BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 303|
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                                UNFINISHED BUSINESS 


          Bill No:  SB 303
          Author:   Hueso (D)
          Amended:  7/8/15  
          Vote:     21  

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

           SENATE FLOOR:  35-0, 5/7/15
           AYES:  Allen, Anderson, Bates, Beall, Berryhill, Block,  
            Cannella, De León, Gaines, Galgiani, Hall, Hancock, Hernandez,  
            Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, McGuire,  
            Mendoza, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan,  
            Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk
          NO VOTE RECORDED:  Fuller, Leyva, Liu, Mitchell

           ASSEMBLY FLOOR:  79-0, 8/31/15 - See last page for vote

           SUBJECT:   Controlled substances: destruction of seized  
                     marijuana


          SOURCE:    Peace Officers Research Association of California

          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.  

          Assembly Amendments require law enforcement to photograph and  
          video any controlled substance before it is destroyed so as to  
          reasonably demonstrate the entire amount of the substance seized  








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          and destroyed.

          ANALYSIS: 
          Existing law 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.

          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:

          1)Allows a law enforcement agency, without a court order, to  
            destroy a specified amount of growing or harvested marijuana  
            that has been seized by the agency.

          2)Specifically provides that a law enforcement agency may  
            destroy all but two pounds of marijuana or the amount of  
            medical marijuana a patient is allowed to possess by local  
            ordinance, whichever is greater.








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          3)Requires the law enforcement agency, before destroying a  
            specified amount of a seized controlled substance, to  
            photograph and video the controlled substance so as to  
            reasonably demonstrate how much of the substance was seized  
            and destroyed.

          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  
          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  








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          suits, thus avoiding the substantial costs of litigation.

          Assembly amendments require a law enforcement agency to  
          photograph and video the controlled substances the agency seizes  
          and destroys.  This will allow the parties in a criminal case or  
          other proceeding to reasonably verify the amount of a controlled  
          substance at issue in the case or proceeding. 
          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No

          According to the Assembly Appropriations Committee: 

          Minor additional costs to local law enforcement agencies to  
          videotape the evidence, offset by significant savings associated  
          with reducing by almost 80 percent the amount of marijuana that  
          is stored as evidence in criminal proceedings. 







          SUPPORT:   (Verified8/31/15)


          California District Attorneys Association
          Imperial County Sheriff


          OPPOSITION:   (Verified8/31/15)


          Drug Policy Alliance
          American Civil Liberties Union


          ARGUMENTS IN SUPPORT:     


          The author argues:









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          "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:     


          The Drug Policy Alliance argues:


          "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.


          "As introduced, the bill would allow law enforcement agencies to  
          destroy medical marijuana, legally possessed by a bona fide  








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          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."

           ASSEMBLY FLOOR:  79-0, 8/31/15
           AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau,  
            Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,  
            Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,  
            Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,  
            Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,  
            Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,  
            Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,  
            Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,  
            Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
           NO VOTE RECORDED: Bonilla


          Prepared by: Jerome McGuire / PUB. S. / 
          8/31/15 18:01:15


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