Bill Text: CA SB1193 | 2013-2014 | Regular Session | Amended
Bill Title: Controlled substances: destruction of seized marijuana.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2014-08-29 - Ordered to inactive file on request of Assembly Member V. Manuel Pérez. [SB1193 Detail]
Download: California-2013-SB1193-Amended.html
BILL NUMBER: SB 1193 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 18, 2014
AMENDED IN ASSEMBLY AUGUST 4, 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
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.
State-mandated 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.
