BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 303| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 SB 303 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. SB 303 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 SB 303 Page 4 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: SB 303 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 SB 303 Page 6 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. 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