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.
(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.
begin insertExisting law, the Government Claims Act, sets forth the general procedure for the presentation of claims for money or damages against the state, a judicial branch entity, or a local public entity.
end insertThis bill would require that any marijuana, instrument, or paraphernalia seized that was lawfully possessed by a defendant be returned to the defendant upon the order of the court 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 that was lawfully possessed by the defendant was damaged or destroyed, the bill would entitle the defendant to receive reasonable compensation for the damage or loss.begin insert This bill would require a claim made pursuant to these provisions to be presented in accordance with the Government Claims Act within 6 months after the date of acquittal or dismissal of the case.end insert
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 11362.85 is added to the Health and
2Safety Code, to read:
In a criminal prosecution in which the defendant
4was acquitted or the casebegin insert wasend insert dismissed based on a defense or
P3 1protection provided under Section 11362.5 or this article, upon
2the order of the court, the following shall apply:
3(a) Any marijuana, instrument, or paraphernalia seized in the
4case that was lawfully possessed by the defendant shall be returned
5to him or her.
6(b) If any marijuana, instrument, or paraphernalia seized in the
7case that was lawfully possessed by the defendant was damaged
8or destroyed, the defendant shall receive
reasonable compensation
9for the damage or loss.
10(c) A claimbegin insert madeend insert pursuant to thisbegin delete subdivisionend deletebegin insert sectionend insert shall be
11presentedbegin insert in accordance with Division 3.6 (commencing with
12Section 810) of Title 1 of the Government Codeend insert not later than six
13months afterbegin insert the date ofend insert acquittal or dismissalbegin delete inend deletebegin insert
ofend insert the case.
Section 11479 of the Health and Safety Code is
15amended to read:
Notwithstanding Sections 11473 and 11473.5, at any
17time after seizure by a law enforcement agency of a suspected
18controlled substance, that amount in excess of 10 pounds in gross
19weight, and in the case of growing or harvested marijuana, only
20that amount in excess of two pounds, may be destroyed without a
21court order by the chief of the law enforcement agency or a
22designated subordinate. Destruction shall not take place pursuant
23to this section until all of the following requirements are satisfied:
24(a) At least five random and representative samples have been
25taken, for evidentiary purposes, from the total amount of suspected
26controlled substances to be
destroyed. These samples shall be in
27addition to the 10 pounds required above. When the suspected
28controlled substance consists of growing or harvested marijuana
29plants, at least one two-pound sample (which may include stalks,
30branches, or leaves) and five representative samples consisting of
31leaves or buds shall be retained for evidentiary purposes from the
32total amount of suspected controlled substances to be destroyed.
33(b) Photographs have been taken that reasonably demonstrate
34the total amount of the suspected controlled substance to be
35destroyed.
36(c) The gross weight of the suspected controlled substance has
37been determined, either by actually weighing the suspected
38controlled substance or by estimating that weight after dimensional
39measurement of the total
suspected controlled substance.
P4 1(d) The chief of the law enforcement agency has determined
2that it is not reasonably possible to preserve the suspected
3controlled substance in place, or to remove the suspected controlled
4substance to another location. In making this determination, the
5difficulty of transporting and storing the suspected controlled
6substance to another site and the storage facilities may be taken
7into consideration.
8Subsequent to any destruction of a suspected controlled substance
9pursuant to this section, an affidavit shall be filed within 30 days
10in the court that has jurisdiction over any pending criminal
11proceedings pertaining to that suspected controlled substance,
12reciting the applicable information required by subdivisions (a),
13(b), (c), and (d) together with information
establishing the location
14of the suspected controlled substance, and specifying the date and
15time of the destruction. In the event that there are no criminal
16proceedings pending that pertain to that suspected controlled
17substance, the affidavit may be filed in any court within the county
18that would have jurisdiction over a person against whom those
19criminal charges might be filed.
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