Sacramento Criminal Defense Lawyer Blog

The Sacramento Bee on July 26 published an article that documents the rising abuse of OxyContin by many people in their teens and 20s.

OxyContin is a prescription pain killer that's derived from opium and has been on the market since 1995. Many young people try it because it can be ingested merely by swallowing a pill and lacks the stigma associated with other drugs such as heroine or cocaine. It is highly addictive, however, and can result in a physical dependence within a few weeks.

The Bee's article gives a valuable profile of the dangers of abuse of OxyContin. What we would add is that Diversion (also known as Deferred Entry of Judgment) and Proposition 36 provide alternatives to incarceration for people arrested for illegal use of OxyContin and other prescription medications. These programs - intended for people accused of drug use or possession, not drug manufacture, sale, or trafficking - allow the possibility of avoiding a conviction in exchange for completion of a drug treatment program.

For a complete description of Diversion (Deferred Entry of Judgment), see our July 9 post. For a complete description of Proposition 36, see our July 15 post.

Teens, Young Adults Abuse OxyContin in Northern California, Sacramento Bee, Monday, July 26, 2010

The Department of Motor Vehicles has issued a memo that states that all people convicted of DUI in Sacramento County - regardless of their county of residence - will be required to install Ignition Interlock Devices on their vehicles as part of a test program created under Vehicle Code 23700. Sacramento County is one of four counties in California - including Los Angeles, Alameda, and Tulare - that were required by the passage last year of AB 91 to establish these DUI test programs for evaluation through 2016.

The memo (Occupational Licensing Industry News - OLIN 2010-08) specifically declares:

Individuals convicted of driving under the influence (DUI) under Vehicle Code (VC) §§23152, 23153, or Penal Code (PC) §191.5(b) in one of the four pilot counties must install a certified IID on any vehicle that he/she owns or operates, before a driver license can be issued, reissued, or the driving privilege reinstated. The IID requirement is determined if the conviction occurs in one of the four pilot counties; not the driver's county of residence.

Occupational Licensing Industry News - OLIN 2010-08

Three local police departments have announced that they will be conducting traffic checkpoints the night of Friday, July 13. The Sacramento, Folsom, and Rancho Cordova police departments are all using grants from the California Office of Traffic Safety and the National Highway Traffic Safety Administration to fund these efforts to check drivers for sobriety, as well as valid driver's licenses.

Folsom PD will run its checkpoint from 7:00 PM to 3:00 AM and Rancho Cordova PD will run its from 8:00 PM to 2:00 PM. Sacramento PD has not stated when its checkpoint will begin and end. At this point, the precise locations for each checkpoint have not been made public.

As always, we advise you to take the steps necessary to keep yourself and others safe if you plan on going out drinking tomorrow night. That means, choose a designated driver, put taxi phone numbers into your cell phone, hire a limo, or take public transportation. Police and prosecutors in the Sacramento region treat DUIs severely. A few minutes spent planning or a few dollars spent on transportation can save you a lot of money and aggravation by avoiding arrest for driving while intoxicated.

Folsom PD press release
Sacramento PD press release
Rancho Cordova press release

Effective July 1, 2010, Vehicle Code Section 13352 was amended to incorporate the provisions of SB 598 and SB 895, laws enacted by the legislature and governor providing for shorter license suspension periods for 2nd and 3rd DUIs in exchange for installation of Ignition Interlock Devices. It is important to remember that this is a statewide law and is distinct from the Ignition Interlock Device test program that is being run in Sacramento, Los Angeles, Tulare, and Alameda counties. Click here for details on that program, detailed in VC 23700.

VC 13352(a)(3) states that drivers convicted of a second DUI within a ten year period may get a restricted license after 90 days if they install Ignition Interlock Devices (IID) on their vehicles. (A restricted license allows driving to and from work and in the course of employment, and to and from DUI related education classes.) If IIDs are not installed, the term of license suspension is two years.

VC 13352(a)(5) states that drivers convicted of a third DUI within a ten year period may get a restricted license after six months if they install IIDs on their vehicles. If IIDs are not installed, the term of suspension is three years.

Driving under the influence offenses that involve reckless driving, drugs, injuries, or factors can result in enhanced penalties.

The following requirements must be met to qualify for a restricted license under VC 13352:

• Proof of enrollment in, and continuing satisfactory participation in, an 18 month or 30 month DUI education program;
• Proof of installation of an Ignition Interlock Device;
• Proof of insurance;
• Payment of all related fees and of all administrative costs associated with the new law's provisions.

As mentioned in previous blog posts, we are still waiting for a statement from DMV about to whom precisely the law will apply. We will post that information as soon as it becomes available.

Proposition 36, passed by California voters in 2000, provides some people accused of non-violent possession or use of illegal drugs the opportunity to undergo drug treatment rather than be sentenced to jail or prison. Codified in Penal Code 1210.1, Proposition 36 is similar to Deferred Entry of Judgment - described in the July 9 post - though it differs in several ways. Like Deferred Entry of Judgment, PC 1210.1 is intended only for people accused of drug use or possession. It is not an option for those accused of drug manufacture, sale, or trafficking.

The program works like this. The defendant agrees to plead guilty to the drug possession or use charge, and a conviction is placed on his/her criminal record. Instead of being sentenced to jail or prison, however, the defendant is placed on probation with the stipulation that he/she completes a drug treatment program. Additional requirements - such as counseling or community service - may also be imposed.

If all of the terms of probation are fulfilled, the judge orders the conviction replaced with a dismissal. Significantly, PC 1210.1(e)(1) holds that "both the arrest and the conviction shall be deemed never to have occurred." This means that the defendant does not have to disclose the incident to questions that might arise in the course of an application for employment. (An exception to this is when applying for a position as a peace officer.)

Because the guidelines for PC 1210.1 are complicated, it's important to speak with an experienced criminal defense attorney to see if you qualify. For example, those who do not qualify include people who used a deadly weapon while under the influence of drugs, refused to undergo drug treatment as a requirement of probation, or have undergone treatment twice before under PC 1210.1. Moreover, the program is not an option for many people convicted of serious felonies, though it might be available for them if during the previous five years they have not been imprisoned and have not been convicted of a felony other than a non-violent drug possession.

Deferred Entry of Judgment under PC 1000 - commonly referred to as Diversion - gives people accused of drug possession or use the opportunity to undergo drug treatment rather than be sentenced to jail or prison, as well as the possibility of keeping a conviction off of their records. The program is designed as an option for those arrested for drug use or possession; it is not available for people accused of selling, manufacturing, or trafficking drugs.

To qualify for Deferred Entry of Judgment (DEJ) / Diversion, the defendant must meet several requirements, including:

• No prior convictions for drug possession;
• No element of violence in the current offense;
• No outstanding probation or parole violations;
• No participation in a diversion or deferred entry of judgment program in the previous five years;
• No prior felony convictions in the previous five years.

Under DEJ, the defendant agrees to plead guilty to the drug possession or use charges in exchange for the deferred entry of judgment from the court. What this means is that the judge agrees to wait 18 months to 3 years before entering the final judgment for the case. During that time, the defendant completes a drug treatment program and maintains a clean criminal record. If these conditions are met, the judge "sets aside" the original guilty plea. This means that no conviction is recorded on the defendant's record.

Successfully meeting the terms of the program even means that the arrest for drug possession or use is considered to have never happened. This can obviously be beneficial in instances when a person is questioned about his/her criminal history, such as when applying for employment. (An exception to this is when a person applies for a position as a peace officer.)

Deferred Entry of Judgment / Diversion is a good option for many people arrested for drug use or possession. If you have questions about Deferred Entry of Judgment programs, contact a defense lawyer with extensive experience in this area.