AN ACT Relating to controlled substances; amending RCW 69.50.505 and 69.50.506; adding a new chapter to Title 43 RCW; and prescribing penalties.

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

Sec. 1. Section 15, chapter 2, Laws of 1983 as last amended by section 9, chapter 124, Laws of 1986 and RCW 69.50.505 are each amended to read as follows:

(a) The following are subject to seizure and forfeiture by state and local law enforcement agencies:

(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this chapter;

(2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this chapter;

(3) All property which is used, or intended for use, as a container for property described in paragraphs (1) or (2);

(4) All real property which is used to unlawfully grow or on which is unlawfully manufactured, compounded, or processed a controlled substance or which is purchased with money obtained from unlawfully selling a controlled substance;

(5) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, in any manner to facilitate the sale of property described in paragraphs (1) or (2), but:

(i) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;

(ii) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent;

(iii) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission; and

(iv) When the owner of a conveyance has been arrested under this chapter the conveyance may not be subject to forfeiture unless it is seized or process is issued for its seizure within ten days of the owner's arrest;

((~~(5)~~)) (6) All books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this chapter;

((~~(6)~~)) (7) All drug paraphernalia; and

((~~(7)~~)) (8) All moneys, negotiable instruments, securities, or other intangible property of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this chapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter: PROVIDED, That no property may be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission which that owner establishes was committed or omitted without the owner's knowledge or consent.

(b) Property subject to forfeiture under this chapter may be seized by any board inspector or law enforcement officer of this state or a political subdivision of this state upon process issued by any superior court having jurisdiction over the property. Seizure without process may be made if:

(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

(2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;

(3) A board inspector or law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(4) The board inspector or law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter.

(c) In the event of seizure pursuant to subsection (b), proceedings for forfeiture shall be deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, of the seizure and intended forfeiture of the seized property. The notice may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen day period following the seizure.

(d) If no person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in subsection (a)((~~(4)~~)) (5) or (a)((~~(7)~~))(8) of this section within forty-five days of the seizure, the item seized shall be deemed forfeited.

(e) If any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in subsection (a)((~~(4)~~)) (5) or (a)((~~(7)~~))(8) of this section within forty-five days of the seizure, 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 officer of the seizing agency or the chief law enforcement officer's designee, except where the seizing agency is a state agency as defined in RCW 34.12.020(4), the hearing shall be before the chief law enforcement officer of the seizing agency or an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the article or articles involved is more than five hundred dollars. A hearing before the seizing agency and any appeal therefrom shall be under Title 34 RCW. In a court hearing between two or more claimants to the article or articles involved, the prevailing party shall be entitled to a judgment for costs and reasonable attorney's fees. The burden of producing evidence shall be upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of items specified in subsection (a)((~~(4)~~)) (5) or (a)((~~(7)~~))(8) of this section. The seizing law enforcement agency shall promptly return the article or articles to the claimant upon a determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession thereof of items specified in subsection (a)((~~(4)~~)) (5) or (a)((~~(7)~~))(8) of this section.

(f) When property is forfeited under this chapter the board or seizing law enforcement agency may:

(1) Retain it for official use or upon application by any law enforcement agency of this state release such property to such agency for the exclusive use of enforcing the provisions of this chapter;

(2) Sell that which is not required to be destroyed by law and which is not harmful to the public.

The proceeds and all moneys forfeited under this title ((shall be used for payment of all proper expenses of the investigation leading to the seizure, including any money delivered to the subject of the investigation by the law enforcement agency, and of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, actual costs of the prosecuting or city attorney, and court costs. Fifty percent of the money remaining after payment of such expenses shall be deposited in the general fund of the state, county, and/or city of the seizing law enforcement agency, and fifty percent shall be remitted to the state treasurer for deposit in the public safety and education account established in RCW 43.08.250)) by the state and remaining after payment of expenses incurred by the state that are associated with the forfeiture and sale shall be deposited into the state drug revolving fund. The proceeds and all moneys forfeited under this title by a local government shall be distributed as follows:

(i) Seventy-five percent shall be deposited in the general fund of the county or city of the seizing law enforcement agency to be used for the enforcement of chapter 69.50 RCW; and

(ii) Twenty-five percent shall be remitted to the state treasurer for deposit in the state drug revolving fund;

(3) Request the appropriate sheriff or director of public safety to take custody of the property and remove it for disposition in accordance with law; or

(4) Forward it to the drug enforcement administration for disposition.

(g) Controlled substances listed in Schedule I, II, III, IV, and V that are possessed, transferred, sold, or offered for sale in violation of this chapter are contraband and shall be seized and summarily forfeited to the state. Controlled substances listed in Schedule I, II, III, IV, and V, which are seized or come into the possession of the board, the owners of which are unknown, are contraband and shall be summarily forfeited to the board.

(h) Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this chapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the board.

(i) Proceedings for forfeiture of real property shall be commenced by posting a notice thereof on the property. In all other respects, the procedure for forfeiture of real property shall be the same as for property specified in subsection (a)(5) and (a)(8) of this section.

(j) The failure, upon demand by a board inspector or law enforcement officer, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored to produce an appropriate registration or proof that he is the holder thereof constitutes authority for the seizure and forfeiture of the plants.

Sec. 2. Section 69.50.506, chapter 308, Laws of 1971 ex. sess. and RCW 69.50.506 are each amended to read as follows:

(a) It is not necessary for the state to negate any exemption or exception in this chapter in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this chapter. The burden of proof of any exemption or exception is upon the person claiming it.

(b) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this chapter, he is presumed not to be the holder of the registration or form. The burden of proof is upon him to rebut the presumption.

(c) Property is subject to forfeiture under this chapter if the prosecutor shows by a preponderance of the evidence that the property was used in a transaction in violation of this chapter or was acquired in whole or in part from the proceeds of a transaction that was in violation of this chapter. To avoid forfeiture, the owner or other person claiming possession shall show by a preponderance of the evidence that he or she had no knowledge of its illegal use or source.

(d) No liability is imposed by this chapter upon any authorized state, county or municipal officer, engaged in the lawful performance of his duties.

NEW SECTION. Sec. 3. The drug dealer eradication board is hereby created. The board shall consist of five members appointed by the governor. Of the members appointed, one member shall be appointed to represent the prosecuting attorneys of the state, one member shall be appointed to represent the law enforcement agencies of the state, one member shall be appointed to represent the courts, one member shall be appointed to represent the state correctional system, and one member shall be appointed to represent the educational system. Members shall serve five-year terms except of the initial appointments, the governor shall appoint one member each to serve one, two, three, four, and five-year terms. Members shall receive no salary but shall be reimbursed for travel expenses under RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 4. As used in this chapter, "board" means the drug dealer eradication board.

NEW SECTION. Sec. 5. The state drug revolving fund is hereby established in the custody of the state treasurer. Disbursements from the fund shall be on authorization of the board or the board's designee. The fund is subject to the allotment procedure provided under chapter 43.88 RCW, but no appropriation is required for disbursements.

Moneys in the fund shall be disbursed as follows according to rules adopted by the board:

(1) Nine percent for drug education and awareness;

(2) Thirty percent for reimbursing law enforcement agencies for costs associated with the arrest of persons for violations of chapter 69.50 RCW;

(3) Thirty percent for reimbursing local governments for costs associated with the conviction of persons for violations of chapter 69.50 RCW;

(4) Thirty percent for reimbursing public agencies for costs associated with incarcerating persons for violations of chapter 69.50 RCW that are otherwise not reimbursed; and

(5) One percent for rewards under section 6 of this act.

NEW SECTION. Sec. 6. The board shall develop a cash reward system for information which leads to the arrest, conviction, and incarceration of persons who unlawfully possess five or more ounces of a dangerous drug or unlawfully give, deliver, or sell a dangerous drug. Semiannually, the moneys accumulated in the fund for the previous six months shall be distributed to all persons whose information has resulted in the incarceration of persons for unlawfully possessing five or more ounces of a dangerous drug or unlawfully giving, delivering, or selling a dangerous drug during that six-month period. If no distributions are made for rewards for a period, the money shall be carried over into the next period. Private contributions may be made to the fund for rewards under this chapter.

As used in this section, "dangerous drug" means a controlled substance under schedule I in RCW 69.50.204.

NEW SECTION. Sec. 7. Sections 3 through 6 of this act shall constitute a new chapter in Title 43 RCW.