Long Beach Defense Attorney Explains Proposition 36

In California, the voters passed an initiative that allows non-violent drug users the ability to avoid jail if they want treatment. If an accused drug user is charged with personal use, possession for personal use, or transportation for personal use of a controlled substance, he or she may qualify for drug treatment under the provisions of Proposition 36. The court must grant probation as an alternative to incarceration to qualifying defendants convicted of “nonviolent drug possession offenses,” as defined in Penal Code §1210(a) and Penal Code §1210.1(a). Courts must impose, as a condition of probation, completion of a drug treatment program not to exceed 12 months, with optional aftercare of up to six months.  The court may also require that the defendant participate in vocational training, family counseling, literacy training, and/or community service.  Qualifying defendants must consent to participate in a drug treatment program, must be amenable to treatment, and must not otherwise be excluded from participation under Pen C §1210.1(b). According to one Long Beach Drug Lawyer, trial courts that impose drug treatment are not otherwise limited in the type of probation conditions they may impose.

A determination of whether the defendant may be eligible for Proposition 36 sentencing may be initiated at arraignment on the suggestion of counsel, or on inquiry by the court. The prosecutor may formalize the process by filing with the complaint a statement of eligibility.

Some courts do not immediately grant Prop 36 but may want to continue the case to allow the probation department to conduct an eligibility review, and to allow for a laboratory analysis of the substance possessed by the defendant or that was found in the defendant’s blood or urine. Many Courts, including Long Beach Superior Court,  assign a drug professional to conduct a preliminary treatment assessment. In the alternative, the court may ask the defendant to enter a conditional plea of guilty or no contest before an eligibility review and treatment assessment. If the defendant is found ineligible for the drug treatment program or the laboratory analysis proves negative for the presence of a controlled substance, the defendant may be allowed to withdraw the plea

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