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Proposition 36? What They Don't Tell You Can Hurt You!

August 11, 2017

Proposition 36? What They Don't Tell You Can Hurt You!

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.

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.

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.

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.

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Tina M. Barberi, criminal defense attorney in Fresno, CA, defends clients when they are charged with a criminal, DUI, or traffic offense. If you are charged with a crime, contact her now for a free consultation.

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