MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 3, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:00 a.m. February 3, 1993, in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Gene T. Porter, Vice Chairman
Mr. Bernie Anderson
Mr John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Michael A. Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
Mr. Ken L. Haller absent/excused
GUEST LEGISLATORS PRESENT:
Ms. Myrna Williams
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst, Legislative Counsel Bureau
OTHERS PRESENT:
Mr. Noel S. Waters, Carson City District Attorney
Mr. Ben Graham, Legislative Representative, Nevada District Attorney's Association
Judge Donald Gladstone, Sparks Municipal Court
Sheriff Paul B. McGrath, Carson City Sheriff's Department
Captain Randy Oaks, Legislative Liaison, Las Vegas Metropolitan Police Department
Captain Frank A. Barker, Legislative Liaison, Las Vegas Metropolitan Police Department
Lieutenant James Nadeau, Assistant Commander, Washoe County Sheriff's Office, Incline Substation
Mr. Phillip Ulibarri, Program Coordinator, Washoe County District Health Department
Mr. Kevin M. Kelly, Attorney
Ms. Sandy Heverly, Clark County MADD
Ms. Judy Jacoboni, Lyon County MADD
Ms. Laurel Stadler, Lyon County MADD
Following roll call, Chairman Sader opened the hearing on A.B. 47.
ASSEMBLY BILL NO. 47 Provides that driving while under influence of intoxicating liquor or controlled substance is punishable as felony if committed within 7 years after release from prison after serving any part of sentence imposed for certain offenses.
Chairman Sader noted the language in A.B. 47 was incorrect and referenced page 2, Section 1, Subsection 2, Line 11 which suggested any person who had been incarcerated for a felony offense would be treated as a third offense DUI (driving under the influence), provided they received a DUI within 7 years from their release from prison. According to Mr. Sader, this was not the intent of the bill. The intent of A.B. 47 was to address any person who had been incarcerated for a DUI felony, which resulted in death or substantial bodily harm, or was a third time DUI offender. An offender would receive a mandatory prison sentence under the two aforementioned offenses. Under this bill a DUI offense committed within the 7 year period following release from prison would be considered a third offense. In the consequence of a third DUI offense, it would become a felony charge, prosecuted as a felony conviction, and would require a mandatory minimum of one year in prison.
Judge Donald Gladstone, Sparks Municipal Court, explained the circumstances under which A.B. 47 came to attention. Judge Gladstone referenced an individual who had been convicted of several DUI charges, which occurred in 1983, 1984 and 1990. The offender was sentenced to the Nevada State Prison for one year and was released. In 1992 the same individual became intoxicated and had his twelve-year-old niece drive the car which was involved in an accident. The offender was arrested for intoxication with a blood alcohol content of .240. Technically, this arrest was this person's fourth DUI, but since it was 1992, the 1983 and 1984 DUI arrests were too old to be used for enhancement. This same individual was prosecuted as a second-time DUI offender, received a $500 fine, a $100 administrative fee, and was ordered to serve ten days in jail which was the minimal penalty under law. According to Judge Gladstone, it was incredulous a DUI offender had been convicted on a fourth DUI offense and received minimal penalties for a second DUI conviction, when the third DUI charge was a mandatory prison sentence as a felony. Judge Gladstone stated this was the loophole in the present law A.B. 47 would close.
Mr. Gibbons asked Judge Gladstone to explain to the committee what ex post facto implications would be evident on a prior felony conviction antecedent to the application or enactment of A.B. 47. Judge Gladstone explained, once the bill was passed, any DUI offender would be notified that any subsequent convictions would be considered as felony DUIs. Mr. Gibbons referenced the individual whose felony convictions had been antecedent to the date of the enactment of the bill. Would this be considered an enhancement for a subsequent conviction of a DUI offense? Judge Gladstone stated if the word enhancement was used, the answer would be yes. Once the bill was passed, the conviction for a felony DUI required an assessment of the offender. In the majority of cases, the District Attorney's Office would be able to show the offender was represented by counsel and the conviction was valid. According to Judge Gladstone, the fact the offender had been convicted and the judgment had been entered and not overturned was all the court would need to enhance the penalty for future DUI convictions.
Chairman Sader explained an ex post facto law as a statute making an act criminal with increasing penalties which was enacted after an offender committed a related crime. Where the ex post facto situation might apply in A.B. 47 would be where there might have been one or more DUI convictions already on record, then the penalties were increased for a third DUI offense. The antecedent would be the first and second offenses; the third DUI conviction would be the one prosecuted. The fact the conviction was predicated on prior convictions did not make this an ex post facto law.
Mr. Sader elaborated, when the DUI law was enacted in 1983, most prior offenses had not been considered as prior DUI arrests. New DUI records had to be established as the constitutional requirement for establishing the act had not been met, therefore, any prior DUI convictions could not be used for the enhancement.
Mr. Anderson asked why 7 years had been chosen as the determining factor. Mr. Sader noted in 1981 when the DUI law was passed, the time factor was mandated at 5 years. In 1983 the period was increased to 7 years as being a reasonable time to tie prior DUI offenses together.
Ms. Sandy Heverly, Clark County Mothers Against Drunk Driving (M.A.D.D.), testified in support of A.B. 47. Ms. Heverly stated continuing education in alcohol awareness would be the most beneficial.
Judy Jacoboni, President of M.A.D.D., Lyon County Chapter, testified in support of A.B. 47. Ms. Jacoboni stated DUI offenders should be made aware of the fact they face swift and certain punishment in regard to DUI offenses. As many as 80 to 90 percent of the drivers who received the first DUI conviction continued to drive without their license and continued to break the law. According to Ms. Jacoboni, the third time DUI offenders were a much smaller group. Studies had shown third time offenders were chronic alcoholics, almost incurable, who would continue to commit the crime of driving while intoxicated. In the interest of public safety, Ms. Jacoboni contended these individuals needed to be removed from society. Ms. Jacoboni felt they should not get out of paying for their crime because of a loophole in the law. In many instances, justice court judges heard cases which involved third and fourth DUI offenders who were charged with a misdemeanor charge because of the law as currently written.
Ms. Laurel Stadler, Lyon County M.A.D.D., testified in support of A.B. 47. Ms. Stadler addressed the 305 treatment program which was implemented within the Nevada State Prison system to enhance alcohol treatment for the DUI offender. The implementation of this bill would provide for a harsher offense if the offender had completed the treatment program and committed the act again.
Sheriff Paul B. McGrath, Carson City Sheriff's Department, representing the Nevada Sheriffs and Peace organization, testified in support of A.B. 47 as amended.
Lieutenant James Nadeau, Assistant Commander, Washoe County Sheriff's Office, Incline Substation testified in support of A.B. 47 as amended.
Captain Randy Oakes, Las Vegas Metropolitan Police Department voiced his concern in reference to the language contained in A.B. 47 prior to the amendment. Captain Oakes supported the bill as amended.
Having no further testimony, that came before the committee, Chairman Sader closed the hearing on A.B. 47.
ASSEMBLY BILL NO. 56 Increases penalty, under certain circumstances, for failing or refusing to stop vehicle when signaled by peace officer.
Captain Randy Oaks, Las Vegas Metropolitan Police Department, noted A.B. 56 was requested by the Assistant Sheriff of Line Operations at the Las Vegas Metropolitan Police Department. The bill responded to the serious nature of police pursuits and the inherent danger involved. Captain Oakes felt this issue was important enough, as a public policy of the state, to send the message out to the general public that running from and alluding police was a serious matter.
Captain Oaks noted A.B. 56, Section 1, line 6 upgraded the penalty for eluding an officer from a misdemeanor offense to a gross misdemeanor offense. Another enhancement under lines 11, 12 and 13 of the bill addressed substantial bodily harm but excluded the circumstances contained under the Nevada Revised Statute (NRS) 484.377, the reckless driving statute. The reckless driving statute stated, if in the course of reckless driving, one caused another substantial bodily harm, it would be classified as a felony. Since 98 percent of police pursuits ended in serious bodily injury, reckless driving was charged, therefore, the classification under A.B. 56 should be consistent with the reckless driving statute classification.
Mr. Bonaventura used the scenario in which a vehicle did not pull over after a responding police unit had signaled the driver to stop because the driver was listening to his auto stereo and was oblivious to the sirens. Captain Oaks noted the key words used on the arrest report in this case would be willfully and refused. In the scenario, the driver did not notice or hear the officer trying to stop the driver which was not willful or refusal.
Mr. Toomin addressed the fact, if passed, A.B. 56 might become a burden to the taxpayer in that cases might be required to be heard in District Court. In the event of passage of A.B. 56, Captain Oaks stated, a preliminary hearing at the Justice Court level would be made to ensure there was probable cause to proceed to District Court. He added reckless driving was handled by the courts as a misdemeanor charge unless substantial bodily harm was involved, at which time it became a felony offense.
Mr. Collins understood the intent of the bill would be to equate the charges in A.B. 56 to those under the reckless driving statute, i.e. misdemeanor, gross misdemeanor and felony. Captain Oaks stated no misdemeanor provision was contained in A.B. 56 which pertained to eluding. Mr. Collins asked if the phrase "with bodily harm" was addressed in the bill, would the offense then become a felony charge. Captain Oaks responded affirmatively. At the present time, eluding an officer was only a misdemeanor charge, but A.B. 56, Section 1, line 6, wherein the word "gross" had been inserted provided that eluding an officer would be handled as a gross misdemeanor. A.B. 56, when utilized, would contain harsher implications than a reckless driving charge.
Mr. Carpenter asked what would be accomplished by raising the level of the charge. Captain Oaks explained, as A.B. 56 was currently written, the driver who attempted to elude a responding police unit had little to lose as the charge was only a misdemeanor, whereas, if the offense was a gross misdemeanor, a one-year jail sentence could be feasible. The intent would be to publicize the results of A.B. 56 and send the message out to the public not to run from the police.
Mr. Regan asked what the average annual incidence of police pursuits would be in Nevada. Captain Oaks responded in 1992, during a six-month period, 81 police pursuits had been recorded.
Ms. Smith alluded to the fact A.B. 56 would not affect those individuals who had already committed a felony. Ms. Smith surmised A.B. 56 dealt more with safety aspects for both police officers and the general public.
Sheriff Paul McGrath, supported the concept of A.B. 56 but had reservations concerning a statewide application. He suggested reviewing the type of crime committed before the pursuit began, ascertaining whether the crime was a misdemeanor, gross misdemeanor or felony charge. Sheriff McGrath understood the problems facing the southern portion of the state, but felt the statewide impact of this bill would cause problems.
Mr. Noel S. Waters, Carson City District Attorney, stated he supported the concept of A.B. 56 and the intent which appeared to set policy to deter certain types of conduct. Mr. Waters had some concern as to the utility of making it a gross misdemeanor to elude a police officer. He suggested providing a minimal mandatory sentence for a misdemeanor which would carry the current six-month maximum sentence and the $1,000 fine. According to Mr. Waters, by providing a minimal mandatory sentence under a misdemeanor scheme, more would be accomplished than by providing for a gross misdemeanor offense.
Mr. Waters supported what the Las Vegas Metropolitan Police Department wanted to do under this bill as it was necessary to look for ways to deter this kind of conduct which involved great risk and harm to other people. However, Mr. Waters did not feel A.B. 56, as it stood, was feasible. If A.B. 56 was amended to provide for a minimal 10 day sentence upon conviction for eluding, and to provide a felony charge for one who caused substantial bodily harm, Mr. Waters felt more could be accomplished. This could be done without the fiscal resources for preliminary hearings, District Court arraignments, the increased hours for public defenders, and the added expense for prosecutors which would entail presentence reports and investigations by the Department of Parole and Probation.
Chairman Sader clarified gross misdemeanor charges were prosecuted through the District Court which was more expensive and contained more guarantees for the defendant due to the seriousness of the crime. A misdemeanor, according to Mr. Sader, was prosecuted through either Municipal Court or Justice Court wherein the City Attorney handled the case.
Mr. Ben Graham, Legislative Representative for Clark County District Attorney's Office, stated he had some concern in reference to issues in A.B. 56 although he was sympathetic with the needs of the Las Vegas Metropolitan Police Department. Under A.B. 56, not only would there be a review by the courts, but a review by the District Attorney's Office as well. Mr. Porter concurred with Mr. Graham and stated the necessity to plead the case appropriately to avoid future problems.
Mr. Porter brought to the attention of the committee A.B. 56, Section 2, line 14 which dealt with Nevada Revised Statute 484.377, the reckless driving statute. Subsection 2 made it a felony offense in the event substantial bodily harm was done to any person other than the offender. Mr. Graham noted that should a driver run into a telephone pole, this would still be construed as a misdemeanor charge because there was only substantial bodily harm done to the driver.
According to Mr. Porter, in the case of the driver who ran into a telephone pole the district attorney would be the wiser to plead the felony in the presence of the police as it would be easier to prove. Mr. Porter was concerned with the language needed to reconcile the two different sections. Mr. Graham admitted A.B. 56 had not been reviewed from the standpoint of the opposition or support. The District Attorney's Office would be willing to work with the Las Vegas Metropolitan Police Department and the subcommittee to apply the appropriate language to the bill.
Mr. Carpenter addressed Mr. Noel Waters, Carson City District Attorney, and asked if he would prosecute a young offender, over the age of 18, who eluded police and was a first time offender, as a gross misdemeanor case. Mr. Waters responded, if A.B. 56 was enacted as written, the case would probably be negotiated to a misdemeanor category including some jail time.
Mr. Kevin M. Kelly, representing the Nevada Attorney's for Criminal Justice and the Nevada Trial Lawyer's Association, testified in opposition to A.B. 56. According to Mr. Kelly, cases were pending completion in the federal court in Las Vegas which involved alleged gang activities, etc., and almost every defendant in the specific cases reviewed had a multitude of traffic-related offenses. He stated as the bill was written, arbitrary discretion by the individual officer could be evident and the means by which an individual could be subjected to discriminatory applications existed. The concern was when would the application of the statute have serious consequences.
Mr. Kelly noted the fiscal impact of A.B. 56 needed to be considered. Every gross misdemeanor offense went to Justice Court with a preliminary hearing. Most of the individuals would not be able to afford an attorney. If the individuals were to maintain their innocence, they would have a preliminary hearing, be bound over to district court for a jury trial, and the continuation of the appointed counsel would ensue. Mr. Kelly stated the impact of a misdemeanor was underestimated. The responsibility of the Judiciary Committee was to direct the judges to start imposing the 6-month sentences and the $1,000 fines. Mr. Kelly cited several alternatives to enhance public awareness of the consequences of eluding police officers. He did not feel it was necessary to increase the penalty and asked the committee not to pass A.B. 56.
Mr. Sader directed Mr. Kelly's attention to the felony provision in A.B. 56 which applied when substantial bodily harm or death was involved. In that circumstance, under NRS 484.377, one was driving recklessly with gross disregard for the safety of others, which already was a felony. Under NRS 484.348 if one evaded the police, which could be construed as prima facia being reckless and gross disregard, it was not a felony, it was a gross misdemeanor. Mr. Sader asked Mr. Kelly if it was a good public policy to have differing standards in those circumstances. Mr. Kelly stated no.
In answer to Mr. Toomin's question, Mr. Kelly replied if a person intentionally evaded the pursuit of an officer for a substantial amount of time and the chase involved the use of several units and air patrol, it was a clear indication the individual should go to jail.
Mr. Sader explained the committee would have to decide, under the confines of the power available, the severity and range of sentences. Only in rare cases did the Judiciary committee mandate jail time which would be under the discretion of the judges. Mr. Sader suspected the prosecutor and the law enforcement individuals who had influence on the prosecutor were pushing for jail time.
There being no further testimony, Chairman Sader closed discussion on A.B. 56.
ASSEMBLY BILL NO. 88 Revises provisions governing parking or standing of emergency vehicles and official vehicles of regulatory agencies.
Captain Randy Oaks, representing Las Vegas Metropolitan Police Department, testified in favor of A.B. 88. He noted this bill was less controversial and involved a simpler issue which entailed the removal of an antiquated provision of an existing statute and expanded the exemption for emergency vehicles, not only in the Nevada Revised Statutes (NRS) but also in the local ordinance. NRS 484.261 provided officers the right to park without regard to provisions of any parking regulations set in place by the statute. However, this did not supersede city and county ordinances which had been enacted. Problems arose with municipal parking enforcement citing police units parked on official business. Captain Oaks clarified A.B. 88 addressed when an emergency vehicle was on official business, the vehicle could park without regard to parking control devices.
According to Captain Oaks, in A.B. 88, Section 1, lines 20 and 21, the old language of the statute indicated the driver of an official vehicle could park in restricted areas provided a warning lamp was used. Captain Oaks thought this was inappropriate inasmuch as an official vehicle parked in a red zone should not need a warning lamp to be illuminated while an officer was conducting official business. In many instances, the unit might be parked for a substantial period of time, during which time the warning lamp was disregarded anyway. Therefore, it was felt this language should be stricken from the statute.
Chairman Sader clarified A.B. 88 would change the requirement of a warning lamp while a vehicle on official business was parked in violation of the traffic code and would expand the language to exclude local enacted ordinances, as well as state law. Captain Oaks confirmed Chairman Sader's clarification.
Mr. Carpenter asked what specific zones would be considered. Captain Oaks responded by stating the bill referred to any ordinance that controlled parking within a local jurisdiction. Department policy stated responding police units could not park in red zones or handicapped zones unless the situation was a bona fide emergency, such as a crime in progress.
Mr. Carpenter felt the omission of the warning light provision would place the law enforcement entities under scrutiny. Captain Oaks stated, under current language, the provision of the warning lamp contemplated the officer parking in a travel lane. Civil liability came into play under these circumstances. and a statute was not required to adhere to this. Captain Oakes noted if a police unit was parked in a travel lane and struck, the police department would be liable. Under those conditions in which a police unit would present a hazard to the motoring public, warning devices would be erected to ensure public safety. In the instance where a vehicle was legally parked, out of a travel lane but in violation of a time limitation, there was no hazard presented to the public and a lamp should not be required, according to Captain Oaks. In the event this situation was abused by officers, he confirmed it would become a bad public relations issue which was a primary concern.
Mr. Carpenter asked by placing this matter in statute, would disciplinary issues be more difficult to deal with. Captain Oaks responded negatively and added departmental policy was stricter than law allowed. No statute existed which outlined pursuit policy, whereas department policy restricted such actions. Because a particular action was permissible by law did not mean the agency was constrained from enacting a regulation against it.
Mr. Regan referenced A.B. 88, page 1, Section 1, line 2 the phrase "or an official vehicle of regulatory agency." He asked if this would cover the PSC vehicles, Taxicab Authority, Gaming and Ex plate vehicles. Mr. Sader responded by stating the statute covered all regulatory agencies. Under the present statute, the vehicles noted would be excluded because they did not have warning lamps.
Captain Frank Barker, Bureau Commander, Las Vegas Metropolitan Police Department, responded to the regulations which pertained to police officers who parked official units in handicapped parking zones. He stated the least of the punishment would be to pay the fine. Agency policy prohibited officers from parking in red or handicapped parking zones. The issues of pertinent concern would be individuals on official business, such as officers making court appearances, investigations, etc. where controlled parking was apparent.
As the Bureau Commander, traffic citations were presented to Captain Barker along with a written report. The offending officer was required to submit a case report with an explanation as to why the officer parked in the undesignated parking zone, along with a case referral number to cross reference the emergency call. In all cases, the officers must be on official business. In Captain Barker's bureau, approximately 30 to 40 citations per month had been issued to vehicles on official business in the downtown area of Las Vegas. Captain Barker stated he spent an inordinate amount of time on written correspondence to the appropriate authorities to explain reasons for police units parking in undesignated parking areas; letters were not written in the case of red zones and handicapped zones. In most cases, the responding agencies dropped charges.
Mr. Sader asked, in the instance where the police officer was guilty of parking in a non-designated parking zone and paid the parking citation, what was the problem. Captain Barker responded by stating the issue under A.B. 88 was more a common sense approach in that if the citations were not issued in the first place, time consumed in tracking the driver of the official vehicles and bureau commander time would not be used in responding to the citations.
There being no further business to come before the committee, the hearing was closed on A.B. 88.
ASSEMBLY BILL NO. 92 Increases maximum penalty for conviction of driving under influence of intoxicating liquor or controlled substance if second offense within 7 years.
Chairman Sader reopened the hearing and read correspondence from Judge Joseph T. Bonaventure, Eighth Judicial District Court, Department VI, Las Vegas, Nevada (Exhibit C). The correspondence was in reference to A.B. 56 and A.B. 92. The correspondence dated February 2, 1993, was read into the record as follows: "Dear Committee: It is my understanding that the above bills are on calendar tomorrow (referenced February 5, 1993). Please be advised that I, as a District Court Judge have serious reservations about these bills. For one they would require a Jury Trial be given with serious financial impact of the taxpayer. I have asked Chief Judge Nancy Becker to put this on our meeting agenda for a consensus opinion and I would ask you continue this matter, preferably in Las Vegas. Sincerely, (signed) Judge Joseph T. Bonaventure, District Court, Department VI."
Chairman Sader noted he would consider the continuance and added the committee was not generally inclined to adhere to the request unless a good reason to do so was apparent.
Chairman Sader summarized A.B. 92 and added it increased the penalty from a misdemeanor to a gross misdemeanor. The prime sponsor of the bill was Assemblyman Myrna Williams.
Assemblyman Williams cited miscommunication in that she had not been notified A.B. 92 would be heard on this date. A.B. 92 was the result of meetings with families of murdered victims in Las Vegas. During the course of conversation with those families who had lost family members as the result of a DUI, it was noted these incidents were not the perpetrator's first DUI offenses. It was Ms. Williams intent to make the streets safer by stiffening the DUI penalties. Mr. Sader interjected and noted the intent of Ms. William's bill was clear for increasing the penalty for a second DUI offense. Assemblyman Williams assumed should A.B. 92 pass, a fiscal note would be in order.
Ms. Sandy Heverly, Clark County Mother's Against Drunk Driving (M.A.D.D.), testified in favor of A.B. 92. During her 10 years of experience with M.A.D.D., Ms. Heverly had worked with DUI legislation throughout the country. Nevada had some of the toughest DUI laws in the nation. The problem was these laws were not utilized.
It was Ms. Heverly's suggestion rather than increase the second DUI offense to a gross misdemeanor, the same results would be accomplished by increasing the minimum penalties already in effect on the first and second DUI offense. Ms. Heverly suggested the penalty for the first DUI offense be raised from the minimum 2 days to 10 days. She suggested the community service hours be raised from 48 hours to 240 hours, and the $200 minimum fine be raised to $500. The second offense would be raised from the mandatory 10 days in jail to 60 days in jail, with a fine of a flat $1,000 on a second DUI offense. Ms. Heverly suggested the bill add 300 hours of community service. Long-term treatment should become mandatory.
According to Ms. Heverly, under A.B. 92, in a second DUI conviction, a $500 fine was levied, the driving license was revoked for one year, and a minimum of 10 days was ordered served in jail, often accomplished on weekends. Ms. Heverly felt the penalties were minor compared to the offense. She suggested utilizing what latitude was currently available without burdening the courts further in terms of having to take cases to district court levels. Ms. Heverly voiced gratitude to the legislators who signed in favor of passing A.B. 92 and to Assemblyman Williams for attempting to alleviate DUI problems. Ms. Heverly reiterated her stance and stated the same results could be achieved without increasing the penalty from a misdemeanor to a gross misdemeanor.
Judy Jacoboni, Lyon County M.A.D.D. testified in support of A.B. 92. Laurel Stadler, Lyon County M.A.D.D. was in agreement with the testimony given by Ms. Heverly. She noted cases where the greater extent of the law had been executed which had helped families.
Mr. Noel Waters testified on behalf of the District Attorney's Association against A.B. 92 although he sympathized with the intent of the bill. Mr. Waters concern was if A.B. 92 would do what it was intended to do as far as discouraging second offense DUI offenders. In light of the benefits derived, what costs would be the incurred. In 1992 approximately 150 second-offense DUI cases were prosecuted in Carson City, Nevada. The total DUI arrests in Carson City for the same year were 550. Carson City represented approximately 4 percent of the state's population. Statewide there was an estimation of 3,700 DUI cases.
Mr. Waters stated the main purpose of A.B. 92 was to discourage the repeated actions of the DUI offender. The fiscal expenditures involved were staggering and might best be directed toward prevention and rehabilitation programs. 75 percent of the police reports involved substance abuses ranging from possession of illegal substances to stealing to support an addiction, writing bad checks, domestic violence, etc. Substance abuse was believed to be the underlying problem with crime in the state. Mr. Waters felt education, prevention and rehabilitation programs would address these problems.
According to Mr. Waters, the amendment presented by Ms. Heverly addressed some of the fiscal concerns of A.B. 92 although the first offense DUI entailed 10 days and community service of up to 240 hours which would be a fiscal expense to the counties. The cost of incarceration in Carson City was $50 per day. 240 hours of community service would involve working around someone's job. Likewise, a second offense DUI had the same fiscal impact in the size of the jail population.
A concern Mr. Waters pointed out in reference to a proposed 60- day jail sentence for a second offense DUI was it was approximately 2 days less than the average felony offender received. 60 days of county time for a second DUI offense versus 62 days incarceration for a felony third DUI offense might present a problem in making the punishment fit the crime.
Mr. Bonaventura had spoken previously with several district court judges in regard to the fiscal implications of A.B. 92. Should the bill pass it was estimated the cost would be approximately $6 million.
Mr. Carpenter addressed Mr. Waters and asked if a judge could sentence an offender to house arrest in lieu of a prison sentence. Mr. Waters understood this to be possible as per the amendment to NRS 484.379 (4). Frequently, house arrest was used by the Department of Parole and Probation.
Mr. Carpenter asked what the prospects were of house arrest in lieu of going to jail. Mr. Waters explained the process in Carson City for a second offense DUI offender. First there was the notice of election program for an individual who elected to pursue that route. This provided an incentive to undergo treatment, a reduction in the jail sentence, a reduction in the fine, and payment of the treatment program at their own expense. Beyond that, Carson City had the second offender program which meant anyone found guilty of second offense DUI had a minimum 10 days in jail imposed; in this case, rarely was community service granted for second offenders. An additional 50 days was suspended; in other words, the offender was given a 60 day sentence with a suspension for a period of one year, with the condition they serve 10 days in jail which is the statutory minimum. The second DUI offender was required to undergo counseling, or attend Second Offender Awareness Program, which was an intensive type DUI school for rehabilitation. Mr. Waters stated until the underlying problems of DUI are dealt with, the problems would not improve.
Mr. Petrak felt without the passage of A.B. 92 the costs involved would entail the maiming and taking of lives of innocent victims by DUI offenders. Mr. Petrak was adamantly in favor of the passage of this bill.
Mr. Waters was in agreement with Mr. Petrak's principles but pointed out A.B. 92 did not have anything to do with the provisions that called for mandatory felony imprisonment for DUI causing substantial bodily harm or death.
Mr. Kevin Kelly appeared on behalf of the Nevada Attorney's for Criminal Justice and the Nevada Trial Lawyer's Association. He entered opposition to A.B. 92 as written because the fiscal impact of the bill would adversely affect the Public Defender's Office, specifically in Clark County.
According to Mr. Kelly, there was no flexibility in addressing the DUI problems in the state. The focus on A.B. 92 should not be to increase the penalties which would have a disastrous financial effect on Clark County. Mr. Kelly suggested an additional bill that would provide flexibility for funding for education and treatment which A.B. 92 did not provide.
Mr. Phillip Ulibarri, Program Coordinator for the Washoe County District Health Department, Alcohol and Drug Abuse Education Program for Youth, urged passage of any amendment that would enhance DUI legislation and serve as a deterrent to impaired drivers. In 1992, 65 percent of the injuries or fatality accidents in Reno involved alcohol use. Whereas passage of amendments to NRS 484.3792 would not guarantee alcohol related accidents would be eliminated, actions to increase the maximum penalties for the second time DUI offender, and subsequent increased penalties levied by district court judges, would serve to inform DUI offenders impaired driving would not be tolerated in the State of Nevada. According to recent statistics from the National Safety Council and the National Highway Traffic and Safety Administration, Nevada was listed as number one on the list of states for alcohol fatalities per mile driven. Mr. Ulibarri urged action on A.B. 92.
Mr. Ulibarri, felt both the drug and alcohol education and state statute issues were of equal importance but noted substance abuse education took precedence.
There being no further testimony, Chairman Sader closed the hearing on A.B. 92.
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Chairman Sader noted the bulk of the testimony on A.B. 56 revolved around opposition to the gross misdemeanor concept. Mr. Sader referenced Mr. Porter's testimony in which disparity existed between the two provisions in A.B. 56. The dissimilarity was noted at the end of page 1 and beginning of page 2 of Section 2, and alluded to the reckless disregard for safety, already a felony, when it caused death or substantial bodily harm to anyone other than the driver. The first section alluded to the situation where an offender evaded a police officer and caused death or substantial bodily harm. Mr. Sader stated the question under scrutiny would be whether injury to oneself was a sufficient enough penalty or whether a felony charge was helpful to society.
Mr. Sader recommended adjustment to A.B. 56, Section 1, line 6, to delete the phrase "gross misdemeanor" and retain it as a simple misdemeanor charge to evade a police officer unless substantial bodily harm or death was caused, in which case it would be a felony. He also suggested deleting the phrase "gross misdemeanor" and make it a felony charge in lines 11 through 13 which would remain as written. Mr. Sader suggested an additional amendment to add to the existing language in A.B. 56, on line 11 which would read, "the death of or substantial bodily harm to any person other than himself." He suggested retaining the language "that it be a felony."
ASSEMBLYMAN SCHERER MADE A MOTION TO AMEND AND DO PASS A.B. 56.
ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.
Mr. Collins argued provisions in the law already existed and A.B. 56 did not need to be enhanced. No further comments were presented on A.B. 56.
THE MOTION CARRIED. (MR. COLLINS VOTED IN OPPOSITION)
Mr. Schneider was assigned to handle the floor statement on A.B. 56 on general file.
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Ms. Smith suggested A.B. 88, page 1, Section 1, line 2 and lines 19 and 20, deleting the term "or an official vehicle of a regulatory agency."
ASSEMBLYMAN SMITH MADE A MOTION TO AMEND A.B. 88.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
Chairman Sader stated if A.B. 88 was amended in that fashion, it should be reheard in consideration of the affected regulatory agencies allowing them the opportunity to testify.
Mr. Sader asked if Ms. Smith intended to bracket the language in A.B. 88, page 1, Section 1, lines 2 and 3 which dealt with the response to emergencies, fire alarms, etc. It was Ms. Smith's intent to amend the bill in such a way as to allow police vehicles to park in undesignated areas but disallow other unauthorized vehicles. Mr. Sader clarified by stating the intent was to include standing and parking only, as referenced in lines 19 and 20, excluding lines 2 and 3.
Chairman Sader declared the motion on A.B. 88, page 1, Section 1, Subsection 3, lines 19 and 20, was to delete the phrase "or an official vehicle of a regulatory agency."
Further discussion on the motion ensued. Mr. Anderson said he would vote against the amendment due to the fact there are many regulatory agencies that respond to emergency situations and park in travel lanes. Mr. Anderson felt the proposed amendment to A.B. 88 would be harmful. Ms. Smith asked if the hazardous waste materials vehicles would be subject to citation in these instances with the warning lights on. According to Mr. Sader, with the amendment to A.B. 88 as it was presented, the hazardous waste vehicles would not be authorized to park in undesignated areas whether the warning lights were on or not. Ms. Smith stressed any vehicle with a warning light should be able to park in undesignated spaces; only vehicles without warning lights should not be authorized.
Mr. Sader clarified the intent of Ms. Smith's amendment to A.B. 88 was to permit regulatory vehicles to park in otherwise illegal areas, provided a warning light was used, and allow authorized emergency vehicles to park in unauthorized areas with or without a warning light. Ms. Smith confirmed the recap of the amendment.
If the current motion on A.B. 88 passed, it was Chairman Sader's intent to amend the bill on the Assembly Floor and then bring A.B.88 back to the Judiciary Committee for a subsequent hearing.
Mr. Sader expressed his opposition to A.B. 88. He preferred to nullify the bill as it was not well justified, in his opinion. According to Mr. Sader, amending A.B. 88 to create different categories was confusing and would cause problems. Representatives of regulatory agencies would testify against it and a substantial amount of time would be expended.
Referencing Captain Barker's necessity to justify police officers parking in unauthorized spaces, Mr. Sader felt the citations were a means utilized to identify those officers who repeatedly parked in unauthorized areas. Mr. Sader agreed police officers should be ticketed for parking in the unauthorized parking areas and should pay the citations. According to Mr. Sader, it was the better choice Captain Barker continue to write the justification letters to the ticketing agencies than to grant the police the discretion to park wherever they desired at any time.
Ms. Smith withdrew her motion on A.B. 88. Mr. Collins would not withdraw his second. A roll call vote was conducted.
THE MOTION TO AMEND A.B. 88 FAILED. (ASSEMBLYMEN PORTER, COLLINS AND SMITH VOTED YES. ALL OTHERS PRESENT VOTED NO)
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ASSEMBLYMAN CARPENTER MADE A MOTION TO INDEFINITELY POSTPONE A.B. 88.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION TO INDEFINITELY POSTPONE A.B. 88 PASSED. (ASSEMBLYMEN SCHERER, COLLINS, AND PORTER VOTED AGAINST. ALL OTHERS PRESENT VOTED IN FAVOR.)
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ASSEMBLYMAN BONAVENTURA MADE A MOTION TO INDEFINITELY POSTPONE A.B. 92.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
Mr. Carpenter asked if A.B. 490 of the previous session would bring the related issue before the committee again. Mr. Sader confirmed. Mr. Carpenter pointed out when offenders were incarcerated the necessity of retained employment and continued support of the family was aggravated. Mr. Carpenter felt the issues necessitated additional study.
Mr. Scherer supported increase in the mandatory minimal penalties, although he surmised 60 days would be excessive. Mr. Scherer stated he would vote against the motion on A.B. 92 to see if there would be a change in an increase in the mandatory minimum penalties.
Mr. Porter stated he was in opposition to indefinitely postponing A.B. 92 for one particular reason. If A.B. 92 was retained, it would be Mr. Porter's intention to move to amend the bill and integrate A.B. 47 into A.B. 92. This action would be considered for the benefit of the various sponsors of A.B. 92 as it was the prime sponsor's intent to strengthen the penalties for DUI. A.B. 47 would be a tremendous strengthening of the current DUI situation in the state. Mr. Porter stressed he would vote against the present motion and attempt to make a motion to amend.
Chairman Sader explained the process in which one bill would be gutted and another bill inserted into it. In this case, he contended, the bill would be supported by the sponsors to strengthen the DUI laws.
Mr. Petrak voiced concern as to what percentage of convicted DUI offenders actually served the full 60-day penalty. Answer to this query was not available. It was imperative to Mr. Petrak the message of adherence to full incarceration time be sent to the courts and the justice system.
Mr. Sader asked Mr. Bonaventura if he would support infusing the text of A.B. 47 into A.B. 92 which would have the effect of eliminating A.B. 92. Mr. Bonaventura supported the intent.
Mr. Collins, who seconded the motion on A.B. 92, contended the intent of A.B. 92 was to change the misdemeanor category to gross misdemeanor. Mr. Collins conceded to Mr. Bonaventura's withdrawal of the motion on A.B. 92.
Chairman Sader declared the motion on A.B. 92 was withdrawn as was the second to the motion.
Mr. Porter made a motion to amend and do pass A.B. 92. The amendment to A.B. 92 would retain the language as stated in its entirety, and lines 1 through 18, would be replaced by the language in A.B. 47. The motion would include the changes discussed in reference to A.B. 47 on page 2, Section 1, lines 9 through 13.
Chairman Sader reiterated the proposed amendment to A.B. 92. The changes would be made to clarify the felony provision referenced on line 11, which was a DUI felony, on a third offense or when substantial bodily injury or death occurred. Mr. Porter confirmed the statement of clarification.
ASSEMBLYMAN PORTER MOVED TO AMEND AND DO PASS A.B. 92.
ASSEMBLYMAN TOOMIN SECONDED THE MOTION.
Due to the circumstances involved, Chairman Sader opened discussion on A.B. 47 as the committee was, in effect, passing A.B. 47 should the motion pass.
Mr. Bonaventura requested reclarification of the amendment on A.B. 92. Mr. Porter explained he would not support A.B. 92 as it was written; however, it was his intent to amend A.B. 92 by inserting the text of A.B. 47 into A.B. 92. According to Mr. Porter, A.B. 92 would become an amended version which would read similar to A.B. 47.
Mr. Toomin asked if the action taken would satisfy the representatives of the organization Mothers Against Drunk Drivers. Chairman Sader addressed the representatives of M.A.D.D. in the audience. As Chairman Sader understood, the M.A.D.D. representatives wanted an increase in the mandatory minimum penalties. At the same time M.A.D.D. testimony was in opposition of the passage of A.B. 92 and in favor of A.B. 47.
Sandy Heverly, M.A.D.D. advocate, affirmed the clarification statement made by Chairman Sader. Mr. Sader asked, if A.B. 47 would pass as amended, would the representatives of M.A.D.D. support the action? Sandy Heverly, M.A.D.D. advocate, responded from the audience and concurred with Chairman Sader's clarification provided the amendment presented to the committee contained the provisions suggested by the M.A.D.D. proponents.
Ms. Heverly asked if the suggested amendments presented by M.A.D.D. supporters would be taken into consideration. Chairman Sader responded and said the suggested provisions would not be contained in A.B. 92 but could be inserted into another bill. Ms. Heverly said M.A.D.D. would support the reintroduction of the same language under a separate bill.
Ms. Heverly voiced her concern as to what would be required to initiate consideration of the M.A.D.D. propositions and have them included in the bill discussed. Mr. Sader responded by saying the additional amendments would have to be made. Chairman Sader would want to rehear the bill and consider testimonies as concerned parties had not had notice of the amendment which would fundamentally change the bill.
Chairman Sader made a recommendation to pass A.B. 92 with the amendment proposed by Mr. Porter as the probability of passage in both legislative branches was good. Otherwise, the suggestion made to increase the mandatory minimum penalties would draw significant controversy which may or may not contribute to the passage of the bill. Chairman Sader continued, if A.B. 92 was to be amended to include the concept, there would be a chance both bills would not pass.
Ms. Heverly asked from the audience if M.A.D.D. representatives would have time to introduce a separate bill. Mr. Sader responded positively. Ms. Heverly stated the move to amend A.B. 92 would be satisfactory to the representatives of M.A.D.D.
Mr. Collins asked, in the event A.B. 92 passed, if an individual in the state of Nevada served a one-year sentence on a felony conviction for a third DUI, and 5 or 6 years later the same individual was convicted again for a DUI, would this be considered a felony charge? Chairman Sader confirmed it would be a felony charge.
Mr. Collins asked if this provision was consistent with other statutes. Mr. Sader responded by saying most other statutes did not have those enhancements which were based on length of time, such as specifications on second offenses within a specified period of time.
Mr. Collins asked if state statutes contained other misdemeanors which stated after three convictions, the crime automatically became a felony charge. Mr. Sader stated this situation was unique. Mr. Waters, Carson City Attorney General, added provisions did exist in the convictions of petty larceny misdemeanors, bad checks, and embezzlement. NRS Chapter 205 provided for felony enhancement on repeated offenders.
No further discussion was presented on A.B. 92.
The motion on the floor was to amend by inserting the amended text of A.B. 47 into A.B. 92 and do pass.
THE MOTION CARRIED. (ASSEMBLYMAN COLLINS OPPOSED, ALL OTHERS PRESENT VOTED IN FAVOR)
Mr. Anderson proposed a committee introduction to change the first and second offense DUI statutes to increase the minimum penalties. This would include the first, second and third offense as stated by the M.A.D.D. organization proponents.
ASSEMBLYMAN ANDERSON MADE A MOTION FOR A BILL DRAFT REQUEST.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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ASSEMBLYMAN CARPENTER MADE A MOTION TO DRAFT A.B. 490,
DELETING THE LANGUAGE DISCUSSED.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman Sader presented a request for a Bill Draft Request from the Washoe County District Attorney. This would address the issue as to whether a district attorney in the state of Nevada could hire a special prosecutor to prosecute crimes under certain circumstances if the special prosecutor had any criminal defense practice.
ASSEMBLYMAN REGAN MADE A MOTION FOR A BILL DRAFT REQUEST.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Mr. Sader stated the trial lawyers traditionally requested a number of bills relating to criminal justice be drafted and asked for committee consideration of one such request.
ASSEMBLYMAN TOOMIN MADE A MOTION FOR SUCH A BILL DRAFT REQUEST.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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The committee completed unfinished business regarding the field tours to be conducted in Las Vegas.
There being no further business to come before the committee, the meeting adjourned at 10:55 a.m.
RESPECTFULLY SUBMITTED:
JESSIE A. CAPLE
Committee Secretary
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Assembly Committee on Judiciary
February 3, 1993
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