Americans for Safe <http://www.safeaccessnow.org/section.php?id=187> Access
- Return of Property
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
<http://www.safeaccessnow.org/downloads/GardenGroveDecision.pdf> City of
Garden Grove v. Superior Court, (2007) 157 Cal.App.4th, which followed from
our People v. Kha <http://www.safeaccessnow.org/article.php?id=4412> 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). For more on the risks of possible
retaliatory charges, see III. on this FAQ
<http://www.safeaccessnow.org/article.php?id=4739> .
We are available to answer any of your questions and intend to support you
every step of the way. Call us at 510-251-1856 (Tu. & Th., 11am-7pm) or
email the Legal Services Coordinator at legalsupport
<mailto:legalsupport@safeaccessnow.org> @safeaccessnow.org
<mailto:legalsupport@safeaccessnow.org> .
_____
Here is the information you will need to complete the motion:
* Name
* Address
* Fax # (if you have one)
* County
* Case # (if one exists)
* Law Enforcement agency involved
* Where seized from (person, vehicle, residence)
* Date of seizure
* What was seized and how much?
* Were you cultivating?
* Name of your Doctor
* Do you have a medical marijuana photo ID?
* Do you have a property receipt (if so, it should include case
number)?
* Copy of City of Garden Grove v. Superior Court
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, chck 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”.
* Motion for <http://www.safeaccessnow.org/downloads/RoPMotion.doc>
Return of Property in .DOC format, or
* Motion for <http://www.safeaccessnow.org/downloads/ROP%20WPD.wpd>
Return of Property in .WPD format
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.
* Instructions for <http://www.safeaccessnow.org/article.php?id=2696>
filing your Motion
* <http://www.safeaccessnow.org/downloads/GardenGroveDecision.pdf>
City of Garden Grove v. Superior Court
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
<http://www.safeaccessnow.org/downloads/RoPClerkLetter.pdf> 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
<http://www.safeaccessnow.org/article.php?id=4751> Coodinator 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.
* Instructions for <http://www.safeaccessnow.org/article.php?id=2697>
arguing your Motion
* <http://www.safeaccessnow.org/downloads/GardenGroveDecision.pdf>
City of Garden Grove v. Superior 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
<http://www.safeaccessnow.org/article.php?id=4751> Coodinator as ASA is
likely to send out a letter that is similar to the following letter
threatening contempt.
* Sample
<http://www.safeaccessnow.org/downloads/RoPContemptLetter.pdf> Letter to
Legal Counsel 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 your property has been destroyed
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
<http://www.safeaccessnow.org/downloads/Tort%20Claim%20County%20Clerk.doc>
this template
* If the Police confiscated your property: Use
<http://www.safeaccessnow.org/downloads/Tort%20Claim%20City%20Clerk.doc>
this template
* If the California Highway Patrol confiscated your property: Use
<http://www.safeaccessnow.org/downloads/Tort%20Claim%20CHP.doc> this
template and then fill out and attach this Government
<http://www.boc.ca.gov/docs/forms/claims/GCClaimForm.pdf> 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.
Please call or email the Legal Services Coordinator at 510-251-1856 (Tu. &
Th., 10am-5pm) or legalsupport@safeaccessnow.org if you have any more
questions or problems with filling out and filing the motion or any other
part of the process.