Legislation proposed to classify simple drug possession as a “wobbler”

In early May 2013, the California Senate approved legislation that would classify non-violent, low-level drug offenses as so-called "wobblers." This means that prosecutors and judges would have the discretion to charge the offense as a misdemeanor or a felony, potentially altering the consequences for those convicted of a drug crime and allowing more people to go to drug addiction treatment if they need it instead of going to prison.

Bill seeks to change drug offense to a wobbler

Senator Mark Leno (D-San Francisco) introduced the legislation with the intention to help more people convicted of a low-level, non-violent drug offense get treatment and to reduce the number of people sent to California prisons, which are already so overcrowded that the state is under a federal order to reduce its prison population and improve prison conditions.

Under current law, a crime relating to drug possession can be an infraction, a misdemeanor, a wobbler or a felony. An infraction carries the least severe punishment, whereas a felony conviction can have significant consequences. Whether a drug possession offense is a felony or other category depends on the drug and the amount, and some offenses are called "wobblers" because they can be charged as either a felony or a misdemeanor.

For example, possession of 28.5 grams or less of marijuana by someone over age 18 who is not on school grounds is an infraction in California. However, possession of cocaine is a felony offense, while possession of methamphetamine is a wobbler - it may be charged as a felony or as a misdemeanor, at the prosecutor's discretion.

The proposed legislation would make simple drug possession cases other than marijuana possession wobblers, so someone charged with a simple drug possession offense could be charged with a felony or a misdemeanor. The law would not change for offenses relating to manufacturing or selling drugs, and there are different laws for simple marijuana possession cases because it is an infraction.

According to the Huffington Post, Sen. Leno said that allowing some offenses to be charged as misdemeanors rather than felonies would provide more flexibility to avoid sentencing people to long prison terms in cases when what they really need is drug treatment. Sen. Leno expects that sending people to treatment instead of prison when appropriate would free up $159 million for those rehabilitation programs each year.

Of course, the legislation must still be passed by the Assembly and signed by Gov. Brown before it becomes law, and none of that is certain. If you have been charged with a drug crime or are wondering how "wobblers" may affect you, contact an experienced criminal defense attorney.