PC 1000

1. What is drug diversion under PC 1000?

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Under Penal Code 1000 PC, California has a “pretrial diversion program” (formerly known as “deferred entry of judgement” or “DEJ”) where the opportunity is given to non-violent drug criminals to receive treatment and education in place of jail time. This applies to simple possession of drugs. 

Completing this program will lead to charges being dropped and no criminal record. Simple possession is defined as possession for personal use only—not to transport, sell, or distribute.

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 1.1. Changes effective as of January 1, 2018

On January 1, 2018, PC 1000 drug diversion become a pretrial diversion program. In other words, a defendant may plead “not guilty” for their drug charges and will then be allowed to take a drug diversion program. When this program is completed, charges against the defendant will be dropped. If, however, the program is not completed, the defendant must instead go to a trial and will then be tried in typical fashion for his or her crimes.

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2. What are the eligibility rules?

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 2.1. Eligible offenses

Below are all the offenses that permit a defendant to partake in a Penal Code 1000 pretrial diversion program.

• Health & Safety Code 11350 HS – possession of a controlled substance,
• Health & Safety Code 11357 – unlawful possession of cannabis,
• Health & Safety Code 11364 — possession of drug paraphernalia,
• Health & Safety Code 11365 — aiding or abetting the use of an unlawful controlled substance,
• Health & Safety Code 11375(b)(2) – unlawful possession of certain prescription sedatives,
• Health & Safety Code 11377 HS – possession of methamphetamines for personal use,
• Health & Safety Code 11550 HS – being under the influence of a controlled substance,
• Vehicle Code 23222 (b) – possessing an open container of Cannabis in a motor vehicle,
• Health and Safety Code 11358 – unlawful cultivation of Cannabis for personal use,
• Health and Safety Code 11368 – possessing or using a forged prescription to obtain drugs for personal use,
• Penal Code 653f(d) – soliciting someone to commit a crime to facilitate the defendant’s personal use of narcotics,
• Penal Code 381 — possession of toxic substances for “huffing,”
• Penal Code 647 (f) — lewd conduct related to being under the influence of a controlled substance, and
• Business and Professions Code 4060 — possession of a controlled substance. Penal Code 1000 (a)(2).

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 2.2. What drugs are covered by PC 1000?

Below are the names of many of the drugs categorized as controlled substances under the above laws.

• cocaine,
• heroin,
• peyote,
• gamma-hydroxybutyric acid (“GHB”),
• ecstasy (“X”),
• ketamine (“Special K”),
• methamphetamines,
• marijuana,
• certain hallucinogenic substances, such as phencyclidine (“PCP”)
• prescription opioids such as codeine and hydrocodone (“Vicodin”)

When it comes to drug diversion, the court is more concerned with whether or not the defendant would change after drug treatment or not and if they only had it for personal use. The specific drug used is not the deciding factor in whether a defendant can receive drug diversion.

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 2.3. Additional conditions for pretrial diversion

The following conditions must be met in order to receive drug diversion under Penal Code 1000 PC:

• Other than the offenses listed in the statute, no crimes involving drugs were committed within the past five years.
• The offense was a non-violent crime.
• Other than the offenses listed in the statute, no crimes involving narcotics/restricted drugs were committed.
• No felonies were committed within the past five years.

3. How does a defendant get referred to pretrial diversion?

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The process begins with the prosecuting attorney deciding if the defendant is likely qualified for pretrial diversion. If this is the case, the prosecuting attorney will then write to the defendant and the defendant’s attorney that this course of action is advised.

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 3.1. Notice from the prosecutor

The prosecutor will provide the following in a written notification of possible eligibility:

• The full procedures for pretrial diversion
• A description of the duties and authorities of the probation department, the court, the program, and the prosecuting attorney
• A statement that pretrial diversion is acquired by pleading not guilty, waiving the right to a speedy trial, trial by jury, and a speedy preliminary hearing.
• A statement informing the defendant that completing the diversion will result in his or her charges being dropped or that failure to complete drug diversion will instead result in continuation of the trial.
• A statement that committing further offenses could make him or her no longer qualify for drug diversion.
• A description of the defendant’s rights in regard to retention and disposition of a criminal record.

 3.2. Investigation by a probation officer

First, the case may be investigated by the Probation Department. The following aspect of the defendant maybe be examined:

• The defendant’s age
• His/her employment and service records,
• His/her educational background,
• His/her community and family ties,
• His/her prior controlled substance use,
• treatment history,
• demonstrable motivation
• etc.
  

A hearing will be held to decide if the defendant is qualified for pretrial diversion. The defendant must also consent at this court hearing to pretrial diversion.

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 3.3. Can statements I make during the investigation be used against me?

Words spoken during probation are not to be used to prove the original charges made against you-- they will only be used to determine if education/treatment/rehabilitation would be the best course of action for you.

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 3.4. Final determination of eligibility

If an investigation takes place, the probation department will determine if the defendant would likely improve from taking a program. The court will take this into consideration.

If the defendant consents to the taking of a program, he or she will automatically plead not guilty and instead will go through a “speedy trial” followed by a “speedy preliminary hearing”, and finally trial by jury.

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 3.5. What if I don’t want to do pretrial diversion?

If it is decided by the court or by the defendant that he or she will not participate in a program, the normal proceedings for the crime will continue.

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4. How does the drug treatment program work?

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 4.1. What drug treatment providers can I use?

A pretrial drug diversion must meet the following:

• It is drug program administrator pursuant Chapter 1.5 of Title 8 of the California Penal Code certified.
• The court and county drug program administrator has determined the program to be effective and reliable.

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 4.2. How long does drug treatment last under PC 1000

Typically, the length of these programs lasts from 12 to 18 months. An extension may be allowed in some cases.

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 4.3. Will I be required to take a drug test during pretrial diversion?

In order to tell if someone is complying with the program, a urine test will likely be administered during a pretrial diversion. If such a test is failed, rather than a new charge being given, the pretrial diversion will be failed.

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 4.4. Can what I say during drug treatment be used against me?

Statements regarding the charged offense(s) during a drug diversion program will not be used against you.

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 4.5. Is there any cost to participate in pretrial diversion?

A fee will be charged for probation supervision and for a pre-plea investigation report. The costs will range from $100 to $1,000 dollars. 

Factors determining these fees are one’s financial abilities, the severity of the offense, and losses someone has suffered due to the drug crime. 

In rare cases, the fees will be waived due to specific reasons.

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 4.6 What if I need narcotic medications while in pretrial diversion?

The following medicines may be prescribed by a licensed healthcare professional to someone taking a pretrial diversion program (which will not result in failing the program):

• levo alphacetylmethadol (LAAM)
• Methadone
• Buprenorphine

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 4.7. Can pretrial diversion be terminated before treatment is finished?

Reasons for drug diversion failure include:

• Failure to adhere to the rules of the program
• Conviction of a felony
• Conviction of a violence offense

If you have violated the conditions of pretrial drug diversion, a court hearing will be held to determine if your drug diversion will be terminated.

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5. What is the effect of successful completion of pretrial diversion?

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If one completes pretrial diversion under Penal Code 1000, charges made against you will be dropped and you will not have to state that any of these charges were made against you when applying for a job, unless the job is in law enforcement.

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 5.1. Will my arrest record be sealed?

These records may be sealed by the court, which will not prevent a criminal justice agency from accessing the records when applicable, nor does it prevent California agencies of licensing physicians, dentists, or pharmacists from taking disciplinary action against you or refusing to give you a license.

Other professional license agencies may also request information from these records.

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6. Are there alternative drug diversion programs?

Other Californian drug diversion programs are:

• Proposition 36,
• California drug court,
• Local drug courts and rehabilitative justice programs,
• Military diversion, and
• Mental health diversion.

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 6.1. California’s Prop. 36

Prop. 36 is also a drug diversion program.

Prop. 36 is different from Penal Code 1000 in the following ways:

• You must give a guilty please for Prop. 36
• If you are eligible for Prop. 36, you will be immediately sentenced under Prop. 36
• Once a program is completed, charges against you may or may not be dropped

If you or someone you know is being charged with a drug crime, please contact us for a free consultation with one of our California drug crimes defense attorneys.