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What is Proposition 36?

Proposition 36, also known as the “Substance Abuse Prevention Act” was passed in 2000. The Act was passed to give individuals accused of drug crimes an alternative to jail in the form of a treatment program. In order to be eligible for the Prop 36 diversion program, the Defendant must have been accused of a drug-related offense that doesn’t involve a violent act. There are substantial benefits to successfully completing the Prop 36 diversion program. One of the many benefits is that upon completion, you can petition the Court to dismiss the charges against you, thereby maintaining a clean criminal background; it will be as though you were never accused of a drug-related crime.

The California statute that creates the Prop 36 diversion program are found in California Penal Code §1210.1-§1220 and §3063.1.

Defendants who are allowed to enroll in, and complete the Prop 36 diversion program will have the charge or conviction wiped from their criminal background, resulting in a situation where a potential employer will never know that the Defendant was ever convicted of a drug related offense.

If a defendant is allowed to participate in the Prop 36 diversion program, they will be required to perform a number of tasks, which are uniquely tailored to the Defendant, their circumstances, and the circumstances surrounding the crime they are accused of . Some of the requirements the Court can impose as a requirement of completing the Prop 36 diversion program include: (1) education about drugs, (2) detox, (3) residential treatment; and (4) therapy after completion of the program.

Proposition 36 was enacted to allow defendants accused of 1st or 2nd time offenders who are accused of a drug related crime not involving violent conduct to opt to attend 12 months of treatment instead of serving time in jail. Further, this time can be extended 2 times in 6 months increments.

Non-violent Drug Possession Offenses

As mentioned above, a prerequisite to enrollment in the Prop 36 diversion program is that the crime the applicant be accused of consist of a drug-related offense that does not involve acts of violence. A drug-related offense occurs when an individual is using or under the influence of any substance listed in the Controlled Substances Act or the transportation or possession of any substance named in the Substance Control Act.

In order to qualify for the Proposition 36 drug diversion program, you must have been convicted of a non-violent drug possession offense. The definition of a non-violent drug possession offense is (1) using, or being under the influence of, any drugs listed in the federal law known as the “Controlled Substances Act: and (2) transporting, or possessing, any of those substances for personal use.

A “controlled substance” is any drug or chemical whose use, manufacture, or possession is restricted by the federal “Controlled Substances Act.”

The “Controlled Substances Act” identifies a number of substances including:

  • LSD;
  • Heroin
  • Vicodin
  • Opiates
  • Codeine
  • Cocaine
  • Peyote
  • Oxycotin

Offenses that are not eligible for the prop 36 diversion program

  • HEALTH CODE §11351 – Making it illegal to possess an illegal substance for sale
  • HEALTH CODE §11352 – making it illegal to transport an illegal substance for the purpose of selling it
  • HEALTH CODE §11359 – making it illegal to be in possession of marijuana with the intent to sell it
  • HEALTH CODE §11360 – making it illegal to transport marijuana for the purpose of selling it.
  • HEALTH CODE sections §11378 and §11379 making it illegal to sell “lesser” substances

Other Offenses that Are Not Eligible for the Prop 36 Diversion Program

The crimes listed above are ineligible for Prop 36 treatment because they don’t involve possession for personal use, but involve the sale of a controlled substance. The following statutes are not included in the offenses that are eligible for the Prop 36 diversion program because they involve more than the possession for personal use.

  • HEALTH CODE §11358 – making it illegal to grow marijuana
  • HEALTH CODE §11370.1(a) – making it illegal to possess an illegal drug while in possession of a loaded firearm
  • HEALTH CODE §11368 – making it illegal to forge a prescription for the purpose of obtaining a controlled substance.

Other Restriction

Much like the DEJ program, in order to be eligible for Prop 36, both the offense and the defendant must satisfy the entrance requirements.

There are many ways to become ineligible for the Prop 36 diversion program notwithstanding the fact that the offense satisfies the requirements for admission into the program. However, there are 4 major facts, which can prevent you from participating in the Prop 36 diversion program.

(1) “strike” convictions

California has a law known as the “Three Strikes Law” and creates enhanced penalties for people who have been convicted of multiple “violent felonies.” If you have a prior “strikeable” offense, you will become ineligible to participate in the program unless 2 facts are shown. First, you were finished your period of incarceration over 5 years prior to the current offense, and the “strikeable” offense resulted in actual harm to the Victim, or included threat violence to the Victim.


Dan was convicted of battery causing serious bodily injury in 2010 and received a “strike” pursuant to the California Three Strikes Law. In 2017, Dan was convicted of a “simple” drug possession crime involving marijuana. Since Dan’s “strikeable offense” occurred more than five years ago, Dan will be eligible to participate in the Prop 36 diversion program.

(2) Simultaneous convictions

If you are concurrently charged with both a drug-related crime, which does not involve violence, and another misdemeanor or felony you will not be eligible to participate in the Prop 36 program.

The most frequent occurrence of a concurrent charge that acts to render an individual ineligible for the program occurs when the Defendant is charged with a driving under the influence while in possession of a controlled substance.

(3) If at the time you were arrested for a simple possession offense, you were also in possession of a deadly weapon, you will become ineligible to participate in the program

(4) If drug treatment was a condition of probation for a previous offense, and the Defendant refused to comply with that requirement, they will become ineligible to participate in the program

The Prop 36 Sentence

A Defendant can only participate in the Prop 36 program if they satisfy one of the 3 following factual scenarios

  1. The Defendant must enter a plea of nolo contendre (no contest), or enter a plea of guilty to the offense they have been charged with, provided it is a nonviolent drug related offense.
  2. The Defendant must participate in a bench trial (a trial where this is no jury, jut the judge), and be convicted of a drug related crime, which does to involve any elements of violence.
  3. The Defendant has been released from prison in California on parole, and while on parole, the defendant committed a drug possession crime not involving violence.

In some circumstances the Court will allow the Defendant to participate in the program, but will also impose probation on the Defendant. If the court imposes probation, they will attach certain restrictions to that probation, some of which include: (1) counseling, (2) vocational training, or (3) community service.

What Constitutes Violations of the Probation or Parole Under Proposition 36?

If the Defendant is found to be in violation of even one requirement that was imposed as a condition of probation or parole, the Defendant may face enhanced penalties depending on the extent of the violation.

(1) Unamenable to treatment.

In certain circumstances, the Defendant will be found Unamenable to treatment, and essentially flunked out of DEJ. If this occurs, the Court will utilize the guilty plea you entered previously in order to obtain admission into DEJ and impose a penalty as though DEJ had never happened. In order to do this, the program administrator that you have been assigned to must determine that: (1) the Defendant is not following the rules of the program they are enrolled in, (2) the Defendant is not obtaining the benefit of the program they were intended to obtain, (3) The Defendant has been convicted of a crime that suggests the Defendant is prone to violence; or (4) the Defendant has performed a criminal act which leads them to believe you will not benefit from the treatment program you were assigned to.

(2)Violation of the Terms of the Probation or Parole

If a Defendant commits a separate offense while they are on parole, the Court may overlook this if:

  1. The Defendant committed a drug related offense that does not have a component of violence to it; OR
  2. The Defendant failed to comply with a condition of parole or probation that was entirely unrelated to drugs.

There are certain crimes that will trigger a probation or parole hearing:

  • The Defendant is accused of an offense involving the possession of drugs, and not involving a component of violence.
  • The Defendant is accused of being in possession of an illegal substance of paraphernalia
  • The Defendant is accused of being in the vicinity of a location that is known to house people who use drugs.
  • The Defendant failed to register as a drug offender.
  • The Defendant violated a term of probation or parole, and that term is related to illegal substances

The Court will hold a hearing to determine whether or not to revoke the Defendant’s probation or parole if any of the offenses listed above occur, and the Defendant is accused of committing those offenses. It should be noted that the Court is obligated to revoke the probation or parole if they determine that you are dangerous to the general public.

Completion of the Treatment

After the Defendant has completed the program, the Defendant may then request that the Court dismiss the charges against the Defendant. Once the Court is satisfied that you have completed the Proposition 36 Diversion program, the Court will dismiss the charges against you. In order to complete the Prop 36 program, you must have complied with all of the actions the Court has ordered to perform. The Defendant is only deemed to have completed the program once the Court is convinced that the Defendant is not at risk of abusing controlled substances in the future.

I Have Been Charged with a Non-Violent, Drug-Related Offense, How Can Los Angeles Criminal Lawyer Assist Me?

If you or a loved one has been accused of a drug related crime, and that crime did not involve the use or threat of violence, you may be eligible to participate in a drug diversion program and avoid spending any time in jail at all. The eligibility requirements can be complicated, and the discretion ultimately lies with the judge. Los Angeles Criminal Lawyer has successfully advocated for the admission of their clients into the program on numerous occasions. With our expansive knowledge of the law, we will build the most persuasive argument for your participation in the Prop 36 treatment program.

If you or a loved one has been accused a drug-related offense, contact Los Angeles Criminal lawyer today at 310-502-1314 for a FREE consultation.

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