CHAPTER 306

SB 142 – FINAL VERSION

04/08/09 1161s

04/08/09 1295s

20May2009… 1456h

06/24/09 2220CofC

06/24/09 2364eba

2009 SESSION

09-0947

04/03

SENATE BILL 142

AN ACT relative to registration of criminal offenders and relative to involuntary commitment of sexually violent predators.

SPONSORS: Sen. DeVries, Dist 18; Sen. Barnes, Jr., Dist 17; Sen. Carson, Dist 14; Sen. Denley, Dist 3; Sen. Downing, Dist 22; Sen. Fuller Clark, Dist 24; Sen. Gatsas, Dist 16; Sen. Gilmour, Dist 12; Sen. Houde, Dist 5; Sen. Letourneau, Dist 19

COMMITTEE: Judiciary

AMENDED ANALYSIS

This bill:

I. Corrects certain conflicts in RSA 651-B, the registration of criminal offenders statute.

II. Clarifies the procedural time limits for establishing probable cause to hold a sexually violent predator in custody.

III. Inserts a contingency provision changing the effective date of RSA 638:6-b, relative to dealing in counterfeit goods.

IV. Is a request of the department of justice.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

04/08/09 1161s

04/08/09 1295s

20May2009… 1456h

06/24/09 2220CofC

06/24/09 2364eba

09-0947

04/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Nine

AN ACT relative to registration of criminal offenders and relative to involuntary commitment of sexually violent predators.

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

306:1 Registration of Criminal Offenders; Definitions. Amend RSA 651-B:1, V to read as follows:

V. “Sexual offense” means the following offenses where the victim was 18 years of age or older at the time of the offense:

(a) Capital murder, RSA 630:1, I(e); first degree murder, RSA 630:1-a, I(b)(1); aggravated felonious sexual assault, RSA 632-A:2; felonious sexual assault, 632-A:3; sexual assault, 632-A:4, I(a) or RSA 632-A:4, III; violation of privacy, RSA 644:9, I(a) or RSA 644:9, III-a; or a second or subsequent offense within a 5-year period for indecent exposure and lewdness, RSA 645:1, [I(a)] I.

[(b) RSA 169-B:41, II, 639:3, III, 649-A:3, 649-A:3-a, 649-A:3-b, 649-B:3, 649-B:4, or 650:2, II; or]

(b) A law of another state, country, territory, tribal territory, or the federal government reasonably equivalent to a violation listed in subparagraph (a). For purposes of this section, the term “country” refers to Canada, Great Britain, Australia, and New Zealand, as well as any other country that the United States State Department has determined has an independent judiciary that generally enforces the right to a fair trial.

(c) Any offense for which the offender is required to register in the state where the conviction occurred.

(d) Any other criminal offense which is not specifically listed in subparagraph (a) if the court finds by clear and convincing evidence at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification and protection of the public would be furthered by requiring the person to register. In determining whether the offender should be required to register, the court may consider the offender’s prior criminal history and any other relevant information. If the court determines that the offender should be required to register, the court shall determine whether the offender should be required to register pursuant to the requirements of a tier I, tier II, or tier III offender. In determining in which tier the offender should register, the court shall consider the nature of other offenses that are currently listed in each tier; the extent to which public safety would be furthered; whether the victim was a minor when the offense occurred; and any other relevant factors. The hearing at which such a determination is made shall comply with due process requirements, including a right to appeal the finding. The court shall provide the defendant an opportunity to be heard on the issue prior to the imposition of the registration requirement and shall state on the record the reasons for its findings and the reasons for requiring registration.

306:2 Registration of Criminal Offenders; Definitions. Amend RSA 651-B:1, VII(a)-(b) to read as follows:

(a) Any of the following offenses, where the victim was under the age of 18 at the time of the offense: capital murder, RSA 630:1, I(e); first degree murder, RSA 630:1-a, 1(b)(1); aggravated felonious sexual assault, RSA 632-A:2; felonious sexual assault, RSA 632-A:3; sexual assault, RSA 632-A:4, I(a) or RSA 632-A:4, III; kidnapping, RSA 633:1; criminal restraint, RSA 633:2; false imprisonment, RSA 633:3; incest, RSA 639:2; violation of privacy, RSA 644:9, I(a) or RSA 644:9, III-a; a second or subsequent offense within a 5-year period for indecent exposure and lewdness, RSA 645:1, [1(a)] I; indecent exposure and lewdness, [RSA 645:1, I(b),] RSA 645:1, II[,] and RSA 645:1, III; or prostitution, RSA 645:2.

(b) Intentional contribution to the delinquency of a minor, RSA 169-B:41, II; sexual assault, RSA 632-A:4, I(b) if the actor was 18 years of age or older at the time of the offense[,]; endangering the welfare of a child, RSA 639:3, III; possession of child [pornography] sexual abuse images, RSA 649-A:3; distribution of child sexual abuse images, RSA 649-A:3-a; manufacture of child sexual abuse images, RSA 649-A:3-b; computer pornography, RSA 649-B:3; certain uses of computer services prohibited, RSA 649-B:4; or obscene matters, RSA 650:2, II.

306:3 Registration of Criminal Offenders; Definitions. Amend RSA 651-B:1, VIII(a) to read as follows:

(a) RSA 632-A:4, I(a); RSA 632-A:4, I(b); RSA 632-A:4, III; RSA 644:9, I(a); RSA 644:9, III-a; or a second or subsequent offense within a 5-year period for indecent exposure and lewdness, RSA 645:1, I[(a); or RSA 645:1, I(b)].

306:4 Registration of Criminal Offenders; Definitions. Amend RSA 651-B:1, IX(a) to read as follows:

(a) RSA 169-B:41, II; RSA 632-A:3, I; RSA 632-A:3, II; RSA 632-A:3, IV; RSA 633:2; RSA 633:3; RSA 639:3, III; RSA 645:1, II; RSA 645:1, III; RSA 645:2; RSA 649-A:3; RSA 649-A:3-a; RSA 649-A:3-b; RSA 649-B:3; RSA 649-B:4; or RSA 650:2, II.

306:5 Registration of Criminal Offenders; Duty to Report. Amend RSA 651-B:4, III(a) to read as follows:

(a) Name[,] and any aliases[, electronic mail addresses, and any instant messaging, chat, or other Internet communication name identities].

306:6 New Subparagraph; Registration of Criminal Offenders; Availability of Information. Amend RSA 651-B:7, III(a) by inserting after subparagraph (8) the following new subparagraph:

(9) Any online identifiers, as defined in RSA 651-B:4-a, used by the individual.

306:7 New Paragraph; Registration of Criminal Offenders; Hearing. Amend RSA 651-B:10 by inserting after paragraph II the following new paragraph:

III. Any individual required to be registered as a result of any violation or attempted violation of RSA 632-A:3, II in effect prior to January 1, 2009, or RSA 632-A:2, III if the acts constituting the pattern were in violation of RSA 632-A:3, II in effect prior to January 1, 2009, provided that the age difference between the individual required to register and the victim was less than 4 years at the time of the offense and the person has no other adjudications requiring registration under RSA 651-B:2, may file with the clerk of the superior court for the county in which the judgment was rendered an application for review of the registration requirement. No application shall be granted without a hearing, during which the prosecuting attorney and the victim or victim's family shall have an opportunity to be heard. Notice of the hearing shall be provided no less than 30 days prior to the hearing. The victim may appear personally or through a representative, and may reasonably express his or her views concerning the offense, the offender, and the need for continuing the registration requirement. If the court denies the application, the offender shall not file another application for 5 years from the date of the denial.

306:8 Involuntary Commitment of Sexually Violent Predators; Release. Amend RSA 135-E:4, IV to read as follows:

IV. A person shall be released if the multidisciplinary team or the county attorney or attorney general do not comply with the time limitations in this section. [The provisions of this section, however, are not jurisdictional, and] Failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case and does not prevent the county attorney or attorney general from filing a petition against a person otherwise subject to the provisions of this chapter. [However] Notwithstanding RSA 135-E:24, II, the court shall not consider any petition filed more than 6 months after the person's release from incarceration unless the timing of the petition is due to newly discovered material facts, which shall be alleged in the petition.

306:9 New Section; Involuntary Commitment of Sexually Violent Predators; Time Limits. Amend RSA 135-E by inserting after section 23 the following new section:

135-E:24 Time Limits.

I. A court may extend any time limit set forth in this chapter, upon request, for good cause shown.

II. The time limits set forth in this chapter are not intended to be jurisdictional. Failure to comply with a time limit prior to the expiration of the person’s incarcerative sentence shall not constitute a basis for dismissal of a petition.

III. If the proceedings under this chapter have not been completed by the expiration of the person’s incarcerative sentence, the court shall make a probable cause determination no later than 2 days after the expiration date, pursuant to RSA 135-E:7. If no such determination is made, the person shall be released. The county attorney or attorney general may file an emergency petition for a probable cause determination. Upon receipt of the emergency petition, the court shall immediately schedule a probable cause hearing. If the court determines that there is probable cause to believe that the person is a sexually violent predator, the person shall be held in an appropriate secure facility for further proceedings under RSA 135-E:9.

IV. Notwithstanding paragraph III, except as provided in RSA 135-E:4, no petition shall be filed later than 60 days prior to the person’s release from incarceration, except for good cause shown.

306:10 Involuntary Commitment of Sexually Violent Predators; Notice to County Attorney or Attorney General. Amend RSA 135-E:3, II-III to read as follows:

II. When a person who has committed a sexually violent offense is to be released from total confinement in New Hampshire, the agency with jurisdiction over the person shall give written notice to the person and the county attorney of the county where that person was last convicted of a sexually violent offense, or attorney general if the case was prosecuted by the attorney general. If the person is in custody on an out-of-state or federal sexually violent offense, the agency with jurisdiction shall give written notice to the person and the county attorney of the county where the person plans to reside upon release or, if no residence in this state is planned, the county attorney in the county where the facility from which the person to be released is located or to the attorney general if the person has been convicted of murder. Except as provided in RSA 135-E:4, the written notice shall be given[:

(a)] at least 9 months prior to the anticipated release [from total confinement of a person serving a sentence in the custody of the department of corrections] from the maximum sentence, except that in the case of persons who are totally confined for a period of less than 9 months, written notice shall be given as soon as practicable[; or

(b) At least 9 months prior to the anticipated hearing regarding possible release of a person committed to the custody of the department who has been found not guilty by reason of insanity for a sexually violent offense].

III. [Upon] Within 45 days of receipt of such notice, if there is an articulable basis to believe that the person is likely to engage in acts of sexual violence, either the county attorney, attorney general, or the agency with jurisdiction may request that the multidisciplinary team assess and evaluate the person to determine whether the person is a sexually violent predator.

306:11 Involuntary Commitment of Sexually Violent Predators; Notice to County Attorney or Attorney General. Amend RSA 135-E:3, V(c) to read as follows:

(c) Within [6] 4 months after receiving [notice of a person’s anticipated release from total confinement] the request for an assessment and evaluation, the department of health and human services shall provide to the county attorney or attorney general a written report of the multidisciplinary team’s findings as to whether the person meets the definition of a sexually violent predator.

306:12 Involuntary Commitment of Sexually Violent Predators; Release from Total Confinement. Amend RSA 135-E:4, I-III to read as follows:

I. In the event that a person who has been convicted of a sexually violent offense is eligible for immediate release from total confinement upon completion of the maximum term of incarceration, the agency with jurisdiction shall provide immediate notice to the county attorney or attorney general of the person’s release. The county attorney or attorney general or the agency with jurisdiction may file a petition for an emergency hearing in the superior court requesting that the person subject to immediate release be evaluated by the multidisciplinary team to determine whether the person is a sexually violent predator. The hearing shall be held within 24 hours of the filing of the petition, excluding Saturdays, Sundays, and holidays. The person shall not be released from total confinement until after the hearing has been held. At the hearing, the court shall determine whether there is probable cause to believe that the person is a sexually violent predator. If the court finds probable cause, the person shall be held in an appropriate secure facility.

II. Within 72 hours after finding probable cause, excluding Saturdays, Sundays, and holidays, the multidisciplinary team shall assess whether the person meets the definition of a sexually violent predator. If the multidisciplinary team determines that the person does not meet the definition of a sexually violent predator, the department of health and human services shall provide notice to the county attorney or attorney general and that person shall be immediately released. If the multidisciplinary team determines that the person meets the definition of a sexually violent predator, the team shall provide the county attorney or attorney general with its written assessment and recommendation within the 72-hour period or, if the 72-hour period ends on a weekend or holiday, within the next [working] business day thereafter.

III. Within 48 hours after receipt of the written assessment and recommendation from the multidisciplinary team, excluding Saturdays, Sundays, and holidays, the county attorney or attorney general may file a petition with the superior court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. If a petition is not filed within [48 hours after receipt of the written assessment and recommendation] the prescribed time period by the county attorney or attorney general, the person shall be immediately released. If a petition is filed pursuant to this section, the person shall be held in an appropriate secure facility for further proceedings in accordance with this chapter.

306:13 Involuntary Commitment of Sexually Violent Predators; Petition. Amend RSA 135-E:6 to read as follows:

135-E:6 Petition; Contents. If the multidisciplinary team finds the person meets the definition of a sexually violent predator, the county attorney or attorney general may file a petition within 14 days with the superior court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. At the time of the filing, and in lieu of the court issuing an order of notice, the county attorney or attorney general shall forward a copy of the petition to the person who is the subject of the petition, or to that person’s attorney if one was appointed to represent the person pursuant to RSA 135-E:23. If the county attorney or attorney general does not file a petition within 14 days, and the person is otherwise subject to release, the person shall be released.

306:14 Involuntary Commitment of Sexually Violent Predators; Determination of Probable Cause. Amend RSA 135-E:7 to read as follows:

135-E:7 Determination of Probable Cause.

I. When the county attorney or attorney general files a petition seeking to have a person declared a sexually violent predator, within 10 days of the filing of the petition, the court shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the court determines based on the content of the petition that there is probable cause to believe that the person is a sexually violent predator, the court shall order that the person remain in custody and be held in an appropriate secure facility for further proceedings in accordance with this chapter. The court shall schedule a preliminary pre-trial conference within 10 business days of its probable cause determination.

II. If the offender’s incarcerative sentence expires before a hearing on the merits of a petition for civil commitment pursuant to this chapter, the court shall conduct a probable cause hearing within 2 days of the expiration of the person’s incarcerative sentence. If the court concludes following the hearing that there is probable cause to believe that the person is a sexually violent predator, the court shall order that the person remain in custody and held in an appropriate secure facility for further proceedings in accordance with this chapter.

III. A probable cause hearing shall not be required under this section if the court has already made a probable cause determination pursuant to RSA 135-E:4, I.

306:15 Repeal. The following are repealed:

I. 2008, 323:7, relative to online identifiers of criminal offenders.

II. 2008, 323:10, relative to duration of registration for certain criminal offenders.

III. RSA 651-B:7, VI, relative to review of the public registration requirement for criminal offenders.

306:16 Contingency. If HB 471-FN of the 2009 legislative session becomes law, then RSA 638:6-b as inserted by section 9 of that act shall not take effect on January 1, 2010, but shall take effect upon the passage of HB 471-FN.

306:17 Effective Date.

I. Sections 10-14 of this act shall take effect September 1, 2010.

II. The remainder of this act shall take effect upon its passage.

Approved: July 31, 2009

Effective Date: I. Sections 10-14 shall take effect September 1, 2010.

II. Remainder shall take effect July 31, 2009.