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Instructions for Filing a Motion for Return of Property
Published in 2013. California-specific
The information contained in this document is critical to a successful filing of your motion and establishing a hearing date. Please read this as soon as possible.
The motion for return of property should be filled out as completely as possible before filing. Ideally, the motion should be signed in blue ink, so the original can be identified. You also want to attach copies of relevant documents to the motion and court order. You should copy your doctor's recommendation, your patient ID card (if you possess one), and the receipt for your confiscated property (if you possess one). These copies along with the certificate of service should be stapled to the last page of the motion (after the court order). Please note on Page 5 of the motion that qualified patients who possessed less than 8 oz. of dried marijuana, and 6 mature or 12 immature plants should include the extra sentence referencing People v. Wright.Additionally, qualified patients who possessed more than the referenced amounts who have a written exemption from their physician to exceed the guidelines should also attach a copy of the exemption.You should also print out a copy of Garden Grove v. Superior Court (Kha) from the Return of Property page and present it to the clerk with the motion.
You should make four (4) copies of all the documents (in addition to the original) and take these four sets of documents to the clerk of the criminal court for the county in which the property was seized or charges were filed. [Note: It is important, but not absolutely essential, that you do your best to locate the court actually having possession of the property. The first step is to call the records room and give them the property receipt number. If there is no property receipt, use the case number on the police report or your name and date of the seizure.]
The clerk may be resistant to filing the motion, and giving you a date, time, and place for the hearing. This resistance can be for any number of reasons. The clerk may think that this is a civil action, rather than a criminal one, or the clerk may be confused about how to file where there is no criminal case pending. Your response should be that a motion for return of property is a criminal "special proceeding," which should be filed as a "miscellaneous action" in criminal court, regardless whether any criminal charges were filed or are pending.
Your right to file this motion is authorized by CA statutory law under California Health and Safety Code § 11362.5, California Health and Safety Code § 11362.7 et seq., Penal Code §§ 1536, 1538.5 and 1540, article I, section 15 of the California Constitution, and Garden Grove v. Superior Court (Kha) (2007) 157 Cal.App.4th 355. Attached is a letter explaining this in greater detail, which you can hand to the clerk if they remain resistant to receiving your filing of the motion. If resistance by the clerk continues, you should ask to speak with a supervisor and again provide the legal authority allowing you to file. If this fails, request that the clerk to document or stamp the denial on the motion.
When filing the motion, the clerk should assign you a case number, as well as the time, date and place for a hearing. The clerk will likely write this in on the cover page of the original and ask that you do the same with the four copies. You should file-stamp, or have the clerk file-stamp the four copies before or when you are done filling in this information. After you receive a case number and file-stamp, the clerk will take the original and, sometimes one other copy. This other copy is the chambers copy for the department (or courtroom) where the matter will be heard. Sometimes the clerk will deliver this chambers copy to the department for you; other times, you must drop it off in a drop-box outside the department. Just ask the clerk where the chambers copy goes.
Of your remaining three copies, two are for the district attorney and the legal counsel for the sheriffs/police of the county/city where the property was confiscated. After you have filed the motion with the clerk and have a date and time for your hearing, simply mail one copy of the motion each to (1) the county district attorney and to (2) the legal counsel for the law enforcement that seized the property to the addresses listed on the certificate of service and then retain the final copy for yourself. This constitutes service of the motion.
You will need to bring your copy of the motion and court order for return of property, as well as any other information you have about the seizure and your medical marijuana status to the hearing.