Prop 36

Probation for Nonviolent drug Offenses Under California Proposition 36

An arrest and charge for a drug offense, like any other criminal case, can present serious risks for the defendant arrested, both in the short and long term. In the short term, a person arrested for a drug offense will have to go to court as required and perhaps post bail in order to stay out of custody while the case proceeds. In the long term, a prison sentence may be imposed as a direct consequence of being found guilty of a drug offense, and the defendant may have to deal with the adverse consequences of having a conviction for a drug-related offense on their record, which can destroy one’s job search even when the underlying offense is a “non-violent” kind, involving drugs for “personal use.” In many of these cases, the defendant is struggling with drug addiction and may need some help to recover. Fortunately, California law allows for some people in this situation to both avoid jail time and expunge their case from their criminal record. In fact, the California Penal Code actually requires a judge to sentence defendants charged with non-violent drug offenses to probation.

Prop 36 forbids a jail sentence for certain drug offenses

Proposition 36 (“Prop 36”) requires judges to sentence defendants charged with certain non-violent drug offenses to probation. The terms of Prop 36 are laid out in sections 1210, 1210.1, and 3063.1 of the California Penal Code (“PC 1210”, “PC 1210.1”, and “PC 3063.1”). Together, these laws greatly restrict a judge’s ability to incarcerate someone for commission of a “non-violent drug offense.” (PC 3063.1 specifically states that parole should not be revoked for commission of a non-violent drug offense) Often, when the law is changed to restrict a judge’s discretion at sentencing, the law is changed so that the judge is required to impose jail time. We see this often in “mandatory minimum” sentencing. Prop 36 is unique in that it requires a judge to sentence a defendant to probation, and thus prohibits a judge from imposing jail time, in certain offenses. This means that, if your case qualifies for Prop 36 sentencing, then the judge cannot give you jail time, and has to give you probation, even if the judge thinks that jail time might be appropriate. 

Is my case eligible for Prop 36 sentencing?

Prop 36 requires a probationary sentence for “non-violent drug offenses.” A “non-violent drug offense” under Prop 36 is: 

  • Unlawful possession of certain drugs as defined in the United States Controlled Substances Act, such as marijuana, heroin, peyote, ecstasy, cocaine, methamphetamine, peyote, prescription drugs such as codeine and some hallucinogenic drugs, OR
  • A charge of being under the influence of any of the same drugs mentioned above.

Can possession of drugs for the purposes of sale be sentenced under Prop 36?

No. Possession of any drug for sale, or the manufacture or delivery of drugs cannot be sentenced under Prop 36, even if no “violence” is alleged or no weapons are involved.

Other disqualifiers for Prop 36

Even if you are charged with a non-violent drug offense, your case may not be eligible for sentencing under Prop 36 if any of the following are true:

  • You have a previous conviction for a violent crime that counts as a “strike” under California law. 

The California penal code defines certain serious crimes like murder, kidnapping, and burglary of a home with a person present as “strikes”, because commission of additional “strikes” triggers harsher mandatory prison sentences. Even if you are not charged with a “strike offense” alongside your charges for non violent drug offenses, if you have previously been convicted of “strikes”, then you might not be able to resolve your case with a probationary sentence under Prop 36. 

There are two exceptions to this rule: a conviction in juvenile court, or “adjudication” for an offense that would normally count as a “strike” does not count as a “strike” under Prop 36, and so it will not preclude the defendant from receiving the benefits of Prop 36. Also, if you have prior “strikes” on your record, then you may still qualify for Prop 36 if fit has been five years since the last time you were imprisoned and five years since your last conviction for a felony (other than a “non violent drug offense”) or a misdemeanor involving the threat of injury to others.

  • If, in the same case you are charged with a “non violent drug offense”, you are otherwise convicted of any felony, or for a misdemeanor unrelated to the use of drugs, then your case is not eligible for Prop 36.

For example, a defendant who is charged with possession of cocaine for personal use has been charged with a “non-violent drug offense” under PC 1210. However, suppose the defendant is also charged with burglary because police allege that the defendant broke into a home and when he was arrested, he had some cocaine on his person. Now suppose the defendant is found guilty of both burglary and the possession of cocaine. In this case, even if the burglary was related to the defendant’s drug use, the defendant’s case will not be eligible for Prop 36 sentencing, because they suffered not just a conviction for a non-violent drug offense, but also for a felony, in the same case.

  • A defendant who refuses drug treatment is ineligible for Prop 36 sentencing.
  • A defendant who has participated in two other programs under Prop 36 is ineligible for Prop 36 sentencing on their current case.

If any of the above situations apply to your case, then Prop 36 does not apply and the judge is free to impose jail time for your case if they wish.

What if I violate probation under Prop 36?

Prop 36 tells us that jail time is disfavored for people charged with and convicted only for non-violent drug offenses. As such, jail time is also disfavored as punishment for violating Prop 36 probation, at least where the defendant violates probation for “drug-related” reasons.

If a defendant violates Prop 36 probation for reasons unrelated to drugs, then the court is free to revoke probation and impose a jail sentence if it wishes. If, however, the defendant’s violation is “drug related”, then a three-tiered system is involved:

  1. The first time that a defendant violates Prop 36 probation for a drug-related reason, then probation is only revoked if the prosecution also proves that the defendant is a threat to the safety of others. Otherwise, probation can be intensified, but the court cannot revoke it.
  2. The second time a defendant violates Prop 36 for a drug-related reason, the court can revoke probation if the prosecution shows that the defendant is either a threat to the safety of others or that the defendant is no amenable to drug treatment
  3. The third time that the defendant violates Prop 36 for a drug-related reason, the court revokes probation just based on the prosecution proving that the defendant violated probation.

As you can see, it is more difficult to revoke probation for a Prop 36 probationer when they violate only “drug-related” conditions of probation. This reflects the underlying concern in Prop 36, that non-violent drug offenders should be given the chance for treatment and rehabilitation in lieu of jail time. However, repeated violations of the probation’s drug-related conditions will make it more and more likely that probation will be revoked for good, and jail time imposed. 

Drug-related conditions of probation include not just the use or possession of drugs while on probation, but also the defendant’s failure to follow through with a regimen of drug treatment that their probation requires.

If I complete probation under Prop 36, can I get my record expunged?

Yes! Once you complete probation under Prop 36, you can petition the court to expunge the case from your record. To succeed here, you must show that you completed probation “successfully completed drug treatment, and substantially complied with the terms of probation.” When your record is expunged, you generally have the legal right to say that you were never arrested in your case, and that you were never convicted of anything related to your case. The fact of your conviction can also generally not be held against you in job applications. There are two limits to the expungement, however: 

  • Your conviction may still prevent you from owning a firearm in California AND
  • You must still answer any questions about your case truthfully in a direct question from a questionnaire or application for public office, or in an application for a job in law enforcement.