Wednesday, February 5, 2003
Page 1
Proposition 36 Held to Bar Jail for Failing to Report for Drug Test
By ROBERT GREENE, Associate Editor
A court may not order a drug defendant to jail for failing once or twice to report to a probation officer for a required drug test, this district’s Court of Appeal ruled yesterday.
An order to take a drug test is a “drug-related condition” of probation under Proposition 36, just like drug treatment, and the 2000 initiative that reshapes California’s administration of criminal justice for drug dealers bars jail time the first or second time a defendant falters, Justice Laurence D. Rubin of Div. Eight wrote.
Probation conditions not deemed to be drug-related do not get the same lenient treatment. But Rubin rejected Los Angeles District Attorney Steve Cooley’s argument that reporting for a drug test should be treated just like any other failure to report to a probation officer—as a non-drug-related probation condition.
“Probation officers may require defendants on probation for drug-related offenses to meet with them for non-drug-related purposes,” Rubin acknowledged in a footnote. “For example, such appointments might be related to a probationer’s obligation to maintain a residence or employment approved by the probation officer, participate in other types of counseling programs, and satisfactorily comply with probation generally. We hold here only that when the probation violation is the failure to appear for an appointment to be tested, then the appointment is a drug-related condition.”
Habeas Corpus
The court granted a writ of habeas corpus to Allen Raymond Taylor, a defendant ordered to jail by Los Angeles Superior Court Judge Charles D. Sheldon after failing to report for his drug test.
Taylor already had violated probation by failing to appear for tests and by testing positive for cocaine.
Concluding Taylor’s failure to report the second time did not involve a drug-related condition of probation, Sheldon reinstated probation but ordered Taylor to serve 180 days in jail.
Proposition 36, also known as the Substance Abuse and Crime Prevention Act, was passed by 61 percent of California voters on Nov. 7, 2000. The measure changed sentencing laws to require defendants convicted for the first or second time of “non-violent drug possession” to be sentenced to probation and drug treatment instead of incarceration or probation without treatment. Offenders who refuse treatment or are found by courts to be “unamenable” to treatment are excluded.
Treatment Offered
Drug offenders who violate probation or parole must be given an opportunity to complete drug treatment in their community and not be incarcerated, unless they are found to pose a danger to the community. Drug offenders may receive up to a year of treatment.
The law took effect in July 2001, two months after Taylor pled guilty to felony possession of cocaine. But it applies retroactively to past offenders, so Taylor was governed by its terms.
Rubin noted that Proposition 36 defines “drug-related conditions of probation” broadly.
“It involves no linguistic or logical stretch to deem a probationer’s obligation to take drug tests a part of his treatment regimen, because tests permit authorities to monitor a probationer’s compliance with the program by ensuring he is abstaining from illegal drugs,” Rubin said. “Because one cannot be tested unless one shows up for the test, it follows that a drug treatment regimen includes appearing for tests. Appearing (or failing to appear) for a drug test thus satisfies the definition of a drug-related condition of probation.”
The case is In re Taylor, B161535.
Copyright 2003, Metropolitan News Company