as amended, Evans. Controlled substances: destruction of seized
begin delete marijuana: cause of action.end delete
(1) Existingend delete
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.
(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.end delete
Existing law, the Government Claims Act, sets forth the general procedure for the presentation of claims for money or damages against the state, a judicial branch entity, or a local public entity.end delete
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. This bill would require a claim made pursuant to these provisions to be presented in accordance with the Government Claims Act within 6 months after the date of acquittal or dismissal of the case.end delete
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 11362.85 is added to the Health and Safety
2Code, to read:
In a criminal prosecution in which the defendant
4was acquitted or the case was dismissed based on a defense or
5protection provided under Section 11362.5 or this article, upon
6the order of the court, the following shall apply:
7(a) Any marijuana, instrument, or paraphernalia seized in the
8case that was lawfully possessed by the defendant shall be returned
9to him or her.
10(b) If any marijuana, instrument, or paraphernalia seized in the
11case that was lawfully possessed by the defendant was damaged
12or destroyed, the defendant shall receive reasonable compensation
13for the damage or loss.
14(c) A claim made pursuant to this section shall be presented in
15accordance with Division 3.6 (commencing with Section 810) of
16Title 1 of the Government Code not later than six months after the
17date of acquittal or dismissal of the case.
Section 11479 of the Health and Safety Code is
20amended to read:
Notwithstanding Sections 11473 and 11473.5, at any
22time after seizure by a law enforcement agency of a suspected
23controlled substance, that amount in excess of 10 pounds in gross
24weight, and in the case of growing or harvested marijuana, only
25that amount in excess of two pounds, may be destroyed without a
26court order by the chief of the law enforcement agency or a
27designated subordinate. Destruction shall not take place pursuant
28to this section until all of the following requirements are satisfied:
29(a) At least five random and representative samples have been
30taken, for evidentiary purposes, from the total amount of suspected
31controlled substances to be destroyed. These samples shall be in
32addition to the 10 pounds required above. When the suspected
33controlled substance consists of growing or harvested marijuana
34plants, at least one two-pound sample (which may include stalks,
35branches, or leaves) and five representative samples consisting of
36leaves or buds shall be retained for evidentiary purposes from the
37total amount of suspected controlled substances to be destroyed.
38(b) Photographs have been taken that reasonably demonstrate
39the total amount of the suspected controlled substance to be
P4 1(c) The gross weight of the suspected controlled substance has
2been determined, either by actually weighing the suspected
3controlled substance or by estimating that weight after dimensional
4measurement of the total suspected controlled substance.
5(d) The chief of the law enforcement agency has determined
6that it is not reasonably possible to preserve the suspected
7controlled substance in place, or to remove the suspected controlled
8substance to another location. In making this determination, the
9difficulty of transporting and storing the suspected controlled
10substance to another site and the storage facilities may be taken
12Subsequent to any destruction of a suspected controlled substance
13pursuant to this section, an affidavit shall be filed within 30 days
14in the court that has jurisdiction over any pending criminal
15proceedings pertaining to that suspected controlled substance,
16reciting the applicable information required by subdivisions (a),
17(b), (c), and (d) together with information establishing the location
18of the suspected controlled substance, and specifying the date and
19time of the destruction. In the event that there are no criminal
20proceedings pending that pertain to that suspected controlled
21substance, the affidavit may be filed in any court within the county
22that would have jurisdiction over a person against whom those
23criminal charges might be filed.