HB276: relative to protective custody for intoxicated or incapacitated persons.

HB 276-FN - AS INTRODUCED

2003 SESSION

03-0211

04/09

HOUSE BILL 276-FN

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

SPONSORS: Rep. Welch, Rock 79; Rep. Knowles, Straf 69; Rep. K. Gilbert, Rock 82

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

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

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03-0211

04/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

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

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 RSA 172-B:3 is repealed and reenacted to read as follows:

172-B:3 Treatment and Services for Intoxicated or Incapacitated Persons.

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 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) 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 duties and are not criminally or civilly liable therefor, unless such person's actions constitute gross negligence or cause willful injury.

2 Effective Date. This act shall take effect 60 days after its passage.

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03-0211

1/10/03

HB 276-FN - FISCAL NOTE

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

FISCAL IMPACT:

The Association of Counties and New Hampshire Municipal Association state this bill will decrease county expenditures and increase local expenditures by an indeterminable amount in FY 2003 and each year thereafter. There will be no fiscal impact on state, county, and local revenues or state expenditures.

METHODOLOGY:

The Association of Counties states in 2001, the correctional facilities had 3,775 protective custody in-takes related to intoxication. It is estimated that this legislation could reduce that number by 10%. By reducing the number of bed days by 377, at an average cost of $55 per day, the savings would be $20,735.

The New Hampshire Municipal Association states that if this bill requires additional action by the peace officer, then it would impose additional costs on municipalities. Additional staffing may be needed by some municipalities in order not to leave them with inadequate police coverage. The Association further states there may be additional costs for municipal insurance coverage since the bill does not provide immunity for municipal corporations. The Association could not estimate the cost at this time.

The Department of Safety states this bill would require a peace officer to have persons taken into protective custody for suspected intoxication or incapacitation (non-driver) tested for intoxication, if he consents, or if he refuses a breath test or tests lower than .08, this individual would be evaluated and judged intoxicated or incapacitated by qualified medical personnel, before the officer can have the individual admitted to the local jail or county correctional facility. The law change would reduce the number of hours officers are on patrol because they will be required to wait with an individual until medical staff can evaluate the person. Using statistics from 2001, there were approximately 3,500 non-driver related instances statewide where a person was taken into protective custody, and of those 115, were taken into custody by State Police officers. If we assume that 75% will require independent evaluation, and the average additional hours off the road per incident, per officer will be two hours, then the

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statewide additional hours off the road will be 5,250 of which 172 hours relate to the State Police and the remaining 5,078 hours relate to local officers. However, unless these lost hours need to be made up by working additional overtime, there should not be additional costs associated with this proposed law change. The Department of Safety is assuming that no additional overtime will be required, therefor, there will be no fiscal impact. Additionally, even if the cost of each evaluation is $30 and is borne by the government, then the combined cost to all State and local law enforcement agencies would be less than $10,000.