The Law Office of Adam T. Spicer has extensive history defending people for drug crimes in both California and Nevada.
California Drug Possession
Just a few short years ago, the mere possession of almost any controlled substance in California (except marijuana) was a felony offense.
Beginning in 2010, the California Legislature made most drug possession crimes wobbler offenses or offenses that can be charged as a felony or a misdemeanor.
Proposition 47 , passed in November 2014 reduced almost all simple drug possession crimes to misdemeanor and misdemeanors only (no longer wobbler offenses).
The current law in California is that simple drug possession remains a misdemeanor offense.
It is important to understand that simple drug possession is possession for personal use. It does not include possession for sale, transportation, trafficking, or any other drug related offense.
Nevada Drug Possession
Drug possession in the State of Nevada can be charged as a felony or misdemeanor offense.
The statutes give the decision what level of crime to charge to the prosecutor.
The decision on whether to charge a felony or misdemeanor will generally be based on:
The amount of drugs possessed
The facts and circumstances of the offense
The criminal history of the offender
The level of cooperation and behavior of the offender
Other Drug Crimes
In addition to simple drug possession, there are many other drug related crimes a person can be charged with, including:
Possession with the intent to sell
Sale of imitation drugs
Maintaining a place for the use or sale of controlled substances
California Diversion Programs
California has both statutory and non-statutory programs designed to allow an offender to participate in drug education and treatment programs rather than suffer other punishments including incarceration.
California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, permanently changed state law to allow qualifying defendants convicted of non-violent drug possession offenses to receive a probationary sentence in lieu of incarceration. As a condition of probation defendants are required to participate in and complete a licensed and/or certified community drug treatment program. If the defendant fails to complete this program or violates any other term or condition of their probation, then probation can be revoked and the defendant may be required to serve an additional sentence which may include incarceration.
36 generally applies to three classes of people:
those with new convictions for drug possession or being under the influence,
persons on probation for drug possession or under-the-influence offenses, and
persons on parole with no prior convictions for a serious or violent felony.
Not all defendants convicted of a non-violent drug possession offense are eligible for probation and treatment under Prop 36. Subdivision (b) of section 1210.1 of the California Penal Code deems the following defendants ineligible for the program:
Any defendant who has been incarcerated within the last five years for a serious or violent felony offense.
Any defendant convicted in the same proceeding of a non-drug related misdemeanor or felony.
Any defendant who, during the commission of the offense, was in possession of a firearm and, at the same time, was either in possession of or under the influence of cocaine, heroin, methamphetamine or phencyclidine (PCP).
Any defendant who refuses treatment.
Any defendant who has two separate drug related convictions, has participated in Prop 36 twice before, and who is found by the court by clear and convincing evidence to be unamenable to any and all forms of available drug treatment. In such cases the defendant shall be sentenced to 30 days in jail.
The judge may set any range of conditions of probation to monitor the offender’s progress. These may include regular check-ins with a probation officer or court appearances, a requirement to pay a share of treatment costs, drug testing and other restrictions on the person’s place of residence, associations, or lifestyle. If the offender violates any of the court’s conditions, he or she faces the risk of having probation violated or revoked. Otherwise, the treatment provider selected by the court will provide regular progress reports through the required course of treatment.
At the end of the required treatment regimen, the offender may petition the court to dismiss the drug charges. If the court finds that the person complied with the probation conditions and that treatment was “successful,” charges may be dismissed, and the defendant will be obliged to disclose the fact that he or she was arrested only in certain specified circumstances.
PC 1000 Classes
California Penal Code Section 1000 (PC 1000) permits first time drug offenders with no prior record to take a 4 month, weekly class instead of going to jail; once the person successfully completes the class, goes a total of 18 months without a criminal arrest or conviction and pays the fee (about $150.00) the case against the person can be dismissed by the court. Persons charged with possession for sales of a controlled substance or other sales related offenses are generally not eligible for PC 1000.
Since PC 1000 is only available to first time offenders, people facing subsequent charges cannot use this program and must instead consider Prop 36 or other options.
Drug Courts are specially designed court calendars that provide an alternative to traditional criminal justice prosecution for non-violent drug-related offenses. These courts combine close judicial oversight and monitoring with probation supervision and substance abuse treatment services.
The goals of these programs are:
reduce recidivism and substance abuse among substance abusing offenders and
increase the offender’s likelihood of successful rehabilitation.
Adult drug courts provide access to treatment for substance-abusing offenders in criminal, dependency, and family courts while minimizing the use of incarceration. They provide a structure for linking supervision and treatment with ongoing judicial oversight and team management. The majority of drug courts include initial intensive treatment services with ongoing monitoring and continuing care for a year or more. Dependency drug courts address substance abuse issues that contribute to removal of children from the care of their parents. Drug courts in family court address the impact of substance abuse on child custody and visitation.
The Judicial Council adopted section 36 of the California Standards of Judicial Administration, Guidelines for Diversion Drug Court Programs, effective January 1, 1998, which provides clarification specifically for pre-plea diversion drug courts under Penal Code section 1000.5. (A pre-plea diversion program allows criminal proceedings to be suspended while the defendant participates in a program involving counseling, drug testing, education, or other requirements. If the defendant successfully completes the program, the criminal charges may be dismissed.)
Nevada Diversion Programs
Like California, there are both statutory and non-statutory diversion options available to drug offenders.
Non-statutory informal deferred entry of judgment pleas remain an effective tool in Nevada to help the first time drug offender.
Nevada provides for statutory diversion under Chapter 453 of the Nevada Revised Statutes.
This diversion is not as structured as the California programs like Prop 36 and PC 1000.
Instead, this allows for an offender to be evaluated by an alcohol and drug counselor.
Once the results are presented to the Judge, all parties involved will craft a counseling and education program suited to the individual offender.
Once the program is completed, the defendant is generally entitled to a dismissal of criminal charges if they have not suffered any new offenses and have passed all the required drug tests.
Nothing on this website is considered or intended as legal advice. Every situation is different and no legal advice can be given without a thorough interview and discussion of the case. No attorney-client relationship is created by visiting this website. Such a relationship is only established by the signing of a fee agreement.