Revision: March 8, 2016, midnight
\t \t\tHB 1631-FN - AS INTRODUCED
2016 SESSION
\t16-2493
\t04/09
HOUSE BILL\t1631-FN
AN ACT\trelative to penalties for possession of marijuana.
SPONSORS:\tRep. Schroadter, Rock. 17; Rep. Cushing, Rock. 21; Rep. Lachance, Hills. 8; Rep. C. McGuire, Merr. 29; Rep. Murphy, Hills. 7; Rep. Kaen, Straf. 5; Rep. Whitehouse, Straf. 2; Rep. Simmons, Hills. 17; Rep. Phillips, Ches. 16
COMMITTEE:\tCriminal Justice and Public Safety
-----------------------------------------------------------------
ANALYSIS
\tThis bill reduces the penalty for possession of 1/2 ounce or less of marijuana to a violation, and reduces the penalty for possession of other amounts of marijuana.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2493
\t04/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to penalties for possession of marijuana.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Sections; Controlled Drug Act; Personal Possession of Marijuana. Amend RSA 318-B by inserting after section 2-b the following new sections:
\t318-B:2-c Personal Possession of Marijuana.
\t\tI. Except as provided in RSA 126-X, any person possessing 1/2 ounce or less of marijuana, including adulterants or dilutants, shall be guilty of a violation, and subject to the penalties provided in paragraph III.
\t\tII. Except as provided in RSA 126-X, any person possessing 5 grams or less of hashish, including adulterants or dilutants, shall be guilty of a violation, and subject to the penalties provided in paragraph III.
\t\tIII.(a) Any person 18 years of age or older who is convicted of violating paragraph I or II shall be subject to a fine of $100 for a first offense, a fine of $200 for a second offense under this subparagraph, and a fine of $500 for a third or subsequent offense under this subparagraph, and shall forfeit the marijuana or hashish to the state.
\t\t\t(b) Any person under 18 years of age who is convicted of violating paragraph I or II shall forfeit the marijuana or hashish. The offender’s parents or legal guardians shall be notified of the offense. The court may order the offender to participate in up to 35 hours of community service, which shall be completed within one year of the date of the offense. Further, the court may order the offender to complete an alcohol and substance abuse education program that has been approved by the department of health and human services, at the offender’s expense, within one year of the date of the offense. The offender shall furnish the court with evidence of completion of both an approved alcohol and substance abuse education program and community service. An offender who fails to complete an alcohol and substance abuse education program or community service requirement as ordered may be subject to an additional fine of up to $350.
\t\t\t(c) Any person who is not yet 21 years of age on the date of the incident, who is convicted of an offense under paragraph I or II may, at the discretion of the court, be subject to the revocation or denial of a driver’s license or privilege to drive for not more than one year on the first finding or conviction under this paragraph, and not more than 2 years for a subsequent finding or conviction. Nothing in this paragraph shall prevent the court from requiring any person subject to this provision to successfully complete a substance abuse education program in lieu of a loss or denial of driving license or privilege. The director, upon receipt of a notification from the court that the court has ordered the suspension of a person’s license or driving privilege pursuant to this paragraph, shall issue a formal order of suspension and, in the case of denial of an application for a license, the period imposed shall begin on the date the person is eligible by age for the issuance of a license. Notwithstanding any other law regarding confidentiality, any court which convicts or makes a finding that an offense described in this paragraph has occurred involving a person who meets the age limits specified in this paragraph, and which orders the revocation or denial of a driver’s license or privilege to drive, shall forward a notice of such conviction or finding to the director. The director shall maintain the confidentiality of notices received.
\t\t\t(d) The director shall, when ordered by the court, revoke the driver’s license or privilege to drive or deny an application for a license for not more than one year on the first finding or conviction under paragraph I or II, and not more than 2 years for a subsequent finding or conviction; provided, however, that the director shall not revoke or deny a license or privilege to drive under this paragraph without first giving the person an opportunity for a hearing to determine that the person is the individual who was convicted of the offense and against whom the court order applies. In the case of denial of an application for a license, the period imposed shall begin on the date the person is eligible by age for the issuance of a license. This section shall only apply to a person who is not yet 21 years of age.
\t\tIV. Except as otherwise provided in this paragraph:
\t\t\t(a) No record that includes personally identifiable information resulting from a violation of this section shall be made accessible to the public, federal agencies, or agencies from other states or countries.
\t\t\t(b) Every state, county, or local law enforcement agency that collects and reports data for the Uniform Crime Report program shall collect data on the number of violations of paragraphs I or II. The data collected pursuant to this paragraph shall be available free of cost to the public. A law enforcement agency shall update the data annually and shall make this data available on the agency’s public Internet website.
\t\tV.(a) Except as provided in this section, no person shall be subject to arrest for a violation of paragraph I or II and shall be released on a hand summons, provided the law enforcement officer does not have lawful grounds for arrest for a different offense.
\t\t\t(b) Any person in possession of an identification card, license, or other form of identification issued by the state or any state, country, city, or town, or any college or university, who fails to produce the same upon request of a police officer who informs the person that he or she has been found to be in possession of what appears to the officer to be 1/2 ounce or less of marijuana or 5 grams or less of hashish, may be arrested for a violation of paragraph I or II.
\t\t\t(c) Any person who fails to produce a form of identification provided for in subparagraph (b) may be arrested for a violation of paragraph I or II if the person fails or refuses to truthfully provide his or her name, address, and date of birth to a police officer who has informed such person that he or she has been found in possession of what appears to the officer to be 1/2 ounce or less of marijuana or 5 grams or less of hashish.
\t\tVI.(a) Except as specifically provided in RSA 263:56-b, III and IV, neither the state nor any of its political subdivisions shall impose any form of penalty on a person for possessing 1/2 ounce or less of marijuana, 5 grams or less of hashish, or paraphernalia for marijuana use, nor shall any penalties or obligations exceeding those outlined in this section be imposed by the state nor any of its political subdivisions solely for having cannabinoids or cannabinoid metabolites in the urine, blood, sweat, hair, fingernails, toenails, or other tissue or fluid of the human body.
\t\t\t(b) Possession of 1/2 ounce or less of marijuana, possession of 5 grams or less of hashish, possession of paraphernalia for marijuana use, or the presence of cannabinoids or cannabinoid metabolites in the urine, blood, sweat, hair, fingernails, toenails, or other tissue or fluid of the human body shall not constitute grounds for denying a person student financial aid, public housing, or any form of public financial assistance including unemployment benefits, or denying a person the right to operate a motor vehicle, or disqualifying a person from serving as a foster parent or adoptive parent.
\t\t\t(c) This paragraph shall not be construed to prohibit a law enforcement agency from investigating or charging a person for a violation of RSA 265-A.
\t318-B:2-d Plea by Mail.
\t\tI. Any person 18 years of age or older who is charged with a violation of RSA 318-B:2-c, I or II may enter a plea of guilty, nolo contendere, or not guilty, by mail in a circuit court, district division.
\t\tII. Such defendant shall receive, in addition to the summons, a fine notice entitled “Notice of Fine” which shall contain the amount of the fine for a violation of RSA 318-B:2-c, I or II. A defendant who is issued a summons and notice of fine and who wishes to plead guilty or nolo contendere shall enter his or her plea on the summons and return it with payment of the fine within 30 days of the date of the summons. Payment by credit card may be accepted in lieu of cash payment.
\t\tIII. If the defendant wishes to enter a plea of not guilty, he or she shall enter such plea on the summons and return it within 30 days of the date of the summons. The circuit court, district division shall schedule a trial.
\t\tIV. Whenever a defendant does not enter a plea by mail within 30 days of the date of the summons, the defendant shall be defaulted and shall be subject to an additional $100 fine.
\t\tV. Whenever a defendant willfully fails to pay a fine in connection with a conviction for a violation of RSA 318-B:2-c, I or II, or payment of such fine is uncollectible, the defendant shall be defaulted and the court may impose an additional fine of $100.
\t2 Controlled Drug Act; Penalties. Amend RSA 318-B:26, I(b)-(d) to read as follows:
\t\t\t(b) In the case of a violation involving any of the following, a person may be sentenced to a maximum term of imprisonment of not more than 20 years, a fine of not more than $300,000, or both. If any person commits such a violation after one or more prior offenses as defined in RSA 318-B:27, such person may be sentenced to a term of imprisonment of not more than 40 years, a fine of not more than $500,000, or both:
\t\t\t\t(1) A substance or mixture referred to in subparagraph I(a)(1) of this section, other than crack cocaine, in a quantity of 1/2 ounce or more, including any adulterants or dilutants;
\t\t\t\t(2) A substance classified in schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of one ounce or more including any adulterants or dilutants;
\t\t\t\t(3) Lysergic acid diethylamide, or its analog, in a quantity of less than 100 milligrams including any adulterants or dilutants, or where the amount is undetermined, or phencyclidine (PCP) or its analog, in a quantity of less than 10 grams, including any adulterants or dilutants, or where the amount is undetermined;
\t\t\t\t(4) Heroin or its analog or crack cocaine in a quantity of one gram or more, including any adulterants or dilutants;
\t\t\t\t(5) Methamphetamine or its analog, in a quantity of one ounce or more including any adulterants or dilutants;
\t\t\t\t(6) [Marijuana in a quantity of 5 pounds or more including any adulterants or dilutants, or hashish in a quantity of one pound or more including any adulterants and dilutants;
\t\t\t\t(7)] Flunitrazepam in a quantity of 500 milligrams or more.
\t\t\t(c) In the case of a violation involving any of the following, a person may be sentenced to a maximum term of imprisonment of not more than 7 years, a fine of not more than $100,000, or both. If any person commits such a violation after one or more prior offenses as defined in RSA 318-B:27, such person may be sentenced to a maximum term of imprisonment of not more than 15 years, a fine of not more than $200,000, or both:
\t\t\t\t(1) A substance or mixture referred to in subparagraph I(a)(1) of this section, other than crack cocaine, in a quantity less than 1/2 ounce including any adulterants or dilutants;
\t\t\t\t(2) A substance or mixture classified as a narcotic drug in schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of less than one ounce including any adulterants or dilutants;
\t\t\t\t(3) Methamphetamine, or its analog in a quantity of less than one ounce including any adulterants or dilutants;
\t\t\t\t(4) Heroin or its analog or crack cocaine in a quantity of less than one gram, including any adulterants or dilutants;
\t\t\t\t(5) Marijuana in a quantity of [one ounce] 5 pounds or more including any adulterants or dilutants, or hashish in a quantity of [5 grams] one pound or more including any adulterants or dilutants;
\t\t\t\t(6) Flunitrazepam in a quantity of less than 500 milligrams;
\t\t\t\t(7) Any other controlled drug or its analog, other than those specifically covered in this section, classified in schedules I, II, III, or IV.
\t\t\t(d) In the case of a violation involving any of the following, a person may be sentenced to a maximum term of imprisonment of not more than 3 years, a fine of not more than $25,000, or both. If any person commits such a violation after one or more prior offenses as defined in RSA 318-B:27, such person may be sentenced to a maximum term of imprisonment of not more than 6 years, a fine of not more than $50,000, or both:
\t\t\t\t(1) Marijuana in a quantity of [less] more than [one] 1/2 ounce including any adulterants or dilutants, or hashish in a quantity of [less] more than 5 grams including any adulterants or dilutants;
\t\t\t\t(2) Any schedule V substance or its analog.
\t3 Controlled Drug Act; Penalties. Amend RSA 318-B:26, II to read as follows:
\t\tII. Any person who knowingly or purposely obtains, purchases, transports, or possesses actually or constructively, or has under his or her 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:
\t\t\t(a) In the case of a controlled drug or its analog, classified in schedules I, II, III, or IV, other than those specifically covered in this section, the person shall be guilty of a class B felony, except that notwithstanding the provisions of RSA 651:2, IV(a), a fine of not more than $25,000 may be imposed. If any person commits such a violation after one or more prior offenses as defined in RSA 318-B:27, such person shall be guilty of a class A felony, except that notwithstanding the provisions of RSA 651:2, IV(a), a fine of up to $50,000 may be imposed[;] .
\t\t\t(b) In the case of a controlled drug or its analog classified in schedule V, the person shall be sentenced to a maximum term of imprisonment of not more than 3 years, a fine of not more than $15,000, or both. If a person commits any such violation after one or more prior offenses as defined in RSA 318-B:27, such person shall be guilty of a class B felony, except that notwithstanding the provisions of RSA 651:2, IV(a), a fine of not more than $25,000 may be imposed[;] .
\t\t\t(c) [In the case of more than 5 grams of hashish, the person shall be guilty of a misdemeanor, except that notwithstanding the provisions of RSA 651:2, IV(a), a fine of not more than $5,000 may be imposed.
\t\t\t(d)] In the case of more than 1/2 ounce of marijuana, including any adulterants or dilutants, or more than 5 grams or less of hashish, the person shall be guilty of a class A misdemeanor.
\t\t\t(d) In the case of 1/2 ounce or less of marijuana, including any adulterants or dilutants, or 5 grams or less of hashish, including adulterants or dilutants, the person shall be guilty of a violation pursuant to RSA 318-B:2-c.
\t4 Controlled Drug Act; Penalties. Amend RSA 318-B:26, III(a) to read as follows:
\t\t\t(a) Except as provided in RSA 318-B:2-c, controls any premises or vehicle where he knows a controlled drug or its analog is illegally kept or deposited;
\t5 Other Alcohol or Drug Offenses; Possession of Drugs. Amend RSA 265-A:43 to read as follows:
\t265-A:43 Possession of Drugs. Any person who drives on any way a vehicle while knowingly having in his or her possession or in any part of the vehicle a controlled drug or controlled drug analog in violation of the provisions of RSA 318-B shall be guilty of a misdemeanor, and his or her license shall be revoked or his or her right to drive denied for a period of 60 days and at the discretion of the court for a period not to exceed 2 years. This section shall not apply to possession of marijuana or hashish as provided in RSA 318-B:2-c.
\t6 Effective Date. This act shall take effect January 1, 2017.
\t\t\t\t\t\t\t\t\t\t\t16-2493
\t\t\t\t\t\t\t\t\t\t\t12/18/15
HB 1631-FN- FISCAL NOTE
AN ACT\trelative to penalties for possession of marijuana.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, Departments of Safety, Health and Human Services, and Corrections, New Hampshire Municipal Association, and New Hampshire Association of Counties state this bill, as introduced, will have an indeterminable impact on state, county and local expenditures and state revenue in FY 2017 and each year thereafter. There will be no impact on county or local revenue.
METHODOLOGY:
The Judicial Branch states currently, possession of any amount of marijuana or 5 grams or less of hashish is a class A misdemeanor. This Branch indicates this bill would:
The Branch has no information on how many cases would be reduced from a class A misdemeanor to a violation-level offense or how many unspecified misdemeanors would be eliminated. The Branch does have information on the estimated average savings per case below:
| FY 2017 | FY 2018 |
Class A Misdemeanor reduced to a Violation Level Offense | $22 | $23 |
Class B Misdemeanor | $50 | $53 |
Class A Misdemeanor | $70 | $74 |
It should be noted 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 period of time or the impact these changes may have on processing the various case types. | ||
The Branch states the requirement to block personally identifiable information would result in indeterminable costs for business process changes and programming changes to the court’s case management system. The Branch indicates, under current law, fines for class A misdemeanors may be assessed up to $2,000. This bill would reduce those fines, which are deposited in the general fund, to no more than $100 or $350 depending upon the person’s age. There would also be a reduction in penalty assessment revenue allocated to the Police Standards and Training Council Fund, the Victim’s Assistance Fund, and the Judicial Branch Information Technology Fund. Finally the bill provides that the violation offenses may be pled by mail as is currently the case for certain motor vehicle violations. The Branch states, while there may be savings in judicial and clerical time, there will be one-time computer programming costs to set up the plea by mail system for these offenses.
The Judicial Council states this bill makes possession of 1/2 ounce or less of marijuana a violation-level offense and amends the potential felony sentence of anyone convicted of distributing or manufacturing marijuana. Violation-level marijuana possession prosecutions would not trigger the right to assistance of counsel and would not result in indigent defense expenditures. Possession of less than one ounce of marijuana is punishable as a class A misdemeanor under current law. Any reduction in class A misdemeanors could reduce the number of instances in which the Council is required to fund the assistance of counsel, but the Council indicates stand-alone misdemeanor A cases are rare and this provision would not have a significant impact on expenditures. The Council assumes juveniles would eligible for prosecution in the district division of the circuit court for simple possession of marijuana. Under current law, these offenses are brought as delinquency petitions and indigent juveniles are eligible for representation at State expense. Therefore the legislation would result in fewer juvenile cases handled by the public defender, contract counsel, or assigned counsel. The aCouncil cannot determine how many fewer misdemeanors or juvenile cases would require the assistance of counsel at State expense but the cost for misdemeanor offenses and juvenile petitions are shown in the table below:
Public Defender Program | Has contract with State to provide services. | Has contract with State to provide services. |
Contract Attorney – Misdemeanor / Juvenile Petition | $275/Case | $275/Case |
Assigned Counsel – Misdemeanor / Juvenile Petition | $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 Safety expects state revenue will increase by an indeterminable amount associated with the $100 restoration fee applied against driver license operating privileges when a suspension or revocation is in place for greater than 15 days. The Department is not able to estimate the potential number of violations since these offenses are currently deemed criminal and not motor vehicle related. The Department states the change to a violation for possession of less than 1/2 ounce of marijuana may result in a small cost savings since there is no arrest for the violation level offense, but the Department indicates on many occasions individuals are currently released on a hand summons for solely possessing small amounts of marijuana. The Department indicates the bill also eliminates the penalty for possession of less than 1/2 ounce for individuals under the age of 21. The Department assumes, while this would eliminate the requirement to analyze approximately 1,500 cases, it would not result in a reduction in costs for the laboratory which currently has an 8 month back log of cases. Reduction in the backlog would enable criminalists to work on more severe drug cases in timelier manner. In addition, the Department expects there may be additional costs associated with updating the VISION system, e-Ticketing, e-Citation and e-Disposition related to the confidentiality of notices and the exclusion of personally identifiable information.
The Department of Health and Human Service states RSA 318-B:2-c,III-b provides that the court may order the offender to complete an alcohol and substance abuse education program that has been approved by the Department at the offender’s expense and within one year of the offense. The Department indicates there is considerable uncertainty about the requirements and cost of creating an approved substance abuse education program regarding personal possession of marijuana. The Department assumes management of the program may require additional State personnel but cannot determine the fiscal impact of such a program.
The Department of Corrections states the fiscal impact of this bill cannot be determined since the number of individuals who may or may not be found guilty of an offense and subsequently sentenced to incarceration cannot be predicted. The Department indicates 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 Municipal Association cannot identify any direct impact on municipal expenditures or revenue. The Association states there may be an indirect reduction in law enforcement expenditures because violations for possession of marijuana would be less likely to be prosecuted.
The New Hampshire Association of Counties is not able to determine the fiscal impact of the bill on county revenue and expenditures, but assumes there will be additional costs related to data collection and reporting under the Uniform Crime Reporting Program and an indeterminable impact on prosecution and incarceration costs. The Association states county incarceration costs range between $85 and $110 per day and county prosecution costs vary across the state.
The Department of Justice states this bill reduces the potential penalties for the felony offenses of sale, distribution and manufacture of larger amounts of marijuana. The Department prosecutes large-scale drug trafficking crimes including trafficking of marijuana. The Branch assumes, if this bill passes, prosecutions of marijuana would be replaced by drug trafficking prosecutions involving other controlled drugs and there would be no fiscal impact to the Department from this bill.