The Substance Abuse and Crime Prevention Act of 2000, often known as Proposition 36, is one of the drug diversion programs for non-violent offenders in California. The main aim of the initiative is to prevent non-violent offenders from going to jail by giving them a chance to undergo drug treatment while adhering to set parole conditions. While the Prop 36 program has various benefits (as we will discuss later below), there are people who might not be eligible for the program, in which case you might consider other drug diversion programs. If you are arrested for a drug crime in the Los Angeles area, get in touch with us at Los Angeles Criminal Attorney so that we can evaluate your case and see how we can help you enroll in the diversion program instead of spending time in jail.

An Overview of Prop 36 (The Substance Abuse and Crime Prevention Act)

California had long been facing the challenge of housing addicts in custody before 2000. The justice system’s main aim was to sentence and punish individuals rather than offer them a chance for addiction treatment. The overwhelming support of The Substance Abuse and Crime Prevention Act in 2000 meant that many people wanted a system that would be more geared towards preventing further crimes by treating people who commit crimes because of drug addiction. These individuals should instead serve mandatory community service than spend time in jail.

Prop 36 is codified under Penal Code 1210 and 3063.1, and Health and Safety Code 10.8. Under the law, drug offenders will have their charges and convictions discharged after successfully undergoing a drug treatment or rehabilitation program. If you are a first-time or second-time offender, you will be required to undergo the treatment for 12 months. The court can extend the period at its discretion. The treatment program must be court-approved and its main aims are:

  • Drug education
  • Detoxification therapy
  • Outpatient treatment
  • After treatment services

Prop 36 does not decriminalize crimes. Rather, the initiative gives consumers and addicts a chance to live normally. This means the offender would not likely commit drug-related crimes in the future since they are free from drug addiction.

What Are Non-Violent Drug Crimes

Non-violent drug crimes are offenses committed when you unlawfully use or are under the influence of any drug listed under the Controlled Substances Act. The most common substances are Marijuana, Cocaine, Ecstasy, heroin, GBH, Meth, Codeine, Ketamine, etc. Possessing or transporting these substances for personal use is a non-violent drug crime. In short, non-violent drug crimes that can qualify for the Prop 36 diversion program are:

  • Being under the influence of a controlled drug
  • Possession of a controlled substance for personal use
  • Transportation of a controlled substance with no intent to sell

Who Does Not Qualify for Prop 36?

As mentioned above, Proposition 36 program enrolls people who commit non-violent drug-related crimes. So, you won’t be eligible for crimes that do not fall under that category. Some of these crimes (that are non-violent) include:

  • Cultivation of marijuana
  • Possession of narcotics for sale
  • Transportation of narcotics for sale
  • Possession or transportation of meth for sale

Other eligibility criteria that will disqualify a person from Prop 36 are:

You Have a Prior Strike Conviction

California Three Strikes Law Stipulates that offenders receive a “strike” or additional sentence for any further crime they commit. Most of these offenses are categorized as felony offenses, which involve the use of violence in most cases.

However, you might qualify for the Prop 36 program if the felony offense in question was committed more than five years ago, and you haven't committed any other felony offense within the last five years. You might also be eligible if your felony case was resolved in the juvenile court.

You Have a Concurrent Conviction Unrelated to Drugs

A concurrent conviction means you are convicted of a crime that is not related to drugs at the time of being convicted of a non-violent drug crime (that qualifies for Prop 36). In this case, the crime should be a misdemeanor that is not drug-related.

A typical example of a non-violent misdemeanor crime is Driving Under the Influence of Drugs (under 23152 f and g). In this case, a DUID conviction is a misdemeanor that is likely to endanger other people’s lives and damage property. So the court might consider you to be ineligible for a treatment program so that you can serve the DUID sentence.

With the help of a defense attorney, a judge can dismiss the concurrent misdemeanor charge so that you can enroll in the treatment program. This will depend on the circumstances surrounding your case.

You Had a Loaded Gun While Committing a Non-Violent Drug Possession Crime

Having a loaded gun is usually an aggravating circumstance to criminal charges. Regardless of whether you intended to use the firearm or not, you will likely face the most severe punishments for the offense, whether the offense was non-violent drug-related or not. As such, the court is likely to deny you a chance for drug diversion.

You Have Participated in The Program Twice

The drug treatment program is meant to deter individuals from participating in subsequent crimes. If you are arrested for a non-violent drug-related crime for the second time, you can still qualify for drug treatment. However, committing subsequent related crimes means Prop 36 might not benefit you. In this case, the judge will consider other sentencing options like jail/prison sentences or alternative drug treatment programs.

You Refused Drug Management as a Probation Term

One of the probation terms for drug crimes, whether informal or formal probation, is participating in a drug rehabilitation/treatment program. This can entail attending drug education classes or availing yourself for regular assessments. If you refused or violated this probation term, you are likely unwilling to change when placed under the Prop 36 treatment program.

Note that you might not be eligible for Proposition 36 because of the above reasons, but all defendants have specific case circumstances. Thus, you should seek help from a knowledgeable Los Angeles drug crimes defense attorney to evaluate your case to see if they can convince the court to enroll you. You might also be eligible for other drug diversion programs like the Penal Code 1000 program and the Los Angeles drug court.

How to Join the Prop 36 Program and Probation Conditions

How Do I Join?

Joining the Prop 36 program is not always automatic. First, a hearing should be done to evaluate your eligibility. The hearing should also evaluate if the program will benefit you and society. In this hearing, you must either plead guilty to the non-violent drug-related crimes that are eligible for the program. Alternatively, you can plead no contest, in which case the court will prosecute the case to find you guilty of the alleged crime.

Note that pleading no contest can be advantageous if you strongly believe you are innocent and the case will be dismissed. This is because you might enter a guilty plea for a case that could end up being dismissed were it to be prosecuted. That is why it is crucial to have legal counsel to advise you on what to do when facing criminal charges.

The law allows you to enter the program if you are on parole. However, the crime that you were convicted of must be a non-violent drug-related crime. Also, the probation terms will be adjusted to add or extend terms like vocational training, community service, and therapy. You might also be required to find employment or undergo random drug testing. Violating these terms can lead to serious punishments under the law.

Prop 36 Probation or Parole Conditions and How it Works?

Once you are eligible to join, the judge will enforce probation conditions depending on the circumstances of your case. For instance, a person on probation for the first time might receive a shorter probation period than a person who was previously on parole.

The most common conditions/terms are:

  • Get regular drug assessments from a Drug Addiction Expert
  • Attend a court-approved drug treatment facility
  • Avoid taking drugs or going to places with regular drug users
  • Attend regular court meetings and/or pay your treatment costs
  • Be available for regular drug screenings
  • Attend after-treatment care six months after the completion of your treatment
  • Attend literacy and vocational training to help you develop positive skills and secure employment

Most Prop 36 treatment programs have different supervision and treatment levels that are geared toward the same goal — help in drug addiction recovery while providing skills that will ensure a person does not commit a subsequent drug-related offense.

The first step involves random drug testing and outpatient counseling. This stage is not usually strict. Here, your administrator will evaluate your progress and decide whether to introduce a stricter treatment plan, like inpatient counseling and regular drug testing.

The next level will depend on your progress in the above treatment plan. It usually involves an introduction of stricter plans like residential plans. Treatment under this level varies depending on an individual’s addiction levels and the likelihood of success if the treatment continues.

If you pass your regulator’s evaluations and drug tests, you will undergo the final stages of treatment that involve unsupervised treatment for a few months.

Once you have completed the set months without violating any probation or parole terms, you will have completed the Prop 36 program.

What Happens If I Violate the Probation Conditions?

As mentioned earlier, you might be eligible for the Prop 36 program if you have been in the program twice before. This is because courts are usually willing to overlook some offenses that do not pose danger to society. In any case, the court will determine whether to enroll you in the treatment program or revoke your probation/parole.

Usually, the court (through the Parole Board or Probation Department) will allow you to continue with parole or probation after violating the set terms when:

  • You commit a non-violent drug possession crime
  • You violate probation or parole conditions that are not related to drugs

The court will decide to terminate your probation or parole if it decides that you are a threat to society. In this case, you will receive punishments for the probation violation and/or a sentence for the primary offense. In some cases, you will receive additional punishments for any additional offense you committed while under treatment.

If you violate the probation conditions for the second time, you will likely face harsher penalties. The court might also sentence you to 120 days in jail. Violating the probation terms for the third term can make the court disqualify you from any Prop 36 program.

Violating the probation or parole conditions is not the only way the court can terminate or revoke your probation/parole. This can also happen if you request to leave the program or the court deems you are not benefitting from the program.

Reinstatement after Parole/Probation Violations

The court will reinstate you to the treatment program in various instances. First, the court will set stricter terms to encourage you to comply with the terms. For example, the court can place you in jail for up to 48 hours. If the violation relates to drug abuse, you might be placed in a detox facility or a more structured residential treatment plan.

Reinstatement after a second violation will require proof that you are not a danger to society and are likely to benefit from the program. This can include a sentence of 120 days to ensure you don’t violate further terms.

After the second reinstatement, the court will most likely disqualify you from the Proposition 36 program, unless you can prove that you can still be rehabilitated and are not a threat to society.

What Happens After Completing Proposition 36 Program?

Completing the program means you have not violated probation or parole terms and the court has not revoked your parole or probation. At this point, you must prove that you have completed the set time frame and are not likely to abuse drugs in the future. You might also be required to prove that you have gained employment if the terms required you to do so.

Then, you can petition the court to dismiss your conviction. This will entail filing a petition to dismiss your charges and conviction and presenting it to the DA and Probation Department. Then the court will set a hearing date to determine if your charges and convictions should be dismissed.

Essentially, the hearing date evaluates whether you completed the treatment program and are not likely to abuse controlled substances.

A dismissal will allow you to not disclose your charge/conviction to potential housing agents or employers. Your original rights will be restored but you won’t be allowed to carry a concealed firearm. However, a dismissal does not exempt you from disclosing your charge/conviction if you are applying to serve as a police officer, peace officer, or any public officer.

Pretrial Diversion (Penal Code 1000) Vs. Prop 36

PC 1000 diversion program is a California drug diversion program that allows you to undergo treatment before a trial. This typically happens to first-time drug offenders who would want to undergo a drug treatment program in cases of a slow trial.

One of the differences between PC 1000 and Prop 36 programs is that you cannot qualify for the PC 1000 program if you fail to complete it for the first time. This means the court will reinstate your charges when you fail to complete the PC 1000 program. Consequently, you will undergo a criminal trial where you will either be acquitted or found guilty. If you are found guilty, you might convince the court to enroll you in the Prop 36 program.

Another difference is that you must plead guilty to be eligible for Prop 36 while relinquishing your rights to a speedy trial. If not, you might undergo a lengthy trial and only be eligible for the program after a long time. However, you should get legal counsel to determine which approach is best for you.

The main advantage of PC 1000 (pretrial diversion) is that the court will automatically dismiss your charges once you complete the program. In contrast, you must petition the court to dismiss your charges after completing the Prop 36 program, which can even be rejected under the court’s discretion.

The Los Angeles County Drug Court Program Vs. Prop 36

The county’s drug court is one of the drug courts under the State’s drug courts. It contains specialized programs and juvenile drug courts.

This court program is one of the most successful programs. In contrast to Prop 36, you do not have to enter any plea. Also, it caters to a wider group of individuals compared to Prop 36 owing to its flexibility.

The Los Angeles County Drug court caters to the specific needs of individuals by collaborating with multiple stakeholders involved in the defendant’s case. Still, the services offered are similar to those under Prop 36 as they include drug tests, education classes, vocational training, and therapy. The program also requires individuals to adhere to probation requirements.

It might be hard for you to choose the most suitable diversion program since all of them are meant to alleviate drug addiction and prevent further drug-related crimes. So, you should involve the help of an attorney who is experienced in drug crime cases to help you decide which program is most suitable for you.

Prop 36 and The Three Strikes Law

The Three Strikes Law is a 1994 voter initiative that proposed a strike for repeat offenders of some felony offenses. As a result, a defendant would serve additional sentences for a subsequent felony conviction depending on the number of “strikes.” This would see a person with a third strike serve 25 years to life imprisonment.

Prop 36 modified elements of The Three Strikes Law in 2012 after the ballot initiative. The initiative re-defined what constituted a “third strike,” which would include violent or severe criminal acts. Hence, some drug crimes that were originally “third strikes” would be punished under the new law if they were not severe or violent felonies. For instance, non-violent drug offenses could be re-sentenced during the “third strike” to avoid 25 years to life imprisonment.

The initiative also initiated a review for people who were serving life sentences for non-violent drug crimes. The review meant that courts could release such prisoners or sentence them to a shorter period. This is a relief to most prisoners who were languishing in prisons because of committing non-violent drug crimes.

Note that the 2012 ballot initiative does not cover people who are convicted of rape, murder, or child molestation as these are considered crimes of moral turpitude.

The 2012 initiative was not only a relief to inmates but also to the state. The state could finally reduce the cost of housing inmates and also decongest jail and prison facilities.

Find a Drug Crimes Defense Attorney Near Me

Proposition 36 has been a major player in preventing subsequent drug crimes and decongesting our prison and jail facilities. The program has helped many people reform from drug addiction and lead normal lives. This program is just one of the drug diversion programs that you might be eligible for if you are facing drug crime charges. You might opt for a pretrial diversion program before if it is your first offense, but the Prop 36 program would be ideal if you didn’t complete your pretrial diversion.

Enrolling in the Prop 36 program is not automatic. You might require the help of an attorney to defend you in court and help convince the judge that you will benefit from the program. If you are not eligible, you might be able to enroll in another drug treatment program.

At the Los Angeles Criminal Attorney, we understand how diversion programs work and we invite you to engage with us today. We will evaluate your case and possibly help you join the treatment program. Call us at 424-333-0943.