Drug Diversion, “deferred entry of judgment” or “DEJ” (Penal Code § 1000) provides eligible defendants charged with certain non-violent, drug-related crimes with the alternative of drug treatment and counseling in place of a criminal conviction and potential incarceration or other punishment.

Under Drug Diversion alternative, the defendant pleads “guilty” to the drug offense then entry of judgment against the defendant on the guilty plea is deferred (not entered by the court) while the defendant attends a qualifying drug treatment program. If the defendant successfully completes the program as well as any other conditions imposed by the court, the case is dismissed in its entirety (even though the defendant had previously entered a guilty plea).

Drug Diversion may be an excellent alternative for a variety of reasons, but especially because it keeps the defendant out of custody and keeps a conviction off of the defendant’s record. It also offers the opportunity for drug treatment that many drug offenders need to stay clean and out of trouble.

The Process for Receiving Penal Code § 1000 Drug Diversion

• The defendant requests Penal Code § 1000 Drug Diversion from the prosecutor
• The prosecutor determines if the defendant is eligible before the request is presented to the judge
• If the prosecutor determines that the defendant is eligible for Drug Diversion, the judge decides if it will be offered and the applicable terms and conditions
• The defendant may accept the terms and conditions of Drug Diversion if it is offered by pleading guilty to the charge
• Entry of judgment is “deferred” (no judgment is entered) pending successful completion of the drug program; if the program is successfully completed the case is dismissed.
• If the option of Drug Diversion is denied by the judge, the defendant may take steps to challenge the denial.

 Eligibility for Drug Diversion

Penal Code § 1000 Drug Diversion only applies to certain charged crimes and under certain circumstances. 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 a charge of other drug violations that do not qualify for Drug Diversion (for example, Driving Under the Influence of Drugs)

Drug-Related Charges Covered by Penal Code § 1000 Drug Diversion

Not all drug-related charges qualify for Drug Diversion. The charge must be a “personal use” type charge under the following statutes:

• Health & Safety (“H&S”) Code § 11350 – Possession of controlled substances and restricted drugs
• H&S Code § 11357 – Marijuana possession (possession of marijuana with the intent to sell or sales of marijuana do not qualify for diversion)
• H&S Code § 11358 – Cultivation of marijuana if the marijuana planted, harvested, dried or processed was for personal use.
• H&S Code § 11364 – Possession of paraphernalia
• H&S Code § 11365 – Presence during unlawful use of controlled substances
• H&S Code § 11368 – Use of forged or altered prescriptions to obtain a controlled substance for personal use
• H&S Code § 11377 – Possession of methamphetamine and other controlled substances
• H&S Code § 11550 – Use or under the influence of controlled substances
• Penal Code § 647(f) – Disorderly conduct while under the influence of a controlled substance
• Penal Code § 653(d) – Solicitation to commit a controlled substance offense if the controlled substance was intended for personal
• H&S Code § 11365 – Aiding, assisting or abetting the unlawful use of controlled substances

Dismissal of Charges Under Penal Code § 1000 Drug Diversion

When a defendant successfully completes the terms of Drug Diversion the drug charge must be dismissed by the court. The defendant can then honestly answer that they were never arrested or convicted of the drug offense (with some specific exceptions such as applicants seeking employment as a peace officer).

If the defendant does not successfully complete the drug diversion program, the court may choose to revoke Drug Diversion and impose a sentence on the drug charge.