PC § 1000 – California’s Drug Diversion Program

Penal Code § 1000 PC sets forth California’s pretrial diversion program for drug crimes involving simple possession for personal use. The program allows many non-violent drug offenders to receive treatment and education in lieu of jail time.

Following successful completion of drug diversion, the charges are dismissed, leaving no criminal record for most purposes.

Who is eligible for PC 1000 diversion?

For you to be eligible for pretrial drug diversion, your charge(s) must generally be for simple possession of drugs – that is, possession for personal use only.

If you are charged with selling or transporting a controlled substance or possession of a controlled substance for sale (HS 11351), you generally are not eligible for pretrial diversion.

What are the requirements for PC 1000 pretrial diversion?

In addition to the offense being listed in the statute, all of the following four conditions must be met for you to be eligible for drug diversion:

1. You must not have been convicted of a non-PC 1000 eligible drug crime within the previous five years;
2. The charged offense(s) must not have involved a crime of violence or threatened violence;
3. There must be no evidence of any additional and more serious drug crime(s) (such as drug sale or possession for sale); and
4. You must not have any felony conviction(s) within the preceding five years.

To help you better understand the law, our California criminal defense lawyers discuss the following, below:

• 1. What is drug diversion under PC 1000?
• 2. What are the eligibility rules?
• 3. How do I get referred to pretrial diversion?
• 4. How does the drug treatment program work?
• 5. What happens if I finish the program?
• 6. Are there alternative drug diversion programs?
• Additional Resources

1. What is drug diversion under PC 1000?

Penal Code 1000 PC is California’s “pretrial diversion” law. If you are arrested for low-level drug crimes and are eligible for PC 1000, you have the opportunity to plead not guilty and have your charges dismissed if you successfully complete drug treatment.¹

If you fail the program, you will not automatically be found guilty. You will be entitled to a trial in front of a judge (a California “bench trial”).²

2. What are the eligibility rules?

Eligible offenses

The offenses that allow you to participate in Penal Code 1000 pretrial diversion are:

• Health & Safety Code 11350 – 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 – possession of methamphetamines for personal use,
• Health & Safety Code 11550 – 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 your 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).

What drugs are covered by PC 1000?

Some of the controlled substances that are covered by the above-referenced laws include:

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

In general, the issue for the court is not so much the nature of the substance as:

1. whether the offense is one of possession for personal use, and
2. whether you would benefit from drug treatment.

Additional conditions for pretrial diversion

In order for you to be eligible for pretrial diversion under Penal Code 1000 PC, all of the following must apply:

1. Within five years prior to the alleged commission of the charged offense, you have not suffered a conviction for any offense involving controlled substances other than the offenses listed in the statute.
2. The offense charged did not involve a crime of violence or threatened violence.
3. There is no evidence of a simultaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offenses listed in the statute.
4. You have no prior felony conviction within five years prior to the alleged commission of the charged offense.³

3. How do I get referred to pretrial diversion?

Initially, the prosecuting attorney will review your case. If you appear eligible for pretrial diversion, the prosecutor will advise you and your attorney in writing.

Notice from the prosecutor

Written notification of potential eligibility from the prosecutor will include:

• A full description of the procedures for pretrial diversion;
• A general explanation of the roles and authorities of the probation department, the prosecuting attorney, the program, and the court in the process;
• A clear statement that in order to get pretrial diversion, you must:
  • Plead not guilty to the charge or charges, and
  • Waive the right to a speedy trial, a speedy preliminary hearing, and a trial by jury;
• The information that – upon your successful completion of drug treatment and the positive recommendation of the program authority – the court will dismiss the charge(s) against you;
• A statement that pretrial diversion may be terminated upon your failure of treatment or any condition under the program, or if you commit a crime that makes you ineligible; and
• An explanation of your rights as to criminal record retention and disposition and how you may answer questions about your arrest and pretrial diversion following successful completion of the program.

Investigation by a probation officer

The court will hold a hearing to determine whether you are eligible and consent to pretrial diversion.⁴

But before making the determination, the court may — at its discretion — order the probation department to investigate your case.⁵ The probation officer assigned may take into consideration your:

• age,
• employment and service records,
• educational background,
• community and family ties,
• prior controlled substance use,
• treatment history, if any,
• demonstrable motivation, and
• other mitigating factors.

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

No. Statements made by you to a probation officer or drug treatment worker during the probation department’s investigation are not admissible to prove the original charges.⁶

The probation department and the court will use this information solely to determine whether you are a person who would benefit from

• education,
• treatment, or
• rehabilitation.

Final determination of eligibility

The probation department (if an investigation has been ordered) will advise the court which programs it feels you would benefit from and which would accept you.

The court will then make the final determination about whether and what type of education, treatment, or rehabilitation would be appropriate.

The court will then dismiss any bail bond or other deposit, and you will be permitted to participate in drug treatment.

As treatment progresses, progress reports may be filed by the probation department with the court. This will help the court determine your continued eligibility under Penal Code 1000.

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

If you do not want to participate in drug treatment — or if the court decides pretrial diversion is not appropriate — the proceedings in the original drug case will continue.

4. How does the drug treatment program work?

What drug treatment providers can I use?

Pretrial diversion programs must be either:

• Certified by the county drug program administrator pursuant to Chapter 1.5 of Title 8 of the California Penal Code (commencing with Penal Code Section 1211),
• Programs that provide services at no cost to you and have been deemed by the court and the county drug program administrator to be credible and effective.⁷

You may request to be referred to a program in any county, as long as that program meets these criteria.

How long does drug treatment last under PC 1000?

Pretrial diversion under PC 1000 generally lasts for

• no less than 12 months and
• no longer than 18 months.⁸

However, upon a showing of good cause, the court may allow an extension of time to complete an approved drug treatment program.

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

Generally, yes. If you are participating in pretrial drug diversion under Penal Code 1000, you may be required to undergo drug testing by urinalysis.

Failing a drug test cannot serve as the basis for new criminal charges. The only consequence is the possible termination of pretrial diversion.⁹

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

No. Statements made by you during drug treatment cannot be used against you to the extent they concern the specific offense(s) charged.

Is there any cost to participate in pretrial diversion?

Yes. The court will require payment of a “diversion restitution fee” not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000). Though upon a showing of compelling and extraordinary reasons, the court may waive the imposition of the fee.¹⁰

What if I need narcotic medications while in pretrial diversion?

If you are participating in pretrial diversion, you may – under the direction of a licensed health care practitioner – use medications including (but not limited to)

• methadone,
• buprenorphine, or
• levoalphacetylmethadol (LAAM) to treat substance use disorders.

Use of such substances in accordance with the drug treatment program rules will not constitute grounds for terminating your participation in pretrial diversion. ¹¹

Can pretrial diversion be terminated before treatment is finished?

Your participation in PC 1000 pretrial diversion may be terminated if:

• You fail to obtain drug treatment or to comply with any condition of the program,
• You are convicted of any felony, or
• You are convicted of an offense that reflects a propensity for violence.

A motion to terminate your participation in the pretrial diversion can be initiated by

• the prosecuting attorney,
• the judge, or
• the probation department.

The court will then hold a hearing to determine whether to terminate pretrial diversion. If the judge finds that you are not performing satisfactorily in the assigned program or that you have been convicted of a crime set forth above, the original case against you will move forward.¹²

5. What happens if I finish the program?

Upon successful completion of Penal Code 1000 pretrial diversion, the arrest for the applicable charge(s) will be deemed to have never occurred for most purposes.¹³

You may then truthfully indicate in response to any question concerning your prior criminal record that you were not arrested or granted pretrial diversion for the offense.

The exception is if you are applying for a job as a law enforcement officer.

Will my arrest record be sealed?

The court may issue an order to seal the records pertaining to the arrest as described in California Penal Code 851.92. Note, however, that such an order to seal the arrest record has no effect on a criminal justice agency’s ability to access and use those sealed records in accordance with applicable law.

Successful completion of a pretrial diversion program also does not prohibit the California agencies responsible for licensing physicians, pharmacists or dentists from:

• Taking disciplinary action against a licensee, or
• Denying a license for professional misconduct.¹⁴

Finally, information about participation in diversion may be disclosed upon request to the agencies that license certain other related professions (such as veterinarians, nurses and therapists) set forth in Section 144 of the California Business and Professions Code.

6. Are there alternative drug diversion programs?

In addition to Penal Code 1000 PC pretrial diversion, California offers the following drug diversion programs.

California’s Prop. 36

California Proposition 36 — more commonly referred to as “Prop. 36” — is defined in Penal Code sections 1210-1210.1 and in 3063.1 PC (as it relates to individuals on parole).

There are four major differences between Prop. 36 and Penal Code 1000 pretrial diversion:

1. Penal Code 1000 PC is applicable to a wider variety of drug-related crimes. For instance, eligible offenses include unlawful cultivation of marijuana for personal use and forging prescriptions for personal use.
2. Prop. 36 requires a guilty plea, after which you are placed on formal probation and subject to a variety of additional terms and conditions.
3. Judges have a certain amount of discretion as to whether allowed participation in PC 1000 pretrial diversion. If you qualify under Prop. 36, however, you are automatically sentenced under its provisions.
4. Upon successful completion of pretrial diversion, the charges against you are automatically dismissed. In a Prop. 36 case, on the other hand, the judge has the discretion to determine whether or not to dismiss the charges.

All in all, therefore, PC 1000 is a better form of drug diversion for you if you have the choice.

California drug court

California drug court is similar to Penal Code 1000 PC, but you must be represented by public defenders.

Drug court programs are authorized by California Penal Code 1000.5 PC. They include programs such as Los Angeles County drug court and San Francisco’s “back on track” program, both described below.

As with pretrial diversion, successful completion of a drug court treatment program can result in a dismissal of the underlying drug charge(s).

If you do not qualify for drug court (for instance, because the judge, D.A. and public defender do not agree), you may still qualify for Penal Code 1000 pretrial diversion.

Los Angeles County drug court program

The Los Angeles County Drug Court Program, launched in 1994, provides treatment instead of jail time to non-violent offenders with chronic substance abuse disorders.

The program has 12 traditional drug courts, two juvenile drug courts, and several specialized court programs staffed by the Los Angeles County Public Defender based on the drug court model.

San Francisco’s “back on track” program

The San Francisco court system offers a unique program that is referred to as their “back on track” program. This drug diversion program is specific to:

• offenders who are 18-30 years of age, and
• those who have been arrested for first-time nonviolent low-level drug “sales” charges (that is, charges involving less than 5 grams of controlled substances).

You must complete a six-week screening phase which includes 120 hours of community service to demonstrate your commitment to the program. Upon the successful completion of that phase of the program, you plead guilty to the charge(s) and sentencing is postponed for one year.

If you are charged with a new drug case, the judge immediately terminates participation and imposes a sentence. However, if you successfully complete the program, your charges will ultimately be dismissed.

Military diversion

Another form of pretrial diversion for substance abuse is “military diversion” for veterans and active-duty military personnel. Military diversion lets a judge postpone criminal proceedings for misdemeanor crimes while you obtain treatment for

• substance abuse or
• other mental health problems (such as PTSD or sexual trauma).

Upon successful completion of military diversion,

• charges against you are dismissed and, for most purposes,
• the arrest will be deemed never to have occurred.

Mental health diversion

California now offers general mental health diversion under California Penal Code 1001.36. PC 1001.36 lets some people with mental disorders get treatment when they are charged with a crime.

As with other forms of California “pretrial diversion” successful treatment leads to the criminal charges being dismissed. The record of the arrest then gets sealed for most purposes and it is generally as if the arrest had never happened.

To qualify, you must suffer from a condition listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. Most conditions qualify, including:

• Bipolar disorder,
• Schizophrenia,
• Schizoaffective disorder, and
• Post-traumatic stress disorder (“PTSD”).

Defendants suffering from an antisocial personality disorder, borderline personality disorder, or pedophilia are not eligible for this program.

Additional Resources

If you are struggling with substance abuse addiction, you can find help here:

• Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
• Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
• Recovery Centers of America – Treatment centers in seven states.
• SMART Recovery – Group therapy for young people struggling with addiction.
• Partnership to End Addiction – Information on how to find drug addiction treatment.

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