If you’re arrested in California for the first time for a possession drug offense, you’ll be able to look for diversion under Penal Code Section 1000, where you can complete outpatient treatment and have your plea withdrawn and your case dismissed upon successful completion.
Even if you’ve previously completed diversion or have had prior drug possession convictions, if you’re charged with simple possession with no other criminal charges attached– meaning no driving on suspended license, no theft charges attached with that case– most people will be eligible for sentencing under Penal Code Section 1210, where they will be offered outpatient treatments which consist of counseling, classes and random testing.
When they complete the prescribed program, not only will they avoid jail, upon completion they can come back before the court and ask for the case to be dismissed.
What Warrants Probation and What Are the Costs Associated With It?
Probation can be granted on possession for sale cases. It does not have to be a period of local incarceration or state prison. If somebody is granted probation on a possession with sales case, the typical time-frame is 3 years of formal probation.
You’ll have to be supervised by a probation officer, check in as directed and you will be subject to random chemical testing. Your vehicle or home can be searched randomly by law enforcement without probable cause and you can expect to pay probation supervision fee of $789 per year in addition to other court fines and court costs. You may be sentenced to a period of residential treatment anywhere from 30 days to 9 months locally or there are other county programs that you could be in for up to 2 years.
Last November in California, the voters passed Proposition 47, which declared that all simple possession charges can only be misdemeanors. Before that in California, even if you possessed a tiny amount of cocaine or a tiny amount of heroin, that was only punishable as a felony charge. Even a tiny amount of methamphetamine was previously what was known as a “wobbler,” meaning it could be punished as either a misdemeanor or a felony.
The law, after Proposition 47 was passed, said that all simple drug possession cases can only be punishable as a misdemeanor and although they’re punishable as a misdemeanor and you can be placed on informal court probation, because you’re not formally supervised by the probation office and the costs associated with that court probationer are much lower.
How Do People Typically Violate Probation for Drug Charges?
If you’re placed on probation, whether it’s informal misdemeanor probation or formal felony probation, any violation of the terms of your probation can bring you back before the court. A violation can be a new arrest for any crime or it can be a violation of the terms of your probation. The common violations of the probation that we see are not reporting to probationer as directed, submitting a positive chemical test, testing positive for drugs and drug charges.
If you are on probation and you violate any terms of your probation, even if you’re not charged with a new case, you can be brought back before the court and sentenced up to the maximum of whatever charge you pled for. For instance, if you were on probation for a possession with intent to sell Methamphetamine, which is punishable by a maximum of 3 years and you test positive for drugs and are back before the court, even if you haven’t been arrested for a new case, you can face punishment of up to 3 years because that’s the maximum of what you’re on probation for.
What is the Step by Step Process Following An Arrest on Drug Related Charges?
If you’re charged with a simple possession, your first appearance is what’s called the arraignment. At the arraignment, the judge will advise you of the charges against you and ask you what you want to do about representation. If you’re unable to afford to hire a private attorney, the judge can appoint the public defender for you at that point.
If you think you might be able to afford a private attorney, at the first appearance, you can ask the judge for more time to look for an attorney and bring an attorney with you at your next court date. That private attorney can go with you to the first appearance. On a misdemeanor case, you can stay home or go to work and the private attorney can make the appearance for you.
After first appearance, where you’re with the attorney or not, your attorney will receive the copy of the criminal complaint as well as the initial police report and the judge will typically set a date for the settlement conference in a few weeks to come back in order to give both sides enough time to review the reports and discuss any possible resolutions.
After the settlement conference, there may be motions filed or hearing set for issues regarding illegally obtained evidence or issues regarding the police conduct. After the hearing’s held and there’s still no resolution to the case, the case could be set for jury trial. Even if the case is set for jury trial, it won’t necessarily go to jury trial, that could just be used as a control date to see if there’s any resolution of the case between the time of the setting and the jury trial.
Should You Plead Guilty To A Drug Charge?
It’s always a good idea to have an experienced attorney review the reports before submitting yourself to the mercy of the court. In terms of simple drug possession cases, you may be eligible for types of diversion that the district attorney has overlooked and you want to take advantage of that. In any type of drug case, there may be issues regarding the legality of the search and you may be able to run a motion to suppress the evidence based on the illegal seizure and possibly have the entire case thrown out if you can suppress enough of the evidence based on that search.
On possession for sales cases, there may not be enough evidence to establish that a person possessed those drugs with the specific intent to sell or otherwise distribute the drugs, the difference now in California between a possession for sales and simple possession is huge, the difference between a straight misdemeanor and a straight felony.
If an attorney can convince a judge, a DA or a jury that those drugs were not possessed with the intention to sell, even if you admit that you actually possess them, you will only be convicted of a misdemeanor and if you’re eligible for 1210 sentencing, which most of people are, you won’t even face jail time. An attorney should always be contacted and consulted on any case before going to court.
It’s never a good idea to represent yourself on any type of criminal case, whether it’ll be a drug case, a theft case, or a DUI case. Even attorneys who get arrested for possession of drugs or DUI don’t represent themselves; they hire an attorney to represent them. You need to have somebody else look at the case with a fresh prescription to see if there are any possible defenses and to see if there are any mitigating factors to get you the best possible outcome.
Experienced attorneys know how to get the best possible outcome, you may not know the ins and outs of the criminal justice system and the courts and can end up with a significantly harsher punishment than an experienced attorney could get you under your circumstances.
Private Attorney vs. Public Defender
First off, having a public defender is still going to be better than representing yourself. Most of them are experienced attorneys who appear in court in front of the same judges and DAs every day and will do a better job than you representing yourself. However, if you can afford to hire a private attorney, that’s going to be better in most circumstances.
Private attorneys don’t have the overwhelming caseloads that the public defenders have and are going to be able to give you much more attention and give your family much more attention and counseling than the public defender’s office can just because they have so many cases. You’re also going to be much more informed about your case if you go with the private attorney.
Drug possession cases affect all walks of life. All people, regardless of income or class or ways, are subject to drug addiction problems and maybe caught in possession of drugs. There are homeless people who can be caught possessing drugs and there are doctors and lawyers that can be caught with possession of drugs, it can happen to anybody. College students, stay at home moms; literally everybody is subject to addiction and anybody that is addicted to drugs can risk detection by law enforcement and come before the court.
Public Arrest Records
All arrests are public record if somebody knows where to look for it. If anybody goes down to the Sonoma County clerk’s office and asks to run your name, they can see the fact that you’ve been arrested and that there is a charge pending in court. However, the information available over the internet is much more limited. In most cases, your arrest will not be in the newspaper, on the internet, and will not be generally publicized. However, all arrest and all court proceedings are public record and you will not be able to hide them from anyone who knows where to look.
How an Arrest Effects You
Any criminal conviction can affect your life in terms of applying for jobs, applying for student loans or applying for housing. Even a misdemeanor drug conviction can affect those things. A felony drug conviction is obviously more severe and can cause you more problems in looking for work or looking for housing.
Additionally, a felony conviction will take away your ability to ever possess or use firearms under the federal laws. People with drug convictions can be denied certain student loans, they can lose job opportunities, they can be denied some subsidized housing and they can have a harder time getting into certain colleges and universities or other vocational programs if they have those types of convictions on their record.
Contact Amy Chapman
For more information on Diversion Programs for Drug Cases, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (707) 636-3207 today and talking with Amy Chapman.