Prop 36

Proposition 36, also referred to as the Substance Abuse and Crime Prevent Act of 2000 or Prop 36 is a criminal sentencing initiative that falls under California drug diversion programs. The primary objective of Prop. 36 is to provide an alternative sentencing method to drug offenders charged with non-violent offenses. Instead of serving a jail or prison term, those who qualify for this proposition are required to take part in a 12 months drug treatment program. The program is purposely designed to make sure that individuals are not necessarily held in custody because of their addiction. It’s also meant to curb the devastating number of drug addictions cases.

Under California PC 1210, Prop. 36 is mostly accessible by first time drug offenders charged with simple possession or drug use offenses. Initially, drug offenders were required not to have any serious or violent felony convictions appearing on their criminal records. But from November 2012, the drug treatment program became open to offenders with two strikes for a simple drug offense conviction, provided the convictions occurred at least five years after you were convicted or after you were last released from prison. These individuals would have otherwise been subjected to a potential 25 years to life imprisonment if convicted of a third strike.

Despite the fact that defendants who have suffered drug related conviction before can still access prop 36, this proposition is not available for individuals charged with an offense related to manufacturing drugs, transporting, possession for sale, and/or cultivation of drugs. This proposition exclusively covers individuals charged with either simple possession or personal use of drugs. Also, to qualify for Prop 36, the offender must be considered amenable to treatment and willing to comply with the terms and conditions of the probation.

How Proposition 36 Work

Once an individual qualifies for Prop 36, he or she will be required to enter a guilty plea or “no contest” to the specific drug charge with an understanding that if they successfully undertake a court-approved drug treatment program, they will have their charges dismissed. This is followed by the judge putting on hold the criminal proceedings and places the perpetrator on a formal probation instead of imprisonment. The defendant will be required to participate in a treatment program that lasts a maximum of one year.

Apart from the court-approved drug treatment program, the judge has the discretion to establish additional conditions of the probations to help in monitoring the respondent’s progress. This conditions may include, regular check-ins with a probation officer, random drug tests, requirement to pay treatment costs, court appearances, and other restrictions on the defendant’s way of life.

The convictions are set aside and charges terminated once the defendant effectively completes the program. Failing to adhere to the specific probation conditions may lead to withdrawal of the probation and the offender may be sentenced based on the underlying drug charges. Nevertheless, it’s important to note that the court is barred from foisting any period of imprisonment as a condition of probation unless the defendant violates terms and conditions of their probation.

The court-approved drug treatment program refers to a treatment program that includes:

  • Narcotic replacement therapy or detoxification services,
  • Drug education,
  • Residential treatment or outpatient services, or
  • Aftercare services.

It’s important to note that this treatment program is different from the drug rehabilitation programs that are usually offered in jail or prison facilities.

Being one of the drug diversion programs, Prop. 36 necessitates that first and second time defendants who have been convicted of nonviolent drug possession may receive up to one (1) year of substance abuse treatment. This can, however, be prolonged to two more six months periods, instead of jail term or imprisonment. This alternative sentencing scheme also applies to parolees who commit a non-violent drug possession offense and violate their parole. Usually, a parolee who is found to have committed a non-violent drug possession crime during their parole or violates a condition that’s drug-related will be required to undertake a drug treatment program instead of serving a prison term.

What are Nonviolent Drug Possession Offenses?

A drug offense is classified as non-violent if it involves unlawful:

  • Transportation or possession of narcotics for personal use, and/or
  • Use and/or being under the influence of any drug found in the Controlled Substances Act.

Some of the drugs listed in the United States Controlled Substances Act include:

  • Heroine
  • Cocaine
  • Peyote
  • Ecstasy
  • Ketamine (commonly referred to as “Special K”)
  • Gamma-hydroxybutyric acid (also referred to as “GHB”)
  • Marijuana
  • Methamphetamines
  • Certain Hallucinogenic substances like phencyclidine also referred to as “PCP”
  • Some prescription drugs like hydrocodone (Vicodin) and codeine

How Can One Violate Proposition 36 probation?

A defendant can violate the conditions of a probation either:

  • With a drug-related violation, or
  • From a non-drug related violation, like failing to check in with a probation officer, or failing to appear on a definite court date.

A non-drug related violation may lead to an instant probation termination and the defendant may have to serve a maximum 3 years prison term. Conversely, Prop 36 gives a latitude to those who violate probation conditions with drug-related crimes, of course depending on the number of violations committed. If the defendant violates probation conditions for the very first time, he/she may be subjected to a serious or stringent treatment program. However, if the court finds the respondent a danger to society, the judge can instantly annul probation and this would lead to the offender facing a prison sentence based on the underlying charges.  

If the defendant is a second time violator of probation conditions, the court may transfer them to a more stringent drug treatment program. Nevertheless, the court can choose to withdraw probation by means of a less restrictive standard than the one used before. If the respondent is proven to be “unamenable to treatment” the court can revoke his or her probation. A third drug-related violation will result in the respondent being denied the chance to continue with the treatment under Proposition 36. He/she will face a sentencing of up to 3 years in a state prison.

In determining whether a defendant is amenable to treatment, the judge may consider whether the defendant:

  • Repeatedly violated the rules of the program in a way that hinders the ability to continue functioning in the program
  • Committed a serious violation of the rules set forth at the treatment facility
  • Recurrently refused to take part in the program or have requested to be withdrawn from the drug treatment program

Other Factors That Could Disqualify You from Proposition 36 Eligibility

While determining whether one qualifies for Prop 36, a number of factors are considered, including the type of offense committed. Even if your offense qualities for the Prop 36 drug diversion program, you, as the defendant must qualify as well. Here are five additional restrictions on eligibility for Prop 36.

  1. You have prior strike convictions

If you’ve been convicted of one or more serious or violent felonies, you cannot qualify for sentencing under proposition 36, unless the current nonviolent drug possession crime took place not less than five years after you were:

  • Released from prison, and
  • Convicted of either a misdemeanor that involved physical injury or the threat of physical harm to the person of another or a felony other than a nonviolent drug possession.

For instance, James is convicted of assault and battery-a strike under California Three Strikes law in 2000. He’s imprisoned and released in 2004. He then gets arrested again in 2008 for simple possession of cocaine. In this case, James is not eligible for Prop 36 because he picked up the new drug case less than 5 years after he was released from prison.

If you’re not qualified under this section, no judge has the discretion to terminate the offense(s) that disqualifies you. It’s also important to note that, any case determined by the juvenile court cannot prevent one from qualifying for proposition 36 sentencing even if they’re considered serious or violent felonies. 

  1. You were simultaneously convicted of a non-drug-related offense

You are not qualified to take part in proposition 36 sentencing if you were convicted in the same proceedings of either a nonviolent drug possession offense and either a felony or misdemeanor not related to the use of drugs. The misdemeanor, in this case, does not involve failing to register as a drug offender, being present where drugs are used, simple possession of drugs or paraphernalia, or any activity similar to personal possession or simple use offense.

Different from the rule involving prior “three strikes cases” a judge has the discretion to terminate this type of additional charges to ensure that you qualify for a Prop. 36 drug diversion. 

  1. You refuse drug treatment as a condition of probation,
  2. You were armed with a deadly weapon when you were arrested for the nonviolent drug possession offense
  3. You have taken part in two other California Prop 36 programs before

You do not qualify to take part in another round of Prop 36 sentencing if you have two separate prior convictions for nonviolent drug possession offense and

  • For both of those offenses, you were sentenced under Proposition 36 and
  • the judge is certain that you’re unamenable to any further drug treatment.

Is It Possible to Contest Your Case and Still Take Part in Proposition 36 If You Lose?

If you qualify for Prop 36, you will still have the opportunity to take part in the program even if you’re convicted at trial. The program does not hinder you from taking your drug case all the way to trial and shoot for an acquittal. If you’re acquitted, your case is over. But even if you are found guilty, you can still do proposition 36 instead of serving a jail term.

Successful Completion of Drug Treatment

You may petition the court to dismiss your conviction after successfully completing your California Proposition 36 drug treatment program. The judge must set aside and dismiss your case if he/she believes that you’ve substantially complied with all the terms and the judge can attest to that. Successful completion means that you followed the treatment as ordered by the court.  It also means that there is reasonable belief that you’ll no longer be involved in any abuse of controlled substances. Once your charges are expunged, you’re released from all disabilities and penalties that resulted from the offense, but you may not be able to possess or own a firearm that is a concealed weapon.

With very few exceptions, you may be able to report no arrest or conviction for the offense that resulted in your treatment.  However, your arrest and conviction must be disclosed:

  • When asked by a law enforcement agency or when applying for a position as a peace officer
  • In any questionnaire or application for public office
  • With respect to any issued concerning serving on a jury
  • When applying to a local or state license agency

Contact Leah Legal Today for Assistance

Drug charges and convictions are serious matters that can get complicated quickly. If you or your loved one is facing drug related charges, you need to contact a criminal defense attorney as soon as possible. Drug offense charges require a deep knowledge in the area and an experienced attorney who specializes in this area of law and understands the specific judicial system your case is presented before can be a great resource. Prop 36 drug treatment program could get you on the right track to making positive life changes and at Leah Legal, we’re committed to ensuring that your future is protected.

We can help determine if you're eligible for Prop 36 and if you’re not, we can still negotiate the drug charges down so that you may participate in the drug diversion program. We at Leah Legal are experienced in California drug cases and have successfully convinced prosecutors to allow our clients to take part in the drug treatment program. Time is of the essence in such cases, so, please contact ustoday at 818-484-1100 for a free, no-obligation consultation.