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California Penal Code Section 1210.1

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1210.1.  (a) Notwithstanding any other provision of law, and except
as provided in subdivision (b), any person convicted of a nonviolent
drug possession offense shall receive probation. As a condition of
probation the court shall require participation in and completion of
an appropriate drug treatment program. The court shall impose
appropriate drug testing as a condition of probation. The court may
also impose, as a condition of probation, participation in vocational
training, family counseling, literacy training and/or community
service. A court may not impose incarceration as an additional
condition of probation. Aside from the limitations imposed in this
subdivision, the trial court is not otherwise limited in the type of
probation conditions it may impose. Probation shall be imposed by
suspending the imposition of sentence. No person shall be denied the
opportunity to benefit from the provisions of the Substance Abuse and
Crime Prevention Act of 2000 based solely upon evidence of a
co-occurring psychiatric or developmental disorder. To the greatest
extent possible, any person who is convicted of, and placed on
probation pursuant to this section for a nonviolent drug possession
offense shall be monitored by the court through the use of a
dedicated court calendar and the incorporation of a collaborative
court model of oversight that includes close collaboration with
treatment providers and probation, drug testing commensurate with
treatment needs, and supervision of progress through review hearings.
   In addition to any fine assessed under other provisions of law,
the trial judge may require any person convicted of a nonviolent drug
possession offense who is reasonably able to do so to contribute to
the cost of his or her own placement in a drug treatment program.
   (b) Subdivision (a) shall not apply to any of the following:
   (1) Any defendant who previously has been convicted of one or more
violent or serious felonies as defined in subdivision (c) of Section
667.5 or subdivision (c) of Section 1192.7, respectively, unless the
nonviolent drug possession offense occurred after a period of five
years in which the defendant remained free of both prison custody and
the commission of an offense that results in a felony conviction
other than a nonviolent drug possession offense, or a misdemeanor
conviction involving physical injury or the threat of physical injury
to another person.
   (2) Any defendant who, in addition to one or more nonviolent drug
possession offenses, has been convicted in the same proceeding of a
misdemeanor not related to the use of drugs or any felony.
   (3) Any defendant who, while armed with a deadly weapon, with the
intent to use the same as a deadly weapon, unlawfully possesses or is
under the influence of any controlled substance identified in
Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety
Code.
   (4) Any defendant who refuses drug treatment as a condition of
probation.
   (5) Any defendant who has two separate convictions for nonviolent
drug possession offenses, has participated in two separate courses of
drug treatment pursuant to subdivision (a), and is found by the
court, by clear and convincing evidence, to be unamenable to any and
all forms of available drug treatment, as defined in subdivision (b)
of Section 1210. Notwithstanding any other provision of law, the
trial court shall sentence that defendant to 30 days in jail.
   (c) (1) Any defendant who has previously been convicted of at
least three non-drug-related felonies for which the defendant has
served three separate prison terms within the meaning of subdivision
(b) of Section 667.5 shall be presumed eligible for treatment under
subdivision (a). The court may exclude the defendant from treatment
under subdivision (a) where the court, pursuant to the motion of the
prosecutor or its own motion, finds that the defendant poses a
present danger to the safety of others and would not benefit from a
drug treatment program. The court shall, on the record, state its
findings, the reasons for those findings.
   (2) Any defendant who has previously been convicted of a
misdemeanor or felony at least five times within the prior 30 months
shall be presumed to be eligible for treatment under subdivision (a).
The court may exclude the defendant from treatment under subdivision
(a) if the court, pursuant to the motion of the prosecutor, or on
its own motion, finds that the defendant poses a present danger to
the safety of others or would not benefit from a drug treatment
program. The court shall, on the record, state its findings and the
reasons for those findings.
   (d) Within seven days of an order imposing probation under
subdivision (a), the probation department shall notify the drug
treatment provider designated to provide drug treatment under
subdivision (a). Within 30 days of receiving that notice, the
treatment provider shall prepare a treatment plan and forward it to
the probation department for distribution to the court and counsel.
The treatment provider shall provide to the probation department
standardized treatment progress reports, with minimum data elements
as determined by the department, including all drug testing results.
At a minimum, the reports shall be provided to the court every 90
days, or more frequently, as the court directs.
   (1) If at any point during the course of drug treatment the
treatment provider notifies the probation department and the court
that the defendant is unamenable to the drug treatment being
provided, but may be amenable to other drug treatments or related
programs, the probation department may move the court to modify the
terms of probation, or on its own motion, the court may modify the
terms of probation after a hearing to ensure that the defendant
receives the alternative drug treatment or program.
   (2) If at any point during the course of drug treatment the
treatment provider notifies the probation department and the court
that the defendant is unamenable to the drug treatment provided and
all other forms of drug treatment programs pursuant to subdivision
(b) of Section 1210, the probation department may move to revoke
probation. At the revocation hearing, if it is proved that the
defendant is unamenable to all drug treatment programs pursuant to
subdivision (b) of Section 1210, the court may revoke probation.
   (3) Drug treatment services provided by subdivision (a) as a
required condition of probation may not exceed 12 months, unless the
court makes a finding supported by the record, that the continuation
of treatment services beyond 12 months is necessary for drug
treatment to be successful. If that finding is made, the court may
order up to two six-month extensions of treatment services. The
provision of treatment services under the Substance Abuse and Crime
Prevention Act of 2000 shall not exceed 24 months.
   (e) (1) At any time after completion of drug treatment and the
terms of probation, the court shall conduct a hearing, and if the
court finds that the defendant successfully completed drug treatment,
and substantially complied with the conditions of probation,
including refraining from the use of drugs after the completion of
treatment, the conviction on which the probation was based shall be
set aside and the court shall dismiss the indictment, complaint, or
information against the defendant. In addition, except as provided in
paragraphs (2) and (3), both the arrest and the conviction shall be
deemed never to have occurred. The defendant may additionally
petition the court for a dismissal of charges at any time after
completion of the prescribed course of drug treatment. Except as
provided in paragraph (2) or (3), the defendant shall thereafter be
released from all penalties and disabilities resulting from the
offense of which he or she has been convicted.
   (2) Dismissal of an indictment, complaint, or information pursuant
to paragraph (1) does not permit a person to own, possess, or have
in his or her custody or control any firearm capable of being
concealed upon the person or prevent his or her conviction under
Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of
Part 6.
   (3) Except as provided below, after an indictment, complaint, or
information is dismissed pursuant to paragraph (1), the defendant may
indicate in response to any question concerning his or her prior
criminal record that he or she was not arrested or convicted for the
offense. Except as provided below, a record pertaining to an arrest
or conviction resulting in successful completion of a drug treatment
program under this section may not, without the defendant's consent,
be used in any way that could result in the denial of any employment,
benefit, license, or certificate.
   Regardless of his or her successful completion of drug treatment,
the arrest and conviction on which the probation was based may be
recorded by the Department of Justice and disclosed in response to
any peace officer application request or any law enforcement inquiry.
Dismissal of an information, complaint, or indictment under this
section does not relieve a defendant of the obligation to disclose
the arrest and conviction in response to any direct question
contained in any questionnaire or application for public office, for
a position as a peace officer as defined in Section 830, for
licensure by any state or local agency, for contracting with the
California State Lottery, or for purposes of serving on a jury.
   (f) (1) If probation is revoked pursuant to the provisions of this
subdivision, the defendant may be incarcerated pursuant to otherwise
applicable law without regard to the provisions of this section. The
court may modify or revoke probation if the alleged violation is
proved.
   (2) If a defendant receives probation under subdivision (a), and
violates that probation either by committing an offense that is not a
nonviolent drug possession offense, or by violating a
non-drug-related condition of probation, and the state moves to
revoke probation, the court may remand the defendant for a period not
exceeding 30 days during which time the court may receive input from
treatment, probation, the state, and the defendant, and the court
may conduct further hearings as it deems appropriate to determine
whether or not probation should be reinstated under this section. If
the court reinstates the defendant on probation, the court may modify
the treatment plan and any other terms of probation, and continue
the defendant in a treatment program under the Substance Abuse and
Crime Prevention Act of 2000. If the court reinstates the defendant
on probation, the court may, after receiving input from the treatment
provider and probation, if available, intensify or alter the
treatment plan under subdivision (a), and impose sanctions, including
jail sanctions not exceeding 30 days, a tool to enhance treatment
compliance.
   (3) (A) If a defendant receives probation under subdivision (a),
and violates that probation either by committing a nonviolent drug
possession offense, or a misdemeanor for simple possession or use of
drugs or drug paraphernalia, being present where drugs are used, or
failure to register as a drug offender, or any activity similar to
those listed in subdivision (d) of Section 1210, or by violating a
drug-related condition of probation, and the state moves to revoke
probation, the court shall conduct a hearing to determine whether
probation shall be revoked. The trial court shall revoke probation if
the alleged probation violation is proved and the state proves by a
preponderance of the evidence that the defendant poses a danger to
the safety of others. If the court does not revoke probation, it may
intensify or alter the drug treatment plan and in addition, if the
violation does not involve the recent use of drugs as a circumstance
of the violation, including, but not limited to, violations relating
to failure to appear at treatment or court, noncompliance with
treatment, and failure to report for drug testing, the court may
impose sanctions including jail sanctions that may not exceed 48
hours of continuous custody as a tool to enhance treatment compliance
and impose other changes in the terms and conditions of probation.
The court shall consider, among other factors, the seriousness of the
violation, previous treatment compliance, employment, education,
vocational training, medical conditions, medical treatment, including
narcotics replacement treatment, and including the opinion of the
defendant's licensed and treating physician if immediately available
and presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in that type of facility, the
court may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.
   (B) If a defendant receives probation under subdivision (a), and
for the second time violates that probation either by committing a
nonviolent drug possession offense, or a misdemeanor for simple
possession or use of drugs or drug paraphernalia, being present where
drugs are used, or failure to register as a drug offender, or any
activity similar to those listed in subdivision (d) of Section 1210,
or by violating a drug-related condition of probation, and the state
moves to revoke probation, the court shall conduct a hearing to
determine whether probation shall be revoked. The trial court shall
revoke probation if the alleged probation violation is proved and the
state proves by a preponderance of the evidence either that the
defendant poses a danger to the safety of others or is unamenable to
drug treatment. In determining whether a defendant is unamenable to
drug treatment, the court may consider, to the extent relevant,
whether the defendant (i) has committed a serious violation of rules
at the drug treatment program, (ii) has repeatedly committed
violations of program rules that inhibit the defendant's ability to
function in the program, or (iii) has continually refused to
participate in the program or asked to be removed from the program.
If the court does not revoke probation, it may intensify or alter the
drug treatment plan, and may, in addition, if the violation does not
involve the recent use of drugs as a circumstance of the violation,
including, but not limited to, violations relating to failure to
appear at treatment or court, noncompliance with treatment, and
failure to report for drug testing, impose sanctions including jail
sanctions that may not exceed 120 hours of continuous custody as a
tool to enhance treatment compliance and impose other changes in the
terms and conditions of probation. The court shall consider, among
other factors, the seriousness of the violation, previous treatment
compliance, employment, education, vocational training, medical
conditions, medical treatment, including narcotics replacement
treatment, and including the opinion of the defendant's licensed and
treating physician if immediately available and presented at the
hearing, child support obligations, and family responsibilities. The
court shall consider additional conditions of probation, which may
include, but are not limited to, community service and supervised
work programs. If one of the circumstances of the violation involves
recent drug use, as well as other circumstances of violation, and the
circumstance of recent drug use is demonstrated to the court by
satisfactory evidence and a finding made on the record, the court
may, after receiving input from treatment and probation, if
available, direct the defendant to enter a licensed detoxification or
residential treatment facility, and if there is no bed immediately
available in the facility, the court may order that the defendant be
confined in a county jail for detoxification purposes only, if the
jail offers detoxification services, for a period not to exceed 10
days. Detoxification services must provide narcotic replacement
therapy for those defendants presently actually receiving narcotic
replacement therapy.
   (C) If a defendant receives probation under subdivision (a), and
for the third or subsequent time violates that probation either by
committing a nonviolent drug possession offense, or by violating a
drug-related condition of probation, and the state moves for a third
or subsequent time to revoke probation, the court shall conduct a
hearing to determine whether probation shall be revoked. If the
alleged probation violation is proved, the defendant is not eligible
for continued probation under subdivision (a) unless the court
determines that the defendant is not a danger to the community and
would benefit from further treatment under subdivision (a). The court
may then either intensify or alter the treatment plan under
subdivision (a) or transfer the defendant to a highly structured drug
court. If the court continues the defendant in treatment under
subdivision (a), or drug court, the court may impose appropriate
sanctions including jail sanctions as the court deems appropriate.
   (D) If a defendant on probation at the effective date of this act
for a nonviolent drug possession offense violates that probation
either by committing a nonviolent drug possession offense, or a
misdemeanor for simple possession or use of drugs or drug
paraphernalia, being present where drugs are used, or failure to
register as a drug offender, or any activity similar to those listed
in subdivision (d) of Section 1210, or by violating a drug-related
condition of probation, and the state moves to revoke probation, the
court shall conduct a hearing to determine whether probation shall be
revoked. The trial court shall revoke probation if the alleged
probation violation is proved and the state proves by a preponderance
of the evidence that the defendant poses a danger to the safety of
others. If the court does not revoke probation, it may modify or
alter the treatment plan, and in addition, if the violation does not
involve the recent use of drugs as a circumstance of the violation,
including, but not limited to, violations relating to failure to
appear at treatment or court, noncompliance with treatment, and
failure to report for drug testing, the court may impose sanctions
including jail sanctions that may not exceed 48 hours of continuous
custody as a tool to enhance treatment compliance and impose other
changes in the terms and conditions of probation. The court shall
consider, among other factors, the seriousness of the violation,
previous treatment compliance, employment, education, vocational
training, medical conditions, medical treatment, including narcotics
replacement treatment, and including the opinion of the defendant's
licensed and treating physician if immediately available and
presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in that type of facility, the
court may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.
   (E) If a defendant on probation at the effective date of this act
for a nonviolent drug possession offense violates that probation a
second time either by committing a nonviolent drug possession
offense, or a misdemeanor for simple possession or use of drugs or
drug paraphernalia, being present where drugs are used, or failure to
register as a drug offender, or any activity similar to those listed
in subdivision (d) of Section 1210, or by violating a drug-related
condition of probation, and the state moves for a second time to
revoke probation, the court shall conduct a hearing to determine
whether probation shall be revoked. The trial court shall revoke
probation if the alleged probation violation is proved and the state
proves by a preponderance of the evidence either that the defendant
poses a danger to the safety of others or that the defendant is
unamenable to drug treatment. If the court does not revoke probation,
it may modify or alter the treatment plan, and in addition, if the
violation does not involve the recent use of drugs as a circumstance
of the violation, including, but not limited to, violations relating
to failure to appear at treatment or court, noncompliance with
treatment, and failure to report for drug testing, the court may
impose sanctions including jail sanctions that may not exceed 120
hours of continuous custody as a tool to enhance treatment compliance
and impose other changes in the terms and conditions of probation.
The court shall consider, among other factors, the seriousness of the
violation, previous treatment compliance, employment, education,
vocational training, medical conditions, medical treatment including
narcotics replacement treatment, and including the opinion of the
defendant's licensed and treating physician if immediately available
and presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in that type of facility, the
court may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.
   (F) If a defendant on probation at the effective date of this act
for a nonviolent drug offense violates that probation a third or
subsequent time either by committing a nonviolent drug possession
offense, or by violating a drug-related condition of probation, and
the state moves for a third or subsequent time to revoke probation,
the court shall conduct a hearing to determine whether probation
shall be revoked. If the alleged probation violation is proved, the
defendant is not eligible for continued probation under subdivision
(a), unless the court determines that the defendant is not a danger
to the community and would benefit from further treatment under
subdivision (a). The court may then either intensify or alter the
treatment plan under subdivision (a) or transfer the defendant to a
highly structured drug court. If the court continues the defendant in
treatment under subdivision (a), or drug court, the court may impose
appropriate sanctions including jail sanctions.
   (g) The term "drug-related condition of probation" shall include a
probationer's specific drug treatment regimen, employment,
vocational training, educational programs, psychological counseling,
and family counseling.

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Last modified: March 17, 2014