HB 378-FN – AS AMENDED BY THE HOUSE
15Mar2011… 0582h
2011 SESSION
04/09
HOUSE BILL 378-FN
AN ACT inserting an exception to the criminal threatening statute, relative to the minimum mandatory sentence for a felony conviction involving the possession, use, or attempted use of a firearm, and relative to the definition of “non-deadly” force.
SPONSORS: Rep. B. Patten, Carr 4; Rep. Welch, Rock 8; Rep. Fields, Belk 2; Rep. Sterling, Ches 7; Rep. Knox, Carr 4; Sen. Forrester, Dist 2
COMMITTEE: Criminal Justice and Public Safety
This bill provides that a person who is on his or her own property and who responds to a trespasser who refuses to leave and displays a firearm or other means of self-defense with the intent to warn away the person making the threat shall not have committed criminal threatening. The bill also removes the minimum mandatory sentence for conviction of a felony involving the possession, use, or attempted use of a firearm, and makes the sentence for such a felony conviction discretionary.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.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… 0582h
11-0440
04/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT inserting an exception to the criminal threatening statute, relative to the minimum mandatory sentence for a felony conviction involving the possession, use, or attempted use of a firearm, and relative to the definition of “non-deadly” force.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Paragraph; Assault and Related Offenses; Criminal Threatening. Amend RSA 631:4 by inserting after paragraph IV the following new paragraph:
V. A person who is on his or her own property and who responds to a trespasser who refuses to leave and displays a firearm or other means of self-defense with the intent to warn away the person shall not have committed a criminal act under this section.
2 Sentences and Limitations. Amend RSA 651:2, II-g to read as follows:
II-g. If a person is convicted of a felony, an element of which is the possession, use or attempted use of a deadly weapon, and the deadly weapon is a firearm, such person may be sentenced to a maximum term of 20 years’ imprisonment in lieu of any other sentence prescribed for the crime. The person [shall] may be given a minimum [mandatory] sentence of not less than 3 years’ imprisonment for a first offense and a minimum [mandatory] sentence of not less than 6 years’ imprisonment if such person has been previously convicted of any state or federal offense for which the maximum penalty provided was imprisonment in excess of one year, and an element of which was the possession, use or attempted use of a firearm. Neither the whole nor any part of the minimum sentence imposed under this paragraph shall be suspended or reduced.
3 Justification; Definitions. Amend RSA 627:9, IV to read as follows:
IV. “Non-deadly force” means any assault or confinement which does not constitute deadly force. The act of producing, displaying, or pointing a weapon shall constitute non-deadly force.
4 Effective Date. This act shall take effect January 1, 2012.
LBAO
11-0440
Amended 09/12/11
HB 378 FISCAL NOTE
AN ACT inserting an exception to the criminal threatening statute, relative to the minimum mandatory sentence for a felony conviction involving the possession, use, or attempted use of a firearm, and relative to the definition of “non-deadly” force.
FISCAL IMPACT:
The Judicial Council and Department of Corrections state this bill, as amended by the House (Amendment #2011-0582h), may decrease state expenditures by an indeterminable amount in FY 2012 and each year thereafter. There is no fiscal impact on state, county or local revenue and local expenditures.
The Office of Legislative Budget Assistant is awaiting information from the Judicial Branch and the NH Association of Counties relative to the potential fiscal impact of this bill. The Branch was initially contacted on 03/21/11 and most recently contacted on 06/12/11.
METHODOLOGY:
The Judicial Council states this bill, as amended, amends RSA 631:4,IV to make an exception to the criminal threatening statute for a person who is on his or her own property and removes the minimum mandatory sentence for conviction of a felony involving the possession, use or attempted use of a firearm and makes the sentence for such felony conviction discretionary. The Council states this bill may decrease expenditure of indigent defense funds by an indeterminable amount but has no information to determine how many indigent defenses clients would not have been charged if this bill was in effect. The Council is able to provide information on the cost of felony cases involving indigent defense clients. The Council states if an individual is found to be indigent, the flat fee of $756.24 per felony is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $4,100 for a felony charge. The Council also states costs associated with appeals and services other than counsel may decrease if this bill results in less felony cases involving indigent defense clients.
The Department of Corrections states it is not able to determine the fiscal impact of this bill because it does not have sufficient detail to predict the number of individuals who would be subject to this legislation and thus avoid incarceration in the State’s prisons. The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2010 was $32,492. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2010 was $659.
The Department of Justice states this bill will have no fiscal impact on the Department as misdemeanor charges are typically prosecuted by local or county prosecutors.
Prior to House amendment 2011-0582h, the Judicial Branch and the New Hampshire Association of Counties provided the following fiscal impacts for HB 378:
The Judicial Branch states this bill amends RSA 631:4,IV to make an exception to the criminal threatening statute for a person who is on his or her own property. The Branch states this bill could result in a decrease in costs to the Branch by removing average routine criminal cases. The Branch has no information to estimate how many cases will no longer be brought but does have estimated costs for processing a average routine criminal cases. The Branch states an average routine criminal case costs $394.13 per case in FY 2012 and $399.33 per case in FY 2013 and each year thereafter. Additionally, the possibility of a decrease in appeals increases the likelihood the decrease on the Branch’s expenditures will exceed $10,000.
The New Hampshire Association of Counties states to the extent less individuals are incarcerated in county facilities; county expenditures may decrease by an indeterminable amount. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000.