[Estimated read time: 11 Minutes]
By: Diana Aizman
Penal Code 1000 refers to a disposition called Deferred Entry of Judgment or DEJ where an eligible drug defendant enters a guilty plea but has all proceedings, including a conviction, suspended for 18 to 36-months while the defendant completes an approved drug education or rehabilitation program.
A defendant may ask that he/she participate in an approved program in any California county. These programs must assess the defendant and provide a minimum of 20-hours of drug education or rehabilitation. Lastly, there must be a report, or exit conference, that reports on the defendant’s progress in the program.
A defendant may be removed from the program if he/she fails to complete the program or commits a felony or misdemeanor involving violence. If this occurs, then the defendant may be removed from the program, convicted of the charged offense and sentenced.
If successful, though, the defendant will have the charges dismissed. Further, the defendant may in most instances be permitted to state under oath that he/she has never been arrested for that particular offense.
Where do I find a list of approved programs?
You can find a list of approved programs at the courthouse.
To be eligible for a DEJ, the court will review:
- The underlying drug offense
- Your criminal history
Essentially, this must be your first drug offense and not involve an intent to sell a controlled substance. Whether you would be charged with possession or with intent to sell largely depends on the quantity found with you. If you were arrested at your home or stopped in your vehicle and several pounds of cocaine was found, then you would be charged with intent to sell, rendering you ineligible under PC 1000. However, in other instances an expert could testify in your defense as to what would constitute personal use considering the nature and amount of the drug found in your possession as well as other factors.
Also, if the underlying charged offense involved violence or the threat of violence, such as use of firearms or other dangerous weapons, you will not be eligible for diversion.
There are a number of qualifying drug offenses under Penal Code 1000. The most common are:
- Health and Safety Code 11377 and 11350–personal possession of a controlled substance
- Health and Safety Code 11357–possession of less than one ounce of marijuana
- Health and Safety Code 11358–cultivation of marijuana
- Health and Safety Code 11364–possession of drug paraphernalia
- Health and Safety Code 11368–forgery of a prescription
- Health and Safety Code 11365–knowingly being a place where drugs are being used
- Health and Safety Code 11550–being under the influence of a controlled substance
- Penal Code Section 381–possession of Toulene with intent to inhale or ingest
- Penal Code Section 647(f)–under the influence of drugs in public
- Penal Code Section 653(f)(d)–solicitation of drugs or transportation for personal use
- Vehicle Code Section 23222(b)–driving while in possession of marijuana
Examples of the controlled substances that come within the purview of the law include:
Your criminal history is one of the two eligibility factors in determining whether a DEJ should be offered in your case. The criteria involves the following:
- You have no prior drug-related convictions
- The subject drug offense must be possession-related and not involve the sale of a controlled substance
- The underlying charged offense must be non-violent or not contain a threat of violence
- You have no prior convictions for any felony offense within 5 years of committing the underlying drug offense
- You have no history of previous parole or probation violations
- You have not participated in a DEJ program or drug diversion program in the past 5 years
To begin the process of becoming involved in the California DEJ program, you must agree to have your case referred to probation to determine if you are eligible. As indicated above, the probation department will look at the charged offense for which you were arrested and your criminal record to see if you qualify. If you do, the department will schedule a hearing before a judge
After considering the offense and your history, the judge will determine if all criteria have been met. If you are found eligible, the judge will explain the program including your participation and successful completion of a drug education or rehabilitation program and the consequences of non-participation and completion. A DEJ program lasts from 18 to 36-months.
You will then be required to do the following:
- Enter a guilty plea to the drug charge
- Pay a restitution fee of not more than $1000
- Acknowledge that you will have to apply for and participate in a court-approved drug education or treatment program and be responsible for its costs as well as for the costs of probation
- Acknowledge that you understand that successful completion of the drug program will result in a dismissal of the subject charge and that you may state under penalty of perjury that you were never arrested on this charge
- Acknowledge that if you fail to complete the program within the prescribed time that you will be dismissed from the program and criminal proceedings against you will commence
The probation department will have to assess you to determine the best drug program for your needs. It will consider:
- Employment and skills
- Community and family connections
- Drug history and prior efforts at rehabilitation and treatment
During your participation in a court-approved program, the court could determine that you are not fully participating or that some other circumstance has arisen that has rendered you no longer eligible for DEJ. This could include:
- You are not attending the drug program
- Your participation has been unsatisfactory
- You are not benefiting from the program
- You have been convicted of a felony
- You have been convicted of a misdemeanor that reflects a propensity for violence (domestic violence or simple assault)
- You have engaged in criminal conduct that makes you ineligible
Once you complete the program, the court is obligated to dismiss the drug charges against you. The benefits of completing a DEJ program are:
- You may lawfully and truthfully state under oath or penalty of perjury on any application for employment, credit, rent, school or other document that you have never been arrested for the charge or that you were granted a DEJ.
- Your arrest record cannot be used to affect your ability to obtain a professional license (e.g., real estate, law, medical) or have adverse effects on your employment.
The only exception is that you must disclose your arrest and grant of a DEJ if you apply to become a police officer.
Can DUI offenders participate in drug diversion programs?
If a person commits a DUI offense that involves intoxication by drugs, this is considered a non-drug related offense and the person is not eligible for Proposition 36. A DUI-Drug offender may be able to enter the DEJ program.
The DEJ program is not the only drug diversion or alternative available to drug offenders. Another program is Proposition 36 found under Penal Code Sections 1210-1210.1 and Penal Code Section 3063.1.
There are some major differences between a DEJ and Proposition 36:
- DEJ allows defendants who have prior serious felony convictions to become eligible so long as they meet all the other requirements. This includes an offense for which you were given a strike under California’s three strikes law. Proposition 36 will not allow such defendants in its program.
- DEJ applies to a wider range of drug offenses
- If you plead guilty under Proposition 36, you are sentenced to formal probation and will have additional conditions and restrictions imposed on you
- Proposition 36 requires that you be sentenced and serve probation for 3 years. Drug treatment is determined by an assessment by a community program that could involve residential treatment. With a DEJ, your deferment may last only 18-months and you are not required to receive treatment in a residential program.
We can help assess if a DEJ is a possibility in your case and have meaningful conversions with the prosecution about extending an offer of DEJ. We have had many clients successfully receive and complete a Deferred Entry of Judgement.
If you would like to speak to a criminal defense attorney about your case or about drug diversion programs in California, please call our office at: (818) 351-9555 for a free confidential consultation.