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California: Proposition 36

As the Drug War raged on, sending countless non-violent drug users to jail and even prison for simple possession of controlled substances, in 2000, the voters of California passed a measure to divert some of these hundreds of thousands of drug offenders away from incarceration and into treatment. While this voter initiative represented a move towards a much more sensible way to deal with drug offenders, only people convicted of simple possession of drugs or paraphernalia, without the intent for sale, are eligible and the treatment that is offered can be a lengthy and burdensome process that is difficult for many people to complete.

Still, most people who are eligible find Proposition 36 probation or parole to be preferable to the alternative, which is going to jail or prison. Once a person successfully completes Proposition 36 probation or parole, the person’s conviction is dismissed and expunged. The good thing about Proposition 36 is that, unlike Deferred Entry of Judgment, you don’t have to plead guilty to participate. You can take your case all the way to trial and, even if you lose, the judge must sentence you to Proposition 36 probation if you are eligible. When facing charges involving drug possession it’s important that you and your attorney decide upon a strategy that’s suitable for you and your personal needs so that you can get to the outcome that’s best for your particular situation.

Who is Eligible for Proposition 36

You are eligible for Proposition 36 if:

  1. You were convicted of simple possession of a controlled substance.

  2. You were convicted of being under the influence of a controlled substance.

  3. You were convicted of transporting a controlled substance for personal use.

  4. You violated parole by committing a non-violent drug offense.

Who is Not Eligible for Proposition 36

You are not eligible for Proposition 36 if:

  1. Along with the drug possession conviction, you were also convicted of another felony or a non-drug-related misdemeanor.

  2. You already have a prior “strike" conviction for a violent or serious felony under California’s three strikes law, unless you’ve been out of prison for at least five years without any disqualifying convictions.

  3. You were armed with a deadly weapon when you committed the drug possession offense.

  4. You refuse drug treatment.

  5. You have already done Proposition 36 twice, if the judge determines that you are unable to benefit from treatment.

  6. You have numerous prior convictions and the court determines that you present a danger to the safety of others or would not benefit from drug treatment.

Life on Proposition 36 Probation or Parole

Proposition 36 drug treatment programs can be very demanding and may not be appropriate for those who aren’t really interested in drug treatment. The program is between 12 and 24 months long and requires everyone to participate in drug treatment and to be drug tested regularly. Courts also may require participants to complete vocational training, family counseling, and community service.

Your Proposition 36 probation or parole may be revoked in the following ways:

  1. If, based on a performance in the program, a judge determines that you are unable to benefit from drug treatment, the judge may revoke your probation or parole and sentence you to jail or prison on the offense for which you were convicted.

  2. If you violate the terms of your parole or probation in a way that has nothing to do with drugs (like if you get arrested for shoplifting or don’t show up for a meeting with your probation officer), the judge will decide whether to revoke your Proposition 36 probation or parole or keep you in the program with a punishment of up to 30 days in jail.

  3. If you violate the terms of your parole or probation in a way that does have to do with drugs (submitting a dirty urine, getting caught with paraphernalia, etc.), the procedure for determining if your parole or probation will be revoked depends on whether it is your first, second, or third violation.

  • On a first drug-related violation, the court will hold a hearing and may punish you with up to 48 hours in jail, but it will only revoke your Proposition 36 parole or probation if it determines that you are a danger to society.

  • On a second drug-related violation, the court will hold a hearing and may punish you with up to 120 hours in jail, but it will only revoke your Proposition 36 parole or probation if it determines that you are either a danger to society or that you are unable to benefit from drug treatment.

  • On a third drug-related violation, the court will hold a hearing and will revoke your Proposition 36 parole or probation, unless it determines that you are not a danger to society and you would benefit from further treatment.

The good news is that once you make it all the way through to successful completion of your Proposition 36 drug treatment program, the court will dismiss your conviction and you can put this run-in with the law behind you.

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