BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 303|
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                                   THIRD READING 


          Bill No:  SB 303
          Author:   Hueso (D)
          Amended:  4/27/15  
          Vote:     21  

           SENATE PUBLIC SAFETY COMMITTEE:  6-0, 4/14/15
           AYES:  Hancock, Anderson, Leno, McGuire, Monning, Stone
           NO VOTE RECORDED:  Liu

           SUBJECT:   Controlled substances: destruction of seized  
                     marijuana


          SOURCE:    Author


          DIGEST:  This bill allows, in the case of growing or harvested  
          marijuana, a law enforcement agency to destroy without a court  
          order that amount in excess of 2 pounds, or the amount of  
          marijuana a medical marijuana patient or designated caregiver is  
          authorized to possess by ordinance in the city or county where  
          the marijuana was seized, whichever is greater.  


          ANALYSIS:  Existing law, as an exception to other statutes  
          concerning seizure and destruction of controlled substances,  
          provides that law enforcement may, without a court order,  
          destroy seized controlled substances in excess of 10 pounds,  
          where the following circumstances are present:


          1)At least five random samples are taken and preserved in  
            addition to the 10 pound.








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          2)In the cases of marijuana, at least one 10-pound sample and  
            five representative samples consisting of leaves or buds shall  
            be retained for evidence.

          3)Photographs of the material to be destroyed must be taken.

          4)The gross weight of the entire material must be determined.

          5)The chief law enforcement officer has determined that it is  
            not reasonably possible to keep all of the material or to  
            store it in another place.

          6)Within 30 days of destruction of the material, an affidavit  
            demonstrating compliance with this section must be filed in  
            the court with jurisdiction over any criminal proceeding  
            associated with the material.

          7)If no criminal action is pending, the affidavit may be filed  
            in any court in the county that would have jurisdiction over a  
            criminal action involving the material.  (Health & Saf. Code §  
            11479.)

          This bill allows, in the case of growing or harvested marijuana,  
          a law enforcement agency to destroy without a court order that  
          amount in excess of 2 pounds, or the amount of marijuana a  
          medical marijuana patient or designated caregiver is authorized  
          to possess by ordinance in the city or county where the  
          marijuana was seized, whichever is greater.  


          Background

          The laws and practices in various counties concerning return of  
          marijuana to a qualified patient and compensation to a patient  
          for destruction of marijuana do not appear to be consistent or  
          clear.  The most widely-known case is Garden Grove v. Superior  
          Court (Kha) (2007) 157 Cal.App.4th 355.  In Garden Grove, city  
          police made a vehicle stop of Felix Kha.  The arresting officers  
          took  of an ounce of marijuana from Kha.  Marijuana possession  
          charges were dropped when Kha established that he had a valid  
          medical marijuana recommendation.  Kha sought return of this  
          marijuana, the city refused to do so and the Court of Appeal  
          eventually ordered the city to return the marijuana.  (Id. at  







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          pp. 386-392.)  

          In County of Butte v. Superior Court (Williams) (2009) 175  
          Cal.App.4th 729, sheriff's deputies threated to arrest David  
          Williams, a qualified medical marijuana patient and a member of  
          a medical marijuana collective, if he did not destroy all but 12  
          of the collective's 41 plants.  Williams sued the county,  
          alleging unreasonable search and seizure, violations of  
          California civil rights law (Civ. Code § 52.1) and conversion -  
          a form of theft or wrongful destruction.  The county sought  
          summary dismissal of the suit, arguing that it did not present a  
          cognizable claim.  The appellate court ordered the suit to  
          proceed.  Committee staff has been unable to find any appellate  
          decisions - including unpublished decisions - applying the Butte  
          County v. Superior Court decision.  However, an appellate  
          decision would only be issued if one of the parties to a case  
          appealed the order.  Counties and cities may have accepted the  
          decision in Butte County v. Superior Court that lawsuits for  
          compensation for seized marijuana could go forward.  Allowing  
          the case to proceed does not mean that the person seeking  
          compensation will win the case and be compensated.  The county  
          or city could still defend their actions when the case is fully  
          litigated.  Or, counties and cities could have settled the  
          suits, thus avoiding the substantial costs of litigation.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified4/28/15)


          California District Attorneys Association
          Imperial County Sheriff


          OPPOSITION:   (Verified4/28/15)


          Drug Policy Alliance
          American Civil Liberties Union


          ARGUMENTS IN SUPPORT:     







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          The author states in part:


               Law enforcement offices are required by law to store  
               10 pounds marijuana and 5 additional representative  
               samples for evidence. According to a June report by  
               the California Attorney General's Office, nine  
               counties in California: Shasta, Glenn, Mendocino,  
               Sacramento, Merced, Madera, Fresno, Ventura, and Los  
               Angeles currently possess over 1,000 pounds of  
               marijuana. This can be very burdensome on these  
               agencies because most facilities were not intended to  
               store such large quantities- forcing these agencies to  
               create additional storage facilities onsite resulting  
               in significant costs to law enforcement.


               In addition to the lack of adequate storage facilities  
               to store the marijuana held for evidence, it is also a  
               serious threat to the health of law enforcement  
               personnel. Because marijuana is a plant, it begins to  
               develop spores and mold within a short period of time.  
               This leads to difficulty breathing and other harmful  
               side effects as a result of frequent handling of the  
               storage items inside these evidence rooms. 


          ARGUMENTS IN OPPOSITION:     


          Opponents argue in part:


               Drug Policy Alliance opposes SB 303, an act to  
               authorize the law enforcement agency to destroy seized  
               substances suspected to be marijuana in excess of 2  
               pounds, subject to specified requirements and require  
               the law enforcement agency to retain at least one  
               2-pound sample and 5 random and representative samples  
               consisting of leaves or buds, for evidentiary  
               purposes, from the total amount to be destroyed.








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               As introduced, the bill would allow law enforcement  
               agencies to destroy medical marijuana, legally  
               possessed by a bona fide patient or caregiver before  
               the defendant has the opportunity to provide evidence  
               that shows that they are allowed under California law  
               to cultivate or possess medical marijuana. Medical  
               marijuana is a lifesaving therapy for thousands of  
               Californians who suffer debilitating illnesses. Their  
               rights should not be trammeled upon because some law  
               enforcement officials find it inconvenient to store  
               ten pounds of evidence-evidence that may not only be  
               property, but may in fact be medicine.


          Prepared by:Jerome McGuire / PUB. S. / 
          5/6/15 17:19:35


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