0189-hb 1562

This bill makes violations of protective orders where a stay away order has been issued under the child protection act class A misdemeanors, and provides sentencing provisions for subsequent related offenses.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

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

189:1 New Section; Violations of Protective Order. Amend RSA 169-C by inserting after section 21 the following new section:

I.(a) When a person subject to a protective order under RSA 169-C:16, I(d)(1) or RSA 169-C:19, II(a)(1) violates either a temporary or permanent protective order issued or enforced under this chapter, peace officers shall arrest the defendant and ensure that the defendant is detained until arraignment. Such arrests may be made within 6 hours without a warrant upon probable cause, whether or not the violation is committed in the presence of a peace officer.

(b) Subsequent to an arrest, the peace officer shall seize any firearms and ammunition in the control, ownership, or possession of the defendant and any deadly weapons which may have been used, or were threatened to be used, during the violation of the protective order. The law enforcement agency shall maintain possession of the firearms, ammunition, or deadly weapons until the court issues an order directing that the firearms, ammunition, or deadly weapons be relinquished and specifying the person to whom the firearms and ammunition or deadly weapons will be relinquished.

II. The prosecution and sentencing for criminal contempt for a violation of a protective order shall not preclude the prosecution of or sentencing for other criminal charges underlying the contempt.

III. A person shall be guilty of a class A misdemeanor if such person knowingly violates a protective order issued under this chapter. Charges made under this chapter shall not be reduced to a lesser charge, as permitted in other instances under RSA 625:9.

IV. Any person convicted under paragraph III, or who has been convicted in another jurisdiction of violating a protective order enforceable under the laws of this state, who, within 6 years of such conviction or the completion of the sentence imposed for such conviction, whichever is later, subsequently commits and is convicted of one or more offenses under this chapter may be charged with an enhanced penalty for each subsequent offense as follows:

(a) There shall be no enhanced charge under this section if the subsequent offense is a class A felony or an unclassified felony;

(b) If the subsequent offense would otherwise constitute a class B felony, it may be charged as a class A felony;

(d) If the subsequent offense would otherwise constitute a class B misdemeanor, it may be charged as a class A misdemeanor;

(e) If the subsequent offense would otherwise constitute a violation, it may be charged as a class B misdemeanor.

The Administrative Office of the Courts, Judicial Council and the Department of Corrections have determined this bill may increase state and county expenditures by an indeterminable amount in FY 2001 and each year thereafter. There will be no fiscal impact on local expenditures or on state, county and local revenue.

The Administrative Office of the Courts stated this bill establishes criminal penalties for violations of orders of protection under the child protection act. The Office has determined the legislation will have little fiscal impact on the Branch due to the relatively small number of RSA 169-C cases that are filed in the courts that include restraining orders.

The Judicial Council assumed that any cases arising from the enactment of this law for which the Indigent Defense Fund may be liable, will, in the first instance be handled by the Public Defender or contract attorneys who accept these cases on a fixed fee basis $250 for each misdemeanor and $687.50 for each felony charge. If an assigned counsel attorney must be used, the hourly rate of $60, with a fee cap of $1,000 for a misdemeanor and $3,000 for felony cases will apply. If a motion to exceed the fee cap is approved and/or "services other than counsel" are approved, these will also be chargeable to the Indigent Defense Fund. The Council is unable to predict the number of cases or trials which may affected by the enactment of this legislation.

The Department of Corrections is unable to predict how many, if any, individuals would be incarcerated in a state prison as result of this legislation. The average cost of incarceration for FY 1999 was $19,358 per inmate. The average cost of probation/parole supervision was $842 per inmate. The misdemeanor sentences would be served in a county jail, and would result in an indeterminable increase in county expenses.

The Department of Justice has stated this bill will result in an increased appellate caseload, and the Department may assume increased prosecutorial duties. The Department is unable to predict the extent of those increases, however, it is assumed any increase could be handled within existing resources.