HB 225-FN – AS AMENDED BY THE HOUSE
15Mar2011… 0541h
2011 SESSION
09/10
HOUSE BILL 225-FN
AN ACT relative to the return of personal property confiscated by law enforcement agencies from a person charged with a crime.
SPONSORS: Rep. Giuda, Merr 7; Rep. Baldasaro, Rock 3; Rep. Jennifer Coffey, Merr 6; Rep. J. Richardson, Merr 8; Rep. McDonnell, Merr 7; Rep. Avard, Hills 20; Rep. Notter, Hills 19; Rep. Panek, Straf 3; Rep. Kreis, Merr 6; Rep. Krasucki, Hills 26; Sen. Barnes, Jr., Dist 17; Sen. Bradley, Dist 3
COMMITTEE: Criminal Justice and Public Safety
This bill requires the return of personal property confiscated by law enforcement agencies within 5 business days of the acquittal or dismissal of proceedings against a person charged with a crime.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
15Mar2011… 0541h
11-0495
09/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to the return of personal property confiscated by law enforcement agencies from a person charged with a crime.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Return of Personal Property Seized by Law Enforcement Agencies. Amend RSA 595-A:6 to read as follows:
595-A:6 Seizure, Custody and Disposition of Articles; Exceptions.
I. Except as provided in paragraph II, if an officer in the execution of a search warrant, or by some other authorized method, finds property or articles he is empowered to take, he shall seize and safely keep them under the direction of the court or justice so long as necessary to permit them to be produced or used as evidence in any trial. Upon application by a prosecutor, defendant, or civil claimants, the court, prior to trial or upon an appeal after trial, shall, upon notice to a defendant and hearing, and except for good cause shown, order returned to the rightful owners any stolen, embezzled or fraudulently obtained property, or any other property of evidential value, not constituting contraband. This section shall apply regardless of how possession of the property was obtained by the state. Photographs or other identification or analysis made of the returned property shall be admissible at trial as secondary evidence, in lieu of the originals, for all relevant purposes, including ownership. In the case of unknown, unapprehended defendants, or defendants wilfully absent from the jurisdiction, the court shall have discretion to appoint a guardian ad litem to represent the interest of such unknown or absent defendants. The judicial findings on such matters as ownership, identification, chain of possession or value made at such an evidentiary hearing for the restoration of property to the rightful owners shall thereafter be admissible at trial, to be considered with other evidence on the same issues, if any, as may be admitted before the finder of fact. All other property seized in execution of a search warrant or otherwise coming into the hands of the police shall be returned to the owner of the property, or shall be disposed of as the court or justice orders, which may include forfeiture and either sale or destruction as the public interest requires, in the discretion of the court or justice, and in accordance with due process of law. Any property, the forfeiture and disposition of which is specified in any general or special law, shall be disposed of in accordance therewith.
II. Upon the acquittal of or dismissal of criminal proceedings against a person charged with a crime or upon the disposal of criminal proceedings against a person by nol prosequi or upon a finding that no abuse has occurred in a proceeding against a person under RSA 173-B, any personal property owned by such person, including weapons, confiscated by a law enforcement agency or entity under this section shall be returned to the person by the law enforcement agency or entity that confiscated the personal property within 21 days of the date of the acquittal or dismissal or nol prosequi or determination of no finding. This section shall not apply to illegal contraband or to personal property that a person is prohibited from possessing under state or federal law. If after diligent efforts the agency or entity is unable to comply with this section, it may file a request with the court for an extension or exemption. Any agency or entity not complying with this paragraph shall pay a civil penalty of $100 per day to the person for each day the agency or entity is in noncompliance, not to exceed a total civil penalty of $10,000.
2 Effective Date. This act shall take effect January 1, 2012.
LBAO
11-0495
Amended 09/09/11
HB 225 FISCAL NOTE
AN ACT relative to the return of personal property confiscated by law enforcement agencies from a person charged with a crime.
FISCAL IMPACT:
The Department of Safety and New Hampshire Municipal Association state this bill, as amended by the House (Amendment #2011-0541h), may increase state, county and local expenditures by an indeterminable amount in FY 2012 and each year thereafter. There is no fiscal impact on state, county and local revenue.
The Office of Legislative Budget Assistant is awaiting information from the Judicial Branch relative to the potential fiscal impact of this bill, as amended by the House (amendment 2011-0541h). The Branch was initially contacted on 3/21/11 and most recently contacted on 06/12/11.
METHODOLOGY:
The Department of Safety states this bill adds RSA 595-A:6, II to provide for the return of personal property to an innocent person within five working days of the acquittal or dismissal of criminal proceedings. An entity’s failure to return the personal property within the established time period presumes the innocent person’s constitutional rights have been violated and the entity is liable for a fine of $100 for each day that it is in noncompliance with the law. The Department cannot determine how many instances of noncompliance will occur or what the duration of those instances might be to determine the fiscal impact. The Department assumes this bill will result in an indeterminable increase in state, county and local expenditures.
The New Hampshire Municipal Association states to the extent municipal law enforcement entities are out of compliance or unable to comply, costs may be significant. The Association cannot determine how many instances of noncompliance will occur or what the duration of those instances might be to determine the fiscal impact.
The Judicial Branch response to this bill prior to amendment 2011-0541h indicated the only time it may have personal property is if it is offered as evidence in the course of a criminal case. The Branch estimated the as bill as introduced will have limited fiscal impact as it relates to establishing procedures to return personal items to defendants who have been acquitted or whose case has been dismissed. The Branch stated this bill as introduced could result in a fiscal impact related to claims made that constitutional rights have been violated and for the $100 a day penalty. The Branch has no basis to estimate how many such actions might be made or the extent of such actions.