Punishments And Drug Treatment

Possession of a Controlled Substance is a felony punishable by 16 months, two years or three years in state prison.  As an alternative to a state prison sentence, a defendant charged with simple possession of a controlled substance may qualify for one of the following drug treatment programs.

Penal Code § 1000 Drug Diversion

Under Penal Code section 1000 Drug Diversion, the defendant pleads “guilty” to the possession of a controlled substance charge.  Entry of judgment against the defendant on the guilty plea is then deferred (not entered by the court) while the defendant attends a qualifying drug treatment program.  If the defendant successfully completes the program, and any other conditions imposed by the court, the case is then dismissed in its entirety (even though the defendant had previously entered a guilty plea).

To be eligible for Drug Diversion, the following requirements must be met:

• Defendant has no prior convictions for any controlled substance offense
• Defendant has not had probation or parole revoked in any prior case without later completing the probation or parole
• Defendant has not been granted Drug Diversion in the previous 5 years
• The Defendant has no felony convictions within the previous 5 Years
• The current charges do not involve violence
• The current charges do not include another drug violation charge that does not qualify for Drug Diversion (for example, Driving Under the Influence of Drugs)

Proposition 36

Under Proposition 36, the defendant pleads “guilty” to the possession of a controlled substance charge, is placed on probation, and must complete one year of drug treatment and 6 months of after-care.  If the defendant successfully completes the rehabilitation program and any other terms of probation, the charges may then be dismissed by the court.

To be eligible for Proposition 36, the following requirements must be met:

• The current charge is for non-violent drug possession for personal use
• Defendant has no “violent” or “serious” felony convictions within the previous 5 years
• Defendant is not convicted in the same case for any misdemeanor or felony that is not a non-violent drug possession charge
• Defendant has not refused drug treatment as part of Proposition 36 probation
• Defendant has not already participated at least twice in Proposition 36 or another drug treatment program AND the court determines that drug treatment is ineffective to treat the defendant

Defenses To Possession Of A Controlled Substance Charges

Potential defenses to a Possession of a Controlled Substance charge will depend on the facts of the case, but may include:

• Lack of possession – Defendant did not possess the controlled substance for personal use.  For example, Defendant was only present while other people used a controlled substance or Defendant only held the controlled substance for use by another person.

• Lack of knowledge – Defendant was unaware that he possessed the controlled substance.  For example, another person placed the substance in Defendant’s bedroom, vehicle or locker, etc.

• Unlawful Search and Seizure – Law enforcement found the controlled subject as part of an unlawful search or seizure of Defendant’s person or premises under his control.