Prop 36

In California, drug offenses are treated very seriously. A conviction, even for simple possession, could land you in jail for a lengthy period and subject you to hefty fines, among other consequences. However, the state's legislators have made alternative sentencing options to incarceration available if convicted of certain drug offenses. One of these alternative sentencing options is Proposition 36. To obtain this option, you have to meet various qualifications, and an attorney can help you know what they are.

If accused of a drug offense in Santa Ana and wish to explore Proposition 36 as a sentencing alternative, please call the drug crime lawyers at Darwish Law today. Our lawyers can assist you in determining whether or not Proposition 36 applies to the case against you and advise on any potential legal defense you have.

Defining Proposition 36

Prop 36 is defined under 1210, 1210.1, and 3063.1 PC sections. It is a form of California’s drug diversion. Drug diversion refers to the exercise of dismissing a qualified offender's conviction or criminal charges if they finish a court-ordered drug treatment course. A court-ordered or approved narcotics treatment course is a program including one or several of these:

  • Aftercare services
  • Drug replacement therapy/detoxification services
  • Residential treatment/outpatient service
  • Drug education

Note that a court-approved drug treatment program does not mean the drug rehab programs are offered in jails or prisons.

Specifically, Proposition 36 changed the state's law to mandate that any first-time or second offender guilty of non-violent narcotics possession crimes undergo narcotics abuse treatment for a maximum of one year instead of serving time in prison or jail. The judge could prolong this period by a maximum of two more periods lasting six months each if need be.

Most participants enrolled in outpatient courses during the initial few years into the treatment program, which started after Prop 36 was enacted in 2000. Only about 10 percent attended residential programs, while very few attended drug-based detoxification programs such as methadone clinics.

Prop 36 additionally applies to most offenders released on parole, who break their parole terms by committing any non-violent narcotics possession crime. In most cases, any parolee that commits a so-called non-violent narcotics possession crime when still serving parole or breaks a narcotics-related parole condition is not returned to incarceration. Instead, they are required to take a drug-related treatment course.

Non-violent drug possession crimes under proposition 36 include unlawfully transporting/possessing any narcotic mentioned under the U.S Controlled Substances Act for own use or being intoxicated with or using any of those drugs. These narcotics include, without limitation:

  • Marijuana,
  • Methamphetamine,
  • Ketamine,
  • Ecstasy,
  • GHB (gamma-hydroxybutyric),
  • Peyote,
  • Heroin,
  • Cocaine,
  • Various hallucinogenic substances, for instance, PCP (phencyclidine), and even
  • Various prescription drugs, for example, hydrocodone and codeine.

Qualifying non-violent narcotics possession crimes generally include, without limitation, HSC 11357, the state's law against having less than an ounce of weed, and HSC 1150, the law prohibiting being intoxicated with an illegal drug.

A conviction of manufacturing- or sales-related drug offenses does not make you eligible for drug treatment under Proposition 36 since these crimes are not classified as non-violent drug possession crimes. Offenses that make you ineligible to enroll in Prop 36 drug treatment program include, without limitation:

  • HSC11379, sale or transportation of methamphetamine
  • HSC 11378, methamphetamine possession for sale
  • HSC 11359, marijuana possession for sale
  • HSC,11360, transportation/sale of weed (an exception is if you are found guilty of only transporting the drug for own use)
  • HSC 11352, transportation/sale of controlled substances (an exception is if found guilty of only transporting marijuana for your own use
  • HSC 11351, possessing drugs for sale

Convictions of drug possession when detained will also disqualify offenders from Proposition 36 narcotics treatment program.

Other Crimes Exempt from Proposition 36

California courts have also held that a conviction of any of  these offenses disqualifies an offender from Prop 36 drug treatment program since their activities are above personal transportation, use, or possession:

  • HSC 11368, forging/submitting a forged drug prescription to receive drugs
  • HSC 11370.1a, possessing a drug when armed with an operable, loaded gun
  • HSC 11358, marijuana cultivation (even if you are growing it for own use)

Additional Limitations on Prop 36 Eligibility

Apart from your crime qualifying for narcotics treatment under Proposition 36, you have to be eligible as well. Particularly, one of these five factors may make you ineligible to enroll in the Prop 36 treatment program:

  1. You Were Found Guilty of a Non-Narcotic-Related Felony or Misdemeanor Simultaneously

If, apart from the qualifying non-violent narcotics possession crime, you were found guilty in the same court proceeding of a felony or misdemeanor unrelated to drug use, you are not eligible to enroll in Prop 36 drug treatment course. The term 'misdemeanor unrelated to drug use' means a misdemeanor offense not involving:

  • Failure to comply with the drug offender requirement
  • Being present at a location of drug use
  • The simple use or possession of drug paraphernalia or drugs
  • Any similar activity to a personal possession or simple use

For instance, courts have reiterated that VC 23152(f) DUID is considered a misdemeanor unrelated to drug use. Thus, a conviction of this offense will make you ineligible for Proposition 36 drug treatment program. Courts reason that since a crime such as driving under the influence of drugs involves harm to other people, it is similar to a narcotic sales crime and thus goes beyond merely being intoxicated.

This means if a judge convicts you of any non-violent narcotics possession offense and a felony or misdemeanor unrelated to drug use, you do not qualify to face Proposition 36 sentencing. But unlike the law involving previous three strikes criminal charges, a judge has the authority to order a dismissal of the additional charges so that you qualify to face a Proposition 36 sentence.

  1. You Have Previously Been Found Guilty of Strike Offenses

If you were previously found guilty of any serious/violent felony (a strike per the state's Three Strikes laws), you would not qualify for Prop 36 drug treatment program unless your qualifying non-violent drug possession crime happened not less than five years after:

  • Your last release from custody, and
  • You were found guilty of a felony that is not a non-violent narcotics possession crime or any misdemeanor involving bodily harm or threats of bodily injury to someone else.

For instance, the judge found Eddy guilty of rape, a strike offense, in 2002. Eddy was imprisoned and set free in 2005. In 2009, he was detained for cocaine possession. Since his new drug-related case occurred not more than five years after being released for the strike offense, he does not qualify for Prop 36.

If you do not qualify under Prop 36, the judge lacks the discretion to dismiss the crime/crimes that make you ineligible.

Incidentally, since juvenile adjudications are not deemed criminal convictions, any case resolved by a juvenile court, regardless of whether or not it is a violent or serious felony, will not bar you from qualifying for Proposition 36 drug treatment program.

  1. You refuse to take a drug-related treatment course as a probation condition.
  2. You were armed with a gun or any other deadly/dangerous weapon when committing the non-violent drug possession crime, or
  3. You have been in two programs in the past.

If you were convicted of two distinct non-violent narcotics possession crimes and

  • You received a Proposition 36 for the two crimes, and
  • The judge trusts you are incapable of benefiting from (unamenable to) any additional narcotics treatment,

You will be disqualified from participating in another cycle of Proposition 36 sentencing. Apart from that, the court will also require you to serve at least one month in county jail.

Receiving Proposition 36 After You Lose Your Case

If you fight your non-violent drug possession charges and lose, you can still receive a Proposition 36 sentence. The good thing about Prop 36 is you could participate in the treatment program despite being found guilty at trial, provided you are eligible for it. This means you could take your drug case up to the trial stage and pursue an acquittal. Should the judge find you 'not guilty,' your case is closed. However, even if the judge finds you guilty, you could still do Proposition 36 rather than serve a jail sentence.

Probation Sentence In a Proposition 36 Case

To participate in a Proposition 36 program, you should:

  • Enter a nolo contendere or guilty plea to the non-violent drug possession charges against you,
  • Be pronounced guilty of the charges after a bench trial or trial by the jury, or
  • Be out on parole and, when still on parole, commit a non-violent narcotics possession offense or disobey any narcotics-related parole term or condition.

The judge will then order you to a probation sentence or modify your parole sentence with the directive that you complete a narcotics treatment program (this program includes taking drug tests). Although they are not obligated to, the judge might impose further parole/probation terms such as community service, vocational training, and family counseling.

Although, the judge cannot impose any incarceration period as one of the probation conditions unless you disobey your probation terms.

Parole or Probation Violations

Should you violate your parole or probation terms, there are several different repercussions the judge could impose based on the precise violation.

If You Are Incapable of Benefiting from Treatment

If the narcotics treatment provider has reason to believe you are incapable of benefiting from any kind of narcotics treatment, the parole board/probation department could revoke your parole/probation. If at the parole revocation hearing or probation violation hearing, the judge allows, the court could revoke your parole/probation and reinstate the incarceration period corresponding to your offense.

To establish whether or not you are incapable of benefiting from the treatment, the court could consider factors like whether or not you have:

  • Continually declined to enroll in the treatment program (or requested to discontinue the program)
  • Frequently violated the treatment program's rules and regulations in a manner that obstructs your capability to prevail in that program.
  • Severely violated the rules of the narcotics treatment facility

If You Disobey Parole/Probation Terms

If you fail to comply with any of your parole or probation terms, the court should still permit you to take part in Proposition 36 drug treatment program under most circumstances. When it comes to crimes other than non-violent narcotics possession crimes, if you have been subjected to parole or probation and either:

  • Violate your parole/probation condition that is non-narcotics-related, or
  • Commit a crime not categorized as a non-violent drug possession crime,

The judge may order an incarceration period of a maximum of thirty days while they determine whether to restore the probation/parole terms or not. If they opt to reinstate the terms, they could amend your treatment schedule and any other term they consider necessary. They might also opt to order a jail sentence of up to 30 days as punishment meant to spur your future adherence to drug treatment. Should the judge decide not to restore your Proposition 36 sentencing, they will just order the punishment for your underlying offense.

And when it comes to non-violent narcotics possession offenses, if you disobey parole/probation terms by:

  • Violating any drug-related probation condition (including conditions concerning drug treatment, counseling, vocational training, and employment)
  • Failing to comply with the drug offender registration requirement
  • Being in a place where narcotics are used
  • Committing any misdemeanor related to possessing drug paraphernalia/drugs or using drugs, or
  • Committing any non-violent drug possession crime

The judge will hold a hearing to establish whether they should revoke parole or probation. The judge must revoke parole/probation if the prosecution demonstrates by a preponderance of the evidence that you pose a threat to the public.

If the judge restores your probation sentence, they may impose stricter conditions and add a maximum of forty-eight hours of continuous incarceration to encourage your adherence further. If your violation depended on recent narcotic use, the court might direct that you join a residential drug treatment facility, if need be, a jail with a detoxification facility.

These same processes apply to defendants who have committed a second violation. But with second violations, the judge will revoke parole/probation if the prosecution proves the accused is either unamenable to drug treatment or poses a threat to society. And should the judge reinstate the probation sentence, they may order a jail sentence of up to 120 days to spur compliance. If the judge determines you violated parole conditions, you will not qualify for Proposition 36 sentencing anymore and will go to jail.

Third and subsequent probation violations also trigger a hearing. But here, the judge will rule that you are disqualified from continuing under Proposition 36 unless they believe you are amenable to further treatment and do not pose any threat to society.

Completion of Narcotics Treatment

Once you have completed your Proposition 36 treatment, you could file a petition in court seeking a dismissal of your conviction. Provided the judge confirms you have completed your treatment and substantially adhered to all the probation terms, they must vacate and dismiss the charges against you.

Successfully completing narcotics treatment means you have done the drug treatment course approved by the judge and recommended by your treatment provider. It also means there is reason to believe you will not abuse drugs anymore. This might seem easy, but the fact is that in the initial few years after Proposition 36 was enacted, only about a third of the offenders who enrolled in the program succeeded in finishing it.

After your charges have been expunged per the state's expungement statutes, you will be released from any disability or penalty that was caused by the crime, except you may still be prohibited from possessing or owning any concealed weapon.

Also, with few exceptions, after the dismissal of your case, you may lawfully say you have never been found guilty of or arrested for the crime that led to you being enrolled in a treatment program. These exceptions necessitate that you should still disclose your conviction or arrest:

  • With regards to any matter concerning serving on a jury
  • Whenever applying to any local/state organization that contracts with the California State Lottery
  • In any application or questionnaire for public office
  • In response to a police inquiry and in any peace officer application

Find a Competent Drug Crimes Attorney Near Me

Always keep in mind that you have legal options if charged with or arrested for a drug-related crime in Santa Ana, CA. At Darwish Law, we boast expert drug crime attorneys who defend persons charged with offenses ranging from simple possession to transportation and sale of narcotics. We do not take on cases only to negotiate plea agreements. If an alternative to incarceration or a drug treatment program is available and will help your case, we will do everything legally possible to obtain that option for you. We are knowledgeable and aggressive lawyers who know how to obtain a favorable outcome in drug-related cases and assist clients in qualifying for Prop 36. Contact us any time at 714-887-4810 for a consultation and to share the details surrounding your case.