HB 0731

II. Establishes a procedure for the forfeiture of vehicles used in certain driving after revocation offenses.

III. Eliminates impaired driver intervention programs and the multiple DWI offender intervention detention center program, and eliminates intervention or treatment program requirements for persons convicted of intoxication-related and drug-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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.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:

1 Office of Reimbursements; Duties; Reference Deleted. Amend RSA 126-A:34, I(a) to read as follows:

(a) Review and investigate all records of the New Hampshire hospital, Laconia developmental services, the secure psychiatric unit, the Glencliff home for the elderly, and the Anna Philbrook center, [~~and the multiple DWI offender intervention detention center program (M.O.P.),~~] relative to expenses incurred by patients, residents, or clients at such institutions, facilities, or programs or expenses incurred by patients, residents, or clients receiving care, treatment, services, or maintenance at the direction of the commissioner of health and human services, and make recommendations to the commissioner and to the respective superintendents or directors of such institutions, facilities, or programs as to the rates to be charged for the care, treatment, and maintenance of such patients, residents, or clients.

2 Office of Reimbursements; Financial Statements; Reference Deleted. Amend RSA 126-A:38, I to read as follows:

I. Within 60 days after admittance, [~~except as provided in paragraph II,~~] and annually thereafter if requested by the commissioner, a financial statement shall be filed under penalty of perjury by a person legally chargeable for expenses pursuant to RSA 126-A:36 on forms provided for this purpose by the office of reimbursements.

3 New Section; Vehicle Forfeiture for Driving After Revocation. Amend RSA 263 by inserting after section 64-a the following new section:

I. Following the conviction of a person for driving after revocation based upon a complaint which alleged that the person's driver's license or privilege to drive has been revoked for life pursuant to RSA 265:82-b, III, the motor vehicle driven by the person as alleged in the complaint shall be subject to administrative forfeiture by the department of safety.

II. The department of safety shall provide notice by certified mail return receipt addressee only requested, of intent to forfeit the vehicle administratively to all persons having a recorded interest or claiming an equitable interest in the vehicle. Such notice shall include:

(d) Instructions for filing a claim and posting bond or filing a petition for remission or mitigation; and

(e) Notice that the vehicle will be forfeited to the state if a petition for remission or mitigation has not been filed in a timely manner or a claim has not been filed and bond has not been posted in a timely manner.

III. Persons claiming an interest in the vehicle may file petitions for remission or mitigation of forfeiture or file a claim and post bond with the department of safety within 30 days from the receipt of written notice.

IV. It shall be the duty of the department of safety to inquire into the facts and circumstances surrounding petitions for remission or mitigation of forfeiture.

V. The department of safety shall provide the petitioner a written decision on each petition for remission or mitigation within 60 days of receipt of such petition.

VI. Any person claiming an interest in a forfeited vehicle may institute judicial review of the proposed forfeiture by timely filing with the department of safety a claim and bond to the state in the amount of 10 percent of the appraised value or in the penal sum of $2,500, whichever is less, with sureties to be approved by the department of safety, upon condition that the claimant shall pay all costs and expenses of the proceedings at the discretion of the court. A sworn affidavit of indigence may be filed in lieu of a cost bond. Upon receipt of the claim and bond, or, if department of safety otherwise so elects, the department shall file with the court a petition in rem to order forfeiture of property interests subject to forfeiture under the provisions of this section. All judicial proceedings thereafter shall be conducted in accordance with the provisions of paragraph VII. Any bonds received by the department of safety shall be held by the department pending final disposition of the case.

(1) No vehicle shall be subject to forfeiture unless the owner or owners thereof were consenting parties to relevant facts alleged in the complaint under paragraph I and had knowledge thereof.

(2) No vehicle shall be subject to forfeiture unless operation of the vehicle is proven pursuant to paragraph I.

(3) No vehicle shall be subject to forfeiture if the operation of the vehicle alleged in the complaint under paragraph I was in response to a bona fide emergency.

(b)(1) The department of safety may petition the superior court in the name of the state in the nature of a proceeding in rem to order forfeiture of a vehicle subject to forfeiture under the provisions of this section. Such petition shall be filed in the court having jurisdiction over any related criminal proceedings which could be brought under this title.

(2) Such proceeding shall be deemed a civil suit in equity in which the state shall have the burden of proving all material facts by a preponderance of the evidence and in which the owners or other persons claiming an exception pursuant to subparagraph (a) shall have the burden of proving such exception.

(3) The court shall issue orders of notice to all persons who have a recorded interest or claim an equitable interest in the vehicle and shall schedule a hearing on the petition to be held within 90 days of the return date on said petition.

(4) At the request of any party to the forfeiture proceeding, the court may grant a continuance until the final resolution of any criminal proceedings which were brought against a party under this title and which arose from the events which gave rise to the forfeiture proceeding.

(5) At the hearing, the court shall hear evidence and make findings of fact and rulings of law as to whether the vehicle is subject to forfeiture under this section. The court shall, thereupon, make a final order, from which all parties shall have a right of appeal.

VIII. If no petitions or claims with bonds are timely filed, the department of safety shall prepare a written declaration of forfeiture of the vehicle to the state and dispose of the vehicle in accordance with this section and the department of safety rules, if any, relative to this section.

IX. If the petition is denied, the department of safety shall prepare a written declaration of forfeiture to the state and dispose of the vehicle in accordance with this section and the department of safety rules, if any, relative to this section.

X. A written declaration of forfeiture signed by the commissioner of safety or designee pursuant to this chapter shall be deemed good and sufficient title to the forfeited vehicle.

4 Penalties for Intoxication or Under Influence of Drugs Offenses. RSA 265:82-b is repealed and reenacted to read as follows:

I. Except as otherwise provided in this section, any person who is convicted of any offense under RSA 215-A:11, RSA 265:82, RSA 265:82-a, or RSA 270:48-a shall be:

(c) The person's driver's license or privilege to drive shall be revoked for not less than 90 days and, at the discretion of the court, such revocation may be extended for a period not to exceed 180 days.

II. Any person under the age of 21 who is convicted of an offense under RSA 265:82, RSA 265:82-a, RSA 270:48-a, or RSA 630:3, II shall be sentenced according to the provisions of this section, except that in all cases the person's driver's license or privilege to drive shall be revoked for not less than one year.

III. Upon conviction of any offense under RSA 215-A:11, RSA 265:82, RSA 265:82-a, or RSA 270:48-a, based on a complaint which alleged that the person has had one or more prior convictions under RSA 215-A:11, RSA 265:82, RSA 265:82-a, RSA 270:48-a, or RSA 630:3, II, or under reasonably equivalent offenses in an out-of-state jurisdiction, within 10 years preceding the date of the second or subsequent offense, the person shall be subject to the following penalties in addition to those provided in paragraph I:

(a) "Revocation" or "revoked" means revocation as defined in RSA 259:90 and also includes, if the person is a nonresident, the revocation of the person's privilege as an out-of-state driver to drive on any ways of this state.

(b) "Out-of-state jurisdiction" includes any governmental entity that issues driver's licenses that are valid for operating a motor vehicle on the ways of this state as provided in RSA 263:37, and that has laws relating to driving while intoxicated that are reasonably equivalent to the laws of this state.

V. No portion of the mandatory sentence of the period of revocation and no portion of any fine imposed under this section shall be suspended or reduced by the court. No case brought to enforce this section shall be continued for sentencing for longer than 35 days. No person serving the minimum mandatory sentence under this section shall be discharged pursuant to authority granted under RSA 651:18, released pursuant to authority granted under RSA 651:19, or in any manner, except as provided in RSA 623:1, prevented from serving the full amount of such minimum mandatory sentence under any authority granted by RSA title LXII or any other provision of law.

VI. Upon conviction under the provisions of RSA 215-A:11, RSA 265:82, RSA 265:82-a, or RSA 270:48-a, the prosecutor shall present to the court a certified copy of the defendant's record of convictions of motor vehicle offenses under RSA title XXI and reasonably equivalent offenses in out-of-state jurisdictions which are on record at the New Hampshire division of motor vehicles or known to the prosecutor, or a signed statement that the defendant has no such prior convictions within the preceding 10 years. Prior to sentencing the court shall note on the complaint the number of prior convictions for drug or alcohol-related motor vehicle offenses, or the absence of any such prior convictions, as shown on such report or statement.

VII. Any conviction under RSA 215-A:11, RSA 265:82, RSA 265:82-a or RSA 270:48-a shall be reported to the commissioner of the department of safety, division of motor vehicles, and shall become a part of the motor vehicle driving record of the person convicted.

VIII. Any person convicted of a violation of RSA 215-A:11, RSA 265:82, RSA 265:82-a, or RSA 270:48-a, and who at the time of driving a vehicle or off highway recreational vehicle was transporting a person under the age of 16, shall have the driver's license or privilege to drive revoked for the maximum time period under the section violated.

5 Alcohol Ignition Interlock Program Established; References Changed. Amend RSA 265:93-a, I-II to read as follows:

I. Any person whose license or permission to drive has been revoked or suspended for an aggravated DWI offense under RSA 265:82-b, [~~I(b), I(c)~~] I, or a subsequent DWI offense under RSA 265:82-b, [II] III may be required by the court after the period of revocation or suspension to install an ignition interlock device as defined in RSA 259:43-a in any vehicle registered to that person or used by that person on a regular basis, for not less than 6 months nor more than 2 years. Installation and monitoring costs shall be paid by the offender. A certificate proving installation of the device shall be provided to the division of motor vehicles as a condition precedent to reinstatement of the individual's license to drive, and the division may mark the person's license accordingly.

II. Nothing in this section shall prohibit a court of competent jurisdiction from requiring the installation of an ignition interlock device for any person convicted of a violation of RSA 265:82, where the conviction is not based upon a complaint which alleges prior convictions as provided in RSA 265:82-b, [II] III, but the person is found to have had one or more such prior convictions in this state or in an out-of-state jurisdiction.

6 Boating While Intoxicated, Penalties; Reference Changed. Amend RSA 270:48-a, VI to read as follows:

VI. Any person who is convicted of a violation of paragraphs [~~I-III~~] I-II of this section shall be subject to the same penalties as a person convicted of a violation of RSA 265:82 as specified in RSA 265:82-b.

7 Applicability. Any person convicted prior to the effective date of this act who was required to attend an impaired driver intervention program, the multiple DWI offender intervention detention center program, or other intervention or treatment program pursuant to RSA 265:82-b shall, on the effective date of this act, be considered to have satisfied such requirement.

I. RSA 6:12, I(aaaaaaa), relative to the 7-day multiple DWI offender intervention detention center program account.

II. RSA 6:12, I(cccccccc), relative to the alcoholism and alcohol abuse account.

III. RSA 126-A:38, II-III, relative to payment contracts for persons admitted to the multiple DWI offender intervention detention center program.

V. RSA 172-B:2-b, relative to the multiple DWI offender intervention detention center program.

VII. RSA 263:56-e, II(c), relative to completion of a program required by RSA 263:65-a.

VIII. RSA 263:65-a, relative to attendance at impaired driver intervention program required.

X. RSA 651:2, V(h), relative to sentence to multiple DWI offender intervention detention center program.

The Judicial Branch and Department of Corrections state this bill may increase state and county expenditures by an indeterminable amount in FY 2004 and each year thereafter. The Department of Health and Human Services states this bill will decrease state revenue and expenditures by an indeterminable amount in FY 2004 and each year thereafter. There will be no fiscal impact on county and local revenue or local expenditures.

The Judicial Branch states this bill establishes a forfeiture procedure for vehicles used in certain driving after revocation offenses and amends penalties for DWI offenses. The Branch states this bill would increase the number of forfeiture proceedings at the courts. The average hearing would require a full day (7.5 hours) at a cost of $889.83 per day, assuming the costs of a judge, court monitor, deputy clerk, and bailiff. Staff time to write a decision and clerical processing would increase the hearing costs to over $1,000 per hearing, and an appeal of any decision would further increase costs for each forfeiture proceeding. This bill also changes the penalty for DWI subsequent. The Branch states if DWI subsequents are charged as class B misdemeanors (no chance of incarceration), defendants will not be able to appeal for a trial de novo in the superior court which could lower the number of appeals in superior court. Consequently, in the district court, defendants facing the possibility of revocation for life will be unlikely to plea to the offense which could result in additional trials. The Branch is unable to determine the exact fiscal impact at this time.

The Department of Health and Human Services states this bill proposes to eliminate the requirement for individuals convicted of DWI to attend education/treatment/intervention programs and to comply with any education/treatment follow up services required to restore that individual's driver's license. As a result, the current Multiple Offender Program (MOP) operated by the Department, and the Impaired Driver Intervention Programs (IDIP) authorized by the Department and operated by private agencies would be eliminated. It is assumed that time-payments currently being made to the State would continue to be collected, and there would be some indeterminable amount of revenue collected over time. Currently, both

programs are supported by fees, and have a combined total budget of $950,042. This bill is effective January 1, 2004, which would decrease state revenue and expenditures by $475,020 in FY 2004. In addition, discontinuing these programs and lowering the State's alcohol and drug prevention and treatment efforts could result in decreased federal funding for all services by not meeting the maintenance of effort required by the Division of Alcohol and Drug Abuse Prevention and Recovery federal block grant.

The Department of Safety states this bill establishes a procedure for the forfeiture of vehicles used in certain driving after revocation offenses. The Department states it will benefit from the potential forfeitures, but cannot determine how many violations would occur that would subject the offender's vehicles to forfeiture, nor can they determine the types and values of those vehicles.

The Department of Corrections states this bill could result in a misdemeanor sentence which would be served at a county facility and have no fiscal impact on the Department. The average cost of incarceration at the state prison is $24,866 per offender per year. The average annual cost for counties to incarcerate inmates is $21,633.

The Judicial Council states any additional representation which might be required by the passage of this bill could be covered within current appropriations, and would not have a fiscal impact on the Department.