Convicting and housing offenders is costly for the criminal justice system. Therefore, the government seeks alternative sentencing options that are less costly and beneficial to the offenders. The defendant can pursue these alternatives before, during, or after trial (and sometimes after a conviction).

One such initiative is the pretrial diversion program for drug offenders. A pretrial diversion system directs you to a drug treatment program before trial. Meanwhile, the court will not convict you for the offense until you complete the program.

Based on your success in completing the program, the court will dismiss your charges and seal your arrest record or try you for the offense.

Entry into a pretrial program can help you avoid a conviction, a criminal record, and for some, a repeat offense. You can discuss your eligibility with the Orange County Criminal Defense Attorney Law Firm. Here are some of the facts you will learn about pretrial diversion for drug crimes in California.

Definition of Pretrial Drug Diversion

California PC 1000 allows a defendant charged with a low-level drug offense to have the court dismiss his or her charges upon the successful completion of the drug treatment program.

Before January 2018, defendants had to take a guilty plea before starting the diversion program. Therefore, failing to complete the program led to a conviction. During that time, the program was known as deferred entry of judgment since it deferred the sentencing until you completed the program.

Under PC 1000, the defendant does not have to plead guilty to the charges. You can plead ‘not guilty’ and still be eligible for the program. In addition, you must complete the program successfully for the court to dismiss your charges; however, if you fail to complete the program, you will go to trial for the charges.

The advantage of this program is that you are not automatically guilty if you fail to complete the program successfully. You can still fight these charges during the bench trial.

The major goals of a pretrial drug diversion program include:

  • Preventing repeat offenses by the defendant (jailing some offenders increases the chances of developing radical and criminal behavior that will land them in trouble after the first offense)
  • To save the criminal justice system the resources and time that could have been spent pursuing the traditional paths of justice

If you are an immigrant, then enrolling in such a program also helps protect your status as a permanent resident. Drug crimes are deportable crimes; therefore, a conviction can lead to your deportation. Previously, taking a guilty plea to join the program meant that your criminal record would show guilt for the offense. Therefore, you could still be deported even after the successful completion of the program. However, through the pretrial diversion for drug crimes, you are free from the burden and consequences of a guilty plea on your legal status.

Before you can enroll in a pretrial drug diversion program, you must meet the eligibility requirements. The criterion includes the eligible offenses, the drugs related to the underlying offense, and your criminal history. Some of these conditions include:

  • You must not have a previous conviction for a drug offense involving a controlled substance in the last five years, except for offenses listed under PC 1000
  • You must not have threatened or acted with violently when committing the alleged offense
  • You did not commit a simultaneous offense involving narcotics or restricted drugs, except for those mentioned under PC 1000
  • You should not have a prior felony conviction within five years of the current offense
  • You were in possession of drugs for personal use
  • You will benefit from the treatment program

Some of the offenses eligible for pretrial drug diversion include:

  • Possessing a controlled substance HS 11350
  • Possessing cannabis illegally HS 11357
  • Possessing drug paraphernalia HS 11364
  • Facilitating the use of an unlawful controlled substance HS 11365
  • Unlawful possession of some prescription sedatives
  • Possessing methamphetamines for personal use
  • Being under the influence of a controlled substance
  • Having an open container of cannabis in a vehicle
  • Illegal cultivation of cannabis for personal use
  • Possession or use of a forged prescription to obtain prescription drugs for personal use
  • Soliciting another person to commit a crime to enable your personal use of narcotics
  • Possessing toxic substances for huffing
  • Lewd conduct while under the influence of a controlled substance
  • Possessing a controlled substance

Some of the eligible drugs include cocaine, GHB, heroin, ecstasy, peyote, ketamine, marijuana, methamphetamines, prescription opioids, and hallucinogenic substances such as PCP.

Getting into a Pretrial Drug Diversion Program

The prosecuting agency has the discretion on whether to file charges based on the report of the arresting officer and the available evidence. If the prosecution files charges for a low-level misdemeanor, it will also review your case to determine whether you are eligible for pretrial diversion.

The prosecution will send a notice to you and your attorney if it finds you eligible for the pretrial drug diversion. The notice will contain information about:

  • The procedures for the pretrial diversion for drug crimes
  • The roles and powers of various stakeholders including the probation department, the court, the prosecution, the administrators of the program
  • A statement about the requirements, which the defendant must fulfill before getting into the program, including:
  • Taking a ‘not guilty’ plea to the charges
  • Waiving his or her rights to a speedy trial, preliminary hearing and a jury trial
  • The dismissal of the charges against the defendant upon the successful completion of the pretrial drug diversion program and a positive recommendation from the program officials
  • The authority of the court to terminate the program in case the defendant fails to adhere to the conditions of the program commits an ineligible offense or fails to attend treatment
  • The rights the defendant has throughout and after the program

The court goes further into determining your eligibility into the program through an investigation by the probation department. The probation officer establishes your suitability for the program, including the treatment elements that are more likely to work for you.

The department will rely on factors such as:

  • Your age
  • Your family status
  • Employment
  • Your history of and drug and substance abuse
  • Your ties to family and community
  • Your motivation
  • Any drug treatment history
  • Your education background
  • Mitigating factors

The probation officer might have to speak with you when investigating your suitability for the program. Any information or statements you make are inadmissible in court. Therefore, the court cannot use them to prosecute you for the offense.

The probation department will submit its report to the court, which will make the final decision about your eligibility for drug diversion and treatment, education, or rehabilitation plan that would be suitable for you.

While the court might recommend the program, you still have the choice to turn down the offer for diversion. If you do not want to go through the program, your criminal case will proceed.

You must sign a Tahl waiver of rights upon agreeing to participate in the program. Signing the waiver lets you give up your rights to a speedy trial, preliminary hearing, and a jury trial.

You will enroll in a pretrial drug diversion program that:

  • Certified by a county drug administrator
  • Provides free services and has the approval of the court and the county drug program administrator as credible and effective

The program will last between 12 and 18 months, but you could request the court to extend the period upon showing good cause.

During the program, you will have to go through drug education, training, and probation. The greater emphasis of these programs is to provide counseling and rehabilitation. The court might require you to submit random drug samples to ascertain that you are following the terms of the diversion program.

You will have to pay a diversion fee of between $100 and $1000. The court might, at its discretion, choose to adjust the amount you pay depending on the seriousness of the offense and your ability to pay.

Other conditions of the program include:

  • You must enroll in the program within the set deadline
  • You must refrain from committing additional crimes
  • You must complete the program satisfactorily

If you are struggling with substance abuse, you might be worried about your adjustment without the drugs. The court, however, allows you to take narcotic medication under the supervision of a licensed health care provider. The health care official will ensure that you take just the right amount to help deal with the addiction.

Pretrial Drug Diversion for Special Groups

The criminal justice system often looks at various offenders differently. The common special groups include juveniles and service members. When the defendant is either a juvenile or an active or retired service member, he or she might be referred to a different diversion program.

For the service members, they can go through military diversion, which addresses substance abuse, among other problems common among service members. These problems, such as mental health problems and sexual trauma, can trigger the service member to commit a crime.

Therefore, the court will determine whether the offense is a result of his or her service in the military. The court will also determine the possibility that the defendant will benefit from the treatment.

Usually, your attorney will request diversion from the court, which might request an assessment to determine whether you qualify for the program.

If you qualify, the court will place you on a diversion program and stay the criminal proceedings for up to two years. Military diversion offers both federal and community service programs meant to help the military members deal with their problems.

The court will choose the most appropriate program for you based on the success different training programs have had in treating substance abuse issues. While on military drug diversion, you have to comply with the set conditions and complete the program successfully for the court to dismiss your charges.

Some of the conditions of military drug diversion include:

  • Attending the treatment program
  • You must get counseling for substance use disorders
  • You must submit random drug tests
  • You must make satisfactory progress at each stage of the program (the court will require the program administrator to provide reports of your performance about every six months. the court will use these performance reports to determine whether the program is beneficial to you.)

The court might terminate the program if it determines (from your performance reports) that the treatment is not beneficial or you are performing unsatisfactorily.

The court might also place you under the veterans’ court, a highly structured and supervised treatment program that deals with the underlying issues that could trigger the commission of a crime.

Juvenile offenders are another special group with special characteristics. Often, when law enforcement arrests a juvenile offender, they will place the person into the juvenile court system.

Such a system increases the likelihood that the offender will drop out of school or become a repeat offender. The theory behind the juvenile diversion is similar to that of pretrial diversion for adults. The diversion aims at preventing contact between low-level and non-violent offenders with the court system.

Instead, the program provides a way out by offering treatment and counseling to the offender. A juvenile diversion is a form of pretrial diversion that might include different components including:

  • Formal or informal processing, usually after the first contact with the offender. Informal processing occurs when a police officer, at his or her discretion, does not book the offender or assign a booking number. Instead, he or she counsels the offender about the possible consequences and recommends programs that can help the offender deal with the underlying issues. Formal processing involves an arrest, booking, and participation of the court and the probation department. These parties also collaborate with community-based programs to provide support to a juvenile offender.
  • The point of contact, which determines the best possible approach to help the defendant: this will include informal processing to increase the possibility that the offender can qualify for future opportunities in education and career advancements without the burden of an arrest record.
  • These programs also target a specific population that either commits a first-time offense or low-level offenses such as drug use
  • The other components of these programs are the structure, setting, and intervention approaches of each program. These might include enrollment into the program and the treatment options available for these offenders

If the youth was admitted into a pretrial diversion program before formal processing, then the officers will not book or press charges against the offender upon completing the program. If the officer had processed you formally, then the court will dismiss your charges.

After the Pretrial Drug Diversion Program

Completing the program should be the goal of everyone allowed into a pretrial diversion program for drug crimes. If you complete the program successfully, you will attain benefits such as:

  • The court will dismiss the charges you were facing; therefore, you will be without a criminal record
  • You will also have the freedom to say that you did not commit the offense
  • Completing such a program places you in a better position to find work and professional licenses. Employers or licensing bodies cannot base their decisions on a charge that the court dismissed upon the completion of a pretrial program

The court will determine whether you completed the program successfully based on the report from the program administrator and the probation officer.

The court will use the information to decide whether you meet the standard of having completed the program successfully.

The monitoring process also continues during the program. Here, the court will evaluate whether you are benefiting from the program. If you are not benefiting, or you engage in unacceptable behavior, then the court might terminate the program.

Termination of your program means that the court will resume the criminal case against you. Some of the common reasons the court terminates a pretrial drug diversion program include:

  • You fail to comply with the conditions of the program
  • You are convicted of any felony offense
  • You are convicted of an offense such as simple assault, which shows an inclination to violence

Once the court dismisses your charges, you can legally say you were never arrested or diverted for the crime. Potential employers, housing agents, or licensing bodies cannot use the record of the arrest, without your consent, to make an adverse decision against you.

However, if you are applying for employment as a peace officer, you have to disclose the arrest and diversion.

You can also proceed to seal the records of your arrest, which makes them unavailable. You can also seal your arrest records after completing a diversion program (meaning you were not convicted).

Even after completing your diversion program, the public can still run a background check and see your arrest record. Some of them, including employers, might deny you employment opportunities based on the arrest (even without saying it).

You can prevent this from happening by sealing and destroying your arrest records. The first step is to file a petition in the city or county in which you were arrested. You will also have to serve the law enforcement body that made the arrest, and the prosecuting attorney in the area you were arrested.

The contents of the petition include:

  • Your details including name and the date of birth
  • The date you were arrested (for the offense dismissed through a pretrial diversion)
  • The location of the arrest
    the law enforcement agency that arrested you
  • Other identifying information including the case number
  • The offense for which you were arrested
  • The statement on the reason for requesting the sealing of your records (either as a matter of right or in the interests of justice)

Once the district attorney receives the petition, the court will schedule a hearing which either you or your attorney will have to attend.

The judge will examine the arrest records and any evidence as to the importance of sealing the records. Doing the paperwork correctly will increase the chances that the district attorney will grant your petition. Therefore, you must engage an attorney to help you with the process.

If the court grants your attorney (usually about 90 days from the date you filed the petition), it will notify the relevant agencies about the court order. These agencies include:

  • The law enforcement agency that arrested you,
  • The agency responsible for master criminal record
  • The California Department of justice

You can also seal your juvenile records if:

  • You are at least 18 years old or five years have passed since you were under the jurisdiction of a juvenile court
  • You have not been convicted for an offense involving moral turpitude as an adult
  • You were not convicted for serious offenses in juvenile court after turning 14 (violent felonies including murder, firearm offenses, sex offenses, and robbery make you ineligible for sealing of your records.
  • You have been rehabilitated
  • You do not have a civil lawsuit pending from your juvenile activities

In most cases, the court will destroy your juvenile records after five years or once you turn 38 (if you were a ward of the juvenile court).

Find a Orange County Criminal Lawyer Near Me

When you are facing charges for simple drug possession, it would be expensive and impractical for the court to prosecute you. The criminal justice system came up with the drug diversion program to help first-time offenders of low-level misdemeanor drug offenses avoid a criminal conviction.

The major benefit of the program is that it can help you avoid a conviction while at the same time, dealing with the root problem of substance dependence. It gives you another chance to start your life on a clean slate.

Contact the Orange County Criminal Defense Attorney Law Firm at 714-740-7848 if you are facing charges for a low-level misdemeanor drug offense. We will advise you on your eligibility as well as the terms and conditions of the program. With the help of our attorneys, you can learn all you need to know about pretrial drug diversion.