August 4, 2009 By Wallin & Klarich

In a previous article, we began our discussion regarding Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, which commands that qualified individuals convicted of CA nonviolent drug possession offenses be sentenced to probation and narcotics treatment as an alternative to incarceration. Continued here are some additional valid points of interest for Proposition 36.

Other Ineligibility Factors
Even if the defendant is convicted of a qualifying offense, if he/she has been previously convicted of one or more “strike” priors under Sections 667(b)-(i) and 1170.12, they will be ineligible for Prop 36, unless they have remained free from prison custody for the past five years and have not committed any felony other than a nonviolent drug possession offense nor any misdemeanor involving physical injury or threat of physical injury to another person. Another statutory bar occurs when a person is convicted, in the same proceeding, of any felony or misdemeanor not related to the use of drugs.

The remaining statutory bars occur when the person uses a firearm while possessing or being under the influence of cocaine, heroin, methamphetamine or PCP; people who refuse drug treatment as a condition of a grant of probation and people who have twice previously received treatment under Prop 36 and have been found not to be amenable to any available drug treatment.

The defendant is entitled to a dismissal if they successfully comply with the conditions of probation and complete drug treatment. A petition to terminate probation and dismiss the charges may be filed by the defendant. With some exceptions, after a case is dismissed, the arrest and the conviction shall be deemed never to have occurred.

What to Do if You Are Convicted for a Drug Offense
There are a variety of procedural conditions that can make the difference between serving time in jail or being given an alternative drug diversion program. If you are in need of an experienced Southern California criminal defense attorney who will assertively defend your rights and keep you informed, then Wallin & Klarich can help protect your rights. Visit our website at

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