SENATE BILL REPORT

ESSB 6316

BYSenate Committee on Law & Justice (originally sponsored by Senators Pullen, Madsen, Zimmerman, Vognild, Bailey, Saling, Johnson, Talmadge, Metcalf, Bauer and West)

Providing for the seizure of assets in drug cases.

Senate Committee on Law & Justice

Senate Hearing Date(s):January 18, 1988; January 26, 1988

Majority Report:  That Substitute Senate Bill No. 6316 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Halsan, Hayner, Madsen, Nelson, Newhouse, Niemi, Talmadge.

Senate Staff:Jon Carlson (786-7459)

                  March 3, 1988

House Committe on Judiciary

Rereferred House Committee on Ways & Means/Appropriations

AS PASSED SENATE, FEBRUARY 13, 1988

BACKGROUND:

Under the enforcement and administrative provisions of Washington State's Uniform Controlled Substances Act, materials and property used to commit or facilitate the commission of a violation of the act are subject to seizure and forfeiture by law enforcement officers.  However, the present language does not provide for the seizure and forfeiture of real property which is used in violation of the act.

The proceeds from the sale of forfeited property under the act pays for the expenses of the investigation leading to the seizure.  The remainder is divided evenly between the general fund of the state, county, and/or city of the seizing law enforcement agency, and the public safety and education account.

SUMMARY:

The Legislature finds that the forfeiture of real property, where a substantial nexus exists between the commercial production or sale of the substances and the real property, provides a significant deterrent to crime by removing the profit incentive of drug trafficking.  The Legislature also recognizes that seizure of property is a powerful law enforcement tool that is not to be applied in cases where a manifest injustice occurs as a result of forfeiture of an innocent spouse's community property interest.

Real property is subject to seizure and forfeiture if it is used to commit or facilitate the commission of certain violations pertaining to controlled substances, imitation controlled substances or legend drugs: (1) if such activity is not less than a class C felony; and (2) a substantial nexus exists between the commercial production or sale of the controlled substance and the real property.  Real property subject to seizure and forfeiture includes all separate and community interests therein.  The owner's interest in the real property, including any community property interest, cannot be forfeited if the illegal activity is conducted without the owner's knowledge or consent.

The bona fide gift of a controlled substance, legend drug or imitation controlled substance cannot result in the forfeiture of real property.  Possession of marijuana does not result in the forfeiture of real property unless the marijuana is possessed for commercial purposes, the amount possessed is five or more plants or one pound or more of marijuana, and a substantive nexus exists between the possession of marijuana and the real property.

The unlawful sale of marijuana or a legend drug cannot result in the forfeiture of real property unless the total sales amount to forty grams or more in the case of marijuana or $100 or more in the case of a legend drug, and a substantial nexus exists between the unlawful sale and the real property.

Real property which is seized cannot be transferred or otherwise conveyed until 90 days after seizure or until the hearing on the forfeiture is held, whichever is later.

The proceeds from the sale of forfeited property under the act, after the payment of all expenses, are distributed as follows:  (1) 75 percent to the general fund of the state, county, and/or city of the seizing law enforcement agency, to be used exclusively for the expansion or improvement of law enforcement services; (2) 25 percent to the State Treasurer for deposit in the public safety and education account.  A seizure of money and proceeds which is less than $5,000 in the aggregate may be deposited in total in the general fund of the governmental unit of the seizing law enforcement agency and must be appropriated exclusively for the expansion of narcotics enforcement services.

Appropriation:    none

Revenue:    none

Fiscal Note:      requested

Senate Committee - Testified: Frank Russell, Washington State Patrol; John Muenster, Washington Association of Criminal Defense Attorneys; Chuck Bown, Spokane Police; John Ladenburg, Washington Association of Prosecuting Attorneys

HOUSE AMENDMENTS:

Notice of seizure of real property or of personal property of a value of $10,000 or more must be by personal service upon the owner.

Upon the entry of an order of forfeitures of real property the court is required to forward a copy of the order to the assessor of the county in which the property is located.  Orders for the forfeiture of real property must be entered by the superior court, subject to court rules.

Proceeds from the sale of forfeited property may also be used for the purpose of rewarding informants who supply information leading to the arrest, prosecution and conviction of person who violate laws relating to controlled substances.