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Medical Marijuana

The passage of California's Proposition 215 has now legalized medical marijuana.

Proposition 36

Proposition 36 sends drug offenders to treatment instead of prison and has been found to be successful at treating abusers of drugs. Proposition 36, however, has its limits. It is not available for individuals accused of the sale or manufacturing of drugs, or charged with a violent offense, or for those who have a prior conviction for a violent crime (with possible exception of some domestic violence cases). Proposition 36 sentencing consists of probation and drug treatment, and it specifically states that a defendant shall not be required to spend time in jail as a condition of probation. It also mandates dismissal of charges when treatment is completed. Proposition 36 provides for the right of a person convicted of a nonviolent drug offense to receive probation and drug treatment.

Limits to Proposition 36

Any defendant previously "convicted" of one or more serious felonies is excluded (the offenses are listed under Sections 667.5 or 1192.7 of the Penal Code). However, if the person has a "Sustained Juvenile Petition" (which is similar to an adult "conviction'), Welfare and Institutions Code Section 203 states that "an order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime . . . nor shall a proceeding in the juvenile court be deemed a criminal proceeding." Since, proposition 36 expressly requires a defendant be "convicted" of a serious felony to be excluded, and the Welfare and Institutions Code explicitly prohibits a juvenile court disposition from being deemed a conviction; then a person with a prior juvenile record may qualify for Proposition 36. However, a recent Appellate Court decision eliminates proposition 36 for individuals convicted of DUI in the same proceeding.

Drug Courts

In many counties in California, there has now exists “drug court.” These courts are given the responsibility of handling the close supervision of select felony and misdemeanor cases involving non-violent drug-addicted offenders through a specialized treatment program. Drug programs can vary (depending on which courthouse is handling the case), but each program will commonly be separated into different phases, where the participant will earn more freedoms each time a phase is completed successfully. Participation, however, is not guaranteed. Permission to become part of the drug court program has to be granted/ordered by a judge. And, there are those that will not be allowed to attend as well. For example, participation is precluded for any offender who has been charged with a violent offense or who has a prior conviction for a violent crime (except some minor domestic violence cases) and usually excludes offenders charged with sales of drugs, possession for sale of drugs, or other serious offenses. While in most cases jail time is not part of the program, in some it may be required. Regardless, the case is dismissed when the program is successfully completed.

Diversion

Diversion is another alternative. With diversion, a person accused of a drug crime is required to enter a plea of guilty to the charge, but is not then sentenced. A criminal case is never finished until the defendant is sentenced. In these cases, sentencing is allowed to be put off while the accused attends a drug diversion program (usually, a series of classes). During the time one is on a diversion program, drug testing is done randomly and a "dirty" or positive test can create new legal problems or get that person kicked out of the diversion program altogether. Should the defendant violate the terms of his/her diversion program, the court may go ahead and sentence the defendant (as the defendant has already entered a plea and can be sentenced on that plea). Diversion is generally for first time offenders and successful completion of the diversion program will mean the case will get dismissed (in lieu of being sentenced) and there will be no conviction on your record. One of the reasons you need a knowledgeable and experienced criminal defense attorney is to have someone on your side that knows what programs you are eligible for and how to keep your record clean!



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