BILL NUMBER: SB 1193 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 20, 2014
AMENDED IN SENATE MAY 14, 2014
AMENDED IN SENATE APRIL 23, 2014
INTRODUCED BY Senator Evans
FEBRUARY 20, 2014
An act to amend Sections 11473.5 and 11479 of the Health and
Safety Code, relating to controlled substances.
LEGISLATIVE COUNSEL'S DIGEST
SB 1193, as amended, Evans. Controlled substances: destruction of
seized marijuana: cause of action.
(1) Existing law, the Uniform Controlled Substances Act, includes
provisions authorizing the forfeiture and seizure of property
involved in, or purchased with the proceeds from, a controlled
substance offense. Existing law authorizes the destruction of seized
substances suspected to be controlled substances in excess of 10
pounds in gross weight, subject to specified requirements.
Existing law requires that, prior to destruction of a suspected
controlled substance, the law enforcement agency take at least 5
random and representative samples, for evidentiary purposes, from the
total amount of suspected controlled substances to be destroyed in
addition to the 10 pounds the law enforcement agency is required to
retain.
Existing law requires, when the suspected controlled substance
consists of growing or harvested marijuana plants, at least one
10-pound sample (which may include stalks, branches, or leaves) and 5
representative samples consisting of leaves or buds to be retained
for evidentiary purposes from the total amount of suspected
controlled substances to be destroyed by the law enforcement agency.
This bill would instead require that, prior to the destruction of
growing or harvested marijuana plants, the law enforcement agency
take at least one 2-pound sample and 5 random and representative
samples, and would authorize the agency to destroy the remainder. The
bill would require that counsel for the defendant have an
opportunity to examine the 2-pound sample and 5 representative
samples for 30 days from the date the growing or harvested marijuana
was seized if there are criminal proceedings pending which
that pertain to the seized marijuana to be
destroyed. By imposing additional duties on local law enforcement
entities, this bill would impose a state-mandated local program.
(2) Existing law requires all seizures of controlled substances,
instruments, or paraphernalia used for unlawfully using or
administering a controlled substance that are in the possession of a
city, county, or state official as a result of a case in which no
trial was had or which has been disposed of by way of dismissal or
otherwise than by way of conviction be destroyed by order of the
court unless the court finds that the controlled substances,
instruments, or paraphernalia were lawfully possessed by the
defendant.
This bill would require that any marijuana, instrument, or
paraphernalia seized that was lawfully possessed by a defendant be
returned to the defendant upon the order of the court if
the case is dismissed or the defendant is acquitted based on a
defense or protection provided in the Compassionate Use Act of 1996
or the Medical Marijuana Program, as provided. If the marijuana,
instrument, or paraphernalia that was lawfully possessed by the
defendant was damaged or destroyed, the bill would entitle the
defendant to receive reasonable compensation for the damage or loss.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11473.5 of the Health and Safety Code is
amended to read:
11473.5. (a) All seizures of controlled substances, instruments,
or paraphernalia used for unlawfully using or administering a
controlled substance that are in possession of a city, county, or
state official as found property, or as the result of a case in which
no trial was had or which has been disposed of by way of dismissal
or otherwise than by way of conviction, shall be destroyed by order
of the court, unless the court finds that the controlled substances,
instruments, or paraphernalia were lawfully possessed by the
defendant.
(b) In a criminal prosecution in which the defendant was acquitted
or the case dismissed based on a defense or protection provided
under Section 11362.5 or Article 2.5 (commencing with Section
11362.7) of Chapter 6, upon the order of the court, the
following shall apply:
(1) Any marijuana, instrument, or paraphernalia seized in the case
that was lawfully possessed by the defendant shall be returned to
him or her.
(2) If any marijuana, instrument, or paraphernalia seized in
the case that was lawfully possessed by the defendant was
damaged or destroyed, the defendant shall receive reasonable
compensation for the damage or loss.
(3) A claim pursuant to this subdivision shall be presented not
later than six months after acquittal or dismissal in the case.
(c) If the court finds that the property was not lawfully
possessed by the defendant, law enforcement may request of the court
that certain uncontaminated instruments or paraphernalia be
relinquished to a school or school district for science classroom
education in lieu of destruction.
SEC. 2. Section 11479 of the Health and Safety Code is amended to
read:
11479. Notwithstanding Section 11473 and subdivisions (a) and (c)
of Section 11473.5, at any time after seizure by a law enforcement
agency of a suspected controlled substance, that amount in excess of
10 pounds in gross weight, and in the case of growing or harvested
marijuana, only that amount in excess of two pounds, may be destroyed
without a court order by the chief of the law enforcement agency or
a designated subordinate. Destruction shall not take place pursuant
to this section until all of the following requirements are
satisfied:
(a) At least five random and representative samples have been
taken, for evidentiary purposes, from the total amount of suspected
controlled substances to be destroyed. These samples shall be in
addition to the 10 pounds required above. When the suspected
controlled substance consists of growing or harvested marijuana
plants, at least one two-pound sample (which may include stalks,
branches, or leaves) and five representative samples consisting of
leaves or buds shall be retained for evidentiary purposes from the
total amount of suspected controlled substances to be destroyed and
counsel for the defendant shall have 30 days from the date the
growing or harvested marijuana was seized to examine the two-pound
sample and five representative samples if there are criminal
proceedings pending which that pertain
to the seized growing or harvested marijuana to be destroyed.
(b) Photographs have been taken which that
reasonably demonstrate the total amount of the suspected
controlled substance to be destroyed.
(c) The gross weight of the suspected controlled substance has
been determined, either by actually weighing the suspected controlled
substance or by estimating that weight after dimensional measurement
of the total suspected controlled substance.
(d) The chief of the law enforcement agency has determined that it
is not reasonably possible to preserve the suspected controlled
substance in place, or to remove the suspected controlled substance
to another location. In making this determination, the difficulty of
transporting and storing the suspected controlled substance to
another site and the storage facilities may be taken into
consideration.
Subsequent to any destruction of a suspected controlled substance
pursuant to this section, an affidavit shall be filed within 30 days
in the court which that has
jurisdiction over any pending criminal proceedings pertaining to that
suspected controlled substance, reciting the applicable information
required by subdivisions (a), (b), (c), and (d) together with
information establishing the location of the suspected controlled
substance, and specifying the date and time of the destruction. In
the event that there are no criminal proceedings pending
which that pertain to that suspected controlled
substance, the affidavit may be filed in any court within the county
which th at would have
jurisdiction over a person against whom those criminal charges might
be filed.
SEC. 3. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.