HB 575-FN – AS INTRODUCED
2009 SESSION
03/09
HOUSE BILL 575-FN
AN ACT prohibiting driving with any amount of certain controlled drugs or metabolites in the blood or urine.
SPONSORS: Rep. J. Flanders, Rock 8; Rep. Welch, Rock 8
COMMITTEE: Criminal Justice and Public Safety
This bill provides that driving with any amount of a schedule I controlled drug or its metabolites in the blood or urine carries the same penalty as driving while intoxicated.
This bill was requested by the department of safety.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
09-0553
03/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT prohibiting driving with any amount of certain controlled drugs or metabolites in the blood or urine.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Driving or Operating With Schedule I Controlled Drugs in the Blood or Urine. Amend RSA 265-A:2 to read as follows:
265-A:2 Driving or Operating Under Influence of Drugs or Liquor; Driving or Operating With Excess Alcohol Concentration; Driving or Operating With Schedule I Controlled Drugs in the Blood or Urine.
I. No person shall drive or attempt to drive a vehicle upon any way or operate or attempt to operate an OHRV:
(a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or
(b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more; or
(c) While such person has any amount of a schedule I controlled substance, as defined in RSA 318-B:1-b, or its metabolites, in his or her blood or urine.
II. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug or drugs, or while such person has an alcohol concentration of 0.08 or more or in the case of persons under the age of 21, 0.02 or more; or while such person has any amount of a schedule I controlled substance, as defined in RSA 318-b:1-b, or its metabolites, in his or her blood or urine.
2 Implied Consent. Amend RSA 265-A:4 to read as follows:
265-A:4 Implied Consent of Driver or Operator to Submit to Testing to Determine Alcohol Concentration or Presence of Controlled Drugs.
I. Any person who drives, operates, or attempts to operate an OHRV, drives or attempts to drive a vehicle upon the ways of this state, or operates or attempts to operate a boat upon the public waters of the state shall be deemed to have given consent to physical tests and examinations for the purpose of determining whether such person is under the influence of intoxicating liquor or controlled drugs, and to a chemical, infrared molecular absorption, or gas chromatograph test or tests of any or all of any combination of the following: blood, urine, or breath, for the purpose of determining the controlled drug content of such person's blood or alcohol concentration if arrested for any offense arising out of acts alleged to have been committed while the person was driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs or while having an alcohol concentration in excess of the statutory limits contained in RSA 265-A:2 or RSA 265-A:3. The test or tests shall be administered at the direction of a law enforcement officer, peace officer, or authorized agent having reasonable grounds to believe the person to have been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving or in actual physical control of a vehicle, or operating or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs or while having an alcohol concentration of 0.08 or more, or in the case of a person under the age of 21, 0.02 or more. A copy of the report of any such test shall be furnished by the law enforcement agency to the person tested within 48 hours of receipt of the report by the agency by certified mail directed to the address shown on such person's license or other identification furnished by the person. Results of a test of the breath shall be furnished immediately in writing to the person tested by the certified breath testing operator conducting the test. When the incident involves an accident resulting in death or serious bodily injury to any person as provided in RSA 265-A:16, the prerequisites of RSA 265-A:8 shall not apply. Properly trained personnel of the United States Coast Guard may arrest and conduct tests on persons who are believed to be under the influence of intoxicating liquor or controlled drugs, or a combination thereof, and who are in physical control of a boat operating upon the public coastal waters of this state.
II. Any person who drives, operates, or attempts to operate an OHRV, drives or attempts to drive a vehicle upon the ways of this state, or operates or attempts to operate a boat on the public waters of this state shall be deemed to have given consent to chemical, infrared molecular absorption, or gas chromatograph test or tests of his or her blood or urine for the presence of any schedule I controlled substance, as defined in RSA 318-B:1-b, or its metabolites.
3 Effective Date. This act shall take effect January 1, 2010.
LBAO
09-0553
01/21/09
HB 575-FN - FISCAL NOTE
AN ACT prohibiting driving with any amount of certain controlled drugs or metabolites in the blood or urine.
FISCAL IMPACT:
The Judicial Council, Judicial Branch, Department of Safety, Department of Corrections, New Hampshire Association of Counties, Fish and Game Department, and the Department of Resources and Economic Development state this bill will increase state revenue, and increase state and county expenditures by an indeterminable amount in FY 2010 and each year thereafter. This bill will have no fiscal impact on county and local revenue, or local expenditures.
METHODOLOGY:
The Judicial Council states this bill has the potential to substantially increase the caseload for which indigent defense expenditures are made. Police often stop cars and smell marijuana, but there can be search and seizure issues that make it difficult for the police to discover any drugs that haven’t been discarded. When they are able to find drugs, they often have a hard time pinning the possession of the drugs on any one person in the vehicle. With this law, however, they can arguably just make the driver submit to a drug test when they smell marijuana, and pin a DWI (driving while intoxicated) on the driver much more easily. There are thousands of people driving the roads every day with measurable amounts of schedule I drugs (or their metabolites) in their systems. Marijuana can stay in a person’s system for weeks. Heroin can last within the system for several days. Since the threshold under this law is any amount above zero, then all of these thousands of people would be violating this law and subject to prosecution. These are, in the first instance, class B misdemeanors, and therefore are not by themselves triggers of the obligation to appoint counsel for those who cannot afford it. But it will significantly increase the number of subsequent DWI offenses, which do trigger the right to counsel. The Council suspects that the law will also lead to an increase in the number of cases brought to court. The Council estimates that this bill would add several hundreds of these charges every year, and the compound effect would be that this could lead to more DWI subsequent charges and more people declared habitual offenders, and this would also lead to more collateral future charges such as operating after revocation or suspension. These are among the most numerous cases for which indigent defense representation is provided. The Council is unable to determine the exact fiscal impact at this time, however, the impact could be significant.
The Judicial Branch states the blood or urine tests for schedule I controlled substances are likely to result in more prosecutions for DWI and BWI (boating while intoxicated). The penalty for DWI or BWI is a class B misdemeanor, although second and third offenses are class A misdemeanors with mandatory jail sentences, and fourth and subsequent offenses are unspecified felonies. Thus the proposed bill may add class B misdemeanors, class A misdemeanors, and felonies to the Judicial Branch’s caseloads. The Branch states that in FY 2010, the cost of a class B misdemeanor charge in the district court is $36.89, the cost of a class A misdemeanor charge in the district court is $51.14, and the cost of an average routine felony charge is $335.98. The Branch is unable to determine the exact fiscal impact at this time.
The Department of Safety states currently the lab personnel have to testify that the drugs in a person’s system cause impairment, not just that the person tested positive for any amounts. Therefore, the Department believes that more persons would be found guilty of DWI. The Department states this would probably increase state general fund fine revenue, but is unable to determine the exact fiscal impact at this time. The State Police lab does not believe that there would be a fiscal impact on state expenditures as a result of this bill since the lab already tests for the most commonly used schedule I controlled drugs.
The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2008 was $32,753. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2008 was $779. The Department states this bill may increase expenditures by an indeterminable amount, but is unable to predict the number of individuals that might be found guilty of a class B felony.
The New Hampshire Association of Counties states to the extent an individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $30,165 a year.
The Fish and Game Department states they are unable to determine the fiscal impact of this bill because the violations records database only tracks Operating While Under the Influence, the Department cannot determine if the defendant was under the influence of drugs or alcohol.
The Department of Resources and Economic Development (DRED) states while forest rangers in the Division of Forests and Lands and area supervisors in the Bureau of Trails, Division of Parks and Recreation have legal authority to enforce such laws on DRED owned or managed lands, these cases are referred to the local municipality for State Police for prosecution. Therefore, there is no anticipated fiscal impact to DRED as a result of this bill.