Under California law, a person accused of low level narcotics offenses may be eligible for diversion if they meet specific conditions. The specific offenses eligible for diversion are:
- Health & Safety Code section 11350, possession of controlled substance;
- Health & Safety Code section 11357, possession of marijuana;
- Health & Safety Code section 11364, possession of controlled substance paraphernalia;
- Health & Safety Code section 11365, present in location where controlled substances are being used;
- Health & Safety Code section 11375(b)(2), possession of specified controlled substances without a prescription;
- Health & Safety Code section 11550, under the influence of specified controlled substances;
- Vehicle Code section 23222, possession of an open container or marijuana while driving a motor vehicle;
- Health & Safety Code section 11358, cultivation of marijuana (if for personal use only);
- Health & Safety Code section 11368, forged prescriptions (if for personal use only);
- Penal Code section 653f(d), soliciting specified Health & Safety code violations in order to provide controlled substances for personal use;
- Penal Code section 381, possession and/or under the influence of toluene (glue, paint, etc.);
- Penal Code section 647(f), public intoxication controlled substances (other than alcohol);
- Business & Professions Code section 4060, possession of a controlled substance without a prescription.
In addition to one or more of the above offenses being charged, the following conditions must be met:
- No prior controlled substance conviction;
- There are no charges that include acts of violence or threats of violence;
- There is no evidence of controlled substance violations other than the ones listed above;
- The person has not had probation or parole revoked without a subsequent completion of probation or parole;
- The person has not previously engaged in diversion or deferred entry of judgement within five years of the current offense; and
- The person has not suffered a felony conviction within five years of the current offense.
(See Penal Code section 1000.)
If a person is eligible and agrees to accept diversion, the court will require a guilty plea to the charges. Sentencing is then continued while the person completes a treatment program. If the person successfully completes the treatment program, the court will dismiss the charges.
According to Penal Code section 1000.4, “Upon successful completion of a deferred entry of judgement program, the arrest upon which the judgement was deferred shall be deemed to have never occurred. The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted deferred entry of judgement for the offense, except as specified in subdivision (b).”
Subdivision (b) states that even if the person successfully completed deferred entry of judgement, he or she must disclose the arrest when asked for any application for a peace officer position as defined in Penal Code section 830.
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