Crimes that involve possession of drugs are serious in California. These crimes are punishable by either jail term or hefty fines. Certain drug offenses qualify a person for pre-trial diversion programs instead of going through court proceedings. Once you complete the program, your criminal record is expunged. If arrested for drug offenses in Los Angeles, you will need the service of a skilled attorney to defend you. Our attorneys from The LA Criminal Defense Law Firm have in-depth experience with drug crimes.

Pre-Trial Diversion for Drug Crimes According to the Law

If caught for small offenses concerning drugs in California, the state allows you to go through a drug rehabilitation program. The justice system considers prosecuting such cases as wastage of money and effort, mainly if it is a first-time offense.

According to the Penal Code 1000PC, you qualify for a pre-trial diversion for drug crimes when committing a specific drug-related offense. The program shields offenders from going through a court proceeding, which will leave you with a permanent criminal record. When you complete the program, your criminal charges will be dismissed. However, if you fail to meet it, you will be taken back to court for the trial.

The law was formerly known as deferred entry of judgment ("DEJ"), which required defendants to first plead guilty of the drug-related charges before going through the drug crimes. If you failed to complete the diversion program, you’d be found guilty of the charges. Since 2018, the DEJ has been renamed pre-trial diversion for drug crimes, which allowed defendants to choose a not guilty plea and still go through with the program. After completing the program successfully, the charges would be dropped. But if you failed to abide by the program’s rules, you will go through the trial.

California Proposition 36

California prop 36 does not support the offense of either growing or forging your prescription to obtain marijuana, unlike penal code 1000 PC. Under prop 36, you will first plead guilty to the charges brought against you before committing to a diversion program. However, you automatically qualify for the diversion program as long as you meet all the requirements. However, once you complete the program, the judge may choose not to dismiss your charges. Under penal code 1000PC, even though you meet the judge's requirements, you can decide whether you should go through the treatment program.

Eligibility of Pre-trial Diversion

Not every offense is eligible for pretrial diversion. Penal code 1000PC has set out some of the violations that qualify a person to go through the program. These offenses are:

  • Possession of a Controlled Substance

This law involves possession of a controlled substance without a prescription from an authorized person. If you are arrested for and charged with possession of a controlled substance under Penal Code 11350(a) HS, you will be eligible for the program.

  • Unlawful Possession of Cannabis Under Health and Safety 11357

This law warns against the possession of Cannabis. The law specifies the following as crimes:

  1. Possession of 28.5g or more of Cannabis or selling the drugs.
  2. Possession of marijuana as a person under 21 years of age, contrary to California laws on drugs.
  3. Possession of the drugs while the school is in session on the K-12 grounds.

The penalties for the crime is either a six months jail term or a fine of $1000

  • Possession of Paraphernalia Under Health and Safety 11364

The law forbids possession of an opium pipe or device/instrument used to inject or smoke an illegal substance contrary to the law. However, some exceptions apply to the rule. The exceptions involve possessing the tool only if:

  1. You are going to use it personally.
  2. You have a prescription from an authorized person.
  • Unlawful Cultivation of Marijuana

California Health and Safety Code 11358 HS warns against the cultivation of marijuana. The offense is considered a misdemeanor with a six-month jail term if convicted or a $100 fine.

  • Possessing Cannabis Placed in an open container in a Vehicle

California Vehicle Code 23222 (b) CVC is an open container law that warns against driving with an open container containing marijuana. The law specifies that the container must not be wide open, but even having its seal open is a crime.  However, if caught with the drugs, you won't be charged as long as you comply with California marijuana laws.

  • Health & Safety Code 11550 HS

The law warns against being under the influence of any controlled substance unless a licensed practitioner has administered them to you. Being under the influence of a drug is an offense that carries a jail term of up to one year in county jail.

  • Health & Safety Code 11365

It is a misdemeanor offense to aid or abet the use of drugs in a scene where a controlled substance is being used. Conviction of the crimes is a six months’ jail term or $1000 fine.

  • Forging Prescription to Obtain Drugs

California Health and Safety Code 11368 makes it an offense to either possess or forge a medical prescription to obtain controlled substances for personal use. Forging prescription to obtain drugs is a misdemeanor offense with up to one year in a county jail or a $1000 fine.

  • Possession of Methamphetamines

Health & Safety Code 11377 (a) HS warns against possessing methamphetamines for personal use. Simple possession is charged as a misdemeanor, which carries a jail term of up to one year in county jail or a $1000 fine. However, the crime can be charged as a felony if you have the following prior conviction:

  1. Sexually related offenses
  2. Violent crimes
  • Solicitation to Commit to Commit a Crime

California Penal Code 653(f) PC makes it an offense to solicit someone to commit an offense listed under the solicitation laws.  The law specifies that the person doesn't have to commit the crime or agree to engage as long as you solicited. A conviction of the offense results in a six months' jail term or a $ 1000 fine. Even though the crime is charged as a misdemeanor, you could be charged with a felony if the solicitation involves violent sex.

  • Possession of Nitrous Gas

California Penal Code 381 PC makes it an offense to purchase or possess nitrous gas, which is also known as laughing gas. You are guilty of the crime if: 

  1. You are found in possession of either nitrous oxide or any other substance containing nitrous oxide.
  2. You planned on inhaling, breathing, or ingesting the substance to become "high."

This is a misdemeanor offense, which has a jail term of six months or a $1000.

  • Public Intoxication

California penal code 647(f)PC states that being intoxicated by either drugs or alcohol in a public place and disturbing other people is an offense. The crime has a six months jail term in a county jail or a $1000 fine.

  • Possession or Sale of Controlled Substances: Sedatives and Benzodiazepine Drugs

It is illegal to possess certain controlled substances which fall under drugs classified as sedatives and benzodiazepine. These drugs include Valium, Xanax, Ativan, and Klonopin. The crime is charged as a wobbler of offense. Wobbler offenses are those which can be charged as either a felony or a misdemeanor.  If convicted for a misdemeanor charge, you will face a jail term of one year. If convicted for a felony charge, you face a jail term of up to three years in either county or state jail.

People Eligible for the Pretrial Diversion for Drugs

Not everyone is eligible for the program even though they might have committed the offenses listed under penal code 1000PC. The law states that you only qualify for the program if:

  • You have never been convicted of any drug-related crimes.
  • The crime you have committed should only be possession related and not selling of a controlled substance.
  • The offense should not be related to violence or threat of violence.
  • You have never been convicted of any crime that is considered a felony within the last five years.
  • You have no prior probation or parole violations.
  • You have not gone through a pre-trial diversion program before, particularly within the last five years.

Also, there are certain drugs only covered by the program. They include cocaine, heroin, peyote, gamma-hydroxybutyric acid ("GHB"), ecstasy ("X"), ketamine ("Special K"), methamphetamines, marijuana, and prescription opioids.

The courts' primary focus is not drugs but whether the program will be useful to you before enrolling you in it. If you meet all the available rules and requirements for the diversion program and agree to it, the court will give you a list containing the available treatments. However, you must first waive your right to a speedy trial. Generally, the treatment list includes:

  • Alcohol treatment
  • Victim restitution
  • Drug treatment
  • Probation

The judge will decide the best treatment, and you will start the program, which runs for about one and a half years.

The Process of Pretrial Diversion Program

When law enforcement officers arrest you for crimes of possession of drugs, they will decide whether there is enough evidence to charge you. If the evidence is enough, they will take the case to the prosecutor, who will review and determine if it falls under penal code 1000PC. Once he decides that you qualify for pre-trial diversion, he will inform you through your defense attorney.  

The prosecutor will also inform you of how the program is conducted, including all the requirements, and ask you to make a plea for the crime you've committed. He will also warn you of the repercussions if you don't abide by the program's rules. You may be given tips on how to answer questions related to any criminal offense if you complete the program.

The court may also request a probationary investigation concerning your case. The research involves going deeper to learn who you are, including your work, family, military, education, and drug history. The investigating officer will also check and determine whether you are eager to go through the diversion and overcome it. When you are willing, it shows a need to change and heal from drug abuse.

The investigating officer will write a recommendation letter to the court concerning the best treatment for you. But it is upon the judge to recommend the treatment that you should take. Once you have enrolled in the program, the probation officer will regularly monitor your progress and periodically update the judge. But even if the judge chooses a treatment program for you, you will have the final say on whether to attend or no. If you choose not to, the case will proceed to trial.

Pre-trial Diversion Program Operation

The recommended treatment is administered in your local area from a licensed supervisor hired by Los Angeles county. You may also choose a program outside your county as long as the program is licensed.  You will have to submit occasional urine samples for a drug test to ascertain that you are not taking the drugs. If you fail these drug tests, you will be disqualified from the program and face the possession charges. If charged, the prosecutor will not use any information you might have provided during your time at the program against you in court.

Keep in mind that pretrial diversion programs are free for all eligible offenders in California. However, you will have to pay restitution fees, which are less than $1000. The judge is under discretion to determine the amount of cost that you should pay. He may also choose to waive this fee, depending on the circumstances.  

Consequences of Not Attending the Program

The court mandates the drug program for all eligible offenders. The judge will follow up on your progress to ensure you are participating. However, certain circumstances may arise that may render you ineligible for the program. These circumstances occur if:

  • You have failed to attend the program.
  • You have a conviction for a charge that is considered a felony, according to California laws.
  • The program is not benefiting you as it should.
  • You have engaged in criminal activities.
  • You have engaged in a misdemeanor offense, which shows a tendency to commit violent crimes.

If removed from the program due to engaging in the above activities, you will be taken back to court. There will be a hearing before a judge to determine whether you broke the laws. If this is proven, the program will be terminated, and you will be tried for the original offense.

When you have successfully completed the program, it will be like you never committed any offense. By this time, you would have been advised on how to respond to questions concerning your history. But, if asked whether you committed a crime on which you completed the diversion program, the law permits you to say no. The records will not even come up in any background searches, especially when looking for employment. However, if you apply for specific jobs, especially in law enforcement, you should disclose that you went through the program. Some other governing agencies may also refer to your arrest history when disciplining or awarding you a license.

Related Options for Diversion Programs

There are other diversion programs that an offender can be enrolled in under California laws. These are:

  • Mental Health Diversion Programs

The mental health diversion program is illustrated under Penal Code 1001.36. The diversion program is for convicted offenders with mental health problems. The program can run for up to two years. The mental health program covered by the diversion programs are:

  1. Drug treatment.
  2. Therapy sessions
  3. Counseling

Just like the drug-related program, only those with certain conditions qualify for the program. The conditions include:

  1. When you have a mental health condition that is not related to pedophilia, borderline personality, or antisocial personality disorder.
  2. The crime you committed was greatly influenced by your mental disorder.
  3. You waived your right to a speedy trial.
  4. A mental health practitioner recommended you for the program.
  5. You are not a risk to public safety.
  6. You agree to enroll in the mental health program.

If you fail the program, there will be a hearing where the judge will decide whether you should be charged for the offenses or modify the treatment program.

  • Military Diversion for Veterans with PTSD

California Penal Code 1001.80 PC states that veterans or active duty service members with mental health conditions who have committed misdemeanor offenses qualify for the diversion program. The treatment includes:

  1. Substance abuse
  2. Mental health disorders
  3. Sexual trauma
  4. Post Traumatic Disorder(PTSD)

Find a Criminal Defense Attorney Near Me

If arrested for possession of drug offenses, you must seek the help of an experienced attorney. Your defense attorney will review your case and explain all the possible defenses and outcomes of the case. Your attorney should give you an overview of the available diversion programs available. A skilled attorney will help you understand and make the right decision, so consider The LA Criminal Defense Law Firm to help represent you. Whether you choose a diversion program or a trial, we will be there for you. Call us at 310-935-1675 for a consultation.