sb 0036

CHAPTER 96

SB 36-FN - FINAL VERSION

AN ACT relative to protective custody of a person impaired by drugs and establishing a committee to study the issue of the applicability of the administrative license suspension laws to driving while under the influence of controlled drugs and ways to address the speed with which such cases are adjudicated in the district court.

SPONSORS: Sen. Clegg, Dist 14; Sen. Eaton, Dist 10; Sen. Boyce, Dist 4; Rep. Packard, Rock 75; Rep. Tholl, Coos 2; Rep. Stevens, Carr 7

I. Permits a peace officer to take a person who is impaired by drugs into protective custody.

II. Establishes a committee to study the issue of the applicability of the administrative license suspension laws to driving while under the influence of controlled drugs and ways to address the speed with which such cases are adjudicated in the district court.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.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

96:1 Place of Commitment; Expense of Protective Custody. Amend RSA 30-B:15, III to read as follows:

III. The expense of lodging persons in a county correctional facility under the protective custody of a peace officer under RSA 172:15 or RSA 172-B:3 shall be a charge upon the county.

96:2 New Paragraphs; Study, Treatment, and Care of Inebriates; Definitions. Amend RSA 172:1 by inserting after paragraph XXV the following new paragraphs:

XXVI. "Incapacitated" means that a person as a result of his or her use of drugs is in a state of intoxication, or mental confusion resulting from withdrawal, such that:

(a) He or she appears to need medical care or supervision by approved drug treatment personnel to assure his or her safety; or

(b) He or she appears to present a direct active or passive threat to the safety of others.

XXVII. "Intoxicated" means a condition in which the mental or physical functioning of an individual is substantially impaired as a result of the presence of drugs in his or her system.

XXVIII. "Protective custody" means a civil status in which an incapacitated person is detained by a peace officer for the purposes of:

XXIX. "Designated drug counselor" means a person approved by the commissioner to evaluate and treat drug users and drug abusers. A "designated drug counselor" may be, but is not required to be, a certified alcohol and drug abuse counselor.

96:3 New Section; Study, Treatment, and Care of Inebriates; Treatment and Services. Amend RSA 172 by inserting after section 14 the following new section:

I. When a peace officer encounters a person who, in the judgment of the officer, is intoxicated as defined in RSA 172:1, XXVII, 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 his or her home, an approved drug treatment program, or some other appropriate location; or

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

(c) Lodge the person in a local jail or county correctional facility for said person's protection, for up to 24 hours or until the keeper of said jail or facility judges the person to be no longer intoxicated.

II. When a peace officer encounters a person who, in the judgment of the officer, is incapacitated as defined in RSA 172:1, XXVI, 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) Transport the person to an approved drug treatment program with detoxification capabilities or to the emergency room of a licensed general hospital for treatment, except that if a designated drug counselor exists in the vicinity and is available, the person may be released to the counselor at any location mutually agreeable between the officer and the counselor. The period of protective custody shall end when the person is released to a designated drug counselor, a clinical staff person of an approved drug treatment program with detoxification capabilities, or a professional medical staff person at a licensed general hospital emergency room. The person may be released to his or her own devices if at any time the officer judges the person to be no longer incapacitated. Protective custody shall in no event exceed 24 hours.

(b) Lodge the person in protective custody in a local jail or county correctional facility for up to 24 hours, or until judged by the keeper of the facility to be no longer incapacitated, or until a designated drug counselor has arranged transportation for the person to an approved drug treatment program with detoxification capabilities or to the emergency room of a licensed general hospital.

III. No person shall be lodged in a local jail or county correctional facility under paragraph II unless the person in charge of the facility, immediately upon lodging said person in protective custody, contacts a designated drug counselor, a clinical staff person of an approved drug treatment program with detoxification capabilities or a professional medical staff person at a licensed general hospital emergency room to determine whether said person is indeed incapacitated. If, and only if none of the foregoing is available, such a medical or clinical determination shall be made by a registered nurse or registered emergency medical technician on the staff of the detention facility.

IV. 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, in compliance with the conditions of this section.

V. Notwithstanding any other provisions of law, 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, the person's 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 his or her parent or guardian. If such person has no parent or guardian in the area, arrangements shall be made to house him or her according to the provisions of RSA 169-D:17.

VI. If an incapacitated person in protective custody is lodged in a local jail or county correctional facility his or her family or next of kin shall be notified as promptly as possible. If the person requests that there be no notification, the person's request shall be respected.

VII. A taking into protective custody under this section is not an arrest, however nothing in this section shall be construed so as to prevent an officer or jailer from obtaining proper identification from a person taken into protective custody or from conducting a search of such person to reduce the likelihood of injury to the officer or jailer, 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.

VIII. Peace officers or persons responsible for supervision in a local jail or designated drug 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 for gross negligence or willful or wanton injury.

I. The general court finds that there is a need to swiftly and promptly remove drug impaired operators from the roadway and that the Administrative License Suspension Act has proven to be a successful and effective tool in saving lives. The general court further finds that speedy adjudication of impaired driving cases in the district court likewise saves lives. The general court is encouraged with the Drug Recognition Enforcement program, derived from standards adopted by the National Highway Safety Administration and the International Chiefs of Police, as well as with the fact that this state has a number of DRE officers that are highly trained to identify symptoms of drug impairment. Currently, however, the administrative license suspension law is inapplicable in cases where a test result reveals the presence of a controlled drug, which is the cause of the operator impairment. Although the individual arrested will still face the consequences of a criminal trial, there is a need to include the administrative consequences as well, which have proven to save lives. The general court, however, recognizes that there are current limitations in the testing of drug impaired drivers and that these limitations need to be explored in greater detail, in order to provide a mechanism for the scope of these hearings under RSA 265:91.

II. There is established a committee to study the issue of the applicability of the administrative license suspension laws to driving while under the influence of controlled drugs and ways to address the speed with which such cases are adjudicated in the district court.

(2) Three members of the house of representatives, appointed by the speaker of the house of representatives.

(b) Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.

IV.(a) The committee shall study the issue of including within the administrative license suspension laws cases where a chemical test was requested under the implied consent law and the operator was found to be impaired by controlled drugs. The committee shall also study ways to address the speed with which such cases are adjudicated in the district court and the current methods available to test operators for controlled drug impairment.

(3) A representative from the New Hampshire bar that practices criminal defense.

V. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named senate member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Four members of the committee shall constitute a quorum.

VI. The committee shall report its findings and any recommendations for proposed legislation to the president of the senate, the speaker of the house of representatives, the senate clerk, the house clerk, the governor, and the state library on or before November 1, 2003.

II. The remainder of act shall take effect June 6, 2003)