Pasadena Criminal Attorney

Sharen Ghatan- Lead Attorney
Over 20 Years of Experience Practicing Criminal Defense

Free Consultation

Pre-Trial Diversion For Drug Crimes

Pre-trial diversion programs for drug crimes in California allow defendants facing minor drug charges to undergo treatment instead of trial and conviction. When the defendant completes the treatment program with no violations, the judge dismisses their case and seals their arrest record as if the arrest did not happen at all. The offender does not receive any criminal record for the underlying charge. But those who fail to finish the treatment program undergo trial and could receive penalties upon conviction.

It helps to understand how pre-trial diversion programs work and whether you are eligible if you face drug charges. Our skilled lawyers at Pasadena Criminal Attorney will walk you through the legal process, protect your rights, and fight until the judge sends you to a treatment program if you are eligible. We will also ensure you understand the terms and conditions you must abide by during the treatment program to avoid facing trial for the underlying charges.

How Pre-trial Diversion Programs For Drug Crimes Work

Drug charges are serious in California. Simple possession of a controlled drug attracts serious and highly punishable charges that could result in a lengthy time in jail and payment of a hefty fine. Pre-trial diversion programs offer relief for those facing misdemeanor drug charges to undergo treatment and rehabilitation instead of trial and conviction. But you must be eligible for a pre-trial diversion and meet all the conditions the judge gives. If you fail to finish the treatment program or violate one or more conditions by the judge, the judge can cancel the program and continue your case from where it left off.

You are not required to enter a plea to participate in the diversion program. Pre-trial diversion programs are available soon after an arrest and before the trial begins. Thus, the judge will not require you to plead guilty or no contest to the underlying charge to qualify for treatment. But if you commit a crime before the end of the treatment program, the judge will cancel the diversion and continue your case. You will undergo a trial for the underlying drug offense and the new crime and could be convicted for both accounts.

However, pre-trial diversion programs for drug crimes are not meant for all offenders but only for defendants that struggle with various issues that could have caused them to commit the underlying drug offense. For instance, those dealing with addictions are likely to commit a drug crime and will not benefit much from a trial and conviction. Defendants facing mental illnesses or PTSD are also considered for pre-trial diversion programs. These programs aim at offering help the individual desperately needs instead of focusing on trial and punishment. California also benefits from pre-trial diversion programs as they lighten the district attorney's caseload. Additionally, the state does not waste our limited jail space on people that require help and treatment instead of trial and punishment.

Drug diversion programs in California are under PC 1000. The statute provides a diversion for specific drug-related non-violent misdemeanors from the trial. It gives an offender a chance to receive the much-needed treatment and rehabilitation instead of prosecution and punishment that will not benefit the individual or society. The diversion rewards you with a case dismissal and sealing of your arrest record if you complete the program and do not violate any court-ordered conditions.

When the police arrest and charge you with a misdemeanor drug-related offense and are eligible for drug diversion, the law allows you to choose treatment instead of trial. The judge could suggest pre-trial diversion treatment before the trial begins, or your attorney can mention it to the judge. If you choose treatment instead of prosecution and conviction, the judge will list down treatment recommendations you must undergo for the court to dismiss your charges and seal your arrest records. You will also be required to waive your legal right to a speedy trial. You will have a period within which you should complete the treatment, education, and rehabilitation in the list given by the judge.

Your treatment list can include the following:

  • Alcohol treatment

  • Treatment for substance abuse

  • Additional drug-related classes

  • Probation

  • Payment of victim restitution

When you complete the program within the given time, the judge dismisses your drug charges and deals with your arrest record. That should leave you without any criminal record related to the underlying offense. But the judge will resume your case if you fail to go through the program or violate any court-ordered condition. You will receive a hearing date for trial and could eventually receive penalties upon conviction. Consequently, you will have a damaging criminal record.

Offenses that Qualify for a Pre-trial Diversion Program Under Penal Code 100

PC 100 lists fourteen drug offenses that judges can dismiss through pretrial diversion programs. They are:

  • Possessing a toxic huffing substance, under PC 381

  • Public Intoxication, under PC 647(f)

  • Solicitation to fuel personal use of narcotics, under PC 653(d)

  • Possessing an open pot of marijuana in a car, under VC 23222(b)

  • Possession of controlled substances, under Business & Professions Code 4060

  • Possession of controlled substances under Health and Safety Code 11350

  • Illegal possession of marijuana under Health and Safety Code 11357

  • Cultivation of marijuana for own use without a license, under Health and Safety Code 11358

  • Possessing drug paraphernalia, under Health and Safety Code 11364

  • Aiding and abetting the illicit use of controlled substances, under health and Safety Code 11365

  • Possessing or using a fake prescription to obtain a controlled substance for own use, under Health and Safety Code 11368

  • Illegal possession of prescribed sedatives, under HS 11375(b)(2)

  • Possessing methamphetamines for own use, under HS 11377

  • Being under the effects of controlled substances, under HS 11550

Remember that pre-trial diversions are only available for specific misdemeanor and non-violent offenses. Thus, you will be ineligible for pretrial drug diversion if you face drug charges for a more severe or violence-related drug crime. For instance, possession of illegal substances for sale under Health and Safety Code 11351 is a serious offense to qualify for pretrial drug diversion under California PC 100.

Eligibility for Pretrial Diversion for Drug Crimes

Since pretrial drug diversion is not meant for all defendants facing lenient drug-related offenses, it is necessary to establish your eligibility before presenting your petition in court. You must meet the essential criteria, which means that you must meet all these four conditions:

  • You should not have a conviction record for the last five years for any offense listed under PC 1000 as ineligible for pre-trial diversion — Eligibility for a pre-trial diversion program in California is mainly for first offenders.

  • The charges you face should not be violent-related or involve threats of violence.

  • There should be no proof of your involvement in a more severe offense that could be ineligible for pre-trial drug diversion under PC 1000.

  • It would be best if you did not have a felony conviction for any offense on your criminal record for the last five years.

Remember that pre-trial diversions for drug crimes are only designed for lenient offenders. Thus, you qualify for treatment and rehabilitation only if you face charges for simply possessing controlled drugs. If the police only found a small amount of drugs in your possession, enough for personal use, you could petition the court for a pre-trial diversion instead of trial and conviction. But if the quantity of drugs was enough to sell, distribute or give away, you are ineligible for a diversion program. If the court is convinced that you were holding the drugs to sell or give away, you will also be ineligible for a diversion program.

Initially, the law disqualified anyone with a prior conviction for a drug-related offense from participating in a diversion program. Today, you are only disqualified if you have a conviction for a grave drug offense on your record for the past five years. Thus, if you were convicted of a severe drug-related felony five years ago or more, the judge could still consider sending you for treatment if the current charge qualifies for a drug diversion program.

Also, the old law would not allow anyone to participate in a diversion treatment program more than once within five years. But the law today does not make anyone ineligible for a pre-trial diversion if they have participated in the program before.

If you qualify for a diversion program, your attorney can mention it to the prosecutor before they file charges against you in court. Remember that pre-trial diversions do not require entering a plea to qualify. Thus, going through the diversion program starts right after your arrest. The prosecutor sometimes mentions it to the defendant or their attorney. But in other cases, your attorney can negotiate on your behalf to protect you from the justice system.

If the prosecutor decides not to file charges in court but allows you to go through treatment and rehabilitation, they will notify you of the pre-trial diversion program. The prosecutor will include a general description of how the program works and its benefits to individuals like you. The prosecutor will also give you the qualifying criteria, including a requirement to waive your rights to a speedy trial. Additionally, the prosecutor will let you know the benefits of completing the treatment and the consequences of violating any conditions.

Your attorney will discuss your rights and other legal concerns you could have before starting the program. They will also work with the prosecutor to prepare the paperwork and get you started on the diversion program.

Drugs Covered Under PC 1000

Here is a list of controlled substances covered under this statute:

  • Heroin

  • Cocaine

  • Peyote

  • Ecstasy or X

  • Gamma-hydroxybutyric acid or GBH

  • Methamphetamines

  • Marijuana

  • Ketamine or Special K

  • Prescription opioids, like hydrocodone and codeine

  • Specific types of hallucinogens like phencyclidine or PCP

The court's concern is mainly not on the kind of drug in question but:

  • If the underlying offense involves simple possession of the said substance

  • If you will benefit from the pre-trial diversion program

The Process of Obtaining Referral to a Pre-trial Diversion Program

Obtaining a referral to a pre-trial diversion program is not as straightforward as it seems. You could benefit from the help and support of a criminal attorney to ensure a smooth process. You also want a legal expert by your side to protect your rights.

The Prosecutor

The process starts with the prosecutor, who, after reviewing your case, makes recommendations based on the circumstances of your case. A prosecutor receives your case from the police and decides whether or not to file charges in a criminal court. If the prosecutor believes you can benefit from treatment and rehabilitation, not prosecution and punishment, they can recommend pre-trial diversion to you and your lawyer. The recommendation is usually in writing.

The written recommendation from the district attorney will include the following elements:

  • A detailed description of pre-trial diversion programs

  • General detail of the role and authority of a probation department, diversion program, the court, and the prosecutor in the entire process

  • A statement telling what you must do to get into a pre-trial diversion program, including waiving your right to a speedy prosecution, initial hearing, and trial, and pleading not guilty to the underlying charges

  • The information about what will happen if you complete the program (that the judge dismisses your charges if you receive a positive recommendation from the program authority)

  • A statement indicating the judge's right to terminate the program if you fail the program or any term or condition given under the treatment program, or when you commit another offense that makes you ineligible for a pre-trial diversion program

  • A detailed explanation of your legal rights regarding retaining a criminal record and how to answer questions about your arrest or pre-trial diversion when you complete the program

The Probation Officer

If you choose treatment and rehabilitation, the court will appoint a probation officer to investigate your suitability for diversion. The judge will then call for a hearing where you will consent to the diversion and establish your eligibility.

Before holding this hearing, the court could order an investigation into your matter by the probation department. An officer will be assigned to your case. The officer's main interests in the matter would be:

  • Your age

  • Education background

  • Records regarding your employment

  • Family and community ties

  • Prior case of drug use

  • Any treatment you have received before

  • If you demonstrate any motivation toward the program

  • Other mitigating factors that could cause the court to reconsider trial and prosecution

The officer will prepare a detailed report that the judge will use to decide whether or not you will undergo treatment instead of prosecution. Thus, it is advisable to be careful with every piece of information you give to the probation officer. Remember to be as truthful as possible.

Statements you make to a probation officer during this investigation will not be used against you in determining the underlying charges. The court will only use that information to assess your suitability for a pre-trial diversion program and how a treatment, rehabilitation, and education program can benefit you.

The Final Process

If the court orders an investigation by the probation department, the judge will wait until the officer tables their report in court to determine your eligibility for pretrial drug diversion. The court will hold its final hearing of the matter, whereby the probation department will give its recommendation based on the investigating officer's findings. The department will also recommend the programs it believes would benefit you and those you can join.

The judge decides on whether you will undergo treatment and education or prosecution, and the type of treatment, rehabilitation, or education appropriate for your situation. The judge will then allow you to agree to involvement in the pre-trial diversion. If you choose pre-trial diversion, you must plead not guilty to the underlying charges and waive your rights to a speedy prosecution, initial hearing, and trial.

The judge dismisses your bond (if you were given one) and any other deposit you could have with the court. You will then be allowed to take part in treatment and rehabilitation.

During the treatment period, a probation officer will keep checking on you and making progress reports which the department will file with the court. That will enable the court to establish your continued suitability for pretrial drug diversion under PC 1000.

If you prefer prosecution and punishment to treatment and rehabilitation, you will inform the court of your unwillingness to participate in a drug treatment program. Remember that the judge can also decide that pretrial drug diversion is unsuitable for your situation. In that case, the court will proceed with the underlying drug charges. You will reserve your rights to a speedy prosecution, pre-trial hearing, and trial. If the jury finds you guilty of the underlying charges, you will receive the punishment provided by the law for the underlying offense.

How Drug Treatment Programs Work

A pre-trial diversion program should meet the following criteria:

  • It should be certified by a drug programs administrator in the county of its location, as under PC 1211

  • The drug program administrator and the court must deem it effective and credible if the program provides free treatment, rehabilitation, and education to defendants.

Note that you can request the judge for a referral to any diversion program, even in a different county, provided it meets the required criteria.

Once you enroll in a treatment program, you must be in it for between 12 and 18 months. But if you demonstrate good cause throughout the treatment period, the judge can allow for an extension of your time to allow you to complete a court-approved drug-related treatment program.

You could be expected to submit to drug testing during the treatment period. But, the results can be used to prove your compliance with the treatment program. Failing one or more drug tests will not be used to open new criminal charges against you. The only adverse consequence of failing these tests is the likely termination of the diversion. Additionally, the judge cannot use what you say during treatment against you concerning the underlying charges.

It is essential to be aware of the costs involved with pre-trial diversions. The judge will require you to make a diversion restitution fee to cover part of or the entire cost of supervision by the probation department or pre-plea investigation and report. You could be asked to pay the restitution fee in addition to the significant administrative fee allowed or required by law. Generally, the amount ranges between $100 and $1,000. The court determines the exact cost after considering various factors like:

  • Your financial situation

  • How severe the underlying offense is

  • Whether another person was affected or incurred a loss due to the offense

But the fee will not be more than the average charges for the services you receive through diversion.

You will be required to pay a minimum of $100 despite your financial situation. The judge could waive any other fee if you demonstrate extraordinary and compelling reasons.

Possible Termination of Pretrial Diversion Before End of Treatment

The court can terminate your pre-trial diversion before you complete treatment for the following reasons:

  • For failing to join the program or comply with its conditions

  • For receiving a felony conviction for any offense

  • For receiving a conviction for any crime that is violence-related

In case of any of those reasons, the following people can initiate termination of your pre-trial diversion:

  • The judge

  • The prosecutor

  • Probation department

Once they initiate the motion, the judge will call another hearing to establish whether or not to terminate your treatment. If the judge realizes that your participation in the program is unsatisfactory or you have received a felony or violence-related conviction during the treatment period, they will terminate the diversion and continue your underlying case from where they left off.

Find a Competent Pasadena Criminal Lawyer Near Me

Are you or someone you know facing misdemeanor drug charges and want to consider a pre-trial diversion program in Pasadena?

It helps to work alongside a competent criminal lawyer to understand the implications, your rights, and the benefits of pre-trial diversion programs. We offer information and guidance at Pasadena Criminal Attorney to enable our clients to make informed decisions. We also protect your rights throughout the process until you obtain a fair outcome for your situation. Call us at 626-689-2277, and let us look at the details of your case for us to devise the right strategy.

How Can We Help? 626-689-2277 

Charged With a Crime?

Call us now to assess your charges and explain the difference a criminal attorney can make on the results of your case