WHAT IS DIVERSION?
In California, there is something known as “deferred entry of judgment program”, this is commonly referred to as “DEJ.” The statute creating this program is California Penal Code §1000. This diversion program is available to first time drug offenders to choose drug treatment or education in lieu of jail time. Pursuing this option often has beneficial results for individuals, and obviously, keeps you out of jail. Having a competent attorney to guide you through the process can make your experience less painful. At Orange County Criminal Attorney, we have experience dealing with drug offenses and we understand the process. An OCCA attorney will fight to get you enrolled in DEJ.
WHO IS ELIGIBLE FOR THE DIVERSION PROGRAM CREATED BY PENAL CODE §1000
Eligibility for the Penal Code §1000 DEJ is based on two factors: (1) What offense you have been charged with, and (2) your personal history. Having an attorney to advocate for your inclusion in the diversion program will improve your chance of success.
THE CHARGED OFFENSE(S)
1. The crime must involve personal possession, or use, of illegal substances. This is in contrast to having an illegal substance for sale.
2. The crime cannot have a component of violence, or threats of violence included in it.
Below is a non-exclusive list of the most common drug offenses that occur in California:
• CHS §11377 and CHS §11350 this is one of many California statute’s relating to personal possession of a controlled substance.
• CHS §11357 A California law prohibiting the possession of more than one ounce of marijuana.
• CHS §11358 A California law prohibiting the cultivation of marijuana.
• CHS §11364 A California law prohibiting the possession of drug paraphernalia.
• CHS §11365 A California law which punishes those who are knowingly present in a location where illegal substances are being used. CHS §11550 A California law which punishes those who are using a controlled substance.
• CHS §11368 A California law prohibiting using a forged prescription to obtain drugs.
• Vehicle Code §23222(b) A California law punishing those who are driving under while they possess marijuana.
• Penal Code §647(f) this is California’s drunk in public law when you are under the influence of drugs.
• Penal Code §653f(d) A California law, which punishes those who solicit drug deals or drug transportation.
A non-exhaustive list of the drugs included in the federal statutory scheme commonly referred to as the “Controlled Substances Act” includes: heroin, cocaine, GHB, ecstacy, hallucinogens such as PCP, cocaine, and some prescription drugs like vicodin and codeine.
It is also worth noting that the California Penal Code §1000 diversion program allows conviction for offenses, which Proposition 36 does not trigger, such as cultivating marijuana for personal use, and forging prescriptions for your personal use.
In addition to requiring a qualifying offense to be eligible for the diversion program, your personal history must qualify as well. Not only the offense committed must qualify for the means of the PC 100 Drug Diversion program, but the offender's history must as well be eligible, To be eligible you must:
• Have never been convicted for a prior drug offense.
• Have never had probation, or parole, revoked without completing the conditions associated with that probation, or parole.
• Have not been involved in a DEJ program, or a drug diversion program, within the last five (5) years.
• Have not been convicted of a felony within the last five (5) years of your current conviction.
An individual is charged with the unlawful possession of cocaine, by the Little Italy trolley station. The individual is charged with a drug offense not involving violence, and placed on probation. During the probation period, the individual does not comply with the terms of his probation, and has it revoked. The fact that this person had his probation revoked for non-compliance makes him ineligible for the Penal Code §1000 drug diversion program.
In order to be eligible for a sentence allowing an individual to participate in the diversion program, the individual must plead guilty to the offense he is charged with. At this point, you will waive time for rendering the judgment. This means that the Court has permission to postpone sentencing, and allowing you time to complete the drug diversion program.
Once the Court sentences you to the drug diversion program, there will be an NA decision, which will direct you to the proper drug treatment program for you. When making this determination, the local probation department will take the following factors into account:
• How old you are.
• Your past employment and services.
• How much education you have.
• Your connection to your family and community.
• Any previous history with drugs, including treatment.
WHAT HAPPENS IF I AM FOUND TO BE UNAMENABLE TO TREATMENT?
If the treatment provider, the Prosecutor, or the judge believe that: (1) you are failing to follow the program rules, (2) you are not gaining the benefit the treatment is intended to provide, (3) you have been convicted of a misdemeanor, or a felony, that suggest a violent propensity; or (4) you have engaged in criminal conduct, which suggests you don’t fit within the program, the Court can take your previous guilty plea and impose the appropriate sentencing as if you had never been allowed to go to the drug diversion program.
WHAT HAPPENS WHEN I COMPLETE THE DRUG DIVERSION PROGRAM?
There is a very real benefit from successfully completing the drug diversion program. Namely, the case against you is dismissed, which means your record does not reflect that you pled guilty to a drug offense.
In order to successfully finish the drug treatment, you must have completed the drug treatment plan that was suggested by the Court. Further, there must be reasonable cause to believe you are no longer at risk of drug abuse.
ARE THERE OTHER DRUG DIVERSION PROGRAMS?
CALIFORNIA’S PROPOSITION 36
In 2000, California passed Proposition 36, which is commonly referred to as the “Substance Abuse and Crime Prevention Act.” Proposition 36 allows eligible individuals, non-violent drug offenders, to avoid jail time in exchange for participation in a drug treatment plan.
Proposition 36 is codified in California Penal Code §1210.1 through §1220, as well as §3063.1.
This form of the drug diversion program requires that Defendants who are convicted for the first or second non-violent drug possession crimes to receive up to twelve (12) months in a substance abuse program. This is extendable up to two (2) times for a period of six (6) months in lieu of time in jail.
This drug diversion program allows parolees who violated their parole by committing a non-violent drug possession offense to be eligible.
There are a few key differences between the Penal Code §1000 drug diversion program, and the Proposition 36 drug diversion program. A non-exhaustive list is presented below:
- Penal Code §1000 is applicable to more drug-related offense, which allows Defendants convicted of a violent, or serious, felony under California’s “three-strikes law” to participate in the drug diversion program. The Proposition 36 drug diversion program does not allow those type of individuals to participate
- When utilizing the Proposition 36 drug diversion program, the defendant must plead guilty to the underlying offense, and be subject to formal probation along with the additional terms related to the probation.
- In the event that a Defendant is eligible for the Proposition 36 drug diversion program, the defendant will automatically be sentenced under the terms of its provisions. Alternatively, under the Penal Code §1000 drug diversion program, the judge will decide whether or not you are eligible based on the crime, and the defendant’s personal history.
- When an individual completes the Penal Code §1000 drug diversion program, the charges are dismissed as a matter of course. Alternatively, once a defendant completes the Proposition 36 drug diversion program, they must petition the Court to dismiss the charges.
CALIFORNIA DRUG COURT
A similar drug treatment plan to Penal Code §1000 can be found in Penal Code §1000.5. Similar to Penal Code §1000, successful completion of the §1000.5 program will result in the immediate, automatic, dismissal of the charges against you. The main difference between Drug Court and the §1000 drug treatment program, is that a defendant does not first plead guilty to the underlying crime. This means that the criminal proceeding will be postponed to allow the defendant to complete the treatment program.
SAN FRANCISCO’S “BACK ON TRACK” PROGRAM
San Francisco has their own diversion program known as the “back on track program.” This program is for defendants who are between the ages of eighteen (18) and thirty (30), who have been arrested for low level drug sales for the first time. Low level is defined as charges involving less than five (5) grams of a controlled substance.
In addition to completing this diversion program, people who participate in this program most complete a six (6) week screening phase, as well 120 hours of community service.
To complete the screening phase, the Defendant must plead guilty to the underlying offense so that the Court can suspend the sentencing process for a year. There are two possible outcomes for a defendant: (1) their participation in the program can be terminated, and the sentencing process resumes, or (2) they complete the program, and the underlying charges are dismissed.
Each participant in this program has requirements specific to them, the requirements can include, but are not limited to:
• Earning a diploma from high school.
• Going to a community college.
• Becoming gainfully employed.
• Obtain a stable living environment.
• Receiving therapy to address underlying problems.
Orange County Criminal Attorney has had great success when representing our clients, and advocating for inclusion in a diversion program. Utilizing our extensive experience, OCCA attorneys will build the strongest case for your inclusion in a diversion program. If you have been convicted of a drug-related crime, contact an OCCA attorney today.