SB 1193, as amended, Evans. Controlled substances: destruction of seized marijuana: cause of action.
(1) Existing 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. The bill would require that counsel for the defendant have an opportunity to examine thebegin delete evidenceend deletebegin insert 2-pound sample and 5 representative samplesend insert for 30 days from the date the growing or harvested
marijuana was seizedbegin delete before destructionend delete if there are criminal proceedings pending which pertain to the seized marijuana to be destroyed. By imposing additional duties on local law enforcement entities, this bill would impose a state-mandated local program.
(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.
This bill would require that any marijuana, instrument, or paraphernalia seized that was lawfully possessed by a defendant be returned to the defendant 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 was damaged or destroyed, the bill would entitle the defendant to receive reasonable compensation for the damage or loss.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 11473.5 of the Health and Safety Code
2 is amended to read:
(a) All seizures of controlled substances, instruments,
4or paraphernalia used for unlawfully using or administering a
5controlled substance that are in possession of a city, county, or
6state official as found property, or as the result of a case in which
7no trial was had or which has been disposed of by way of dismissal
8or otherwise than by way of conviction, shall be destroyed by order
9of the court, unless the court finds that the controlled substances,
10instruments, or paraphernalia were lawfully possessed by the
11defendant.
12(b) In a criminal prosecution in which the defendant was
13acquitted or the case dismissed based on a defense or protection
14provided
under Section 11362.5 or Article 2.5 (commencing with
15Section 11362.7) of Chapter 6, the following shall apply:
16(1) Any marijuana, instrument, or paraphernalia seized in the
17case that was lawfully possessed by the defendant shall be returned
18to him or her.
19(2) If any marijuana, instrument, or paraphernalia was damaged
20or destroyed, the defendant shall receive reasonable compensation
21for the damage or loss.
22(3) A claim pursuant to this subdivision shall be presented not
23later than six months after acquittal or dismissal in the case.
24(c) If the court finds that the property was not lawfully possessed
25by the defendant, law enforcement may request of the court that
26certain
uncontaminated instruments or paraphernalia be
27relinquished to a school or school district for science classroom
28education in lieu of destruction.
Section 11479 of the Health and Safety Code is
30amended to read:
Notwithstanding Section 11473 and subdivisions (a)
32and (c) of Section 11473.5, at any time after seizure by a law
33enforcement agency of a suspected controlled substance, that
34amount in excess of 10 pounds in gross weight, and in the case of
35growing or harvested marijuana, only that amount in excess of two
36pounds, may be destroyed without a court order by the chief of
37the law enforcement agency or a designated subordinate.
P4 1Destruction shall not take place pursuant to this section until all
2of the following requirements are satisfied:
3(a) At least five random and representative samples have been
4taken, for evidentiary purposes, from the total amount of suspected
5controlled
substances to be destroyed. These samples shall be in
6addition to the 10 pounds required above. When the suspected
7controlled substance consists of growing or harvested marijuana
8plants, at least onebegin delete two poundend deletebegin insert two-poundend insert sample (which may
9include stalks, branches, or leaves) and five representative samples
10consisting of leaves or buds shall be retained for evidentiary
11purposes from the total amount of suspected controlled substances
12to be destroyed
and counsel for the defendant shall have 30 days
13from the date the growing or harvested marijuana was seized to
14examine thebegin delete evidence before destructionend deletebegin insert twoend insertbegin insert-pound sample and
15five representative samplesend insert if there are criminal proceedings
16pending which pertain to the seized growing or harvested marijuana
17to be destroyed.
18(b) Photographs have been taken which reasonably demonstrate
19the total amount of the suspected controlled substance to be
20destroyed.
21(c) The gross weight of the suspected controlled
substance has
22been determined, either by actually weighing the suspected
23controlled substance or by estimating that weight after dimensional
24measurement of the total suspected controlled substance.
25(d) The chief of the law enforcement agency has determined
26that it is not reasonably possible to preserve the suspected
27controlled substance in place, or to remove the suspected controlled
28substance to another location. In making this determination, the
29difficulty of transporting and storing the suspected controlled
30substance to another site and the storage facilities may be taken
31into consideration.
32Subsequent to any destruction of a suspected controlled substance
33pursuant to this section, an affidavit shall be filed within 30 days
34in the court which has jurisdiction over any pending criminal
35proceedings
pertaining to that suspected controlled substance,
36reciting the applicable information required by subdivisions (a),
37(b), (c), and (d) together with information establishing the location
38of the suspected controlled substance, and specifying the date and
39time of the destruction. In the event that there are no criminal
40proceedings pending which pertain to that suspected controlled
P5 1substance, the affidavit may be filed in any court within the county
2which would have jurisdiction over a person against whom those
3criminal charges might be filed.
If the Commission on State Mandates determines that
5this act contains costs mandated by the state, reimbursement to
6local agencies and school districts for those costs shall be made
7pursuant to Part 7 (commencing with Section 17500) of Division
84 of Title 2 of the Government Code.
O
97