CA Prop 36

Drug Diversion

Who’s Eligible for Prop 36?

Proposition 36, also known as Drug Diversion, is an alternative sentencing option for a non-violent[1], personal use, drug charge.  You are only eligible for Prop 36 if you plead guilty to the charges against you and the case doesn’t go to trial.  Proposition 36 is a form of probation where you are forced to complete a court-approved drug treatment program without any violations.  The program will include drug education, outpatient services, detox and aftercare services.

Judges are likely to grant Proposition 36 when they feel like a defendant has a drug problem and that incarceration will not be as beneficial as drug treatment.  Luckily in Southern California a lot of judges approve of the program and are likely to grant Proposition 36 in lieu of a jail or prison sentence.

If you are arrested for:

  • California Health and Safety Code 11351 – Possession of a Controlled Substance for Sale
  • California Health and Safety Code 11352 – Selling or Transporting a Controlled Substance
  • California Health and Safety Code 11360 – Selling or Transporting Marijuana
  • California Health and Safety Code 11359 – Possession of Marijuana for Sale

Then you are not eligible for Drug Diversion.

 However, if your criminal defense attorney can make a deal with the prosecutor and have your charges reduced to either:

  • California Health and Safety Code 11350 – Possession of a Controlled Substance
  • California Health and Safety Code 11357 – Possession of Less Than 1oz of Marijuana
  • California Health and Safety Code 11550 – Under the Influence of a Controlled Substance

Then you will become eligible for Drug Diversion.

If you successfully complete Prop 36 without any violations then the charges will be dropped from your record as if they were never filed. However, if you are granted Prop 36 and you violate the terms of the agreement then you will be subjugated to a jail or prison sentence.

Other factors that will make you ineligible for Prop 36 are:

  • If you have one or more prior violent felony conviction
  • If you were simultaneously convicted of a non-drug related misdemeanor or felony
  • If when you were arrested you had a deadly weapon
  • If you have previously participated in Prop 36 twice before
  • If you refuse drug treatment as a condition of your probation term

It’s clear that there are benefits to Proposition 36 and if you are facing drug related charges then it’s imperative to talk to an attorney to see if Drug Diversion is an option for you.



[1] The term “nonviolent drug possession offense” means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term “nonviolent drug possession offense” does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8.

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