Can I Get Prop. 36 On a DUI?

As a local Long Beach Criminal Attorney I have defended thousands of DUI and drug cases. One of the frequent questions I get from people is can I get a propostion 36 treatment program if charged with a DUI? The answer is no. The law specifically excludes offenders charged with drunk driving from getting their case dismissed in a prop 36 program. This also applies to PC 1000 dispositions. The legislature, probably due to pressure from MADD and SADD and other lobby groups made a decision not to divert DUI offenders, even if it is a first time offense.

In fact recent Courts have followed this line of reasoning, solidifying the proposition that a defendant convicted of both a nonviolent drug possession offense and a misdemeanor driving under the influence offense is not eligible to receive probation and drug treatment, in place of incarceration, under Proposition 36 as defined in Penal Code 1210.  One Justice opined that the driving under the influence offense is a disqualifying “misdemeanor not related to the use of drugs” within the meaning of Pen C §§1210.1(b)(2) and 1210(d), in the Supreme Court case of People of California vs. Canty (2004) 32 C4th 1266.  Furthermore, a criminal defendant convicted of a nonviolent drug possession offense may be denied probation and drug treatment under Proposition 36 if he or she has a prior misdemeanor driving under the influence conviction. People versus Eribarne (2004) 124 CA4th 1463 where the court found that DUI offense committed within five-year washout period involved the “threat of physical injury to another person” within meaning of Penal Code §1210.1(b)(1).

Many believe this decision should be re-visited in cases of first time offenders with no other history of criminal conduct. However, for now there is no prop 36 for driving under the influence cases in california.

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