California has several different programs that can allow a person charged with a drug offense to obtain treatment rather than simply receiving a criminal conviction or serving time in jail.
However, not all drug cases qualify for the same type of diversion.
Three important areas of California drug law are:
In addition, California courts operate drug courts and other collaborative treatment programs that may be available depending upon the county and the circumstances of the defendant. California describes drug courts as treatment-based alternatives to traditional criminal case processing, combining judicial supervision, monitoring, and substance-abuse treatment.
Because these programs have substantially different eligibility requirements and consequences, it is important to determine which statute applies before resolving a drug case.
One of California's traditional drug-diversion programs is found in Penal Code § 1000, commonly referred to as Deferred Entry of Judgment (DEJ).
DEJ is designed for certain defendants charged with specified low-level drug offenses.
The basic concept is relatively straightforward:
Instead of immediately entering a judgment of conviction, the defendant enters a plea and the court postpones entry of judgment while the defendant completes a drug-treatment program.
The defendant must comply with the treatment program and the conditions imposed by the court.
If the defendant successfully completes the program, the criminal proceedings can be dismissed and the defendant can receive important protections concerning the arrest and case.
California courts continue to describe § 1000 DEJ as a diversion program for eligible drug-related offenses. For example, California courts explain that a typical DEJ program can involve an 18-month treatment period and counseling, although the exact program and requirements depend upon the case and county.
Eligibility for Penal Code § 1000 is determined by statute.
It is not simply a matter of asking a judge to allow someone to attend drug treatment.
The charged offense must be one of the offenses specifically made eligible by the statute, and the defendant must satisfy the applicable statutory requirements.
The court also considers the defendant's prior record and other circumstances specified by law.
A person charged with a drug offense should therefore not assume that every possession offense automatically qualifies for PC § 1000.
A defendant who qualifies for DEJ generally enters a guilty or no-contest plea, but the court does not immediately enter judgment.
Instead, the defendant is placed into a treatment program.
The defendant may be required to:
The purpose is to address the underlying substance-abuse problem rather than simply punish the defendant for possessing drugs.
Successful completion of DEJ can result in the criminal case being dismissed.
California courts explain that successful completion can result in the arrest being treated as though it never occurred for many purposes, subject to statutory exceptions.
California Courts also recognize that a person who successfully completes drug diversion may be able to have the related arrest records sealed under Penal Code § 851.90.
This can be an extremely important benefit for employment, housing, education, professional licensing, and other background-check purposes.
Health and Safety Code § 11375 requires particular attention because it is often misunderstood.
Section 11375 concerns certain controlled substances and prescription drugs and has undergone legislative changes over the years.
Whether a person charged under § 11375 qualifies for diversion depends upon:
Why the Exact Charge Matters
A drug case cannot be evaluated simply by looking at the general category of the offense.
For example, possession of a controlled substance for personal use may be treated very differently from:
The precise Health and Safety Code section and subdivision should therefore be reviewed before determining whether diversion is available.
California voters approved Proposition 36 in November 2024.
The current Proposition 36 took effect on December 18, 2024 and substantially changed California's approach to certain repeat drug-possession cases.
The current law should not be confused with the original Proposition 36 drug-treatment law enacted in 2000.
The 2024 initiative created a new category of felony drug possession called a:
Treatment-Mandated Felony
A treatment-mandated felony is generally a drug-possession case involving a defendant who has two or more prior qualifying drug-possession convictions.
Under the new law, prosecutors can charge qualifying repeat drug possession as a felony under Health and Safety Code § 11395.
But the defendant is given an important alternative:
The defendant may elect treatment instead of simply serving a custodial sentence.
The Judicial Council describes these cases as “treatment-mandated felonies.” A defendant can enter a guilty or no-contest plea, but judgment is deferred while the defendant completes court-ordered treatment. Successful completion can result in dismissal of the case.
Proposition 36 is fundamentally different from ordinary misdemeanor diversion.
In a typical § 11395 case:
The Judicial Council has reported that counties are developing treatment programs modeled in part on drug courts and other collaborative treatment programs.
Treatment is not simply a single drug-education class.
Depending upon the defendant's needs, treatment can involve:
California's current collaborative-treatment standards emphasize individualized assessment, different levels and phases of treatment, periodic reassessment, drug testing, judicial supervision, and incentives and sanctions designed to encourage compliance.
This is one of the most important aspects of the current law.
Successful completion of the required treatment can result in the dismissal of the treatment-mandated felony case.
The Judicial Council specifically describes § 11395 as a deferred-entry-of-judgment program in which successful completion of treatment permits the charges to be dismissed.
Thus, even though the defendant initially faces a felony prosecution, successful completion of the treatment program can prevent the case from ending in a felony conviction.
This is one of the most important aspects of the current law.
Successful completion of the required treatment can result in the dismissal of the treatment-mandated felony case.
The Judicial Council specifically describes § 11395 as a deferred-entry-of-judgment program in which successful completion of treatment permits the charges to be dismissed.
Thus, even though the defendant initially faces a felony prosecution, successful completion of the treatment program can prevent the case from ending in a felony conviction.
A defendant must take a Proposition 36 treatment program seriously.
Failure to participate, repeated violations of court orders, or failure to comply with treatment requirements can result in the court taking action against the defendant.
Depending upon the circumstances, the defendant may lose the benefit of deferred judgment and face sentencing on the underlying offense.
A relapse, however, should not automatically be treated as the same thing as intentional refusal to participate in treatment.
Modern treatment-court models recognize that relapse can occur during recovery and emphasize reassessment and adjustments to treatment when appropriate.
The particular consequences of a failed treatment program should be evaluated under the applicable statute and the defendant's court orders.
This is one of the most important aspects of the current law.
Successful completion of the required treatment can result in the dismissal of the treatment-mandated felony case.
The Judicial Council specifically describes § 11395 as a deferred-entry-of-judgment program in which successful completion of treatment permits the charges to be dismissed.
Thus, even though the defendant initially faces a felony prosecution, successful completion of the treatment program can prevent the case from ending in a felony conviction.
This is a critical distinction.
Proposition 36 does not mean that anyone charged with possession of drugs automatically gets treatment instead of prosecution.
The current law focuses on specific repeat-possession circumstances.
The defendant's prior convictions matter enormously.
An attorney should investigate:
This is one of the most important aspects of the current law.
Successful completion of the required treatment can result in the dismissal of the treatment-mandated felony case.
The Judicial Council specifically describes § 11395 as a deferred-entry-of-judgment program in which successful completion of treatment permits the charges to be dismissed.
Thus, even though the defendant initially faces a felony prosecution, successful completion of the treatment program can prevent the case from ending in a felony conviction.
These programs should not be confused.
PC § 1000 DEJ |
Generally applies to specified eligible drug offenses |
Traditionally aimed at lower-level drug cases |
Statutory eligibility requirements apply |
Defendant enters plea and judgment is deferred |
Treatment is required |
Successful completion can result in dismissal |
Different record-clearing provisions apply |
Current Proposition 36 / H&S § 11395 |
Specifically addresses qualifying repeat drug possession |
Can involve a felony treatment-mandated offense |
Two or more qualifying prior drug-possession convictions are central |
Defendant enters plea and judgment is deferred |
Treatment is required |
Successful completion can result in dismissal |
Different statutory consequences apply |
The important point is that the availability of one program does not necessarily eliminate the possibility of another. Defense counsel should evaluate all applicable alternatives before the defendant enters a plea.
California also operates Drug Courts and other collaborative treatment courts.
Drug courts are designed for individuals with significant substance-use problems who may benefit from intensive treatment and court supervision.
California describes adult drug courts as evidence-based programs combining:
Drug courts vary considerably between counties.
Some drug courts are post-plea/post-adjudication, while others operate as pre-plea diversion programs.
That distinction is extremely important.
A person should understand whether a guilty plea or conviction will occur before entering a particular treatment court.
California's legalization of adult-use marijuana does not mean that every marijuana-related offense is automatically dismissed or diverted.
For example, California continues to regulate:
The precise charge must therefore be examined before determining whether drug diversion is available.
A drug-related DUI is a different legal issue from simple drug possession.
A person charged with driving under the influence of drugs should not assume that a drug-diversion program under Penal Code § 1000 or Proposition 36 will resolve the DUI charge.
DUI cases have their own statutory requirements, including licensing and DMV consequences.
Military diversion may provide an additional avenue for an eligible veteran or active-duty service member charged with misdemeanor DUI.
Mental-health diversion may also be relevant in an appropriate case.
The attorney should therefore evaluate the entire case rather than treating the drug component in isolation.
Drug cases can involve several potentially overlapping options:
PC § 1000 DEJ → drug treatment → dismissal
Military diversion → treatment → dismissal
Mental-health diversion → mental-health treatment → dismissal
Drug court → intensive treatment and judicial supervision
Proposition 36 / H&S § 11395 → treatment-mandated felony → successful treatment → dismissal
The best option depends upon the defendant's charge, criminal history, substance-use history, mental-health history, military status, and the particular treatment resources available in the county.
For that reason, a defendant should speak with a criminal-defense attorney before entering a guilty or no-contest plea simply because a prosecutor has offered "drug treatment."
The difference between a pre-plea diversion program, deferred entry of judgment, a treatment-mandated felony, and a post-conviction drug court can have major consequences for the defendant's criminal record, employment, licensing, immigration status, firearm rights, and future legal exposure.
In many cases, yes.
Successful completion of an applicable diversion or deferred-entry-of-judgment program can result in dismissal rather than a conviction.
California Courts specifically recognize that successful completion of drug diversion can provide a basis for sealing the associated arrest record under Penal Code § 851.90.
However, the precise effect on a person's record depends upon the particular program and statute.
Before accepting any drug-treatment offer, have an attorney determine whether the program will result in dismissal, whether a plea or conviction will be entered, and what will ultimately appear on the defendant's criminal record.
As successful Criminal Defense Attorneys in Chico, we frequently serve Butte, Glenn and Tehama County.
We will defend your Chico DUI, Butte County criminal case, felony charge or probation violation.
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