SB 249-FN - AS AMENDED BY THE HOUSE

3Jan2024... 2461h

2023 SESSION

23-0956

04/07

SENATE BILL 249-FN

AN ACT establishing magistrates and relative to release of persons pending resolution of criminal charges.

SPONSORS: Sen. Abbas, Dist 22; Sen. Birdsell, Dist 19; Sen. Carson, Dist 14; Rep. Roy, Rock. 31; Rep. Rhodes, Ches. 17; Rep. Lynn, Rock. 17

COMMITTEE: Judiciary

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AMENDED ANALYSIS

This bill establishes magistrates who will assist with the hearing of bail, the issuance of warrants, and other judicial functions.  This bill further makes various changes to the standards governing the release of individuals on bail pending resolution of criminal cases.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

3Jan2024... 2461h 23-0956

04/07

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Three

AN ACT establishing magistrates and relative to release of persons pending resolution of criminal charges.

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

1  New Chapter; Magistrates.  Amend RSA by inserting after chapter 491-A the following new chapter:

CHAPTER 491-B

MAGISTRATES

491-B:1 Appointment and qualifications. The chief justice of the supreme court, in consultation with the chief justice of the superior court and the administrative judge of the circuit court, shall appoint at least 15 magistrates, subject to appropriation by the legislature.  Such magistrates shall serve at such locations as the chief justice of the supreme court may determine under this chapter, provided that at least one magistrate is assigned to each county in the state.  Magistrates shall be judicial branch employees.

491-B:2 Duties.

I.  At the discretion of the chief justice of the supreme court, in consultation with the chief justice of the superior court and the administrative judge of the circuit court, magistrates may have the following powers:

(a) To determine the release or detention of defendants on all days of the week and at all times of day pursuant to RSA 597:2;

(b) To conduct arraignment hearings and issue decisions on arraignments;

(c)  To conduct bail hearings and issue decisions on bail and other decisions regarding release or detention of persons pending trial pursuant to RSA 597:2;

(d)  To issue arrest warrants or other processes of arrest;

(e)  To issue search warrants;

(f)  To administer oaths and affirmations; and

(g) To perform such other acts or functions specifically authorized by the chief justice of the supreme court not inconsistent with the New Hampshire constitution or any state or federal laws.

II.  Magistrates may only perform the powers listed in paragraph I(b) through I(g) if they are licensed to practice law in the state of New Hampshire.

III.  The magistrates shall provide to any person bailed by the magistrate pursuant to the authority granted by this chapter information on local services that are available to the person relating to homelessness, hunger, mental health, and substance use issues.

491-B:3 Supervision.

I.  The chief justice of the supreme court, in consultation with the chief justice of the superior court and the administrative judge of the circuit court, shall appoint a chief magistrate for the purpose of assisting in the training of magistrates and bail commissioners and being responsible to the chief justice of the superior court and the administrative judge of the circuit court for the conduct of magistrates and bail commissioners.  The chief magistrate shall exercise direct daily supervision over the magistrates and bail commissioners.  

II.  The chief magistrate, in consultation with the chief justice of the superior court and the administrative judge of the circuit court, shall develop an education program to ensure that magistrates and bail commissioners have current information regarding the status of the laws affecting the powers and duties of magistrates.  This education program shall include the laws specific to bail and the conditions that may be imposed by the magistrates and bail commissioners.

491-B:4 Bail Payments.

I.  If bail is being determined pursuant to RSA 597:2, I where the person seeking bail is physically present at a state courthouse, bail payments may be in the form of cash or non-cash electronic form as established by rule or order of the supreme court.

II.  If bail is being determined pursuant to RSA 597:2, I where the person seeking bail is not physically present at a state courthouse, bail payments shall be accepted in any non-cash electronic form as established by rule or order of the supreme court.

2  Arrests in Criminal Cases; Release or Detention; Place and Time of Detention.  Amend RSA 594:20-a, I to read as follows:

I.  When a person is arrested with or without a warrant he or she may be committed to a county correctional facility, to a police station or other place provided for the detention of offenders, or otherwise detained in custody.  The person shall be taken to appear before a magistrate, circuit court, or a superior court in the case of felony complaints and misdemeanors and violation level charges that are directly related to those felonies, without unreasonable delay, to answer for the offense.  All persons shall appear no later than 24 hours after arrest[, or no later than 36 hours after arrest if arrested between 8:00 a.m. and 1:00 p.m. and the person's attorney is unable to attend an arraignment on the same day, Saturdays, Sundays, and holidays excepted].  In the case of a person arrested when the court is not open within the next 24 hours, a decision on bail shall be made by a magistrate within 24 hours of the arrest.

3  Bail and Recognizances; Release of a Defendant Pending Trial.  Amend RSA 597:2, III(b)-(c) to read as follows:

(b)  Assuring the court appearance of charged persons.

(1)  The court or magistrate 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 magistrate, 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 or magistrate may require unless the court or magistrate 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 or magistrate 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, 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.

(3)  In determining the amount of the unsecured appearance bond or cash or corporate surety bail, the court or magistrate may consider all relevant factors bearing upon a person's ability to post bail.

(4)  The court or magistrate 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 or magistrate 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, or if there is probable cause to believe that a person is on release pending resolution of a previous offense, and thereafter was arrested and released pending the resolution of a second offense, and has committed an additional class A misdemeanor[,] or driving or operating while impaired, the person shall be detained for no more than 24 hours for a bail hearing before a magistrate or the court. Upon appearance in front of a magistrate or the court for a person detained under this section, there shall be a rebuttable presumption that the person will not abide by a condition that the person not commit a new offense.  The court or magistrate 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 or magistrate 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 or magistrate may consider any relevant factors in making its determination.

4  Bail and Recognizances; Release of a Defendant Pending Trial.  Amend RSA 597:2, IV to read as follows:

IV.(a)  Evidence in support of preventive detention shall be made by offer of proof at the initial appearance before the court or magistrate.  At that time, the defendant may request a subsequent bail hearing where live testimony is presented to the court.

(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 or otherwise providing information to the court or magistrate.  The state may present evidence of statements made in the course of an investigation through a law enforcement officer.

5  Bail and Recognizances; Release of a Defendant Pending Trial.  Amend RSA 597:2, VII-IX to read as follows:

VII.  In a release order issued pursuant to this section, the court or magistrate 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 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 or magistrate 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 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 or magistrate shall issue an order that, pending arraignment, the person be released on his or her personal recognizance, unless the court or magistrate determines pursuant to paragraph III that such release will endanger the safety of the person or the public.  The court or magistrate 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.

6  New Paragraph; Bail and Recognizances; Release of a Defendant Pending Trial.  Amend RSA 597:2 by inserting after paragraph X the following new paragraph:

XI.  If a person is ordered to be released by a circuit court, the state may appeal only on the grounds of dangerousness to the superior court.  Upon receipt of the intent to appeal, the circuit court shall detain the person pending resolution of the appeal.  The appeal shall be filed in the superior court on the same day as the circuit court's notice of its decision in accordance with rules adopted by the court.  The superior court shall hold a hearing on the appeal within 48 hours of the filing of the appeal, excluding weekends and holidays.

7  Bail and Recognizances; Review and Appeal of Release or Detention Order.  Amend RSA 597:6-e to read as follows:

597:6-e  Review and Appeal of Release or Detention Order.

I.  If a person is ordered released by a bail commissioner or magistrate, the person, or the state, shall be entitled to a hearing, if requested, on the conditions of bail before a justice within 48 hours, Sundays and holidays excepted.

II.  Subject to RSA 597:2, X and XI, the person or the state may file with the superior court a motion for revocation of the order or amendment of the conditions of release set by a municipal or district court, by a justice or magistrate, or by a bail commissioner.  The motion shall be determined promptly.  However, no action shall be taken on any such motion until the moving party has provided to the superior court certified copies of the complaint, affidavit, warrant, bail slip, and any other court orders relative to each charge for which a release or detention order was issued by a justice, or a bail commissioner.  In cases where a district court justice has made a finding, pursuant to RSA 597:2, IV that the person poses a danger to another, the superior court shall, after notification to both parties, the police department that brought the charges in district court, and the victim, conduct a hearing and make written findings supporting any modifications and reasons for new conditions or changes from the district court order.  The reviewing court shall take into consideration the district court's written findings, orders, pleadings, or transcript when making a modification.

III.  The person, or the state pursuant to RSA 606:10, V, may appeal to the supreme court from a court's release or detention order, or from a decision denying revocation or amendment of such an order.  The appeal shall be determined promptly.

8  Bail and Recognizances; Detention and Sanctions for Default or Breach Conditions.  Amend RSA 597:7-a, I to read as follows:

I.  A peace officer may detain an accused until [he] the accused can be brought before a justice or magistrate if [he] the peace officer has a warrant issued by a justice for default of recognizance or for breach of conditions of release or if [he] the peace officer witnesses a breach of conditions of release.  The accused shall be brought before a justice or magistrate for a bail revocation hearing within [48] 24 hours[, Saturdays, Sundays and holidays excepted].

9  Effective Date.  This act shall take effect January 1, 2025.

LBA

23-0956

Amended 1/24/24

SB 249-FN- FISCAL NOTE

AS AMENDED BY THE HOUSE (AMENDMENT #2023-2461h)

AN ACT establishing magistrates and relative to release of persons pending resolution of criminal charges.

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

METHODOLOGY:

This bill establishes magistrates who will assist with the hearing of bail, the issuance of warrants, and other judicial functions.  This bill further makes various changes to the standards governing the release of individuals on bail pending resolution of criminal cases.

The Judicial Branch estimates the annual cost of 15 highly qualified magistrates, comparable to hearing officers, is $1,172,528 in FY 2025 (1/2 year), $2,345,055 FY 2026 and $2,443,635 in FY 2027.  The Branch assumes the salaries could be reduced slightly, but doing so could result in difficulty hiring qualified candidates.  The Branch assumes the other changes in the bill relative to court processes may cause an indeterminable increase in litigation and associated expenditures.

The New Hampshire Association of Counties states. while there will be insignificant costs to the county attorney’s offices, the costs to the correctional facilities are indeterminable.  Such costs may include increased salary and technology costs to execute hearings outside of the current schedule due to the expanded magistrate program.  The proposed amendment to RSA 597:2-III (c) adding the requirement to detain a person for no more than 24 hours for a bail hearing "if there is probable cause to believe that a person is on release pending resolution of a previous offense, and thereafter was arrested and released pending the resolution of a second offense, and has committed an additional class A misdemeanor or driving or operating while impaired" could lead to increased holding costs at the county correctional facilities.

The New Hampshire Municipal Association indicates this bill would have an indeterminable impact on local expenditures.  Police departments transport persons arrested for certain crimes  to county correctional facilities to be held, depending on the time of day and availability of defense attorneys and judges.  The cost to municipalities depends on the location of the police department, the court, the county correctional facility, and on the time of day.  However, the Association can make no broad statement as to fiscal impact of this bill on local expenditures.

AGENCIES CONTACTED:

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