Deferred Entry of Judgment versus Drug Program in Lieu of Incarceration

Many California licensees or professionals applying for an occupational or business license who have been convicted of drug-related offenses do not understand the consequences of their conviction. More often than not, the licensing authority – whether a state licensing Board or local licensing agency – will deem the conviction substantially related to the profession, and either deny the license or discipline the licensee. For example, if you apply for a license with the Gambling Control Commission, the type of drug conviction you have affects how you would answer conviction-related questions on your application. Thus, it is essential for anyone convicted of a drug-related offense or about to plea to a drug-related offense to understand the interchange between state licensure and your conviction or plea.

Deferred Entry of Judgment

In March of 2000, the voters of California passed Proposition 21, the “Gang Violence and Juvenile Crime Prevention Act of 1998.” The passage of Proposition 21 created what is now called Deferred Entry of Judgment (“DEJ”). Under Penal Code §§ 1000, et seq, a court may defer judgment for certain novice drug offenders and divert the defendant from the normal criminal process for drug treatment. Thus, a defendant charged with specified drug offenses may participate in a drug education and treatment program in lieu of undergoing a criminal prosecution.
Under the Penal Code statutes, the accused is required to enter a guilty plea and formal judgment is deferred. Once a diversion order is entered, no trial or other criminal proceeding remains pending. A defendant’s plea of guilty pursuant to a deferred entry of judgment program does not constitute a conviction for any purpose unless a judgment is entered pursuant to the defendant’s failure to successfully complete the program.[1]
After successfully completion of a deferred entry of judgment program, “the arrest upon which the judgment was deferred shall be deemed to have never occurred.”[2] This means:

  1. An applicant for employment, other than a peace officer, can truthfully state he or she has never been arrested or granted deferred entry of judgment for the offense; [3] and,
  2. The arrest record cannot be used in any way to affect employment, benefit or a professional license or certificate.[4]


DEJ versus Conviction under Penal Code Section 1210.1

In November of 2000, the voters of California passed Proposition 36, the “Substance Abuse and Crime Prevention Act of 2000.” The passage of Proposition 36 provided that under Penal Code §1210.1, a defendant charged with specified drug offenses will participate in a drug education and treatment program in lieu of incarceration.
Under Penal Code section 1210.1, upon successful completion of the program, the conviction may be set aside and case dismissed.[5] This section further provides that “both the arrest and the conviction shall be deemed never to have occurred.”[6] The defendant will then “be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.”[7]
Penal Code 1210.1 then provides that a 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.” Furthermore, “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
The nuances between a Deferred Entry of Judgment and a conviction under Penal Code section 1210.1 are almost undetectable for a licensee or future applicant as Penal Code 1210.1 also recognizes that a licensing Board or agency cannot use this conviction to deny a person their license.[9]
However, under Penal Code Section 1210.1, a person is required to disclose his conviction on state applications.[10]  The Penal Code provides that under a PC 1210.1 conviction, dismissal of an action “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.”
It is extremely important a person understands the nuances between these two criminal convictions when filling out any application for state or local agency licensure. While the conviction itself cannot be used in any way that could result in denial of any employment, benefit, license, or certificate, if a person fails to disclose their PC 1210.1 drug offense, this is cause for denial of one’s license.

[1] Penal Code § 1000.1(d).
2 Penal Code § 1000.4.
3 Ibid.
4 Id.
5 Penal Code § 1210.1(e)(1).
[6] Ibid.
[7] Id.
[8] Ibid.
[9] Penal Code § 1210.1(e)(3).
[10] Id.