California Forfeiture Legislation

STATE LAWS September-October 1994

On August 20 California Governor Pete Wilson signed legislation revising forfeiture procedures for the state ("New California Law Restricts Forfeiture for Drug Violation," BNA Criminal Practice Manual, vol. 8, no. 19 (Sept. 14, 1994): p. 428-9; "New Asset Forfeiture Statute Is Enacted Into Law in California," Drug Enforcement Report, Aug. 23, 1994). California Assembly Bill 114 provides that:

• In most cases the government must either prove beyond a reasonable doubt that property is subject to be forfeited or convict the owner of a drug offense before the property is forfeited.
   
• For suspect cash or negotiable instruments worth $25,000 or more, the burden of proof, by clear and convincing evidence, rests with the state, not the defendant.
   
• Real property cannot be seized in most cases unless a hearing with interested parties is held prior to the forfeiture. Real property owned by two or more individuals is not forfeitable if one person "had no knowledge of its unlawful use."
   
• Family homes and family cars are generally not subject to forfeiture.
   
• There are no filing fees for owners of seized property worth $5,000 or less to contest seizures.
   
• Law enforcement cannot use forfeited personal property, but must sell the property. Proceeds are distributed 65% to law enforcement agencies (but 15% of the law enforcement agency share must be spent on community-based anti-drug and anti-gang programs). 24% of the total goes to the state general fund, and 1% to a fund for training police and prosecutors in the "ethics and proper use" of seizure and forfeiture law. The distribution provision is retroactive to Jan. 1, 1994.
   
• Law enforcement agencies that engage in forfeiture must have practice manuals for their department and design training programs for officers.
   
• Before vehicles "used to facilitate sale or possession for sale" can be forfeited, minimum weight thresholds must be met: 10 pounds dry weight of marijuana, peyote, or psilocybin, or 14.25 grams of heroin or cocaine base.

The law went into effect immediately. "It has most of the reforms that we have asked for," said Brenda Grantland of Forfeiture Endangers American Rights (FEAR). "I am really surprised that so many of them survived."