~ Proposition 36 - Penal Code § 1210 ~

If a Defendant is ineligible for drug diversion under the provisions of Penal Code § 1000, perhaps because of a prior drug diversion, sentencing under Penal Code § 1210, better known as California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 may be an option.

To be eligible for sentencing under Proposition 36 (better known simply as Prop 36), the Defendant must meet the following criteria:

  • The Defendant cannot have been incarcerated for a serious or violent felony offense within the prior five years;
  • The Defendant cannot also be convicted in the same proceeding for a non-drug related felony or misdemeanor offense;
  • The Defendant was in possession of a firearm and in possession of or under the influence of cocaine, heroin, methamphetamine or PCP (phencyclidine) at the time the offence;
  • The Defendant must not refuse to attend a drug treatment program as part of their sentence;

A Defendant may be afforded multiple opportunities at drug rehabilitation in an attempt to help them prevent future drug related problems, including subsequent arrests. However, if the Court finds by clear and convincing evidence that a Defendant is not, or is no longer interested in drug diversion & treatment, then if the Defendant has two prior drug related convictions and has previously been sentenced to participate in a drug treatment program under the provisions of Prop 36, the Court will sentence the Defendant to a jail sentence that does not exceed 30 days in length as allowed for by Penal Code § 1210.1.

Penal Code § 1210 specifically states, in part that:

any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court shall impose appropriate drug testing as a condition of probation. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation.

If you would like information on how the Law Offices of Werno & Associates can help you, a family member or a friend with a legal problem, call us today at (714) 542-4466. Consultations are always free and are always confidential. We have been helping clients since 1999.

To view the list of crimes by code section (Statute), please click here.

To return to the list of California crimes in alphabetical order, please click here.


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