Prop 36, also known as proposition 36, is an initiative for sentencing criminals that was voted by residents of California in 2000. This initiative takes into consideration individuals that have been arrested on drug crimes and are not violent. This is a lenient sentence for those individuals that have committed drug crimes but can be rehabilitated without having to be sentenced to harsh penalties. The goal of this proposition was to sentence non-violent offenders accused of drugs or alcohol offenses to get treatment rather than jail time.
This is an affordable and beneficial alternative for those that find themselves facing criminal charges for drug and alcohol offenses. However, to get sentenced under Prop36, you will have to qualify based on specific criteria, as will be discussed later. You must also ensure you have a criminal lawyer that will fight for you and convince the court to sentence you to prop 36 as opposed to jail time. The lawyers at Los Angeles Criminal Attorney have years of experience in defending persons accused of drug and alcohol-related crimes and getting them favorable sentencing.
Understanding Proposition 36 of California
Prop 36 is found under PEN 1210-1210.1 and PEN 3063.1. This is a type of drug diversion in California that that permits defendants that qualify to get their charges dropped if they complete a program approved by the court on drug treatment. The drug treatment that is court-approved will include the following:
- Education on drugs
- Residential treatment or outpatient services
- Replacement therapy for narcotics or detoxification services
- Aftercare services
The court program, however, does not take into consideration programs on drug rehabilitation found in jail facilities.
The law in California was transformed with Prop 36. According to the proposition, individuals facing their first or second non-violent convictions on drug possession should be sentenced to a year of treatment as opposed to a jail sentence. If it is found necessary, the program can be prolonged by six months and only two times.
During the initial years of the program, participants that qualified for Prop 36 preferred outpatient programs, with a small percentage opting for residential programs. Some participants also went for detox programs in clinics as a form of treatment.
Parolees that abuse their parole conditions of committing non-violent drug offenses also benefit from Prop 36. This means that an individual on parole that is accused of a non-violent narcotics possession offense or breaches a drug like situation will not go back to jail but will be involved in a treatment program.
Nonviolent Drug Crimes according to Prop 36
Not every drug-related crime qualifies for Prop 36, as earlier discussed. However, various offenses qualify an offender to this sentencing; they include:
- Being a user of or intoxicated narcotic drugs as outlined under the United States Controlled Substances Act
- Being found in possession or transporting the narcotic drugs for private use
Some of these drugs, among many others, include cocaine, peyote, heroin, gamma-hydroxybutyric acid (GHB), ketamine, marijuana, ecstasy, methamphetamines, codeine, phencyclidine, and Vicodin.
As discussed earlier, not every drug possession offense qualifies for Prop 36. Some of the offenses that a person would commit and they are eligible are:
- Laws that make it a crime to be in possession of narcotics as found under health and safety code 11350
- Laws that prohibit against having in your possession marijuana that is below an ounce as found under health and safety code 11357
- The laws that prohibit one from being intoxicated by narcotics as found under Health and Safety Code 11550
For instance, if a person reports their neighbor is playing deafening music, and they respond to the complaint. Upon arriving, they find the owner of the house smoking marijuana, and he or she admits to using it. This person can be charged with possession of narcotics or the use of drugs. However, he or she wasn’t violent. If it is their first or second offense, instead of being sentenced to jail time, they qualify for Prop 36, where they will be expected to attend a drug treatment program that the court will approve.
However, if you are found selling or manufacturing narcotics, even when you are not violent, one does not qualify under this program. This means that there are laws against drugs that will not be eligible for Prop 36, even if the offender was not violent. These include:
- Being found in possession of narcotics to sell according to health and safety code 11351
- Having narcotics with the intention of transporting or selling them according to health and safety code 11352
- Being found in possession of marijuana to sell it according to health and safety code 11359
- Being found in possession of methamphetamine for sale and other lesser narcotics according to health and safety code 11378 and 11379.
All these are non-violent drug-related crimes. However, the element of distributing or transporting them for profit makes it a more serious crime that does not qualify for Prop 36. The court has also argued that other various offenses do not also qualify for Prop 36. This is because the activities that accompany them are more than primary possession for personal use. These include:
- Farming or cultivating marijuana irrespective of whether it is for private use according to health and safety code 11358.
- Being found having in your possession controlled narcotics while with a loaded and working firearm according to health and safety code 11370.a(a)
- Being found to have forged a prescription to get drugs according to health and safety code 11368.
Other Restrictions for Qualifying for Prop 36
Sometimes, the offense you are accused of may qualify for Proposition 36 sentencing. However, you may not get the sentencing if, as an individual, you do not qualify. Various factors typically disqualify offenders from being eligible for Prop 36. These include:
Having a prior conviction that qualifies as a strike
If your criminal record shows that you had been convicted of a serious felony before, that involved the use of violence; you cannot qualify for Prop 36. These kinds of offenses typically earn the offender a strike according to the three-strikes law. However, if the violent offense that gained you a strike was five years before, the law will permit you to be sentenced according to Prop 36. Also, you should not have committed another felony within the last five years.
If, because of this, you are disqualified, the judge cannot dismiss the prior offenses or ignore them. On the other hand, if your case was resolved in the juvenile court even when it was a violent felony, you qualify for proposition 36.
You were convicted of another offense that is not drug-related at the same time as a drug-related one
If as you qualified for an offense in drug possession that is non-violent, and alongside you are convicted of
- A non-drug related misdemeanor or
- A California felony offense
You will not be eligible for Proposition 36 in California. When one is convicted of a misdemeanor that is unrelated to drugs, it means the misdemeanor conviction doesn’t involve:
- Basic possession of narcotics or their use or having drug paraphernalia in your possession
- Being found in the place where there is the use of drugs
- Declining drug offender registration
- Any activity that resembles use or possession offense
For instance, if you are convicted of a DUID according to VEH 23152(f), you will not be eligible to Prop 36. According to California courts, a DUID offense exposes other people to danger; therefore, it is akin to the selling of narcotics.
This means, even though the offense was non-violent and drug-related, a misdemeanor conviction on another offense will disqualify one from Proposition 36 ruling. However, depending on the circumstances of the case and your record, a judge can dismiss the extra charges to qualify you for prop 36. This is unlike where one has a strike because the nature of a crime that earns one a strike is more dangerous.
Having a Loaded Gun as you Committed the non-violent Offense of Drug Possession
Being found in possession of drugs is already a crime, whether you are violent or not. Having a loaded firearm as you committed the offense acts as an aggravating factor to the offense. This makes the offense more serious irrespective of whether you intended to cause harm with the weapon or not. Because of this, you will not qualify to be sentenced under Prop 36.
When Sentenced to Probation, you Decline Drug Treatment
If you are or were sentenced to probation but refused to attend a drug treatment program as one of the probation conditions, it shows that your unwillingness to change or be rehabilitated. Prop 36 is for those individuals that desire to be rehabilitated from their drug use. Your refusal to attend a drug treatment program will disqualify you from being sentenced under Prop 36.
Having Participated in Prop 36 Two Times Before
An individual may have committed non-violent drug offenses that resulted in you being sentenced to Prop 36 on two occasions previously. However, the judge feels you cannot benefit from more treatment; you will be disqualified. Aside from the ineligibility, you will serve jail time of at least thirty days.
Can One be Sentenced to Prop 36, Even After Losing their Case?
Fortunately, Prop 36 allows one to go through the treatment program even when convicted of the offense. This means that you can opt to go through the trial, hoping for its dismissal. However, if you are found guilty of the offense, you will get convicted and still be able to participate in Prop 36.
Probation and Prop 36 in California
For a person to qualify for Prop 36 sentencing, they must:
- Take a guilty plea or a no-contest plea to a charge of non-violent possession of drugs
- Be found guilty of the offense by a judge or jury in California
- Be a parolee accused of committing a non-violent offense of drug possession or a term that is drug-related according to your parole rules
A judge will sentence you to probation or adjust your parole terms where you will be required to complete a treatment program on drugs that will include random testing for drugs. The court can also decide to impose other conditions to the parole or probation if they find them necessary. These include:
- Being ordered to attend vocational training
- Being ordered to attend counseling
- Being sentenced to community service.
In this case, the judge is not allowed to convict the defendant to jail time as a probation condition. However, if the defendant violates the terms of their probation, the court can revoke the probation and sentence the defendant to imprisonment.
Parole and Probation Violations
When you have been sentenced to probation or are a parolee, and you qualified to Prop 36 sentencing, there are specific terms or rules of your sentence you must not violate. If one breaks any of the terms, they must be ready for various consequences the judge is allowed to issue. Some of the violations that can lead to effects are:
- Declining to attend the program assigned
- Committing another offense while on probation
- Refusing to attend community service programs assigned
- Failing to pay court fines imposed, among others.
What Happens When One is Unable to Benefit from the Treatment under Prop 36
Sometimes your treatment provider may believe you cannot benefit from the program and report the same to the parole board or probation department. If this happens, it may lead to the revocation of your parole or probation. However, hearings on violating your probation or for revoking your parole must be held first. If, during these hearings, the court agrees to vacate your parole or probation sentence, you will receive a jail sentence instead.
For a judge to determine if you cannot benefit from the program, he or she will consider the following:
- Whether you violated any rules imposed by the treatment facility
- Whether you breached the rules multiple times to the extent that it affected your functioning on the program
- You have declined to be involved in the treatment program, or you requested you be removed
Once these considerations are taken into account, a conclusion is arrived at, that will lead to being revocation of your sentence, the judge will opt for imprisonment instead.
Consequences of Violating your Parole or Probation Terms under Prop 36 by Committing other Offenses
One of the common conditions for a defendant on parole or probation is not to commit an offense. However, even when someone commits an offense, the court can still allow them to continue with the Prop 36 program. There are, however, various consequences to the violations, as discussed below.
A defendant can be accused of committing offenses that are not drug related or those that violate their parole or probation terms and are not related to a non-violent drug offense. When this happens, the judge can order the defendant to 30 days imprisonment as the court decides to reinstate or revoke your parole or probation. If reinstatement is preferred, the court may introduce some changes to the program or add additional terms if needed.
However, if the judge decides against reinstating your sentencing under Prop 36, you may face sentencing according to the offense you are accused of committing. For instance, if while on the Prop 36 program, you hit a car and fled the accident scene, this is a non-related non-violent drug crime. However, as an offense, it violates the conditions of your probation. The judge, instead of reinstating your sentencing under Prop 36, he or she may decide you be charged and sentenced on hit and run charges.
On the other hand, one can violate their parole or probation terms by committing another non-violent drug offense, as outlined earlier. In such a case, a hearing is called upon. This allows the court to decide whether or not your parole or probation will be revoked. If, during the hearing, you are found to pose a risk to society, your parole or probation will be automatically revoked.
If the judge decides to reinstate your parole or probation, the terms may be made harsher, including being incarcerated for a minimum of two days. In case the breach was recent and involved your use of drugs, the judge can order that you enroll in a residential drug treatment facility.
When Prop 36 is Completed
If you complete your program under Proposition 36 successfully, you can ask the judge to drop your conviction. If the court is convinced of your successful competition and treatment, and you did not violate any terms of probation, they will dismiss or drop your conviction.
When a defendant is said to have completed the treatment program successfully, it means that they followed the treatment provider’s instructions and the courts. Success also means that you are not going to abuse drugs again. Although this sounds easy, unfortunately, most people that enter the program fail to complete it.
After the expungement of your record, all the disabilities and penalties associated with the offense will also be released. However, you will not be allowed to have or own a firearm. An expungement of your record comes with various benefits that will include your being able to claim you have no criminal record. However, some exceptions may require you to reveal your past conviction. These include:
- When you decide to apply for training or a job as a peace officer or in answer to inquiries by a law enforcement entity
- When applying for a public office
- If you are requested to serve in a jury.
Find a Los Angeles Criminal Lawyer Near Me
Crimes in drug possession and use can lead to severe penalties. However, it is possible to get more lenient sentencing if your offense was only using them. Without proper representation, one can quickly be convicted of a more severe crime. To avoid this, you will need to engage the services of a qualified criminal attorney for your defense. At Los Angeles Criminal Attorney, you will be provided excellent defense against the allegations you face. Call us at 424-333-0943, and let us offer you the defense you deserve.