Prop 36 Drug Diversion Legal Information

Proposition 36 Eligibility

Proposition 36 is one type of California drug diversion. Drug diversion is the practice of allowing eligible defendants to have their criminal charges or conviction dismissed if they successfully complete a court-approved drug treatment program. More specifically, under Proposition 36 when a defendant is convicted of a “nonviolent drug possession offense”, the court must:

(1) Suspend the imposition of a sentence,

(2) Grant probation, and

(3) Require the defendant to participate in and complete an appropriate drug treatment program as a condition of probation.

This means that eligible non-violent drug offenders serve their time in a drug treatment program rather than jail or prison.

What does it matter?

Upon successful completion of the ordered program and probation, the conviction on which probation was based will be set aside and the court will dismiss the case against the defendant. In addition, and subject to certain exceptions, both the arrest and the conviction shall be deemed never to have occurred.

What is a “non-violent drug offense” for purposes of Prop 36?

The term “nonviolent drug possession offense” means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance, or …being under the influence of a controlled substance as defined by Health and Safety Code section 11550.

These drugs include, but are not limited to:

Nonviolent drug possession offense” does not include the possession for sale, production, or manufacturing of any controlled substance and does not include drug offenses occurring while in custody. It also does not include:

  • Health and Safety Code 11358 – Cultivating marijuana
  • Health and Safety Code 11370.1(a) – Possessing a controlled substance while armed with a loaded, operable firearm, and
  • Health and Safety Code 11368 – Forging or presenting a forged prescription to obtain drugs.

Additional requirements for Prop 36

Not only must the offense itself qualify under Prop 36, the defendant must qualify themselves. There are five factors that may disqualify you from Prop 36:

  1. If you have a prior “strike” conviction;
  2. If you were simultaneously convicted of a non-drug related misdemeanor or felony;
  3. You were armed with a firearm or other deadly weapon at the time you committed your nonviolent drug possession offense;
  4. You refuse drug treatment as a condition of probation; or
  5. You have previously participated in two other California Proposition 36 programs.