Intro



California is the nation’s leader in drug arrests. A drug arrest causes major havoc in a person’s life, because the penalties are harsh, with imprisonment in county jail or state prison. A drug arrest can follow a person through their whole life, because a criminal record lasts a lifetime. Although there are many different types of drugs, the most commonly prosecuted are:

•Marijuana

•Cocaine

•Cocaine based drugs, like “crack"

•Methamphetamine

•Heroin

•Ecstasy

•PCP

The following is a brief overview of the general rules under California law dealing with illegal drugs:

•No person may possess any controlled substance as defined by the California Health and Safety Code.

•No person may possess or purchase any controlled substance for the purpose of sale.

•No person may transport or import into this state any controlled substance for the purposes of selling, furnishing, administering or giving away.

•No person shall possess items known as drug paraphernalia, knowing or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.

The penalties for drug crimes range from mandatory treatment programs, classes, probation, to very severe consequences, such as county jail or state prison. Charges are generally based upon quantity, intent to sell or distribute and other factors such as weapons possession or use, evidence of sales activity, having large amounts of money, among others. The seriousness and ultimate punishment for drug crimes normally depends upon the quantity of the drug, the classification under the Health and Safety Code drug schedule, and the purpose of the possession. The purpose of the possession refers to whether the drugs were for personal use or for sale. The following are the general penalties normally given out for drug crimes:

•The penalty for possession of a controlled substance is punishable by fines up to $500 and/or imprisonment in the county jail and/or state prison.

•The penalty for possession of controlled substance for sale or purchase of controlled substance for the purpose of sale is punishable by imprisonment in the state prison for two, three, or four years.

•The penalty for importing into this state or transporting a controlled substance for the purpose of selling furnishing, administering or giving away is punishable by imprisonment in the state prison for three, four, or five years.

•The penalty for possession of drug paraphernalia is punishable by fines up to $1,000 and/or imprisonment in the county jail and/or state prison.

Proposition 36 is a ballot initiative that sends drug offenders to treatment programs instead of prison and has great potential for treating abusers of drugs rather than simply sending them to jail. Proposition 36 generally applies to three classes of people: 1) those with new convictions for drug possession or being under the influence, 2) persons on probation for drug possession or under-the-influence offenses, and 3) persons on parole with no prior convictions for a serious or violent felony.

People with new convictions for drug offenses qualify for treatment provided that they are not convicted of sale or manufacture or any non-drug crimes at the same time. Offenders are excluded if they have a prior conviction for a serious or violent felony (a "strike"), unless they have served their prison time and have been out of prison for five years with no felony convictions or misdemeanor convictions involving the threat of violence. Finally, individual offenders may "opt-out" of treatment by formally refusing it, in which case they face sentencing under pre-existing law.

Deferred entry of judgment is a program for first-time offenders which allow the offender to avoid having a drug conviction on their record if they complete the diversion program. The accused is required to enter a plea of guilty to the drug charge, but the accused is not sentenced. Legally, a case is not final until the defendant is sentenced. The accused must then go through a series of classes undergoing random drug testing. If the defendant tests "dirty," the defendant is deemed to have violated the terms of the diversion, allowing the court to sentence the defendant on the original guilty plea. But if the defendant successfully completes the program, criminal proceedings are dismissed, and the defendant may legally answer that he or she has never been arrested for, nor charged with, the offense.