BILL REQ. #:  H-4130.1 

Read first time 01/21/2004.   Referred to Committee on Criminal Justice & Corrections.

     AN ACT Relating to seizure, forfeiture, and destruction of explosives; and amending RCW 70.74.400.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 70.74.400 and 2002 c 370 s 3 are each amended to read as follows:
     (1) Explosives, improvised devices, and components of explosives and improvised devices that are possessed, manufactured, delivered, imported, exported, stored, sold, purchased, transported, abandoned, detonated, or used, or intended to be used, in violation of a provision of this chapter are subject to seizure and forfeiture by a law enforcement agency and no property right exists in them.
     (2) The law enforcement agency making the seizure shall notify the Washington state department of labor and industries of the seizure.
     (3) Seizure of explosives, improvised devices, and components of explosives and improvised devices under subsection (1) of this section may be made if:
     (a) The seizure is incident to arrest or a search under a search warrant;
     (b) The explosives, improvised devices, or components have been the subject of a prior judgment in favor of the state in an injunction or forfeiture proceeding based upon this chapter;
     (c) A law enforcement officer has probable cause to believe that the explosives, improvised devices, or components are directly or indirectly dangerous to health or safety; or
     (d) The law enforcement officer has probable cause to believe that the explosives, improvised devices, or components were used or were intended to be used in violation of this chapter.
     (4) A law enforcement agency shall destroy explosives, improvised devices, or components seized under this chapter when it is necessary to protect the public safety and welfare. ((When destruction is not necessary to protect the public safety and welfare, and the explosives are not being held for evidence, a seizure pursuant to this section commences proceedings for forfeiture.)) A law enforcement agency may destroy explosives, improvised devices, or components seized under this chapter when the agency determines that it is impractical or unsafe to store the explosives, improvised devices, or components. The law enforcement agency must film, videotape, or make a similar record of any destruction authorized by this section. The law enforcement agency must photograph, videotape, or make a similar record of the explosives, improvised devices, or components destroyed, and keep samples where practicable. The law enforcement agency must make a report listing the explosives, improvised devices, and components destroyed, and the time, location, and reason for destruction. Any such reports, records, or samples shall be admissible as evidence in lieu of the explosives, improvised devices, or components destroyed. When destruction is not appropriate, and the explosives, improvised devices, or components are not being held for evidence, a seizure pursuant to this section commences proceedings for forfeiture.
     (5) The law enforcement agency under whose authority the seizure was made shall issue a written notice of the seizure and commencement of the forfeiture proceedings to the person from whom the explosives were seized, to any known owner of the explosives, and to any person who has a known interest in the explosives. The notice shall be issued within fifteen days of the seizure. The notice of seizure and commencement of the forfeiture proceedings shall be served in the same manner as provided in RCW 4.28.080 for service of a summons. The law enforcement agency shall provide a form by which the person or persons may request a hearing before the law enforcement agency to contest the seizure.
     (6) If no person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the explosives, improvised devices, or components within thirty days of the date the notice was issued, the seized explosives, devices, or components shall be deemed forfeited.
     (7) If, within thirty days of the issuance of the notice, any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items seized, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The hearing shall be before the chief law enforcement or the officer's designee of the seizing agency, except that the person asserting the claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the items seized is more than five hundred dollars. The hearing and any appeal shall be conducted according to chapter 34.05 RCW. The seizing law enforcement agency shall bear the burden of proving that the person (a) has no lawful right of ownership or possession and (b) that the items seized were possessed, manufactured, stored, sold, purchased, transported, abandoned, detonated, or used in violation of a provision of this chapter with the person's knowledge or consent.
     (8) The seizing law enforcement agency shall promptly return the items seized to the claimant upon a determination that the claimant is entitled to possession of the items seized.
     (9) If the items seized are forfeited under this statute, the seizing agency shall dispose of the explosives by summary destruction. However, when explosives are destroyed ((either to protect public safety or because the explosives were forfeited)), the person from whom the explosives were seized loses all rights of action against the law enforcement agency or its employees acting within the scope of their employment, or other governmental entity or employee involved with the seizure and destruction of explosives.
     (10) This section is not intended to change the seizure and forfeiture powers, enforcement, and penalties available to the department of labor and industries pursuant to chapter 49.17 RCW as provided in RCW 70.74.390.