Revision: Jan. 26, 2021, 12:43 p.m.
SB 92-FN - AS INTRODUCED
2021 SESSION
21-0908
04/11
SENATE BILL 92-FN
SPONSORS: Sen. Bradley, Dist 3; Sen. Avard, Dist 12; Sen. Carson, Dist 14; Sen. Hennessey, Dist 1; Sen. D'Allesandro, Dist 20; Sen. Ricciardi, Dist 9; Sen. Giuda, Dist 2; Sen. Cavanaugh, Dist 16
COMMITTEE: Judiciary
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ANALYSIS
This bill increases the penalty for criminal mischief involving vandalizing public property; amends the statute governing bail and pre-trial release to include provisions for pre-trial detention for commission of certain offenses that would create a presumption that the defendant is a danger to the public; and requires an employer to release information upon request by a law enforcement agency conducting a background check on a candidate for a position as a law enforcement officer.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
21-0908
04/11
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Criminal Mischief; Penalty Amended. Amend RSA 634:2, VI to read as follows:
VI. Any person who is found guilty of criminal mischief under paragraph III of this section because he or she has vandalized, defaced, destroyed, tampered with, or made any other unauthorized alteration, whether permanent or temporary, on public property, shall be guilty of a [violation] class A misdemeanor and shall also make restitution for any damage he or she has caused.
2 Bail and Recognizances; Release of a Defendant Pending Trial. Amend RSA 597:2 to read as follows:
597:2 Release of a Defendant Pending Trial.
I. Except as provided in paragraph III or VI, upon the appearance before the court of a person charged with an offense, the court shall issue an order that, pending arraignment or trial, the person be:
(a) Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;
(b) Released on a condition or combination of conditions pursuant to the provisions of paragraph III;
(c) Detained; or
(d) Temporarily detained to permit revocation of conditional release pursuant to the provisions of paragraph VIII.
II. Except as provided in RSA 597:1-d, a person charged with a probation violation shall be entitled to a bail hearing. The court shall issue an order that, pending a probation violation hearing, the person be:
(a) Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;
(b) Released on a condition or combination of conditions pursuant to the provisions of paragraph III; or
(c) Detained.
III. When considering whether to release or detain a person, the court and a bail commissioner shall consider the following issues:
(a) Safety of the public or the defendant.
(1) If a person is charged with homicide under RSA 630:1; first degree assault under RSA 631:1; second degree assault under RSA 631:2; aggravated felonious sexual assault under RSA 632-A:2; kidnapping under RSA 633:1; trafficking in persons under RSA 633:7; robbery under RSA 636:1, III; or felonious use of firearms under RSA 650-A:1, the person upon arrest shall be detained for a period of not more than 72 hours from the time of his or her arrest, excluding Saturdays, Sundays, and holidays, based upon the rebuttable presumption the person charged is a danger to the public.
(2) If a person is charged with any other criminal offense, an offense listed in RSA 173-B:1, I, or a violation of a protective order under RSA 458:16, III, or after arraignment, is charged with a violation of a protective order issued under RSA 173-B, the court may order preventive detention without bail, or, in the alternative, may order restrictive conditions including but not limited to electronic monitoring and supervision, only if the court determines by clear and convincing evidence that release will endanger the safety of that person or the public. In determining whether release will endanger the safety of that person or the public, the court may consider all relevant factors presented pursuant to paragraph IV.
(b) Assuring the court appearance of charged persons.
(1) The court shall order the pre-arraignment or pretrial release of the person on his or her personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, or cash or corporate surety bail, subject to the condition that the person not commit a crime during the period of his or her release, and subject to such further condition or combination of conditions that the court may require unless the court determines by a preponderance of the evidence that such release will not reasonably assure the appearance of the person as required.
(2) If the court determines by a preponderance of the evidence that a person has failed to appear on any previous matter charged as a felony, class A misdemeanor, class B misdemeanor, or driving or operating while impaired, or a reasonably equivalent offense in an out-of-state jurisdiction, [3 or more times] within the past 5 years, or twice on the present case, there shall be a rebuttable presumption that release will not reasonably assure the appearance of the person as required and the person shall be detained in pre-trial detention.
(3) In determining the amount of the unsecured appearance bond or cash or corporate surety bail, the court may consider all relevant factors bearing upon a person's ability to post bail.
(4) The court shall not impose a financial condition that will result in the pretrial detention of a person solely as a result of that financial condition unless the court determines by clear and convincing evidence that the nature of the allegations presents a substantial risk that the person will not appear and that no reasonable alternative will assure the person's appearance. The defendant shall be afforded the opportunity to be heard.
(c) Failure of a person to abide by previous bail conditions. If there is probable cause to believe that, while on release pending resolution of a previous offense, the person committed a felony, class A misdemeanor, class B misdemeanor, or driving or operating while impaired, was released on bail, and thereafter was arrested for a third felony, class A misdemeanor, class B misdemeanor, or driving or operating while impaired, there shall be a rebuttable presumption that the person will not abide by a condition that the person not commit a new offense and the person shall be detained in pre-trial detention. [The court shall not impose a financial condition that will result in the pretrial detention of the person solely as a result of that financial condition unless the court determines by clear and convincing evidence after a hearing that no reasonable alternative or combination of conditions will assure that the person will not commit a new offense.] The court may consider any relevant factors in making its determination.
IV.(a) Evidence in support of preventive detention shall be made by offer of proof at the initial appearance before the court. At that time, the defendant may request a subsequent bail hearing where live testimony is presented to the court to rebut the presumption that the defendant is a danger to the public or is at-risk of re-offending while on bail.
(b) At any subsequent hearing, such testimony may be presented via video conferencing, unless the court determines that witness testimony in court is necessary. A request by the defendant for in-court testimony shall be made by oral motion at the initial hearing or by written motion prior to any subsequent hearing. Any order granting the defendant's request shall be distributed to the parties at least 48 hours prior to any subsequent hearing.
(c) There shall be a rebuttable presumption that an alleged victim of the crime shall not be required to testify at the bail hearing. Nothing in this section shall preclude an alleged victim from voluntarily testifying at such hearing. The state may present evidence of statements made in the course of an investigation through a law enforcement officer.
V. A no-contact provision contained in any bail order shall not be construed to:
(a) Prevent counsel for the defendant from having contact with counsel for any of the individuals protected by such provision; or
(b) Prevent the parties, if the defendant and one of the protected individuals are parties in a domestic violence or marital matter, from attending court hearings scheduled in such matters or exchanging copies of legal pleadings filed in court in such matters.
VI. If a person is charged with violation of a protective order issued under RSA 173-B or RSA 633:3-a, the person shall be detained without bail pending arraignment pursuant to RSA 173-B:9, I(a).
VII. In a release order issued pursuant to this section, the court shall include a written statement that sets forth:
(a) All of the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person's conduct; and
(b) The provisions of RSA 641:5, relative to tampering with witnesses and informants.
VIII. A person charged with an offense who is, or was at the time the offense was committed, on release pending trial for a felony or misdemeanor under federal or state law, release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under federal or state law; or probation or parole for any offense under federal or state law, except as provided in RSA 597:1-d, III, [may] shall be detained for a period of not more than 72 hours from the time of his or her arrest, excluding Saturdays, Sundays and holidays. The law enforcement agency making the arrest shall notify the appropriate court, probation or parole official, or federal, state, or local law enforcement official. Upon such notice, the court shall direct the clerk to notify by telephone the department of corrections, division of field services, of the pending bail hearing. [If the department fails or declines to take the person into custody during that period, the person shall be treated in accordance with the provisions of law governing release pending trial.] Probationers and parolees who are arrested and fail to advise their supervisory probation officer or parole officer in accordance with the conditions of probations and parole [may] shall be subject to arrest and detention as probation and parole violators.
IX. Upon the appearance of a person charged with a class B misdemeanor, the court shall issue an order that, pending arraignment, the person be released on his or her personal recognizance, unless the court determines pursuant to paragraph III that such release will endanger the safety of the person or the public. The court shall appoint an attorney to represent any indigent person charged with a class B misdemeanor denied release for the purpose of representing such person at any detention hearing.
X. A person detained by a circuit court has the right to:
(a) In the first instance, a hearing in circuit court within 36 hours after the filing of the motion, excluding weekends and holidays on a motion to reconsider the original detention order; and
(b) A decision upon a de novo appeal, pursuant to RSA 597:6-e, II, to the superior court within 36 hours of the filing of the appeal, excluding weekends and holidays.
3 New Section; Police Standards and Training Council;Law Enforcement Candidate Background Checks. Amend RSA 106-L by inserting after section 16 the following new section:
106-L:17 Law Enforcement Candidate Background Check.
I. For purposes of performing a background check for a candidate to be employed as a peace officer or in the case of a candidate for a position other than a sworn peace officer within a law enforcement agency, the candidate's previous employer shall disclose employment information relating to the candidate, upon request of a law enforcement agency, if all of the following conditions are met:
(a) The request is made in writing.
(b) The request is accompanied by a notarized authorization by the candidate releasing the employer of liability.
(c) The request and the authorization are presented to the employer by a sworn officer or other authorized representative of the requesting law enforcement agency.
II. In the absence of fraud or malice, an employer shall not be subject to any civil liability for any relevant cause of action for releasing employment information required pursuant to this section. This section shall not abrogate the existing common law or statutory privileges and immunities of an employer.
III. For purposes of this section, "employment information" includes written information in connection with job applications, performance evaluations, attendance records, disciplinary actions, eligibility for rehire, and other information relevant to the performance of a peace officer or other law enforcement agency candidate, except information prohibited from disclosure by any other state or federal law or regulation.
IV. An employer's refusal to disclose information to a law enforcement agency in accordance with this section shall constitute grounds for a civil action for injunctive relief requiring disclosure on the part of an employer.
V. Employment information disclosed by an employer to an initial requesting law enforcement agency shall be deemed confidential. However, the initial requesting law enforcement agency may disclose this information to another authorized law enforcement agency that is also conducting a background check into a peace officer or other law enforcement agency candidate. If the information is disclosed to another law enforcement agency, that agency shall utilize the information for investigative leads only and the information shall be independently verified by that agency in order to be used in determining the suitability of a peace officer or other law enforcement agency candidate.
VI. An employer may charge a reasonable fee to cover the actual cost incurred in copying and furnishing documents to a law enforcement agency as required by this section.
I. Section 1 of this act shall take effect January 1, 2022.
II. The remainder of this act shall take effect 60 days after its passage.
21-0908
1/22/21
SB 92-FN- FISCAL NOTE
AS INTRODUCED
FISCAL IMPACT: [ X ] State [ X ] County [ ] Local [ ] None
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STATE: | FY 2021 | FY 2022 | FY 2023 | FY 2024 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other - Penalty Assessments | |||
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COUNTY: |
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Revenue | $0 |
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Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
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METHODOLOGY:
This bill increases the penalty for criminal mischief involving vandalizing public property; amends the statute governing bail and pre-trial release to include provisions for pre-trial detention for commission of certain offenses that would create a presumption that the defendant is a danger to the public; and requires an employer to release information upon request by a law enforcement agency conducting a background check on a candidate for a position as a law enforcement officer.
The Judicial Branch reports in previous years, there were an average of 162 convictions per year under RSA 634:2, III (ranging from 70 – 237). The Branch is unable to determine how many of those were charged “because he or she has vandalized, defaced, destroyed, tampered with, or made any other unauthorized alteration, whether permanent or temporary, on public property.” Concerning the change from a violation to a Class A Misdemeanor, the Judicial Branch is unable to estimate how many cases would be affected or the amount of additional fines that may be imposed. By changing the penalty to a Class A misdemeanor, any findings of guilty can be appealed de novo to the superior court, which would result in a second trial. While this will result in additional cases and trials in superior court, the Judicial Branch is unable to predict how many cases will be appealed for a new trial in superior court. The bill would also expand the use of pretrial detention. This would likely result in additional expenditures to the Judicial Branch for transporting the defendant to and from jail and hearings.
The New Hampshire Association of Counties indicates this bill may have an interminable impact on county expenditures.
The Police Standards and Training Council indicates this bill would have no fiscal impact on the Council.
AGENCIES CONTACTED:
Judicial Branch, New Hampshire Association of Counties and New Hampshire Police Standards and Training Council