In 2000, California state voters passed The Substance Abuse & Crime Prevention Act of 2000, commonly called Proposition (Prop) 36. Prop 36 requires drug treatment sentencing instead of incarceration for particular qualifying drug-related crimes and drug crime offenders. Whereas the idea of drug treatment sentencing instead of prison or jail is straightforward, it is usually overwhelming whether a given crime or defendant qualifies for Proposition 36.

Consequently, if you are being prosecuted for a drug-related offense in Chula Vista and are considering an alternative sentencing option under Proposition 36, do not hesitate to contact the experienced drug offense lawyers at Chula Vista Criminal Attorney for help. Our expert and knowledgeable lawyers will assist in assessing whether Proposition 36 can apply to your case or not, apart from advising on what possible legal defenses you can argue.

Proposition 36 Overview

Prop 36 is described under 3063.1 PC (as it applies to offenders on parole) and PC 1210-1210.1. It is among the types of the state’s drug diversion programs. Drug diversion involves permitting qualified defendants to seek a dismissal of their conviction or charges after they successfully finish a drug-related treatment course authorized by the court. For a drug treatment course or program to be considered court-authorized, it should include one or several of these:

  • Drug education or school
  • Residential drug treatment/outpatient services,
  • Narcotics replacement therapy/detoxification service
  • Aftercare services

Court-approved narcotics treatment programs do not include the drug-related rehab programs offered in incarceration. In particular, Proposition 36 altered California drug laws to provide that any second and first-time defendants found guilty of any non-violent drug possession crimes receive one year of drug abuse treatment rather than time in incarceration. If necessary, the court may extend this period by not more than two periods of six months.

During the first months of the onset of the Prop 36 treatment program, most participants enrolled in outpatient courses. Only approximately 10 percent enrolled in residential programs, whereas very few enrolled in drug-related detoxification programs.

Prop 36 also applies to parolees who disobey their parole conditions by committing non-violent controlled substance possession crimes. In most situations, parolees who commit a non-violent controlled substance possession crime while serving their parole or violate any drug-related parole conditions are not sentenced to a jail term. Instead, they will have to enroll in a court-approved drug treatment course.

How Does Prop 36 Define Non-Violent Controlled Substance Possession Offenses?

Under Prop 36, non-violent narcotics possession crimes include illegally:

  • Transporting/possessing controlled substances listed under the U.S Controlled Substance Act for individual use
  • Using/being high on one or more of those narcotics

The controlled substances classified under the U.S Controlled Substance Act are, without limitation:

  • Heroin,
  • Cocaine,
  • Peyote,
  • GHB
  • Ketamine,
  • Ecstasy,
  • Marijuana,
  • Meth,
  • Certain hallucinogens like PCP, and
  • Particular prescription medications, for instance, Vicodin or codeine.

Non-violent controlled substance possession crimes that will qualify you for Prop 36 include, among others:

  • HSC 11550, being intoxicated with a drug
  • HSC 11357, possession of not more than a small amount of pot (usually not over one ounce)
  • HSC 11377 and HSC 11350, personal controlled substance possession

This is to say that convictions of California manufacturing- and sales-related narcotics offenses do not qualify a defendant for a Proposition 36 diversion program since these criminal conducts are not deemed non-violent controlled substance possession crimes. Violations that do not make an accused eligible for Prop 36 are, without limitation:

  • HSC 11352, sale/transportation of drugs (unless the court only convicts you of moving the narcotics for own use)
  • HSC 11360, sale or transportation of marijuana (again, unless the judge sentences you for moving the pot for own consumption)
  • HSC 11351, drug possession for sale
  • HSC 11359, possession of pot for sale
  • HSC 11378, possessing meth or other less severe drugs with intent to sale
  • HDC 11379, sale or transportation of methamphetamine

Convictions entailing possession of narcotics while in jail or prison are not included under Proposition 36 eligibility.

Courts have further ruled that being convicted of these criminal conducts does not make a defendant eligible for Prop 36 since their actions are beyond simple use, personal transportation, or possession:

  • 11368 HSC, forging/presenting a forged prescription to obtain controlled substances
  • 11370.1a HSC, drug possession while carrying a loaded and operable gun
  • 11358 HSC, marijuana cultivation (whether or not you are cultivating it for personal use)

Additional Eligibility Restrictions

Even when your criminal conduct qualifies for Proposition 36 sentencing, the law mandates that you should be eligible too. Particularly, the following five elements might make you disqualified from Proposition 36 sentencing:

  1. You have taken part in two other Prop 36 programs before

If you have had two different convictions of non-violent drug possession crimes and:

  • Participated in Prop 36 treatment program for both offenses
  • The court believes you are incapable of benefiting from (unamenable to) any further drug-related treatment

You will not be qualified to take up another treatment program under Prop 36. Additionally, the judge will require you to serve at least thirty days of a jail term.

  1. You decline to enroll in a drug-related treatment program as a probation condition.

  2. You were armed with a gun or any deadly weapon when you committed the non-violent controlled substance possession crime.

  3. You have past convictions of strike criminal offenses.

If a California court previously found you guilty of one/several serious/violent offenses, you will not qualify to face sentencing under Prop 36 except if the qualifying crime took place not less than five years since you:

  • Were pronounced guilty of any felony not considered a non-violent controlled substance possession crime/any misdemeanor crime that involved bodily injury or threat of physical harm upon somebody else
  • Were last set free from incarceration

Serious or violent crimes are offenses that are considered strikes per the state's Three Strikes laws. If you are unqualified to participate in the Prop 36 program, the law does not allow the judge to drop the criminal offense/offenses disqualifying you.

On a different note, since juvenile adjudication hearings are not lawfully deemed criminal sentencing, any case that the juvenile delinquency court resolves, even if considered violent/serious, will not stop your child from enrolling in Proposition 36 sentencing option.

  1. You were pronounced guilty of any felony or non-narcotics-related misdemeanor at the same proceeding

If besides the qualifying criminal conduct, you were pronounced guilty at the same court proceedings of any felony/misdemeanor not associated with narcotics use, you do not qualify for Prop 36 enrollment. A misdemeanor not associated with narcotics use is any misdemeanor offense that usually does not entail:

  • Any act similar to a personal possession or simple use of a controlled substance
  • Failure to adhere to the narcotics offender registration duty
  • Being seen at the location where narcotics are used
  • Use or simple possession of controlled substances or drug paraphernalia-related offenses

For instance, California state courts have ruled that DUID qualifies as a misdemeanor not associated with narcotics use. Therefore, a conviction for this crime will render you unfit for Prop 36enrollment. Courts have argued that criminal conduct such as DUID harm people. Therefore, it falls in the same category as the crime of sale of a controlled substance and hence goes beyond just being high.

This implies if found guilty of a non-violent controlled substance possession crime and any felony/misdemeanor not linked to narcotics use, you are ineligible for Proposition 36 enrollment.

Although, unlike the general rule that involves past strike offense convictions, a judge would dismiss the extra charges, so you qualify for Proposition 36 enrollment.

Participating in Prop 36 After a Guilty Verdict

You can fight your criminal charge and still be subject to Prop 36 sentencing if you lose. The good side about this program is if you are eligible to participate, you can enroll in it whether or not the judge convicts you at trial. This is to say that you could let the prosecution take your charges to a trial and then fight to be acquitted. Your case will be over if the judge pronounces a not guilty verdict. However, should the judge convict you, you could participate in the Prop 36 drug treatment program instead of facing a jail term.

Probation Under Prop 36

To enroll in a drug treatment program under Proposition 36, you ought to:

  • Plead no contest or guilty to your charges
  • Be guilty of non-violent drug possession charges after your bench or jury trial
  • While serving your parole, be on parole, either violate a narcotics parole condition or commit any non-violent controlled substance possession crime.

The judge then subjects you to probation or amends your parole conditions to require you to enroll in a drug-related treatment program that includes drug tests. The court might, but is usually not mandated to impose other parole/probation conditions, like participation in community service, family counseling, or vocational training.

Although, the court judge is barred from imposing an incarceration term as part of the conditions unless you fail to comply with probation terms.

Violations of Parole/Probation

Should you disobey the imposed parole/probation conditions, there are different consequences the judge might order based on your precise misconduct.

  1. If you fail to comply with parole or probation terms

Should you disobey the imposed parole/probation conditions, the judge must still permit enrolment in Proposition 36 under most situations. With regards to crimes not considered non-violent controlled substance possession criminal offenses, if on parole/probation you:

  • Violate any non-drug-related parole or probation condition or
  • Commit any offense not considered non-violent controlled substance possession

The judge might sentence you to thirty days in jail while deciding whether they should restore your terms. If they choose to restore your parole/probation, they adjust your treatment timetable and any conditions they see necessary. Additionally, the judge might opt to sentence you to thirty days in jail as a punishment to encourage you to comply with treatment in the future. Should they decline to sentence you back to Proposition 36, they will sentence you for the underlying crime.

Regarding non-violent controlled substances possession crimes, should you violate parole/probation by:

  • Disobeying narcotics-related probation conditions (including drug treatment, vocational training, counseling, or employment conditions)
  • Failing to follow through with the narcotics offender registration duty,
  • Being somewhere where people use narcotics
  • Committing misdemeanors related to drug paraphernalia, drug use, drug possession, or
  • Committing non-violent controlled substance possession criminal offenses

The judge convenes a hearing during which they will establish whether revocation of your parole/probation should be carried out. The judge should revoke parole or probation in the event the prosecution shows you pose some risk to society.

Should the judge reinstate your probation, they may make the terms stricter and add a forty-eight-hour jail term to motivate your future compliance. If your misconduct depends on recent narcotics consumption. In that case, the court could require that you enroll in a residential narcotics treatment program or, if the situation mandates, a jail with a detox amenity.

These same procedures also apply to an accused who has violated the parole/probation terms for the second time. But when it comes to second violations, judges revoke probation/parole when the prosecution shows the offender is either unable to benefit from the treatment or presents a risk to the public.

And in the event the judge reinstates probation, they may impose a jail time of a hundred and twenty days to encourage future compliance. Should the judge find that you broke your parole terms, you will not qualify for a Proposition 36 sentence and will go to incarceration.

A third/subsequent parole/probation violation will also influence a hearing. Although, here, the judge will rule you unqualified to continue with Proposition 36 sentencing and sentence you to up to the maximum sentence permitted for the underlying offense unless they reasonably believe that:

  • You would be amenable to another treatment
  • You do not present any risk to society

  1. If you cannot benefit from treatment

If the drug treatment provider believes you are incapable of benefiting from any drug-related treatment, the parole board/probation department may revoke your parole/probation. If at your parole or probation revocation proceedings the judge consents, the court might revoke your probation/parole and impose an incarceration period depending on the offense you are convicted of.

To establish whether you cannot benefit from treatment, the court may consider various issues, like whether or not you have:

  • Continually declined to enroll in the treatment program (or requested to be taken out of the program
  • Repeatedly broken the rules of the program in a manner that hinders your capability to function in the program
  • Violated the rules and regulations of the drug treatment facility

Completion of Prop 36 Drug Treatment

Once you are done with Proposition 36 narcotics treatment program, you may request, through a petition, that the court dismiss your criminal conviction. Provided the judge consents you have completed drug treatment and adhered to probation conditions, they have to set aside then dismiss your charges.

To be considered to have completed drug treatment, you must have finished the narcotics treatment course your doctor or treatment provider recommended and the one the court ordered. It also implies that the treatment provider reasonably believes you will no longer abuse drugs.

This seems easy, but it is not. In fact, within the first years of Proposition 36 passing, only a third of offenders who joined the treatment program completed it.

After expunging your charges per the expungement law, you will become free of all disabilities and penalties that arose from the criminal offense, except you might not possess concealed weapons.

Lastly, with some exceptions, you could lawfully state that never have you been arrested or sentenced for the criminal offense that caused your treatment once your charges have been dismissed. These exceptions require that you still have to disclose your criminal record:

  • When it comes to any matters to do with serving on the state's jury
  • When applying to a local or state license body that usually contracts with the California State Lottery
  • In applications or questionnaires for any public office
  • When responding to any police inquiry or in an application for a peace officer position

Alternative Drug Diversion Programs In California

Apart from Prop 36, there exist several other noteworthy diversion programs for drug treatment. They are drug court and PC 1000.

Drug Court

Like DEJ and Prop 3, completing your drug-related treatment program will lead to a charge dismissal. The primary advantage of drug court participation is the program permits you to take part in narcotics-related counseling and treatment without first entering a no contest or guilty plea to your charges.

Drug-related treatment through drug court could include, without limitations:

  • Drug testing
  • Therapy
  • Close court supervision and monitoring
  • Vocational or educational counseling
  • Any other term the judge, prosecution, and your lawyer agreed upon.

PC 1000 Deferred Entry of Judgment (DEJ)

PC 1000 DEJ program works similarly to Proposition 36. Like Prop 36, this diversion program also allows non-violent controlled substance possession defendants to request a dismissal of their charges after completing a narcotics-related treatment program.

Although, we have two primary differences between DEJ and Prop 36. One of these differences is the requirements and length of these programs. Prop 36 program lasts not more than two years, while DEJ lasts between 18 months and three years. Prop 36 requires that the judge sentences you to probation while taking part in drug treatment. On the other hand, the judge does not sentence you to probation while participating in PC 1000 drug diversion.

The other difference is judicial discretion. Regarding Prop 36, qualified defendants must undergo treatment instead of incarceration. Under DEJ, the judge can rule you unfit for the treatment program, compelling you to enter a guilty plea for the charges against you, fight your charges, or pursue your eligibility for Prop 36.

And since Proposition 36 necessitates probation, the judge could impose further restrictions, like the requirement to agree to the search and seizure your property or person at a police officer's request. And when the program ends, and the judge has reason to believe you did not substantially adhere to all the probation conditions, they might decline to grant your record expungement petition.

On the contrary, DEJ does not permit the judge to order further participation restrictions. Additionally, an accused who completes a DEJ program qualifies for an automatic case dismissal.

Prop 36 Benefits

Supposing you qualify, Prop 36 necessitates the court sentencing you to a narcotics-related treatment program instead of incarceration. The judge will sentence you to probation and order you to enroll in a court-approved residential or outpatient drug treatment program for at least six months or eighteen months. If you complete the program, you could file a petition requesting the court to set aside and dismiss your charges. Consequently, the primary benefit of Proposition 36 to offenders is the chance to obtain a clean record by adhering to the terms of the treatment program.

Whereas there are several benefits of drug diversion programs, you want to discuss your situation with an experienced drug crimes attorney before deciding to participate in a program. You want to determine what option best suits your needs and case. Also, consider whether it is ideal for you to participate in diversion voluntarily or try fighting your charges first.

Find an Experienced Chula Vista Criminal Defense Attorney Near Me

Hiring the right criminal attorney for your California drug charges means having a lawyer with experience defending drug crimes successfully and one who understands how the state's legal system operates and the available options. At Chula Vista Criminal Attorney, we know all the uncertainties of drug crime charges. If you have been charged, call us at 619-877-6894 to share your case with one of our lawyers. The lawyer will assess the specific case details right away and offer an immediate response. We do not take on drug crime charges only to negotiate a plea deal. However, if a drug diversion program or any other alternative to incarceration is available and will be helpful to you, we will negotiate hard for that option on your behalf. We are aggressive attorneys who know how to achieve favorable outcomes in drug-related cases and how to assist clients in qualifying for diversion programs, including prop 36.