California residents in 2000 voted for more lenient sentences for suspects arrested and charged with non-violent drug offenses. This criminal sentence initiative is described under proposition 36, or the more common name of Prop 36. Under this initiative, qualifying suspects avoid jail terms and instead enroll in drug treatment programs.
Not every person qualifies for the program. However, if you are guilty of a non-violent drug crime, this is one of the most favorable outcomes. Under this plan, treatment for drug or alcohol problems is the main focus and not incarceration. Qualifying for the program is hard, but with an experienced attorney from The LA Criminal Defense Law Firm, you can receive a Prop 36 instead of an imprisonment sentence.
Overview of California's Prop 36
The definition of Prop 36 is found under PEN 1210-1210.1 and PEN 3063.1. Prop 36 is a drug diversion plan in California. This plan allows suspects who commit non-violent drug crimes to have the charges dropped or a conviction overturned and instead enroll in a treatment program that they must complete. The treatment program must, however, be court-approved for one to enroll. The treatment plan allowed by the court must include programs such as:
Educating the defendant on drugs or alcohol or both
Inpatient or outpatient treatment options
For drug addicts, replacement therapy and detoxification for alcohol addicts
Aftercare or treatment services
Remember that prison or jail facilities have drug rehabilitation programs. However, these are not covered or part of the Prop 36 initiative. Based on the initiative, first time or second drug possession conviction qualifies for the program as long as violence was not part of the offense. If you were found in possession of drugs for personal consumption, the offense qualifies you to the treatment program instead of incarceration.
Typically, the treatment program lasts for twelve months, but if the program coordinators find it critical to lengthen the period for you, a maximum extension of six months is permitted. Additionally, it is crucial to understand that the program is only available to you two times only. A third arrest or charge on a drug crime will result in standard legal penalties.
At the diversion program's onset, most participants in the program opted for outpatient treatment programs, but a small group opted for inpatient services. Other participants preferred detox as a type of treatment from court-approved clinics instead.
The treatment plan was also lenient to include parolees. This means, if you are a parolee and broke the law by committing a drug crime, you would qualify for the program. But, the offense, as in other cases, must have been non-violent. This means a breach of the law, in this case, will not result in your returning to prison, but instead, you receive an option to treat the addiction or educate you on the drugs.
What Drug Offenses are Considered Non-violent According to Prop 36
Many drug-related activities are prohibited in California. According to the law, if caught engaging in any unlawful activities, you face criminal charges and punishment. Although Prop 36 initiative deals with drug offenses, not all offenses that are drug-related qualify for the program. Some offenses or deeds that could be prosecuted qualify for Prop 36 instead of the standard sentence. These include:
Having narcotics for your use and not for sell or distribution according to the Act on controlled substances
Being a user of addictive medicines or narcotics or alcohol
Drugs that can qualify you for prop 36 include peyote, cocaine, ketamine, ecstasy, marijuana, heroin, Vicodin, and codeine. Again, some drug possession crimes do not qualify you to enroll in the Prop 36 program. When you commit them, they can qualify for the diversion program instead of a standard legal sentence. These offenses include:
Those that criminalize the possession of drugs or narcotics according to HSC 11350
Those that make it a crime to possess marijuana that is less than an ounce according to HSC 11357
Those that criminalize public intoxication according to HSC 11550
For example, you feel overwhelmed, and you buy marijuana for your consumption. On arriving home, you put on loud music and smoke your pot, annoying your neighbors. They call law enforcement officers because your loud music disturbs their peace. When the officers arrive and knock at your door, you come out smoking pot.
Besides charging you with disturbing the peace, the officers also charge you with possession or use of a controlled drug. During the arrest, you display no violence or resistance. If it is your first time or second time you face arrest, your criminal attorney can persuade the court to sentence you to the drug treatment plan.
But, if you were found with more drugs than is sufficient for personal use or were found with paraphernalia suggesting manufacture of the drugs, the offense is more severe. You did not qualify for Prop 36 even when no violence was displayed. Based on this, it is clear that some laws do not qualify for the treatment plan, even when the perpetrator was cooperative or the circumstances of the crime were not violent. Some of the offenses disqualified from Prop 36 include:
Possessing controlled substances in substantial amounts that qualify them for sale according to HSC 11352
Having marijuana for profit or for selling according to HSC 11359
Possessing methamphetamine for profit or other drugs, according to HSC 11378 and HSC 11379.
Although these drug crimes are not violent, when they are distributed or transported for business purposes make the offense more severe and disqualifies it from Prop 36. Additionally, other offenses are disqualified from Prop 36 because the deeds involving them make them more personal. The offenses include:
The cultivation of marijuana, according to HSC 11358. Based on this law, even when you cultivate them for personal use, its activity of producing or farming or cultivating disqualifies the offense from Prop 36
Having the drugs with you and at the same time having a loaded gun, according to HSC 11370.1(a). This means you could have drugs for private use in your house. However, if you are found with a loaded weapon, it becomes an aggravating factor. This factor enhances the offense such that you would not qualify for Prop 36, but you will be tried according to the law you have broken.
Other Reasons that Disqualify you from Prop 36
According to the earlier discussion, the charges you are facing may be eligible for Prop 36, but, despite the eligibility, you fail to be sentenced according to it. According to the law, this means the offense qualifies for the program, but you are ineligible for the program personally. Some of the reasons that might disqualify you include:
A Strike Conviction in your Record
When you commit an offense, your record remains a point of reference by law enforcement officers. If in your past, you were convicted for a serious felony that earned you a strike or was violent, you are ineligible for the treatment program. California's three-strikes law enhances the sentence a repeat offender receives, mostly if the conviction was recent.
However, if you earned the strike five years earlier, a current simple drug offense can qualify for Prop 36. But, the law puts a further restriction on the qualification. If you committed a different felony offense in the past five years, you would not qualify for the program.
If disqualified from Prop 36 due to your criminal past, the judge can't ignore your record or dismiss the previous offenses in your favor. But, if the offense in your past was handled in a juvenile court, you qualify for Prop 36. This is regardless of whether the past felony was a violent one or not.
You Face Two Criminal Charges, Including Non-Drug-related and Another Drug-Related, and You are Convicted on the Non-Drug-related Offense
Sometimes, you could be faced with two offenses simultaneously. In one of the offenses, you are charged with using drugs to have drugs for your use. This offense qualifies to be sentenced under Prop 36. But, at the same time, you are found guilty of a misdemeanor that is not drug-related or a felony crime. In this case, because of the conviction, you are disqualified from Prop 36 sentencing.
A non-drug-related misdemeanor means that the conviction never involved:
Standard use or possession of drugs or drug paraphernalia
Being where drugs are used
Refusing to be registered as a drug offender
Any activities resembling using or having drugs
For example, if you consumed drugs and drove your vehicle. An arrest will result in a driving under the influence of drugs (DUID) charge. Although the drugs you consumed them and were not for sale or distribution, facing a VEH 23152(f) charge disqualifies you from Prop 36. California courts consider DUID offenses as dangerous because other people are exposed to your drug use danger.
According to the above, your DUID offense was a nonviolent one that may earn you a misdemeanor sentence, but it makes you ineligible for Prop 36. But, the judge could also consider the facts of the offense and your criminal past. As a result, the additional charges can be dismissed at their discretion and have you qualified for the treatment program. This is different from when you have a strike in your record because an offense that earns you one is typically a dangerous one in comparison.
Committing a Drug Offense with a Loaded Weapon
Even when the offense of drugs you are charged with is non-violent, as earlier discussed, being with a loaded gun as you commit it aggravates the sentence. For instance, in the earlier example, when the police respond to the noise disturbance case, you open the door while smoking marijuana and with a loaded gun on your waist. The presence of the firearm alone aggravates the crime and disqualifies you for Prop 36, even when you had no plan of using the weapon.
Your Refusal to Submit to Drug Treatment
It is essential to understand that your offense may qualify for Prop 36, but you can decline it. The law will not force you to attend the program. If you are unwilling to participate in a rehabilitation program or treatment for your drug problem, it indicates that the program will not help you. In this case, your refusal disqualifies you from Prop 36 sentencing.
Being a Two Time Participant of Prop 36
Based on your criminal history, you may have previously committed two non-violent drug crimes that earned you sentencing under the Prop 36 initiative on the two occasions. If you are charged with a third repeat offense, the court may feel that the program is not helpful. Because of this, a third offense will result in legal prosecution and conviction for the crime. Further to your disqualification, you will earn a mandatory thirty-day jail time upon a conviction.
Prop 36 and a Lost Cause
Sometimes you may decide to undergo the standard criminal proceedings on your case, hoping to have it dismissed. Unfortunately, the results you were expecting fail, and you find yourself convicted of the violation. Fortunately, even after a conviction, you can still undergo the treatment program under Prop 36.
This means, following your conviction, your lawyer can petition the court to allow you to engage in the program instead of the penalties received. The judge considers the petition as well as the prosecution. The discretion to sentence you to Prop 36, however, is left to the judge.
Probation Penalty and Proposition 36
Before qualifying for sentencing under Prop 36 in California, you must:
Plead guilty or take a plea of no-contest to the non-violent drug charge you are faced with
Be convicted of the non-violent drug offense by the jury or judge in a California court
Be serving your parole sentence for an offense that was non-violent
Prop 36 allows a judge to penalize you with a probation sentence or adjust your parole's terms that will require completing your treatment program under Prop 36. Under this plan, the treatment program calls for random drug tests that you must adhere to, failure to which your sentence can be revoked. The judge hearing your case can impose more conditions on your probation or parole. These terms may include:
Attending vocational training
Attending or enrolling for counseling or therapy
Community service sentence
If you are eligible for Prop 36, you serve no mandatory jail sentence and your probation. However, if you violate the conditions outlined in your probation, you risk your sentence's revocation, and in its place, a prison sentence is preferred.
Situations that Result in the Violation of your Probation or Parole Terms
According to the law, when you are serving your parole or have earned probation as your sentence, you must meet particular expectations. After you qualify for the treatment program, you must never break the terms therein. If you are accused of violating your parole or probation terms, you must understand there will be consequences to your action. Some situations that can result in the revocation of your parole include:
Refusing to participate in the assigned program
Committing a crime while serving your probation or parole sentence
Refusing to participate in community service duties given
Failing to make payments as imposed by the court
When You Cannot Benefit from Prop 36 Treatment Program
The prop 36 treatment program does not benefit everyone assigned to it. The provider carries a periodic evaluation of the participants and generates a report indicating if it is beneficial to the particular person. If your provider feels the program is of no benefit to you, they will report their findings to the probation department or parole board.
Once the department or board receives the report, a hearing date is set to discuss your violations. Your lawyer can represent you and convince the court why your probation or parole should not be revoked. If following the hearing, the court decides to revoke the sentence; a jail time penalty is issued in place of the probation or parole.
Before a decision on whether you benefit or do not is reached, the judge considers the factors below:
If you broke any rule set forth by your treatment facility
If you repeatedly violated the rules resulting in the inability of the program benefiting you
You refused to participate in the treatment plan, or you asked to be removed from it
After these considerations and the arguments presented, a decision is reached that would include revoking the parole or probation and opting for incarceration.
Expected Repercussions on Violation of Probation or Parole Terms According to Prop 36
A common condition is not committing a criminal offense while serving your sentence. However, sometimes you may commit an offense, and still, the court allows you to carry on with your treatment program. However, when you violate these conditions, you are likely to face various consequences.
For instance, if you commit a non-drug-related offense or a crime that violates your probation or parole terms, you will face the consequences. In this case, you can be ordered to serve a mandatory thirty-day jail sentence for the violation. In the meantime, the court deliberates on reinstating your parole or probation sentence or revoking it altogether. If the court reinstates your sentence, more stringent terms may be imposed on your sentence.
If the court revokes your sentence instead, you will face legal punishments or penalties based on your crime. For example, if you are charged with theft, the offense is not related to a drug offense. However, because it is a criminal offense, you violate your probation conditions by committing it. When faced with these charges, the judge can opt not to reinstate your Prop 36 sentence and instead allow you to serve theft penalties.
Additionally, while serving your Prop 36 sentence, you may commit a non-violent drug-related offense. For instance, as you serve your sentence, you may be found smoking pot again. In this case, your parole officer will report the offense that calls for a hearing. Following the hearing, the court decides to reinstate or revoke the probation terms. If at the trial, it is established that you are a risk, the revocation of your probation or parole is automatic.
If the judge reinstates your probation or parole under Prop 36, more stringent conditions are put in place after the drug-related offense. These may include mandatory incarceration for two days or more. In other cases, if the drug-related offense involved the consumption of narcotics, the judge can sentence you to a residential treatment program.
Your Case after Prop 36
If you qualified for Prop 36, enrolled, and completed the program as required, you can petition for the dismissal of the charges against you. The court depends on the program provider and parole or probation officer's report to know if you adhered to the program’s terms. If the judge is satisfied, you never violated the treatment program's rules, completion of the program will result in the dismissal of your conviction.
According to the court, success is when you adhere to the program’s instructions the court gives. Additionally, successful completion means the program benefitted you such that you will not abuse narcotics again. The program seems like a more comfortable alternative from the discussion, but unfortunately, not many complete it successfully.
After the court expunges your record, you are free from the penalties and other criminal consequences. But, your rights to owning a firearm are not reinstated with expungement.
Find a Drug Crimes Lawyer Near Me
Drug-related offenses are severely punished in California. However, some drug offenses are not dangerous and require rehabilitation instead of jail sentences. If you are found in possession of drugs or intoxicated with drugs and are not selling them, the offense is considered less dangerous to society.
You can avoid jail time with the help of an experienced attorney and be able to receive a more favorable Prop 36 sentencing. At The LA Criminal Defense Law Firm, we understand the adverse repercussions of a drug crime conviction. Therefore, we aggressively fight to achieve the most favorable outcome. Call our office at 310-935-1675 to schedule a meeting and discuss your case further.