S-3630               _______________________________________________

                                                   SENATE BILL NO. 4734

                        _______________________________________________

State of Washington                              49th Legislature                              1986 Regular Session

By Senators Owen, Zimmerman, Metcalf, McCaslin and Halsan

Read first time 1/21/86 and referred to Committee on Judiciary.

AN ACT Relating to firearm forfeiture and auctioning; and amending RCW 9.41.098.

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

        Sec. 1.  Section 6, chapter 232, Laws of 1983 and RCW 9.41.098 are each amended to read as follows:

          (1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:

          (a) Found concealed on a person not authorized by RCW 9.41.060 or 9.41.070 to carry a concealed pistol:  PROVIDED, That it is an absolute defense to forfeiture if the person possessed a valid Washington concealed pistol license within the preceding two years and has not become ineligible for a concealed pistol license in the interim.  Before the firearm may be returned, the person must pay the past due renewal fee and the current renewal fee;

          (b) Commercially sold to any person without an application as required by RCW 9.41.090;

          (c) Found in the possession or under the control of a person at the time the person committed or was arrested for committing a crime of violence or a crime in which a firearm was used or displayed or a felony violation of the uniform controlled substances act, chapter 69.50 RCW;

          (d) Found concealed on a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, having 0.10 percent or more by weight of alcohol in his blood, as shown by chemical analysis of his breath, blood, or other bodily substance;

          (e) Found in the possession of a person prohibited from possessing the firearm under RCW 9.41.040;

          (f) Found in the possession of a person free on bail or personal recognizance pending trial, appeal, or sentencing for a crime of violence or a crime in which a firearm was used or displayed, except that violations of Title 77 RCW shall not result in forfeiture under this section;

          (g) Found in the possession of a person found to have been mentally incompetent while in possession of a firearm when apprehended or who is thereafter committed pursuant to chapter 10.77 or 71.05 RCW;

          (h) Known to have been used or displayed by a person in the violation of a proper written order of a court of general jurisdiction; or

          (i) Known to have been used in the commission of a crime of violence or a crime in which a firearm was used or displayed or a felony violation of the uniformed controlled substances act, chapter 69.50 RCW.

          (2) Upon order of forfeiture, the court in its discretion shall order destruction of any firearm that is illegal for any person to possess, retention of the firearm as evidence, or appropriate use by a law enforcement agency in the state((, donation to a historical museum, or sale at a public auction to a commercial seller)).  A local jurisdiction may retain for its own purposes up to one-half of the firearms acquired through forfeiture or from any other source, including firearms voluntarily surrendered by the public.  This excludes those firearms lawfully purchased or obtained for use by a law enforcement agency and those unclaimed firearms under chapter 63.32 or 63.40 RCW.  The remainder of the firearms shall be turned over to the state crime laboratory and subsequently sold by the state patrol at a public auction to a commercial seller.  The proceeds from any sale shall be divided as follows:  The state patrol shall reimburse the local  jurisdiction ((shall retain)) for its costs, including actual costs of storage ((and sale)), and shall forward the remainder of the proceeds to the state game commission for use in its firearms training program pursuant to RCW 77.32.155.  If the court orders delivery to a law enforcement agency and the agency no longer requires use of the firearm, the agency shall dispose of the firearm in a manner which is consistent with this subsection.

          (3) The court shall order the firearm returned to the owner upon a showing that there is no probable cause to believe a violation of subsection (1) of this section existed or the firearm was stolen from the owner or the owner neither had knowledge of nor consented to the act or omission involving the firearm which resulted in its forfeiture.

          (4) A law enforcement officer of the state or of any county or municipality may confiscate a  firearm found to be in the possession of a person under circumstances specified in subsection (1) of this section.  After confiscation, the firearm shall not be surrendered except:  (a) To the prosecuting attorney for use in subsequent legal proceedings;  (b) for disposition according to an order of a court having jurisdiction as provided in subsection (1) of this section; or (c) to the owner if the proceedings are dismissed or as directed in subsection (3) of this section.