California drug laws allow some defendants to get treatment for drugs instead of serving prison time. The process that allows this is known as the Pre-Trial Diversion Program and is found under PEN 1000. Under this program, you must be charged with simple possession of drugs and no violence involved in your offense. Not every defendant qualifies for the program, but if you do, completing the treatment and other requirements successfully will see the charges against you dropped.
When charged with a drug crime, however simple it may seem, getting a lawyer to represent you is critical to receive a desirable outcome. Avoiding severe consequences is typically the primary goal of any defendant. At Orange County Criminal Lawyer, we understand how important your case is and work hard to ensure the most desirable end.
Understanding Pre-Trial Diversion for Drug Crimes in California
As earlier stated, this program is designed to eliminate prison sentences for persons charged with non-violent misdemeanor drug possession offenses. The program offers you the opportunity to get treated for your drug problem and avoid the harsh penalties and other consequences of a conviction. If you adhere to the program guidelines and complete it successfully, the charges you faced before will be discharged. Further, your record will get sealed, meaning you will have no criminal record for the offense.
Previously, this program was known as the “deferred entry of judgment.” The rules under this required you to take a guilty plea to the charges you are faced with, before participating in the program. After your successful completion of the treatment program, your charges are dismissed. However, if you failed to complete the program as required, the guilty plea you took remained.
Fortunately, a revision of the law was carried out, where it made it more favorable for a defendant. Presently, if you qualify for the program, it is not a requirement to enter a guilty plea. Instead, you can plead not guilty to the charges before you participate in the program, according to PEN 1000. If you complete the program as required, the charges previously brought against you are dropped, and your record sealed.
The difference with the present program and the prior one is, presently, if you do not complete the program as expected, you still have a chance to fight the allegations as opposed to before. However, to do this, you must have taken a not guilty plea. Previously, you would have been found automatically guilty and sentenced for the offense. Today, a trial will be set where the prosecution presents their case against you with your lawyer defending the allegations.
The state must prove you are guilty of the offense by determining the various elements of the crime. On the other hand, your lawyer will formulate strategies for your defense to ensure you get the best outcome. After the presentation of arguments from both sides, the judge will decide on your innocence or guilt for the offense.
It is critical to understand if you opt to enter the pre-trial diversion program, you forsake your rights to a jury trial should you not complete your program as required. However, the law accords you the right to a trial presided over by a judge.
With the older pre-trial program laws, it would take you about three years to complete the program. Currently, the program will take you a maximum of 18 months to complete.
If you choose the diversion program, a treatment list will be assigned to you by the court. Your right to a speedy trial will also be forsaken. The court gives you a specific time in which to complete the list as given. Some of the common items in the list include:
Treatment for drugs
Treatment for alcohol
Restitution to the victim and
Offenses that Qualify for Pre-Trial Diversion according to PEN 1000
There are many simple, non-violent drug-related crimes you can get charged with and qualify for the pre-trial diversion as outlined under PEN 1000. These include:
Having toxic substances to stiff or huff as found in PEN 381
Being publicly intoxicated according to PEN 647(f)
Soliciting an offense to sustain your narcotic use under PEN 653(d)
Having in your vehicle an open marijuana container according to VEH 23222(b)
Having with you controlled substances according to business and professions code 4060
Having controlled substances with you as found under HS 11350
Unlawfully having marijuana according to HS 11357
Unlawfully farming marijuana for your use, HS 11358
Having with you paraphernalia used in drugs, HS 11364
Assisting or abetting the use of controlled substances unlawfully, HS 11365
Having or using a fake, forged or altered prescription to get yourself controlled substances, HS 11368
Having prescription sedatives unlawfully HS 11375(b)(2)
Having methamphetamines for your use, HS 11377
Being intoxicated by controlled substances, HS 11550
Eligibility for the Pre-Trial Diversion Program
As earlier stated, not everyone qualifies for the diversion program. The one primary consideration of qualifying for the program is the charges you are facing. This program is only available to persons charged with simply having drugs on them for their use. However, if your charges involve distributing or selling drugs, you do not qualify for the diversion program. Equally, if your charges are for having drugs because you manufactured them, you are ineligible for the program.
Before the revision of the drug laws, you would not qualify for the diversion program if you had been convicted on a drug-related offense before. However, this does not disqualify you with the new rules unless the prior conviction was on serious drug crime. Even with this, if the conviction was five years before your current charges, you qualify to participate in the pre-trial diversion program.
Additionally, the previous rules allowed you to participate in the program only once in five years. Fortunately, with the revised rules, you still qualify to enter the program even after having participated in it previously.
The court does not automatically allow you to participate in the diversion program because you have applied. The decision to grant your petition is left to the judge who considers the following:
In the last five years, you must not have been convicted of another drug crime that does not qualify for a diversion program, according to PEN 1000. This means, if you were convicted of having drugs for sale within the last five years, the offense does not qualify for the diversion program; hence, your current petition will not be granted. However, if you were convicted on any of the offenses that qualify for the program, you still stand a chance to enter the program again.
The current offense you are charged with does not involve you threatening violence or violence in any way.
No evidence has been presented linking you to a more significant crime than that which qualifies for pre-trial diversion according to PEN 1000.
In the last 5 years, you have had no conviction on a felony offense.
Getting Offered the Pre-Trial Drug Diversion Program
There is a process involved before you earn or participate in the pre-trial program. When you get arrested for the offense, the officers with the case will analyze it and decide if it should proceed to the prosecutor. If the offense qualifies to be prosecuted, the state will further examine it to determine if it qualifies for the treatment program according to PEN 1000. If it is concluded you qualify for the program, you or your attorney will get notified of it.
The prosecutor will notify you through a document that includes all you need to know regarding the diversion process. Additionally, the notice will include a general description of the powers and persons involved in the treatment program. Further, the program will let you know of the requirements expected of you before you qualify or are granted entry into it. For instance, you will plead not guilty to the offense and waive your right to a quick trial, and a jury led the trial.
You will also get informed on what would terminate the program. For instance, if you fail to meet the requirements outlined in the program or commit another offense that disqualifies you from the program. In the notice, your rights concerning a criminal record will be outlined, as well as your options on answering questions if asked about your criminal past once you complete the program successfully.
This is a legally ordered investigation by the court into your past that helps determine your eligibility for the diversion treatment program. This investigation is not always ordered, but when the court deems it necessary, it is carried out. Some of the things the probation officer investigating you will be looking at are:
Your current age
Your work history
If you served in the military before
Your education background and
Your societal attachment or family network
Additionally, the officer will look into whether you have had a drug problem in the past and your history in treatment. If your treatment for substance abuse was successful in the past, it goes to convince the court that the pre-trial treatment program will be beneficial to you now. The last thing the probation officer must determine is your motivation or willingness to overcome your substance abuse problem. If they find out you are willing to overcome your problems, they will be confident that you will finish the treatment program. If you do not seem motivated, you will likely not be sentenced to a pre-trial treatment program.
Although the interview and investigations carried out are crucial in determining your eligibility for the program, the findings cannot be used as evidence against you on the drug charge. In the course of the investigation, you may open up and tell the probation officer things that may incriminate you under different circumstances. The law prohibits the information gathered to be used against you in court. However, the information makes it possible for the probation officer to make recommendations for the best treatment program.
Despite the report, the judge is the one with the final authority to rule in your case. The judge will analyze the case, evidence against you, your history, and recommendations by the probation officer. In the end, they will decide on the best program to help you overcome your problem.
Even after the court offers you a treatment program instead of a jail sentence, the choice finally lies with you. Participating in the pre-trial treatment program is not forced on you. After recommendations are made, you are asked if you want to enroll or proceed with the trial for your charges.
As earlier stated, under the new rules, you are required to plead not guilty of the underlying drug charges you are facing before the pre-trial program. When the program's option is offered to you, and you decline, you must go back and defend yourself against the charges. If you get convicted of the offense, you will be punished according to the statutes of the offense.
The judge can also decide that you will not benefit from the treatment program and order for the trial to proceed. In this case, your right to a speedy trial and with a jury is restored.
If the judge decides the pre-trial treatment program is beneficial to you, you will be presented with the option to take it. If you opt for it, you must understand that you will be monitored to make sure you obey all the rules set forth. As you enter the program, you will have to let go of your rights to a speedy trial and also a jury trial. Once this is done, your bail requirements will also be dropped, and you get enrolled in the program. A probation officer will be assigned your case and expected to give periodic reports of your progress.
The Operations of Pre-Trial Drug Diversion Program
The pre-trial treatment program you enroll in must be approved and licensed by the drug treatment supervisor in your locality. This is in keeping with the requirements, as found under PEN 1000. Your county hires the supervisor whose responsibility is to certify such drug treatment programs. Before certifying any program, the officer must make sure that the regulations, as outlined in the statute, are followed.
You also can enroll in a treatment program approved and found to be reliable by the supervisor or judge. This program is typically free, meaning you are not charged any fee to participate in it. If you feel a program outside your county offers you more benefits, as long as it is certified and adheres to all the regulations, you are free to join it.
Previously, the treatment program took about three years to complete. Today, you can complete your program in a maximum of one and a half years. However, if you feel the time is not sufficient or you require more time to complete the treatment, the judge can grant you more time upon request.
During the treatment program, you will be subjected to periodic urine drug tests. The results from the test are only used to monitor your adherence to the treatment program. Your failure of the drug test may have the program terminated, but you will not be charged with another offense. At the same time, the information you share during your treatment sessions cannot be used as evidence if you go for trial.
To participate in the pre-trial treatment program according to PEN 1000, you must pay diversion restitution fees. This amount is directed to meet the costs incurred in investigating you for the program before you took your plea. The law regulates the fee to range between $100 and $1,000. The judge in determining the amount you pay looks at your income and how severe the charges against you are. Sometimes, the fees may be waived entirely.
Despite qualifying and enrolling for the pre-trial treatment program, your participation can be terminated if any of the below happens:
You fail to meet the treatment plan requirements.
If you commit an offense that results in a felony conviction
You commit an offense that indicates you can be violent and convicted for it.
When allegations of the above are brought against you, the judge will set a hearing date to determine if they are true. If any of the above did occur, your diversion program would get terminated.
What Happens after you Complete the Pre-Trial Treatment Program according to PEN 1000?
Upon completion of your treatment program, the underlying drug charges against you are dropped. In this case, you will have no record of the arrest or conviction in your history. This, you do not have to petition the court to expunge your record because it is deleted already. If anyone asks you about your criminal background, you can answer the negative regarding this offense.
However, if you want a job in the public sector, such as a law enforcement officer, you must indicate the offense happened. If you are an immigrant seeking permanent residency, in your application, you will also be required to disclose your arrest in the past.
Unfortunately, professional bodies that issue practice licenses can consider your arrest when renewing or issuing a new license. Your character is highly considered before you are given a license to practice, and a past drug charge can result in disciplinary action. If you are applying for anything, consult your lawyer to advise if you should disclose your past or not.
Benefits of a Pre-Trial Drug Diversion Program
Although the final decision to enroll in the diversion program lies with you, it is important to know the benefits the option affords you compared to a criminal trial. Some of the benefits include:
Avoiding a Jail Sentence
In a trial, you may not accurately predict the outcome, and you may end up in jail. When you are incarcerated, you miss out on many things, such as your family, school, or work, among others. When you opt for the diversion program, you only need to complete the program as required and avoid a jail sentence. If you were attending school, this would continue, even your work.
Dismissal of your Drug Charges
Drug offenses are severely punished in California, even when they seem simple. When convicted of a drug crime, your record gets tainted, and it will affect many things in your life, including employment or housing. Fortunately, a diversion program, when completed, will afford you dismissal of your charges. This means your record will not show that you were arrested and charged with the offense. A potential employer or landlord will not use your past to deny you opportunities because they cannot access it.
A Dismissal will not be used against you in the Future
After your charges are dismissed, it means should you commit another offense in the future; the prosecutor cannot use your past against you. In many cases, a prosecutor looks into your criminal past when prosecuting you for a new case. For instance, if the offense you commit later is a wobbler, the decision to charge you with a felony or a misdemeanor will not be based on your dismissed charges.
You can Recover from a Drug Abuse Problem
The diversion program offers treatment for drug-related problems. If you are an addict, you can greatly benefit from the program. The treatment offered can help you overcome your drug dependency problems and direct you to healthier coping mechanisms to your challenges.
Possible Avoidance of Losing your Professional License
Although your professional licensing body can discipline you because of a drug charge offense, a conviction may result in your license getting suspended. However, when the charges against you are dismissed, the body may be lenient with their disciplinary action seeing that you are working towards overcoming your problem.
Other Related Drug Diversion Programs in California
Apart from the pre-trial drug diversion program under PEN 1000, there are other diversion programs for drug charges in California under Proposition 36. Other diversion programs include mental health diversions and military diversion programs.
Proposition 36 covers a wider scope of drug offenses. However, it does not apply to you if charged with cultivating marijuana or forging a drug prescription. This diversion program also requires you to enter a guilty plea differentiating it with the pre-trial diversion program under PEN 1000. Additionally, completing the diversion program under Prop 36 does not guarantee you an expungement of your record. The judge can decide on expunging your record or not, compared to pre-trial diversion under PEN 1000, where your record is automatically deleted.
Find a Lawyer Near Me
When you get accused of a drug offense, you must engage an experienced attorney to defend and represent you. The consequences of a conviction are severe, but a skilled lawyer can help you obtain a diversion program which is more favorable than a jail sentence. At Orange County Criminal Lawyer, we are committed to offering you the excellent representation that will result in the most desirable outcome for you. Call us at 714-262-4833 to further discuss your case and available options.