Proposition 36 is a voter-passed initiative that allows people charged with certain non-violent drug offenses to enter a drug treatment program rather than serve jail or prison time. Under Proposition 36, the person pleads guilty or no contest to the non-violent drug charge, is placed on probation, and must complete one year of drug treatment and 6 months of after-care. If the person successfully completes the rehabilitation program and any other terms of probation, the charges may then be dismissed by the court.

However, not everyone charged with a drug crime can qualify for Proposition 36. But for those who do, Proposition 36 may provide an excellent alternative to jail or prison time. It can keep the individual out of custody, provide the opportunity for addiction treatment, and ultimately result in the dismissal of the Defendant’s drug conviction.

Eligibility for Proposition 36

Proposition 36 only applies to certain charged crimes and under certain circumstances. To evaluate a particular defendant’s eligibility, it is important to understand the eligibility criteria:

• The current charge is for non-violent drug possession for personal use (see below)
• Defendant has no “violent” or “serious” felony convictions within the previous 5 years
• Defendant is not convicted in the same case for any misdemeanor or felony that is not a non-violent drug possession charge
• Defendant has not refused drug treatment as part of Proposition 36 probation
• Defendant has not already participated at least twice in Proposition 36 or another drug treatment program AND the court determines that drug treatment is ineffective to treat the defendant

Charges Covered by Proposition 36

Proposition 36 only applies to “non-violent drug possession offenses.” These are defined as the unlawful possession for personal use, or transportation for personal use, of controlled substances such as the following under the following statutes:

• Health & Safety (H&S) Code § 11054 – heroin, marijuana, cocaine base and LSD, among others.
• H&S Code § 11055 – cocaine, methamphetamine, PCP, methadone and Ketamine, among others.
• H&S Code §§ 11056, 11057 and 11058

 Violating Proposition 36 Probation

If a defendant violates the terms of their Proposition 36 probation, they risk having probation revoked and a sentence imposed by the court for the original drug-related charge. However, if the probation violation is a failure to comply with drug treatment or the other drug-related conditions of probation, the court may give the defendant up to three chances before revoking probation as follows:

• First Violation – probation cannot be revoked unless the defendant is determined to be a danger to others
• Second Violation – probation cannot be revoked unless the defendant is determined to be a danger to others and further drug treatment will be ineffective
• Third Violation – court must revoke probation and sentence the defendant for the drug charge.

Dismissal of Charges Under Proposition 36

If the court finds that a Proposition 36 defendant has successfully completed drug counseling and all other conditions of probation, the case will be dismissed.