Proposition 36

Proposition 36: An Alternative to Jail

Proposition 36 (the Substance Abuse and Crime Prevention Act, also known as Prop 36) is a California law that allows “non-violent drug possession” offenders to get substance abuse treatment instead of going to jail or prison.  A non-violent drug possession offense is defined to include possession or transportation for personal use of any controlled substance, or being under the influence of a controlled substance in violation of Health & Safety Code Section 11550.  The substance abuse treatment program under Prop 36 is for a period of up to 12 months, with a possible addition of 6 months of “aftercare.”

Proposition 36 is just one of the sentencing alternatives available to non-violent drug possession offenders in California.  Diversion (Deferred Entry of Judgment or DEJ or PC 1000) is the other option (Learn about it here).  Damian Siwek, an experienced Los Angeles criminal defense attorney at DCS Defense will know which option is best and will be the most effective in getting an optimal result.

Qualifying for Proposition 36

To qualify for Proposition 36 sentencing, the defendant must be convicted for a “non-violent drug possession offense” – using or being under the influence of a controlled substance, or possessing or transporting a controlled substance for personal use.  It does not apply to convictions for dealing or trafficking.  Proposition 36 sentencing is not available if:

  • The defendant has been convicted for a serious or violent felony within five years (For example, a felony that would be considered a “strike”), unless the defendant has served the prison time and been out of prison for 5 years with no felony or misdemeanor convictions involving the threat of violence.
  • The defendant was convicted during the same proceeding of any felony or a misdemeanor that is not related to drugs.  For example, if the defendant was convicted of drug possession and was also convicted for driving on a suspended license (a misdemeanor not related to drugs) he would not be eligible for Proposition 36 sentencing. But if the defendant was convicted for drug possession and was also convicted for failure to register as a narcotics offender (a misdemeanor related to drugs), then the Proposition 36 sentencing would be available.
  • The defendant used a firearm and was either under the influence of, or possessed cocaine, heroin, methamphetamine or phencyclidine (PCP).
  • The defendant refuses drug treatment.
  • The defendant has two separate convictions for non-violent drug possession offenses and has been through two separate Proposition 36 drug treatment courses and the court determines that the defendant would not respond to drug treatment.  In this case, the defendant is sentenced to 30 days in jail.

Parole violators who commit a non-violent drug possession offense or who violate a drug-related condition of parole are also eligible for Proposition 36 drug treatment as an alternative to returning to prison.  To be eligible, the individual must have no prior convictions for serious or violent felonies.

Violating Proposition 36 Probation

If a probation violation is drug-related (e.g., a positive blood test), the judge has various steps he must follow, including ordering the defendant in to a more serious type of drug treatment.  If the violation is not related to drugs (e.g., not checking in with a probation officer) or if the judge decides that the defendant will be unable to comply with drug treatment, then probation can be revoked and the defendant can be incarcerated.

Successfully Completing Proposition 36 Drug Treatment

Once the defendant successfully completes the required drug treatment, his or her conviction will be set aside and the indictment or information dismissed.  The arrest is expunged, and the defendant is lawfully permitted to state that he or she was not arrested or convicted for the offense that triggered his or her treatment.

Legal Representation to Help You Pursue Prop 36 Treatments

If you have been arrested or charged with a drug crime in Los Angeles, you have options.  Damian Siwek at DCS Defense defends people charged with drug crimes ranging from simple possession to sale and distribution of drugs.  We do not take criminal cases only to negotiate a plea agreement, but if a drug treatment program or alternative to jail is available and is going to help your situation, we will fight hard to get that option.  We are aggressively know how to get results in drug cases and how to help clients qualify for Proposition 36.

For aggressive and effective representation against criminal drug charges, including a free confidential consultation, contact Los Angeles criminal defense attorney Damian Siwek at DCS Defense.