Drug crimes are undoubtedly some of the most severe and life-altering charges in the criminal justice system. Aside from the possible lengthy incarceration period, a drug charge conviction could ruin your reputation and professional life. However, not all drug offenses or charges have to result in a conviction.
At California Criminal Lawyer Group, we will investigate your drug case and check your eligibility for alternative sentencing options, including Prop 36, to avoid the possible repercussions of a conviction. Aside from giving you a chance to obtain a dismissal of your drug-related charges, Prop 36 rehabilitation programs will provide you with the much-needed drug treatment you need to live as a law-abiding citizen.
If you are in trouble with the police on suspicion that you are a suspect in a drug case in Fresno, you can count on our attorneys to offer you aggressive legal representation. Our team of credible defense attorneys will do everything possible to help you avoid a drug charge conviction, including utilizing all drug treatment programs available for non-violent drug offenders.
Proposition (Prop) 36 at a Glance
Also commonly known as Prop 36, Proposition 36 is a type of diversion program that allows qualifying non-violent drug offenders to undergo a court-approved drug rehabilitation and treatment program instead of incarceration.
Once you complete the recommended drug treatment or rehabilitation program successfully without a breach of its conditions, the court will dismiss your drug-related case. For the sake of Proposition 36, a court-recommended or approved “drug rehabilitation or treatment program” precisely refers to any treatment that offers any or all of the services listed below:
- Aftercare services.
- Detoxification services or narcotic replacement therapy.
- Drug education.
- Outpatient services or residential treatment.
It is worth noting that drug treatment programs that defendants receive in detention facilities following a conviction are not covered by Proposition 36 drug diversion. Specifically, Proposition 36 requires first-time and second-time offenders with a conviction for non-violent or non-severe drug possession charges to receive drug substance abuse rehabilitation and treatment for not more than twelve months instead of imprisonment.
If you violate the terms of your probation by committing a simple drug possession crime, you could also qualify for the Proposition 36 drug diversion instead of serving jail time for the crime. Retaining the services of a skilled and aggressive defense attorney can mean the difference between incarceration and participating in a drug diversion program after an arrest for a simple drug possession crime.
Definition of Non-Violent Drug Possession Crimes Under Proposition 36
According to Proposition 36, you commit a simple drug possession crime if you illegally do any of the acts listed below:
- Use any drug substance that is prohibited by the Controlled Substances Act, or you are under its influence.
- Possess or transport any prohibited narcotics or illegal drugs under this act, such as:
- Heroin.
- Marijuana.
- Peyote.
- Cocaine.
- Methamphetamine.
- Ketamine.
- Prescription medication like codeine and Vicodin.
Examples of Non-violent Drug Possession Crimes Eligible for Proposition 36 Drug Diversion
Below are examples of non-severe drug possession crimes that could qualify you for a drug diversion or rehabilitation program under Proposition 36:
Possession of Unlawful or Controlled Drug Substance for Personal Use
According to the Health and Safety Code (HS) 11350(a), it is a misdemeanor crime to be in illegal possession of unlawful or controlled drug substances like codeine. Examples of acts that could attract a charge under this statute include:
- Attending a concert with hallucinogens in your backpack.
- Cycling around your neighborhood park with baggies of cocaine in your jacket’s pockets.
- Walking to your cousin’s house with Vicodin in your bag.
Also known as simple possession, a charge under HS 11350(a) could attract the following penalties upon conviction:
- A fine not exceeding $1,000.
- A jail term of up to one (1) year.
Being Under the influence of a Controlled Drug Substance
Being under the influence of an unlawful or controlled drug substance is another crime that could qualify you for a drug treatment program under Proposition 36. According to HS 11550, it is a crime to be under the influence of a controlled drug substance unless you have a valid medical prescription to use the drug, for example, marijuana. Examples of acts that could attract charges under HS 11550 include:
- Attending a concert while under the influence of cocaine.
- Hallucinating after sniffing cocaine or snorting PCP.
- Ingesting several stolen prescription drugs like codeine and becoming dizzy, tired, or weak.
Upon a conviction under this statute, you could face the following misdemeanor penalties:
- Up to one (1) year of jail time.
- A fine of up to $1,000.
Possession of Marijuana
HS 11357 prohibits the “illegal” possession of marijuana, also known as cannabis, weed, or pot. To that end, adults aged 21 or older can buy and possess up to one (1) ounce (28.5) grams of dried cannabis or not more than eight (8) grams of concentrated marijuana (hashish). However, it will be a crime under this statute to do the following:
- Possess or buy more than these quantities, regardless of your age.
- Buy or possess any amount of marijuana while knowing that you are under 21.
- Possess or carry marijuana at or around K-12 school.
If you are 18 years of age or older, a conviction under HS 11357(b)(2) will attract the following misdemeanor penalties:
- A fine of not more than $500.
- Six months of jail time.
However, if you are under 18, possession of excessive quantities of cannabis is an infraction, carrying lighter penalties, including:
- Community service.
- Counseling.
If you are in police custody on suspicion that you are a culprit in any of these offenses, you could qualify for a drug diversion program under Proposition 36. However, you will be ineligible for Proposition 36 alternative sentencing if your offense is sales- or manufacturing-related. Examples of drug-related offenses that will make you eligible for Proposition 36 drug diversion include:
- Possession of cannabis for sale under HS 11359.
- Sale or transportation of controlled drug substances under HS 11352.
- Possession of a controlled drug substance for sale under HS 11351.
- Sale or transportation of marijuana under HS 11360.
A conviction involving unlawful possession of controlled drug substances while behind bars will also make you ineligible for Proposition 36 drug diversion.
Other Additional Restrictions That Could Affect Your Eligibility for Proposition 36 Drug Diversion
Even though your drug charge qualifies for Proposition 36 drug treatment, you must be eligible as well. Generally speaking, the following factors could make you ineligible for a drug diversion or rehabilitation program under Proposition 36:
You Have a Strike on Your Criminal Record
You will be ineligible for Proposition 36 drug diversion when you have a conviction for any severe or violent felony that falls under the Three Strikes Law unless:
- The eligible drug crime occurred five (5) years after your release from jail and
- The conviction on your record was for a felony or misdemeanor crime that involved threat of bodily injury or bodily injury to another individual.
If you are an excellent candidate for Proposition 36 diversion under this law, the court will not dismiss the offense(s) that disqualifies you. On another note, since a juvenile adjudication “judgment” is not a criminal conviction in the eyes of the legal justice system, any offenses resolved in the juvenile delinquency court will not affect your qualification for Proposition 36 drug diversion.
The Prosecutor Simultaneously Obtained a Conviction Against You for a Non-Drug Misdemeanor or Felony Offense
If the prosecutor simultaneously obtained a conviction against you for a qualifying drug-related offense and a non-drug-related crime, you could be ineligible for Proposition 36 diversion. Examples of non-drug crimes that could make you ineligible for Proposition 36 drug diversion in this situation include driving under the influence of drugs (DUID).
You Had a Firearm or Any Other Dangerous Weapon During the Commission of the Non-Violent Drug Offense
If you had a firearm or any other deadly weapon during the commission of the simple drug possession offense, you could be ineligible for Proposition 36 diversion programs. Aside from making you ineligible for Proposition 36 sentencing, using a dangerous weapon in furtherance of a non-violent drug crime is an aggravating factor that can make your penalties harsher upon conviction.
You Do Not Want Drug Treatment and Rehabilitation as a Requirement for Your Probation
The court will not let you take part in Proposition 36 drug diversion if you are not prepared to receive drug treatment and rehabilitation services as part of your probation.
You Have a Record of Participating in Proposition 36 Diversion Programs Twice or More
You will be ineligible for Proposition 36 drug diversion if you have two distinct convictions for a non-violent or non-severe drug-related offense and the following facts are true:
- You received Proposition 36 drug treatment for both offenses.
- The court believes that you are unamenable to the rehabilitation and drug treatment services offered.
Aside from being ineligible for another chance to enroll in Proposition 36 drug diversion, the court will require you to serve thirty days of jail time upon conviction.
How to Join and Participate in Proposition 36 Drug Diversion Programs
Participating in Proposition 36 drug diversion programs is not automatic because the court must hold a hearing to determine whether you are an excellent candidate for this alternative sentencing option. For you to receive Proposition 36 sentencing, you must:
- Enter a “guilty” or “no contest” plea to the alleged drug possession charges.
- You must have received a conviction or guilty verdict for that offense through a bench trial.
- Be a probationer or parolee, and either of the following is true:
- You are under arrest for violating a drug-related requirement of your probation or parole.
- You are under arrest or charged as a suspect in a non-violent simple drug possession case.
The court could restore your probation or alter it to impose additional conditions if you are a parolee and have legal issues related to any offenses mentioned above. These additional restrictions could include:
- Mandatory participation in a drug treatment program.
- Community service.
- Family Counseling.
- Vocational training.
Fortunately, the court has no authority to impose a jail term as a requirement for your probation unless you are under arrest for probation violation, a crime under Penal Code (PC) 1203.2.
What to Expect When You Violate the Terms of Your Proposition 36 Diversion
Once the judge allows you to take part in the Proposition 36 diversion program, you must comply with all the requirements of your parole, including:
- Be ready to comply with regular drug assessments from a court-approved Drug Addiction Expert.
- Avail yourself for routine drug tests or screenings.
- Avoid taking alcohol and other drugs.
- Enroll in a court-approved drug treatment program.
- Register as a drug offender.
The specific conditions the court will require you to comply with during your Proposition 36 parole will depend on the unique facts of your case. When you violate any of the above terms and conditions of probation, the court could allow you to participate in the diversion programs under Proposition 36 in most cases.
However, the court must hold a hearing to determine whether you are a threat to the community or whether you are amenable to Proposition 36 drug diversion programs. Generally, the judge will revoke your Proposition 36 probation if he/she finds that you pose a risk to the public's safety and are unamenable to the treatment offered.
If everything works in your favor during the hearing, the judge could reinstate your probation, but with stricter conditions. For instance, the court could place you in jail for not more than forty (48) hours to encourage your adherence to the program’s requirements. Hence, if you are eligible to participate in Proposition 36 sentencing, you must be ready to comply with all the terms of probation.
If you are unsure of what to do and not do while on probation, you should speak with your attorney or court-appointed probation officer to seek clarification.
What to Anticipate Following a Successful Proposition 36 Drug Treatment
Once you complete your Proposition 36 drug rehabilitation and treatment successfully without any violations, you should file your petition requesting the judge to set aside or dismiss your drug charge conviction. However, you must be ready to prove to the court that you did not violate any condition of Proposition 36 probation and are not likely to abuse controlled drugs again.
If you are successful in this alternative diversion program, the court could dismiss your case to avoid the detrimental consequences of having a criminal record. That means a potential employer will not know whether you have an arrest or conviction record for a drug-related offense, increasing your chances of qualifying for reliable employment.
Dismissal of your drug-related case upon completing your Proposition 36 drug treatment will also give you a fresh start in your life to live without the fear that a criminal record could haunt you in the future. Generally speaking, you have a right to give “no” as an answer when someone asks whether you have a criminal record, unless you are applying for a job in a public office or as a police officer.
Other Alternative Drug Diversion or Treatment Programs You Need to Know
Unfortunately, not every defendant is an excellent candidate for Proposition 36 drug diversion. If you are ineligible for Proposition 36 drug diversion, your defense attorney can explore your eligibility for other alternative sentencing options. Other alternative sentencing options you could qualify for to avoid the detrimental consequences of serving jail time for your offense include:
Deferred Entry of Judgment (DEJ)
Like Proposition 36, DEJ allows defendants with simple, non-violent drug possession charges to obtain a dismissal of their cases after successfully completing the court-approved drug treatment and rehabilitation program. Nonetheless, these two drug diversion programs differ primarily in two ways.
The first distinction pertains to the program’s conditions and length. Proposition 36 drug diversion programs will last for a maximum of two years. However, DEJ drug treatment programs under PC 1000 will last for eighteen (18) months to three (3) years.
The second distinction pertains to judicial discretion. According to Proposition 36, qualifying defendants should receive drug rehabilitation and treatment services instead of imprisonment. Under DEJ, however, the court has the power to deny you access to the diversion and require you to either enter a guilty plea or challenge your drug-related charges at trial.
Your attorney can help you determine your eligibility for DEJ if you are not an excellent candidate for Proposition 36 diversion programs. The primary advantage of DEJ is that the court presiding over your case will automatically dismiss it once you successfully complete the required programs or treatments without any breach or violation.
Drug Court
Another alternative sentencing option you could qualify for is the drug court. Like DEJ and Proposition 36, the court will dismiss your drug-related charges once you complete the drug rehabilitation and treatment program.
The primary advantage of choosing the drug court is that this drug diversion program will allow you to enroll in a drug counseling and treatment session without entering a “no contest” or “guilty” plea. Generally speaking, participating in drug treatment and rehabilitation through the drug court could include the following:
- Drug testing.
- Therapy.
- Vocational and educational counseling.
- Close supervision and monitoring by the court.
- Any other term that the prosecutor, judge, and your attorney find suitable in your case.
Defenses Your Attorney Can Raise to Challenge Your Drug Charge at Trial
You cannot undermine the benefit of having an attorney if you are under arrest or investigation as a suspect in any drug-related case. An experienced attorney understands that every criminal case is unique and will dedicate ample time to investigating your charges to prepare suitable defenses to help you avoid a conviction or obtain a favorable outcome.
Unfortunately, if you are not an excellent candidate for any of the above drug diversion programs, your attorney must prepare to challenge the allegations you are up against at trial. If everything goes in your favor at trial, the court could:
- Dismiss your case and allow you to go free.
- Reduce your charges to a less severe offense, carrying less severe penalties.
To obtain either of these outcomes at trial, your attorney must raise convincing defense arguments backed by proper evidence. Some of the defenses your defense attorney could apply to challenge your drug charges for the best possible outcome include:
- You are a victim of police entrapment.
- You are a victim of police misconduct, for example, racial profiling.
- You are a victim of mistaken identity.
- You have a valid medical prescription to use the drug in question.
- The police obtained the substance in question illegally through a warrantless search.
- The drug substance in question was not in your possession.
- The prosecutor has insufficient evidence against you.
Although every drug-related case is unique, with aggressive arguments, the above defenses could work to your advantage to secure a favorable outcome on your charges. When you are under arrest or charged with a drug-related offense, the rule of thumb is to work with a reliable defense attorney.
A reliable attorney who understands the ins and outs of the legal justice system can help you secure a favorable outcome, including Proposition 36 drug diversion to avoid a jail term. Here are a few tips or guidelines to help you find a dependable defense attorney without a hassle:
- Consider the defense attorney’s qualifications and experience.
- Consider the defense attorney’s reputation and credibility.
- Consider the defense attorney’s accessibility and availability.
- Consider whether the defense attorney has proper and legit licensing credentials.
- Consider the defense attorney’s cost of services.
- Consider the defense attorney’s communication skills.
Find a Credible Fresno Defense Attorney Near Me
You can rely on our seasoned attorneys at California Criminal Lawyer Group when you are under arrest or have pending drug charges in Fresno. No matter how severe your drug charge is, our defense attorneys will assess every detail of the case to prepare the best defenses to help you obtain a desirable outcome, including Prop. 36 sentencing.
We invite you to call us at 559-712-8377 for a cost-free consultation to learn how to avoid a possible jail term for a drug charge or obtain a desirable outcome.
