Published in 2013. California-specific
“Characterizing Kha as a ‘criminal defendant,’ [the police] claim the CUA only provides him with a ‘defense’ to certain offenses and does not make his possession of medical marijuana ‘lawful.’ But Kha is clearly not a criminal defendant with respect to the subject marijuana. Since the prosecution dismissed the drug charge he was facing, he is nothing more than an aggrieved citizen who is seeking the return of his property. The terms ‘criminal’ and ‘defendant’ do not aptly apply to him.”
City of Garden Grove v. Superior Court, Court of Appeal (4th District), November 28, 2007
Thank you for your interest in the Return of Property campaign and in joining in solidarity with other patients and caregivers throughout California to demand that your illegally confiscated medicine be returned by the court. Filing a Motion for Return of Property will not only help you get your property back, but will also send a clear message to law enforcement that their policy of violating medical marijuana law is unacceptable.
After our resounding victory in City of Garden Grove v. Superior Court, (2007) 157 Cal.App.4th, which followed from our People v. Kha case, Americans for Safe Access encourages you to take advantage of your legal rights and to try to get your medicine and other confiscated property back. Before this decision, your rights remained unclear, but no longer. You now have a definitive statement from the Court of Appeal that supports you and affirms your rights, and if you possessed less than your local guidelines allow, you have an excellent chance of success.
Keep in mind that you are not alone. Hundreds (if not thousands) of law–abiding medical marijuana patients throughout California are still wrongfully harassed and prosecuted, and have their medicine confiscated. However, if we stand up together and demand our rights, with the Court of Appeal decision in Garden Grove at our backs, we can transform ASA’s legal victory into a change of policy in every courtroom in California. Each time a patient engages in the Return of Property process, with or without success, we send a symbolic message to the judge that it is a waste of the court’s time when local law enforcement ignores California medical marijuana law. Eventually, judges will pass this message to District Attorneys, and District Attorneys back to law enforcement to Stop the Confiscations!
It is advisable that you wait to start the Return of Property process until any pending criminal case is dropped, dismissed or acquitted at trial (although, if possible, you should present the completed Motion to the judge on the day of dismissal). If no criminal charges were ever filed against you, we suggest you wait some time to start the Return of Property process. This is to be reasonably sure no charges will be filed, especially as a result of you filing the motion (charges can be filed up to three years after an incident in California).
Create a Motion for Return of Property
The first step in the process is to fill out the Motion for Return of Property. Download the motion below and fill it out using a computer (handwritten motions are generally looked upon unfavorably by the courts). Fill in the sections highlighted in yellow and replace all text with the appropriate information. When you have completed the motion, remember to un-highlight the parts of the motion that you have filled in. You can do this by locating the "highlighter icon" in your Word toolbar (if it is not currently visible, check the extra hidden tools at the end of the bar section with your font and letter size). Select Control+A to select all text, and then select the highlighter icon and then "None", and all yellow highlighting should disappear. For more information, see Word Help for "highlighting".
Here is the information you will need to complete the motion:
- Motion for Return of Property in .DOC format, or
File your Motion
The second step is filing the motion. Read the instructions below for how to file the motion in the criminal division of your county courthouse. It is important that these instructions are read entirely and followed closely, as any deviation may cause delays or a denial of the motion.
Present a Letter to the Court Clerk
If the criminal court clerk either: a) does not know what to do with the motion, b) tells you to go to another court or another division, or c) says that you are not entitled to file the motion, you should present the clerk with the following letter. The letter addressed to the court clerk was written by ASA Chief Counsel Joe Elford and should be used if the clerk refuses to file the motion for any of the reasons above
- Letter to the Clerk of the Court in .PDF format
Often, if there is no citation or property receipt and a patient is not being charged, a criminal court clerk might refuse to assign a case number and schedule a hearing date. If this occurs, ask the clerk to Notice the Motion for a specific date. If the clerk continues to refuse to schedule any sort of court date, ask her/him to write “Received Rejected” and the reason for the rejection, directly on the Motion. Then, fax the motion to ASA at (510) 251-2036 and follow up with the Legal Services Coordinator to discuss next steps.
Argue Your Motion Before a Judge
Once you have filed the motion, you will be given a date for the hearing on your motion, usually one month away. The hearing is the most complicated and intimidating part of the process, because you have to argue your case in front of a judge. ASA has prepared some instructions for the hearing, and will certainly answer any questions you might have about your hearing before you go into court.
If your motion for return of property is granted
If your motion for return of property is granted, you will need to take the resulting court order (signed by the judge) to the law enforcement agency or court that is in possession of your medicine and/or property to request it back. If law enforcement refuses to return your property, you probably have grounds to move for contempt of court. Please contact ASA's Legal Services Coordinator as ASA is likely to send out a letter that is similar to the following letter threatening contempt.
If your motion for return of property is denied
In many cases, filing and arguing this motion will merely be the first step in the process of getting your medicine back because of resistance by the courts. If your motion for return of property is denied, you have the option of appealing the decision. Although ASA does not have the resources to take on numerous civil cases, we can at least assess whether or not you have a reasonable claim for monetary damages. Please let us know about any denials of a motion for return of property, and we can discuss whether it is appropriate to appeal.
If you wish to file a civil suit for the monetary value of the property destroyed, you will first need to file a Tort claim with the city or county that oversees the law enforcement agency that confiscated your property. This claim must be filed within 6 months of the original confiscation of property. Please feel free to use one of the templates below for your claim:
- If the Sheriffs confiscated your property: Use this template
- If the Police confiscated your property: Use this template
- If the California Highway Patrol confiscated your property: Use this template and then fill out and attach this Government Claim Form to your Tort claim
Once the claim is denied (which they typically are), you have 6 months from that point to file a civil lawsuit. You will want to take this time to research your case and/or retain an attorney to help you file the complaint. If you learn at your hearing that your property has been destroyed, you may have a legitimate civil claim for a violation of your due process rights, and you should let ASA know. However, please note that California law does not provide for judgments of monetary damages in cases involving due process violations.
Instructions for Filing a Motion for Return of Property
Instructions for arguing your Motion
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