonviolent and must not involve the cultivation, transportation, or manufacture of controlled substances for sale.
Treatment typically includes therapy, random drug testing, counseling, and close court supervision. Again, defendants must abide by strict terms and conditions during treatment.
The main difference between drug courts and other diversion programs like Penal Code 1000 and Prop 36 is a loose structure. This encourages ongoing dialogue between the defendant and the defense attorney, prosecutor, and judge. These parties collaborate to ensure the ultimate goal is achieved and a defendant can productively reenter society.
Mental Health Diversion
Sometimes, a drug-related crime is hinged on a mental health disorder. In this case, a mental health diversion program can come in handy to ensure a defendant receives the right help instead of incarceration. The main qualifying factor is that you must have a mental condition like:
- Bipolar disorder
- Post-traumatic stress disorder
- Schizoaffective disorder, etc.
Defendants who complete mental health diversion programs have their charges dismissed. The court also orders the sealing of all records relating to the case.
Find a Drug Possession Attorney Near Me
Fighting drug possession charges can be overwhelming. A conviction can put your life on a halt, forcing you to lose your job or scholarly pursuits. Even with the option of diversion programs under Prop 36 or Penal Code 1000, a lot is at stake. At Riverside Criminal Defense Attorney Law Firm, we have a knowledgeable team that can help you achieve the most favorable outcome following a drug possession arrest. Call us today at 951-946-6366 and let us evaluate your case and provide personalized legal guidance.