Proposition 36? What They Don't Tell You Can Hurt You! (Updated 2019)

If you were sentenced to Proposition 36, you may be unaware that you can petition the court to have your case dismissed. Even if you were aware of the dismissal after completing Prop. 36, you may have assumed the charges were dismissed. If so, you may be in for a rude awaking. In many cases, the court does not immediately dismiss the criminal drug charges and as a result, you still have the drug charges on your criminal record.

What is Proposition 36?

In 2000, the Substance Abuse and Crime Prevention Act in California enacted Proposition 36. Under Prop. 36, California mandates drug treatment for nonviolent drug offenders, rather than incarceration in jails or prison. The purpose of the program is to ensure that people are not housed in custody because of their addiction and to overcome the overwhelming number of drug additions cases in California.

Who is Eligible for Proposition 36?

To determine if a defendant is eligible for the Prop. 36 program, California defines a “nonviolent drug possession offense,” as “the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance”. As a result, many drug users are lumped into this category, unless the person is convicted of transporting, possessing for sale, producing, manufacturing, or selling narcotics. This means that as long as you are personally processioning drugs or narcotics, you are considered a good candidate for the program.

Government Limits on Incarceration.

Prop. 36 limits the court’s discretion to send personal drug users to prison for a nonviolent drug possession charge. Further, the probation department cannot automatically send the individual to prison if he or she violates probation.  After someone is convicted of drug possession, the judge must grant probation and require the defendant to participate in and complete a drug treatment program. As a result, the court cannot impose a jail or prison sentence unless the defendant fails to complete the drug treatment program or violates probation, or if the defendant refuses treatment.

Proposition 47

Proposition 47 has limited the ability to charge drug possession cases as felonies. Before, possession charges of cocaine, methamphetamine, or marijuana would automatically be charged as a felony. However, since the change in the law, most drug crimes are now misdemeanors, making it easier to find alternatives to a criminal conviction. For more information, please see our other posts regarding Proposition 47.

What is a Drug Treatment Program?

A drug treatment program may include drug and alcohol education, an outpatient or residential treatment program, detoxification, narcotic replacement therapy, and/or aftercare services. The length of the program can be up to twelve months, but it may be extended two times; each extension lasting six months.

How Does Proposition 36 Work?

Prop. 36 requires defendants to enter a guilty plea to the drug charge, with the understanding that if they complete the program, they will receive a dismissal.  The judge suspends the criminal proceedings and places the defendant on probation. In the past, most defendants took advantage of the Prop. 36 and completed the drug treatment programs. Now, thanks to Proposition 47 many drug offenses are misdemeanors, but when Prop. 36 was enacted, most convictions were felonies. Even today, many defendants take advantage of Prop. 36 even though the possibility of long periods of incarceration in prison is not an issue because of the promise of a dismissal.

Can Proposition 36 Charges be Dismissed?

However, in many counties, the Court did not automatically dismiss the charges.  This has resulted in numerous defendants that are eligible for a dismissal still having drug possession charges on their records. As a result, it is difficult for people to find work, housing, educational loans, and other benefits that most Americans enjoy. Because of the conviction, many are still suffering from these convictions and do not know how to correct the problem.

Fortunately, anyone that has been convicted and successfully completed the Prop. 36 diversion program is able to petition the court to dismiss the charges against.  In order to qualify, among other things, the court must find that you successfully completed the drug treatment program and there is reasonable cause to believe that you will not abuse controlled substances again.

If you qualify for a dismissal, the court must dismiss the charging document, and both the arrest and the conviction shall be deemed never to have occurred. This means that when you are applying for jobs, housing, or other programs, you are not required to disclose that you were arrested or convicted of the drug offense.

Are there any Exceptions to Disclosing the Drug Conviction under Proposition 36?

Although the court will act as though the charges against you never occurred, there are two important exceptions. First, a dismissal under Penal Code 1210.1 does not permit you to own, possess, or have in your custody or control any firearm. There are some avenues that will clear this as well, but if you are not paying attention, this could continue to cause problems, especially if you plan on purchasing a firearm.  

The second exception to a dismissal is that it does not relieve the defendant of the obligation to disclose the arrest and conviction in response to any direct question contained in any questionnaire or application for public office, for a position as a peace officer as defined in Section 830, for licensure by any state or local agency, for contracting with the California State Lottery, or for purposes of serving on a jury. This may not seem like a huge problem, but if you are planning on getting any licensing through the State of California, it is important to disclose the conviction.  

Furthermore, although the conviction cannot be used against you to deny you of any employment, benefit, license, or certificate, if you fail to disclose the drug offense, you may be denied your license. So, if you are applying to a state agency to become a real estate agent, teacher, nurse, doctor, lawyer, contractor, or even a notary, you will be denied if you do not properly disclose your conviction.

How do I Know if My Charges have been Dismissed?

If you received Prop. 36 and are not sure if you received the proper dismissal, it is important to discuss this matter with a qualified lawyer immediately. The Department of Justice is likely to show this on your criminal record and even though you believe it is dismissed, it may not be the case. By contacting a reputable attorney that understands the Prop. 36 process, you will be able to confidently state that you have not been convicted of drug possession. Further, in many cases, you may even qualify to have your gun rights restored.

Contact our office to determine if you meet the eligibility requirements for dismissing the charges against you. We will make sure you the charge has not already been dismissed. If it is still showing on your record, we will ensure that you qualify before filing the petition. By ensuring that your criminal record does not contain drug possession convictions, you will be able to get that job you have always dreamed of without fear that your employer will discover your conviction.


Posted on
August 11, 2017
in
Fresno Criminal Law Posts
category
Prop 36, Prop 36 California, California Prop 36, proposition 36 fact sheet, Prop 36 rules and regulations, Prop 36 compliance, Prop 36 drug program, Prop 36 dismissal, Prop 36 dismissal, Prop 36 diversion program, PC 1210.1

Why Should I Bail Out of Jail in Fresno?

If you are thinking of bailing out of custody, retain an attorney first to save on the bail costs.
Criminal
Tina Barberi, DUI and criminal lawyer in Fresno will fight to win your criminal and DUI case.
Tina M. Barberi
March 4, 2015
No one wants to go to jail, but do you know what your rights are to bail? Find out if you are entitled to bail before you contact a bail bonds company in Fresno. In some cases, you may not even need to post bail -see why in this post.

Fresno County Preliminary Hearings in Court

Fresno criminal defendants are required to attend a preliminary hearing to see if there is evidence to hold you over for trial.
Criminal
Tina Barberi, DUI and criminal lawyer in Fresno will fight to win your criminal and DUI case.
Tina M. Barberi
February 19, 2015
If you are facing felony charges in Fresno County, you may be required to attend a preliminary hearing. See what the difference between a preliminary hearing and a jury trial, including what witnesses will testify against you.

Saving Lives: Protecting Patients with Marijuana

Drug and marijuana cases can be fought when you have the right criminal law attorney in Fresno. Free consult to discuss your case.
Criminal
DUI defense lawyer enlists Gonzalo Quezada for clients accused of DUI, criminal or traffic charges.
Gonzalo Quezada
October 6, 2015
Questions on medical marijuana in the state of California? See what the problems with production and transportation of medical marijuana in the state and see what you can do to protect yourself as a user and patient.

Spring Clean Your Criminal Record Now!

A criminal record does not go away without work. We will make sure you qualify for 1203.4 relief before you hire us.
Criminal
Tina Barberi, DUI and criminal lawyer in Fresno will fight to win your criminal and DUI case.
Tina M. Barberi
March 30, 2015
If you are looking to cleaning your record, this is the perfect time to start. Your criminal record will stay on your record until you do something about it. Find out how easy it can be to clear your record with an experienced lawyer.

Saving Lives: Protecting Patients with Marijuana

Drug and marijuana cases can be fought when you have the right criminal law attorney in Fresno. Free consult to discuss your case.
Criminal
DUI defense lawyer enlists Gonzalo Quezada for clients accused of DUI, criminal or traffic charges.
Gonzalo Quezada
October 6, 2015
Questions on medical marijuana in the state of California? See what the problems with production and transportation of medical marijuana in the state and see what you can do to protect yourself as a user and patient.

Don't Press Your Luck This Saint Patrick's Day!

Drunk driving on March 17 is dangerous and you will likely be arrested if you are pulled over by Fresno police officers.
DUI
If you are arrested for DUI, get the best legal defense with help from Jeanne Slaven.
Jeanne Slaven
March 16, 2015
Have some green beer and relax this Saint Patrick's Day. There is no need to drive this year. Check out this new app that will keep you save as well as out of jail. With this app, you can count your lucky stars by not driving.

Speedy Trial Violations: Dismissals are Possible

Fresno courts must dismiss the case against you even if you are guilty when your rights are violated in Fresno with the right attorney.
Criminal
DUI defense lawyer enlists Gonzalo Quezada for clients accused of DUI, criminal or traffic charges.
Gonzalo Quezada
April 18, 2016
The government is required to prosecute you within a reasonable period of time, and when there is a violation of a speedy trial right, it is serious. See if your case should be dismissed when the district attorney violates the law.

4th of July – Don’t Go Out With A BANG!

Drinking and fireworks do not go together when you drive. A Fresno DUI lawyer with a great record for success can help you.
Our Firm
If you are arrested for DUI, get the best legal defense with help from Jeanne Slaven.
Jeanne Slaven
July 2, 2015
Do not let the firecrackers blow up in your face by drinking and driving on the 4th of July. Police are out to arrest drunk drivers so check out our tips to have a safe and sane holiday this year in order to stay out of jail.

Hiring the Right Drunk Driving Lawyer in Fresno

Deciding on the right DUI lawyer is difficult after a DUI arrest. You need an experienced lawyer to fight your case and protect your rights.
DUI
Tina Barberi, DUI and criminal lawyer in Fresno will fight to win your criminal and DUI case.
Tina M. Barberi
March 25, 2015
When you are charged with a crime, you do not know where to turn or who you can trust. Finding the attorney that is a perfect match for you is where you need to start. See these helpful tips to locate the best attorney for you.

Plea Agreements in Fresno? Avoid the Pitfalls.

How to plea bargain so you get the best deal possible for your criminal case. Best DUI and criminal lawyers know how to beat criminal charges.
Criminal
Tina Barberi, DUI and criminal lawyer in Fresno will fight to win your criminal and DUI case.
Tina M. Barberi
May 25, 2016
Plea bargaining is commonly used in the Fresno criminal courts by district attorneys and lawyers, but how do you know if it is right for you? If you have ever wondered why plea bargaining is used, do not miss out on this post.

What You Must Know if You are Arrested for a DUI.

Illegal searches and seizure cases are difficult to prove without an experienced criminal law firm in Fresno, California.
DUI
Tina Barberi, DUI and criminal lawyer in Fresno will fight to win your criminal and DUI case.
Tina M. Barberi
May 16, 2015
DUI arrests are complicated and in order to fight a DUI, you must understand how an officer can arrest you on suspicion of DUI. Learn what it takes for an officer to prove you are guilty of a DUI and how to defend yourself.

Any rights in our car? US Supreme Court Says No!

Traffic lawyer in Fresno will defend unconstitutional searches and seizures by police in California. Make sure to hire an attorney.
Traffic
Tina Barberi, DUI and criminal lawyer in Fresno will fight to win your criminal and DUI case.
Tina M. Barberi
April 20, 2015
Are you safe from police intrusion? Find out what the Supreme Court said about officers and their mistakes. If the officer can be wrong about the law, then why can't we? See how you can protect yourself when driving in Fresno.

You Might Also Like