Proposition
36
In November of 1996, California Voters enacted
Proposition 215[1]
which changed the enforcement of marijuana possession and cultivation laws
to California�s ill.� Now, the Voters
passed Proposition 36, which will protect another class of California�s ill,
individuals that are unfortunate enough to have drug addictions.
WHICH CONTROLLED SUBSTANCES ARE COVERED BY THE
NEW LAW?
The law covers every Schedule I, II, III, IV,
and V controlled substance.[2]�
WHAT TYPE OF DRUG OFFENSES ARE COVERED BY THE
NEW LAW?
The law creates a special new class of drug
offenses entitled �Nonviolent Drug Possession Offense� [3]� Anyone who is arrested and charged with violating
a controlled substance law may seek relief if the offense and the individual
are protected by the statute.
Anyone who is charged with an under the influence
offense[4], simple
possession offense[5],
or transportation for personal use[6],
may qualify for the statute�s application.�
Currently, transportation for personal use is not a defense to transportation
offenses unless enumerated by statute.[7]
WHICH INDIVIDUALS ARE ELIGIBLE TO BE COVERED
BY THE NEW LAW?
All individuals that are convicted of a nonviolent
drug possession offense as described above are eligible except those that
are specifically excluded in the enumerated section of the statute.[8]
PERSONS WHO ARE EXCLUDED:
1.� Any
person previously convicted of one or more serious or violent felonies.[9]
EXCEPTION TO THE VIOLENT FELONY EXCLUSION
A.� If
a five year period elapses from the last time the defendant was in custody
and the commission of a felony offense other than a nonviolent drug possession
offense, then a person is eligible for the benefits of the new law.
2.� Any
person who is convicted of any misdemeanor not related to the use of drugs
or any felony.[11]��� An example of this would be possession of
cocaine with a loaded firearm in the vehicle.��
If the defendant was convicted of the firearm offense, they would be
ineligible for the benefit of the statute.
5.� Any
person who refuses treatment as a condition of probation.[14]
6.� Any
person who has two separate convictions for nonviolent drug offense and has
twice participated in the drug treatment programs and who the court finds
by clear and convincing evidence is unamenable to any and all forms of drug
treatment.[15]
WHAT BENEFITS ARE GIVEN TO THE PERSONS TAKING
ADVANTAGE OF THE ACT?
The individual who successfully completes the
program has the case dismissed except that they are still prevented from owning
a firearm, as are all convicted felon�s.�
Also applicants for state licenses and peace officers must still disclose
the conviction.[16]� Since they have to be disclosed, they may be
used against the applicant.� However,
to all other employer�s the matter may be hidden from them and does not need
to be reported by the applicant.
Parolees who more or less meet the nonviolent
standards for non-parolee defendants may seek protection as well.[17]� This will obviously decrease the number of
parol revocations due to nonviolent drug offenses committed by nonviolent
parolees.
Obviously, the persons who will benefit most
from this statute are individuals who are currently ineligible for diversion
and persons who have fallen off diversion.
End Notes
[1].Codified in 11362.5 of the Health and Safety
Code
[2].See 11054 through 11058 of the Health and Safety
Code
[3].Codified in newly added Penal Code section
1210(a)
[4].See 11550 of the Health and Safety Code
[5].See IE: �� 11350, 11358, 11377 of the Health
and Safety Code
[6].See IE: ��11352, 11360, 11379, 11379.5 of the
Health and Safety Code
[7].11360(b) of the Health and Safety Code provides
for a $100.00 fine if the marijuana is under an ounce.� However, for other controlled substances, transportation
for personal use is no defense.�� The offense of illegal transportation of heroin (Health & Saf.
Code, �� 11352), does not require a specific intent to transport contraband
for the purpose of sale or distribution, rather than personal use. Absent
any legislative intent to the contrary, �� 11352 requires only a knowing
transportation of heroin, whether for personal use, sale, distribution,
or otherwise.� See People v
Cortez (1985, 5th Dist) 166 Cal App 3d 994, 212 Cal Rptr 692.
[9].� The
violent felonies are enumerated in Penal Code section 667.5 and/or Penal
Code section 1192.7.
[10].See newly enacted Penal Code section 1210.1
(b)(1)(B)
[11]. See newly enacted Penal Code section 1210.1
(b)(2)
[12].See newly enacted Penal Code section 1210.1
(b)(3)(A)
[13].See newly enacted Penal Code section 1210.1
(b)(3)(B)
[14].See newly enacted Penal Code section 1210.1
(b)(4)
[15].See newly enacted Penal Code section 1210.1
(b)(5)
[16].See newly enacted Penal Code section 1210.1
(d)(3)
[17].See newly enacted Penal Code section 3063.1