California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, went into effect in 2001 after 60.86 percent of California’s voters approved the measure in 2000. This is a general introduction to the pros and cons – and the impact, sixteen years later – of Proposition 36, which allows eligible defendants who are convicted of non-violent drug possession charges to be sentenced (or “diverted”) to probation rather than jail or prison. However, anyone who faces a specific non-violent drug possession charge should obtain the legal advice pertinent to your own case by consulting an experienced Long Beach criminal defense attorney.

“Drug diversion” programs allow eligible defendants to have criminal charges dismissed if they successfully complete court-approved drug treatment. A court-approved drug treatment program in California typically offers one or more of these services: drug education; outpatient services or residential treatment; detoxification services or narcotic replacement therapy; or aftercare services. Proposition 36 is essential for many first-time drug offenders. It allows thousands of persons in California a chance to quit abusing drugs and become productive members of society.

WHO DOES AND DOES NOT QUALIFY FOR PROPOSITION 36?

Under Proposition 36, qualified defendants who are charged with non-violent drug possession must complete a licensed and/or certified drug treatment program. If the defendant fails to finish the program or violates any other term or condition of his or her probation, the probation may be revoked and the defendant may be ordered to serve an additional sentence – which may include time behind bars.

Defendants who fall into these categories do not qualify for Proposition 36:

  • anyone who refuses treatment
  • anyone incarcerated within the last five years for a serious or violent felony
  • anyone who, while committing the drug possession offense, possessed a firearm
  • anyone who, while illegally possessing drugs, also committed a non-drug-related crime
  • anyone who has two separate drug-related convictions, who has already has participated in Proposition 36 twice, and anyone who is found by the court to be unamenable to any available drug treatment

Only about 34 percent of the offenders complete treatment under Proposition 36, a statistic that prompted former Governor Arnold Schwarzenegger to sign Senate Bill 1137 back in 2006. Senate Bill 1137 sought to overturn some of the key provisions of Proposition 36. Instead, the California Court of Appeal tossed out Senate Bill 1137 and determined that the California State Legislature and the governor could not override the voters of California.

WHAT DOES PROPOSITION 36 REQUIRE?

Proposition 36 requires qualified first and second-time defendants who have been convicted of nonviolent drug possession to receive up to twelve months of drug abuse treatment instead of time in jail or prison. The twelve months may be extended by up to two more six-month periods if needed. Proposition 36 may also apply to some parolees who commit a nonviolent drug possession offense while on parole. Under Proposition 36, those parolees are not returned to prison but are instead required to complete a drug treatment program. However, convictions involving possession of drugs while incarcerated are exempted from Proposition 36 eligibility.

Precisely what are “nonviolent drug possession offenses” under Proposition 36? It includes possessing or transporting for personal use, consuming, or being under the influence of drugs including but not limited to cocaine, heroin, peyote, gamma-hydroxybutyric acid (“GHB”), ecstasy, ketamine, methamphetamines, phencyclidine (“PCP” or “angel dust”), and most hallucinogenic substances. Anyone convicted of the following crimes is ineligible for Proposition 36 sentencing:

  • cultivating marijuana, even for personal use
  • possessing a controlled substance while armed with a loaded, operable firearm
  • forging or presenting a forged prescription to acquire drugs

Several additional factors also disqualify an offender for Proposition 36 participation. For example, if someone has prior convictions for one or more serious or violent felonies that constitute “strikes” under California’s three strikes law, that person is ineligible for Proposition 36 participation unless the nonviolent drug possession occurred at least five years after the offender was last released from prison.

WHAT DOES THE TERM “NON-DRUG-RELATED” MEAN IN CALIFORNIA LAW?

Anyone who is simultaneously convicted of a felony or of a “non-drug-related” misdemeanor is also ineligible for Proposition 36 participation. However, the term “non-drug-related” may be somewhat misleading in this context. For example, “driving under the influence of drugs” (DUID) is actually considered a “misdemeanor not related to the use of drugs” – the key word is “use” – and a conviction disqualifies someone from Proposition 36 sentencing. Why? Because DUID endangers others and thus goes beyond simple possession of drugs for personal use. Other factors that disqualify an offender for Proposition 36 participation include:

  • being armed with a firearm or other deadly weapon when the nonviolent drug possession offense was committed
  • refusing drug treatment as a condition of probation
  • previous participation – twice – in Proposition 36 programs

For those charged with simple drug possession who qualify for Proposition 36 sentencing, Proposition 36 allows participation even if a defendant fights the charge, goes to trial, and is found guilty. To receive a Proposition 36 sentence, a defendant must either plead guilty or nolo contendere (“no contest”) to a nonviolent drug possession charge, or be convicted of such a charge following a California criminal trial, or be a parolee who either commits a nonviolent drug possession crime or violates a drug-related term of parole.

When an offender receives a Proposition 36 sentence, the judge sentences the offender to probation or modifies the offender’s ongoing parole by ordering the successful completion of a drug treatment program. The court may also at its discretion impose additional terms of probation or parole that may require vocational training, family counseling, and/or community service.

If an offender violates the terms of a Proposition 36 probation or parole, a judge may impose a number of penalties. The court may revoke the probation or parole and sentence the offender to a jail or prison term based on the convicted offense. If the court reinstates probation, it may “enhance” the terms of probation and add up to forty-eight hours of jail time to encourage compliance.

Anyone charged with non-violent drug possession – or any other drug crime in southern California – should consult an experienced Long Beach criminal defense attorney to learn more about Proposition 36 and how it may apply in your own circumstances. Although the results have been mixed, for the most part Proposition 36 has kept non-violent drug offenders out of the California prison system, and it has enabled rehabilitation for many who are now productive members of their communities in this state.