MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 11, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:06, February 11, 1993 in Room 105/106 at Cashman Field Center in Las Vegas, 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:
Mr. Wendell P. Williams, Assembly District 6
STAFF MEMBERS PRESENT:
None
OTHERS PRESENT:
Mr. David F. Sarnowski, Chief, Nevada Attorney General's Office, Criminal Justice Division
Mr. Vic Schulze, Esmeralda County District Attorney
Mr. Michael Sheldon, Director, City of Las Vegas, Department of Detention and Enforcement
Captain Randy Oakes, Legislative Liaison, Las Vegas Metropolitan Police Department
Detective Gordon Martines, Las Vegas Metropolitan Police
Department, Traffic Investigations Section
Lieutenant Jim Nadeau, Washoe County Sheriff's Office
Mr. Douglas L. Dickerson, Legislative Lobbyist, City of Las Vegas
Mr. Ben Graham, Legislative Representative, Nevada District Attorney's Association
Mr. Tom F. Pitaro, NACJ
Ms. Patricia Justice, NACJ
Ms. Victoria D. Riley, NTLA
Ms. Bobbie Gang, Nevada Women's Lobby
Ms. Florence McClure, CAAR
Mr. Willard Sharp, Nevada Dog Fanciers Association
Mr. Clark A. Hazlett, Great Dane Club of Las Vegas, Silver State Kennel Club
Ms. Bonnie Den Dooven, Pet Industry Joint Advisory Council
Mr. Tom Bentz, Nevada Alliance for Responsible Animal Use
Ms. Lucille Lusk, NCCC
Following the roll call, Chairman Sader opened the meeting on A.B. 49.
ASSEMBLY BILL NO 49. Requires judgments of conviction and imprisonment to include term of imprisonment and amount and terms of any fine, restitution or administrative assessment.
Mr. David F. Sarnowski, Chief, Nevada Attorney General's Office, Criminal Justice Division, stated A.B. 49 was introduced at the request of the Attorney General's Office. The purpose of A.B. 49 would be to enact technical amendments to the Nevada Revised Statute (NRS), Section 176.105 and Section 176.325. The bill would address which items would be included in the judgment of conviction by a sentencing court. The proposal would require the courts to specifically state any additions to the sentences, such as any terms of imprisonment, the amounts in terms of any fines, restitutions or administrative assessments.
According to Mr. Sarnowski, inconsistencies existed in the judgments submitted to clients, i.e. the Department of Prisons, and/or the Department of Parole and Probation, where persons were levied terms and those terms were later suspended. A.B. 49 would require the items be specifically set forth in the judgments. From the beginning of the commitments and sentences, the agencies which administered the convicted persons would know the situations and what needed to be collected.
Mr. Sader noted the discrepancy in courts requiring the information. Mr. Sarnowski added, with respect to fines and restitutions, the prison terms and administrative assessment fees were routinely included in the judgments because requirements in gross misdemeanor and felony cases stipulated that fees be imposed. Mr. Sarnowski noted variations existed with respect to fines and restitutions. In the Department of Prisons, the department must expend efforts to collect on behalf of the persons owed the restitutions. Where the fines were imposed, the monies should be remitted back to the governmental agencies entitled to the fine collections. Mr. Sader pointed out prison authorities could not administer fines or restitutions if no one was aware of them. Mr. Sarnowski confirmed this statement.
There being no further testimony presented on A.B. 49, Chairman Sader closed the hearing.
ASSEMBLY BILL NO 67. Authorizes city or county to designate parking enforcement officers to prepare, sign and service citations for violations of parking ordinances.
Mr. Douglas Dickerson, representing the City of Las Vegas, testified in favor of A.B 67. He asked that parking enforcement officers be added to NRS 171 which would allow them to prepare signs and serve citations.
Mr. Michael Sheldon, Director, Department of Detention and Enforcement, Division of Parking Enforcement, stated the purpose for requesting passage of A.B. 67 was to sanction the existing city program. According to Mr. Sheldon, it had been the city attorney's suggestion to add language to the current statute to allow for the issuance of misdemeanor citations for parking enforcement infractions.
Mr. Gibbons asked if the misdemeanor citations already issued were invalid. Mr. Sheldon replied it was not the city attorney's opinion the citations were invalid, although there was some concern. Although the citations were adjudicated as civil infractions, at the point of issuance, citations might be construed as misdemeanor offenses. Because the citations were adjudicated by the City's Municipal Court as civil infractions, the laws of civil process would apply.
As Mr. Bonaventura understood, A.B. 67 referenced parking citations only. Mr. Sheldon confirmed the statement. In A.B. 67, line 8, Mr. Bonaventura asked if the language pertained to violations of county or city ordinances. In response, Mr. Sheldon explained parking enforcement officers could only issue citations within the realm of the parking enforcement division. All citations issued, with or without the passage of A.B. 67, would be considered parking citations.
Mr. Bonaventura stated, as A.B. 67 read, Section 1, line 8, it would be a violation of any county or city ordinance. The language did not specifically pertain to parking citations. Mr. Dickerson pointed out Section 4 of the bill clarified designated personnel were authorized to sign, prepare and serve citations.
Mr. Anderson asked if the current designated employees were covered by the statute. Mr. Sheldon responded negatively and stated parking enforcement officers were not commissioned peace officers nor would the bill designate them as such. Mr. Anderson asked if it was possible to reassign these employees to other duties. Mr. Sheldon replied the personnel could work within the confines of the parking enforcement division which was spelled out in A.B. 67 as well as in the city codes.
Chairman Sader closed the hearing on A.B. 67.
ASSEMBLY BILL NO. 85. Allows declaration made under penalty of perjury by person who withdraws sample of blood from another for analysis to be admitted in criminal or administrative proceeding to prove certain facts.
Captain Randy Oakes, representing the Las Vegas Metropolitan Police Department, testified in favor of A.B. 85 which would allow the taking of a declaration during the process of withdrawal of blood for analysis. To clarify the difference between a declaration and an affidavit, Captain Oakes explained a declaration must be a sworn statement, signed under penalty of perjury. An affidavit was executed under penalty of perjury and required notarization.
Detective Gordon Martines, Traffic Investigations Section,
explained the substance of A.B. 85. Detective Martines contended the requirement for affidavits or declarations was a logistics matter. In felony cases, when blood samples were obtained from DUI offenders who had been injured along with the victims, it was mandatory police officers must track down the registered nurses or technicians who withdrew blood samples in the hospital. Notaries must be obtained to witness the blood samples and verify the attending nurses or technicians who drew blood. The identities of the responding officers was necessitated as well. Affidavits must be signed at that time. According to Detective Martines, problems existed in getting the required personnel together at the same time to notarize the case.
Detective Martines stated A.B. 85 would provide the options to utilize declarations rather than affidavits. Declarations would be made under penalties of perjury. The language would be incorporated into the declarations as was the case in misdemeanor arrests and felony arrests.
Lieutenant Nadeau, Washoe County Sheriff's Office, appeared before the committee in support of A.B. 85.
There being no further testimony, Chairman Sader closed the hearing on A.B. 85.
ASSEMBLY BILL NO. 174. Limits right of natural father to custody of or visitation with child conceived as result of sexual assault and prevents admission of certain evidence by accused in prosecution for sexual assault.
The prime sponsor of A.B. 174 was Assemblyman Wendell Williams, Assembly District 6.
Mr. Williams stated A.B. 174 was requested as the result of two incidents. In the first concern, a sexual assault had occurred, a pregnancy had developed as the result of the rape, the rapist had been found guilty of the crime and sentenced to 8 years incarceration. The victim had opted to give birth to the attacker's child. After serving 8 years in prison, the perpetrator was released. The rapist contended, because he was found guilty of the rape, he was the natural father of the victim's child. The perpetrator sought court action for visitation rights and custody rights to the child. Mr. Williams contended the attempt by the natural father to gain custody and visitation rights to the child was harassment for the victim who had married and whose daughter was then 7 years old and not aware she was the result of a sexual assault. A.B. 174 was drafted to prevent reoccurrence of this type of traumatic experience.
According to Mr. Williams, the second part of A.B. 174 dealt with comments made by a victim during a sexual attack. In this Texas case, the female victim had made a comment while being raped that she was fearful of contracting the AIDS virus and requested he use a condom during the act. The Texas court ruled the comments made by the victim during the time of the alleged attack was actually providing consent for the sexual encounter. The Texas case was brought before the courts and overruled. Because of the outcome of the Texas case, Mr. Williams felt A.B. 174 should be passed.
Mr. Tom Pitaro, on behalf of the NACJ and the Nevada Trail Lawyers Association, testified against portions of A.B. 174. Mr. Pitaro referenced Sections 2 through 4 of A.B. 174. He intended to narrow the language to address Mr. Williams' concerns in reference to the second point made regarding the condom incident. Mr. Sader understood, in the Texas case, the lower court ruling had been overturned. He asked if Sections 2 through 6 should be removed from A.B. 174.
Mr. Pitaro stated two thresholds needed to be reached on the bill. First, the testimonies had to be relevant to the case. Second, the bill would have to show it was not prejudicial. According to Mr. Pitaro, the Evidentiary Rule contained in A.B. 174, Subsection 2 and Subsection 4, took away from the juries the ability to hear evidence that might be relevant to the determinations. If the courts could not rule information was relevant, the cases could not be introduced. Mr. Pitaro stated he would work with the committee and address the concerns, as well as maintain an Evidentiary Rule.
Mr. Williams noted the language in A.B. 174, Section 4, dealt with the statement made by the victim that would protect her health and safety. Mr. Williams contended statements made by victims to protect their lives should not be used in a court of law against them.
Ms. Patricia Justice, testified on behalf of the NACJ. She explained, before trial, prosecutors might file a Motion Eliminating which was a motion to exclude evidence before the hearing so certain testimony would not be heard. Pretrial hearings were conducted to decide whether evidence would be admitted. In these cases, judges heard testimonies and made determinations. If the judges, using their discretion, decided the information was detrimental to the juries' concerns, the evidence would be admitted. According to Ms. Justice, there were many safeguards already in place. She felt the passage of A.B. 174 would be a response to a ridiculous Texas case. She stated the passage of A.B. 174 was not needed to protect individuals in Nevada.
Mr. Scherer directed his questions toward A.B. 174, Section 2 and Section 4. He asked what would happen to the accused when charges were dismissed. Mr. Pitaro assumed the accused would be in custody until the charges were dismissed. If the Evidentiary Ruling was appealed, the case would have continued.
Mr. Anderson questioned the context of A.B. 174, Section 2, line 6 where the issues of health and safety were addressed. Mr. Anderson asked if judges were to provide higher levels of relevance. As he understood the bill to read, persons testifying in their defense could not use statements that were irrelevant and prohibitive. Mr. Pitaro clarified Mr. Anderson's concern by stating the bill addressed the fact those accused could not present evidence of statements made by the victims during the commission of alleged sexual assaults. The bill would prohibit testimonies relevant to determinations. If the information was relevant, the juries could not hear the testimonies even if the defense wanted the information to be heard. This was Mr. Pitaro's interpretation of the statute.
He contended it was pertinent to the cases to allow the judges and juries to decide the guilt or innocence of the accusers. The bill narrowed testimonies of the defendants which he saw as the problem.
Ms. Justice stated, should A.B. 174 be enacted, the bill would prohibit the use of information supplied by victims pertaining to their health and safety. Ms. Justice asked to leave the law as it currently stood and allow the judges to decide in each case whether testimony was admissible.
Mr. Williams argued courts should not be allowed to use comments made by victims in an effort to protect their lives during the act of rape as evidence to prove sexual consent.
Mr. Carpenter felt A.B. 174 might be an injustice to victims in that if statements could not be introduced as evidence, in certain cases, it might be detrimental to the victims. Mr. Carpenter contended, unless the judges and juries were allowed to make the determinations, problems would ensue.
Ms. Smith noted during a sexual attack silence might be construed as consent.
Ms. Justice rebutted by saying women would not be thinking about the law and the evidence code during a sexual attack. There were ample safeguards built into the law. Womens' rights were already addressed. There could not be disregard for the defendants. As the bill currently stood, with the rules of evidence in place, the defendants did get fair trials.
In the Texas case, Mr. Pitaro felt the statement used by the victim in which she requested the perpetrator use a condom during the sexual assault, clearly showed lack of consent, contrary to what the Texas court had ordered. Mr. Sader's knowledge of the Texas case was the accused sought to submit the evidence the victim had discussed with him the use of a condom because she did not want to get AIDS. The comment made by the victim showed the court it was a consensual act of sex, not a rape incidence. The Texas court ruled, as a matter of law, the act was consent. The testimony never went before the jury. As Mr. Sader understood, there was no reason to take the statement to a jury. The accused was acquitted.
Ms. Justice argued the situation was a case of Motion Limiting which was how the case was able to be appealed. Mr. Sader confirmed it was an Evidentiary Motion and was the reason why the court overturned it as it was admissible.
Mr. Pitaro argued the statement in the Texas hearing did not show consent. Therefore, the defendant could not use the statement to get out of it.
Mr. Toomin pointed out, when dealing with any question of constitutionality, it would have an impact on decisions that would affect the citizens in the state. If constitutional law was brought before the committee, the facts should be presented so everyone could understand. Mr. Pitaro responded by stating, from a constitutional viewpoint, the case was not decided in constitutional law, rather it was decided on a narrow Evidentiary Ruling in which the facts were unknown. According to Mr. Pitaro, this made it difficult. Mr. Pitaro noted it was difficult to make a law based upon a Texas newspaper clipping.
Mr. Sader addressed Mr. Williams and asked why A.B. 174 could not state rapists had no right to custody of the offspring unless the maternal parents consented. Mr. Sader noted if the courts granted an Order for Support, then the issues of custody and visitation would be open. Mr. Williams stated the language in A.B. 174, Section 1, lines 13 and 14 would require amending.
Mr. Pitaro addressed Mr. Carpenter's concern and referenced A.B. 174, Section 1. He suggested adding the proviso "unless the court finds it is in the best interest of the child." Unless the maternal parents consented or the courts made a specific finding it was in the best interest of the child, the defense attorney's concerns would be alleviated. The proviso would address future cases which dealt with children born as the result of a sexual assault between a husband and wife where there might be needs for the children to have relationships established.
Mr. Williams agreed with the language proposed by Mr. Pitaro. In cases of spousal rape, statutes were already in place to address these cases.
Ms. Justice interjected that not in every situation would mothers provide consent, as in legal cases where drug addictions or mental illnesses were prevalent. She stressed the need for the courts to determine the best interests of the children.
Mr. Scherer asked, in the event additional language was inserted into A.B. 174, would it give the convicted rapists the legal rights go to court and harass the mothers of the children.
Mr. Pitaro responded by saying the courts might not find it was in the best interest of the children. In these cases, loopholes would be left where the perpetrators could go back into the courts and use the legal system as a means of harassment. Mr. Williams rebutted by saying the harassment issue would still be prevalent. He felt the courts would not view it as a form of harassment with the added language.
In response to Mr. Scherer's question, Mr. Pitaro stated he did not see this as a realistic concern because of the Rule 11 sanctions and the sanctions the judges could bring against the particular verdicts.
Chairman Sader asked Mr. Williams to work with the defense counsel on agreed language and present the proposed amendments to the committee.
Mr. Pitaro referenced A.B. 174, Section 2 and questioned whether the facts would be limited under the situations. Mr. Williams stated he did have concerns regarding the health and safety aspects in A.B. 174.
The language in the bill would be amended and brought before the committee in a Work Session scheduled in Las Vegas on Friday, February 12, 1993.
Mrs. Bobbie Gang, representing the Nevada Women's Lobby (NWL), spoke on behalf of A.B. 174. The NWL strongly supported the concept in the bill which would not allow convicted rapists to have access to the children or to harass the victims regarding visitation rights to the children.
Mrs. Gang referenced A.B. 174, Section 2, regarding statements women might make to protect their lives or their safety. She noted women were instructed during self defense courses to say anything to protect themselves. In cases of rape, the victims were forced to consent. Mrs. Gang noted the question was whether the alleged victim consented. She stressed statements made during a sexual attack would be statements used only to protect life or health.
Ms. Florence McClure, former director of the Rape Crisis Center in Las Vegas, represented Renate Siri, present Director of the center. Ms. McClure was in agreement with Ms. Gang's testimony. She directed concerns toward the emotional traumas endured by the victims after sexual assaults. She noted the future ramifications that would result after the births of children as the result of rape incidents.
Ms. Lucille Lusk, NCCC, stated her concerns were in regard to A.B. 174, Section 2 which excluded evidence which might have a bearing on the guilt or innocence of an individual charged. She urged the committee to keep A.B. 174 as structured to allow the judges and juries to hear the evidence presented and make the appropriate conclusions. She asked for consideration toward a solution in the bill which would call the judges' attention to statements made during sexual assaults which would pertain to the victim's health and safety without taking away relevant testimony.
In reference to A.B. 174, Section 1, Ms. Lusk supported limiting the rights of persons who contributed to the conception of a child through forcible assault. According to Ms. Lusk, putting these statements into law would set forth structures in which convicted rapists could seek custody and visitation rights to the children. It was her contention the mothers and children deserved child support payments and should not be forced to accept custody or visitation compliances in exchange for child support monies.
Mr. Sader agreed with Ms. Lusk's statements. He noted circumstances in which mothers and children were on welfare. It would be the state that would move to have support payments made. In this scenario, it forces women into situations where the assailants could ask for custody.
Ms. Lusk suggested no custody or visitations be granted unless the mothers or guardians agreed as there could be cases where the children were placed in guardianships or the mothers had died.
There being no further testimony, Chairman Sader closed the hearing on A.B. 174.
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The Las Vegas Metropolitan Police Department requested a bill draft which would address an act which authorized the courts to require reimbursement of awards and payment of contributions to non-profit crime prevention organizations as a condition of probation from the proceeds of the sale of contraband seeds.
ASSEMBLYMAN PORTER MOVED FOR A BILL DRAFT REQUEST.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
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ASSEMBLY BILL NO. 89 Revises criminal provisions relating to owning or keeping a vicious dog.
Mr. Vic Schulze, Esmeralda County District Attorney and Vice President of the Nevada District Attorney's Association, specifically defined the word "vicious" as a propensity to attack and cause injury without sufficient provocation, Exhibit C. This definition would protect against drafting unconstitutionally broad and vague statutes.
Mr. Schulze presented photographs and the preliminary hearing testimony of Phyllis Crouch of Goldfield, Nevada who was a victim of dog attacks by 3 pit bull terriers. Mr. Schulze also presented copies of the Reno Gazette Journal article written about the pit bull attack in Goldfield, Exhibit D. Mr. Schulze recapped graphic detail of the vicious dog attack. He noted vicious dog attacks were a nationwide problem which needed to be addressed by all states.
According to Mr. Schulze, the District Attorney's office filed charges under the only existing felony. In the Crouch case, the Justice of the Peace granted a bind-over. The dog owners were charged under NRS 202.255, setting a spring gun or other deadly weapon. Mr. Schulze had alleged the dogs were deadly weapons. The case was heard in District Court under a writ of habeas corpus. The District Judge dismissed the charges, as under this statute, one could not allege a dog was a deadly weapon. Under the 1911 Spring Gun Statute, the theory of Adjust and Generis, the term "deadly weapon" could only refer to a mechanical deadly weapon. Under the Rules of Statutory Interpretation, according to Mr. Schulze, the statute was misinterpreted. Mr. Schulze received an Order Dismissing the Appeal on this case.
Mr. Schulze pointed out if an assault occurred with a deadly weapon where no bodily injury occurred, the incident would be charged as a felony. If a dog permanently disabled and maimed an individual, the charge would be a misdemeanor. He added because Mrs. Crouch had been on Medicaid, a portion of the $150,000 would be paid by the taxpayer as the owners of the dogs could not be made accountable. Beyond the issues of justice, fairness and victim's rights, there was also the financial aspect.
Chairman Sader allowed the committee members to view the pictorial evidence of the Crouch case although he advised situations as this were normally limited as it increased the emotional content of the testimony.
Chairman Sader addressed Mr. Schulze and stated further elaboration on the dog attack case would only create an emotional content in the consideration of the bill and would not be an aid in the determination of the merits of the bill which dealt with the increased criminal penalties for charges that were already a misdemeanor. He elaborated, if substantial bodily harm had not occurred, the incident would be categorized as a misdemeanor; if there had been substantial bodily harm, the case would have been classified as a felony.
Chairman Sader asked Mr. Schulze to focus on the reason he felt there should be an increased penalty in a case of substantial bodily harm in a circumstance where intent to harm could not be proved. Mr. Schulze responded by adding the reason for submitting the graphic information contained in the Crouch case was to specifically address the concern as to why this particular case should have been categorized as a felony charge and not a misdemeanor.
Mr. Schulze pointed out there was no enhancement for enhanced injuries. From an evidentiary standpoint, in a case where the victim had died from a vicious dog attack, under existing law, the incident would have been classified as a misdemeanor. In Mr. Schulze's opinion, this type of case should clearly be classified as a manslaughter charge and a felony conviction. In the Crouch case, had the victim died, the dog owners would have been charged with a felony. Under the current law, if a dog killed a person, it would be charged as voluntary manslaughter. If a vicious dog attack included exacerbated injuries that constituted substantial bodily harm, the charge would be classified as a misdemeanor. Mr. Schulze stressed the injustice in the current law.
Mr. Schulze noted in assault and battery cases, or cases which resulted in injury, there were enhanced penalties except in vicious dog attack circumstances. This was the problem Mr. Schulze sought to redress. Mr. Schulze asked the committee to provide for enhanced penalties for enhanced injuries which were demonstrated by showing the propensity to injure. He attempted to draft a narrowly defined, specific statute to address substantial bodily harm where the owner should be punished by serving from 1 to 6 years imprisonment, and charged with a $5,000 fine. According to Mr. Schulze, the problem existed under NRS 200.040, where manslaughter was defined, although under NRS 200.240, the owner of a vicious animal might become guilty of manslaughter, provided the dog killed someone.
According to Mr. Schulze, A.B. 89 would also address public safety as, according to the Tri-County Drug Task Force in Tonopah, drug dealers often kept vicious dogs to protect drug interests. He noted a disproportionate number of victims in dog attack cases were young children or senior citizens as dogs could sense fear and vulnerability. The right to own a dog entailed the responsibility to maintain the animal.
Chairman Sader advised A.B. 89 would not be voted on as further testimony would be heard at a later date in Carson City.
Chairman Sader found Mr. Schulze's basis for his arguments unpersuasive as the specific intent for the wrongdoers to do wrong, such as in kidnapping, battery, and assault cases which contain enhanced penalties for harm, were situations where the individuals were aware of what they were doing. They knew their conduct was criminal, and the individuals specifically intended to do harm. The dog attack cases were situations in which the owners did not intend to cause substantial bodily harm, although it occurred.
According to Mr. Sader, there was some precedence for this situation. A better analogy to A.B. 89 would have been the DUI law where individuals had been involved in dangerous conduct and had not intended to cause harm or death, but had caused harm or death which would have been classified as a felony. It was Mr. Sader's opinion, focus needed to be placed on the level of conscious knowing the owners had in order to increase the criminal penalties on the owner. He asked at what point should society impose felony convictions because it should have been known dogs had the propensity to attack.
Mr. Toomin advised the language in A.B. 89 would need to be reworked to address foreseen issues. He asked what entity would decide whether a dog was vicious or not. Mr. Schulze responded the decision would be at the jury's discretion; during the Preliminary Hearing, the determination would be the Justice of the Peace.
In response to Mr. Toomin's concern regarding persons bitten by family dogs, Mr. Schulze referenced A.B. 89, line 3, in which a person had to knowingly own or keep a vicious dog. An owner had to be cognizant of the vicious propensities of the dog. If the owner did not have former knowledge the dog was vicious, there was no liability. Secondly, the definition of viciousness specifically referred to a propensity to attack and cause injury without sufficient provocation. Mr. Schulze stressed the neighbor who stuck his hand through the front door to attempt to pat the child on the head and was bitten by the family pet would constitute provocation in the minds of the jury. Mr. Toomin alleged the current language in A.B. 89 required further consideration as the bill alluded the owner of the household pet could conceivably go to prison for 6 years.
Mr. Collins asked if in the case of dog attacks, would these situations be negligence issues when they did not entail intent. Mr. Sader brought to the attention copies of a news article dated June 23, 1991, Exhibit E, where a man was killed during a pit bull dog attack and noted there were not many reckless-based crimes in the state. Mr. Collins asked if the word "negligent" was in the statute, would it alleviate the problem. Mr. Graham interjected and advised the term "knowingly" was a higher standard than the word "negligence."
Mr. Schulze noted when A.B. 89 was submitted as a bill draft request, the word "knowingly" was not contained in it. The term would narrow the bill but would be beneficial. In most cases, when a dogs attack children, provocation was evident, therefore, the owners would not be liable. If the owners were aware of the vicious propensities of their dogs and chose to keep the animals, and without provocation, the dog attacked the children, the owners could be charged with felonies.
Mr. Carpenter focused on the first part of A.B. 89 where a person knowingly owned or kept a vicious dog and was guilty of a misdemeanor. He noted it would be a difficult situation to prove as it would be a subjective situation. If substantial bodily harm occurred, the case would be easy to ascertain. Mr. Carpenter felt there might be a better chance to obtain a conviction if the charge was a gross misdemeanor with 60 to 90 days jail term.
Mr. Schulze clarifying Mr. Anderson's statement explained in most instances it was unlawful for individuals to match non- deadly force with deadly force. In this instance the victims became perpetrators. Secondly, it was unlawful to protect property with known deadly force.
Mr. Petrak asked how A.B. 89 would affect individuals who walked onto properties with posted warning signs. The fact individuals walked onto private property would constitute the act of provocation. As Mr. Schulze understood, it was unlawful for individuals to use deadly force to protect property, such as in the case of junkyard guard dogs. Homeowners own dogs to protect property as well as the lives of family members. Mr. Schulze asked the committee members to reflect on the injuries vicious animals incurred on victims. He asked if it was fair for innocent victims to go through this type of ordeal with no recourse other than a misdemeanor ticket in the amount of $150 and 5 days in jail.
Mr. Bonaventura cited three concerns with A.B. 89. He could foresee problems with the term "knowingly." Second, in A.B. 89, Section 2, Subsection (b), which referenced the penalties, he felt the charge should be a gross misdemeanor instead of a felony charge. Third, Mr. Bonaventura suggested changing the term "vicious dog" to "vicious animal."
At this time, Chairman Sader asked for testimonies from individuals in opposition to A.B. 89.
Mr. Willard E. B. Sharp, President of Nevada Dog Fanciers of Southern Nevada, testified in opposition to A.B. 89. Mr. Sharp asked where the line would be drawn between a dog used in police protective service and a family pet. He clarified the difference between dogs used for protection and vicious dogs. Mr. Sharp stated it was an invasion of property when individuals could trespass onto private properties and commandeer family dogs. He strongly contended the language in the bill needed amending.
Mr. Collins spoke up and asked that individuals in opposition to A.B. 89 present viable solutions to the issues. Mr. Sharp noted he did not have ample time to prepare for the hearing but his organization would gladly assist in preparing the language to the bill.
Mr. Clark A. Hazlett, member of the Great Dane Club of Las Vegas and the Silver State Kennel Club, testified in opposition to A.B. 89. He recommended a committee representative contact the Legislative Hotline for the American Kennel Club to research specific legal recommendations made to other states. Mr. Hazlett stated the phrase "owns" and "knowingly owns a vicious dog" was a definition which would need work. Any dogs, given the right circumstances, would fight to protect their owners and households, and if provoked, would defend themselves. Mr. Hazlett said he would provide the telephone number for the American Kennel Club. Ms. Denice Miller would research pertinent information.
Ms. Bonnie Den Dooven, representing the Pet Industry Joint Advisory Council (PIJAC), testified against A.B. 89. The council was composed of pet stores, suppliers and dog breeders. According to Ms. Den Dooven, the headquarters located in Washington D.C. reviewed bills from all states. She noted the PIJAC had been shocked by the brevity of the context of A.B. 89 and said it was the shortest, vicious dog bill that had originated in any state. The major concern was with clarifying the definitions. Ms. Den Dooven offered to assist in the research of the comparative laws to provide viable language to the bill.
Mr. Tom Bentz, Nevada Alliance for Responsible Use, testified against A.B. 89. He stated the problem was with the concept of criminalizing pet ownership and viewed the bill as chipping away at civil rights. He stressed responsible animal ownership. He alleged the best way to address the issues would be to enforce the leash law. Referenced the public nuisance law and the Crouch case testified to earlier, Mr. Bentz noted the dogs were known to be a problem in Goldfield and the law had not been enforced which was a major contributing factor to the dog attacks.
Mr. Bentz further stated ownership of dogs was not criminal but the misuse of the animals was criminal. If an animal had been intentionally used as a weapon, then the dog should be treated as a weapon. Mr. Bentz brought to the attention of the committee members if owners of convicted attack animals were incarcerated, those individuals would not only be off the tax roles, but the incarceration costs would be a burden to the taxpayer. According to Mr. Bentz, the lack of enforcement of the leash law and the nuisance law were the prevalent issues.
Mr. Bentz asked to what extent the bill would go if it addressed vicious animals. He stated the bill should be decriminalized. Because a few individuals were irresponsible, the rights of many would be infringed upon. He strongly felt the determinations should stay in the civil courts with the focus on enforcing tougher leash laws and public nuisance laws. He contended there were other avenues available to enforce the problems which would be preventable measures.
Ms. Lucille Lusk, NCCC representative, requested A.B. 89 be amended to assure the law would not apply to cases where individuals were injured after entering private property without authorization. She stressed the intent of A.B. 89 was not to create a situation wherein a burglar had the right to sue a homeowner. Ms. Lusk also suggested to apply enhanced penalties without creating a felony. She supported her suggestion by stating the loss of civil rights, such as the right to vote, might not be justified in every case where there is substantial bodily injury.
Ms. Lusk asked what the definition of the term "knowingly" would be and what constituted sufficient provocation. Would the owners of dogs be charged only if victims filed charges, or could the state bring charges? She referenced the case where the owner of the dog's own child was bitten by the dog. In this instance, would that be considered child abuse and could the state bring charges? Mr. Sader addressed the third concern and stated the state did not require a complaining witness to bring charges although it could be difficult to prove cases without complaining witnesses.
Chairman Sader postponed action on A.B. 89 until further testimony could be heard in northern Nevada and research could be conducted on the comparative laws in other states. The hearing was closed on A.B. 89.
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Chairman Sader declared A.B. 84 had been withdrawn.
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ASSEMBLY BILL NO 85. Allows declaration made under penalty of perjury by person who withdraws sample of blood from another for analysis to be admitted in criminal or administrative proceeding to prove certain facts.
Mr. Pitaro indicated there was no testimony in opposition to the bill.
ASSEMBLYMAN REGAN MOVED DO PASS ON A.B. 85.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
Mr. Regan would handle the bill on the floor.
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Chairman Sader informed the committee discussion had ensued on A.B. 174 during the recess. Mr. Williams and Mr. Pitaro recommended amending Section 1, by deleting lines 7 through 14, Subsections (a), (b) and (c), the criteria for custody if support was paid. The following language would be inserted: "there is no right to custody unless the mother or the guardian consent to allow the custody or the visitation or the custody or the visitation is in the best interest of the child." The language was accepted by both Mr. Williams and Mr. Pitaro. A.B. 174, Sections 2 through 6, would be deleted.
ASSEMBLYMAN GIBBONS MOVED TO AMEND AND DO PASS A.B. 174.
ASSEMBLYMAN PORTER SECONDED THE MOTION.
Mr. Scherer reiterated his objection to the insertion of the phrase "the court finds it is in the best interest of the child" in A.B. 174. He contended it was the current standard whether custody should be awarded to a particular parent. By inserting the phrase, Mr. Scherer felt the bill had been emasculated in that it basically did nothing to enhance it. He did not feel the court should be allowed the latitude as it opened loopholes where convicted rapists could use the courts to harass victims. For this reason, Mr. Scherer objected to the use of the language presented and would vote against the motion.
Mr. Scherer noted Mr. Pitaro had mentioned Rule 11 in his testimony. He noted, in his law practice, he had seen many frivolous complaints and reluctance on the part of judges to impose Rule 11 sanctions. Mr. Scherer did not feel it was a satisfactory remedy for the type of harassment.
Mr. Carpenter felt it was important for the courts to decide what would be in the best interest of the child.
THE MOTION MADE ON A.B. 174 PASSED. (MR. SCHERER VOTED AGAINST. ALL OTHERS PRESENT VOTED IN FAVOR)
Mr. Williams was assigned to handle A.B. 174 on the floor of the Assembly.
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ASSEMBLYMAN REGAN MOVED DO PASS ON A.B. 67.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Petrak would handle A.B. 67 on the floor of the Assembly.
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ASSEMBLYMAN GIBBONS MOVED DO PASS ON A.B. 49.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Bonaventura would handle A.B. 49 on the floor of the
Assembly.
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Chairman Sader stated a Work Session would be conducted in Las Vegas on February 12, 1993.
There being no further business to come before the committee, the hearing was adjourned at 11:23 a.m.
RESPECTFULLY SUBMITTED:
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
February 11, 1993
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