Revision: Jan. 13, 2016, midnight
\t \t\tSB 498-FN - AS INTRODUCED
2016 SESSION
\t16-2874
\t04/09
SENATE BILL\t498-FN
AN ACT\trelative to penalties for possession of certain controlled drugs.
SPONSORS:\tSen. Forrester, Dist 2; Rep. Ladd, Graf. 4; Rep. Vadney, Belk. 2; Rep. Gallagher, Belk. 4
COMMITTEE:\tJudiciary
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ANALYSIS
\tThis bill changes the penalties for possession of marijuana and hashish.
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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\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2874
\t04/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to penalties for possession of certain controlled drugs.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 Controlled Drug Act; Penalties. Amend RSA 318-B:26, II(d) to read as follows:
\t\t\t(d) In the case of marijuana, including any adulterants or dilutants, [or 5 grams or less of hashish,] the person shall be guilty of a [class A] misdemeanor.
\t2 New Subparagraph; Controlled Drug Act; Penalties. Amend RSA 318-B:26, II by inserting after subparagraph (d) the following new subparagraph:
\t\t\t(e) In the case of 5 grams or less of hashish, the person shall be guilty of a class A misdemeanor.
\t3 Controlled Drug Act; Penalties. Amend RSA 318-B:26, XIII to read as follows:
\t\tXIII. Any person who violates any provision of this chapter shall be fined a minimum of [$350 for a first offense and] $500 [for a second or subsequent offense].
\t4 Effective Date. This act shall take effect 60 days after its passage.
\t\t\t\t\t\t\t\t\t\t\t16-2874
\t\t\t\t\t\t\t\t\t\t\t12/18/15
SB 498-FN- FISCAL NOTE
AN ACT\trelative to penalties for possession of certain controlled drugs.
FISCAL IMPACT:
The Judicial Branch and Judicial Council state this bill, as introduced, will decrease state expenditures and increase state revenue by indeterminable amounts in FY 2017 and each year thereafter. The Department of Safety states this bill will increase state revenue by an indeterminable amount. The Department of Corrections and New Hampshire Association of Counties state this bill will have an indeterminable impact on state and county expenditures. There will be no impact on county and local revenue or local expenditures
METHODOLOGY:
The Judicial Branch states the proposed bill would amend the penalty section of the controlled drug act by reducing the penalty for obtaining, purchasing, transporting, possessing or having under one’s control marijuana from a class A to an unspecified misdemeanor, and increasing the minimum fine under the controlled drug act from $350 to $500. The Branch has no information on how many charges would be reduced from a class A misdemeanor to a class B misdemeanor. The Branch does have estimated average savings per case below:
| FY 2017 | FY 2018 |
Class A Misdemeanor reduced to Class B Misdemeanor | $21.00 | $21.36 |
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. | ||
Regarding the increase in the minimum fine from $350 to $500, the Branch looked at the number of fines assessed in FY 2014 and FY 2015 under the controlled drug act for amounts under $500:
| # of Fines > $500 | Total Fines | Average Fine |
FY 2014 | 289 | $97,755 | $338.25 |
FY 2015 | 287 | $96,703 | $336.95 |
Based on the FY 2015 average and assuming those fines would be assessed at $500, an additional $46,797 in fine revenue would be collected and deposited into the general fund. (287 x $500 = $143,500 - $96,703 = $46,797). The additional fine revenue would generate $11,231 ($46,797 x 24%) of additional penalty assessment revenue which is allocated to the Police Standard and Training Council Fund, Victim’s Assistance Fund, and the Judicial Branch Information Technology Fund.
The Judicial Council states this bill makes possession of marijuana an undesignated misdemeanor offense. Under current law, possession of marijuana is a class A misdemeanor. The Council assumes most violations of law would be brought as class B misdemeanors and would not trigger the right to assistance of counsel at State expense. The bill also increases the penalty for a first offense marijuana possession conviction from $300 to $500 and eliminates the mandatory penalty associated with a subsequent offense for possession. Under current law, a subsequent offense for possession of marijuana is punishable with a mandatory fine of $500. The Council indicates, due to the language of RSA 625:9, VI, elimination of the mandatory penalty for a second offense will permit prosecutors to exercise their discretion to charge subsequent offense marijuana possession charges as violations if the circumstances warrant. The council assumes the following:
Based on these assumptions, the Council indicates the bill would not have a profound effect on expenditures for indigent defense. To the extent fewer class A misdemeanor charges are brought against individuals for possession of less than ¼ ounce of marijuana there would be savings. The cost for a misdemeanor offense is 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 | $275/Case | $275/Case |
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 New Hampshire Association of Counties indicates the fiscal impact of this bill would be on prosecution and incarceration costs. The Association indicates prosecution costs vary throughout the state and incarceration costs range from $85 to $110 per day.
The Department of Safety assumes State revenue will increase by an indeterminable amount with the increase in the fine from $350 to $500 for a first offense. The Department cannot determine the impact on revenue since it has no information on the potential number of individuals who may be required to pay the fine. The Department does not anticipate a reduction in expenditures as it will continue to enforce drugs laws and test marijuana and hashish seized in criminal cases.
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 Department of Justice states since misdemeanor offenses are typically handled by local or county prosecutors, this bill would not impact the Department’s prosecutorial function. The Department indicates any appeals from conviction could be handled within the Department’s current budget.