New Hampshire Legislative Service Requests (LSR's)

HB 470-FN - AS INTRODUCED

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

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ANALYSIS

This bill amends the definition of drug paraphernalia to exclude drug checking equipment and authorizes the use of drug checking equipment.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

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 two 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 more slowly, keeping naloxone nearby, changing the method of administration, using with someone else, or not using the drug at all at that time; New Hampshire law, however, currently hampers drug checking efforts because the state’s prohibition of drug checking supplies within RSA 318-B:1 and RSA 318-B:2.

VIII. RSA 318-B:1, X-a defines drug paraphernalia to include various uses including the following uses which relate to drug checking: “processing, preparing, testing, analyzing, packaging, repackaging, storing, containing…”

IX. RSA 318:B:1, X-a explicitly defines as drug paraphernalia, “Testing equipment used or intended for use or customarily intended for use in identifying, or analyzing the strength, effectiveness or purity of controlled substances.”

X. RSA 318-B:2, II states that “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."

2 Controlled Drug Act; Definition of Drug Paraphernalia. Amend RSA 318-B:1, X-a 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. "Drug paraphernalia" shall not include drug checking equipment. It 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.

(e)] Scales and balances used or intended for use or customarily intended for use in weighing or measuring controlled substances.

[(f)] (e) 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)] (f) 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)] (g) Blenders, bowls, containers, spoons and mixing devices used or intended for use or customarily intended for use in compounding controlled substances.

[(i)] (h) Capsules, balloons, envelopes and other containers used or intended for use or customarily intended for use in packaging small quantities of controlled substances.

[(j)] (i) Containers and other objects used or intended for use or customarily intended for use in storing or concealing controlled substances.

[(k)] (j) 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.

3 New Paragraphs; Controlled Drug Act; Definitions. Amend RSA 318-B:1 by inserting after paragraph X-a the following new paragraphs:

X-b. "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-c. "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, 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-d. "Drug packaging" means the materials or items used by persons selling, buying, or 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.

X-e. "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-f. "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-g. "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, syringe service programs, naloxone distribution, and education about Good Samaritan laws.

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.

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

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.

(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, 2024.

LBA

23-0548

12/29/22

HB 470-FN- FISCAL NOTE

AS INTRODUCED

AN ACT relative to fentanyl test strips and other drug checking equipment.

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


	Estimated Increase / (Decrease)
STATE:	FY 2023	FY 2024	FY 2025	FY 2026
Appropriation	$0	$0	$0	$0
Revenue	$0	$0	$0	$0
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 amends the definition of drug paraphernalia to exclude 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 from the definition of paraphernalia, the bill may result in some indeterminable reduction in criminal prosecutions. While there is no method to determine the aggregate impact, the entities affected have provided the potential costs associated with misdemeanor penalties below:

Judicial Branch	FY 2023	FY 2024 through 12/31/23		FY 2024 (Starting 1/1/24 with repeal of Felonies First)
Violation and Misdemeanor Level Offense	$119	$122		$122
Appeals	Varies	Varies		Varies
Judicial Council	FY 2023			FY 2024
Public Defender Program	Has contract with State to provide services.			Has contract with State to provide services.
Contract Attorney – Misdemeanor	$300/Case $70 administrative fee $100 incarceration fee (If applicable)			$300/Case $70 administrative fee $100 incarceration fee (If applicable)
Assigned Counsel- Misdemeanor. Travel time to court does not count toward the cap.	$90/Hour up to $2,000			$90/Hour up to $2,000
Assigned Counsel - Supreme Court Appeal	$125/Hour up to $10,000			$125/Hour up to $10,000
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. Historically, approximately 85% of the indigent defense caseload has been handled by the public defender program, with the remaining cases going to contract attorneys (14%) or assigned counsel (1%). Beginning in March of 2021, the public defender program has had to close intake of new cases due to excessive caseloads. Due to these closures, the contract and assigned counsel program have had to absorb significantly more cases. The system is experiencing significant delays in appointing counsel and the costs of representation have increased due to travel time and multiple appointments.
NH Association of Counties			FY 2023		FY 2024
County Prosecution Costs			Indeterminable		Indeterminable
Estimated Average Daily Cost of Incarcerating an Individual			$105 to $125		$105 to $125

AGENCIES CONTACTED:

Judicial Branch, Judicial Council, and New Hampshire Association of Counties