Avoiding jail time when faced with drug charges: Prop 36

Avoiding jail time when faced with drug charges: Prop 36

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Diversion is a deferred entry of judgment.  Both PC1000 and Prop 36 qualify as diversion.  This means that upon successful completion, the case will be dismissed against the defendant and there will be no conviction.

History behind prop 36

Prop 36 was passed in 2000 that provides people who are accused of non-violent possession or drug use an opportunity to complete a drug treatment program in lieu of custody time.  It is a program that is designed to give people help while preventing over-crowding in the jails.

Persons ineligible for Prop 36

Prop 36 does not apply to people who have been previously convicted of a violent or serious felony under Penal Code 667.5(c) or 1192.7.  A person who has been convicted of a serious/violent felony may be eligible for diversion if the non violent drug possession offense occurred after a period of 5 years in which the defendant remained free of prison custody and did not commit a felony or a violent misdemeanor.  Persons who were armed with a deadly weapon with the intent to use the weapon are also ineligible.   If you refuse drug treatment as a condition of probation, you are not eligible for prop 36.  Additionally, prop 36 does not apply to persons who are charged with distribution or “intent-to-sell” charges.  There may be other restrictions in which an experience criminal defense attorney will let you know whether you qualify for diversion.

What does Prop 36 entail?

Like PC 1000, it is a drug treatment program that involves periodic monitoring, random drug test, and checking in with the courts to ensure compliance.  First a person shows up to court and enters a plea of “Guilty.”  He/she is then sent to a drug treatment program and ordered to show up to court on certain dates for monitoring.  The drug treatment program generally lasts up to a year.  The treatment program gives the person a schedule of classes for which they must participate and will give periodic drug tests.  Reports on the person’s progress are then given to the court and any violations will be addressed at the court hearings.  The person then checks back into court periodically for these progress hearings.  Upon successful completion, the “guilty” plea is in a sense, ripped up, and the case is dismissed.   If the case is dismissed there is no conviction, and that person is technically only “arrested” but never “convicted” for the offense.

Non-compliance / Fall outs

Not everyone that participates in the programs are successful.  People fall out of diversion for many reasons.  If you are unable to successfully complete the program, the court can sentence you.  What that sentence will be is based on the crime you were charged with.


If you are charged with a drug offense, you may be eligible for diversion.  Talk to an experienced criminal attorney at The Law Offices of Lisa Wong to see if you qualify.


Lisa Wong, Esq.

Law Offices of Lisa Wong


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