California Drug Program Attorney
There are two main drug programs that certain drug offenders can take advantage of instead of going to jail. The first is PC 1000, now known as Pre-trial Diversion, and the second is PC 1210, more commonly known as Prop 36.
Penal Code 1000 allows certain types of drug offenders to participate in a drug diversion program. The advantage of participating in this program is that the defendant stays out of jail, and upon successful completion of the program, the charges are dismissed. In 2018, this law was significantly modified in a way that benefitted defendants. See our blog for a detailed description on the differences between the old PC 1000 and the new PC 1000.
Only certain violations qualify. Usually crimes involving mere possession or being under the influence qualify. These offenses are known as divertible offenses. Crimes involving sales or transportation usually do not qualify. For a complete list of divertible drug offenses, check the language of the statute below. There are other conditions that must be satsified before a person qualifies for PC 1000:
1. The defendant has no prior convictions for controlled substances within the last five years that are not covered by the statute. That means if a defendant had a prior drug conviction for possession or being under the influence within the last five years, the defendant should still be eligible for PC 1000. However, convictions for sales or other disqualifying drug convictions within the last five years would make a defendant ineligible.
2. The current crime didn’t involve violence or the threat of violence.
3. The defendant is not being charged with any other drug-related crimes that are ineligible for PC 1000. This means that if a defendant is charged with a divertible drug offense, such as possession, and a non-divertible drug offense, like sales, then the defendant would not qualify for PC 1000 for any of the charges he’s facing.
4. The defendant does not have any felony convictions with 5 years of this offense.
Under the new PC 1000, a defendant does not have to plead guilty, but the defendant does have to give up the right to a jury trial if they cannot complete the PC 1000 requirements. A defendant would still have the right to a bench trial (a trial in front of a judge only without a jury). The usual length of the PC 1000 program is 12 to 18 months. Upon successful completion, then the judge will dismiss the charge and there will be no conviction on your record.
Since PC 1000 does not require a guilty plea, it should be safe for defendants who are not US citizens and there should not be any immigration consequences. Furthermore, PC 1000 should be safe for defendants with professional licenses, although the statute does state that this law does not prohibit any administrative agency from taking disciplinary action against a (professional) licensee or from denying a (professional) license.
If a defendant is charged with some divertible drug crimes and some non-drug crimes, the defendant can still take advantage of PC 1000 for the divertible drug crimes.
If a defendant is charged with a DUI, then PC 1000 eligibilty depends on whether the DUI is an alcohol only DUI or a DUI involving controlled substances. PC 1000(a)(3) states that non-divertible drug offenses disqualify a defendant from PC 1000. The cours have ruled that if a defendant was driving under the influence of drugs, then he does not qualify for PC 1000. See People v. Duncan (1990) 216 Cal.App.3d 1621. However, if a defendant was driving under the influence of only alcohol, then he can still qualify for PC 1000 for any divertible drug offense that he is charged with. See People v. Orozco (2012) 209 Cal.App.4th 726, 733-735.
Language of PC 1000 effective January 1, 2018:
(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of Section 11350, 11357, 11364, or 11365, paragraph (2) of subdivision (b) of Section 11375, Section 11377, or Section 11550 of the Health and Safety Code, or subdivision (b) of Section 23222 of the Vehicle Code, or Section 11358 of the Health and Safety Code if the marijuana planted, cultivated, harvested, dried, or processed is for personal use, or Section 11368 of the Health and Safety Code if the narcotic drug was secured by a fictitious prescription and is for the personal use of the defendant and was not sold or furnished to another, or subdivision (d) of Section 653f if the solicitation was for acts directed to personal use only, or Section 381 or subdivision (f) of Section 647 of the Penal Code, if for being under the influence of a controlled substance, or Section 4060 of the Business and Professions Code, and it appears to the prosecuting attorney that, except as provided in subdivision (b) of Section 11357 of the Health and Safety Code, all of the following apply to the defendant:
(1) Within five years prior to the alleged commission of the charged offense, the defendant has not suffered a conviction for any offense involving controlled substances other than the offenses listed in this subdivision.
(2) The offense charged did not involve a crime of violence or threatened violence.
(3) There is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offenses listed in this subdivision.
(4) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.
(b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (4), inclusive, of subdivision (a) apply to the defendant. If the defendant is found eligible, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. This procedure is intended to allow the court to set the hearing for pretrial diversion at the arraignment. If the defendant is found ineligible for pretrial diversion, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. The sole remedy of a defendant who is found ineligible for pretrial diversion is a postconviction appeal.
(c) All referrals for pretrial diversion granted by the court pursuant to this chapter shall be made only to programs that have been certified by the county drug program administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to programs that provide services at no cost to the participant and have been deemed by the court and the county drug program administrator to be credible and effective. The defendant may request to be referred to a program in any county, as long as that program meets the criteria set forth in this subdivision.
(d) Pretrial diversion for an alleged violation of Section 11368 of the Health and Safety Code shall not prohibit any administrative agency from taking disciplinary action against a licensee or from denying a license. This subdivision does not expand or restrict the provisions of Section 1000.4.
(e) Any defendant who is participating in a program authorized in this section may be required to undergo analysis of his or her urine for the purpose of testing for the presence of any drug as part of the program. However, urinalysis results shall not be admissible as a basis for any new criminal prosecution or proceeding.
PC 1210 is also a drug program designed to keep defendants in treatment and out of jail. However, PC 1210 is not as beneficial as PC 1000. First, a defendant must plead guilty and is actually sentenced. That means a conviction goes on the defendant’s record until the program is completed. Once the PC 1210 program is completed, then the judge has the power to dismiss the charge. Second, PC 1210 is not available if a defendant is accused of a non-drug related crime at the same time as the drug-related crime. For example, if a defendant is accused of possession of cocaine and resisting arrest, then PC 1210 is not available because resisting arrest is not a drug-related crime.
Certain conditions disqualify a defendant from PC 1210:
1. A serious or violent felony, also known as a strike, on a defendant’s record, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person.
2. Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.
3. Any defendant who, while armed with a deadly weapon, with the intent to use the same as a deadly weapon, unlawfully possesses or is under the influence of certain controlled substances, including cocaine, ecstasy, heroin, marijuana and methamphetamine.
4. Any defendant who refuses drug treatment as a condition of probation.
5. Any defendant who is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment.
Even though drug programs are meant to keep defendants out of jail, they can still affect employment, licensing and immigration consequences. Some drug convictions must be reported to jobs or professional licensing boards even after drug programs are completed. Professionals with drug convictions on their records risk losing their professional license or never acquiring it in the first place. Perhaps the most severe impact of a possession of a controlled substance conviction involves immigration consequences. Non-citizens who are permanent residents (green card holders) or temporary visitors, with a student visa or work visa, can be denied admission, denied naturalization or even deported, with any type of drug-related conviction on their record which includes a conviction through Prop 36. In fact, drug-related convictions are considered one of the worst convictions for immigration consequences.
The Right Lawyer
Choosing the right criminal defense lawyer will be the most important decision someone can make when facing a charge for possession of a controlled substance. Many people who face drug possession charges are good people who made a mistake or exercised poor judgment. There are also some people who have been wrongfully accused of possession of a controlled substance, based on a misunderstanding or false evidence. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively. You need an attorney like Fred Thiagarajah.
As a former Deputy District Attorney, Fred Thiagarajah has the negotiating skills and trial experience necessary to get the best results for his clients. As a prosecutor, Fred Thiagarajah handled thousands of drug-related cases. He now uses his specialized knowledge of possession of a controlled substance cases to get the best possible outcomes for his clients. For an example of his work, please see his case results and read his client testimonials. With offices in Newport Beach, Long Beach, Riverside, Murrieta and Rancho Cucamonga, Fred Thiagarajah’s team has criminal defense experience in Orange, Los Angeles, Riverside and San Bernardino Counties.
Fred Thiagarajah – The Right Lawyer. The Right Result.
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