If you have been charged with a drug crime, it doesn’t necessarily mean you are going to jail. Proposition 36 (also known as “Prop 36” and formally known as the “Substance Abuse and Crime Prevention Act”) is a California law that allows “nonviolent drug possession” offenders to trade substance abuse treatment for jail time. Proposition 36 is just one of several alternative sentencing options available to nonviolent drug possession offenders in California. Diversion ( Deferred Entry of Judgment “DEJ” or “PC 1000”) is also an option. If you have been arrested on a “controlled substance” or illegal drug charge, contact the skilled criminal defense attorneys at Rodriguez, Lewis & Kahn to see if you qualify for alternative sentencing under California law.

CALIFORNIA LAW

California’s Prop 36 allows and requires drug treatment and probation, not incarceration for those convicted of “nonviolent drug possession offenses.” This means that if you were arrested for using or being under the influence of an illegal or controlled drug (Health & Safety Code Section 11550), or possessing or transporting drugs for personal use, you may be eligible for Prop 36. This applies to both misdemeanors and felonies. “Controlled substances” include illegal drugs such as rock or crack cocaine, powder cocaine, heroin, ecstasy (X), methanphetamineor crystal meth. They also include use of prescription drugs such as painkillers, (Oxycontin, Vicodin, Hydrocodone) or ADD drugs (Adderall, Ritalin, Concerta). Those arrested for illegal drug offenses involving transportation, possession for sale, sales, production or manufacturing are not eligible for Prop 36, unless your lawyers expertly present your case to get the charges changed.

To be eligible, you cannot have prior convictions for serious or violent felonies, commonly referred to as “Strikes,” under California’s Three Strikes Law, unless you have served your sentence and have been out of prison, jail, parole or probation for five years. You must also have had no felony or misdemeanor convictions that involve violence or the threat of violence in the past five years. You will also not be eligible for Prop 36 alternative sentencing if you:

• Are currently charged with possession for personal use in addition to another crime (misdemeanor or felony) that is not drug-related (for example, when you were arrested for drug possession, i.e. you were also arrested for driving on a suspended license [a misdemeanor not related to drugs]). On the other hand, if you were arrested for drug possession and failure to register as a narcotics offender, then you would still be eligible for Proposition 36
• Used a firearm and were either in possession of or under the influence of heroin, cocaine, PCP or methamphetamine
• Refuse drug treatment
• Have completed two separate Prop 36 treatment courses and the court determines you will not respond to further drug treatment.

SENTENCING

Once a defendant pleads guilty to the drug charge under Prop 36, the defendant is placed on probation and the judge orders the defendant to complete a one year court supervised drug treatment program. The drug treatment program can be extended for an additional six months with court approval. The defendant is ordered to comply with all the conditions of probation, often including random drug testing. Generally, the court will tolerate two minor probation violations during the probationary period. If there is a third violation, then the defendant is taken off the Prop 36 drug program and he or she will likely be ordered to serve time in custody. In Los Angeles, that generally means one year in custody. In extreme cases, the court may sentence the defendant to up to three years in prison.

After you successfully complete drug treatment under Prop 36, you may petition the court to have your guilty plea withdrawn and your conviction dismissed. After this, you are lawfully permitted to tell people that you have not been convicted for the drug offenses for which you were charged. If you have been granted Proposition 36 probation and have violated it by using drugs (such as testing positive on a drug test) or being charged with a new criminal case, the judge has a number of alternatives, including ordering you to complete more intensive drug treatment. However, if your violation is not drug-related (e.g., you failed to check in with your probation officer) or if the judge determines that you are not likely to respond to drug treatment, then your Proposition 36 probation can be revoked and you will be sent to jail.

LOS ANGELES PROP 36 LAWYERS

If you have been arrested for or charged with committing a drug offense in Los Angeles, there are a number of defense options. The attorneys of Rodriguez, Lewis & Kahn have successfully defended hundreds of individuals charged with all types of drug crimes. We never accept a case to simply negotiate a plea bargain, but if a drug treatment program or another alternative to jail is available, we will fight to get this option for you.

Contact Rodriguez, Lewis & Kahn for a free consultation at (213) 223-2173.