HB1614 (2020) Detail

Relative to the penalties for use or possession of a controlled drug.


HB 1614-FN - AS INTRODUCED

 

 

2020 SESSION

20-2369

04/08

 

HOUSE BILL 1614-FN

 

AN ACT relative to the penalties for use or possession of a controlled drug.

 

SPONSORS: Rep. Abramson, Rock. 20; Rep. Fowler, Rock. 20

 

COMMITTEE: Criminal Justice and Public Safety

 

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ANALYSIS

 

This bill provides penalties for controlled drugs in a quantity that would not be fatal.

 

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

20-2369

04/08

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Twenty

 

AN ACT relative to the penalties for use or possession of a controlled drug.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  Controlled Drug Act; Penalties.  Amend RSA 318-B:26 to read as follows:

318-B:26 Penalties.  

I.  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 represents to be a controlled drug, or controlled drug analog, or (2) any preparation containing a substance which he represents to be a controlled drug, or controlled drug analog, shall be sentenced as follows, except as otherwise provided in this section:

(a)  In the case of a violation involving any of the following, a person shall be sentenced to a maximum term of imprisonment of not more than [30] 2 years, a fine of not more than $500,000, 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 [life imprisonment] not more than 10 years, a fine of not more than $500,000, or both:

(1)  Five ounces or more of a mixture or substance containing any of the following, including any adulterants or dilutants:

(A)  Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; or

(B)  Cocaine other than crack cocaine, its salts, optical and geometric isomers, and salts of isomers; or

(C)  Ecgonine, its derivatives, their salts, isomers, and salts of isomers.

(2)  Lysergic acid diethylamide, or its analog, in a quantity of 100 milligrams or more including any adulterants or dilutants, or phencyclidine (PCP), or its analog, in a quantity of 10 grams or more including any adulterants or dilutants.

(3)  Heroin or its analog, crack cocaine, or a fentanyl class drug in a quantity of 5 grams or more, including any adulterants or dilutants.

(4)  Methamphetamine or its analog, in a quantity of 5 ounces or more, including adulterants or dilutants.

(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] shall be guilty of a violation and may be fined not more than 5 times the street value of the controlled drug or controlled drug analog.  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] shall be guilty of a class A misdemeanor:

(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;

(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;

(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;

(4)  Heroin or its analog, crack cocaine, or a fentanyl class drug in a quantity of one gram or more, including any adulterants or dilutants;

(5)  Methamphetamine or its analog, in a quantity of one ounce or more including any adulterants or dilutants;

(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;

(7)  Flunitrazepam in a quantity of 500 milligrams or more.

(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:

(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;

(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;

(3)  Methamphetamine, or its analog in a quantity of less than one ounce including any adulterants or dilutants;

(4)  Heroin or its analog, crack cocaine, or a fentanyl class drug in a quantity of less than one gram, including any adulterants or dilutants;

(5)  Marijuana in a quantity of one ounce or more including any adulterants or dilutants, or hashish in a quantity of 5 grams or more including any adulterants or dilutants;

(6)  Flunitrazepam in a quantity of less than 500 milligrams;

(7)  Any other controlled drug or its analog, other than those specifically covered in this section, classified in schedules I, II, III or IV.

(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:

(1)  Marijuana in a quantity of less than one ounce including any adulterants or dilutants, or hashish in a quantity of less than 5 grams including any adulterants or dilutants;

(2)  Any schedule V substance or its analog.

II.  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:

(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] misdemeanor, 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] misdemeanor, except that notwithstanding the provisions of RSA 651:2, IV(a), a fine of up to $50,000 may be imposed.

(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.

(c)]  In the case of more than 3/4 ounce of marijuana or more than 5 grams of hashish, including any adulterants or dilutants, the person shall be guilty of a [misdemeanor] violation.  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] violation.

[(d)] (c) In the case of 3/4 ounce or less of marijuana or 5 grams or less of hashish, 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.

[(e)  In the case of a residual amount of a controlled substance, as defined in RSA 318-B:1, XXIX-a, a person shall be guilty of a misdemeanor if the person is not part of a service syringe program under RSA 318-B:43.]

III.  A person shall be guilty of a class B misdemeanor who:

(a)  Except as provided in RSA 318-B:2-c, controls any premises or vehicle where he or she knows a controlled drug or its analog is illegally kept or deposited;

(b)  Aids, assists or abets a person in his 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.

(c)  [Manufactures with the intent to deliver, delivers or possesses with the intent to deliver any drug paraphernalia when such paraphernalia is knowingly manufactured, delivered or possessed for one or more of the uses set forth in RSA 318-B:2, II.

(d)]  Places an advertisement in violation of RSA 318-B:2, III.

III-a.  [Repealed.]

IV.  Any person who attempts or conspires to commit any offense defined in this chapter is punishable by imprisonment or a fine or both, which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

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] may be sentenced to a [mandatory minimum term of not less than] maximum term of 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.

VII.  Any person who violates RSA 318-B:2, XI 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.

VIII.  Any person who knowingly or purposely obtains or purchases (1) any substance which he represents to be a controlled drug or controlled drug analog, or (2) any preparation containing a substance which he represents to be a controlled drug or controlled drug analog, except as authorized in this chapter, shall be guilty of a [misdemeanor] violation.  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 B [felony] misdemeanor.

IX.  Any person who manufactures, sells, or dispenses methamphetamine, lysergic acid, diethylamide phencyclidine (PCP) or any other controlled drug classified in schedules I or II, or any controlled drug analog thereof, in violation of RSA 318-B:2, I or I-a, is strictly liable for a death which results from the injection, inhalation or ingestion of that substance, and may be sentenced to imprisonment for life or for such term as the court may order.  For purposes of this section, the person's act of manufacturing, dispensing, or selling a substance is the cause of a death when:

(a)  The injection, inhalation or ingestion of the substance is an antecedent but for which the death would not have occurred; and

(b)  The death was not:

(1)  Too remote in its occurrence as to have just bearing on the person's liability; or

(2)  Too dependent upon conduct of another person which was unrelated to the injection, inhalation or ingestion of the substance or its effect, as to have a just bearing on the person's liability.  It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by his purposeful, knowing, reckless or negligent injection, inhalation or ingestion of the substance or by his consenting to the administration of the substance by another.  Nothing in this section shall be construed to preclude or limit any prosecution for homicide.  A conviction arising under this section shall not merge with a conviction of one as a drug enterprise leader or for any other offense defined in this chapter.

[IX-a.  A qualifying patient or designated caregiver as defined in RSA 126-X:1 who sells cannabis to a person who is not a qualifying patient or a designated caregiver shall be guilty of a class B felony and shall be sentenced to a maximum term of imprisonment of not more than 7 years, a fine of not more than $300,000, or both.]

X.  Any penalty imposed for violation of this chapter shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law.

XI.  Any person who violates any provision of this chapter for which a penalty is not provided by paragraphs I through IX shall be guilty of a class B felony [if a natural person, or guilty of a felony if any other person] misdemeanor, or guilty of a class B felony if the maximum penalty provided is a term of imprisonment in excess of 2 years.

XII.  The penalty categories set forth in this section based upon the weight of the drug involved are material elements of the offense; however, the culpability requirement shall not apply to that element of the offense.

XIII.  [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, except that any person who violates the provisions of RSA 318-B:26, II(c) or RSA 318-B:26, II(d) shall be fined $350.  This paragraph shall not apply to violations of RSA 318-B:2-c] Any person currently incarcerated for a conviction under this chapter may petition the court or the parole board for a reduction in sentence to the maximum sentence listed under this section.

2  Use of Cannabis for Therapeutic Purposes; Prohibitions and Limitations.  Amend RSA 126-X:3, VI to read as follows:

VI.  Any qualifying patient or designated caregiver who sells cannabis to another person who is not a qualifying patient or designated caregiver under this chapter [shall be subject to the penalties specified in RSA 318-B:26, IX-a,] shall have his or her registry identification card revoked[,] and shall be subject to [other] the penalties [as] provided in RSA 318-B:26.

3  Annulment of Criminal Offenses.  Amend RSA 651:5, III(i) to read as follows:

(i)  For a [class A misdemeanor or felony] misdemeanor offense under RSA 318-B:26, II, 2 years.

4  Effective Date.  This act shall take effect January 1, 2021.  

 

LBAO

20-2369

12/5/19

 

HB 1614-FN- FISCAL NOTE

AS INTRODUCED

 

AN ACT relative to the penalties for use or possession of a controlled drug.

 

FISCAL IMPACT:      [ X ] State              [ X ] County               [    ] Local              [    ] None

 

 

 

Estimated Increase / (Decrease)

STATE:

FY 2020

FY 2021

FY 2022

FY 2023

   Appropriation

$0

$0

$0

$0

   Revenue

$0

Indeterminable Decrease

Indeterminable Decrease

Indeterminable Decrease

   Expenditures

$0

Indeterminable Decrease

Indeterminable Decrease

Indeterminable Decrease

Funding Source:

  [ X ] General            [    ] Education            [    ] Highway           [    ] Other

 

 

 

 

 

COUNTY:

 

 

 

 

   Revenue

$0

$0

$0

$0

   Expenditures

$0

Indeterminable Decrease

Indeterminable Decrease

Indeterminable Decrease

 

 

 

 

 

METHODOLOGY:

This bill reduces the charge level, fines and sanctions for various controlled drug violations.  This bill affects penalties that may have an impact on the New Hampshire judicial and correctional systems.  There is no method to determine how many fewer 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 2021

FY 2022

Violation Level Offense

$52

$54

Class B Misdemeanor

$54

$56

Class A Misdemeanor

$77

$79

Simple Criminal Case

$300

$314

Routine Criminal Felony Case

$484

$498

Appeals

Varies

Varies

It should be noted that average case cost estimates for FY 2021 and FY 2022 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

 

 

Public Defender Program

Has contract with State to provide services.

Has contract with State to provide services.

Contract Attorney – Felony

$825/Case

$825/Case

Contract Attorney – Misdemeanor

$300/Case

$300/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%).

Department of Corrections

 

 

FY 2019 Average Cost of Incarcerating an Individual

$44,400

$44,400

FY 2019 Annual Marginal Cost of a General Population Inmate

$5,071

$5,071

FY 2019 Average Cost of Supervising an Individual on Parole/Probation

$576

$576

NH Association of Counties

 

 

County Prosecution Costs

Indeterminable

Indeterminable

Estimated Average Daily Cost of Incarcerating an Individual

$105 to $120

$105 to $120

 

The Judicial Council indicates this bill has a potential for a significant impact on indigent defense costs.  Since the indigent defense system does not provide representation to defendants charged with class B misdemeanors, first-time possession charges would no longer require legal representation.  In 2018, the Public Defender Program handled 2,877 straight possession cases.  It is not possible to determine what percentage of these cases would be charged as class B misdemeanors under the proposed law.

 

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.  This bill would not impact the budget of the Department of Justice.

 

AGENCIES CONTACTED:

Judicial Branch, Departments of Corrections and Justice, Judicial Council, and New Hampshire Association of Counties

 

Links

HB1614 at GenCourtMobile
HB1614 Discussion

Action Dates

Date Body Type
Jan. 21, 2020 House Hearing
Jan. 28, 2020 House Exec Session
House Floor Vote
Feb. 19, 2020 House Floor Vote

Bill Text Revisions

HB1614 Revision: 7258 Date: Dec. 6, 2019, 12:27 p.m.

Docket

Date Status
Jan. 8, 2020 Introduced 01/08/2020 and referred to Criminal Justice and Public Safety
Jan. 21, 2020 Public Hearing: 01/21/2020 11:00 am LOB 204
Jan. 28, 2020 Executive Session: 01/28/2020 10:00 am LOB 204
Feb. 19, 2020 Committee Report: Inexpedient to Legislate for 02/19/2020 (Vote 20-0; CC) HC 7 P. 4
Committee Report: Inexpedient to Legislate (Vote 20-0; CC)