Today, I am going to explain California’s pre-trial drug diversion program which is known as penal code 1000.
I regularly use this program to have our eligible clients drug cases dismissed.
Let’s get started…
[Estimated read time: 11 Minutes]
Penal Code 1000 refers to a disposition formerly called Deferred Entry of Judgment, but is currently called a pretial diversion where an eligible drug defendant asks to have their case suspended for 12 to 36-months while the defendant completes an approved drug education or rehabilitation program.
- A defendant may ask that he/she participate in an approved program in any California county.
- These programs must assess the defendant and provide a minimum of 20-hours of drug education or rehabilitation.
- Lastly, there must be a report, or exit conference, that reports on the defendant’s progress in the program.
The Benefits of Completing a Pretrial Diversion Program Are:
- You may lawfully and truthfully state under oath or penalty of perjury on any application for employment, credit, rent, school or other document that you have never been arrested for the charge or that you were granted a pretrial diversion1.
- Your arrest record cannot be used to affect your ability to obtain a professional license (e.g., real estate, law, medical) or have adverse effects on your employment.
The only exception is that you must disclose your arrest and grant of a pretrial diversion if you apply to become a police officer.
What Happens If The Court Determines You Failed The Program?
During your participation in a court-approved program, the court could determine that you are not fully participating or that some other circumstance has arisen that has rendered you no longer eligible for the diversion.
This could include:
- You are not attending the drug program
- Your participation has been unsatisfactory
- You are not benefiting from the program
- You have been convicted of a felony
- You have been convicted of a misdemeanor that reflects a propensity for violence (domestic violence or simple assault)
- You have engaged in criminal conduct that makes you ineligible
A defendant may be removed from the program if he/she fails to complete the program or commits a felony or misdemeanor involving violence2.
If this occurs, then the defendant may be removed from the program, convicted of the charged offense and sentenced.
Can DUI Offenders Participate In The Drug Diversion Program?
If a person commits a DUI offense that involves intoxication by drugs, this is considered a non-drug related offense and the person is not eligible for Proposition 36. A DUI-Drug offender may be able to enter the pretrial diversion program.
Where Do I Get A List of Approved Programs?
You can find a list of approved programs at the courthouse.
To be eligible for a DEJ, the court will review 2 factors:
The underlying drug offense:
Your criminal history is one of the two eligibility factors in determining whether a pretrial diversion should be offered in your case.
The criteria involves the following:
- You have no prior drug-related convictions
- The subject drug offense must be possession-related and not involve the sale of a controlled substance
- The underlying charged offense must be non-violent or not contain a threat of violence3
- You have no prior convictions for any felony offense within 5 years of committing the underlying drug offense4
- You have no history of previous parole or probation violations
- You have not participated in a pretrial diversion program or drug diversion program in the past 5 years5.
What Offenses Are Eligible For The Drug Diversion Program?
There are a number of qualifying drug offenses under Penal Code 1000.
The most common are:
- Health and Safety Code 11377 and 11350 HS – personal possession of a controlled substance
- Health and Safety Code 11357 HS – possession of less than one ounce of marijuana
- Health and Safety Code 11358 HS – cultivation of marijuana
- Health and Safety Code 11364 HS – possession of drug paraphernalia
- Health and Safety Code 11368 HS – forgery of a prescription
- Health and Safety Code 11365–knowingly being a place where drugs are being used
- Health and Safety Code 11550 HS – being under the influence of a controlled substance
- Penal Code Section 647(f) PC – under the influence of drugs in public
- Penal Code Section 653(f)(d)–solicitation of drugs or transportation for personal use
- Vehicle Code Section 23222(b) VC – driving while in possession of marijuana
- Business & professions Code 4060 BP – Possession of controlled substance
To begin the process of becoming involved in the California pretrial diversion program, your attorney will review your criminal history with the prosecutor.
As indicated above, the prosecutor will look at the charged offense for which you were arrested and your criminal record to see if you qualify6.
If you do, a hearing will be scheduled before a judge
After considering the offense and your history, the judge will determine if all criteria have been met.
If you are found eligible, the judge will explain the program including your participation and successful completion of a drug education or rehabilitation program and the consequences of non-participation and completion.
A diversion program is now 12-18 months, though a longer period may be requested.
You will then be required to do the following:
- Waive your jury trial rights.
- Waive your speedy trial rights.
- Pay a DEJ participation fee of not more than $1000.
- Acknowledge that you will have to apply for and participate in a court-approved drug education or treatment program and be responsible for its costs.
- Acknowledge that you understand that successful completion of the drug program will result in a dismissal of the subject charge and that you may state under penalty of perjury that you were never arrested on this charge.
- Acknowledge that if you fail to complete the program within the prescribed time that you will be dismissed from the program and criminal proceedings against you will commence, however, you will not be entitled to a jury trial and your case will proceed with a bench trial or a plea bargain.
The probation department will have to assess you to determine the best drug program for your needs. It will consider:
- Employment and skills
- Community and family connections
- Drug history and prior efforts at rehabilitation and treatment
The pretrial diversion program is not the only program or alternative available to drug offenders.
Another program is Proposition 36 found under Penal Code Sections 1210-1210.1 and Penal Code Section 3063.1.
What Are The Differences Between a DEJ and Proposition 36:
- Pretrial diversion allows defendants who have prior serious felony convictions to become eligible so long as they meet all the other requirements. This includes an offense for which you were given a strike under California’s three strikes law. Proposition 36 will not allow such defendants in its program.
- Pretrial Diversion applies to a wider range of drug offenses
- If you plead guilty under Proposition 36, you are sentenced to formal probation and will have additional conditions and restrictions imposed on you
- Proposition 36 requires that you be sentenced and serve probation for 3 years. Drug treatment is determined by an assessment by a community program that could involve residential treatment.
- With a pretrial diversion, your deferment may last only 12-months and you are not required to receive treatment in a residential program.
We can help assess if a pretrial diversion is a possibility in your case and have meaningful conversions with the prosecution about extending an offer of a pretrial diversion. We have had many clients successfully receive and complete a pretrial diversion.
If you would like to speak to a criminal defense attorney, please call our office at: (818) 351-9555 for a free confidential consultation.
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- California Penal Code 1001.90(a) Any record filed with the Department of Justice shall indicate the disposition in those cases diverted pursuant to this chapter. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred and the court may issue an order to seal the records pertaining to the arrest as described in Section 851.92. The divertee may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (b). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the divertee’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. [↩]
- California Penal Code 1000.3(c) – If the court finds that the defendant is not performing satisfactorily in the assigned program, or the court finds that the defendant has been convicted of a crime as indicated in subdivision (a), the court shall schedule the matter for further proceedings as otherwise provided in this code. [↩]
- California Penal Code 1000(2) – The offense charged did not involve a crime of violence or threatened violence. [↩]
- California Penal Code 1000(a)(4) – The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. [↩]
- California Penal Code 1000(a)(1) – Within five years prior to the alleged commission of the charged offense, the defendant has not suffered a conviction for any offense involving controlled substances other than the offenses listed in this subdivision. [↩]
- California Penal Code 1000.2(a). [↩]