WHAT IS PROPOSITION 36?
The “Substance Abuse and Crime Prevention Act”, which is also known as, Proposition 36, was passed in California in the year 2000. The purpose of this Act is to provide an alternative to being sentenced to jail time for a drug related crime. A requirement to be eligible for this alternative this that the crime was a drug related offense, not involving violence. In lieu of serving time in jail, Proposition 36 allows you to complete a drug treatment program. There are many benefits to selecting the option provided by Proposition 36; a major benefit is that the crime will not appear on a subsequent background check.
California Penal Code §§1210.1 through 1220, as well as §3063.1 lay out the terms of the Proposition 36 diversion program.
Individuals who are eligible to participate in, and complete, the drug diversion program will have their criminal charges or conviction dismissed. Participation in the drug diversion program will require the individual to complete any number of tasks, which are tailored to the individual themselves. These requirements can include: (1) drug education, (2) residential treatment or outpatient therapy, (3) detoxification or narcotic replacement therapy; or (4) aftercare services. This is a non-exhaustive list.
The Act, created by Proposition 36, allows people convicted of drug offenses, which don’t involve violence for the first, or second, time to receive twelve (12) months of substance abuse treatment in lieu of jail time. This can be extended twice for up to six (6) months.
WHAT ARE NON-VIOLENT DRUG POSSESSION OFFENSES?
In order to qualify for the Proposition 36 drug diversion program, you must have been convicted of a non-violent drug possession offense. The definition of a non-violent drug possession offense is (1) using, or being under the influence of, any drugs listed in the federal law known as the “Controlled Substances Act: and (2) transporting, or possessing, any of those substances for personal use.
There are a number of substances listed in the federal law referred to as the “Controlled Substances Act.” A non-exhaustive list of the substances include: (1) GHB, (2) peyote, (3) cocaine, (4) heroin, (5) ecstacy, (6) ketamine, (7) methamphetamines, (8) marijuana, (9) PCP, and (10) Vicodin.
A few examples of the types of non-violent drug possession offenses that would trigger the benefits provided by the Proposition drug diversion program:
Julia was smoking crack at her house listening to Rage Against the Machine. Julia answers a knock at her door, unaware that it was a police officer verifying a noise complaint. Julia is eligible for the drug diversion program created by Proposition 36.
Tom is carrying someone’s ketamine in his backpack, unaware that is in his bag, when he is stopped for jaywalking.
WHAT OFFENSES "DON'T COUNT" FOR PROPOSITION 36 PURPOSES?
• CHS §11351 – A California law prohibiting possession of an illegal substance for sale.
• CHS §11352 – A California law punishing the transportation or sale of controlled substances.
• CHS §11359 – A California statute prohibiting the act of possessing marijuana for sale.
• CHS §11360 – A California law prohibiting the transportation or sale of marijuana.
• CHS sections §11378 and §11379 – A California law, which regulates the sale of "lesser" controlled substances.
OTHER CRIMES THAT DO NOT TRIGGER PROPOSITION 36
There are some crimes that do not trigger the alternative sentencing provided by the Proposition 36 drug diversion program. This is because they consist of more than simply possessing a controlled substance for personal use.
• CHS §11358 - A California law prohibiting the cultivation of marijuana. CHS §11370.1(a) – A California law prohibiting the possession of an illegal drug while in possession of an operable weapon, which loaded.
• CHS §11368 – A California law prohibiting the act of forging or presenting a forged prescription to obtain illegal substances.
OTHER RESTRICTION ON THE ELIGIBILITY TO THE PROPOSITION 36
The offense and the person must qualify for alternative sentencing provided by the Proposition 36 diversion program.
There are five (5) ways that an individual can be disqualified from participating in the alternative sentencing option provided by Proposition 36 diversion program.
PRIOR “STRIKE” CONVICTIONS.
If you have been convicted of one, or more, violent felonies that trigger a “strike” under the California “three strikes law”, you will be ineligible to participate in the Proposition 36 diversion program unless one of two things are shown: (1) you were released from jail for the violent felony occurred more than five (5) years prior to the current qualifying non-violent drug possession offense, and (2) the conviction involved actual harm, or threat of actual harm to another person.
Tom was convicted of assault with a deadly weapon (a strike), and was released from prison in 2013. In 2016, Tom was arrested for possession of ketamine. Since the qualifying non-violent drug possession offense occurred less than five (5) years after his release from prison for a “strike” crime, Tom is not eligible for the alternative sentencing provided by the Proposition 36 diversion program.
SIMULTANEOUS CONVICTIONS OF A MISDEMEANORS OR FELONY NOT INVOLVING VIOLENCE.
If you are charged with both a drug possession offense, not involving violence, at the same time as a related misdemeanor or felony, not involving drugs, you will not be eligible to participate in the Proposition 36 diversion program.
A common example of a misdemeanor involving something unrelated to drugs, is driving under the influence (“DUI”). A DUI is defined by California Vehicle Code §23152(a). Courts have decided that this is more than the simple use of drugs, as it creates a risk of harm to others.
You were armed with a deadly weapon, such as a gun, at the time of the non-violent drug possession offense.
You refused treatment for drug treatment as a probation condition.
You have already participated in the diversion program created by Proposition 36. Also, it is important to mention that defendants can fight for their cases and still trigger the Proposition 36 if they lose.
RECEIVING A PROPOSITION 36 SENTENCE
In order to receive participation in the diversion program offered by Proposition 36, you must satisfy one of the three situations below:
(1) Yu must either plead “no contest” or “guilty” to a drug possession charge, not involving violence.
(2) You must be convicted of a drug possession crime, not involving violence through a bench (only the judge is present) trial.
(3) You must be an individual who has been released from a state prison in California (“parole”), and while released, either commit a drug possession crime, not involving violence, or violate the terms related to drugs as condition of your parole.
If you receive probation sentence along with your Proposition 36 diversion program sentence, the court may, but is not required to, impose additional terms on that probation. Additional terms may include: (1) family counseling, (2) community service; and (3) job training.
WHAT CONSTITUTES VIOLATIONS OF THE PROBATION OR PAROLE UNDER PROPOSITION 36?
If you violate any terms of probation or parole associated with a Proposition 36 diversion program sentence, the court may impose different, more severe, consequences. The punishment will vary based on the extent of the violation.
(1) Unamenable to treatment.
If the entity providing your treatment believes you simply will not benefit from the program, the parole board, or the department may revoke your probation or parole. If the judge agrees that you will not benefit from the program, they may also revoke your probation or parole and replace it with a period of jail time.
Violation of the Terms of the Probation or Parole.
Courts are willing to allow an individual who committed another crime while on probation or parole if
• The individual committed a non-violent drug possession offense; or
• The individual violated a condition, unrelated to drugs, of their parole or probation.
An example of an offense other than a non-violent drug possession crime is as follows:
• While on parole under a Proposition 36 drug treatment sentence for possessing special k in downtown San Diego, Tom hits a parked car and flees the scene; this is a misdemeanor hit and run under California law. Tom may be incarcerated for up to thirty (30) days, while the Court determines whether or not to continue Tom’s probation, or parole. The Court may add additional restrictions to the terms of Tom’s probation or parole.
As it related to non-violent drug possession crimes, if you violate the terms of your parole or probation by doing any of the following:
• Committing a drug possession offense that is non-violent
• Being charged with a misdemeanor possession of drugs, or drug paraphernalia
• Being present in a region where drug use is common
• Not complying with the requirement to register as a drug offender
• Be in violation of a condition of probation, which relates to drugs.
If any of the above occurs, a hearing will occur. The Court must revoke your probation or parole if there is sufficient evidence that you are a danger to the public.
Should the court opt to continue allowing you to remain on probation or parole, they can modify the terms of the program, and add 48 hours of time in jail to provide incentive for you to successfully complete the program.
COMPLETION OF THE TREATMENT
Once you have successfully completed the diversion program offered through Proposition 36, you may petition the Court to dismiss your conviction. If the Court confirms that you have, in fact, satisfactorily completed the drug diversion program, the Court will dismiss the case against you. To successfully complete the diversion program, you must have completed all the requirements imposed on you by the Court. Additionally, completion does not occur until the Court has a reasonable belief that you will not abuse controlled substances in the future.
WHAT LEGAL DEFENSES CAN MY OCCA ATTORNEY PUT FORTH IN COURT FOR ME?
If you have been charged with a non-violent drug possession offense, a skilled attorney from Orange County Criminal Attorney can seek to enter you into the Proposition 36 drug diversion program instead of serving any time in jail. Naturally, this is preferable to serving time in jail. There are other tangible benefits to entering into this program; specifically, you can have the charge removed from your record, which will help you in any situation where a background check will occur. Contact an OCCA attorney immediately if you have been charged with a non-violent drug possession offense.