HB487: relative to protective custody of a person impaired by drugs.

HB 487 - AS INTRODUCED

2003 SESSION

03-0849

09/01

HOUSE BILL 487

AN ACT relative to protective custody of a person impaired by drugs.

SPONSORS: Rep. Hunter, Hills 48

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

This bill permits a law enforcement officer to take a person who is impaired by drugs into protective custody.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03-0849

09/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT relative to protective custody of a person impaired by drugs.

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

1 Purpose. As a result of the April, 2002 decision in State v Charles Novak, in order to ensure public safety and welfare, and in order to protect individuals who may pose a threat to themselves, the general court hereby adopts this act to provide for protective custody of persons who are impaired by narcotic or controlled drugs.

2 New Section; Controlled Drug Act; Protective Custody of Persons Impaired by Drugs. Amend RSA 318-B by inserting after section 25 the following new section:

318-B:25-a Protective Custody for Drug Intoxication or Impairment.

I. When a peace officer encounters a person who, in the judgment of the officer, is intoxicated or impaired as a result of using controlled or narcotic drugs, 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 such person consents, to his or her home, an approved drug treatment program, or some other appropriate location;

(b) Release the person to some other person assuming responsibility for the drug impaired/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 or impaired.

II. When a peace officer encounters a person who, in the judgment of the officer, is incapacitated as a result of using a narcotic or controlled drug, 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 such 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 protection 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 are 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 any drug 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 by drugs and who has not been charged with a crime is taken into protective custody, if no needed treatment is available, his or her 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 such person 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 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 action 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.

3 Effective Date. This act shall take effect January 1, 2004.