Revision: Jan. 8, 2024, 2:33 p.m.
HB 470-FN - AS AMENDED BY THE HOUSE
3Jan2024... 2422h
2023 SESSION
23-0548
04/05
HOUSE BILL 470-FN
AN ACT relative to fentanyl test strips and other drug checking equipment.
SPONSORS: Rep. Meuse, Rock. 37; Rep. Bouldin, Hills. 25
COMMITTEE: Criminal Justice and Public Safety
─────────────────────────────────────────────────────────────────
ANALYSIS
This bill amends the definition of drug paraphernalia to exclude drug checking equipment and authorizes the use of drug checking equipment.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
3Jan2024... 2422h 23-0548
04/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Three
AN ACT relative to fentanyl test strips and other drug checking equipment.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Findings. The general court hereby finds that:
I. Drug overdoses, both fatal and non-fatal, remain a profoundly serious problem in the United States and New Hampshire. More than 107,000 individuals in the United States died of a drug overdose during 2021. This number is 50 percent higher than the number of individuals who died from drug overdose just 2 years prior. Findings from the committee to study harm reduction and overdose prevention programs (SB 279, Chapter Law 90:2, Laws of 2022) found, “overdose deaths continue to present an urgent public health crisis in New Hampshire and across the nation. Due to complications surrounding the COVID-19 pandemic, complete data does not exist but, anecdotally, overdose deaths are rising to levels to similar to the peak previously seen during the opioid epidemic.”
II. An increasing percentage of U.S. drug overdose deaths involve synthetic opioids, particularly illicitly manufactured fentanyl and fentanyl analogs, and stimulants with abuse potential, such as methamphetamine.
III. Within New Hampshire, the Drug Monitoring Initiative reports as of September 16, 2022, 95 percent of the 201 opioid related death thus far in 2022 had used fentanyl and 27 percent of the deaths with confirmed toxicology had used stimulants.
IV. There are several reasons for the increase in opioid- and stimulant-involved fatal overdoses. Synthetic opioids are highly potent and increasingly available within the U.S. These drugs are found in the supplies of other drugs, including as pills pressed to look like legitimate pharmaceuticals or in other drugs that a user has no reason to believe contain opioids. Additionally, there is increased potency, availability, and affordability of opioids and stimulants in recent years.
V. Several factors play a role in whether ingesting a substance will lead to an overdose, including the type of drugs present in the substance ingested, the dosage or concentration of the drug present, and whether the substance contains unexpected drugs or adulterants in addition to, or in lieu of, the intended drug.
VI. An individual may be able to ingest drugs more safely, and with less risk of overdose, by using drug checking equipment to gather information about the factors identified in paragraph V.
VII. Studies show that drug checking may favorably influence an individual’s intended and actual drug use behaviors, in the form of ingesting a smaller amount of drug or using it more slowly, keeping naloxone nearby, changing the method of administration, using with someone else, or not using the drug at all at that time. Despite the 2023 legalization of fentanyl test strips and xylazine test strips, a more inclusive and more precise definition of drug checking equipment is needed to help reduce overdoses and other severe health impacts caused by new substances, contaminants, and adulterants that are entering the marketplace.
2 Controlled Drug Act; Definition of Drug Paraphernalia. Amend RSA 318-B:1, X-a and X-b to read as follows:
X-a. "Drug paraphernalia" means all equipment, products and materials of any kind which are used or intended for use or customarily intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. [It] Drug paraphernalia includes, but is not limited to:
(a) Kits used or intended for use or customarily intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.
(b) Kits including but not limited to cocaine kits, used or intended for use or customarily intended for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.
(c) Isomerization devices used or intended for use or customarily intended for use in increasing the potency of any species of plant which is a controlled substance.
(d) [Testing equipment used or intended for use or customarily intended for use in identifying, or analyzing the strength, effectiveness or purity of controlled substances.] Testing equipment used or intended for use in the manufacturing, compounding, converting, processing, or preparing of controlled substances for illegal sales and/or distribution in order to identify or analyze the strength, effectiveness, or purity of a controlled substance.
(e) Scales and balances used or intended for use or customarily intended for use in weighing or measuring controlled substances.
(f) Dilutents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or intended for use or customarily intended for use in cutting controlled substances.
(g) Separation gins and sifters used or intended for use or customarily intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana.
(h) Blenders, bowls, containers, spoons and mixing devices used or intended for use or customarily intended for use in compounding controlled substances.
(i) Capsules, balloons, envelopes and other containers used or intended for use or customarily intended for use in packaging small quantities of controlled substances.
(j) Containers and other objects used or intended for use or customarily intended for use in storing or concealing controlled substances.
(k) Objects used or intended for use or customarily intended for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:
(1) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.
(2) Water pipes.
(3) Carburetion tubes and devices.
(4) Smoking and carburetion masks.
(5) Chamber pipes.
(6) Carburetor pipes.
(7) Electric pipes.
(8) Air-driven pipes.
(9) Chillums.
(10) Bongs.
(11) Ice pipes or chillers.
X-b. Notwithstanding the provisions of RSA 318-B:1, X-a, or unless possessed in conjunction with other evidence forming the basis of a criminal charge involving the manufacturing, possessing with the intent to sell, or compounding pursuant to RSA 318-B:2, I, "drug paraphernalia" shall not include:
(a) Fentanyl test strips, xylazine test strips, or other materials used or intended for use in testing for the presence of fentanyl, xylazine, or a fentanyl or xylazine analog in a substance[, unless possessed in conjunction with other evidence forming the basis of a criminal charge involving the manufacturing, possessing with the intent to sell, or compounding pursuant to RSA 318-B:2, I].
(b) Other drug checking equipment used to inform individuals of whether a substance has been adulterated by the presence of a synthetic opioid or another controlled substance or undisclosed chemical compound or contaminant.
(c) Materials used by staff and volunteers of agencies and organizations that provide harm reduction services authorized by the state, a county, a municipality, or a public health department, in the processing, preparing, packaging, repackaging, storing, or containing of a nominal amount of a controlled substance for the purpose of confirmatory testing.
(d) Drug checking equipment used, purchased, transported, or distributed by staff and volunteers of agencies and organizations that provide harm reduction services authorized by the state, a county, a municipality, or a public health department.
3 New Paragraphs; Controlled Drug Act; Definitions. Amend RSA 318-B:1 by inserting after paragraph X-b the following new paragraphs:
X-c. "Drug checking” means the process of identifying, analyzing, or detecting the composition of a drug or the presence or composition of an unexpected substance within the drug.
X-d. "Drug checking equipment" means equipment, products, or materials used, designed for use, or intended for use to perform drug checking, including materials and items used by the person operating the equipment or products to store, measure, or process samples for analysis. Drug checking equipment includes fentanyl test strips, xylazine test strips, other immunoassay drug testing strips, colorimetric reagents, spectrometers such as Fourier Transform Infrared and Raman spectrometers, and equipment that uses high-performance liquid chromatography, gas chromatography, mass spectrometry, and nuclear magnetic resonance techniques. Drug checking equipment does not include the substances being analyzed, drug packaging, or drug supplies.
X-e. "Drug packaging" means the materials or items used by persons ingesting drugs to store, contain, cover, or transport small amounts of one or more controlled substances or controlled substance analogs. Drug packaging includes, but is not limited to, plastic bags, plastic wraps, foil wraps, plastic vials, glass vials, and wax paper bindles. Drug packaging in this section refers to the packaging materials provided for or utilized in drug checking.
X-f. "Drug supplies" means hypodermic needles, syringes, preparation containers, cotton, filters, alcohol wipes, water, saline, tourniquets, disposal containers, wound care items, pipes, bubbles, snorting straws, pipe covers, and other items used in the consumption of drugs.
X-g. "Eligible activities" means:
(a) Purchasing, obtaining, providing, transporting, distributing, using, or evaluating the use of drug checking equipment.
(b) Training, both initial and ongoing, about drug checking equipment, the process of drug checking, and the purpose of drug checking.
(c) Technical assistance concerning drug checking equipment, the process of drug checking, and the purpose of drug checking.
X-h. "Harm reduction" means a program, service, support, or resource that attempts to reduce the adverse consequences of substance use among people who use substances. Harm reduction addresses conditions that give rise to substance use, as well as the substance use itself, and may include, but is not limited to, drug checking, naloxone distribution, and education about Good Samaritan laws.
X-i. “Nominal amount” means not more than 10 milligrams of a substance containing or suspected to contain one or more controlled substances or controlled substance analogues.
4 Controlled Drug Act; Acts Prohibited. Amend RSA 318-B:2, II to read as follows:
II. It shall be unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing that it will be used or is customarily intended to be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled substance. "Drug paraphernalia" shall not include drug checking equipment or materials used in the processing, preparing, packaging, repackaging, storing, or containing nominal amounts for the purpose of drug checking, as defined in RSA 318-B:1, X-c.
5 New Section; Controlled Drug Act; Use of Drug Checking Equipment Permitted. Amend RSA 318-B by inserting after section 2-e the following new section:
318-B:2-f Use of Drug Checking Equipment Permitted.
I. A person may:
(a) Obtain, possess, purchase, sell, provide, transport, distribute, use, or request another person to use drug checking equipment;
(b) Possess, transport, deliver, or provide drug supplies, drug packaging, or a nominal amount of one or more controlled substances or controlled substance analogs for, or during, analysis by drug checking equipment; or
(c) Possess, provide, or communicate the results of the drug checking analysis in paper, electronic, or verbal form.
II. The state may authorize use of state or state-administered funds including, but not limited to, funds in the New Hampshire opioid litigation settlement proceeds fund for eligible drug checking activities.
III. No person shall prohibit another person from using federal funds for eligible drug checking activities, provided the use of the federal funds is consistent with federal law and any rules governing use of the funds.
IV. No person shall be arrested, charged, prosecuted, subject to revocation of probation, parole, or pre-trial release, subject to civil, disciplinary, or administrative action; subject to the loss of one or more dependents, subject to the loss of housing; or penalized in any other way for engaging in any act authorized under this section.
V. The fact that a person engages in any act authorized under this section shall not:
(a) Serve as the basis, in whole or in part, for a determination by a law enforcement officer or any court, of probable cause or reasonable suspicion to stop, search, seize, or arrest the person or the person’s property.
(b) Be used as evidence in a criminal case or administrative action against the person.
(c) Result in:
(1) Revocation of the person’s probation, parole, or pre-trial release;
(2) Administrative action taken against the person; or
(3) Any other punitive action or penalty taken against the person.
(d) The results from a drug checking analysis shall not be used by any person for a treatment or other clinical decision, in any criminal investigation, or as evidence in a criminal case or administrative action.
6 Effective Date. This act shall take effect January 1, 2025.
23-0548
Amended 1/8/24
HB 470-FN- FISCAL NOTE
AS AMENDED BY THE HOUSE (AMENDMENT #2023-2422h)
AN ACT relative to fentanyl test strips and other drug checking equipment.
FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None
|
| |||||
Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund | None | |||||
Expenditures | Indeterminable Decrease | |||||
Funding Source | General Fund | |||||
Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source | None | |||||
| ||||||
| ||||||
Estimated Political Subdivision Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
County Revenue | $0 | $0 | $0 | $0 | ||
County Expenditures | Indeterminable Decrease | |||||
Local Revenue | $0 | $0 | $0 | $0 | ||
Local Expenditures | Indeterminable Decrease | |||||
METHODOLOGY:
This bill amends the definition of drug paraphernalia to exclude certain drug checking equipment, and authorizes the use of said equipment. Currently, RSA 318-B:26, III(c) makes it a misdemeanor to deliver, manufacture with the intent to deliver, or possess with the intent to deliver drug paraphernalia. By excluding drug checking equipment used for the specified legal purposes, from the definition of paraphernalia, the bill may result in some indeterminable reduction in criminal prosecutions. Therefore, this bill may have an impact on the judicial and correctional systems, which could affect prosecution, incarceration, probation, and parole costs, for the state, as well as county and local governments. A summary of such costs can be found at: https://gencourt.state.nh.us/lba/Budget/Fiscal_Notes/JudicialCorrectionalCosts.pdf
AGENCIES CONTACTED:
Judicial Branch, Judicial Council, Department of Justice, Department of Corrections, New Hampshire Association of Counties, and New Hampshire Municipal Association