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Second time possession of controlled substance (felony charge)?

San Diego, CA |

My brother had a charge about a month ago for possession of controlled substance and got bailed out. Then he didn't pay full amount to bail and skipped court. Now with a bench warrant out, he got caught once again with the same charge. I'm hoping he will just get PC 1000 drug classes... What's most likely going to happen to him based on these charges?

Attorney Answers 6

Posted

It is impossible to say without knowing your brother's criminal history. Prop 36 may be what he needs, not PC1000.

PC 1000 is available for more types of offenses, while Prop 36 is available for both first and second time offenders. In other words, one may qualify for PC 1000, but not Prop 36 and visa versa. The list of offenses that qualify for rehabilitation under PC 1000 is long, but the more commonly seen offenses are:

1. Being under the influence of a controlled substance (a violation of Health & Safety Code (“H & S”) § 11550 or charged as drunk in public (Penal Code § 647(f));

2. Driving while in possession of marijuana (Vehicle Code § 23222(b));

3. Being in possession of less than an ounce of marijuana (a violation of H & S § 11357);

4. Being in possession of a controlled substance (H & S § 11377 or H & S § 11350), such as cocaine, methamphetamine, ecstasy (“X”), phencyclidine (“PCP”), codeine, hydrocodone (“Vicodin”), ketamine (“Special K”), gamma-hydroxybutyric acid (“GHB”), heroin, peyote and marijuana;

5. Cultivating marijuana (H & S § 11358);

6. Possessing drug paraphernalia (H & S § 11364);

7. Knowingly being in a place where drugs are being used (H & S § 11365); and

8. Forging or presenting a forged prescription to obtain drugs (if it can be proven that such drugs were for you) (H & S § 11368).

Prop 36 is not available for one charged with cultivating marijuana, even if it for one’s personal use, or forging or presenting a forged prescription to obtain drugs. Prop 36 is available even if one is convicted at trial. One does not waive eligibility for the program by fighting the case all the way through trial.

PC 1000 is not available to anyone who participated in a drug diversion program or delayed entry of judgment program within five years of the charged offense. It is also unavailable to anyone with a prior felony conviction within five years to the alleged charged offense. PC 1000 is longer than Prop 36, too. PC 1000 is usually eighteen months long, but can be as long as three years, whereas Prop 36 is usually one year, but can be as long as two years.

Prop 36 is available to individuals who have been convicted of a serious or violent felony under California’s three strikes law. Perhaps not surprising, one who is assigned to Prop 36 is actually sentenced and placed on formal probation while participating in the program, while an individual on PC 1000 is not on any form of probation at all while in the program. A person afforded PC 1000 is also not sentenced for the underlying offense.

Accordingly, if one has the choice between the two programs, PC 1000 is far better, although the program is slightly longer.

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Posted

You brother needs to hire the best criminal defense attorney he can afford tomorrow.

The information provided in this answer does not create an attorney-client relationship and is not considered to be legal advice. Mr. Leroi answers questions on Avvo because he strongly believes in public service from his years as a judge, magistrate, and prosecutor. If you need to ask any follow up questions because my answer did not fully address your question, feel free to call Chris or post an additional question. Thank you.

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Posted

Would need to know a lot more. Hire a good attorney ASAP for him.

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Posted

Your brother's conduct may've eliminated PC1000 as a option; however, there are still other options available to directly address his drug problems. Your brother should obtain a free consultation from a San Diego County defense attorney to learn more about what can be done to ensure the best possible result.

Law Office of Andrew Limberg, APLC 380 S. Melrose Dr., #329 Vista, CA 92081 (760) 806-4381

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Posted

Clearly he is not going to be in the good graces with the judges and prosecutor's because of his past behavior. What he needs to do now is hire an attorney with years of experience with these types of cases in this courthouse. An exceptional defense attorney can at times get exceptional results for clients who's cases seem destined for jail, or worse. He needs to hire an experienced attorney that he is comfortable with and confident in, ASAP, as there are things he needs to do NOW to minimize his potential jail/prison exposure.

William Daley (619) 238-1905 / www.lawofficeofwilliamdaley.com

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Posted

Your brother needs to stop using possessing illegal drugs, man up and hire the best locally experienced criminal defense attorney to assist in recalling the warrant and representing him in court.

There are too many variables to say what's "most likely going to happen" at this point.

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