Drug Diversion Violations
P.C. 1000- Violations
Under California Penal Code Section 1000.3, if it appears to the prosecuting attorney, the court, or the probation department that the defendant is:
• performing unsatisfactorily in the assigned program; OR
• the defendant is not benefiting from the education, treatment, or rehabilitation; OR
• that the defendant is convicted of a misdemeanor that reflects the defendants propensity for violence; OR
• the defending is convicted of a felony; OR
• the defendant has engaged in criminal conduct rendering him or her unsuitable for differed entry of judgment
The prosecutor or probation officer can notify the court that they believe that you have violated one or more of the terms outlined above. If this happens, the court will hold a hearing to determine if in fact you have violated the terms of PC 1000.3. If the court finds this to be true, the court can impose a sentence upon the defendant for the crime in which they entered a guilty plea when they accepted deferred entry of judgment.
What this means is prior to accepting deferred entry of judgment per P.C. 1000 the defendant should strongly consider, whether the person believes that they can successfully complete the program. There is a major “reward” for successfully completing PC 1000. The defendant will not be incarcerated, they will no longer be on probation, and will not have a criminal conviction on their record. However, to attempt to obtain this “reward” the defendant must admit their guilt of the crime and understand if they violate the terms of PC 1000, they will be exposed to jail time and will have a criminal record.
Proposition 36 – Probation Violations
Under California Penal Code Section 1210.1, there are two categories of probation violations during the Prop 36 program with significantly different consequences. An individual may violate their terms of probation by committing a non-drug related crime, such as a simple petty theft. However, an individual can also violate their probation by committing a drug related violation, such as possession of cocaine. The descriptions and consequences for the violations are explained further below:
Non-Drug Related Violations
1. Arrest for an offense that is non violent drug possession
2. Violating a non-drug related condition of probation
A non-drug related offense is any crime that does not involve the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender.
Consequences for violating probation where the basis is non-drug related violation:
If the court finds that an individual has violated their probation, it has the authority to remove the defendant from the Prop 36 program and the defendant can be sentenced outside of P.C. 1210 to the full extent of the law.
Drug Related Violations
1. arrest for a non violent drug possession
2. being present where drugs are used
3. failure to register pursuant to H.S. 11590
4. any similar activities listed above
5. Failing a drug test
6. Failing to participate in the “drug treatment regimen”
7. Failing to maintain employment
8. Failing to go to vocational or education training, if ordered
9. failing to participate in psychological/ family counseling if ordered
10. Failing to report to probation, if reporting was part of the treatment regimen
11. Failure to appear in court for monitoring review of P.C. 1210 progress if part of regimen
12. those areas encompassed by P.C. 1210.1(f)
Consequences of violating probation where the basis is a drug related condition of probation:
The Prop 36 program was created to assist individuals arrested for drug related crimes by providing an opportunity for rehabilitation generally through an outpatient drug treatment program. Because the intention of the program is to rehabilitate, individuals found in violation of their probation due to drug related crimes are generally given a few “chances” before the court imposes jail time.
If an individual is found to be in violation of one of drug related violations listed above, the court has the authority to increase the terms of the treatment and also impose more community service and fines. Generally, the court will not impose jail time unless the defendant poses a danger to public safety pursuant to P.C. 1210.1(e)1.
If an individual is found to be in violation of one of drug related violations listed above a second time, again the court has the authority to increase the terms of their treatment and also impose more community service and fines. Generally, the court will not impose jail time unless the defendant poses a danger to public safety. However in addition, the court may also impose jail time if they believe the defendant is unamenable to drug treatment, pursuant to P.C. 1210.1(e)1.
If the court finds that an individual has violated the terms of their probation a third time, the court has the ability to terminate the defendant from the Prop 36 program and impose a jail or prison sentence, which can be up the maximum sentence the defendant could have faced for the crime they plead guilty to. Also the court has the ability to refer the accused to drug court for further evaluation.
What this means is that if an individual is permitted to enroll in the Prop 36 program, the law permits the judge to give the accused “some chances” if the individual violates probation, so long as the violation is one a drug related violation listed above. However, after two mistakes the defendant needs to realize that they are not likely going to be given any further chances and if they are found to violate their probation a third time it is probable that they will be removed from the Prop 36 program and will end up with a jail sentence and criminal record.
The term “drug-related condition of probation” shall include a probationer’s specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.
Because drug diversion programs can be complicated to understand, it is important that you talk to an experienced criminal defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in handling all types drug related charges. Our knowledgeable attorneys will aggressively defend your rights and fight to get you the best possible result. Call us today at (877) 466-5245. We will be there when you call.