BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
SB 1193 (Evans) - Destruction of seized marijuana: standards and
procedures.
Amended: May 14, 2014 Policy Vote: Public Safety 6-0
Urgency: No Mandate: Yes
Hearing Date: May 19, 2014 Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: SB 1193 would reduce the storage and sample-size
requirements for growing or harvested marijuana that has been
seized by law enforcement agencies, and would require a 30-day
retention period of a two-pound sample and five representative
samples, prior to destruction, as specified. This bill would
also codify the practice of compensation to a defendant found to
be in lawful possession of marijuana, as specified, who was
acquitted or whose case was dismissed.
Fiscal Impact:
Significant ongoing cost savings to local law enforcement
(Local) and the Department of Justice (DOJ) for reduced
long-term retention and storage costs, offset to a minor
degree by increased costs for the destruction of slightly
more marijuana, the local costs of which would be
non-reimbursable (Local).
Potential minor state and state-reimbursable local costs
(General Fund) to retain the required samples of marijuana
for 30 days from the date of seizure to allow counsel to
examine the evidence.
Potential state-reimbursable costs (General Fund) for
mandated compensation to defendants who were acquitted or
whose cases were dismissed for lawful possession of
marijuana that was subsequently damaged or destroyed after
seizure. This provision could also result in future cost
savings to the state in avoided causes of action that
otherwise would have been filed.
Background: Existing law provides that controlled substances and
devices or paraphernalia for using controlled substances that
are possessed in violation of relevant statutes may be seized by
law enforcement officers. The seized controlled substances are
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required to be destroyed upon a defendant's conviction, or in
cases without trial, dismissal, or conviction, the seized
property is to be destroyed unless the court finds that the
defendant lawfully possessed the property. (HSC �� 11472, 11473,
11473.5)
Under existing law, an order for destruction of controlled
substances and associated instruments and paraphernalia may be
carried out by a police or sheriff's agency, the Department of
Justice (DOJ), Highway Patrol (CHP), or Department of Alcoholic
Beverage Control (ABC). (HSC � 11474)
Existing law, as an exception to other statutes concerning
seizure and destruction of controlled substances, provides that
law enforcement may, without a court order, destroy seized
controlled substances in excess of 10 pounds, subsequent to all
of the following requirements being met:
At least five random samples are taken and preserved in
addition to the 10 pounds required to be retained.
In the case of marijuana, at least one 10-pound sample and
five representative samples consisting of leaves or buds are
retained for evidence.
Photographs of the material to be destroyed are taken.
The gross weight of the entire material is determined.
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.
Within 30 days of destruction of the material, an affidavit
must be filed with the court demonstrating compliance with the
above provisions. (HSC � 11479)
This bill seeks to reduce the storage requirements for marijuana
imposed on law enforcement agencies to a more manageable
quantity, while clarifying a defendant's right to return of, or
compensation for, lawfully possessed marijuana under specified
circumstances.
Proposed Law: This bill would reduce the amount of growing or
harvested marijuana that has been seized by a law enforcement
agency that must be retained for evidence from at least 10
pounds to at least two pounds. In addition, this bill:
Reduces the required representative sample size of growing
or harvested marijuana from one 10-pound sample, to one
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two-pound sample.
Requires counsel for the defendant to have 30 days from the
date the growing or harvested marijuana was seized to examine
the two-pound sample and five representative samples prior to
destruction if criminal proceedings are pending, as
specified.
Provides for the following in a criminal prosecution in
which the defendant is acquitted or the case is dismissed:
o Any marijuana, instrument, or paraphernalia
seized in the case that was lawfully possessed by the
defendant must be returned to the defendant.
o If any marijuana, instrument, or paraphernalia
was damaged or destroyed, the defendant must receive
reasonable compensation for the damage or loss.
o A claim must be presented not later than six
months after acquittal or dismissal.
Staff Comments: By reducing the marijuana storage and
sample-size requirements imposed on law enforcement agencies,
the provisions of this bill could potentially result in
significant cost savings to both state and local agencies in the
form of reduced needs for retention space, storage, and security
costs. Any offsetting costs for the destruction of more material
are estimated to be minor, and the costs to local law
enforcement for destruction would be non-reimbursable, as the
destruction of seized material pursuant to these provisions is
authorized but not mandated.
The provision of this bill requiring counsel for the defendant
to be provided with 30 days from the date of seizure to examine
the two-pound sample and five representative samples prior to
destruction imposes a state-mandated local program, the costs of
which could be reimbursable by the state. The costs to law
enforcement to retain the samples for 30 days post seizure is
estimated to be minor, and any potential costs incurred by the
local agency would be considered against the offsetting cost
savings experienced by the local agency through the reduced
evidential storage requirements of this measure in the event a
claim for reimbursement is filed with the Commission on State
Mandates.
This bill provides for compensation to a defendant for any
marijuana, instrument, or paraphernalia under specified
circumstances. As drafted, this mandate could be triggered with
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or without an order of the court specifying this reimbursement.
To the extent a court order is not required, the local costs,
which could be significant, associated with this mandated
activity could be determined to be state-reimbursable.
To the extent the provisions of this measure would avert the
potential costs of future government claims actions for return
of lawfully owned property could potentially result in net cost
savings to the state.
Recommended amendments: This bill provides for the compensation
to a defendant in a criminal prosecution in which the defendant
is acquitted or the case is dismissed if any marijuana,
instrument, or paraphernalia was damaged or destroyed. For
clarity and to reduce potential state-reimbursable costs, staff
recommends the following amendments to HSC � 11473.5:
(b) In a criminal prosecution in which the defendant was
acquitted or the case dismissed based on a defense or protection
provided under Section 11362.5 or Article 2.5 (commencing with
Section 11362.7) of Chapter 6, upon the order of the court, the
following shall apply:
(1) Any marijuana, instrument, or paraphernalia seized in the
case that was lawfully possessed by the defendant shall be
returned to him or her.
(2) If any marijuana, instrument, or paraphernalia seized in the
case that was lawfully possessed by the defendant was damaged or
destroyed, the defendant shall receive reasonable compensation
for the damage or loss.
(3) A claim pursuant to this subdivision shall be presented not
later than six months after acquittal or dismissal in the case.