HB 1425

AN ACT relative to protective custody for intoxicated or incapacitated persons.

SPONSORS: Rep. Welch, Rock 18; Rep. Nedeau, Belk 1; Rep. Rodd, Merr 3; Rep. Knowles, Straf 11; Rep. R. Cooney, Rock 26

This bill establishes specific guidelines for the treatment and care by peace officers of intoxicated and incapacitated persons.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.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

1 Alcoholism and Alcohol Abuse; Treatment and Services of Intoxicated and Incapacitated Persons. RSA 172-B:3 is repealed and reenacted to read as follows:

I. When a peace officer encounters a person who, in the judgment of the officer, is intoxicated as defined in RSA 172-B:1, X, the officer may take such person into protective custody and shall take whichever of the following actions is, in the judgment of the officer, the most appropriate to ensure the safety and welfare of the public, the individual, or both:

(a) Assist the person, if the person consents, to the person's home, an approved alcohol treatment program, or some other appropriate location; or

(b) Release the person to some other person assuming responsibility for the intoxicated person;

II. When a peace officer encounters a person who, in the judgment of the officer, is incapacitated as defined in RSA 172-B:1, IX, the officer may take such person in protective custody and shall take whichever of the following actions is, in the judgment of the officer, the most appropriate to ensure the safety and welfare of the public, the individual, or both:

(a) If the person consents to a breath test and the alcohol concentration is shown to be .08 or more, such person may be lodged in a local jail or county correctional facility for said person's protection for up to 24 hours, or until judged by the keeper of the facility to be no longer incapacitated. Results of the breath test are to be presented to the local jail or county correctional facility.

(b) If the person refuses a breath test or the alcohol concentration is shown to be less than .08, such person may only be admitted to a local jail or county correctional facility for protective custody after such person is first taken for evaluation to a designated alcohol counselor, a clinical staff person of an approved alcohol treatment program with detoxification capabilities, or a professional medical staff person at a licensed general hospital emergency room, to determine whether the person is incapacitated. The person making this determination shall give the officer a written statement to this effect to be presented to the local jail or county correctional facility.

III. No local jail or county correctional facility shall refuse to admit an intoxicated or incapacitated person in protective custody whose admission is requested by a peace officer under the provisions of this section.

IV. Notwithstanding any provision of law to the contrary, whenever a person under 18 years of age who is judged by a peace officer to be intoxicated or incapacitated and who has not been charged with a crime is taken into protective custody, if no needed treatment is available, the parent or guardian shall be immediately notified and such person may be held at a police station or a local jail or a county correctional facility in a room or ward separate from any adult or any person charged with juvenile delinquency until the arrival of the parent or guardian. If such person has no parent or guardian in the area, arrangements shall be made to provide housing pursuant to RSA 169-D:17.

V. The family or next of kin of an incapacitated person in protective custody shall be notified as promptly as possible. If the person requests that there be no notification, such request shall be respected.

VI. A taking into protective custody under this section is not an arrest, however an entry of custody shall be made indicating the proper identification of the person, the date, time, place of custody, the name of the assisting officer, the name of the officer in charge, whether the person held in custody consented to take a breathalyzer test, and the results of the test if taken. Such entry shall not be treated for any purposes as an arrest or nor shall such entry be deemed to constitute a criminal record.

VII. (a) An intoxicated person who has been lodged in a local jail or county correctional facility in protective custody 3 or more times within 30 consecutive days, shall be guilty of a violation and the local district court shall be so notified. Prior to release under this section, a full evaluation shall be performed by a designated counselor from psychiatric emergency services or a designated alcohol counselor.

(b) At the court's discretion, such person may be ordered to undergo inpatient or outpatient treatment, or a combination of both.

VIII. Nothing in this section shall prevent a peace officer or corrections officer from conducting a search of such person to reduce the likelihood of injury to the peace officer, corrections officer, the person taken into protective custody, or others. No unnecessary or unreasonable force or means of restraint may be used in detaining any person taken into protective custody.

IX. Peace officers or persons responsible for supervision in a local jail or designated alcohol counselors who act under the authority of this section are acting in the course of their official duty and are not criminally or civilly liable therefor, unless such person's actions constitute gross negligence or cause willful injury.

The Department of Health and Human Services stated this bill will have no impact on state revenues or expenditures. The New Hampshire Municipal Association indicated this bill will increase local expenditures by an indeterminable amount. The New Hampshire Association of Counties indicated this bill will increase county expenditures by an indeterminable amount. This bill will have no impact on county and local revenues.

The Department of Health and Human Services, Division of Alcohol and Drug Abuse Prevention and Recovery, assumed this bill is comparable to the existing statute and will not have an impact on state expenditures or revenues.

The New Hampshire Municipal Association stated that if this bill requires additional action by the peace officer then it would impose additional costs on municipalities. The Association further stated there may be additional costs for municipal insurance coverage since the bill does not provide immunity for municipal corporations. The Association could not estimate what the additional costs may be.

The New Hampshire Association of Counties could not estimate the impact of this bill on the number of intoxicated individuals taken into protective custody and held at the county correctional facilities.