March 2, 2009 By Wallin & Klarich

Which Prior Convictions Will Disqualify Me For Drug Diversion Under Proposition 36 or Penal Code 1000?

Prior convictions for California drug offenses, even drug sales, will not necessarily disqualify a defendant under Proposition 36. The only prior conviction that excludes a defendant under Prop 36 is one for a serious or violent felony listed in Penal Code 667.

5(c) or Penal Code1192.7. However, even this exclusion can be avoided if the defendant has remained free of all drug possession offenses for 5 years or more.

Defendants who are charged with other non-drug offenses are not eligible for drug diversion under Penal Code 1000. Conversely, under Proposition 36, eligibility turns on the offenses of which the defendant is convicted, regardless of what the defendant is charged with.

The list of eligible offenses for Penal Code 1000 includes some crimes other than possession of drugs or being under the influence, the offenses to which Proposition 36 applies. Penal Code 1000 includes misdemeanor offenses such as possession of drug paraphernalia (Health and Safety Code 11364) or presence where drugs are being used (Health and Safety Code 11365).

Proposition 36 provides that convictions of Health and Safety Code 11364 and Health and Safety Code 11365, along with a conviction of drug possession or being under the influence does NOT defeat the defendant’s eligibility for Proposition 36. If the defendant is charged with one of these misdemeanors alone, they would be eligible for Penal Code 1000, but not eligible for Proposition 36.

Thus, Penal Code 1000 is not completely supplanted by Proposition 36. There will be some defendants who qualify for deferred entry of judgment who will not be eligible for Proposition 36. Most defendants, who are eligible for Penal Code 1000, will also be eligible for Proposition 36.

If a defendant failed in Penal Code 1000 diversion, and was thus convicted of a charge of drug possession or being under the influence, they would still qualify for the probation mandated by Proposition 36.

For a free consultation with a California drug offense diversion attorney to discuss your eligibility please call us at (888) 280-6839. Our attorneys are available 24 hours a day, seven days a week to answer any of your questions. You can also visit us at for more information.

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