Proposition 36 – California Penal Code Section 1210.1
Proposition 36 (“Prop. 36”) is a law passed by California voters that allows judges to order drug treatment rather than jail time for defendants convicted of certain drug-related crimes.
Prop. 36 is defined under California Penal Code Section 1210.1. Prop. 36 is generally available for first time offenders of any non-violent simple drug possession or drug use crimes. The offenders must not have any serious or violent felony convictions on their record. However, Prop. 36 may be available for an offender with a violent felony conviction if the offender has been out of prison for at least five years with no felony or misdemeanor convictions involving violence for five years. Prop. 36 only applies to people charged with simple possession or use. It does not apply to people who are charged with possession for sales.
If qualified, the defendant will plead guilty to the charge(s). The defendant will receive a sentence. Instead of being incarcerated, the judge will place the defendant on formal probation and require that the defendant complete a drug treatment program lasting up to one year.
Outside of the required drug treatment program, the judge has the discretion to set a range of additional conditions of probations to monitor the defendant’s progress. This may include random drug tests, regular check-ins with a probation officer, court appearances, requirement to pay treatment costs, and other restrictions on the defendant’s lifestyle.
Upon successful completion of the program, the conviction will be set aside and the charge(s) will be dismissed.
Failure to comply with any of the probation conditions may result in a revocation of the probation and the sentence that was previously given to the defendant shall be enforced.
Prop. 36 Probation Violations
There are two types of probation violations: 1) A defendant can violate the conditions of probation with a drug-related violation, 2) The defendant can also violate the conditions of probation from a non-drug related violation, such as failure to appear on a specified court date, or failure to check in with a probation officer. A non-drug related violation may result in immediate probation termination and the defendant can face up to three years in prison.
For drug-related violations, Prop. 36 gives some leeway depending on the severity and the number of violations. For the first violation, the judge may enforce a more restrictive treatment program. However, the judge can immediately revoke probation if the court finds the defendant is a danger to the safety of others, this would result in defendant receiving the prison sentence had he or she not entered into the Prop. 36 program.
A second violation can result in the court transferring the defendant to a more rigorous treatment program. However, the court can decide to revoke probation using a less restrictive standard than before. The court can revoke probation if it is proved that the defendant is “unamenable to treatment.”
After a third drug-related violation, Prop. 36 is no longer available to the defendant, and the defendant faces sentencing of up to three years in state prison.
Drug Diversion programs are a great option when facing drug crime allegations. However, the choice you make may affect the rest of your life. If you or a loved one is charged with a drug possession case, it is essential that you talk to a criminal defense attorney to help with the best possible defense. At Wallin & Klarich, we have over 30 years of experience in dealing with drug cases. Our attorneys will inform you of what you are qualified for and what may be your best option. Our attorneys can walk you through the steps of a diversion program. You will know what to expect and know what type of consequences you will be facing if you do not comply with the conditions of probation. Contact us at (877) 466-5245. We will be there when you call.
For more information on Alternatives to Sentencing in Drug Possession Cases, read our page on California Penal Code Section 1000 – Deferred Entry of Judgement