Bill Text: NH HB640 | 2017 | Regular Session | Introduced


Bill Title: Relative to the penalties for possession of marijuana.

Spectrum: Bipartisan Bill

Status: (Engrossed) 2017-04-05 - Hearing: 04/11/2017, Room 100, State House, 09:20 am; Senate Calendar 18 [HB640 Detail]

Download: New_Hampshire-2017-HB640-Introduced.html

HB 640-FN - AS INTRODUCED

 

 

2017 SESSION

17-0069

04/03

 

HOUSE BILL 640-FN

 

AN ACT relative to the penalties for possession of marijuana.

 

SPONSORS: Rep. Cushing, Rock. 21; Rep. Eaton, Ches. 3; Rep. McGuire, Merr. 29; Rep. Murphy, Hills. 7; Rep. Grassie, Straf. 11; Rep. Sapareto, Rock. 6; Rep. W. Pearson, Ches. 16; Rep. Lovejoy, Rock. 36; Sen. Reagan, Dist 17; Sen. Innis, Dist 24; Sen. Fuller Clark, Dist 21

 

COMMITTEE: Criminal Justice and Public Safety

 

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ANALYSIS

 

This bill reduces the penalty for possession of one ounce or less of marijuana or marijuana-infused products by a person 21 years of age or older to a violation.

 

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

17-0069

04/03

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Seventeen

 

AN ACT relative to the penalties for possession of marijuana.

 

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

 

1  Statement of Purpose.  The general court finds that:

I.  Reducing the penalty for possessing one ounce or less of marijuana to a violation and allowing offenders to pay fines by mail will result in less time and resources spent on such cases, allowing police and courts to spend more time and resources dealing with serious crimes.

II.  A criminal penalty accompanying a conviction for possession of one ounce or less of marijuana can lead to a lifetime of harsh consequences.  These may include denial of student financial aid, housing, employment, and professional licenses.  Reducing this penalty to a violation will significantly reduce the number of New Hampshire residents who receive criminal records for possessing one ounce or less of marijuana.

III.  Marijuana policy reforms that reduce criminal penalties for the possession of one ounce or less of marijuana have the potential to address social and racial inequities in the New Hampshire criminal justice system.

IV.  In its 2015 policy, the American Academy of Pediatrics recommended that penalties for marijuana-related offenses be reduced to lesser criminal charges or civil penalties.  The Academy also stated that efforts to decriminalize marijuana should take place in conjunction with efforts to prevent marijuana use and promote early screening and treatment of adolescents with marijuana use problems.

V.  Limiting minors' access to marijuana and marijuana-infused products is important both to protect young children from accidental ingestion and to prevent marijuana use among adolescents.

2  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.  In this section:

(a)  "Marijuana" includes the leaves, stems, flowers, and seeds of all species of the plant genus cannabis, whether growing or not, but shall not include the resin extracted from any part of such plant and every compound, manufacture, salt, derivative, mixture, or preparation from such resin including hashish, and further, shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.

(b)  "Regulated marijuana-infused products" means products that are comprised of marijuana, marijuana extracts, or resins and other ingredients and are intended for use or consumption, such as, but not limited to, edible products, ointments, and tinctures, which were obtained from a state where marijuana sales to adults are legal and regulated under state law, and which are in their original, child-resistant, labeled packaging when they are being stored.

II.  Except as provided in RSA 126-X, any person who knowingly possesses one ounce or less of marijuana, including adulterants or dilutants, shall be guilty of a violation, and subject to the penalties provided in paragraph V.

III.  Except as provided in RSA 126-X, any person who knowingly possesses 5 grams or less of hashish, including adulterants or dilutants, shall be guilty of a violation, and subject to the penalties provided in paragraph V.

IV.  Except as provided in RSA 126-X, any person 21 years of age or older possessing regulated marijuana-infused products shall be guilty of a violation, and subject to the penalties provided in paragraph V.  Persons 18 years of age or older and under 21 years of age who knowingly possess marijuana infused products shall be guilty of a misdemeanor.

V.(a)  Except as provided in this paragraph, any person 18 years of age or older who is convicted of violating paragraph II or III, or any person 21 years of age or older who is convicted of violating paragraph IV shall be subject to a fine of $100 for a first offense under this paragraph, a fine of $200 for a second offense within three years of the first offense, or a fine of $350 for a third or subsequent offense within 3 years of 2 other offenses.  The offender shall forfeit the marijuana, regulated marijuana-infused products, or hashish to the state.  A court shall waive the fine for a single conviction within a 3-year period upon proof that person has completed a substance abuse assessment by a licensed drug and alcohol counselor within 60 days of the conviction.  A person who intends to seek an assessment in lieu of the fine shall notify the court, which shall schedule the matter for review after 180 days.  Should proof of completion of an assessment be filed by or before that time, the court shall vacate the fine without hearing unless requested by a party.

(b)  Any person under 18 years of age who is convicted of violating paragraph II or III shall forfeit the marijuana or hashish.  The court shall refer any person under 18 years of age who violates paragraph II or III for a substance abuse assessment to be completed within 60 days.  The court may waive the requirement of an assessment if it has access to a similar assessment completed in the previous 6 months and the court does not find there is a need for an updated assessment.  Said assessment shall be completed by a licensed drug and alcohol counselor.  Results of the assessment shall be submitted to the court and, if indicated, the court shall order that the offender obtain appropriate treatment.  The offender shall furnish the court with evidence of completion of the substance abuse assessment.  An offender who fails to complete a substance abuse assessment as ordered shall be subject to a $300 fine.  In all cases under this subparagraph, the offender's parent or legal guardian shall be notified of the offense and all proceedings.

VI.(a)  Except as provided in this section, no person shall be subject to arrest for a violation of paragraph II, III, or IV and shall be released provided the law enforcement officer does not have lawful grounds for arrest for a different offense.

(b)  This paragraph shall not be construed to prohibit a law enforcement agency from investigating or charging a person for a violation of RSA 265-A.

VII.  All fines imposed pursuant to this section shall be deposited into the alcohol abuse prevention and treatment fund established in RSA 176-A:1 and utilized for evidence informed substance abuse prevention programs.

VIII.(a)  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.

(b)  Every state, county, or local law enforcement agency that collects and reports data for the Federal Bureau of Investigation Uniform Crime Report program shall collect data on the number of violations of paragraphs II, III, or IV.  The data collected pursuant to this paragraph shall be available free of cost to the public.  A law enforcement agency shall update the data annually and shall make this data available on the agency's public Internet website.

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, II, III, or IV 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, II, III, or IV.  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 willfully fails to pay a fine in connection with a conviction for a violation of RSA 318-B:2-c, II, III, or IV or payment of such fine cannot be collected, the defendant shall be defaulted and the court may impose an additional fine of $100.

318-B:2-e  Negligent Storage of Marijuana Concentrates or Infused Products.

I.  In addition to any other penalties provided for by law, any person who negligently stores marijuana-infused products or hashish, where the negligent storage causes such products or hashish to be possessed by a person under 18 years of age, shall be guilty of a misdemeanor.  The storing of marijuana obtained legally in any state in its original childproof container shall be prima facie evidence that a person did not act negligently.  Failure to store marijuana products obtained legally in any state in its original childproof container shall be prima facie evidence of negligence.

II.  As used in this section, "marijuana-infused products" means products that are comprised of marijuana, marijuana extracts, or resins that have been combined with other ingredients and are intended for use or consumption, including but not limited to, edible products, drinks, ointments, and tinctures.

(2)  Any schedule V substance or its analog.

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 or her 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[,] or more than 5 grams of hashish, including any adulterants or dilutants, the person shall be guilty of a misdemeanor.  In the case of marijuana-infused products possessed by persons under the age of 21 or marijuana-infused products as defined in RSA 318-B:2-e, other than regulated marijuana-infused products as defined in RSA 318-B:2-c, I(b), that are possessed by a person 21 years of age or older, the person shall be guilty of a misdemeanor.

[(e)] (d) In the case of one ounce or less of marijuana or 5 grams or less of hashish, including any adulterants or dilutants, the person shall be guilty of a [class A misdemeanor] violation pursuant to RSA 318-B:2-c.  In the case of a person 21 years of age or older who possesses regulated marijuana-infused products as defined in RSA 318-B:2-c, I(b), 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 or she knows a controlled drug or its analog is illegally kept or deposited;

5  Controlled Drug Act; Penalties.  Amend RSA 318-B:26, XIII to read as follows:

XIII.  Any person who violates any provision of this chapter shall be fined a minimum of $350 for a first offense and $500 for a second or subsequent offense, except that any person who violates the provisions of RSA 318-B:26, II[(d)] (c) or RSA 318-B:26, II[(e)] (d) shall be fined $350.  This paragraph shall not apply to violations of RSA 318-B:2-c.

6  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, or regulated marijuana-infused products as defined in RSA 318-B:2-c, I(b).

7  Effective Date.  This act shall take effect 60 days after its passage.

 

LBAO

17-0069

1/24/17

 

HB 640-FN- FISCAL NOTE

AS INTRODUCED

 

AN ACT relative to the penalties for possession of marijuana.

 

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

 

 

 

Estimated Increase / (Decrease)

STATE:

FY 2018

FY 2019

FY 2020

FY 2021

   Appropriation

$0

$0

$0

$0

   Revenue

Indeterminable

Indeterminable

Indeterminable

Indeterminable

   Expenditures

Indeterminable

Indeterminable

Indeterminable

Indeterminable

Funding Source:

  [ X ] General            [    ] Education            [    ] Highway           [ X ]Restricted - Cost of Collections*

*Pursuant to Part II, article 6-a of the New Hampshire constitution, any costs associated with the collection and administration of Highway Funds by the Department of Safety shall be deducted by the Department before such funds are credited to the Highway Fund as unrestricted revenue.

 

COUNTY:

   Revenue

$0

$0

$0

$0

   Expenditures

Indeterminable

Indeterminable

Indeterminable

Indeterminable

 

 

 

 

 

LOCAL:

 

 

 

 

   Revenue

$0

$0

$0

$0

   Expenditures

Indeterminable

Indeterminable

Indeterminable

Indeterminable

 

The Judicial Branch and Judicial Council were originally contacted on January 4, 2017.  The Judicial Branch and Judicial Council were contacted again on January 14, 2017 and January 18, 2017 for fiscal note worksheets, which they have not provided as of January 24, 2017.  

 

METHODOLOGY:

The Office of Legislative Budget Assistant is unable to complete a fiscal note for this bill as it is awaiting information from the Judicial Branch and Judicial Council.  When completed, a revised fiscal note will be forwarded to the House Clerk's Office.

 

This bill reduces the penalty for less than one ounce of marijuana to a violation from a misdemeanor.  The Department of Safety makes the following assumptions concerning the fiscal impact of this bill:

  • There would be an increase in revenue from violations but the amount is not known.
  • Due to the change in RSA 265-A:43, there could be fewer license revocations and an associated reduction in revenue collected from restoration fee payments.  
  • There would be increased costs from an expected increase in driving under the influence of marijuana cases.  These would involve general arrests as well as an increase in crash investigations due to DUI.
  • The could be a small amount of savings from the change to a violation as individuals are released on a hand summons for possessing small amounts.  However on many occasions individuals are currently released on a summons for possessing small amounts and those currently arrested have more than one ounce and are charged on higher level offenses.  

 

The Department indicates there would also be an impact on county and local expenditures related to DUI arrests and crash investigations.

 

The Department of Justice prosecutes large-scale drug trafficking crimes including marijuana. Since the bill does not legalize the sale of marijuana, the Department does not expect a fiscal impact on its operations.  The Drug Task Force investigates street-level crimes and possession of controlled drugs including marijuana.  If this bill were to pass, the task force's efforts would be redirected to other controlled drugs and there would be no savings.  The Department indicates the type of offenses considered in this bill are prosecuted by local and county prosecutors and there would be no cost to the Department.

 

The Department of Corrections states this bill will have no fiscal impact on the Department's expenditures.

 

The New Hampshire Association of Counties indicates this bill would have an indeterminable impact on county incarceration and prosecution expenditures.  

 

The New Hampshire Municipal Association does not expect this bill would have any impact on local revenues or expenditures.

 

AGENCIES CONTACTED:

Judicial Branch, Judicial Council, New Hampshire Municipal Association, New Hampshire Association of Counties and the Departments of Justice, Safety and Corrections

 

 

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