For many people charged with simple, non-violent drug crimes, the opportunity to participate in drug treatments program in lieu of jail time and a criminal record can make a world of difference for their future.

Under Penal Code 1000 PC, California’s pretrial drug diversion allows for eligible offenders to complete a treatment and education program before their case goes to trial. Following successful completion of the required program, the defendant’s charges are dropped and won’t appear on their criminal record.

If you’ve been charged with a simple drug possession offense, contact a criminal defense attorney as soon as possible to discuss whether you might be an eligible candidate for pretrial diversion.  

What is the pretrial drug diversion program?

California’s pretrial drug diversion program allows for some people who have been arrested for simple drug possession crimes to complete drug treatment in order to have their charges dismissed

Effective 2018, a defendant who is eligible for pretrial drug diversion may enter a plea of “not guilty” to the charges against them. This is a change from the pre-2018 version of Penal Code 1000, “deferred entry of judgment” (DEJ), under which a defendant was required to enter a guilty plea in order to participate in the diversion program.

This means that under the old system, a participant who failed to complete the required drug rehab program would automatically be found guilty of the charges against them. Under the new pretrial diversion program, a defendant who fails to complete rehab will instead be entitled to a bench trial before a California judge. 

Who is eligible for the pretrial drug diversion program?

In order to be eligible for pretrial drug diversion under PC 1000, your charges must generally be for a possession of drugs for personal use.

Those charged with possession of a substance for sale (HS 11351) or the sale or transportation of a controlled substance are not eligible. All eligible offenses are listed under the statute.

Eligible offenses

  • Possession of a controlled substance
  • Unlawful possession of cannabis
  • Possession of drug paraphernalia
  • Aiding or abetting the use of an unlawful controlled substance
  • Unlawful possession of certain prescription sedatives
  • Possession of methamphetamines for personal use
  • Being under the influence of a controlled substance
  • Possession of an open container of cannabis in a motor vehicle
  • Unlawful cultivation of cannabis for personal use
  • Possession or use of a forged prescription to obtain drugs for personal use
  • Solicitation to commit a crime to facilitate personal use of narcotics
  • Possession of toxic substances for “huffing”
  • Lewd conduct related to being under the influence of a controlled substance
  • Possession of a controlled substance

Other eligibility requirements

In addition to your charges being listed under the statute for PC 1000, you must also meet all the following criteria in order to be eligible for pretrial diversion:

  1. Your charges must not have involved violence or the threat of violence
  2. There must be no evidence that you may have committed any additional, more serious drug crimes such as the sale or transportation of a controlled substance or possession of drugs for sale
  3. You must not have been convicted of a felony in the last five years 
  4. You must not have been convicted of a drug crime that is not eligible under PC 1000 in the last five years

The controlled substance in question is not as important to your eligibility as the nature of the offense and your potential to benefit from treatment. Some of the controlled substances that may be covered under PC 1000 eligible offenses include:

  • Marijuana
  • Cocaine
  • Heroin
  • Methamphetamines
  • Ecstasy 
  • Ketamine
  • Gamma-hydroxybutyric acid (GHB)
  • Peyote
  • Prescription narcotics such as hydrocodone

How does the pretrial diversion referral process work?

If you are charged with a drug crime, the prosecuting attorney will review your case in order to determine if you might be eligible for pretrial diversion. If you appear to be eligible, the rest of the process will proceed as follows:

1. Notice of eligibility from the prosecutor

The prosecutor will notify you and your attorney of your eligibility with a written notification. The information included in that notification will be:

  • A description of the procedures involved in pretrial diversion
  • A statement about the dismissal of your charges that will follow your successful completion of the drug treatment
  • A statement that your pretrial diversion may be terminated early if you fail to complete the treatment program, violate the conditions of the program, or if you commit a crime that negates your eligibility
  • A statement to clarify that you must enter a plea of “not guilty” to the charges against you and waive your right to a speedy trial, trial by jury, and speedy preliminary hearing in order to participate in pretrial diversion
  • An explanation of the roles of the entities involved: the prosecuting attorney, the court, the treatment program, and the probation department
  • An explanation about your rights following your successful completion of the program, such as how you may answer questions about your charges and arrest and the status of your criminal record

2. Case investigation

Prior to your eligibility hearing, the court may decide to assign a probation officer to further investigate your case. The purpose of the investigation by the probation department is to determine whether you are likely to benefit from treatment, education, or rehabilitation. The investigation is not a criminal investigation used to gather evidence to prove the charges against you. Therefore, any statements you make to the probation officer during the investigation are not admissible in court if your case does go to trial. The probation department will attempt to gather information that may be relevant to your eligibility, such as:

  • Your history of drug use
  • Your prior treatment history
  • Your age
  • Your history of employment or military service
  • Your educational background
  • Your relationship to your family and community
  • Any factors that may influence your ability to complete or respond to treatment

3. Eligibility is determined

The final step in the process of obtaining pretrial diversion is the court’s final determination of your eligibility and your consent to participate. If your case was investigated by the probation department, they will inform the court as to which programs they think will be most beneficial for you. The court will then determine and assign the most appropriate education, treatment, or rehabilitation program for you. If you consent to participation in the program, you will then need to:

  • Enter a plea of “not guilty,” and
  • Waive your right to a speedy trial, speedy preliminary hearing, and trial by jury

Your continued eligibility will be monitored by the court via progress reports submitted by the probation department.

4. If you decline to participate in pretrial diversion

If you decide not to participate in the pretrial diversion program, or if the court finds that you are not a good candidate, your case will continue to trial. You will also retain your right to a speedy trial, speedy preliminary hearing and will not be required to enter a plea of “not guilty.”

How does the treatment program work?

In order to have your charges dropped and avoid going to trial through pretrial diversion, you are required to complete a treatment, education, or rehabilitation program as recommended by the court. Read below for more information about how pretrial diversion treatment programs work.

How long does pretrial diversion treatment last?

Under PC 1000, a pretrial diversion treatment program generally lasts between 12 months and 18 months. If more time is needed to complete the program and the court agrees that there is good reason to do so, an extension may be granted. 

Pretrial diversion treatment providers

The treatment program providers for California pretrial diversion can be in any California county, but must be:

  • Deemed credible and effective by the administrator of the county drug program in providing services and zero cost to the participant, or
  • Certified by the county drug program administrator 

Diversion restitution fee

While any treatment program you request to be referred to must offer services at no cost to you, you will still be required to pay a diversion restitution fee. The purpose of the fee is to cover some of the cost of any investigation into your eligibility performed by the probation department and probation supervision during the program. 

The fee amount is between $100 and $1,000 and my not exceed the average amount of the treatment services you are receiving. The court will consider the seriousness of your offense, any losses suffered by others as a result of your crime, and your personal financial situation in determining the amount. In some rare circumstances, the fee may be waived. You may also be required to pay some additional administrative fees. 

Ongoing drug testing

You will most likely be required to submit to urinalysis drug testing while participating in a pretrial drug diversion program. Drug testing is used to monitor your compliance with the program. If you fail a drug test while participating in a PC 1000 drug diversion program, your program may be terminated. You can’t be charged with a new crime for failing a drug test while participating in the program. 

If a licensed healthcare practitioner determines that it is necessary to prescribe or administer narcotic medications as part of your treatment, they may be used under the provider’s supervision. Medications that may be used under medical care without risking termination of your program may include:

  • Methadone
  • Levoalphacetylmethadol
  • Buprenorphine

Disclosing information during treatment

Counseling or other related services may be included in your treatment program. Any statements you make or information you provide in reference to the offenses you’ve been charged with during your treatment program can be used against you. 

Early termination of pretrial diversion 

The judge, prosecutor or probation department may initiate a motion to terminate your pretrial diversion program if you:

  • Fail to comply with the conditions of the treatment program 
  • Are convicted of a felony while participating in the program
  • Are convicted of a violent offense while participating in the program

Whether or not your program will be terminated early will be determined in a hearing. If your program is terminated, your case will forward as it would have had you not participated in pretrial diversion. 

What happens after pretrial diversion is completed?

You will be entitled to the legal benefits of pretrial diversion under PC 1000 upon successful completion of the program. It will, for the most part, be as though you were never arrested or charged. Upon completion of the program, you will legally be able to:

  • State that you were not arrested or charged for the offense
  • Refrain from disclosing that you participated in a pretrial diversion program
  • Apply for employment that you would be exempt from if the arrest or offense was on your record (except for employment as a law enforcement officer) 

An order to seal your records may also be issued by the court upon successful completion of the program. However, it is important to note that completing your program and sealing your records will not

  • Prohibit access to your records by the criminal justice agency 
  • Prevent California licensing agencies for physicians, dentists, or pharmacists from denying you a license or taking disciplinary action against you
  • Prevent certain professional licensing agencies from receiving information about your participation in the diversion program, if requested (as laid out in Section 144 of the California Business and Professions Code)

California’s other pretrial diversion programs

Penal Code 1000, pretrial drug diversion, is not the only California pretrial diversion program. Depending on your case and personal circumstances, one of the following pretrial diversion programs may be appropriate for you, 

  • California drug court
  • Los Angeles County drug court
  • San Francisco’s “Back on Track” program
  • California Proposition 36
  • Mental health diversion
  • Military diversion

More information about these other programs is provided below.

California drug court

California drug court (California Penal Code 1000.5 PC) is similar to pretrial diversion under PC 1000 but is specifically for offenders who are being legally represented by a public defender. Successfully completing a drug court program can have basically the same legal outcome as completing a pretrial diversion program.

Referrals to drug court are given by a judge, prosecutor, and public defender. If you don’t qualify for drug court, it may still be possible to qualify for pretrial diversion under PC 1000. Drug court programs consist of:

  • Individual and group therapy
  • education
  • possible vocational training
  • sanctions and rewards 
  • court monitored supervision of compliance and progress (including urinalysis drug testing)
  • graduated sanctions and rewards

Two notable California drug court programs are Los Angeles County drug court and San Francisco’s “Back on Track” program.

Los Angeles County drug court

The Los Angeles County drug court program consists of 12 traditional drug courts, two juvenile drug courts, and several specialty programs. It was created to offer treatment to non-violent offenders with chronic substance abuse disorders as an alternative to serving time in jail. 

L.A. drug court offers treatment services for individuals based on their treatment needs and the severity of their addiction and substance abuse problems. Los Angles drug courts operate though a collaborative effort between attorneys, law enforcement officers and treatment providers. The outcome for participants in L.A. drug court programs is positive compared to those who do not participate in the program, with about 70% of successful drug court participants going 5 years or more without a conviction after completing the program. 

Some of L.A. County’s specialty drug courts include:

  • Adult Drug Court
  • Juvenile Drug Court
  • Women’s Reentry Court
  • Veteran’s Court
  • Sentenced Offender Drug Court
  • Homeless Alternative (HALO) Mental Health Court
  • Co-Occurring Disorders Court
  • Project S.T.A.R.

San Francisco court system’s “Back on Track” program

San Francisco’s “Back on Track” program is for first-time nonviolent offenders aged 18-30 who’ve been arrested on low-level drug sales charges. As it is intended only for offenders with a serious commitment to the program, participants must first complete a six-week screening phase consisting of 120 hours of community service. Upon completing the screening phase, participants must plead guilty to the charges against them after which their sentencing is postponed for one year. Participants who successfully complete the program within the one-year period will have their charges dismissed. The individualized program may include things like:

  • Counseling or therapy
  • Completing a high school diploma
  • Attending community college
  • Gaining employment

California Proposition 36

California Proposition 36 is a drug diversion program under Penal Code sections 1210-1210.1 and 3063.1 PC. Prop. 36 covers a wider range or drug crimes than Penal Code 1000 PC, which makes it available to defendants who may not qualify for other pretrial diversion programs.

In order to participate in Prop. 36 pretrial diversion, you need to enter a plea of “guilty,” after which you will be placed on probation. Whereas successful completion of a PC 1000 pretrial diversion program will lead to automatic dismissal of your charges, Prop. 36 diversion leaves the dismissal of charges up to the discretion of a judge. This makes Proposition 36 a less desirable program than PC 1000 pretrial diversion, but a good option for those who aren’t eligible under PC 1000.

Mental health diversion

California Penal Code 1001.36 covers California’s mental health diversion program. This program allows defendants who suffer from a qualifying mental health condition the opportunity to have their criminal charges dismissed following successful mental health treatment. Most mental health conditions listed in the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) qualify, including:

  • Schizophrenia
  • Schizoaffective disorder
  • Post-traumatic stress disorder (PTSD)
  • Bipolar disorder

Some conditions that are not eligible for mental health diversion are:

  • Borderline personality disorder
  • Antisocial personality disorder
  • Pedophilia 

Military diversion

Military pretrial diversion allows veterans and active-duty military personnel to have their legal proceedings postponed while receiving treatment for substance abuse or mental health conditions. The program applies only to misdemeanor, not felony, charges. Participants who successfully complete treatment have their charges dismissed and the arrest cleared from their record (for most purposes).

A California criminal defense attorney can look at the facts of your case and personal circumstances to determine the pretrial diversion program that would be most appropriate for you. If you’d like to learn more about your legal options of have more questions about California’s pretrial drug diversion or other pretrial diversion programs, attorney Robert M. Helfend is ready to assist you.

As a Los Angeles-based criminal defense attorney who has been representing clients in California for over 30 years, Mr. Helfend has the legal expertise to develop the best strategy and find the best outcome for any case. If you’ve been arrested or charged with a crime, legal help and peace of mind are just a phone call away. Call the office of Robert M. Helfend at 800-834-6434 today