SENATE BILL REPORT

2SHB 1353

BYHouse Committee on Ways & Means/Appropriations (originally sponsored by Representatives Locke, Patrick, Dellwo, Baugher, Bumgarner, Meyers, Lewis, Rayburn, Gallagher, Armstrong, Holland, P. King, Silver, Belcher, Schoon, Schmidt, Amondson, Ferguson, Kremen, Winsley, Basich, Taylor, May, Wineberry, Zellinsky, Betrozoff, Pruitt, McLean, Ballard, Peery, Brough, O'Brien, Dorn, Doty, Hankins, Miller, Fuhrman, Holm, Cooper and Todd;by request of Association of Sheriffs and Police Chiefs)

Changing provisions governing seizures related to drug trafficking.

House Committe on Judiciary

Rereferred House Committee on Ways & Means/Appropriations

Senate Committee on Law & Justice

Senate Hearing Date(s):February 26, 1988

Senate Staff:Jon Carlson (786-7459)

AS OF FEBRUARY 25, 1988

BACKGROUND:

The Controlled Substances Act allows law enforcement agencies to seize and cause the forfeiture of a wide variety of personal property connected with the illegal possession, use, manufacture or sale of controlled substances.  Among the items that may be seized are:  the controlled substances themselves; raw materials, products, and equipment used for manufacturing, processing or delivering the substances; containers; planes, boats and cars; books, records, formulas, microfilm, tapes, data and research products and materials; drug paraphernalia; and intangible property such as money, negotiable instruments and securities used to buy controlled substances.  Vehicles and intangibles may not be forfeited if the owner did not know of or consent to their illegal use.

Seizure and forfeiture are civil processes that do not depend on a conviction under the Controlled Substances Act.  Seizure of property may be made by State Board of Pharmacy personnel or law enforcement personnel upon judicial process, incident to a warrant to arrest, search or inspect, or upon probable cause that the property is dangerous or used in a violation of the Controlled Substances Act.  The seizing agency must notify the owner of the property within 15 days of the seizure that property is to be forfeited.  Notification may be by any method authorized by law.  If the owner does not respond within 45 days, the property is forfeited.  If the owner responds, an administrative hearing before the agency will be held, or if the property is worth more than $500 and the owner demands it, the hearing will be in court.  The burden of proof at the hearing is on the owner.  The prevailing party at the hearing may recover costs and reasonable attorney fees.

In addition, the Criminal Profiteering Act allows the seizure and forfeiture of property, including real estate, that has been acquired with the proceeds of a violation of the anti-profiteering act.  A pattern of violation of the Controlled Substances Act may serve as the basis for a prosecution under the anti-profiteering law.

Under the Controlled Substances Act, forfeited property may either be kept and used by the seizing law enforcement agency, or may be sold.  The money realized from the sale of forfeited property goes first to pay for the expenses of the investigation that led to the seizure and forfeiture.  Any money left over after those expenses are paid is split evenly between the general fund of the governmental entity whose agency seized the property, and the state public safety and education account.

State law also regulates "legend" drugs, which are drugs that may only be used by physicians for the treatment of their patients, or that may only be dispensed through a physician's prescription.  Imitation controlled substances are substances that by appearance would lead a reasonable person to believe they are illegal substances when in fact they are not.  It is a felony to possess, manufacture, sell, advertise for sale, or deliver an imitation controlled substance.

SUMMARY:

Real property may be seized and forfeited for a felony violation of the Controlled Substances Act.  Seizure and forfeiture with respect to real and personal property may be used in violations of that act, or Legend Drug - Prescription Drug Act, or Imitation Controlled Substances Act.

The burden of proof in forfeiture hearings is placed on the seizing agency.  The time which an owner has to demand a hearing is 90 days in cases involving real property, and 45 days in cases involving personal property.

Real property subject to forfeiture includes all separate and community interest.  An owner's interest cannot be forfeited if he or she had no knowledge of the illegal act associated with the property, and personal service of notice must be made on the owner of any seized real property (or personal property worth $10,000 or more).

Several restrictions are placed on the ability to cause the forfeiture of real property.  A substantial connection must exist between drug activity and seized property.  Possession of marijuana does not result in the forfeiture of real property unless the possession is for commercial purposes and the amount possessed is five or more plants or at least one pound of marijuana.  Sale of marijuana may result in forfeiture of real property only if there are two or more sales within six months totaling at least 40 grams.  Sale of a legend drug may result in forfeiture of real property only if there are two or more sales totaling at least $100 within six months.

The split of proceeds from the sale of forfeited property remains even between state and local governments.  However, forfeitures amounting to less than $5,000 go directly to the investigating law enforcement agency for drug enforcement purposes.

Appropriation:    none

Revenue:    none

Fiscal Note:      requested January 25, 1988