HB 1694-FN – AS INTRODUCED
2012 SESSION
03/04
HOUSE BILL 1694-FN
AN ACT relative to driving under the influence of drugs.
SPONSORS: Rep. Mirski, Graf 10; Rep. Sova, Graf 10
COMMITTEE: Criminal Justice and Public Safety
This bill changes the prohibition on driving under the influence of a controlled drug to driving under the influence of a drug.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2092
03/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to driving under the influence of drugs.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Words and Phrases Defined; Drug. Amend RSA 259 by inserting after section 26 the following new section:
259:26-a Drug. “Drug” shall mean any substance natural or synthetic, or its metabolite, that, when taken into the human body, can impair the ability of the person, to any degree, to safely drive a motor vehicle.
2 Chemical Substance. Amend RSA 261:180, III to read as follows:
III. The commissioner, when suspending a driver’s license or privilege to drive because the driver is an habitual offender or has been convicted of negligent homicide involving the use of a motor vehicle, manslaughter involving the use of a motor vehicle, a subsequent offense of driving or attempting to drive under the influence of intoxicating liquor or any [controlled] drug under RSA 265-A:2, I, or aggravated driving while intoxicated or attempted aggravated driving while intoxicated under RSA 265-A:3, shall also revoke the registration of any vehicle registered to the individual whose license is being revoked or suspended, for the period of revocation or suspension of the license or privilege to drive.
3 Chemical Substance. Amend RSA 265-A:2 to read as follows:
265-A:2 Driving or Operating Under Influence of Drugs or Liquor; Driving or Operating With Excess Alcohol Concentration.
I. No person shall drive or attempt to drive a vehicle upon any way or operate or attempt to operate an OHRV:
(a) While such person is under the influence of intoxicating liquor or any [controlled] drug or any combination of intoxicating liquor and [controlled] drugs; or
(b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.
II. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a [controlled] drug or any combination of intoxicating liquor and a [controlled] drug or drugs, or while such person has an alcohol concentration of 0.08 or more or in the case of persons under the age of 21, 0.02 or more.
4 Chemical Substance. Amend the introductory paragraph of RSA 265-A:3, I to read as follows:
I. While under the influence of intoxicating liquor or any [controlled] drug or any combination of intoxicating liquor and [controlled] drug or drugs and, at the time alleged:
5 Chemical Substance. Amend RSA 265-A:4 to read as follows:
265-A:4 Implied Consent of Driver or Operator to Submit to Testing to Determine Alcohol Concentration. Any person who drives, operates, or attempts to operate an OHRV, drives or attempts to drive a vehicle upon the ways of this state, or operates or attempts to operate a boat upon the public waters of the state shall be deemed to have given consent to physical tests and examinations for the purpose of determining whether such person is under the influence of intoxicating liquor or [controlled] drugs, and to a chemical, infrared molecular absorption, or gas chromatograph test or tests of any or all of any combination of the following: blood, urine, or breath, for the purpose of determining the [controlled] drug content of such person’s blood or alcohol concentration if arrested for any offense arising out of acts alleged to have been committed while the person was driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat while under the influence of intoxicating liquor or [controlled] drugs or while having an alcohol concentration in excess of the statutory limits contained in RSA 265-A:2 or RSA 265-A:3. The test or tests shall be administered at the direction of a law enforcement officer, peace officer, or authorized agent having reasonable grounds to believe the person to have been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving or in actual physical control of a vehicle, or operating or in actual physical control of a boat while under the influence of intoxicating liquor or [controlled] drugs or while having an alcohol concentration of 0.08 or more, or in the case of a person under the age of 21, 0.02 or more. A copy of the report of any such test shall be furnished by the law enforcement agency to the person tested within 48 hours of receipt of the report by the agency by certified mail directed to the address shown on such person’s license or other identification furnished by the person. Results of a test of the breath shall be furnished immediately in writing to the person tested by the certified breath testing operator conducting the test. When the incident involves an accident resulting in death or serious bodily injury to any person as provided in RSA 265-A:16, the prerequisites of RSA 265-A:8 shall not apply. Properly trained personnel of the United States Coast Guard may arrest and conduct tests on persons who are believed to be under the influence of intoxicating liquor or [controlled] drugs, or a combination thereof, and who are in physical control of a boat operating upon the public coastal waters of this state.
6 Chemical Substance. Amend RSA 265-A:5, II to read as follows:
II. All such blood and urine tests made under the direction of a law enforcement officer, authorized agent, or peace officer shall be conducted in the forensic science laboratory of the department of safety established in RSA 106-B:2-a or, in the case of blood and urine samples to be tested for the presence of [controlled] drug, in any other laboratory capable of conducting such tests which is licensed under the laws of this or any other state and which has also been licensed by the U.S. Department of Health and Human Services under the Clinical Laboratory Improvement Act of 1988, as amended.
7 Chemical Substance. Amend RSA 265-A:5, V(a) to read as follows:
(a) Methods and procedures for the testing of blood, urine, and breath to determine alcohol concentration and [controlled] drug content of a person’s blood;
8 Chemical Substance. Amend RSA 265-A:9 to read as follows:
265-A:9 Effect of Evidence of Alcohol Concentration Test. The provisions of this subdivision do not limit the introduction of any other competent evidence bearing on the question of whether a person charged with the violation of RSA 265-A:2, I(a), or RSA 265-A:3, I, was under the influence of intoxicating liquor or any [controlled] drug.
9 Chemical Substance. Amend RSA 265-A:10 to read as follows:
265-A:10 Effect of Evidence of Refusal to Take Alcohol Concentration Test. If a person refuses to submit to a test as provided in RSA 265-A:4, such refusal may be admissible into evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by that person while driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat while under the influence of intoxicating liquor or any [controlled] drug.
10 Chemical Substance. Amend RSA 265-A:11 to read as follows:
265-A:11 Evidence.
I. Upon complaint, information, indictment, or trial of any person charged with the violation of RSA 265-A:2, the court may admit evidence of physical testing of the defendant for being under the influence of intoxicating liquor or [controlled] drugs as provided in RSA 265-A:4, and of the [controlled] drug content of the defendant’s blood and the defendant’s alcohol concentration, as shown by a test of his or her breath, blood, or urine as provided in RSA 265-A:4. Evidence that there was, at the time alleged, an alcohol concentration of 0.03 or less is prima facie evidence that the defendant was not under the influence of intoxicating liquor. Evidence that there was, at the time alleged, an alcohol concentration of more than 0.03 and less than 0.08 is relevant evidence but is not to be given prima facie effect in indicating whether or not the defendant was under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. Evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more is prima facie evidence that the defendant was under the influence of intoxicating liquor. In addition, evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more shall, in conjunction with the evidence otherwise required by RSA 265-A:2, I(b) of driving or attempting to drive a vehicle upon a way, constitute a separate offense under RSA 265-A:2, I(b); and evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more shall, in conjunction with the evidence otherwise required by RSA 265-A:3, II of driving or attempting to drive a vehicle upon a way and of one or more of the circumstances specified in RSA 265-A:3, II (a), (b), (c), and (d) constitute a separate offense under RSA 265-A:3, II; and evidence that there was, at the time alleged, an alcohol concentration of 0.16 or more shall, in conjunction with the evidence otherwise required by RSA 265-A:3, III of driving or attempting to drive a vehicle upon a way, constitute a separate offense under RSA 265-A:3, III.
II. Upon complaint, information, indictment, or trial of any person charged with a violation of the provisions of RSA 265-A:2, II relative to the operation of boats by a person under the influence of intoxicating liquor or a [controlled] drug, the court may admit evidence of the defendant’s alcohol concentration at the time alleged, as shown by a chemical, infrared molecular absorption, or gas chromatograph test or tests of his or her breath, urine, or blood. Evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more, is prima facie evidence that the defendant was under the influence of intoxicating liquor. Evidence that the defendant had, at the time alleged, an alcohol concentration of more than 0.03 and less than 0.08 is relevant evidence and may be considered with other competent evidence in determining whether or not the defendant was under the influence of intoxicating liquor. Evidence that the defendant had, at the time alleged, an alcohol concentration of 0.03 or less is prima facie evidence that the defendant was not under the influence of intoxicating liquor.
11 Chemical Substance. Amend RSA 265-A:12, V to read as follows:
V. Any person who is arraigned on a charge arising under RSA 265-A:2, RSA 265-A:3, or RSA 265-A:43 shall file, within 10 days of such person’s receipt of the results of any toxicology test administered to such person for the presence of any [controlled] drug, a notice in said court requiring the attendance of the certifying scientist. Failure to file notice shall be deemed a waiver to require attendance of the certifying scientist at trial. The official report of the test issued pursuant to RSA 265-A:4 shall be deemed conclusive evidence of the conduct of the result of such test.
12 Chemical Substance. Amend RSA 265-A:14, IV(a) to read as follows:
(a) That the authorized agent or peace officer had reasonable grounds to believe the arrested person had been operating, had been attempting to operate, or was in actual physical control of a boat upon the public waters of this state while under the influence of intoxicating liquor or [controlled] drugs or any combination thereof;
13 Chemical Substance. Amend RSA 265-A:15, I to read as follows:
I. Any law enforcement officer, authorized agent, or peace officer, who has been certified by the police standards and training council according to standards for such certification contained in rules adopted by said council pursuant to RSA 541-A, having reasonable grounds to believe that a person has been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat upon the public waters of the state while under the influence of intoxicating liquor or [controlled] drug or while the person’s alcohol concentration was 0.08 or more or in the case of a person under the age of 21, 0.02 or more or in the case of a person licensed to operate and operating a commercial vehicle or operating a commercial vessel and licensed pursuant to RSA 270-E:22 at the time of the offense, 0.04 or more may, without making an arrest, request that such person submit to a preliminary breath test for alcohol concentration to be administered by the officer. The results of any test administered under this section may be introduced into evidence in a court for any relevant purpose. Failure to submit to the test shall not constitute a violation of this chapter. Evidence of a failure to submit to a preliminary breath test shall not be admissible in court in any prosecution under this subdivision, except for the purpose of determining whether the officer had probable cause to arrest the person. The provisions of this section shall not limit the introduction of any other competent evidence bearing on the question of whether a person charged with violating RSA 265-A:2, I(a), RSA 265-A:2, II, or RSA 265-A:3 was under the influence of intoxicating liquor or any [controlled] drug. Nothing contained in this section shall be construed to prevent or require a subsequent test pursuant to RSA 265-A:4. The police officer requesting the test shall advise orally the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 265-A:4. The results of the test shall be furnished immediately to the person tested by the police officer administering the test and in writing, if requested.
14 Chemical Substance. Amend the introductory paragraph of RSA 265-A:16 to read as follows:
265-A:16 Blood Testing of Certain Motor Vehicle Fatalities. When a collision, boating accident, or OHRV accident results in death or serious bodily injury to any person, all drivers or operators involved, whether living or deceased, and all deceased vehicle, boat, or OHRV occupants and pedestrians involved shall be tested for evidence of alcohol or [controlled] drugs. A law enforcement officer, authorized agent, or peace officer shall request a licensed physician, registered nurse, certified physician’s assistant, or qualified medical technician or medical technologist to withdraw blood from each driver or operator involved if living and from the body of each deceased driver or operator, deceased occupant, or deceased pedestrian, in accordance with RSA 611-B:14, II, for the purpose of testing for evidence of alcohol content or [controlled] drugs; provided that in the case of a living driver or operator the officer has probable cause to believe that the driver or operator caused the collision or accident. All tests made under this section shall be conducted by the forensic science laboratory established in RSA 106-B:2-a or in any other laboratory capable of conducting such tests which is licensed under the laws of this or any other state and which has also been licensed by the U.S. Department of Health and Human Services under the Clinical Laboratory Improvement Act of 1988, as amended. A copy of the report of any such test shall be kept on file by the medical examiner. The filed report is not a public record under RSA 91-A. However, the report shall be made available to the following:
15 Chemical Substance. Amend RSA 265-A:17 to read as follows:
265-A:17 Arrest Without a Warrant. Notwithstanding any other statutory provision of law to the contrary, a law enforcement officer may, without a warrant, arrest any person involved in a traffic accident, OHRV accident, or boating accident when the officer has probable cause to believe that such person has committed an offense, an element of which is driving under the influence of intoxicating liquors, [controlled] drugs or both. Notwithstanding any statutory provision of law to the contrary, a law enforcement officer may make such an arrest in such officer’s own jurisdiction or on the property of any medical facility in another jurisdiction in this state where the person or others are taken for treatment for injuries suffered in such traffic accident.
16 Chemical Substance. Amend RSA 265-A:21, I to read as follows:
I. Notwithstanding the provisions of RSA 651:5, no court shall order an annulment of any record of conviction of driving or attempting to drive a vehicle upon any way or driving, operating, attempting to operate, or being in actual physical control of an OHRV or operating or attempting to operate a boat on the waters of this state while under the influence of intoxicating liquor or any [controlled] drug or while having an alcohol concentration of 0.08 or more or of aggravated drunken driving until 10 years after the date of conviction. Any record thus annulled shall be retained in a permanent file, to be opened only for purposes of sentencing in the case of an offense under RSA 265-A:3.
17 Chemical Substance. Amend RSA 265-A:35, II to read as follows:
II. No holder of a probationary license shall drive or attempt to drive a vehicle upon any way when he or she is under the influence of intoxicating liquor or any [controlled] drug or any combination of intoxicating liquor and [controlled] drugs, so that the alcohol concentration is 0.03 or more. Driving with an alcohol concentration of 0.03 or more is a per se violation of a probationary license and subjects the probationary license holder to administrative suspension of his or her driver’s license for not less than 90 days and not more than 180 days. Such administrative suspension shall be in addition to any court imposed suspension or revocation periods.
18 Chemical Substance. Amend RSA 270:12-a, I(b) to read as follows:
(b) The provisions of RSA 265-A, relative to the operation or attempted operation of boats by a person under the influence of intoxicating liquor or a [controlled] drug or other unlawful operation of boats thereunder;
19 Chemical Substance. Amend RSA 651:6, II(b)-(c) to read as follows:
(b) Has previously been convicted of a violation of RSA 630:3, II, RSA 265-A:3, I(b) or II(b), or any crime in any other jurisdiction involving driving or attempting to drive a motor vehicle under the influence of [controlled] drugs or intoxicating liquors, or both, and such person has committed a crime as defined under RSA 630:3, II or RSA 265-A:3, I(b) or II(b); or
(c) Has twice previously been convicted in this state or any other jurisdiction, for driving or attempting to drive a motor vehicle under the influence of intoxicating liquors or [controlled] drugs, or both, and such person has committed a crime as defined under RSA 630:3, II or RSA 265-A:3, I(b) or II(b).
20 Effective Date. This act shall take effect January 1, 2013.
LBAO
12-2092
01/03/12
HB 1694-FN - FISCAL NOTE
AN ACT relative to driving under the influence of drugs.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, Department of Corrections, Department of Safety, New Hampshire Association of Counties, and New Hampshire Municipal Association state this bill will increase state, county, and local expenditures by an indeterminable amount in FY 2013 and each year thereafter. The Department of Safety states this bill will increase state revenue by an indeterminable amount in FY 2013 and each year thereafter. There is no fiscal impact on county and local revenue.
METHODOLOGY:
The Judicial Branch states the proposed bill would amend multiple sections of RSA Title 21, dealing with motor vehicles, and well as RSA 651:6, II(b)-(c), to change the prohibition of driving under the influence of a “controlled drug” to driving under the influence of a “drug.” Expanding the offense from being under the influence of a “controlled drug” to a “drug” has the potential of adding many criminal prosecutions to the caseload of the Branch. The offenses involved include class B misdemeanors, class A misdemeanors, and class B felonies. The Branch also states the cases added to the caseload could involve longer trials than the norm because of the proof necessary to prove beyond a reasonable doubt that one was under the influence of a “drug,” as opposed to a “controlled drug.” The Branch has no information to estimate how many charges would be brought as a result of the changes contained in the bill to determine the fiscal impact on expenditures; however it has information on the cost for processing these cases. The Branch states a class A misdemeanor will cost $59.11 per case in FY 2013 and $61.31 per case in FY 2014 and each year thereafter, and a class B misdemeanor will cost $43.19 per case in FY 2013 and $44.54 per case in FY 2014 and each year thereafter. The Branch states the felony in this statute would be classified as an average routine felony and treated as an average routine criminal case in the Superior Court. The Branch states an average routine criminal case will cost $389.84 per case in FY 2013 and $401.48 per case in FY 2014 and each year thereafter. The Branch also states it cannot estimate what the increase in expenditures would be due to the increase in length of the average trial as a result of this bill. The possibility of appeals in all of these instances increases the likelihood the fiscal impact on the Branch will exceed $10,000.
The Judicial Council states this bill could drastically increase the number of cases which might be brought for impaired driving, which is an offense commonly committed by those eligible for indigent defense representation. To the extent individuals are charged under the bill and are found to be indigent, the Council states there will be indeterminable increase in general fund expenditures. The Council cannot predict the number of cases that may arise, but states if an individual is found to be indigent, the flat fees of $275 per misdemeanor and $756.25 per felony are charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with caps of $1,400 for a misdemeanor and $4,100 for a felony. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is capped at $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The Department of Justice states the criminal offense in this bill is typically prosecuted by the county attorney, and that any action required of the Department during any related appeals that may arise would most likely be undertaken within its existing budget.
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. 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 Safety states this bill’s broadening of the definition of what constitutes a drug for the purposes of ‘driving under the influence’ offenses may require the state police forensic laboratory personnel to undergo additional training, at an indeterminable cost, to enable them to identify the additional substances. The Department also states its bureau of hearings will also experience an increase in costs of an indeterminable amount due to the increase in administrative license suspension cases it predicts will arise as a result of this bill. Because this bill expands the actions that constitute a crime, the Department also estimates state revenues will increase by an indeterminable amount as a result of an increase in fine and penalty assessment revenue.
The New Hampshire Association of Counties states to the extent more individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be charged, convicted or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.
The New Hampshire Municipal Association states this bill may increase local expenditures by an amount it cannot estimate for additional enforcement and investigation costs, including the increase in laboratory costs associated with testing for a wider list of substances and the increase in the number of arrests performed by local law enforcement.