Can I Keep my Gun if I Complete Drug Diversion?
One of the results of pleading guilty or no contest to a felony drug offense in California is losing your right to possess a gun.
If you are being charged for the first time with a non-violent drug possession offense, however, you may be eligible for a drug diversion program under either Penal Code 1000 or Proposition 36. This means that if you successfully complete a diversion program your conviction will likely be dismissed.
Unfortunately, not all diversions are created equal. Depending on what kind of diversion your attorney negotiates with the court, you may lose your right to own certain types of firearms.
Understanding the Two Forms of Diversion: Penal Code 1000 and Proposition 36
It is very important that you understand the difference between the drug diversion programs under Penal Code 1000 and Proposition 36.
Under Penal Code 1000, if you complete a drug program after pleading guilty and commit no crimes for a set period of time, your conviction will be dismissed. To be eligible for a drug diversion program under Penal Code Section 1000:
- You must be a first time offender;
- You must not have any offenses involving controlled substances on your record;
- The charged offense must not involve violence;
- Your record must not have any revocation of probation or parole; and
- You must not have any felony convictions within five years prior to the charged offense.
Under Prop 36, a judge can order you to attend a drug treatment program rather than face jail time if you meet the following requirements:
- You are a first time offender of a non-violent, simple drug possession or drug use crime;
- You do not have any serious or violent felony convictions on your record;
- If you have a violent felony conviction, you must have been out of prison for at least five years with no felony convictions, other than a non-violent drug possession offense or misdemeanor convictions involving violence within that time; and
- You are not charged with possession for sale of a controlled substance or convicted of a non-drug related offense in the same proceeding.
Both Penal Code 1000 and Proposition 36 allow a judge to dismiss your conviction if you successfully complete the requirements of the diversion program. However, for gun owners, the consequences of a Proposition 36 diversion are very different.
Possessing Concealable Firearms after Proposition 36 Diversion
Unfortunately, under Proposition 36 diversion, if you own a gun, you may be legally prohibited from keeping it even if you successfully complete the drug diversion program and your conviction is dismissed.
Proposition 36 states that:
“Dismissal of an indictment, complaint, or information pursuant to paragraph (1) does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.”
This means that if you own a pistol, revolver, or any firearm that could be concealed, including short barreled rifles and shotguns, you would not be able to legally keep it and must turn it in to the police or sell it to a licensed gun dealer even after your conviction is dismissed. However, you are, allowed to keep any long rifle or long barreled shotgun.
Contact the Criminal Defense Attorneys at Wallin & Klarich Today
If you are facing drug charges, you need to speak with one of our experienced criminal defense attorneys at Wallin & Klarich today.
Our attorneys at Wallin & Klarich have over 40 years of experience successfully defending our clients’ rights. If you have been charged with a drug crime, we will do all within our power to get you the best possible result in your case. We will determine your eligibility for a drug diversion program and work diligently to convince the court to decide on the best suitable program for you.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, Wallin & Klarich is conveniently located near you to make certain you receive the very best legal representation throughout your criminal proceedings. We will help you to receive the most favorable outcome in your case.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.
