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SB-1193 Controlled substances: destruction of seized marijuana.(2013-2014)

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SB1193:v93#DOCUMENT

Amended  IN  Assembly  August 18, 2014
Amended  IN  Assembly  August 04, 2014
Amended  IN  Assembly  June 19, 2014
Amended  IN  Senate  May 20, 2014
Amended  IN  Senate  May 14, 2014
Amended  IN  Senate  April 23, 2014

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Senate Bill
No. 1193

Introduced by Senator Evans

February 20, 2014

An act to amend Section 11479 of, and to add Section 11362.85 to, of the Health and Safety Code, relating to controlled substances.


LEGISLATIVE COUNSEL'S DIGEST


SB 1193, as amended, Evans. Controlled substances: destruction of seized marijuana: cause of action. marijuana.

(1)Existing

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.

Existing 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.

This 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. 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.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.Section 11362.85 is added to the Health and Safety Code, to read:
11362.85.

In a criminal prosecution in which the defendant was acquitted or the case was dismissed based on a defense or protection provided under Section 11362.5 or this article, upon the order of the court, the following shall apply:

(a)Any marijuana, instrument, or paraphernalia seized in the case that was lawfully possessed by the defendant shall be returned to him or her.

(b)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.

(c)A claim made pursuant to this section shall be presented in accordance with Division 3.6 (commencing with Section 810) of Title 1 of the Government Code not later than six months after the date of acquittal or dismissal of the case.

SEC. 2.SECTION 1.

 Section 11479 of the Health and Safety Code is amended to read:

11479.
 Notwithstanding Sections 11473 and 11473.5, at any time after seizure by a law enforcement agency of a suspected controlled substance, that amount in excess of 10 pounds in gross weight, and in the case of growing or harvested marijuana, only that amount in excess of two pounds, may be destroyed without a court order by the chief of the law enforcement agency or a designated subordinate. Destruction shall not take place pursuant to this section until all of the following requirements are satisfied:
(a) At least five random and representative samples have been taken, for evidentiary purposes, from the total amount of suspected controlled substances to be destroyed. These samples shall be in addition to the 10 pounds required above. When the suspected controlled substance consists of growing or harvested marijuana plants, at least one two-pound sample (which may include stalks, branches, or leaves) and five representative samples consisting of leaves or buds shall be retained for evidentiary purposes from the total amount of suspected controlled substances to be destroyed.
(b) Photographs have been taken that reasonably demonstrate the total amount of the suspected controlled substance to be destroyed.
(c) The gross weight of the suspected controlled substance has been determined, either by actually weighing the suspected controlled substance or by estimating that weight after dimensional measurement of the total suspected controlled substance.
(d) The chief of the law enforcement agency has determined that it is not reasonably possible to preserve the suspected controlled substance in place, or to remove the suspected controlled substance to another location. In making this determination, the difficulty of transporting and storing the suspected controlled substance to another site and the storage facilities may be taken into consideration.
Subsequent to any destruction of a suspected controlled substance pursuant to this section, an affidavit shall be filed within 30 days in the court that has jurisdiction over any pending criminal proceedings pertaining to that suspected controlled substance, reciting the applicable information required by subdivisions (a), (b), (c), and (d) together with information establishing the location of the suspected controlled substance, and specifying the date and time of the destruction. In the event that there are no criminal proceedings pending that pertain to that suspected controlled substance, the affidavit may be filed in any court within the county that would have jurisdiction over a person against whom those criminal charges might be filed.