BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 303|
|Office of Senate Floor Analyses | |
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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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Page 2
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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Page 3
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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Page 5
"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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