HB 1815-FN - AS INTRODUCED
2018 SESSION
18-2615
04/10
HOUSE BILL 1815-FN
AN ACT relative to the penalties for possession of marijuana.
SPONSORS: Rep. Danielson, Hills. 7
COMMITTEE: Criminal Justice and Public Safety
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ANALYSIS
This bill adds a criminal penalty for a person 18 years of age or older who shall display or consume marijuana, hashish, hashish oil and its extracts or analogs; requires marijuana, therapeutic cannabis, hashish, hashish oil, and its extracts or analogs, or personal-use amount of a marijuana-infused product transported in any motor vehicle on any way to be in a secure container that is not in the passenger compartment of a motor vehicle; requires marijuana-infused products to be stored in a childproof container; and increases the fines for certain misdemeanor marijuana offenses.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
18-2615
04/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
AN ACT relative to the penalties for possession of marijuana.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Personal Possession of Marijuana. Amend RSA 318-B:2-c through RSA 318-B:2-e to read as follows:
318-B:2-c Personal Possession of Marijuana.
I. In this section:
(a) "Marijuana" includes the leaves, stems, flowers, and seeds of all species of the plant genus cannabis, but shall not include the resin extracted from any part of such plant and every compound, manufacture, salt, derivative, mixture, or preparation from such resin including hashish, hashish oil and its extracts or analogs, and further, shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.
(b) "Personal-use amount of a regulated marijuana-infused product" means one or more products that is comprised of marijuana, marijuana extracts, or resins and other ingredients and is intended for use or consumption, such as, but not limited to, edible products, ointments, and tinctures, which was obtained from a state where marijuana sales to [adults] persons 18 years of age or older are legal and regulated under state law, and which is in its original, child-resistant, labeled packaging when it is being stored, and which contains a total of no more than 300 milligrams of tetrahydrocannabinol.
II. Except as provided in RSA 126-X, any person who knowingly possesses 3/4 of an ounce or less of marijuana, including adulterants or dilutants, shall be guilty of a violation, and subject to the penalties provided in paragraph V.
III. Except as provided in RSA 126-X, any person who knowingly possesses 5 grams or less of hashish, including adulterants or dilutants, shall be guilty of a violation, and subject to the penalties provided in paragraph V.
IV. Except as provided in RSA 126-X, any person 21 years of age or older possessing a personal-use amount of a regulated marijuana-infused product shall be guilty of a violation, and subject to the penalties provided in paragraph V. Persons 18 years of age or older and under 21 years of age who knowingly possess marijuana-infused products shall be guilty of a misdemeanor and shall be fined not less than $350. No part of the fine shall be suspended.
IV-a. Any person 18 years of age or older who shall display or consume marijuana, hashish, hashish oil and its extracts or analogs as provided in RSA 318-B:2-c, a personal-use amount of marijuana, or a regulated marijuana-infused product as defined in RSA 318-B:2-c, I(b), in any public place or any area designated as a safe school zone shall be guilty of a misdemeanor and shall be fined not less than $350. No part of the fine shall be suspended.
V.(a) Except as provided in this paragraph, any person 18 years of age or older who is convicted of violating paragraph II or III, or any person 21 years of age or older who is convicted of violating paragraph IV shall be subject to a fine of $100 for a first or second offense under this paragraph, or a fine of up to $300 for any subsequent offense within any 3-year period; however, any person convicted based upon a complaint which alleged that the person had 3 or more prior convictions for violations of paragraph II, III [or], IV, or IV-a, or under reasonably equivalent offenses in an out-of-state jurisdiction since the effective date of this paragraph, within a 3-year period preceding the fourth offense shall be guilty of a class B misdemeanor and shall be fined not less than $350. No part of the fine shall be suspended. The offender shall forfeit the marijuana, regulated marijuana-infused products, or hashish to the state. A court shall waive the fine for a single conviction within a 3-year period upon proof that person has completed a substance abuse assessment by a licensed drug and alcohol counselor within 60 days of the conviction. A person who intends to seek an assessment in lieu of the fine shall notify the court, which shall schedule the matter for review after 180 days. Should proof of completion of an assessment be filed by or before that time, the court shall vacate the fine without a hearing unless requested by a party.
(b) Any person under 18 years of age who is convicted of violating paragraph II or III shall forfeit the marijuana or hashish and shall be subject to a delinquency petition under RSA 169-B:6.
VI.(a) Except as provided in this section, no person shall be subject to arrest for a violation of paragraph II[,] or III, or the violation-level offense under paragraph IV and shall be released provided the law enforcement officer does not have lawful grounds for arrest for a different offense. Nothing in this chapter shall prohibit a law enforcement officer from arresting a person for a violation of RSA 318-B:2-c or for possession of more than 3/4 ounce of marijuana when acting in good faith and with probable cause to believe the amount of marijuana, including adulterants or dilutants in a person's possession, exceeds 3/4 of an ounce.
(b) Nothing in this chapter shall be construed to prohibit a law enforcement agency from investigating or charging a person for a violation of RSA 265-A.
(c) Nothing in this chapter shall be construed as forbidding any police officer from taking into custody any minor who is found violating paragraph II, III, [or] IV, or IV-a.
(d) 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 or who refuses to truthfully provide his or her name, address, and date of birth to a police officer who has informed the person that he or she has been found to be in possession of what appears to the officer to be 3/4 of an ounce or less of marijuana, a personal-use amount of a regulated marijuana-infused product, or 5 grams or less of hashish, may be arrested for a violation of paragraph II, III,[or] IV, or IV-a.
VII. All fines imposed pursuant to this section shall be deposited into the alcohol abuse prevention and treatment fund established in RSA 176-A:1 and utilized for evidence-informed substance abuse prevention programs. Sufficient funds collected from violations of this chapter shall be deposited into the appropriate state account and used to supply all required summons, complaints and forms to state and local law enforcement agencies and the courts at no cost to satisfy the provisions of this chapter.
VIII.(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 except as required by federal or state law or regulation. Records pertaining to violations of this section may be disclosed upon written request from any state, county or federal agency pursuant to a state or federal law that requires such disclosure. All such requests shall be made in writing and cite the pertinent federal or state law or regulation that requires the disclosure. In addition, records pertaining to this section may be released upon waiver from the person who is the subject of the record. Information pertaining to violations of this section shall be retained by the department of safety and shall be subject to release to a state, county, or local law enforcement agency in order to comply with this paragraph.
(b) Every state, county, or local law enforcement agency that collects and reports data for the Federal Bureau of Investigation Uniform Crime Reporting Program known as the National Incident Based Reporting System shall collect data on the number of violations of paragraph II, III, [or] IV, or IV-a. The data collected pursuant to this paragraph shall be available to the public. A law enforcement agency may update the data annually and may make this data available on the agency's public Internet website.
318-B:2-d Plea by Mail.
I. Any person 18 years of age or older who is charged with a violation of RSA 318-B:2-c, II, III, [or] IV, or IV-a, except for misdemeanor offenses may enter a plea of guilty, nolo contendere, or not guilty, by mail in a circuit court, district division.
II. 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, II, III, [or] IV, or IV-a. 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.
III. 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.
IV. Whenever a defendant willfully fails to pay a fine in connection with a conviction for a violation of RSA 318-B:2-c, II, III, [or] IV, or IV-a or payment of such fine cannot be collected, the defendant shall be defaulted and the court may impose an additional fine of $100.
318-B:2-e Negligent Storage of Marijuana-Infused Products.
I. In addition to any other penalties provided for by law, any person who negligently stores marijuana-infused products, where the negligent storage causes such products to be possessed by a person under 18 years of age, shall be guilty of a misdemeanor. The storing of marijuana-infused products obtained legally in any state in an original childproof container shall be prima facie evidence that a person did not act negligently. Failure to store marijuana-infused products obtained legally in any state in an original childproof container shall be prima facie evidence of negligence. For the purposes of this section, a "childproof container" means any container that is certified under of satisfies federal or state regulations as a childproof container or a container provided by the manufacturer of the product that is clearly labelled as a childproof container and that a reasonable person can readily determine that the container cannot be opened and its contents cannot be accessed by a child. For the purposes of this section, a marijuana-infused product shall be contained and maintained in the original container supplied by the manufacturer that shall clearly identify the contents as a marijuana-infused product and that the product label shall identify all ingredients of the contents of the container including the amount of tetrahydrocannabinol (THC) in milligrams contained therein.
II. As used in this section, "marijuana-infused products" means products that are comprised of marijuana, marijuana extracts,[or], resins, oils or analogs that have been combined with other ingredients and are intended for use or consumption, including but not limited to, edible products, drinks, ointments, and tinctures.
2 Controlled Drug Act; Penalties. Amend RSA 318-B:26, II(c)-(d) to read as follows:
(c) In the case of more than 3/4 ounce of marijuana or more than 5 grams of hashish, hashish oil, and its extracts or analogs, including any adulterants or dilutants, the person shall be guilty of a misdemeanor. In the case of marijuana-infused products possessed by persons under the age of 21 or marijuana-infused products as defined in RSA 318-B:2-e, other than a personal-use amount of a regulated marijuana-infused product as defined in RSA 318-B:2-c, I(b), that are possessed by a person 21 years of age or older, the person shall be guilty of a misdemeanor. Any person guilty of possession of any amount of marijuana or hashish, hashish oil, and its extracts or analogs as provided in RSA 318-B:2-c, or a personal-use amount of marijuana and or a regulated marijuana-infused product as defined in RSA 318-B:2-c, I(b) in any safe school zone shall be guilty of a class B misdemeanor.
(d) In the case of 3/4 ounce or less of marijuana or 5 grams or less of hashish, hashish oil, and its extracts or analogs, including any adulterants or dilutants, the person shall be guilty of a violation pursuant to RSA 318-B:2-c. In the case of a person 21 years of age or older who possesses a personal-use amount of a regulated marijuana-infused product as defined in RSA 318-B:2-c, I(b), the person shall be guilty of a violation pursuant to RSA 318-B:2-c.
3 Other Alcohol or Drug Offenses; Possession of Drugs. Amend RSA 265-A:43 to read as follows:
265-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 the possession of marijuana or hashish, hashish oil and its extracts or analogs as provided in RSA 318-B:2-c, or a personal-use amount of a regulated marijuana-infused product as defined in RSA 318-B:2-c, I(b), or therapeutic cannabis as defined under RSA 126-X if all marijuana, therapeutic cannabis, hashish, hashish oil, and its extracts or analogs, or personal-use amount of regulated marijuana-infused product knowingly transported in any motor vehicle on any way shall be in a secure container that is not in the passenger compartment of any motor vehicle. In the case of a motor home or recreational vehicle where the passenger compartment is contiguous with the other compartments of the same vehicle, all marijuana, hashish, hashish oil, and its extracts or analogs, or personal-use amount of regulated marijuana-infused product, or therapeutic cannabis as defined under RSA 126-X, shall be secured in a locked container or locked compartment within said vehicle.
4 Effective Date. This act shall take effect January 1, 2019.
18-2615
12/14/17
HB 1815-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to the penalties for possession of marijuana.
FISCAL IMPACT: [ X ] State [ X ] County [ ] Local [ ] None
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STATE: | FY 2019 | FY 2020 | FY 2021 | FY 2022 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Expenditures | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ X ] Highway [ X ] Other - Turnpike Funds | |||
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COUNTY: |
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Revenue | $0 | $0 | $0 | $0 |
Expenditures | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
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METHODOLOGY:
This bill contains penalties that may have an impact on the New Hampshire judicial and correctional systems. There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. However, the entities impacted have provided the potential costs associated with these penalties below.
Judicial Branch | FY 2019 | FY 2020 |
Class B Misdemeanor | $50 | $51 |
Class A Misdemeanor | $72 | $73 |
Appeals | Varies | Varies |
It should be noted that average case cost estimates for FY 2019 and FY 2020 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. An unspecified misdemeanor can be either class A or class B, with the presumption being a class B misdemeanor. | ||
Judicial Council |
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Public Defender Program | Has contract with State to provide services. | Has contract with State to provide services. |
Contract Attorney – Misdemeanor | $300/Case | $300/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%). | ||
NH Association of Counties |
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County Prosecution Costs | Indeterminable | Indeterminable |
Estimated Average Daily Cost of Incarcerating an Individual | $85 to $110 | $85 to $110 |
Many offenses are prosecuted by local and county prosecutors. When the Department of Justice has investigative and prosecutorial responsibility or is involved in an appeal, the Department would likely absorb the cost within its existing budget. If the Department needs to prosecute significantly more cases or handle more appeals, then costs may increase by an indeterminable amount.
The Department of Safety states the fiscal impact on the Department’s expenditures is indeterminable because the number of individuals subject to the enforcement aspect of the bill is unknown. The Department assumes the law enforcement expenditure would increase, but the amount of increase is unknown.
The New Hampshire Municipal Association states this bill is not likely to affect municipal revenues or expenditures.
AGENCIES CONTACTED:
Judicial Branch, Judicial Council, Department of Safety, New Hampshire Municipal Association, and New Hampshire Association of Counties
| Date | Body | Type |
|---|---|---|
| Jan. 23, 2018 | House | Hearing |
| Feb. 13, 2018 | House | Exec Session |
| House | Floor Vote | |
| Feb. 22, 2018 | House | Floor Vote |
Feb. 22, 2018: Inexpedient to Legislate: MA VV 02/22/2018 HJ 5 P. 7
: Committee Report: Inexpedient to Legislate (Vote 13-4; CC)
Feb. 22, 2018: Committee Report: Inexpedient to Legislate for 02/22/2018 (Vote 13-4; CC) HC 7 P. 6
Feb. 13, 2018: Executive Session: 02/13/2018 LOB 204
Jan. 23, 2018: Public Hearing: 01/23/2018 11:15 AM LOB 204
Jan. 3, 2018: Introduced 01/03/2018 and referred to Criminal Justice and Public Safety HJ 1 P. 24