Drug-crime convictions often carry life-changing consequences that may harm a person’s professional and personal lives. If you are under prosecution for a drug offense, you may be able to avoid incarceration by completing a drug diversion program. Drug diversion entails drug education, treatment, rehabilitation, detox services, replacement therapy, et cetera. It does include the drug rehab services offered in prison or jail facilities.

The ability to participate in drug diversion depends on several factors, including the lawyer you hire. An experienced lawyer may persuade the prosecution to agree to drug diversion instead of incarceration. At California Criminal Lawyer Group, we have skilled and knowledgeable lawyers ready to defend your constitutional rights and assist you in entering drug diversion. We have assisted hundreds of clients charged with drug crimes in Fresno in avoiding incarceration and can do the same for you. Call us today for a consultation to share your case details.

Pretrial Diversion for Drug Charges

Pretrial diversion is an alternative way of solving criminal cases. Usually, a person is arrested, charged with an offense, and either pleads guilty and is sentenced or pleads not guilty, and the case goes to trial. Pretrial diversion takes defendants out of this process between the arrest and trial stages. Some pretrial diversion programs are options after the filing of charges but before the trial, while others are options before the prosecutor files charges.

Pretrial drug diversion diverts or redirects qualified defendants accused of low-level drug crimes from court to a diversion program. In most states, defendants must plead guilty or nolo contendere to their crime to enroll in pretrial diversion. The court would then suspend the defendant's sentence and have them enroll in a diversion program. If the defendant completes the course, their drug charges will be dropped. If they fail to finish the program, the court will impose a suspended sentence for their crime.

In other states, qualified defendants can enroll in a drug diversion program without entering a no-contest or guilty plea. In these jurisdictions, the court would still resume prosecution for the underlying charges if a defendant fails to complete the program. However, the defendant can defend themselves.

Lastly, some states do not have pre-trial drug diversion programs for drug-related crimes, meaning when one is arrested, they have to undergo the entire criminal court process.

Pre-trial drug diversion programs aim to reduce the burden on local courts and jails by diverting low-level, non-violent crimes. Additionally, they provide rehab services to people who need them more than being locked up. If your chances of reoffending are low, diversion enables you to pay for your crime without a possible devastating arrest record or criminal conviction. 

California Pre-trial Drug Diversion Law

California PC 1000 is the law on pretrial drug diversion. It involves a qualified drug defendant asking to suspend their case for twelve to eighteen months while they complete an authorized drug rehab or education program. Once the accused completes the drug rehab or education program, the court will dismiss the charges against them.

Pre-trial drug diversion applies to people arrested for minor drug violations. The programs assess defendants and provide at least twenty hours of narcotics rehabilitation and education, and there is an exit conference or a report reporting on the accused's performance.

Before 2018, 1000 PC was called DEJ (deferred entry of judgment). Per that previous law, you would first be ordered to plead guilty to the charges against you to be able to enroll in a treatment program. If you later completed the treatment program, the court would dismiss the charges you face. And if you did not complete the rehab program, the court would pronounce you guilty.

On Jan. 1, 2018, involvement in 1000 PC was reclassified to pre-trial drug diversion. Now, you can enter a not-guilty plea to qualifying charges, and the court will allow you to undergo drug treatment.

The judge dismisses your charges when you complete the assigned education course or treatment. And if you do not, the court does not automatically find you criminally liable. You will have the right to a court trial before a judge, otherwise known as a bench trial.

The Cost of Participating In Pretrial Diversion

To enroll in pretrial drug diversion, the court requires that you pay a diversion restitution fee, which covers a percentage of or all the reasonable costs of any pre-plea report, investigation, or probation supervision. This fee might be imposed along with other administrative fees required or permitted under the law.

The diversion restitution fee is usually at least a hundred dollars and, at most, a thousand dollars. The court decides the precise amount, considering all the relevant factors, like:

  • The severity of the crime.
  • Your capability to pay.
  • The degree to which someone else suffered losses due to your crime.

But the fee might be below the average charge for the treatment services you are provided with. The minimum fee of $100 will be imposed, your current capability to pay notwithstanding. However, if you provide extraordinary and compelling reasons, the judge might waive their decision to impose the fee.

The Pretrial Drug Diversion Referral Process

First, the D.A. will look into your charges. If you seem qualified for diversion, they will counsel you in writing.

Prosecutor's Notice

In their written advisory, the D.A. will:

  • Describe the pretrial diversion procedures.
  • Explain the jurisdiction and duties of the court, D.A., and probation department in the diversion process.
  • State that to obtain diversion, you should enter a not-guilty plea to the crime you face and give up your constitutional rights to a trial and preliminary hearing.
  • Include information that the judge will dismiss your charges if you finish treatment and receive good recommendations.
  • State that the judge may terminate drug diversion upon failing treatment, violating any condition of treatment, or committing a violation that renders you unfit.
  • Explain your constitutional rights regarding criminal record disposition and retention.
  • Explain how you can respond to questions regarding your pretrial diversion and apprehension after finishing the program.

Probation Officer Investigation

The judge in charge will schedule a proceeding to establish whether you qualify and agree to diversion. However, before deciding, they might, acting within their discretion, direct that the probation department investigate your charges. The officer in charge of the investigation may consider your age, employment records, community and familial ties, educational background, prior regulated substance use, job skills, demonstrable motivation, treatment history, and any other mitigating circumstances.

Note that everything you say to a drug treatment employee or probation officer throughout the investigation period is inadmissible as evidence of the original charges; therefore, no one can use it against you. The court or probation department will use your statements only to establish whether or not you are amenable to education, rehabilitation, or treatment.

Final Decision on Eligibility

If the court has ordered a probe, the probation department will counsel the judge on what programs it sees you being amenable to and which would enroll you. The judge will finally decide whether you are eligible and, if so, what form of treatment, rehab, or education would be suitable. The court will permit you to refuse or consent to enrolling in the program. If you consent, you will enter a not-guilty plea to your crime. The judge will then cancel any bail and other deposits and require you to do the following before allowing you to undergo treatment:

  • Waive your legal right to a trial by the jury.
  • Waive your right to a speedy trial.
  • Acknowledge that you will apply for and participate in a drug treatment or education program and be responsible for its costs.
  • Pay the diversion restitution fee.
  • Admit you understand that completing the program will lead to your drug case being dismissed, and you can state under oath that you have never been arrested for the drug offense.
  • Acknowledge that failure to finish the treatment or education course within the specified period will lead to your dismissal from the course, and the drug charges against you will proceed, but you will have no right to trial by jury; your options will be entering a plea deal or undergoing a bench trial.

As you continue treatment or rehab, the probation department may send progress reports to the court, enabling the court to establish your continued qualification under 1000 PC.

If you refuse to enroll in drug diversion or the court rules that the program is not ideal for you, prosecution for the original case will proceed. The court will protect your legal rights to a preliminary hearing, a speedy trial, and a jury trial.

Note that you can request a referral to a diversion program in any county, provided the program meets the required criteria as follows:

  • The county narcotics program administrator has certified it per Title 8, Chapter 1.5 of the California Penal Code (starting with PC 1211).
  • It provides services to you at zero cost, and the county narcotics program administrator and court have considered it beneficial and credible.

Eligibility for Pre-trial Drug Diversion

To qualify for pretrial diversion under 1000 PC, the judge reviews two factors: your past criminal record and your underlying drug crime. For your past criminal record, the following must be true:

  • You must not have been convicted of any drug crime within five years of committing the underlying drug crime.
  • The underlying drug crime must not involve threatened or actual violence.
  • There is zero evidence of simultaneous crime involving narcotics or controlled dangerous drugs other than evidence of the underlying drug crime.
  • Within five years of perpetrating your underlying drug crime, you have not been convicted of a felony.
  • The underlying drug crime must not involve selling narcotics.
  • You have not been in drug or pre-trial drug diversion in the last five years.
  • You do not have a history of previous probation or parole violations.

The following are the crimes that qualify a defendant for a 1000 PC pretrial diversion:

  • PC 653f(d), soliciting a person to commit an offense to facilitate your use of drugs.
  • HSC 11368, using or possessing a forged prescription to acquire narcotics for own use.
  • HSC 11350, drug possession.
  • HSC 11357, unlawful marijuana possession.
  • HSC 11364, drug paraphernalia possession.
  • 11365 HSC, aiding and abetting controlled substance use or knowingly being at a location where narcotics are being used.
  • VC 23222b, possession of an open container of marijuana in a vehicle.
  • HSC 1375(b)(2), illegal possession of given prescription sedatives.
  • 11377 HSC, meth possession for own use.
  • HSC 11550, under the intoxication of a drug.
  • HSC 11358, illegally cultivating marijuana for own use.
  • PC 381, possessing toxic substances or material for huffing.
  • 647(f) PC, lewd behavior in public associated with being intoxicated with a drug.
  • BPC 4060, possessing a regulated substance.

Some regulated substances corresponding to the above laws are peyote, heroin, cocaine, GHB, ketamine, ecstasy, meth, marijuana, prescription opioids, for example, Vicodin, and particular hallucinogenic substances like PCP.

Generally, the court's primary concern is not the type of drug but whether the crime is possession for your own use and whether a defendant would be amenable to treatment.

How Long Will a Pretrial Diversion Program Last?

Pretrial diversion per 1000 PC typically lasts at least twelve months and not longer than eighteen months. The judge might extend your deadline to finish an authorized treatment plan if you demonstrate good cause.

  • The court may require you to take drug tests by urinalysis. Fortunately, the results might be used only to measure compliance with your program. Failing drug tests cannot be the reason for a new prosecution. The only ramification is the potential termination of your diversion program. Also, no one can use your statements during treatment to the point where they affect the underlying crime charged.

What If You Need Narcotic Medication While in Diversion?

If enrolled in pretrial drug diversion, you might, under a certified healthcare provider's authority, use medications such as buprenorphine, methadone, or LAAM (Levo-Alpha AcetylMethadol) to treat drug use disorders. Using these drugs in strict compliance with the diversion program rules does not constitute the basis for terminating participation in drug diversion.

Termination of Pre-trial Diversion Before Completion of Treatment

While your program is ongoing, the court may decide that you are not fully participating or that other circumstances have rendered you ineligible for the program. In this case, the judge will rule that you have failed and terminate the program. The following are factors that could result in the cancellation of your education or rehab program:

  • You are not amenable to the program.
  • Your participation is unsatisfactory.
  • You have been absent from the program.
  • You disobey the conditions of your diversion program or fail to acquire the necessary treatment.
  • You have been found guilty of a felony.
  • The court has found you criminally liable for a crime that mirrors a tendency for violence, for example, simple assault or domestic violence.
  • You have involved yourself in criminal behavior that disqualifies you.

The parties that can initiate a motion to terminate are the judge, probation department, or prosecuting attorney. Once the motion is initiated, the court holds a proceeding to decide whether to cancel your pretrial diversion program. The prosecution for your underlying drug case will continue should the judge find that your performance in the allocated program is unsatisfactory or that you served a sentence for a felony violation or crime that mirrors a propensity for violence.

What Happens Upon Completion of Treatment?

If you complete your assigned pretrial diversion program, you will be considered not to have been arrested for the drug crime in question. Consequently, you can answer no to whether you were arrested for that crime or granted pre-trial drug diversion. However, an exception to answering no is when seeking employment as a police officer.

The court might then order the sealing of your arrest records as described under Penal Code Section 851.92. With your arrest record sealed, licensing boards cannot use it to deny you a professional license (for example, a medical, law, or real estate license) on the grounds of professional misconduct, and they cannot pursue sanctions against you. A sealed record will also not negatively affect your employment. However, sealing arrest records does not prevent a criminal justice agency from accessing or using those records.

Alternative Pretrial Diversion Programs for Drug Crimes

Apart from PC 1000 pretrial diversion, other drug-related diversion programs exist, including Prop 36 and drug court. Your lawyer can advise you on what program suits you based on your needs and the case.

Drug Court

Drug court resembles PC 1000, but it only applies if a public defender represents a defendant. Drug court-related programs are approved under PC 1000.5. They include San Francisco's "back on track" program and Los Angeles County's drug court. Like 1000 PC diversion, completing treatment under drug court can lead to a charge dismissal.

The prosecutor, public defender, or judge refers a defendant to drug court programs through a written agreement. Drug court programs' treatment plan entails:

  • Vocational or educational counseling.
  • Close court supervision and monitoring of progress.
  • Urinalysis testing corresponding to treatment needs.
  • Group and individual therapy.
  • Rewards and graduated sanctions.
  • Any other requirements approved by the D.A., public defender, or judge.

If drug court programs are unsuitable for you, for example, because the district attorney, public defender, or judge disagrees, you might still be allowed to participate in 1000 PC pretrial diversion.

Proposition 36

Proposition 36 is described under Penal Code Sections 1210 to 1210.1 and PC 3063.1. The description under PC 3063.1 relates to defendants on parole. This diversion program requires that a defendant be sentenced to probation for three years. Drug education or treatment will be determined by evaluating a community program that may entail residential treatment. Proposition 36 and PC 1000 drug diversions differ in four primary ways:

  • PC 1000 applies to a wider range of drug crimes. For example, qualifying violations include falsifying prescriptions for own use and illegal growing of cannabis for own use. These two crimes would disqualify a defendant from participation in drug diversion under Proposition 36.
  • Judges enjoy a given level of discretion in deciding whether a defendant is allowed to participate in 1000 PC drug diversion. On the contrary, defendants qualified under Proposition 36 are automatically sentenced per its provisions.
  • Proposition 36 requires that a defendant pleads guilty, after which they are sentenced to formal probation and face additional restrictions and terms imposed against them.
  • While probation under Prop 36 last three years, a drug treatment program under PC 1000 can last only eighteen months, and a defendant is not mandated to receive treatment in a residential program.
  • The defendant's charges are automatically dismissed under PC 1000 upon completing treatment. Under Prop 36, the judge determines whether to dismiss the case.

Therefore, 1000 PC is an ideal form of drug diversion if you have options.

Military Diversion

Military diversion is another type of drug diversion. This program is for active-duty and veteran military personnel. Here, a judge postpones criminal court proceedings for misdemeanors while the defendant obtains treatment for controlled substance abuse or mental health issues like sexual trauma or PTSD.

If the defendant completes military diversion, the judge will drop the charges against them, and their apprehension will be considered not to have happened.

Contact a Competent Drug Crimes Lawyer Near Me

If accused of a non-violent drug crime, pretrial diversion may be better than going to jail, as the court will dismiss your charges upon completing your program, saving you from a criminal record. However, participation in and successful completion of a pre-trial diversion program can be challenging; it includes several steps that require the intervention of a skilled and trusted attorney.

You must prepare your case for diversion, including documenting your criminal history and checking all eligibility requirements to ensure you tick all the boxes. The diversion hearing requires sensitive advocacy from an attorney whose integrity is known and trusted in court. Advocating and negotiating for diversion terms is another essential factor, as is documenting your timely completion of these steps to the court's satisfaction.

At California Criminal Lawyer Group, we have skilled drug crime lawyers who can help you with all these matters. We are top-rated Fresno drug crime attorneys who can advocate for you and ensure the prosecution considers you for pretrial drug diversion. Contact our office at 559-712-8377 for a free consultation. We will review your case to determine eligibility and work towards achieving the best possible outcome for you. If you are not eligible for pretrial diversion, we will explore other drug diversion programs that can be helpful, such as Prop 36 and drug court.