Eligibility for Deferred Entry of Judgment – P.C. 1000

California drug diversion programs are only offered to defendants who are charged with specific drug offenses.

For the accused to be eligible to enter a drug diversion program all of the following criteria must be satisfied:

1)    When the defendant was arrested or charged with the crime, they must have been personally possessing or using the drugs and could not have possessed them for sale or distribution.
2)    The crime must not involve any allegation of violence or threatening violence.
3)    The defendant had no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense.
4)    There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violations listed below.
5)    The defendants record does not indicate that he or she has successfully completed or been terminated from a diversion or deferred entry of judgment pursuant within five years prior to the alleged commission of the charged offense
6)    The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.

The accused can only be eligible for entry into Deferred Entry of Judgment pursuant to Penal Code Section 1000, if he/she is accused of the following offenses:
•    Health and Safety Code Section 11350
•    Health and Safety Code Section 11357
•    Health and Safety Code Section 11364
•    Health and Safety Code Section 11365
•    Health and Safety Code Section 11377
•    Health and Safety Code Section 11550
•    Health and Safety Code Section 11358
•    Health and Safety Code Section 11368
•    Penal Code Section 381
•    Penal Code Section 647(f)
•    Penal Code Section 653(f)(d)
•    Business and Professional Code Section 4060

Eligibility for Proposition 36
Not all defendants convicted of a non-violent drug possession offense are eligible for probation and treatment under Prop 36. Subdivision (b) of section 1210.1 of the California Penal Code deems the following defendants ineligible for the program:

1.    Any defendant who has been incarcerated within the last five years for a serious or violent felony offense.
2.     If the defendant in the last five years the defendant has:
•    been convicted of a felony other than a Non Violent Drug Possession,
•    Has been in prison
•    Has been convicted of a misdemeanor involving physical injury or threat of physical injury (P.C. 1210.1 (b)(1)

3.    Any defendant convicted in the same proceeding of a non-drug related misdemeanor or felony.
4.    Any defendant who, during the commission of the offense, was in possession of a firearm and, at the same time, was either in possession of or under the influence of cocaine, heroin, methamphetamine or phencyclidine (PCP).
5.    Any defendant who refuses drug treatment as a term of probation (P.C. 1210.1(b)(4)
6.    Any defendant who has two separate drug related convictions, has participated in Prop 36 twice before, and who is found by the court by clear and convincing evidence to be unamenable to any and all forms of available drug treatment. In such cases the defendant shall be sentenced to 30 days in jail.

What is critical to understand is that the accused cannot be eligible for entry into Proposition 36 if they are accused of ANY OTHER CRIMES in addition to an eligible drug offense. This means if a person is accused of possession of cocaine under Health and Safety Code 11350 but in the same case is also accused of misdemeanor hit and run or misdemeanor DUI, then they cannot qualify for Proposition 36.

What this means is that you need to retain a highly experienced criminal defense firm that can attempt to convince the prosecution to dismiss any other offenses that make a person ineligible for the Proposition 36 program. At Wallin and Klarich we have been fighting for our clients who find themselves accused of drug offenses for over 30 years. We are here to fight for you now. Call us today at (877) 466-5245. We will be there when you call.

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