SENATE BILL REPORT

SB 6316

BYSenators 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)

                  January 26, 1988

AS REPORTED BY COMMITTEE ON LAW & JUSTICE, JANUARY 26, 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:

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 and imitation controlled substances: (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 cannot be forfeited if the illegal activity is conducted without the owner's knowledge or consent.

The bona fide gift of a controlled substance 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 and the amount possessed is five or more plants or one pound or more of marijuana.  In addition, the sale of marijuana does not result in the forfeiture of real property unless the offender makes two or more sales during a six-month period and where the total of such sales is forty grams or more.  There cannot be a forfeiture of real property with respect to either the possession or sale of marijuana unless a substantial nexus exists between the possession or sale of marijuana and the real property.

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 with the general fund of the state, county, and/or city of the seizing law enforcement agency.

EFFECT OF PROPOSED SUBSTITUTE:

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.

Violations pertaining to prescription drugs are included within the real and personal property forfeiture provisions.  The unlawful sale of a prescription drug cannot result in the forfeiture of real property unless the total of the sale is $100 or more.

The requirement that the drug offender make two or more sales during a six-month period before there can be a forfeiture of real property is deleted.

Language is added to clarify that a person's community property interest cannot be forfeited if he or she is not aware of or does not consent to the illegal activity.

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