SB 197-FN - AS INTRODUCED
2015 SESSION
15-0586
04/09
SENATE BILL 197-FN
AN ACT relative to mandatory minimum sentences.
SPONSORS: Sen. Lasky, Dist 13; Sen. Pierce, Dist 5; Rep. Pantelakos, Rock 25; Rep. J. Frazer, Merr 13
This bill eliminates mandatory minimum sentences.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
15-0586
04/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fifteen
AN ACT relative to mandatory minimum sentences.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Pistols and Revolvers; Armed Career Criminals. Amend RSA 159:3-a to read as follows:
159:3-a Armed Career Criminals.
I. No person who has been convicted of any combination of 3 or more felonies in this state or any other state under homicide, assault, sexual assault, arson, burglary, robbery, extortion, child pornography, or controlled drug laws, shall own or have in his possession or under his control, a pistol, revolver, rifle, shotgun, or any other firearm.
II. Any person who violates paragraph I shall be guilty of a felony and, notwithstanding RSA?651:2, II, shall be sentenced to a [minimum mandatory term of 10 years imprisonment and a] maximum term of imprisonment of not more than 40 years and shall be fined not more than $25,000.
[III. Notwithstanding any other provision of law, neither the whole, nor any part of the minimum mandatory sentence provided under paragraph II shall be served concurrently with any other term, nor shall the whole or any part of such additional term of imprisonment be suspended or deferred. No action brought to enforce sentencing under this section shall be continued for sentencing, nor shall the provisions of RSA 651:20 relative to suspensions or RSA 651-A relative to parole apply to any sentence of imprisonment imposed.]
2 Habitual Offenders; Penalty. Amend RSA 262:23, I-III to read as follows:
I. It shall be unlawful for any person to drive any motor vehicle on the ways of this state while an order of the director or the court prohibiting such driving remains in effect. If any person found to be an habitual offender under the provisions of this chapter is convicted of driving a motor vehicle on the ways of this state while an order of the director or the court prohibiting such operation is in effect, he or she shall be guilty of a felony and sentenced, notwithstanding the provisions of RSA title LXII, to imprisonment for not [less than one year nor] more than 5 years. [No portion of the minimum mandatory sentence shall be suspended, and no case brought to enforce this chapter shall be continued for sentencing; provided, however, that any sentence or part thereof imposed pursuant to this section may be suspended in cases in which the driving of a motor vehicle was necessitated by situations of apparent extreme emergency which required such operation to save life or limb.] Any sentence of one year or less imposed pursuant to this paragraph shall be served in a county correctional facility. [The sentencing court may order that any such offender may serve his or her sentence under home confinement pursuant to RSA 651:19 based on the rules and regulations of the county correctional facility where the sentence is to be served for the minimum mandatory term or any portion thereof, provided the offender first serves 14 consecutive days of imprisonment prior to eligibility for home confinement. Habitual offenders shall only be eligible for the home confinement program once per lifetime.] Any sentence of more than one year imposed pursuant to this paragraph shall be served in the state prison.
II. For the purpose of enforcing this section, in any case in which the accused is charged with driving a motor vehicle while his license, permit or privilege to drive is suspended or revoked, or is charged with driving without a license, the court before hearing such charge shall determine whether such person has been held an habitual offender and by reason of such holding is barred from driving a motor vehicle on the ways of this state. For the purposes of this section, in determining whether the person has been held an habitual offender and by reason of such holding is barred from driving a motor vehicle on the ways of this state, a certified copy of the individual’s motor vehicle record on file with the division shall be as competent evidence in any court within this state as the original record would be if produced by the director as legal custodian thereof.
III. Notwithstanding paragraph I, any person who qualifies under RSA 259:39 [shall not be subject to the minimum mandatory provisions of paragraph I if, and only if, that person’s] whose certification was not based on any conviction under RSA 265-A:2, I or any misdemeanor or felony motor vehicle conviction pursuant to RSA title XXI, and that person has not been convicted of any such offense, or any reasonably similar offense in any jurisdiction within the United States and Canada, [since the date of the certification; provided, however, that any such person] shall be guilty of a class A misdemeanor and may be sentenced to one year or less. [Any person incarcerated upon the effective date of this paragraph, pursuant to certification as an habitual offender under RSA 259:39, who does not have a conviction under RSA 265-A:2, I involving a vehicle or any misdemeanor or felony motor vehicle convictions pursuant to RSA title XXI, may apply immediately to the superior court for sentence review and reduction.]
3 License Suspension and Revocation; Driving After Revocation or Suspension. Amend RSA?263:64, IV to read as follows:
IV. Any person who violates this section by driving or attempting to drive a motor vehicle or by operating or attempting to operate an OHRV or snowmobile in this state during the period of suspension or revocation of his or her license or driving privilege for a violation of RSA 265:79 or an equivalent offense in another jurisdiction shall be guilty of a misdemeanor. Any person who violates this section by driving or attempting to drive a motor vehicle or by operating or attempting to operate an OHRV or snowmobile in this state during the period of suspension or revocation of his or her license or driving privilege for a violation of RSA 265-A:2, I, RSA 265-A:3, RSA 630:3, II, RSA 265:82, or RSA 265:82-a or an equivalent offense in another jurisdiction shall be guilty of a misdemeanor [and shall be sentenced to imprisonment for a period not less than 7 consecutive 24-hour periods to be served within 6 months of the conviction], shall be fined not more than $1,000, and shall have his or her license or privilege revoked for an additional year. [No portion of the minimum mandatory sentence of imprisonment shall be suspended by the court.] No case brought to enforce this paragraph shall be continued for sentencing for longer than 35 days. [No person serving the minimum mandatory sentence under this paragraph shall be discharged pursuant to authority granted under RSA 651:18, released pursuant to authority granted under RSA 651:19, or in any manner, except as provided in RSA 623:1, prevented from serving the full amount of such minimum mandatory sentence under any authority granted by title LXII or any other provision of law.]
4 Penalties for Intoxication or Under Influence of Drugs Offenses. Amend RSA 265-A:18, I(c)(3) to read as follows:
(3) [Sentenced to a mandatory sentence of not less than 35 consecutive days in the county correctional facility, of which 21 shall be suspended. The court shall refer the person] Referred to an IDCMP [to schedule] for a full substance use disorder evaluation. [A condition of the suspension shall be that upon release from serving the 14 days in the county correctional facility,] The person shall schedule a substance use disorder evaluation within 30 days of sentencing or release from incarceration, whichever is later, complete the required substance use disorder evaluation within 60 days of sentencing or release from incarceration, whichever is later, and comply with the service plan developed. The IDCMP shall administer the substance use disorder evaluation and shall develop the service plan from that substance use disorder evaluation. Any portion of the suspended sentence to the county correctional facility may be imposed if the defendant does not comply with all of the requirements of this subparagraph or becomes noncompliant with the service plan during the suspension period;
5 Penalties for Intoxication or Under Influence of Drugs Offenses. Amend RSA 265-A:18, IV(a)-(b) to read as follows:
(a) For a second offense:
(1) The person shall be guilty of a class A misdemeanor;
(2) The person shall be fined not less than $750;
(3)[(A)] If the complaint alleges that the prior conviction occurred within [2] 10 years preceding the date of the second offense, [the person shall be sentenced to a mandatory sentence of not less than 60 consecutive days in the county correctional facility, of which 30 days shall be suspended. ] the court shall refer the person to an IDCMP to schedule a full substance use disorder evaluation. [A condition of the suspension shall be that upon release from serving the 30 days in the county correctional facility,] The person shall schedule a substance use disorder evaluation within 30 days of sentencing or release from incarceration, whichever is later, complete the required substance use disorder evaluation within 60 days of sentencing or release from incarceration, whichever is later, and comply with the service plan developed. The IDCMP shall administer the substance use disorder evaluation and shall develop the service plan from that substance use disorder evaluation. Any portion of the suspended sentence to the county correctional facility may be imposed if the defendant does not comply with all of the requirements of this subparagraph or becomes noncompliant with the service plan during the suspension period; and
[(B) If the complaint alleges that the prior conviction occurred more than 2 but not more than 10 years preceding the date of the second offense, the person shall be sentenced to a mandatory sentence of not less than 17 consecutive days in the county correctional facility, of which 12 days shall be suspended. The court shall refer the person to an IDCMP to schedule a full substance use disorder evaluation. A condition of the suspension shall be that upon release from serving the 5 days in the county correctional facility, the person shall schedule a substance use disorder evaluation within 30 days of release, complete the required substance use disorder evaluation within 60 days of release, and comply with the service plan developed. The IDCMP shall administer the substance use disorder evaluation and shall develop the service plan from that substance use disorder evaluation. Any portion of the suspended sentence to the county correctional facility may be imposed if the defendant does not comply with all of the requirements of this subparagraph or becomes noncompliant with the service plan during the suspension period; and]
(4) The person’s driver’s license or privilege to drive shall be revoked for not less than 3 years. The person’s driver’s license or privilege to drive shall not be restored by the department until the person shall have completed the service plan developed by the IDCMP, and paid all relevant fees.
(b) For a third offense, any person convicted under this paragraph shall be subject to all the penalties of subparagraph (a) except that:
(1) The person’s driver’s license or privilege to drive shall be revoked indefinitely and shall not be restored for at least 5 years. At the end of the 5-year minimum revocation period the person may petition the court for eligibility to reapply for a driver’s license and the court, for good cause shown, may grant such eligibility subject to such terms and conditions as the court may prescribe. Any untimely petition under this subparagraph shall be dismissed without a hearing. If such petition is granted and the person is otherwise eligible for license restoration, the person may then apply to the director for restoration of driver’s license, but the license shall not be restored until all requirements under law are met. The person’s driver’s license or privilege to drive shall not be restored by the department until the person shall have completed the service plan developed by the IDCMP, and paid all relevant fees.
(2) [The person shall be sentenced to a mandatory sentence of not less than 180 consecutive days of which 150 shall be suspended.] The court shall refer the person to an IDCMP to schedule a full substance use disorder evaluation. [A condition of the suspension shall be that upon release from serving the 30 days in the county correctional facility,] The person shall schedule a substance use disorder evaluation within 30 days of sentencing or release from incarceration, whichever is later, complete the required substance use disorder evaluation within 60 days of sentencing or release from incarceration, whichever is later, and comply with the service plan developed. The IDCMP shall administer the substance use disorder evaluation and shall develop the service plan from that substance use disorder evaluation. Any portion of [the] a suspended sentence to the county correctional facility may be imposed if the defendant does not comply with all of the requirements of this subparagraph or becomes noncompliant with the service plan during the suspension period. [The remainder of the sentence may be deferred for a period of up to 2 years. The court may, at the satisfactory completion of any required treatment, suspend any remaining deferred sentence.]
6 Penalties for Intoxication or Under Influence of Drugs Offenses. Amend RSA 265-A:18, VII to read as follows:
VII. [No portion of the minimum mandatory sentence of imprisonment and no portion of the mandatory sentence of the period of revocation and] No portion of any fine imposed under this section shall be suspended or reduced by the court. No case brought to enforce this section shall be continued for sentencing for longer than 35 days. [No person serving the minimum mandatory sentence under this section shall be discharged pursuant to authority granted under RSA 651:18, released pursuant to authority granted under RSA 651:19, or in any manner, except as provided in RSA 623:1, prevented from serving the full amount of such minimum mandatory sentence under any authority granted by RSA title LXII or any other provision of law.]
7 Controlled Drug Act; Penalties. Amend RSA 318-B:26, V-VI to read as follows:
V. Any person who violates this chapter by manufacturing, selling, prescribing, administering, dispensing, or possessing with intent to sell, dispense, or compound any controlled drug or its analog, in or on or within 1,000 feet of the real property comprising a public or private elementary, secondary, or secondary vocational-technical school, may be sentenced to a term of imprisonment or fine, or both, up to twice that otherwise authorized by this section. [Except to the extent a greater minimum sentence is otherwise provided by this chapter, a sentence imposed under this paragraph shall include a mandatory minimum term of imprisonment of not less than one year. Neither the whole nor any part of the mandatory minimum sentence imposed under this paragraph shall be suspended or reduced.]
VI. Except as otherwise provided in this paragraph, a person convicted under RSA 318-B:2, XII as a drug enterprise leader [shall be sentenced to a mandatory minimum term of not less than 25 years and] may be sentenced to a maximum term of not more than life imprisonment. The court may also impose a fine not to exceed $500,000 or 5 times the street value of the controlled drug or controlled drug analog involved, whichever is greater. [Upon conviction, the court shall impose the mandatory sentence unless the defendant has pleaded guilty pursuant to a negotiated agreement or, in cases resulting in trial, the defendant and the state have entered into a post-conviction agreement which provides for a lesser sentence. The negotiated plea or post-conviction agreement may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified fine, or other disposition. In that event, the court at sentencing shall not impose a lesser term of imprisonment or fine than that expressly provided for under the terms of the plea or post-conviction agreement.]
8 Methamphetamine-Related Offenses; Manufacture of Methamphetamine. Amend RSA 318-D:2, II to read as follows:
II. Notwithstanding the provisions of RSA 318-B:26, I, a person convicted under this section may be sentenced to imprisonment for not more than 30 years, a fine of not more than $500,000, or both. A person convicted under this section who has one or more prior offenses as defined in RSA 318-B:27, [shall] may be sentenced up to [imprisonment for not less than 5 years and not more than] life imprisonment, and a fine of not more than $500,000, or both.
9 Sabotage Prevention. Amend RSA 649:2 and 649:3 to read as follows:
649:2 Intentional Injury to or Interference With Property. Whoever intentionally destroys, impairs, injures, interferes or tampers with real or personal property with reasonable grounds to believe that such act will hinder, delay or interfere with the preparation of the United States or of any of the states for defense or for war, or with the prosecution of war by the United States, or by any country with which the United States shall then maintain friendly relations, shall be guilty of a class A felony. [Provided, if such person so acts with the intent to hinder, delay or interfere with the preparation of the United States or of any of the states for defense or for war, or with the prosecution of war by the United States or by any country with which the United States shall then maintain friendly relations, the minimum punishment shall be imprisonment for not less than one year.]
649:3 Intentionally Defective Workmanship. Whoever intentionally makes or causes to be made or omits to note on inspection any defect in any article or thing with reasonable grounds to believe that such article or thing is intended to be used in connection with the preparation of the United?States or any of the states for defense or for war, or for the prosecution of war by the United?States, or by any country with which the United States shall then maintain friendly relations, or that such article or thing is one of a number of similar articles or things, some of which are intended so to be used, shall be guilty of a class A felony. [Provided, if such person so acts or so fails to act with the intent to hinder, delay or interfere with the preparation of the United States or of any of the states for defense or for war, or with the prosecution of war by the United States or by any country with which the United States shall then maintain friendly relations, the minimum punishment shall be imprisonment for not less than one year.]
10 Homicide; First Degree Murder. Amend RSA 630:1-a, III to read as follows:
III. A person convicted of a murder in the first degree [shall] may be sentenced to life imprisonment [and shall not be eligible for parole at any time].
11 Sexual Assault and Related Offenses; Penalties. Amend RSA 632-A:10-a, III to read as follows:
III. A person convicted of a murder in the first degree [shall] may be sentenced to life imprisonment [and shall not be eligible for parole at any time].
12 Obstructing Governmental Operations; Escape. Amend RSA 642:6, IV to read as follows:
IV. If a person is convicted of the offense of escape under this section, the term of imprisonment authorized by RSA 651:2, II or RSA 651:6 [shall] may be added to the portion of the term which remained unserved at the time of the commission of the offense.
13 Obstructing Governmental Operations; Assaults by Prisoners. Amend RSA 642:9, V to read as follows:
V. If a person is convicted of the offense of assault under this section, the term of imprisonment authorized by RSA 651:2, II or RSA 651:6 [shall] may be consecutive to and not concurrent with any other sentence to be served.
14 Sentences and Limitations. Amend RSA 651:2, II-b to read as follows:
II-b. A person convicted of a second or subsequent offense for the felonious use of a firearm, as provided in RSA 650-A:1, [shall] may, in addition to any punishment provided for the underlying felony, be [given a minimum mandatory sentence of 3 years] sentenced to an additional term of imprisonment. Neither the whole nor any part of the additional sentence of imprisonment hereby provided shall be served concurrently with any other term nor shall the whole or any part of such additional term of imprisonment be suspended. No action brought to enforce sentencing under this section shall be continued for sentencing[, nor shall the provisions of RSA 651-A relative to parole apply to any sentence of imprisonment imposed].
15 Extended Term of Imprisonment. Amend RSA 651:6, III(d)-(g) to read as follows:
(d) Murder, the court may impose a sentence of life imprisonment;
(e) Two or more offenses under RSA 632-A:2, the court may impose a sentence of life imprisonment without parole;
(f) A third offense under RSA 632-A:3, the court may impose a sentence of life imprisonment; or
(g) Any of the crimes listed under RSA 651:6, I(j), [a minimum to be fixed by the court of not less than 90 days and] a maximum of not more than one year.
16 Extended Term of Imprisonment. Amend RSA 651:6, IV(a) to read as follows:
(a) [There is a presumption that a person shall be sentenced to a minimum to be fixed by the court of not less than 25 years and] The person may be sentenced to a maximum of life imprisonment unless the court makes a determination that the goals of deterrence, rehabilitation, and punishment would not be served, based on the specific circumstances of the case, by such a sentence and the court makes specific written findings in support of the lesser sentence. Before the court can determine whether the presumption has been overcome, the court shall consider, but is not limited to, the following factors:
(1) Age of victim at time of offense.
(2) Age of the defendant at the time of the offense.
(3) Relationship between defendant and victim.
(4) Injuries to victim.
(5) Use of force, fear, threats, or coercion to the victim or another.
(6) Length of time defendant offended against victim.
(7) Number of times defendant offended against victim.
(8) Number of other victims.
(9) Acceptance of responsibility by defendant.
(10) Defendant’s criminal history.
(11) Use of a weapon.
(12) Medical or psychological condition of the victim at the time of the assault.
17 Extended Term of Imprisonment. Amend RSA 651:6, VII to read as follows:
VII. If the court has made the findings [authorized by RSA 651:6,] required in paragraph VI, and if notice of the possible application of this section is given to the defendant prior to the commencement of trial, a person [shall] may be sentenced to an extended term of imprisonment of life [without parole] imprisonment.
18 Effective Date. This act shall take effect January 1, 2016.
LBAO
15-0586
02/03/15
SB 197-FN - FISCAL NOTE
AN ACT relative to mandatory minimum sentences.
FISCAL IMPACT:
The Judicial Branch and Department of Corrections state this bill, as introduced, will have an indeterminable fiscal impact on state expenditures in FY 2016 and each year thereafter. The New Hampshire Association of Counties states this bill may decrease county expenditures by an indeterminable amount in FY 2016 and each year thereafter. There will be no fiscal impact on local expenditures, or state, county, and local revenue.
METHODOLOGY:
The Judicial Branch states this bill amends several RSAs to repeal mandatory minimum sentences for criminal offenses. The lack of a mandatory minimum sentence should not add to or reduce the number of criminal cases brought in ether the superior court or the district division of the circuit court. This bill could impact the number of cases that go to trial and or the length of those trials. The Branch is not able to determine a fiscal impact until a new weighted caseload study is completed to replace the last judicial needs assessment completed in 2005.
The Department of Corrections states it has no information to determine the fiscal impact of this bill. If the bill results in more individuals being incarcerated than it will increase costs, if it results in shorter sentences, there may be some cost savings. 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, 2014 was $33,540. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2014 was $535.
The New Hampshire Association of Counties states to the extent fewer individuals are incarcerated as result of this bill, county expenditures would decrease. The Association is not able to determine how many individuals might be impacted by this bill to determine the exact fiscal impact on county expenditures. There will be no fiscal impact on county revenue.
The Department of Justice and Judicial Council state this bill will have no impact on their respective agency.