8 Things Everyone Should Know About “Ecstacy” Laws

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Overview of MDMA

Ecstasy is a Schedule I narcotic under the federal Controlled Substances Act. The scientific name for Ecstasy is 3, 4 methylenedioxymethamphetamine or MDMA. It has other various street names including “Molly,” “X,” “E,” and “XTC.” It was originally developed as anti-coagulant and later prescribed, though not FDA approved, for treating PTSD. It was not included as a Schedule I drug until 1985 when reported fatalities and serious medical issues from its use became a concern.

MDMA, or Ecstasy1, is a popular club drug as it is both an amphetamine and a mild hallucinogen. It is valued for producing a euphoric and energizing effect, heightening the senses. It can also produce feelings of empathy with users wanting to connect with others around them in a warm way. The drug releases Serotonin in the brain, producing the happiness feeling that gives the substance its common name.

A prominent danger in using the drug is that it is not uncommonly laced with other Schedule I drugs such as heroin, cocaine, ketamine and methamphetamines but even with caffeine, rat poison or anything else so that users may not be ingesting what they thought. Complications in using the drug include:

  • disorientation
  • blurred vision
  • anxiety
  • sweating
  • clenched teeth
  • sharp increase in body temperature

More serious complications are seizure, organ failure, irregular heartbeat, extreme dehydration and death.

Possession Of Ecstacy

It is unlawful to possess a controlled substance without a valid prescription, if available, or any other such drug for which no prescription may be obtained such as Ecstasy2.

A violation of 11377 HS is a “wobbler” so that the prosecutor has discretion in charging you with either a misdemeanor or felony. You likely face felony charges if you have multiple drug possession convictions or at least one prior intent to sell conviction or if there are other aggravating circumstances regarding your arrest or case.

A misdemeanor conviction has a maximum jail sentence of up to one year in county jail and/or a fine up to $1000.

A felony conviction carries 16 months 2 or 3 years in state prison and a fine up to $10,000.

A conviction under this code section allows a defendant be eligible to seek a diversionary program where successful completion can result in dismissal of your charges.

Possession For Sale Of Ecstacy

Possession of any controlled substance is illegal (unless you have a valid prescription) so obviously an attempt to sell it is also unlawful3. The sale or possession of Ecstasy for the purpose of selling it is a straight felony under California Penal Code 11378. Y

ou are presumed to possess it for sale if you have a sufficient quantity of it or an amount that no reasonable person would assume is for your own personal use though this can be an issue for the trier of fact and an issue over which experts may differ4.

Transportation Of Ecstacy

MDMA molecule

This code section prohibits transporting a controlled substance like Ecstasy, which means bringing or importing it from outside the state5. It also prohibits your giving or selling the drug to someone or “administering” it, which means giving it directly to someone who then ingests or inhales (snorts) the substance6.

A violation under this section is a straight felony and has harsher terms than a violation of 11378 HS. If convicted, you face 2, 3 or 4 years in state prison and a fine of up to $10,000.

But if you transport or carry the drug across at least two California counties, the court will enhance your sentence to 3, 6 or 9 years in state prison.

Aggravating circumstances that will undoubtedly lead a court to sentence you to the maximum prison term are if you furnish, give away or transport to:

  • A pregnant woman
  • An individual who has a prior violent felony conviction
  • A person being treated for a mental disorder, illness or condition

Drug Diversion Program

A charge of possession of a controlled substance like Ecstasy makes you eligible for any of California’s diversionary programs under Proposition 36 and Penal Code 1000 that offers deferred judgment or diversion7. Those with simple possession charges are also eligible to participate in California’s drug courts.

You are not eligible if you possessed Ecstasy for sale under 11378 HS or transporting, giving away or administering it under 11379 HS. Qualifications for diversion include:

  • No prior possession conviction with intent to sell
  • No serious probation violation or parole violations
  • You did not participate in a drug diversion program within 5 years of the current offense
  • No prior felony convictions within 5 years of the current offense

Under PC 1000, you have to first enter a plea of guilty but then the judge will defer further proceedings for up to 3 years while you complete an approved drug treatment. You must not commit any further criminal offenses during this time and pass all drug tests. During the course of your treatment, progress reports are periodically submitted to the court. If you complete the treatment and satisfy all conditions, the court will dismiss the charges.

Proposition 368 was designed for defendants with drug possession charges but who committed a violent or serious felony. You still plead guilty to the underlying charge and the court will defer further proceedings similar to PC 1000 except that you are under formal probation and any conditions imposed by the court, which can be difficult to follow for many defendants. Completion of your treatment program does not guarantee the court will dismiss the charges but it is unlikely you will spend any time incarcerated.

Another program is participation in a California drug court. You still must not have a record of past possession with intent to sell convictions, have no previous felony convictions in the past 5 years and no participation in a diversionary program within this time. Drug courts can tailor their programs and conditions to your unique situation with the goal of ending your addiction or dependence and getting your life back on track.

For instance, the court may require that you actively seek employment, remain employed, abstain from alcohol and drugs, meet with a drug counselor or drug therapy group and report regularly to your probation officer. If you complete all conditions to the satisfaction of the court, it will dismiss your charges.

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Legal Defenses

Lack of Proof of Possession

The DA must prove that you knew or were aware of the presence of the drug on your person or that you were in constructive possession. Direct or actual possession means the drugs were found on you and no one else had equal access. Constructive possession means you had control over the drugs but that you also were aware of them and their nature. You could be at a friend’s house when police appear and search and find drugs and be charged with possession. However, mere proximity to an illegal substance is not sufficient to convict you.

The DA has the burden of proving beyond a reasonable doubt that you were aware that the drug was in your presence and that it was a controlled substance. If someone else had control over your car, jacket or suitcase where the drugs were found, then this burden may not be satisfied.

Facts supporting knowledge of the nature of the drug in your possession might be that you were given the substance in a club setting where its use was well known or where previous arrests were made or you have a prior conviction for drug possession. Otherwise, the DA might not be able to show that you knew the character of the drug.

Lack of Intent to Sell

The DA can attempt to convict you for intent to sell based on the quantity you possessed. But if no baggies, cash, scales or similar paraphernalia associated with someone in the business of selling controlled substances are found with you, then you might convince a court or jury that you only possessed it for personal use. If so, you may be eligible for a diversionary disposition or a less severe sentence and an opportunity to have it expunged.

Illegal Search and Seizure

Law enforcement officers are enforcers of the peace and the law and as such must respect your civil and constitutional rights when stopping or detaining you. A peace officer may generally not search you, your home or car in the absence of a warrant unless there are certain circumstances that allow it. However, you might be subject to a pat down search for weapons but only if the police possessed a “reasonable belief based on specific articulable facts which, taken together with the rational inferences to be drawn from those facts reasonably warranted the officer into believing that (you) (are) dangerous and may gain immediate control of weapons”9. This is a standard that is less than probable cause to arrest someone.

If you are arrested, then you are subject to a search of yourself and an allegedly limited search of the immediate area for weapons as well.

However, it is not that unusual for an officer to violate the rights of criminal suspects by forcing them to submit to a search or by thoroughly searching a person or his home or car who is suspected of a crime without probable cause to do so or pursuant to a warrant. Planting of evidence does occur as well.

If you are stopped for a traffic violation, your car may not be searched unless the officer has probable cause to believe you are carrying controlled substances in your car, weapons or other evidence of a crime, usually by it being in open view.

In other cases where officers suspect that you may be possessing illegal drugs or are selling them, then a search warrant is usually obtained. Search warrants limit the extent, place, time and scope of the search. If officers are looking for a drugs in someone’s home, they may not search your car merely because it was parked next to it or you were in the house that was being searched.

If a constitutional violation is suspected, your attorney will file a motion to suppress the incriminating evidence.

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Expungement For Ecstacy Convictions

You can seek post-conviction relief pursuant to Penal Code 1203.4 if you were convicted of a misdemeanor under Health and Safety Code 11377. California law allows expungement of a conviction so long you did not serve time in state prison. With an expungement, you can state under oath that you have not been convicted of that offense.

However, if you were convicted of a felony under this section, you could petition the court to reduce it to a misdemeanor under Proposition 47 if it was simple possession. You can also be resentenced as a misdemeanor and any time sentenced would be served in county jail rather than state prison. You can also move the court to reduce your felony conviction under 11377 HS (since it is a wobbler) to a misdemeanor under PC 17(b) provided you served no time in state prison.

An expungement gives you post-conviction relief from many of the obstacles convicted felons face after serving their time. Few employers will hire or landlords rent to convicted felons. A felony will prevent you from maintaining or acquiring a professional license. One of the main benefits of expungement that it prevents any member of the general public from seeing that you were convicted of a crime since your expunged conviction will not appear on a public database. Since employers and landlords routinely use online services that are linked to certain criminal databases to conduct criminal background checks, this obstacle to being considered is removed.

  • Find Out if You Are Eligible To Have Your Record Expunged
  • Stop Worrying About Employer Background Checks
  • Start Worrying About Landlord Background Checks

Eligibility for Expungement

As indicated herein, if you were convicted under 11377 HS for a misdemeanor and did not have your charges dismissed in a diversionary program, then you qualify for an expungement. You may petition the court so long as you satisfy these other conditions:

  • completion of all conditions of your sentence and probation
  • no commission of a subsequent felony
  • you have no criminal charges pending
  • you committed no serious violation of your probation

If your conviction was for sale or intent to sell, and you served time in state prison, you are not eligible for an expungement of your conviction. You may be able to get a Certificate of Rehabilitation that can offer you some of the benefits of an expungement except that your criminal conviction is still on your public record. It does offer potential employers or landlords a record of your rehabilitation and sound character since your conviction.

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Footnotes

  1. See Also – The DEA Drug Fact Sheet – Drug Enforcement Administration []
  2. People v. Barnes (1997) 57 Cal.App.4th 552, 556 []
  3. People v. Parra (1999) 70 Cal.App.4th 222,226 []
  4. People v. Rubacalba (1993) 6 Cal.App.4th  62, 65-67 []
  5. People v. Emmal (1998) 68 Cal.App.4th 1313, 1316; People v. Meza (1995) 38 Cal.App.4th 1741, 1746 []
  6. People v. Emmal (1998) 68 Cal.App.4th 1313, 1316 []
  7. Gardner v. Schwartzenegger (2009) 178 Cal.App.4th 1366, 1370 []
  8. Penal Code 1210.1 PC (Proposition 36) – Possession of Controlled Substances; Probation; Exceptions, subdivision (d)(3).  (“(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense [either through a guilty or nolo contendere “no contest” plea or based on a guilty verdict in a California jury trial] shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court shall impose appropriate drug testing as a condition of probation. 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. Probation shall be imposed by suspending the imposition of sentence. No person shall be denied the opportunity to benefit from the provisions of the Substance Abuse and Crime Prevention Act of 2000 based solely upon evidence of a co-occurring psychiatric or developmental disorder. To the greatest extent possible, any person who is convicted of, and placed on probation pursuant to this section for a nonviolent drug possession offense shall be monitored by the court through the use of a dedicated court calendar and the incorporation of a collaborative court model of oversight that includes close collaboration with treatment providers and probation, drug testing commensurate with treatment needs, and supervision of progress through review hearings. In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program. (b) Subdivision (a) shall not apply to any of the following: (1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person. (2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony. (3) Any defendant who, while armed with a deadly weapon, with the intent to use the same as a deadly weapon, unlawfully possesses or is under the influence of any controlled substance identified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code. (4) Any defendant who refuses drug treatment as a condition of probation. (5) Any defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision (a), and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210. Notwithstanding any other provision of law, the trial court shall sentence that defendant to 30 days in jail. (c)(1) Any defendant who has previously been convicted of at least three non-drug-related felonies for which the defendant has served three separate prison terms within the meaning of subdivision (b) of Section 667.5 shall be presumed eligible for treatment under subdivision (a). The court may exclude such a defendant from treatment under subdivision (a) where the court, pursuant to the motion of the prosecutor or its own motion, finds that the defendant poses a present danger to the safety of others and would not benefit from a drug treatment program. The court shall, on the record, state its findings, the reasons for those findings. (2) Any defendant who has previously been convicted of a misdemeanor or felony at least five times within the prior 30 months shall be presumed to be eligible for treatment under subdivision (a). The court may exclude such a defendant from treatment under subdivision (a) if the court, pursuant to the motion of the prosecutor, or on its own motion, finds that the defendant poses a present danger to the safety of others or would not benefit from a drug treatment program. The court shall, on the record, state its findings and the reasons for those findings. (d) Within seven days of an order imposing probation under subdivision (a), the probation department shall notify the drug treatment provider designated to provide drug treatment under subdivision (a). Within 30 days of receiving that notice, the treatment provider shall prepare a treatment plan and forward it to the probation department for distribution to the court and counsel. The treatment provider shall provide to the probation department standardized treatment progress reports, with minimum data elements as determined by the department, including all drug testing results. At a minimum, the reports shall be provided to the court every 90 days, or more frequently, as the court directs. (1) If at any point during the course of drug treatment the treatment provider notifies the probation department and the court that the defendant is unamenable to the drug treatment being provided, but may be amenable to other drug treatments or related programs, the probation department may move the court to modify the terms of probation, or on its own motion, the court may modify the terms of probation after a hearing to ensure that the defendant receives the alternative drug treatment or program. (2) If at any point during the course of drug treatment the treatment provider notifies the probation department and the court that the defendant is unamenable to the drug treatment provided and all other forms of drug treatment programs pursuant to subdivision (b) of Section 1210, the probation department may move to revoke probation. At the revocation hearing, if it is proved that the defendant is unamenable to all drug treatment programs pursuant to subdivision (b) of Section 1210, the court may revoke probation. (3) Drug treatment services provided by subdivision (a) as a required condition of probation may not exceed 12 months, unless the court makes a finding supported by the record, that the continuation of treatment services beyond 12 months is necessary for drug treatment to be successful. If such a finding is made, the court may order up to two six-month extensions of treatment services. The provision of treatment services under the Substance Abuse and Crime Prevention Act of 2000 shall not exceed 24 months. (e)(1) At any time after completion of drug treatment and the terms of probation, the court shall conduct a hearing, and if the court finds that the defendant successfully completed drug treatment, and substantially complied with the conditions of probation, including refraining from the use of drugs after the completion of treatment, the conviction on which the probation was based shall be set aside and the court shall dismiss the indictment, complaint, or information against the defendant. In addition, except as provided in paragraphs (2) and (3), both the arrest and the conviction shall be deemed never to have occurred. The defendant may additionally petition the court for a dismissal of charges at any time after completion of the prescribed course of drug treatment. Except as provided in paragraph (2) or (3), the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted. (2) Dismissal of an indictment, complaint, or information pursuant to paragraph (1) does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person [that is, a concealed weapon] or prevent his or her conviction under Section 29800. (3) Except as provided below, after an indictment, complaint, or information is dismissed pursuant to paragraph (1), the defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or convicted for the offense. Except as provided below, a record pertaining to an arrest or conviction resulting in successful completion of a drug treatment program under this section may not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. Regardless of his or her successful completion of drug treatment, the arrest and conviction on which the probation was based may be recorded by the Department of Justice and disclosed in response to any peace officer application request or any law enforcement inquiry. Dismissal of an information, complaint, or indictment under this section does not relieve a defendant of the obligation to disclose the arrest and conviction in response to any direct question contained in any questionnaire or application for public office, for a position as a peace officer as defined in Section 830, for licensure by any state or local agency, for contracting with the California State Lottery, or for purposes of serving on a jury. (f)(1) If probation is revoked pursuant to the provisions of this subdivision, the defendant may be incarcerated pursuant to otherwise applicable law without regard to the provisions of this section. The court may modify or revoke probation if the alleged violation is proved. (2) If a defendant receives probation under subdivision (a), and violates that probation either by committing an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court may remand the defendant for a period not exceeding 30 days during which time the court may receive input from treatment, probation, the state, and the defendant, and the court may conduct further hearings as it deems appropriate to determine whether or not probation should be reinstated under this section. If the court reinstates the defendant on probation, the court may modify the treatment plan and any other terms of probation, and continue the defendant in a treatment program under the Substance Abuse and Crime Prevention Act of 2000. If the court reinstates the defendant on probation, the court may, after receiving input from the treatment provider and probation, if available, intensify or alter the treatment plan under subdivision (a), and impose sanctions, including jail sanctions not exceeding 30 days, a tool to enhance treatment compliance. (3)(A) If a defendant receives probation under subdivision (a), and violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may intensify or alter the drug treatment plan and in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 48 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant’s licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (B) If a defendant receives probation under subdivision (a), and for the second time violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. In determining whether a defendant is unamenable to drug treatment, the court may consider, to the extent relevant, whether the defendant (i) has committed a serious violation of rules at the drug treatment program, (ii) has repeatedly committed violations of program rules that inhibit the defendant’s ability to function in the program, or (iii) has continually refused to participate in the program or asked to be removed from the program. If the court does not revoke probation, it may intensify or alter the drug treatment plan, and may, in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, impose sanctions including jail sanctions that may not exceed 120 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant’s licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in the facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. Detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (C) If a defendant receives probation under subdivision (a), and for the third or subsequent time violates that probation either by committing a nonviolent drug possession offense, or by violating a drug-related condition of probation, and the state moves for a third or subsequent time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a) unless the court determines that the defendant is not a danger to the community and would benefit from further treatment under subdivision (a). The court may then either intensify or alter the treatment plan under subdivision (a) or transfer the defendant to a highly structured drug court. If the court continues the defendant in treatment under subdivision (a), or drug court, the court may impose appropriate sanctions including jail sanctions as the court deems appropriate. (D) If a defendant on probation at the effective date of this act for a nonviolent drug possession offense violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may modify or alter the treatment plan, and in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 48 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant’s licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (E) If a defendant on probation at the effective date of this act for a nonviolent drug possession offense violates that probation a second time either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves for a second time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or that the defendant is unamenable to drug treatment. If the court does not revoke probation, it may modify or alter the treatment plan, and in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 120 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment including narcotics replacement treatment, and including the opinion of the defendant’s licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (F) If a defendant on probation at the effective date of this act for a nonviolent drug offense violates that probation a third or subsequent time either by committing a nonviolent drug possession offense, or by violating a drug-related condition of probation, and the state moves for a third or subsequent time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a), unless the court determines that the defendant is not a danger to the community and would benefit from further treatment under subdivision (a). The court may then either intensify or alter the treatment plan under subdivision (a) or transfer the defendant to a highly structured drug court. If the court continues the defendant in treatment under subdivision (a), or drug court, the court may impose appropriate sanctions including jail sanctions. (g) The term “drug-related condition of probation” shall include a probationer’s specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.” []
  9. Terry v. Ohio []

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