Special Considerations in Drug Cases

Special Considerations in Drug Cases

Diversion from criminal drug charges entails navigating the intricacies of Prop. 36 or deferred entry of judgment (DEJ), both of which divert from criminal prosecution only people charged with simple possession or being under the influence. Both programs require the defendant to attend and complete a certified or approved drug rehabilitation program. When the treatment is complete, the defendant's conviction is erased from the record. The goal of both programs is rehabilitation rather than punishment, but there the similarities end.

DEJ Diversion

The Deferred Entry of Judgment (DEJ) Program is aimed towards those individuals accused of use/possession of illegal substances who have waived his/her rights to a speedy trial and entered a plea of guilty. The judgment is put on hold upon successful completion of the DEJ requirements. The DEJ program is designed to assist individuals recognize their chemical and/or other drug dependency and assist them in their recovery. If they successfully complete all required programs, they can have their case dismissed in a process which is known as "Deferred Entry of Judgment," commonly referred to as DEJ or drug diversion.

This kind of "settlement" can be possible in certain felony cases involving non-violent drug offenses. Deferred entry of judgment (DEJ) diverts people charged with either simple possession or being under the influence from criminal prosecution. Individuals who have been charged with first-time drug offenses, as well as certain defendants who suffer from the disease of drug addiction may be eligible to attend classes or other rehabilitation programs.

A defendant is not eligible for DEJ if he or she has ever been convicted of any prior drug offense, even a crime such as possession of less than an ounce of marijuana. Defendants can join DEJ only if they plead guilty. A person can participate in DEJ regardless of whether he or she is charged and convicted of an additional crime at the same time, unlike Prop. 36 sentencing.

Prop. 36

Under Prop. 36, defendants can have drug convictions on their records and still be eligible for treatment. Defendants are eligible for Prop. 36 treatment whether they plead guilty or are convicted after trial. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose as a condition of probation participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose.
The terms "drug treatment program" or "drug treatment" mean a licensed and/or certified community drug treatment program which may include one or more of the following: outpatient treatment, half-way house treatment, narcotic replacement therapy, drug education or prevention courses and/or limited inpatient or residential drug treatment as needed to address special detoxification or relapse situations or severe dependence. The terms "drug treatment program" or "drug treatment" shall not include drug treatment programs offered in a prison or jail facility.

Although the overall eligibility criteria for Prop. 36 is looser than DEJ, Prop. 36 has some restrictions not found in DEJ. For example, people are ineligible for Prop. 36 when, in addition to the current drug offense, they are convicted in the same proceeding of a misdemeanor not related to the use of drugs or any non-qualifying drug felony.

Proposition 36, generally favors long-term drug treatment as an alternative to incarceration. While DEJ is available only upon a plea of "guilty," Prop. 36 sentencing is available upon conviction -- whether a defendant pleaded guilty or was found guilty after a trial.

Drug Court

A Drug Court is a full or part-time court that has been especially designed and staffed to supervise the nonviolent drug offender. It is a court-monitored program of drug treatment and rehabilitation services. Treatment drug court combines individual and/or group counseling, frequent judicial supervision, urine monitoring for drug use and graduated sanctions.

Drug Courts offer the participant a clear choice: participation in treatment instead of going to jail. In exchange for successful completion of the treatment program, the Court may eventually dismiss the original charge, early terminate probation or reduce a felony to a misdemeanor charge, if applicable.

These courts combine the close supervision of the judicial process with resources available through alcohol and drug treatment services. The two goals of these programs are to reduce recidivism of drug-related offenses and to create options within the criminal justice system that tailor effective and appropriate responses for offenders with drug problems.

Once enrolled in drug court participants are assessed by drug court staff (certified drug and alcohol abuse specialists) and referred to various community-based treatment providers based on individual needs. In addition to counseling, 12-step, or other self-help meetings, they are also required to submit to urine tests for alcohol and street drugs and to attend drug court hearings. After graduation, the court deletes the fine and works with participants to deal with mandatory minimum sentences. Typically, the court will allow work release, electronic monitoring, or any other acceptable alternative to jail time.

Penal Code 2900.5: Rehab Facilities and Sober Living
Rehab Facilities

There are many different types of rehab available, for both men and women, separately or together. Most rehabs are private and can be very expensive. Sometimes there are waiting lists for an available bed. The length of treatment varies, but the average time is 30 days. Treatment may include behavior modification and/or medication. Three commonly used behavioral treatments for alcohol abuse and alcoholism—motivation enhancement therapy, cognitive-behavioral therapy, and 12-step facilitation therapy—significantly reduced drinking in the year following treatment. Medication such as naltrexone (ReVia™), an anti-craving medication, has been shown to be effective, especially when combined with behavior therapy.

Alcohol and drug rehabs can be used to replace the alcohol education programs that are instituted as part of the DUI conviction. California Vehicle Code section 23598 states that in lieu of an alcohol or drug education program, the court may impose a live-in alcohol treatment term of probation instead. The court will impose that the DUI offender complete such a program so long as the person consents and has been accepted into that program. The type of proof that is required is a certification, made under penalty of perjury, by the director of the program. The time spent in rehabilitation is counted against the time that would otherwise have been spent incarcerated in a county jail. This is referred to as good time custody credits.

Sober Living

Sober living environments are a way for the DUI offender to avoid being incarcerated. Where a person has had multiple DUIs, or has a drug or alcohol problem that has not responded to past attempts at treatment, then sober living may be the best rehabilitative means of any of the other alternative sentencing options. The basic structure of a sober living environment involves the housing of only sober people, for both men and women. All residents are required to participate in planned daily activities, such as group meetings and 12-step programs. Each resident is required to contribute to the running and functioning of the household by performing a household chore.

Where a DUI offender is facing mandatory minimum time in the county jail, sober living environments provide an excellent alternative sentence to fulfilling the county jail time hours in the sober living environment. The hours spent in the sober living environment qualifies for the mandatory time in jail. Where a term of imprisonment is imposed by the court, the hours and days spent in the sober living facility will count against the mandatory imprisonment requirement. It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited.

California Penal Code section 2009 defines the terms of sober living as a sentencing alternative to incarceration. The term of stay in the sober living facility may be credited to any base fines or restitution fines at the rate of not less than $30 per day, or more, in the discretion of the court imposing the sentence. Fines are often part of a sentencing scheme where the DUI offender is ordered to a jail stay or released on probation, yet is obligated to pay fines and do community service. If the total number of days in custody exceeds the number of days of the term of imprisonment, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines.