Revision: Dec. 18, 2015, midnight
\t \t\tHB 1609-FN - AS INTRODUCED
2016 SESSION
\t16-2427
\t04/03
HOUSE BILL\t1609-FN
AN ACT\trelative to permitting the possession and use of controlled drugs, relative to treatment for substance abuse, relative to annulment of certain criminal records, and establishing funding for drug treatment programs.
SPONSORS:\tRep. Bouldin, Hills. 12; Rep. Edwards, Hills. 11
COMMITTEE:\tCriminal Justice and Public Safety
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ANALYSIS
\tThis bill:
\tI. Permits the possession and use of controlled drugs without penalty.
\tII. Establishes a substance abuse treatment fund.
\tIII. Permits a person to petition for annulment of a criminal record without a waiting period for an offense which was subsequently decriminalized.
\tIV. Requires a sentencing court to suspend the sentence for felony conviction for conduct that was decriminalized or legalized in this state after the date of arrest, indictment, or conviction.
\tV. Allows any person to voluntarily submit himself or herself for treatment for drug abuse dependency or any problem related to the use of drugs at certain facilities.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2427
\t04/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to permitting the possession and use of controlled drugs, relative to treatment for substance abuse, relative to annulment of certain criminal records, and establishing funding for drug treatment programs.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 Controlled Drug Act; Acts Prohibited. Amend RSA 318-B:2, I, I-a, I-b, and II to read as follows:
\t\tI. It shall be unlawful for any person to manufacture, [possess, have under his control,] sell, purchase, prescribe, administer, or transport [or possess with intent to sell, dispense, or compound] any controlled drug, or controlled drug analog, or any preparation containing a controlled drug, except as authorized in this chapter.
\t\tI-a. It shall be unlawful for any person to manufacture, sell, purchase, or transport [or possess with intent to sell, dispense, compound, package or repackage] (1) any substance which he or she represents to be a controlled drug or controlled drug analog, or (2) any preparation containing a substance which he or she represents to be a controlled drug or controlled drug analog, except as authorized in this chapter.
\t\tI-b. It shall be unlawful for a qualifying patient or designated caregiver as defined under RSA 126-X:1 to sell cannabis to another person who is not a qualifying patient or designated caregiver. A conviction for the sale of cannabis to a person who is not a qualifying patient or designated caregiver shall not preclude or limit a prosecution or conviction of any person for sale of cannabis or any other offense defined in this chapter.
\t\tII. It shall be unlawful for any person to deliver[, possess with intent to deliver,] or manufacture with intent to deliver, drug paraphernalia, knowing that it will be used or is customarily intended to be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled substance.
\t2 Controlled Drug Act; Acts Prohibited. Amend RSA 318-B:2, XI to read as follows:
\t\tXI. It shall be unlawful for any person 18 years of age or older to knowingly use, solicit, direct, hire, or employ a person 17 years of age or younger to manufacture, sell, prescribe, administer, or transport [or possess with intent to sell, dispense or compound] any controlled drug or any preparation containing a controlled drug, except as authorized in this chapter, or to manufacture, sell, or transport [or possess with intent to sell, transport or possess with intent to sell, dispense, compound, package or repackage] (1) any substance which he or she represents to be a controlled drug or controlled drug analog, or (2) any preparation containing a substance which he or she represents to be a controlled drug or controlled drug analog, except as authorized in this chapter. It shall be no defense to a prosecution under this section that the actor mistakenly believed that the person who the actor used, solicited, directed, hired, or employed was 18 years of age or older, even if such mistaken belief was reasonable. Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of any other offense defined in this chapter or any other provision of law governing an actor's liability for the conduct of another.
\t3 Controlled Drug Act; Acts Prohibited. Amend RSA 318-B:2, XIV to read as follows:
\t\tXIV. It shall be an affirmative defense to prosecution for [a possession] an offense under this chapter that the person charged had a lawful prescription for the controlled drug in question or was, at the time charged, acting as an authorized agent for a person holding a lawful prescription. An authorized agent shall mean any person, including but not limited to a family member or caregiver, who has the intent to deliver the controlled drug to the person for whom the drug was lawfully prescribed.
\t4 Controlled Drug Act; Persons and Corporations Exempted. Amend RSA 318-B:15 to read as follows:
\t318-B:15 Persons and Corporations Exempted. The provisions of this chapter [restricting the possession and having control of controlled drugs] shall not apply to:
\t\tI. Common carriers or to warehousemen while engaged in lawfully transporting or storing such drugs, or to an employee of the same acting within the scope of his or her employment; or to public officers or their employees in the performance of their official duties [requiring possession or control of controlled drugs; or to temporary incidental possession by employees or agents or persons lawfully entitled to possession,]; or by persons [whose possession is] for the purpose of aiding public officers in performing their official duties.
\t\tII. Persons possessing prescription drugs dispensed to them pursuant to a lawful prescription or who are acting as an authorized agent for a person holding a lawful prescription. For purposes of this section, an authorized agent shall mean any person, including but not limited to a family member or caregiver, who has the intent to deliver the prescription drug to the person to whom the prescription drugs are lawfully prescribed. This exemption does not extend to persons possessing drugs with an intent to sell.
\t\tIII. Law enforcement officers engaged in the collection, storage, and disposal of controlled drugs in conjunction with a pharmaceutical drug take-back program established under RSA 318-E.
\t\tIV.(a) A health care professional authorized to prescribe an opioid antagonist may prescribe, dispense, or distribute, directly or by standing order, an opioid antagonist to a person at risk of experiencing an opioid-related overdose or a family member, friend, or other person in a position to assist a person at risk of experiencing an opioid-related overdose. Any such prescription shall be regarded as being issued for a legitimate medical purpose in the usual course of professional practice.
\t\t\t(b) A person or organization may, if acting pursuant to the provisions of subparagraph (a), store and possess an opioid antagonist, dispense or distribute an opioid antagonist, and administer an opioid antagonist to another person who the person believes is suffering an opioid-related overdose.
\t\t\t(c) No health care professional who, acting in good faith and with reasonable care, prescribes, dispenses, or distributes an opioid antagonist directly or by standing order and no person who, acting in good faith and with reasonable care, stores, dispenses, or distributes an opioid antagonist or administers an opioid antagonist to another person who the person believes is suffering an opioid-related drug overdose shall be subject to any criminal or civil liability, or any professional disciplinary action, for any action authorized by this paragraph or any outcome resulting from an action authorized by this paragraph.
\t\t\t(d) In this paragraph:
\t\t\t\t(1) "Opioid antagonist'' means any drug that binds to opioid receptors and blocks or disinhibits the effects of opioids acting on those receptors.
\t\t\t\t(2) "Opioid-related drug overdose'' means a condition including, but not limited to, extreme physical illness, decreased level of consciousness, respiratory depression, coma, or death resulting from the consumption or use of an opioid, or another substance with which an opioid was combined, or that a layperson would reasonably believe to be an opioid-related drug overdose that requires medical assistance.
\t5 Model Drug Dealer Liability Act; Definitions. Amend RSA 318-C:4 to read as follows:
\t318-C:4 Definitions. As used in this chapter:
\t\tI. "Illegal drug'' means any drug which is a schedule I-IV drug under RSA 318-B.
\t\tII. "Illegal drug market'' means the support system of illegal drug related operations, from production to retail sales, through which an illegal drug reaches the user.
\t\tIII. "Illegal drug market target community'' is the area described under RSA 318-C:9.
\t\tIV. "Individual drug user'' means the individual whose illegal drug use is the basis of an action brought under this chapter.
\t\tV. "Level 1 offense'' means [possession] distribution of 1/4 ounce or more, but less than 4 ounces, or distribution of less than one ounce of an illegal drug other than marijuana, or [possession] distribution of one pound or more or 25 plants or more, but less than 4 pounds or 50 plants, or distribution of more than 1/2 pound but less than one pound of marijuana.
\t\tVI. "Level 2 offense'' means [possession] distribution of 4 ounces or more, but less than 8 ounces, or distribution of one ounce or more, but less than 2 ounces, of an illegal drug other than marijuana, or [possession] distribution of 4 pounds or more or 50 plants or more but less than 8 pounds or 75 plants or distribution of one pound or more but less than 5 pounds of marijuana.
\t\tVII. "Level 3 offense'' means [possession] distribution of 8 ounces or more, but less than 16 ounces, or distribution of 2 ounces or more, but less than 4 ounces, of an illegal drug other than marijuana, or [possession] distribution of 8 pounds or more or 75 plants or more, but less than 16 pounds or 100 plants, or distribution of 5 pounds or more but less than 10 pounds of marijuana.
\t\tVIII. "Level 4 offense'' means [possession] distribution of 16 ounces or more or distribution of 4 ounces or more of an illegal drug other than marijuana, or [possession] distribution of 16 pounds or more or 100 plants or more or distribution of 10 pounds or more of marijuana.
\t\tIX. "Participate in the illegal drug market'' means to distribute, [possess with an intent to distribute,] commit an act intended to facilitate the marketing or distribution of, or agree to distribute,[ possess with an intent to distribute,] or commit an act intended to facilitate the marketing and distribution of an illegal drug. "Participate in the illegal drug market'' does not include the purchase or receipt of an illegal drug for personal use only.
\t\tX. "Person'' means an individual, governmental entity, corporation, firm, trust, partnership, or incorporated or unincorporated association, existing under or authorized by the laws of this state, another state, or foreign country.
\t\tXI. "Period of illegal drug use'' means, in relation to the individual drug user, the time of the individual's first use of an illegal drug to the accrual of the cause of action. The period of illegal drug use is presumed to commence 2 years before the cause of action accrues unless the defendant proves otherwise by clear and convincing evidence.
\t\tXII. "Place of illegal drug activity'' means, in relation to the individual drug user, each house of representatives' legislative district in which the individual [possesses or uses] distributes an illegal drug or in which the individual resides, attends school, or is employed during the period of the individual's illegal drug [use] distribution, unless the defendant proves otherwise by clear and convincing evidence.
\t\tXIII. "Place of participation'' means, in relation to a defendant in an action brought under this chapter, each house of representatives' legislative district in which the person participates in the illegal drug market or in which the person resides, attends school, or is employed during the period of the person's participation in the illegal drug market.
\t6 Controlled Drug Act; Penalties. Amend RSA 318-B:26, III(a)-(b) to read as follows:
\t\t\t(a) Controls any premises or vehicle where he or she knows a controlled drug or its analog is illegally kept or deposited[;].
\t\t\t(b) Aids, assists, or abets a person in his or her presence in the perpetration of a crime punishable under paragraph II of this section[, knowing that such person is illegally in possession of a controlled drug or its analog].
\t7 Controlled Drug Act; Penalties. Amend the introductory paragraph of RSA 318-B:26, I to read as follows:
\t\tI. Any person who manufactures, sells, prescribes, administers, or transports [or possesses with intent to sell, dispense, or compound] any controlled drug, controlled drug analog, or any preparation containing a controlled drug, except as authorized in this chapter; or manufactures, sells, or transports [or possesses with intent to sell, dispense, compound, package or repackage] (1) any substance which he or she represents to be a controlled drug, or controlled drug analog, or (2) any preparation containing a substance which he or she represents to be a controlled drug, or controlled drug analog, shall be sentenced as follows, except as otherwise provided in this section:
\t8 Controlled Drug Act; Penalties. Amend the introductory paragraph of RSA 318-B:26, II to read as follows:
\t\tII. Any person who knowingly or purposely obtains, purchases, or transports[, or possesses actually or constructively, or has under his control,] any controlled drug or controlled drug analog, or any preparation containing a controlled drug or controlled drug analog, except as authorized in this chapter, shall be sentenced as follows, except as otherwise provided in this section:
\t9 Controlled Drug Act; Penalties. Amend RSA 318-B:26, III(c) to read as follows:
\t\t\t(c) Manufactures with the intent to deliver[,] or delivers [or possesses with the intent to deliver] any drug paraphernalia when such paraphernalia is knowingly manufactured[,] or delivered [or possessed] for one or more of the uses set forth in RSA 318-B:2, II.
\t10 Controlled Drug Act; Prior Offenses. Amend RSA 318-B:27 to read as follows:
\t318-B:27 Prior Offenses. In the case of any person charged with a violation of any provision of this chapter or RSA 318-D, who has previously been convicted of a violation of the laws of the United States or any state, territory or the District of Columbia relating to controlled drugs as defined in this chapter, such previous conviction shall be deemed a prior offense, unless the previous conviction was for an offense that was decriminalized or made legal after the date of the conviction.
\t11 Drivers Licenses; Informing First-Time Applicants of DWI and Controlled Drug Laws. Amend RSA 263:6-a, I-a to read as follows:
\t\tI-a. It is unlawful for any person to manufacture, [possess, have under his or her control,] sell, purchase, prescribe, administer, or transport [or possess with intent to sell, dispense, or compound] any controlled substance, except as authorized by law.
\t12 Safe School Zones; Definitions. Amend RSA 193-D:1, I(j) to read as follows:
\t\t\t(j) Illegal sale [or possession] of a controlled drug under RSA 318-B.
\t13 New Section; Controlled Drug Act; Substance Abuse Treatment Fund. Amend RSA 318-B by inserting after section 12-a the following new section:
\t318-B:12-b Substance Abuse Treatment Fund Established. There is established in the office of the state treasurer a nonlapsing fund to be known as the substance abuse treatment fund which shall be kept distinct and separate from all other funds and which shall be administered by the commissioner of the department of health and human services. All moneys in the fund shall be nonlapsing and continually appropriated to the commissioner solely for the purpose of funding voluntary substance abuse treatment for any person who requests substance abuse treatment and education.
\t14 New Subparagraph; Application of Receipts; Substance Abuse Treatment Fund. Amend RSA 6:12, I(b) by inserting after subparagraph (330) the following new subparagraph:
\t\t\t\t(331) Moneys in the substance abuse treatment fund established in RSA 318-B:12-b.
\t15 Controlled Drug Act; Annulments of Criminal Records. Amend RSA 318-B:28-a to read as follows:
\t318-B:28-a Annulments of Criminal Records.
\t\tI. Except as provided in paragraph II, no court shall order an annulment, pursuant to RSA 651:5 or any other provision of law, of any record of conviction for a felony under RSA 318-B until 7 years after the date of conviction.
\t\tII. A person who has been arrested for, convicted of, or sentenced for an act prohibited under this chapter which was decriminalized after the date of arrest, conviction, or sentence may petition the sentencing court at any time after the date of decriminalization to annul the petitioner's record of arrest, conviction, and sentencing. The sentencing court shall grant the petition when the petitioner has completed all the terms and conditions of the sentence and may grant the petition without a hearing, unless a hearing is requested by the petitioner.
\t16 New Paragraph; Sentences and Limitations. Amend RSA 651:2 by inserting after paragraph VIII the following new paragraph:
\t\tIX.(a) A person serving a sentence for conviction of a felony offense for conduct that was decriminalized or legalized in this state after the date of the arrest, indictment, or conviction may petition the sentencing court to suspend the remaining portion of the sentence. If the sentencing court determines that the petition satisfies the criteria in this subparagraph, the sentencing court shall suspend the remaining portion of the petitioner's sentence and the petitioner shall be released from incarceration or, if the petitioner is serving consecutive sentences for more than one offense, the sentencing court shall resentence the petitioner. Under no circumstances shall resentencing result in the imposition of a sentence greater than the original sentence.
\t\t\t(b) Notwithstanding any provision of RSA 651:5, a person who has completed his or her sentence for a conviction of a felony offense for conduct that was decriminalized or legalized in this state after the date of the arrest, indictment, or conviction may petition the sentencing court for an annulment of his or her criminal record. If the sentencing court finds that the petition satisfies the provisions of this subparagraph, the court shall order the annulment of the petitioner's criminal record. There shall be no cost to the petitioner for the annulment.
\t\t\t(c) Unless requested by the petitioner, no hearing shall be necessary to grant or deny a petition filed under subparagraph (a) or (b).
\t17 Controlled Drug Act; Treatment for Drug Abuse. Amend RSA 318-B:12-a to read as follows:
\t318-B:12-a Treatment for Drug Abuse.
\t\tI. Any minor 12 years of age or older may voluntarily submit himself or herself to treatment for drug [dependency] dependence as defined in RSA 318-B:1, IX, or any problem related to the use of drugs at any municipal health department, state institution or facility, public or private hospital or clinic, [any] licensed physician or advanced practice registered nurse practicing within such nurse practitioner's specialty, or other accredited state or local social welfare agency, without the consent of a parent, guardian, or any other person charged with the care or custody of said minor. Such parent or legal guardian shall not be liable for the payment for any treatment rendered pursuant to this section. The treating facility, agency, or individual shall keep records on the treatment given to minors as provided under this section in the usual and customary manner, but no reports or records or information contained therein shall be discoverable by the state in any criminal prosecution. No such reports or records shall be used for other than rehabilitation, research, or statistical and medical purposes, except upon the written consent of the person examined or treated. Nothing contained herein shall be construed to mean that any minor of sound mind is legally incapable of consenting to medical treatment provided that such minor is of sufficient maturity to understand the nature of such treatment and the consequences thereof.
\t\tII. Any adult may voluntarily submit himself or herself to treatment for drug dependence as defined in RSA 318-B:1, IX, or any problem related to the use of drugs at any municipal health department, state institution or facility, public or private hospital or clinic, licensed physician or advanced practice registered nurse practicing within such nurse practitioner's specialty, or other accredited state or local social welfare agency. The treating facility, agency, or individual shall keep records on the treatment given to such person in the usual and customary manner.
\t18 Habitual Offender Defined. Amend RSA 259:39, I (t)-(v) to read as follows:
\t\t\t(t) Conviction of any offense specified in RSA 262:23; or
\t\t\t(u) [Conviction of any offense specified in RSA 265-A:43; or
\t\t\t(v)] Conviction of any offense specified in RSA 265:79-b.
\t19 Motor Vehicles' Driving School; Notification of Offenses. Amend RSA 263:46-a, I to read as follows:
\t\tI. Every applicant for or holder of a driver education certificate or school license shall notify the director within 5 business days by certified mail, return receipt requested, of being arrested, indicted, or summonsed to court in this or any other state or foreign jurisdiction as a defendant for an offense under RSA 265:79, RSA 265:79-a, RSA 265:79-b, RSA 265-A:2, RSA 265-A:3, [or RSA 265-A:43,] or any offense under RSA 630, RSA 631, or RSA 632-A. If employed or under contract to a school or school district, the licensee, certificate holder, or applicant shall provide a copy of the notification made to the director to the principal or equivalent chief administrator of the school in like manner and time frame.
\t20 Driving Under the Influence of Drugs or Liquor; Official Record of Tests. Amend RSA 265-A:12, V to read as follows:
\t\tV. Any person who is arraigned on a charge arising under RSA 265-A:2[,] or 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, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impairs a person's ability to drive, 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.
\t21 Driving Under the Influence of Drugs or Liquor; Payment of All Obligations Prior to Restoration or Renewal. Amend RSA 265-A:22 to read as follows:
\t265-A:22 Payment of All Obligations Prior to Restoration or Renewal. The director of motor vehicles shall not restore or renew a person's license or privilege to drive, if it was revoked pursuant to RSA 265-A:2; RSA 265-A:3; RSA 265-A:35; [RSA 265-A:43;] RSA 630:2; or RSA 630:3, or if the revocation was connected with an alcohol-related or drug-related offense, until all obligations of such person resulting from the arrest and conviction for the offense are met. For the purposes of this section, the word "obligations'' shall mean fines and penalty assessments, court-ordered restitution or reimbursement to any person injured as a result of the offense, successful completion of all treatment and rehabilitation programs the person is required to take, full payment of all fees for such programs, and any other costs which may be ordered by the court. The word "obligations'' shall not mean completion of probation or parole or completion of a condition of probation or parole. In any case where the court orders periodic payment of fines, penalty assessments, restitution, or reimbursement, the obligations of such periods shall be deemed to have been met if such person is current in all such court-ordered payments.
\t22 Driving Under the Influence of Drugs or Liquor; Probationary Licenses. Amend RSA 265-A:35, I to read as follows:
\t\tI. Any person who shall apply for reissuance of his or her driver's license following revocation or suspension for an offense under RSA 265:79, RSA 265-A:2, or RSA 265-A:3[, or RSA 265-A:43] for an offense involving a vehicle is an "at risk'' driver and his or her driver's license shall be probationary for at least 5 years following the date of reissuance.
\t23 Repeal. The following are repealed:
\t\tI. RSA 270:12-d, IV, possession of a controlled drug while operating a boat.
\t\tII. RSA 265-A:43, relative to possession of a controlled drug or controlled drug analog while driving.
\t24 Effective Date. This act shall take effect January 1, 2017.
\t\t\t\t\t\t\t\t\t\t\t16-2427
\t\t\t\t\t\t\t\t\t\t\t12/11/15
HB 1609-FN- FISCAL NOTE
AN ACT\trelative to permitting the possession and use of controlled drugs, relative to treatment for substance abuse, relative to annulment of certain criminal records, and establishing funding for drug treatment programs.
FISCAL IMPACT:
The Department of Justice, Judicial Branch, and Judicial Council state this bill, as introduced, will decrease state expenditures by an indeterminable amount in FY 2017 and each year thereafter. The Department of Safety states the bill will decrease state restricted revenue and increase state restricted expenditures in FY 2017 and in each year thereafter. The Departments of Health and Human Services and Corrections state the bill will have an indeterminable impact on state revenue and expenditures in FY 2017 and in each year thereafter. The New Hampshire Association of Counties and New Hampshire Municipal Association state this bill may decrease county and local expenditures in FY 2017 and in each year thereafter. There will be no fiscal impact on county or local revenue.
This bill establishes the Substance Abuse Treatment Fund, a continually appropriated, nonlapsing dedicated fund.
METHODOLOGY:
The Department of Justice states this bill would decriminalize the following conduct in relation to controlled drugs: possession, constructive possession, possession with intent to sell, dispensing, and compounding, regardless of the type or quantity of the drug. It would also decriminalize using, hiring, or soliciting to possess a controlled drug with intent to sell, or dispense or compound a controlled drug, regardless of the type or quantity of the drug. The Department prosecutes major drug crimes, involving large scale dealers or large quantities of controlled drugs. The Department indicates most of the prosecutions of large scale dealers involve charges of possession with intent to sell. The Department states it currently has two attorneys dedicated to drug prosecution. The Department assumes with fewer prosecutions it could reduce staffing to one full-time attorney and one part-time and expenditures would be reduced as follows:
| FY 2017 | FY 2018 | FY 2019 | FY 2020 |
Current: Salary & Benefits (Two full-time Prosecutors) | $203,000 | $209,000 | $211,000 | $214,000 |
Revised: Salary and Benefits | $148,000 | $151,000 | $154,000 | $158,000 |
Reduction in Expenditures | ($55,000) | ($58,000) | ($57,000) | ($56,000) |
The Judicial Branch states this bill has four points of potential fiscal impact to the Branch:
•\tAmends RSA 318-B to decriminalize the possession and use of controlled drugs. Repeals RSA 265-A:43 and RSA 270:12-d, IV concerning possession of controlled drugs while operating a motor vehicle or boat.
•\tAmends RSA 318-C, the Model Drug Dealer Liability Act to change “possession” to “distribution”.
•\tAmends RSA 318-B:28-a to allow annulment of criminal records without a waiting period for offenses decriminalized in the bill.
•\tAdds RSA 651:2, IX to require the sentencing court to suspend the sentence for any felony conviction for conduct decriminalized in the proposed bill.
The Branch has no information on how many fewer misdemeanor or felony prosecutions, how many fewer civil damage actions, or how many additional petitions for annulment may result from this bill, but does have the average cost information for cases listed below:
| FY 2017 | FY 2018 |
Routine Criminal Felony Case | $449 | $470 |
Class A Misdemeanor | $70 | $74 |
Class B Misdemeanor | $50 | $53 |
Complex Civil Case | $724 | $756 |
Petition for Annulment - Circuit Court | $70 | $74 |
Petition for Annulment – Superior Court | $277 | $296 |
The Branch indicates RSA 651:2, IX, requiring the sentencing court to suspend the sentence for any felony conviction for conduct decriminalized in the proposed bill would not add new cases, but could add additional hearings within existing cases and increase expenditures to the Branch by an indeterminable amount. The Branch notes the average case cost estimates for FY 2017 and FY 2018 are based on data that is more than ten years old and does not reflect changes to the courts over that same time period or the impact these changes may have on processing the various case types.
The Judicial Council assumes the bill would not reduce the number of felony-level cases involving the sale, distribution and manufacture of controlled drugs, but would decrease the number of felony and misdemeanor possession arrests each year resulting in a corresponding drop in the number of instances in which defendants request the assistance of court-appointed counsel. The Council is not able to determine the fiscal impact of the bill, but does have the cost information below for defense of the indigent accused.
Public Defender Program | Has contract with State to provide services. | Has contract with State to provide services. |
Contract Attorney – Felony | $756/Case | $756/Case |
Contract Attorney – Misdemeanor | $275/Case | $275/Case |
Assigned Counsel – Felony | $60/Hour up to $4,100 | $60/Hour up to $4,100 |
Assigned Counsel – Misdemeanor | $60/Hour up to $1,400 | $60/Hour up to $1,400 |
It should be noted that a person needs to be found indigent and have the potential of being incarcerated to be eligible for indigent defense services. The majority of indigent cases (approximately 85%) are handled by the public defender program, with the remaining cases going to contract attorneys (14%) or assigned counsel (1%). | ||
The Department of Health and Human Services states there are two provisions of the bill that could impact the Department. The Department is not able to determine the fiscal impact of creation of the Substance Abuse Treatment Fund as it does not have information on which to estimate revenues and expenditures for the fund. The Department states it has no way to estimate the expenditures associated with voluntary substance abuse treatment.
The Department of Safety states fine revenue for possession of drug offenses will decrease by an indeterminable amount. Penalty assessment revenue directed to the police standards and training council training fund, victims' assistance fund, and judicial branch information technology fund will also decrease by an indeterminable amount. In addition, the Department states the bill eliminates transportation of drugs and habitual offender as crimes resulting in reduced license restoration fee revenue and fine money. The Department states the bill allows individuals who were convicted of conduct that is later decriminalized to petition for an annulment of a criminal record without a waiting period. The Department is authorized by RSA 651:5 to charge a fee not to exceed $100 to remove an annulled conviction from the State and federal criminal databases. Under the proposed bill, in cases where a person has completed their sentence for a felony that has been decriminalized, and the sentencing court orders the annulment, there is no cost to the petitioner for the annulment. The Department states the bill eliminates the hearing for such annulments, but does not eliminate the required documentation process. The Department assumes there will be an increase in personnel costs associated with the increase in criminal record annulments, but has no information on the number of annulments petitions that may be received. The Department assumes at least one additional Counter Clerk II, labor grade 9, would be needed to process the additional annulment petitions at a salary and benefit cost of $30,000 in FY 2017, $51,000 in FY 2018, $54,000 in FY 2019, and $56,000 in FY 2020. The cost would be borne by the Criminal Records Unit, a revolving fund supported by fees. The Department indicates, with the decrease in revenue, the fund may not support the additional cost.
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 population for the fiscal year ending June 30, 2015 was $34,336. The average cost to supervise an individual by the Department’s Division of Field Services for the fiscal year ending June 30, 2015 was $520.
The New Hampshire Association of Counties states there may be a reduction in county expenditures for prosecution costs, but no impact on county revenue.
The New Hampshire Municipal Association states it is possible that this bill would lead to reduced law enforcement expenditures related to drug offenses, but any such reduction is speculative. The Association indicates there would be no impact on municipal revenue.