California Laws Help Non-Citizens Avoid Collateral Immigration Consequences in Low Level Drug Cases

AB208 was passed to help those arrested and charged with low-level drug related offenses enter into a diversion program without having to first enter a guilty plea. Prior to the enactment of AB208, California Penal Code (PC) 1000 required those who qualified, to enter a guilty plea and then waive their time for sentencing in order to complete a drug program and remain law abiding. If successful, the case against the defendant would be totally dismissed without having sustained a conviction (among other benefits).

However, the old PC1000 program’s requirement of a guilty plea created issues for those defendants that were placed in immigration proceedings because immigration officials would consider the guilty plea, despite the fact that the defendant was never sentenced and was allowed to withdraw the guilty plea.

In response, AB208 was designed to address the collateral immigration consequences for those non-citizen PC1000 participants. Now, entering into a drug diversion program no longer requires a guilty plea. A defendant can obtain treatment and have their case dismissed without having to deal with the immigration officials using their guilty plea against them.

“Under the pretrial diversion program created by this bill, a qualifying defendant would enter a plea of not guilty and waive his or her right to a trial by jury, and proceedings would be suspended in order for the defendant to enter a drug treatment program for 12 to 18 months, or longer if requested by the defendant with good cause.”

But what about those defendants that have already completed the old PC1000 program and are facing, or have faced, adverse immigration consequences as a result?

The California legislature has also worked to address this issue with the passage of Penal Code 1203.43, which has essentially made the original PC1000 guilty plea “invalid.” The statute reads:

The Legislature finds and declares that the statement in Section 1000.4, that successful completion of a deferred entry of judgment program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate” constitutes misinformation about the actual consequences of making a plea in the case of some defendants, including all noncitizen defendants, because the disposition of the case may cause adverse consequences, including adverse immigration consequences…Accordingly, the Legislature finds and declares that based on this misinformation and the potential harm, the defendant’s prior plea is invalid.

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