Prop 36

If you face charges for a non-violent drug offense, you could be eligible for alternative sentencing under Proposition 36 instead of a prison or jail sentence. If you qualify, you will receive treatment and rehabilitation instead of punishment. You will also return to your life after completing the treatment program and cannot face trial for the same offense in the future. However, the eligibility process for the sentencing initiative under Prop 36 and the laws regulating it can be complex.

You could benefit from the help of a skilled criminal lawyer who helps you understand whether you qualify and what you can gain from it. Our California Criminal Lawyer Group team can also aggressively fight in court to ensure you receive a fair hearing and outcome for your case. Therefore, you can count on our support if you face drug-related charges in Anaheim.

Understanding Proposition 36

Drug crimes are some of the most severely punished offenses under the law. Anyone found guilty of illegal possession, production, sale, or distribution of controlled substances receives a severe sentence that could include time in prison and a hefty court fine. But since 2000, Prop 36 has changed the sentencing guidelines for people facing minor drug-related charges. Through this sentencing initiative, you could qualify for drug treatment and rehabilitation if you are guilty instead of prison for punishment. However, the judge considers several factors, like your criminal history and case circumstances, to establish whether you are eligible for rehabilitation. If not, they will sentence you to prison or jail as the law provides for your particular offense.

Under PC 1210 and 1210.1, Prop 36 is a diversion program for drug-related offenders facing charges for non-violent offenses. The law has several diversion programs under various statutes that allow eligible drug-related offenders to undergo treatment instead of punishment and have their arrest and conviction records dismissed upon successful completion. If the judge sentences you to drug diversion, you will serve your sentence in a rehabilitation center offering court-approved treatment programs. Court-approved treatment programs for drug offenders provide the following services:

• Drug treatment.
• Outpatient services and residential treatment.
• Narcotic replacement and detoxification therapy.
• Aftercare services.

They are different from rehabilitation programs offered in jails and prisons.

Under Prop 36, you could qualify for drug treatment if you are a first or second-offender facing sentencing for a non-violent drug offense, like simple possession of a controlled substance. If the judge allows, they can send you to a twelve-month treatment program instead of prison or jail. The judge can extend the period for two to six months if needed. The advantage of serving your sentence in a treatment program is that you can turn your life around and live a crime-free life afterward.

When the program began in 2000, most of the defendants who qualified attended outpatient treatment programs. Only a small percentage ( about 10%) attended residential programs. Also, just a few needed detoxification treatments are offered in programs like methadone clinics. Things have since changed, and the number of beneficiaries for both outpatient and inpatient programs is slowly increasing.

Parolees significantly benefit from Proposition 36. If you commit a non-violent drug-related offense and violate your parole, the judge can sentence you to drug treatment instead of prison or jail time. Also, if you violate a parole condition related to drug use, you will likely not be sent back to jail. Instead, the judge can order you to rehabilitate in a treatment program.

But it is necessary to understand what the law defines as non-violent drug offenses to understand better if you can benefit from Prop 36.

Non-Violent Drug Offenses under Proposition 36

You are considered a non-violent drug offender if you are arrested for the following offenses:

• For using or being high on a controlled substance under the Controlled Substances Act.
• For possessing, moving, or transporting a controlled substance for one's own use.

Controlled substances are all drugs whose consumption, possession, and sale are controlled by the law. They include the following:

• Heroin.
• Cocaine.
• Peyote.
• Ecstasy.
• GHB.
• Ketamine or special K.
• Marijuana.
• Methamphetamine.
• Some hallucinogens, like phencyclidine,
• Some prescription drugs, like hydrocodone and codeine.

Here are examples of qualifying non-violent-related offenses:

• Possession of controlled substances under Health & Safety Code 11350 and HS 11377.
• The illegal possession of Marijuana under HS 11357.
• Being high on controlled substances, under HS 11550.

Example: While responding to a domestic violence call, the police accidentally knock on Smith’s house. But they find him smoking marijuana in his living room. There is also a clear indication that Smith is under the influence of marijuana. Since he does not have a criminal history and the drug crime he is facing charges for is non-violent, the judge can sentence Smith to a drug treatment facility instead of jail.

Note: Serious drug crimes like manufacturing, possession for sale, or sale of controlled substances do not allow you to receive treatment in the drug treatment program under Prop 36. This is because these offenses are not classified as non-violent offenses. Examples of crimes that will not qualify you for sentencing under Prop 36 are as follows:

• Possession of controlled drugs for sale, under HS 11351.
• Transporting or selling a controlled substance, under HS 11352, except if evidence shows that you transported the substances for your own use.
• Transporting or selling marijuana, under HS 11360, except in cases where you transport marijuana for your own consumption.
• Possession for sale of marijuana, under HS 11359.
• Possession of methamphetamine for sale, under HS 11379.

Example: The police arrest Michael for being high on marijuana. On further investigation, they find him possessing more drugs than he needs for his own use. Thus, they charge him for possessing marijuana for sale. Michael does not qualify for alternative sentencing under Prop 36 in this case. He is not eligible for a treatment program. Instead, the judge can sentence him to jail or prison, depending on the details of his case.

Additionally, you do not qualify for alternative sentencing under Prop 36 for drug possession crimes you commit while serving another sentence for a different crime.

Other Offenses Exempt from Alternative Sentencing Under Prop 36

Since their acts go beyond possessing, using, or transporting for personal consumption, criminal courts in California have disqualified the following drug offenses from qualifying for alternative sentencing under Proposition 36:

• Cultivating marijuana, under HS 11358, even when the marijuana is for personal consumption.
• Being in possession of a controlled drug while also armed with an operable or loaded gun, under HS 11370.1(a).
• Presenting a fake or forging a prescription to receive a controlled drug under HS 11368.

Other Restriction on Who can Qualify for Alternative Sentencing under prop 36

There is usually no guarantee that you qualify for alternative sentencing because your offense allows it. You must also meet the qualification criteria for the judge to sentence you to a drug treatment facility instead of jail/prison. Typically, the law provides five actors you must meet to qualify for Prop 36 sentencing guidelines:

You Must Not Have a Strike Conviction In Your Record

Under the Three-Strike Law, a strike conviction occurs when you are convicted of a serious or violent felony, like robbery or murder. If you have a strike conviction on your record, you will not qualify for alternative sentencing under Proposition 36, except in the following situations:

• The qualifying non-violent drug offense happened five years or more after your release from prison for the strike offense.
• The conviction was a felony offense and not a non-violent drug crime or a misdemeanor offense involving physical injury or threats of harm to another person.

Example: Tiffany is arrested and convicted of murder, a strike offense under the Three Strikes Law. She was released after serving her prison sentence. But three years later, she is facing charges of possession of methamphetamine. Since her current arrest happened less than five years after her prison sentence for the strike offense, she does not qualify for alternative sentencing under Prop 36.

Note: Juvenile adjudications are not lawfully considered criminal convictions. Thus, all cases resolved in juvenile courts, even for serious and violent felonies, do not prevent a person from qualifying for alternative sentencing under Proposition 36.

Your Sentence for a Non-violent Drug Offense Must Not Occur At The Same Time as Your Sentence for a Non-Drug Felony or Misdemeanor

If you face charges for two offenses, one of which is a qualifying non-violent drug charge, you will not qualify for alternative sentencing under Proposition 36, even though the other charge is not drug-related. Note that the additional charge can be a felony or misdemeanor and not involve the following:

• Simple possession of controlled substances or paraphernalia.
• Being in a place famous for the sale or use of controlled substances.
• Not registering your details as a habitual drug offender.
• Any other acts similar to the simple possession or use of controlled substances.

For example, VC 23152(f), the law against operating a vehicle while under drug influence, is unrelated to drugs under the Controlled Substances Act. In that case, if you violate this law, which is mainly a misdemeanor, you will not qualify for alternative sentencing under Proposition 36. It is because a crime like that puts others at risk of harm, so your actions go beyond the simple possession of drugs for your own use. It means if you are guilty of a non-violent drug offense and another crime unrelated to drug use or possession, you will not qualify for alternative sentencing under Prop 36.

But unlike the first criterion (involving a strike offense), judges do not have the choice to dismiss the additional charge to qualify you for drug treatment instead of jail or prison time.

You must not have committed a non-violent drug offense while armed with a dangerous weapon like a gun or knife.

You should not have refused to participate in rehabilitation as a probation condition.

You should not have two prior instances when you participated in drug treatment under Prop 36 in your record.

If there are prior convictions for two different non-violent drug offenses under your record and your sentencing was under Prop 36 in both instances, and the judge concluded that you could not benefit further from drug treatment, you are not eligible for alternative sentencing under Prop 36 if you face a third non-violent drug charge. Additionally, the judge will require you to spend at least thirty days in incarceration for the third offense.

Note: If your case qualifies for alternative sentencing under Proposition 36, but underlying factors disqualify you for this alternative sentencing, your case can proceed to trial. Fortunately, you can fight for alternative sentencing rather than a jail or prison sentence in court. It means you can still join the treatment program even after receiving a sentence for a non-violent drug charge.

You take the case to trial and then fight for acquittal with the help of an aggressive criminal attorney. If the judge delivers a ‘not guilty’ verdict, the case will end, and you will be released. But if the judge gives a ‘guilty’ verdict, your attorney can fight for alternative sentencing under Prop 36 in place of a jail or prison sentence.

Probation in a Proposition 36 Case

For the judge to agree to sentence you to drug treatment in place of jail or prison, you must fit into any of the following categories:

• To have pleaded guilty or no contest to a non-violent drug charge.
• To have received a criminal conviction for a non-violent drug offense after standing trial.
• To have violated a parole condition related to drug use or committed a non-violent drug offense while on parole.

Note that you are on parole if you were released from prison before the end of your sentence.

The judge will sentence you to probation or modify your parole if you fall into those categories. They will then require you to finish a treatment program as a condition of your probation. The treatment program will also include submitting to regular drug tests. The judge can impose additional conditions on your probation, including the following:

• To undergo vocational training while on probation.
• To seek family counseling.
• To participate in community service.

The judge will not impose a jail or prison sentence as a probation condition, except if you violate your probation. If you violate any probation condition or your parole, the judge has several consequences to impose based on the particular violation.

What If You Can Not Respond to Drug Treatment?

If the person or institution administering the treatment concludes that you cannot benefit from drug treatment, the parole board or probation department can revoke your parole or probation. But before then, the judge will hold a hearing to discuss your parole/probation violation or revocation. If, after the hearing, the court agrees to the revocation, the judge will send you to jail/prison for the period necessary for the underlying offense.

For the judge to decide whether or not you cannot benefit from drug treatment, they will consider specific issues, like the following:

• If you violated an important rule by the facility administering the drug treatment.
• If you repeatedly fail to follow the program’s rules in a manner that shows your inability to take part in the treatment program,
• If you continuously failed to involve yourself in the treatment program or requested removal from it.

What happens When You Violate Your Probation Conditions?

The judge can still let you continue receiving treatment after violating your probation condition. But suppose you commit a crime that does not qualify for alternative sentencing under Proposition 36 while on probation/parole or violate a probation condition related to drug use. In that case, the judge can sentence you to thirty days in jail as they determine whether to reinstate the probation conditions. If the judge reinstates your probation/parole, they can modify your therapy and other necessary terms.

The judge can also choose a jail sentence of thirty days as punishment to encourage compliance with the treatment in the future.

If the judge chooses to do away with the Prop 36 sentence, they will sentence you according to the law's requirements for the underlying drug offense.

If, on the other hand, you commit any of the following offenses and violate your parole, the judge will first conduct a hearing to establish the seriousness and consequences of the violation:

• A non-violent drug crime.
• A misdemeanor related to the possession or use of drugs or paraphernalia.
• Being present in a place famous for drug use or sale.
• Refusing to register your details as a habitual drug offender.
• Violating drug-related probation conditions, like vocational training, employment, drug treatment, and counseling.

The purpose of this hearing will be to decide whether or not they should revoke your probation/parole. The judge will revoke your probation/parole if the prosecutor proves you are a threat to the public. If the judge decides to reinstate the probation, they will intensify the conditions and add forty-eight hours of continued incarceration to your sentence. The purpose of this mandatory incarceration is to encourage compliance in the future.

If the violation is related to a recent use of drugs, the judge can require you to join a residential drug treatment program or a jail with a detox program. The same guidelines apply if you commit another violation. But for the second infraction, the judge can revoke your probation/parole if the prosecutor proves you are a danger to the community or cannot benefit from the treatment program.

If the judge reinstates your probation/parole after another violation, they will send you to jail for a maximum of 120 days to encourage future compliance.

Third and subsequent violations also trigger a court hearing. But the court will likely rule that you are ineligible for Prop 36 sentencing unless you threaten the safety of your community and the court believes you could benefit from the treatment program.

What Follows the Successful Completion of Treatment?

If you successfully complete your drug treatment as recommended under Prop 36, you can request that the judge dismiss the conviction. After receiving your petition, the judge will review your case and your performance while on probation to decide. If the judge approves that you performed well in the treatment program and complied with the probation terms and conditions, they will set aside or dismiss the case.

Successfully completing your treatment means completing the treatment the drug treatment facility the court ordered you to join recommends. Additionally, it means that the judge has reason to assume that you no longer have a drug problem.

Once the judge dismisses your case, they will also expunge your conviction record. That will release you from all the liabilities and disabilities resulting from the conviction, except that you will not be allowed to possess or own a gun that you can conceal on your person (a concealed firearm). Once your conviction is expunged from your criminal record, you can legally say that you were never tried or found guilty of the crime that resulted in drug treatment, except in the following situations:

• When applying for a peace officer job.
• When responding to an inquiry by law enforcement.
• When applying for public office.
• If applying for local or state licensing.
• When responding to any issue related to serving as a juror,

If someone or an agency conducts a background check on you, they will not find the conviction in your record. Thus, an employer will no longer decide to hire you based on that particular conviction.

Find an Experienced Anaheim Criminal Lawyer Near Me

Do you or a loved one face a non-violent drug charge in Anaheim?

You could benefit greatly from alternative sentencing under Prop 36. That will allow you to undergo drug treatment in a court-recommended treatment facility instead of being punished in prison or jail. But you must meet all eligibility criteria for the judge to decide.

We can help you fight for alternative sentencing at California Criminal Lawyer Group if you believe you can benefit more from drug treatment than incarceration. We will explain your options and then fight alongside you for the most favorable outcome for your case. Call us at 714-766-0965 to learn more about Prop 36 and how it can benefit your situation.