HB 1625-FN – AS AMENDED BY THE HOUSE
12Mar2014… 0771h
2014 SESSION
04/01
HOUSE BILL 1625-FN
AN ACT relative to penalties for possession of marijuana in the amount of one ounce or less and the cultivation of marijuana plants.
SPONSORS: Rep. Schroadter, Rock 17; Rep. Winters, Hills 18; Rep. Keith Murphy, Hills 7; Rep. Baldasaro, Rock 5; Rep. Meaney, Hills 6; Rep. C. McGuire, Merr 29; Rep. O'Flaherty, Hills 12; Sen. Woodburn, Dist 1
COMMITTEE: Criminal Justice and Public Safety
This bill reduces the penalty for possession of one ounce or less of marijuana to a violation, and reduces the penalty for possession of other amounts of marijuana. The bill also establishes a misdemeanor penalty for cultivation of 6 or fewer marijuana plants.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12Mar2014… 0771h
14-2459
04/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fourteen
AN ACT relative to penalties for possession of marijuana in the amount of one ounce or less and the cultivation of marijuana plants.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Sections; Controlled Drug Act; Personal Possession of Marijuana. Amend RSA 318-B by inserting after section 2-b the following new sections:
318-B:2-c Personal Possession of Marijuana.
I. Any person possessing one ounce or less of marijuana, including adulterants or dilutants, shall be guilty of a violation.
II. Any person possessing 5 grams or less of hashish, including adulterants or dilutants, shall be guilty of a violation.
III.(a) Any person 18 years of age or older who is convicted of violating paragraph I or II shall be subject to a fine not to exceed $100 and shall forfeit the marijuana or hashish.
(b) Any person under 18 years of age who is convicted of violating paragraph I or II shall forfeit the marijuana or hashish. The offender’s parents or legal guardians shall be notified of the offense. The court shall order the offender to complete an approved alcohol and substance abuse education program, at the offender’s expense, within one year of the date of the offense. Further, the court shall order the offender to participate in community service, which shall be completed within one year of the date of the offense. The offender shall furnish the court with evidence of completion of both an approved alcohol and substance abuse education program and community service. An offender who fails to complete both an alcohol and substance abuse education program and community service shall be subject to an additional fine of $750.
(c) Any person who is not yet 21 years of age on the date of the incident, who is convicted of an offense under paragraph I or II may, at the discretion of the court, be subject to the revocation or denial of a driver's license or privilege to drive for not less than 90 days but not more than one year on the first finding or conviction under this paragraph, and not less than 6 months but not more than 2 years for a subsequent finding or conviction. Nothing in this paragraph shall prevent the court from requiring any person subject to its provisions to successfully completing a substance abuse education program in lieu of a loss or denial of driving license or privilege. The director, upon receipt of a notification from the court that the court has ordered the suspension of a person's license or driving privilege pursuant to this paragraph, shall forthwith issue a formal order of suspension and, in the case of denial of an application for a license, the period imposed shall begin on the date the person is eligible by age for the issuance of a license. Notwithstanding any other law regarding confidentiality, any court which convicts or makes a finding that an offense described in this paragraph has occurred involving a person who meets the age limits specified in this paragraph, and which orders the revocation or denial of a driver's license or privilege to drive, shall forward a notice of such conviction or finding to the director. The director shall maintain the confidentiality of notices received.
(d) The director shall, when ordered by the court, revoke the driver's license or privilege to drive or deny an application for a license for not less than 90 days but not more than one year on the first finding or conviction under paragraph I or II, and not less than 6 months but not more than 2 years for a subsequent finding or conviction; provided, however, that the director shall not revoke or deny a license or privilege to drive under this paragraph without first giving the person an opportunity for a hearing to determine that the person is the individual who was convicted of the offense and against whom the court order applies. In the case of denial of an application for a license, the period imposed shall begin on the date the person is eligible by age for the issuance of a license.
IV.(a) No record of a violation of this section shall be recorded in any database of criminal offenders.
(b) 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.
V.(a) Except as provided in this section, no person shall be subject to arrest for a violation of paragraph I or II.
(b) 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 who informs the person that he or she has been found to be in possession of what appears to the officer to be an ounce or less of marijuana or 5 grams or less of hashish, may be arrested for a violation of paragraph I or II.
(c) Any person who fails to produce a form of identification provided for in subparagraph (b) may be arrested for a violation of paragraph I or II if the person fails or refuses to truthfully provide his or her name, address, and date of birth to a police officer who has informed such person that he or she has been found in possession of what appears to the officer to be an ounce or less of marijuana or 5 grams or less of hashish.
VI.(a) Except as specifically provided in RSA 263:56-b, III and IV, neither the state nor any of its political subdivisions shall impose any form of penalty on a person for possessing one ounce or less of marijuana, 5 grams or less of hashish, or paraphernalia for marijuana use, nor shall any penalties or obligations exceeding those outlined in RSA 263:56-b, III or IV be imposed by the state nor any of its political subdivisions solely for having cannabinoids or cannabinoid metabolites in the urine, blood, sweat, hair, fingernails, toenails, or other tissue or fluid of the human body.
(b) Possession of one ounce or less of marijuana, possession of 5 grams or less of hashish, possession of paraphernalia for marijuana use, or the presence of cannabinoids or cannabinoid metabolites in the urine, blood, sweat, hair, fingernails, toenails, or other tissue or fluid of the human body shall not constitute grounds for denying a person student financial aid, public housing, or any form of public financial assistance including unemployment benefits, or denying a person the right to operate a motor vehicle, or disqualifying a person from serving as a foster parent or adoptive parent.
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, I or II 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 I or II. 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 does not enter a plea by mail within 30 days of the date of the summons, the defendant shall be defaulted and shall be subject to an additional $100 fine.
V. Whenever a defendant fails to pay a fine in connection with a conviction for a violation of RSA 318-B:2-c, I or II, or payment of such fine is uncollectible, the defendant shall be defaulted and the fine shall increase to $200.
2 Controlled Drug Act; Penalties. Amend RSA 318-B:26, I(b)-(d) to read as follows:
(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. 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:
(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 or crack cocaine 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 or crack cocaine in a quantity of less than one gram, including any adulterants or dilutants;
(5) Marijuana in a quantity of [one ounce] 5 pounds or more including any adulterants or dilutants, or hashish in a quantity of [5 grams] one pound 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] more than one ounce including any adulterants or dilutants, or hashish in a quantity of [less] more than 5 grams including any adulterants or dilutants;
(2) Any schedule V substance or its analog.
(e) Any person who possesses, propagates, cultivates, grows, harvests, or manufactures 6 or fewer marijuana plants shall be guilty of a class A misdemeanor.
3 Controlled Drug Act; Penalties. Amend RSA 318-B:26, II to read as follows:
II. Any person who knowingly or purposely obtains, purchases, transports, or possesses actually or constructively, or has under his 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, 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, 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 5 grams of hashish, the person shall be guilty of a misdemeanor, except that notwithstanding the provisions of RSA 651:2, IV(a), a fine of not more than $5,000 may be imposed.
(d)] In the case of more than one ounce of marijuana, including any adulterants or dilutants, or more than 5 grams or less of hashish, the person shall be guilty of a class A misdemeanor.
(d) In the case of one ounce or less of marijuana, including any adulterants or dilutants, or 5 grams or less of hashish, including adulterants or dilutants, the person shall be guilty of a violation pursuant to RSA 318-B:2-c.
4 Controlled Drug Act; Penalties. Amend RSA 318-B:26, III(a) to read as follows:
(a) Except as provided in RSA 318-B:2-c, controls any premises or vehicle where he knows a controlled drug or its analog is illegally kept or deposited;
5 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 possession of marijuana or hashish as provided in RSA 318-B:2-c.
6 Effective Date. This act shall take effect January 1, 2015.
LBAO
14-2459
12/24/13
HB 1625-FN - FISCAL NOTE
AN ACT relative to penalties for possession of marijuana in the amount of one ounce or less and the cultivation of marijuana plants.
FISCAL IMPACT:
The Judicial Branch states this bill, as introduced, may increase state expenditures and decrease state revenue by an indeterminable amount in FY 2015 and each year thereafter. The Department of Safety, and New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2015 and each year thereafter. The Department of Corrections states this bill will have an indeterminable fiscal impact on state expenditures in FY 2015 and each year thereafter. There is no impact on local expenditures, or county and local revenue.
METHODOLOGY:
The Judicial Branch states this bill will add RSA 318-B:2-c which would provide that the possession of one ounce or less of marijuana or five grams or less of hashish would be punishable as a violation, not a class A misdemeanor, and that a fine not exceed $100 for a person 18 years of age or over. If an individual is under the age of 18 they will be required to complete an alcohol and substance abuse education program and participate in community service, failing to do so would result in a $750 fine. This bill also proposes to reduce the penalty for the cultivation of six or fewer marijuana plants from a felony to a class A misdemeanor. The Branch has no information to estimate how many cases would be impacted by this bill to determine the fiscal impact on expenditures but does have information on the cost for processing a violation, a class A misdemeanor and a felony. The Branch states a violation will cost $45.46 per case in FY 2015 and $46.45 per case in FY 2016 and each year thereafter and a class A misdemeanor will cost $66.17 per case in FY 2015 and $67.64 per case in FY 2016 and each year thereafter. The Branch states there would be a reduction in the cost to judicial time of $20.71 in FY 2015 and $21.19 in FY 2016 and each year thereafter; however the cost to the clerical time would not be impacted. The Branch states the felony offense being reduced by this bill to a class A misdemeanor is typically treated as an average routine criminal case with a cost of $425.27 in FY 2015 and $433.34 in FY 2016 and each year thereafter. As noted above, a class A misdemeanor will cost $66.17 per case in FY 2015 and $67.64 per case in FY 2016 and each year thereafter. The Branch states there would be a reduction in the cost per case of $359.10 in FY 2015 and $365.70 in FY 2016 and each year thereafter. The Branch states this bill may impact fine revenue as it limits the fine to $100, with the possibility of a $750 fine for those under 18 years of age that fail to complete a drug awareness program and/or community service. A class A misdemeanor allows for a fine up to $2,000. The Branch is not able to determine the exact decrease to revenue. All costs are estimated based on case weight information from the last needs assessment completed in 2005. Since that timeframe there have been various changes that may impact the costs, such as the creation of the circuit court, the increase in self-represented litigants, and the change to presume that an unspecified misdemeanor can be treated as a class B misdemeanor. The Branch states blocking personally identifiable information for violations under RSA 318-B:2-c would result in costs to the Branch related to the need to change business processes and the need hire the vendor of the court’s case management system to make programming changes.
The Department of Safety assumes it would have increased expenditures associated with the development of a statistical database with no personally identifiable information to track violations of RSA 318-B:2-c. The Department has no information to determine the cost to develop the necessary database.
The Department of Corrections states it is not able to determine the fiscal impact of this bill because it does not have sufficient detail to predict the number of individuals who would be subject to this legislation. The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2013 was $32,872. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2013 was $570.
The New Hampshire Association of Counties states to the extent individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties will have expenditures. The Association is unable to determine the number of individuals who may be charged, convicted or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.
The Department of Justice states this bill will not have a fiscal impact on the Department because violation and misdemeanor offenses are typically prosecuted by local and county prosecutors not the Department. The Department states it would continue to prosecute cases involving large quantities of controlled drugs, including marijuana and hashish, therefore there is no fiscal impact.
The Judicial Council states marijuana possession is a criminal charge that rarely stands alone and is usually coupled with other criminal acts. The Council also states that many of the cases involving an ounce or less of marijuana are treated as class B misdemeanor cases which do not carry a potential jail sentence therefore does not trigger a right to representation by the indigent defense system. As a result, the Council states this bill will not have fiscal impact on the Council as it does not result in any more or less cases.