MINUTES OF THE
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 5, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:00 a.m. on Friday, March 5, 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. Bernie Anderson
Mr. John Bonaventura
Mr. John C. Carpenter
Mr. C.W. Collins, Jr.
Mr. James Gibbons
Mr. William D. Gregory
Mr. Ken Haller
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. Gene T. Porter, Vice-Chairman, Excused
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
None
OTHERS PRESENT:
Mr. Ben Graham, Nevada District Attorneys Association
Mr. Noel Waters, District Attorney, Carson City
Mr. Roger Whomes, Deputy District Attorney, Washoe County
Mr. Victor Schultze, District Attorney, Esmeralda County
Ms. Laurel Stadler, Mothers Against Drunk Drivers (MADD)
Mr. Larry Wissbeck, Chief Deputy Secretary of State
Ms. Tracy Gillespie, Secretary of State's Office
Mr. Stan Warren, Sierra Pacific Power Co.
Ms. Susan St. Paul, Sierra Pacific Power Co.
Mr. Tom Benz, Nevada Alliance for Responsible Animal Use
Mr. Clayton Rice, Legal Counsel, Responsible Dog Ownership Group
Ms. Susan Callahan, Responsible Dog Ownership Group
Following roll call, Chairman Sader opened the hearing on AB-57.
ASSEMBLY BILL 57 - Clarifies procedure for obtaining involuntary samples of blood from certain persons suspected of driving under influence of controlled substance of alcohol. (BDR 43-598)
Mr. Ben Graham, Nevada District Attorneys Association apologized for the delay in preparing a proposed amendment (Exhibit C). Mr. Graham stated a few years ago the Legislature enacted DUI laws to get drunk drivers off the road and to work on identifying these people, especially the more serious offenders. One of the provisions which the Legislature came up with was if a driver had more than a .10 blood alcohol content in his system, that in itself was a criminal offense. Mr. Graham referred to federal case, Patricia Mclean v. John Moran, Sheriff Clark County (Exhibit D) and the proposed amendment (Exhibit C). Legislation also stated if there was probable cause to believe involvement in an accident caused substantial bodily harm or a third time felony DUI, the state could use reasonable force to determine blood alcohol level. Mr. Graham then referred to State v. Ebarb (Exhibit E) noting concern the statute might indicate a choice, which he did not believe was the Legislature's intent because the blood draw would be far more accurate both for the defense and for the defendant and was by far the best evidence. AB-57 would codify what the court did in State v. Ebarb. Mr. Graham asked the committee to affirm what the Supreme Court did in Ebarb and resolve the issue as to what the Federal Court brought up in McLean.
Chairman Sader explained when the DUI bill was amended in 1983 to establish a statutory presumption of intoxication of .10, a situation was created in which defense of these DUI cases attempted to discredit the test. Then the sampling technique and the ability to defend the accuracy of the test became the crucial element of the prosecution and the defense in DUI cases. He noted currently in the State of Nevada there were three ways to test, the blood test which was most reliable, the urine test which was second and the breath test which was third, although great strides in technology had been achieved in the last ten years on the reliability of breath testing, and this bill related to the ability to take three successive tests for someone arrested. Chairman Sader stressed the importance of these samples, since what had to be established at a hearing or a DUI prosecution was not what the blood alcohol level was at the time of the test, but what the blood alcohol level was at the time of the violation. If the blood alcohol level rose a significant period of time after the test, the defense would have the opportunity to suggest the DUI offender had ingested a large amount of alcohol just prior to getting in the vehicle and therefore had very little alcohol in his system.
Mr. Carpenter questioned how the breath test was used and if most patrol cars carried the device with them. Chairman Sader stated it depended on the police department and varied largely in the rural areas. Some officers carried a hand-held device with which to test and establish probable cause.
Mr. Noel Waters, District Attorney of Carson City, explained a person could exhibit signs of intoxication, but to adequately measure was subjective which underscored the value of evidential tests in general. The proposed amendment (Exhibit C) would be neutral insofar as its impact in a particular criminal case. Mr. Waters also noted, as did Chairman Sader, the order of efficiency of the blood alcohol testing would be blood, urine and breath.
Mr. Whomes, Deputy District Attorney, Washoe County, was in agreement with Mr. Noel Waters.
Mr. Graham added many times the defense attorney would request samples of blood to run his own test.
Mr. Collins questioned the difference between a recently passed bill which deleted a notary requirement and AB-57.
Mr. Graham explained the bill Mr. Collins referred to simply allowed the nurse or technician that drew the blood to sign under penalty of perjury, as opposed to finding three notaries.
After some discussion Chairman Sader explained the previous bill stated the three samples did not require a notary, but required a sworn statement. He added this could be interpreted to be favorable to DUI defendants in the sense this limits the testing to three, whereas now there was no limit on how many tests could be taken.
Mr. Toomin questioned the reasonable force portion of the bill. Mr. Waters explained this portion of the bill went back to 1967 in the U.S. Supreme Court. The U.S. Supreme Court said the officer must have probable cause to believe evidence of intoxication would be found, and the evidence would be useful in the particular case he was investigating. Obviously in a DUI case an arrest was not made unless there was probable cause and evidence was needed to determine whether or not the person was intoxicated. The U.S. Supreme Court indicated a preference for having a magistrate issue a search warrant to draw blood rather then a police officer. Alcohol by its nature in the blood stream is a highly evanescent substance. Alcohol dissipates quickly and in the time it might entail to find a magistrate, present an affidavit of probable cause to secure a warrant, the evidence could be lost which would be extremely valuable in determining whether or not a crime had been committed. Therefore, the whole concept of securing blood samples was really an exception to the search warrant requirement that has been recognized since 1967 by the U.S. Supreme Court. The Court further held the samples must be secured in a medically approved manner and an officer was entitled to use reasonable force, the force necessary to obtain the evidence.
After further discussion, Chairman Sader explained although there was a problem with the statute regarding reasonable force, if this stipulation did not exist in AB-57 DUI offenders would undoubtedly resist testing.
Mr. Carpenter questioned if blood was drawn at the jail facility in Washoe County.
Mr. Whomes said generally it was and they have provisions for this testing at the jail, but if the defendant was involved in an accident, he would usually be taken to the hospital.
Mr. Carpenter questioned situations in rural Nevada where it would be impossible to get a blood test within 5 hours. Victor Schultze, District Attorney, Esmeralda County, replied Esmeralda County was approximately 5,000 square miles and there was no hospital. He said there were definitely problems in the rural areas that did not exist in the 3 urban counties. At times Nye Regional Medical would not take blood for Esmeralda or Nye Counties because they would be subpoenaed. An additional problem for Esmeralda County was the cost of about $500.00 for someone from one of the labs to come to Esmeralda County and testify.
Chairman Sader stated this bill and the whole aspect of testing for blood alcohol had some problems in the rural areas because of remoteness and lack of technology, but this should not affect whether AB-57 is a good bill for the majority of the state and the people who could take advantage of the blood testing equipment.
Mr. Carpenter questioned the 5 hour limit on the taking of the blood test. Chairman Sader went on to explain an individual could be prosecuted without a blood test by the old way of simply trying to prove, with the evidence available, the individual was intoxicated. If a blood test was not taken within a certain period of time, scientifically and evidentially it simply could not be proven a relevant sample.
Mr. Carpenter stated there were good defense attorneys in the rural areas but without the blood test the prosecution would have a tough time.
Mr. Waters responded because it was difficult for the rural prosecutors was the reason for suggesting the 5 hour time instead of the strict 30 minute criteria in the original bill. After about 5 hours the likelihood of getting good evidence would begin to dissipate just as the level of alcohol would.
Speaking to the bill specifically, Mr. Regan referred to page 2, line 21. He stated the operative word was the word "may" which gives permission, but does not order.
Mr. Bonaventura questioned Mr. Graham about the number of blood samples that could be taken, (Exhibit C). Mr. Graham explained the current law allows only 1 blood draw to be taken and the proposed amendment (Exhibit C) allowed 3 blood draws to be taken.
Mr. Petrak questioned Mr. Graham if after an officer used the breathalyzer test, could someone also take a urine test in light of the problem in rural areas. Mr. Graham stated this was permissible.
Mr. Whomes added the breathalyzer was not admissible evidence in a court of law, but was only to sustain probable cause. Mr. Whomes also stated the better procedure was the blood test.
Ms. Laurel Stadler with Mothers Against Drunk Drivers (MADD), stated she felt the prosecutors were prosecuting the offenders and if this bill would clarify their position in doing that, MADD would support it.
ASSEMBLYWOMAN SMITH MOVED TO AMEND AND DO PASS AB-57.
ASSEMBLYMAN TOOMIN SECONDED THE MOTION.
After some discussion Chairman Sader called for a roll call vote.
THE MOTION PASSED 11 to 3. ASSEMBLYMEN BONAVENTURA, CARPENTER AND COLLINS VOTED NO.
ASSEMBLY BILL 87 - Increases fees for filing or providing certain commercial documents and provides for searches of certain records for name of secured party. (BDR 8-541)
Larry Wissbeck, Chief Deputy Secretary of State testified in favor of the bill. Addressing the bill directly, Mr. Wissbeck proposed the following amendments:
1. Section 1, line 3, change the word "or" to "and". This would clarify the document must be correct as to form.
2. Section 5, subsection 3; add a new service to the UCC Division, which is a search by a secured party. This is a complex search process and required the Secretary of State make the request to the main frame computer. After hours they are able to do this from the main frame computer data base to secure a search of this sort. These searches can cost as much as $3,000 in main frame charges and only 4 requests had been made in the past 2 years for this service.
3. Section 5, line 17, change "the filing officer" to the "Secretary of State" to avoid the implication that the counties could be forced to perform this service.
Mr. Wissbeck also recommended a change in the fee structure from $10 to $15, and from $15 to $20. Attached is a list of charges in other states, (Exhibit F). He commented the fees represented by this increase, more carefully approximate what the cost of providing those services is to the Secretary of State's office in the State of Nevada. Mr. Wissbeck stated the services provided were becoming more detailed and more sophisticated as the computer age encroaches upon us. He explained more lenders and lengthier documents which involved more work for the Secretary of State's office.
Chairman Sader addressed Mr. Wissbeck stating, "This bill relates to UCC-1 filings which I understand is a service your office performs as the responsible entity in government to take filings of security interest in personal property, pursuant to the Uniform Commercial Code. A typical situation might be a bank which has security in equipment in a business and needs to be able to file it and record the statement in order for it to be recognized as a proper security instrument for the bank. The fees would be for the UCC-1 filing. Your office computerizes this procedure, files by secured party, by the debtor so that you can retrieve it on call, and there also is a procedure for canceling the filing, presumable when the loan is paid off."
Mr. Wissbeck stated this procedure was to protect the public and lenders, so money would not be loaned on something that was already secured.
Chairman Sader questioned if a UCC filing was filed at the county level. Mr. Wissbeck stated it could be filed at the county level. Chairman Sader addressed Mr. Wissbeck stating, "Many of the counties are not computerized and cannot call this information up and do not want to be placed in a situation where they have the responsibility, on request to provide information on the filing. If the individual wants that, they have to go to you since you have the ability and you are charged with the duty to do so." Mr. Wissbeck was in agreement with statements made by Chairman Sader. Chairman Sader questioned how much money UCC filings presently raise and how much would be raised if the fees were increased. Mr. Wissbeck responded $203,480 was raised for the current year and if the fees were increased approximately $60,000 more would be raised. Chairman Sader questioned the cost to run the UCC Division of the Secretary of State's office. Mr. Wissbeck responded he was not certain if this figure was available. There are 45 employees in the Secretary of State's office for Northern Nevada and the budget for the whole office is $2 million. Seven employees are employed in the UCC Division; salaries and benefits per employee would be in the $25,000 range which does not include equipment overhead. Chairman Sader said it appeared the fees generated by this service probably needed to be increased merely to make it a user paid service. Mr. Wissbeck explained the Secretary of State's office did in fact make a profit last year, the $2,000,000 budget actually brought in $13,000,000.
Mr. Anderson questioned the large increase on the federal lien, page 6, line 15 of the bill from $6 to $20. Mr. Wissbeck responded this fee was not increased in the past when other fees were.
Mr. Anderson questioned the changing of the "or" to "and" in section 1, line 3 and asked if people would be using standardized forms for future filings, section 5, line 13. Mr. Wissbeck responded the reason for the standardized form was for the convenience of the filing clerk. Mr. Wissbeck explained an additional $5 fee would be charged for non-standardized forms.
There was no testimony against AB-87.
ASSEMBLYMAN TOOMIN MOVED TO AMEND AND DO PASS AB-87.
ASSEMBLYMAN HALLER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Chairman Sader assigned AB-87 to Mr. Gibbons.
ASSEMBLY BILL 89 - Revises criminal provisions relating to owning or keeping vicious dog. (BDR 15-597)
Sue St. Paul, Supervisor of the Meter Reading Department, Sierra Pacific Power Co., Reno, Nevada, explained she was in support of AB-89. She stated vicious dogs were a daily problem. In the past 5 years 26 dog bites had been reported to the Sierra Pacific Power Co., Meter Reading Department. Six of the 26 dog bites required the employee take time off from work to recuperate both mentally and physically. Ms. St. Paul said, "In 1982 I was the victim of an unprovoked dog attack. Pet owners have a responsibility to both society and to their pets and should be held accountable for their actions."
Mr. Tom Bentz representing the Nevada Alliance For Responsible Animal Use spoke against AB-89. Mr. Bentz explained his biggest problem with AB-89 was the felony penalty. Mr. Bentz stated he thought everybody wanted to stop vicious dog attacks, but a broad, open statute that leaves a felony as a penalty, would make people afraid to own certain breeds of dogs.
Mr. Clayton Rice, Legal Counsel represented Responsible Dog Ownership Group. Mr. Rice stated his group submitted proposed amendments to the bill for the committee's review and was in support of AB-89, however there must be a vicious dog definition.
Susan Callahan, Member of the Responsible Dog Ownership Group and also served as Chairperson on the Animal Advisory Board for the City of Reno for 5 years. Ms. Callahan stated AB-89 needed more definition.
Ben Graham, District Attorney's Association stated in Clarke County there were more then 900 dog bites reported and in Washoe County more then 435. Twenty percent of the bites required medical attention and five percent were repeat biters. Mr. Graham stated, if AB-89 was assigned to subcommittee, Mr. Schultze indicated a desire to work with the committee.
Mr. Schultze said on March 4, 1993 he submitted 2 amendment recommendations to members of the committee. He stated he was in agreement with Mr. Bentz and Mr. Rice, that a sensibly worded statute was needed. He further stated the best statute currently in existence was a South Carolina statute which was passed by the South Carolina Legislature after a man's dog killed a child and the owner was fined only $138 and spent 3 days in jail. In South Carolina it was now a felony if a known vicious dog attacked somebody when the attack was unprovoked. Mr. Schultze pointed out on the first amendment recommendation, 4 or 5 members of the committee were concerned with someone having a dog on their property to protect him and his family from burglary and robbery. Mr. Schultz quoted the proposed recommendation to the bill as follows: "If any person shall knowingly own, keep or harbor any vicious dog. If such person shall own dog and such dog unprovoked or in an unprovoked manner shall injure any person who is on public property or lawfully on private property, the owner, keeper or harbor of the dog shall be punished as follows." Mr. Schultze stated "the definition of viciousness requires notice of the vicious propensity. Not only do I believe the prior vicious propensities should be noticed and should be unprovoked, but I also believe the attack under question should also be unprovoked."
Chairman Sader explained another hearing would be needed when more information was available. Chairman Sader requested an amendment which would parallel the South Carolina statute, modified to fit the terms of Nevada's particular statutory scheme which was expressed somewhat differently than in South Carolina.
Mr. Gibbons suggested AB-89 be put in subcommittee at this time.
Ms. Smith questioned if language about ones own dog would be included.
After some discussion Chairman Sader appointed AB-89 to a subcommittee including himself, Mr. Toomin, Mr. Gibbons and Mr. Gregory.
ASSEMBLYMAN HALLER MOVED TO AMEND AB-89.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED.
ASSEMBLYMEN SCHERER, TOOMIN AND BONAVENTURA VOTE NO.
Chairman Sader opened a work session on AB-60.
ASSEMBLY BILL 60 - Provides consequences of environmental impairment of real collateral. (BDR 3-480)
Mr. Scherer, Chairman of subcommittee for AB-60 stated he met and discussed this bill at length with the proponent of the
bill, Mr. Zucker. Mr. Scherer pointed out amendments to be made to AB-60 as follows:
1. Page 2, line 34 will read "section 2 of NRS 40.495 or subsection 1 of section 17 of this"
2. Page 3, line 4, remove bracket
3. Page 3, line 7 will read "collateral for the debt or as provided in section 1 of this act"
4. Page 3, line 38, add new subsection to read "pursuant to section 13 or 14 of this act"
5. Page 3, line 43, remove bracket
6. Page 3, lines 45 and 46 remove "and section 17 of this act:"
7. Page 4, line 40 remove "(1988 edition)"
8. Page 4, line 47 remove "on January 1, 1993"
9. Page 5, line 21 will read "(b) After the commencement of a trustees sale or judicial foreclosure proceed-"
10. Page 5, line 36 remove "1. Except as otherwise provided in subsection 2,"
11. Page 5, line 40-42 remove the entire subsection 2
12. Page 6, line 7 should read "environmental provision"
13. Page 6, line 9 add the word "actual" before knowledge
14. Page 6, line 13-15, subsection 2 should read "If the parties have so agreed, the secured lender may recover interest on any amount advanced to cure or mitigate the breach."
15. Page 7, line 8 after the word absence add "of any environmental impairment"
16. Page 7, line 11 add "In the event of a waiver with regard to all of the collateral, the lender shall cause its lien to be released of record upon the waiver becoming final."
Mr. Scherer said Mr. Zucker stated representatives of some of the title companies would like to add a section to AB-60 requiring the lender to give the title company involved notice if the lender waives a right to the collateral. Mr. Scherer believed this to be a reasonable request.
ASSEMBLYMAN SCHERER MOVED TO AMEND AND DO PASS AB-60.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
ASSEMBLY BILL 76 - Creates administrative assessment to be used to help defray costs of extradition. (BDR 14-517)
Chairman Sader said conflicting legal opinions existed on AB-76. The Legislative Counsel Bureau suggested AB-76 was unconstitutional. The Attorney General suggested it was constitutional and the circumstances told by the Attorney General yesterday was they wished to withdraw AB-76.
CHAIRMAN SADER stated AB-76 would be withdrawn.
ASSEMBLY BILL 77 - Prohibits loitering and narrows definition of vagrancy. (BDR 15-509)
Chairman Sader stated helpful suggestions had been proposed for amendments to AB-77 but were not ready to be voted on today.
AB-77 was turned over to subcommittee.
ASSEMBLY BILL 73 - Provides for reporting and punishment of abuse of patients. (BDR 15-501)
Chairman Sader said AB-73 was in subcommittee and had taken on some larger implications because of the need to reconcile the reporting requirements throughout the statute.
Subcommittee presently working on AB-73.
ASSEMBLY BILL 55 - Makes various changes to provisions governing disbursement of administrative assessment for violation of misdemeanor. (BDR 14-570)
Mr. Anderson stated subcommittee was ready to go forward with AB-55. Mr. Anderson then submitted the following exhibits:
1. Proposed amendments, Exhibit G.
2. Amendment to page 3, subsection 8, Exhibit H.
Mr. Anderson then conducted a review of the proposed amendments (Exhibits G & H).
ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS AB-55.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Chairman Sader closed the work session at this point and called Mr. Gregory to discuss a proposed bill draft.
Mr. Gregory stated Circus Circus, The Mirage and MGM had requested the proposed bill draft. The proposed bill was for amusement park safety and stipulated requirements for amusement parks and amusement park operators, detailed responsibilities of amusement park riders to ensure safety and limited liability if certain requirements were followed by park operators and safety rules were broken by riders.
ASSEMBLYMAN REGAN MOVED FOR THE BILL DRAFT REQUEST.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Chairman Sader stated he had a request for committee introduction of BDR-1-1737 which was an act relating to court appointed counsel revising fees paid to certain attorneys appointed to represent criminal defendants.
ASSEMBLYMAN REGAN MOVED FOR COMMITTEE INTRODUCTION OF BDR-1-1737.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Sader announced there would be an evening meeting on March 15, 1993 at 6:30 p.m. in Room 119 of the Legislative Building.
There being no further testimony, the meeting adjourned at 10:15 a.m..
RESPECTFULLY SUBMITTED:
____________________________
JEANNE PEYTON
Committee Secretary
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