MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 10, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:05 a.m., March 10, 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. Ken L. Haller
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Michael Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. John H. Robinson, Deputy,
U. S. Department of Justice, U. S. Marshals Service
Mr. Robert Cose, Deputy, U. S. Department of Justice, U. S. Marshals Service
Mr. Garry Rubinstein, Substance Abuse Counselor, University of Nevada, Reno
Mr. Tom Tate, Executive Director, Nevada Commission on Tourism
Mr. Glen Whorton, Nevada Department of Prisons
Mr. Kevin Welsh, Deputy Fiscal Analyst, Legislative Counsel Bureau, Fiscal Analysis Division
Captain William Goddard, Nevada Highway Patrol
Mrs. Marlene Schultz, Nevada Department of Motor Vehicles Sheriff Jerry Maple, Douglas County Sheriff's Office
Mr. Eric Cooper, Undersheriff, Las Vegas Metropolitan Police Department
Mr. Barney Dehl, Chief Deputy, Washoe County Sheriff's Office
Sheriff Wade A. Lieseke, Nye County Sheriff's Office
Lieutenant Jim Nadeau, Washoe County Sheriff's Office
Mr. Larry Hanson, Washoe County Crime Lab
Ms. Paula Treat, Police Officers Research Association of Nevada
Ms. Patricia Lynch, Reno City Attorney
Mr. William L. Gardner, Chief Criminal Deputy, Reno City Attorney's Office
Mr. Don Trimmer, Clark County
Mr. Warren Stephens, Clark County
Ms. Laurel Stadler, Mothers Against Drunk Drivers, Lyon County Chapter
Ms. Lucille Lusk, Nevada Coalition of Conservative Citizens
Ms. Kimberly Bennion, California State Automobile Association, Nevada Division
Mr. Harry Pappas, Nevada State Rifle and Pistol Association
Mr. Edward L. Presley, NOR-DAK
Mr. John W. Riggs, Sr.
Ms. Jonine Hansen, Eagle Forum
Following roll call, Chairman Sader called the meeting to order at 8:05 a.m.
A.B. 246 was carried over from March 9, 1993.
ASSEMBLY BILL 246. Revises standard for determining operation of vehicle or vessel while intoxicated.
Assemblyman Petrak was the prime sponsor of A.B. 246.
Ms. Patricia Lynch, Reno City Attorney, testified in favor of A.B. 246.
Mr. William Gardner, Chief Criminal Deputy, Reno City Attorney's Office, addressed the processes of DUI arrests in the state of Nevada. He explained cases with .10 or .ll blood alcohol content (BAC) did not always result in conviction, although, he added, BAC cases with .12 BAC levels and above would most likely result in convictions. The forensic analysis of alcohol extracted during breath tests was estimated to have a 10 percent error factor which was attributed to either the mechanical devices used or the testing methods. Because of this variance, the actual blood alcohol level could be as low as .099 BAC which might become the deciding factor in the presumption of intoxication. He added, individuals tested at the .09 and .08 BAC levels were rarely arrested, prosecuted or convicted.
At the time the tests were administered, Mr. Gardner continued, BAC tests would be administered as much as two hours after the DUI arrests which made it difficult to ascertain if the offenders were in the alcohol absorptive stage, or if blood alcohol levels were decreasing. According to Mr. Gardner, because of these factors, these issues were normally resolved in favor of the defendants.
Mr. Gardner stated by passing A.B.246, which would change the BAC conviction levels to .08, more individuals would be convicted, although, in most cases, plea bargaining would be probable. With the passage of A.B. 246, cases could be proved at the .10 and .11 BAC levels.
Mr. Gardner continued, due to the overpopulation in the state penal system, DUI offenders rarely completed the full sentencing terms. The Supreme Court had determined crimes which carry penalties not in excess of six months imprisonment and fines of no more than $1,000 are petty offenses. He added, petty offenses did not trigger the right to trial by jury. It was Mr. Gardner's assumption, with the passage of A.B. 246, fewer cases would go to trial although close cases might be plea bargained. The main concern, he alleged, was the .10 and .11 BAC DUI offenders would be convicted.
Chairman Sader brought attention to the fiscal note on A.B. 246. The fiscal impact of the bill would be an issue for the Ways and Means Committee although the fiscal note affected considerations made by the Judiciary Committee. A small fiscal note was evidenced by the Nevada Highway Patrol and a larger one in reference to the Nevada Department of Prisons.
Mr. William Goddard, Captain, Nevada Highway Patrol, maintained the fiscal note on A.B. 246 had been determined from data obtained from the California Highway Patrol (CHP). A 10 percent increase was evidenced in the number of DUI arrests during the first year the CHP enacted the .08 BAC levels. Using the 10 percent base, the NHP determined the additional costs which would be incurred with the additional blood alcohol testing performed. Chairman Sader stated the NHP's projected fiscal note was $8,891 during the first year and $9,879 in the second year with a biennium total of approximately $18,000.
Mr. Glen Whorton, Nevada Department of Prisons (NDP), addressed the effect DUI offenders had on the penal system in the state. The NDP projected the increase in prison population would be 10 percent per year. According to Mr. Whorton, there had been a 15.7 percent average annual increase in DUI offenders since 1985, although, he noted, the totals fluctuated from year to year.
Mr. Whorton continued, based on the information received from the NHP, prison population would be projected to increase by 15 percent as the result of passage of A.B. 246. He stated the fiscal note had been determined by using the NHP base projection and estimating the expected average prison population over the next biennium. It was estimated 24 new inmates during the first fiscal year and 42 new inmates in the second fiscal year. The projections were multiplied by $14,672 which produced the fiscal note for the Nevada Department of Prisons. Chairman Sader stated the fiscal note for the NDP was approximately $1 million over the biennium. Mr. Whorton confirmed.
Mr. Petrak contended he found it difficult to understand how the NDP could ask for an increase in operating revenues as the fiscal note for the NDP on this same bill in the previous legislative session had been between $2 and $4 million. He noted the NDP proposed budget entailed a 10 percent increase based on the CHP statistics. Mr. Petrak alleged Mr. Whorton's estimates had not been ascertained correctly. He argued the CHP figures were not exemplary of the individuals incarcerated, only those persons charged. He assumed only a slight percentage of DUI offenders would be incarcerated. Mr. Petrak surmised the Ways and Means Committee would oppose the NDP funding request.
In reply, Mr. Whorton was uncertain as to the amount of the fiscal note for this same bill in the last session. He alleged the basis for funding projections for DUI offenders would commence with a low base rate, although the fluctuation of incoming prisoners would need to be taken into consideration. The predictability factor with DUI offenders was not as with other penal groups. Mr. Whorton added the mere increase in the number of new justices in the state would significantly affect the prison population. Also, he asserted, the publics' attitudes toward particular cases often affected sentencing decisions.
Mr. Petrak contended less than 1 percent of the individuals arrested for DUIs were tested at .08 BAC levels.
Mr. Whorton pointed out the NDP cost reduction efforts already made. He brought to the attention of the committee the passage of the Residential Confinement Act which had reduced operating costs in that DUI offenders remained incarcerated in prisons for less time. He also noted additional changes where DUI offenders were given short sentences and did not remain incarcerated as long.
Chairman Sader noted the information NDP had provided was speculative as it was difficult to estimate the effect of the laws within the NDP system.
Mr. Kevin Welsh, Deputy Fiscal Analyst, Legislative Counsel Bureau, Fiscal Analysis Division, stated difficulty arose when new laws came into effect which imposed or increased sentences and impacted city or county jails and detention centers. He noted the Fiscal Analysis Division determined fiscal impact based on occurrence. He stated there were 8 decision-making stages in determining the fiscal notes. In any stage, there would be lateral discretion which would project from various entities reacting to economic, social and political pressures. The only viable method would be to apply mathematical models. Knowledgeable persons would be asked for input.
Mr. Welsh understood the difficulties evidenced in tracking the prison populations and the fluctuations. To try and maintain a solution, he had tracked Clark County DUI cases and came up with 127 tests for DUI offenders with 8 tests which fell between .08 and .10 BAC levels. This was a 6.3 percent increase. He noted the formula could be applied statewide. As Mr. Welsh understood, there would be an impact with the passage of A.B. 246. He could not make any assumptions as to what would occur within the 8 stages of decision making from the time of arrest to the time of incarceration.
Mr. Gary Rubenstein, Substance Abuse Counselor, University of Nevada Reno provided alternative thoughts on A.B. 246. He alleged laws did not control human behavior. The students he counseled averaged .21 BAC. According to Mr. Rubenstien, the students alleged they were not drunk at the time of arrest and claimed they had passed the field sobriety tests. In his opinion, drinking and driving was an attitude problem. According to studies, most adolescents started to drink at the age of 12 and in Nevada it was somewhat earlier.
According to Mr. Rubenstein, some students used breathilizer machines to determine BAC levels at parties. Any students with a .10 BAC level or more would have their automotive keys taken from them to avoid the chance of becoming arrested. He asked the message be sent it was not acceptable to drive with any amount of alcohol in the system. He said many students had stated they were not aware it was illegal to drink and drive. He hoped with the passage of A.B. 246 these attitudes would change.
Mr. Tom Tate, Executive Director, Nevada Commission on Tourism, testified in favor of passage of A.B. 246. He testified as a private citizen due to a glitch in the Nevada open meeting restrictions which kept the commission from authorizing his testimony. He addressed tourism in the state and supported doing everything possible to ensure highways and streets were safe for tourists.
Ms. Laurel Stadler, Lyon County Mothers Against Drunk Drivers (MADD), testified on behalf of A.B. 246. She addressed DUI public information endorsed by the Nevada Department of Motor Vehicles and Traffic Safety and Anheuser-Busch, Inc., Exhibit C. Ms. Stadler pointed out even the alcohol industry exhibited concern in reference to DUI.
Mrs. Stadler addressed the fiscal impact on the prison system should A.B. 246 pass and the Governor's proposal, the Facilities Release Act, also be enacted. She noted should the prison honor camps close, new prisoners entering into the system would have a zero fiscal impact as the system would be at full capacity at all times. New prisoners would cause the longer termed inmates to be released, thus the net effect on the prison cost would be zero. The only way to justify the additional $1 million would be to install new facilities for incoming inmates.
Captain Goddard, Nevada Highway Patrol, representing the Nevada Department of Motor Vehicles, testified in favor of A.B. 246. He stated, according to the Federal Department of Transportation, regulations established .04 BAC as the legal blood alcohol level for establishing driving under the influence for commercial vehicles. Convictions would mandate the loss of driving privileges for one year and 3 years for hazardous materials DUI offenders. He noted other states, i.e. Utah, Arizona and Oregon had .08 BAC level limits. During the first year the California Highway Patrol enacted the .08 BAC limits there was an 8.6 percent increase in DUI arrests. This was the basis for the fiscal note. With passage of A.B. 246, the .08 BAC levels would provide law enforcement the necessary artillery to fight against impaired drivers and send the message drinking and driving was unacceptable behavior.
Ms. Marlene Schultz, Nevada Department of Motor Vehicles, Office of Traffic Safety, spoke in favor of A.B. 246. She drew attention to the Position Paper on .08 BAC, Exhibit D, prepared by the Office of Traffic Safety and referenced page 2, paragraph 2, the fatality figures for 1991. She noted if the .08 BAC limit had been aggressively pursued, eight individuals who had lost their lives might have been spared as the offenders had been driving at .08 or .09 BAC levels. According to the National Highway Traffic Safety Administration, one life was estimated to be valued at $700,000.
Ms. Schultz read a statement from the Position paper on .08 BAC, Exhibit D, page 8, bottom paragraph, which referenced the .08 BAC level and the effect it had on the court system in California. She addressed various factors supporting the passage of A.B. 246. She added, if the state of Nevada could reduce the number of alcohol-related fatalities to 35 percent, lives would be saved.
Ms. Kimberly Bennion represented the Nevada division of the California State Automobile Association (CSAA). She testified in favor of A.B. 246. The CSAA supported the bill in its entirety as it would help make the roadways safe and allowed for additional federal funds.
Mr. Terry Hanson, Washoe County Crime Lab, answered questions in reference to the accuracy of the breath instruments. He assured the committee the changes expected with the breath instruments with the passage of A.B. 246 from .10 to a .08 BAC could be calibrated.
Mr. Toomin asked if the DUI breath analyzers could be manipulated. Mr. Hanson stated there were many procedures and standards incorporated into the systems. The instruments were accurate and subjected to strict control.
Chairman Sader closed the hearing on A.B. 246.
ASSEMBLYMAN PETRAK MOVED DO PASS AND REREFER TO WAYS AND MEANS COMMITTEE.
ASSEMBLYMAN TOOMIN SECONDED THE MOTION.
Mr. Toomin spoke in favor of A.B. 246. He referenced the State of Utah, Department of Public Safety, Highway Safety Office reports, Exhibit E, and noticed since enacting the .08 BAC in 1983, the death rate had been lowered by 44 deaths per year. The 44 deaths times the $700,000 would result in a $30 million fiscal impact. He stressed one death could not, however, be calculated as just a monetary value.
Although A.B. 246 was an emotionally impacted bill, Mr. Gregory stated he would vote against passage because he felt it would not stop drunk drivers from killing individuals. He referenced an article in the Cleveland Newspaper dated May 21, 1992, written by the founder of Mothers Against Drunk Drivers and titled, "Is M.A.D.D. Veering Off the Road?". According to Mr. Gregory, the founder of the organization did not support the .08 BAC law. The article alleged it was the drunk drivers with BAC levels in excess of the .08 BAC levels who were responsible for traffic fatalities. Mr. Gregory did not feel lowering the BAC levels in the law would have a significant impact on DUI fatalities.
Mr. Haller said he would vote for passage of A.B. 246 as the standard could be used to find individuals guilty or innocent of DUI offenses. He stated the bill, as amended, did not remove the .05 BAC provision for the presumption of innocence.
Mr. Schneider stated he would vote against A.B. 246 as he felt the $1 million fiscal note could be put to greater use with alcohol education in the school systems.
Mr. Scherer concurred with Mr. Gregory and Mr. Schneider's reasons for opposing A.B. 246. He felt the state was merely processing prisoners in and out of the penal system. He alleged inmates incarcerated at the .08 BAC levels, who had not caused injuries, should not be incarcerated alongside murderers and individuals who had caused substantial bodily harm. He maintained more lives would be saved through alcohol treatment programs and the assessment center concept. Mr. Scherer contended the state would be better off investing funds into those types of programs than in lowering the BAC level to .08 where individuals would be presumed to be guilty.
Mr. Carpenter indicated he would vote against the motion on A.B. 246. He felt the state of Nevada was already doing what was necessary to keep drunk drivers off the highways by utilizing various programs already in effect. He stated the laws alone were not enough to deter drunk drivers whereas the educational measures would benefit the cause.
Mr. Anderson alleged the most important testimonies were made by Mr. Rubenstein, UNR alcohol abuse counselor and Mr. Tate, the State Tourism Director. He felt the message A.B. 246 would send to the young people would be drinking and driving would not be tolerated which would have a positive impact in the long run. He supported the passage of A.B. 246.
Ms. Smith stated she would vote in favor of A.B. 246. She added she had been offended by the testimony presented during the hearing held March 9, 1993 which alleged DUI drivers were like other drivers. She argued there was a great difference between drunk drivers and others. If A.B. 246 would not have an impact on the drunk driver, nothing would. She felt the passage of A.B. 246 would send a strong message to impaired drivers. The medical, legal and emotional impact DUI related deaths had on individuals far outweighed the $l million fiscal impact which she did not believe was a viable figure. Ms. Smith stated it was the legislature's responsibility to set policy.
Mr. Petrak voiced his concern and stressed the positive impact A.B. 246 would have on the families, state and counties with passage of the .08 BAC law. He encouraged voting in favor of A.B. 246.
Copies of correspondences were received in committee and were made part of the record: Exhibit F, Mr. Timothy G. Randolph, Chief Prosecutor, City of Sparks; Judge Jay D. Dilworth, Reno Municipal Court; Mr. Zane Stanley Miles, Lander County District Attorney; and Sheriff John Moran, Las Vegas Metropolitan Police Department.
Chairman Sader called for a roll call vote on A.B. 246.
THE MOTION TO DO PASS AND REREFER TO WAYS AND MEANS COMMITTEE PASSED. (ASSEMBLYMEN CARPENTER, COLLINS, GREGORY, REGAN, SCHERER AND SCHNEIDER VOTED AGAINST.)
Chairman Sader informed the committee a joint hearing would be conducted to hear A.B. 306 and A.B. 171.
ASSEMBLY BILL NO. 171 Provides for issuance of permits to carry concealed weapon.
The requester of A.B. 171 was Assemblyman Arberry.
ASSEMBLY BILL NO. 306 Requires department of motor vehicles and public safety to issue permits to carry concealed weapons under certain circumstances.
Assemblyman Collins was the prime sponsor of A.B. 306. He voiced his concern in the way concealed weapons permits were issued in the state of Nevada. He urged passage of the bill.
Mr. Collins addressed an article in the Review Journal which referenced 1992 data which pertained to the Carry Concealed Weapon (CCW) Law. He noted 8,100 firearms had been registered in Clark County. Of those registered firearms, 3,156 were registered in December and approximately 4,000 firearms were registered in January. According to Mr. Collins, the Las Vegas Metropolitan Police Department reported over 500 handgun purchases. After the Los Angeles riots and the Las Vegas uprising, an increase in gun sales was evidenced. The article went on to divulge Las Vegas gun shop owners were competing with individuals who did not have licenses to sell firearms.
Mr. Collins quoted from the article in the Review Journal which stated, "Any persons who purchased concealed weapons permits must consent to background checks and submit to waiting periods. A less restrictive permitting process would not make guns more readily available to criminals but would serve the self-defense needs of law abiding citizens." Statistics supplied by the National Rifle Association showed the number of female members increased by 100,000.
Mr. Collins stated Florida law was the model used for this bill for the concealed weapons permits. He felt, with the Los Angeles riots, the state was long over due to adopt a successful concealed weapons program. Although A.B. 171 was brief and was accepted by the public, Mr. Collins felt A.B. 306 was more comprehensive and would be more palatable to law enforcement entities with adapted language.
Mr. John W. Riggs, Sr. testified in favor of A.B. 306, Exhibit G. He did not support A.B. 171, Exhibit G. Mr. Riggs presented a petition titled Nevada Legislature, Petition for Approval of CCW Law in Nevada. The petition allegedly contained 1,187 signatures supporting A.B. 306 in Northern Nevada. The petition was read by Mr. Riggs as follows: "We the undersigned, and affixing our signatures to this petition, have declared that we are Nevada residents and are in favor of a Carry Concealed Weapon (CCW) Law administered by the State of Nevada similar to that currently existing in the state of Florida. We further request that a lower jurisdiction cannot pass any restrictions that are in violation of state statutes that are more restrictive." Mr. Riggs added there were approximately 200 additional signatures not contained in the packet.
Mr. Don Trimmer testified in favor of A.B. 306. He felt there were several specific problems with the current provisions for concealed weapons permits application processes. Mr. Trimmer alleged the current criteria for approval or denial of CCW applications were inconsistent. He was personally aware of several individuals who had been denied CCW permits without explanation.
Mr. Trimmer suggested consideration of three factors now existing in Nevada to obtain a permit. 1) The Florida law which A.B. 306 was modeled after defined the criteria used in determining whether applicants would be approved or denied.
2) Applicants who had been denied had not been given reasons for the denial. The Florida bill would provide a solution to address the problem. The law would require denied applicants be given reasons for disqualification on the criteria for qualification. 3) There was no accountability on the part of law enforcement agencies as to what would happen to the applications, i.e. whether they were approved, denied, saved or thrown away.
The state of Florida expected a flood of CCW applications. Approximately 1 percent of the total population had applied. Mr. Trimmer submitted copies of the Florida Department of State, Division of Licensing statistical report on firearms for the period 10/01/87 through 6/30/92, Exhibit H. According to Mr. Trimmer the fear that criminals would apply for permits and obtain them was unfounded as criminals with records would not qualify. Criminals without records would not attempt to process through the system, and if they did, the law enforcement agencies would have more information on them.
Mr. Trimmer noted violent crime had diminished in Florida since the CCW law was enacted in 1987. He referenced the Florida Department of Law Enforcement, 1991 Annual Report on Crime in Florida, Exhibit I. Mr. Trimmer believed law enforcement agencies opposed the bill as they had attempted to make carrying a concealed weapon a crime so as to arrest a known offender when no other charges would stick.
Mr. Trimmer presented 3,000 petitions signed in Washoe County and another 1,000 petitions from Clark County. According to Mr. Trimmer, approximately 1,000 petitions were still in circulation. He presented a copy of the Petition form circulated in Clark County, Exhibit J. Exhibit K was an article written by a police officer who advocated citizens using firearms. The author had been active in the passage of the Florida Law.
Mr. Warren Stephens, proprietor, testified he had applied for a CCW permit and had been denied. He had been confronted by police regarding a concealed weapon, was subsequently arrested and charged with disturbing the peace and carrying a concealed weapon. According to Mr. Stephens, his business suffered vandalism and burglary for 2 years. Since he utilized his right to protect his property, he had not had any incidents of vandalism at his place of business. He contended the fact individuals had the right to carry firearms or the possibility of having firearms in possession deterred criminals. He strongly urged passage of A.B. 306.
Ms. Lucille Lusk, Nevada Coalition of Conservative Citizens (NCCC) testified for the right to keep and bear arms for recreation and self defense. According to Ms. Lusk, the NCCC did not support A.B. 171 as several provisions were not satisfactory.
Although she was an expert in the use of various firearms, Ms. Lusk had been told there was no use in her applying for a CCW permit as circumstances did not qualify her. She cited woman's rights to carry firearms for personal protection.
In reference to A.B. 306, Ms. Lusk suggested CCW permits be valid statewide. In Florida, the Department of State was used as the granting agency. In Nevada, the Nevada Department of Motor Vehicles and Public Safety would be acceptable as the granting agency. A notable aspect of A.B. 306 would be individuals must receive written notification as to the reasons for denial. Supporting documents should be archived. She believed the criteria for a CCW permit should be safety, not rapid fire qualification.
Ms. Jonine Hansen supported A.B. 306. She cited the rights of individuals to keep and bear firearms. She felt A.B. 306 re-established and affirmed this position. Ms. Hansen alleged individuals had the responsibility to protect themselves and their families.
Mr. Harry Pappas, Nevada State Rifle and Pistol Association (NSRPA), testified in favor of A.B. 306. He stated the NSRPA Board of Directors had not taken a position on A.B. 306 although it was the intent of the NSRPA to be on record philosophically supporting legislation of this type.
Sheriff Jerry Maple, Douglas County Sheriff's Department, testified in opposition to the passage of A.B. 171. He asked, should A.B. 306 pass, the Department of Motor Vehicles be used as the granting agency to issue CCW permits as it would be too cumbersome for the sheriffs departments to issue such permits.
Sheriff Maple testified there was no liability disclaimer in A.B. 306 which would relieve the Department of Motor Vehicles from the responsibility of the actions of the CCW applicants. There was no disclaimer in A.B. 171 should the sheriffs offices issue the permits.
Sheriff Maple noted problems would arise in the issuance of CCW permits unless the Nevada law was changed to allow the use of deadly force for property crimes. Law enforcement officers could not use deadly force on property crimes unless there was an immediate threat to ones life.
Although he was a strong advocate for the right to keep and bear arms, Sheriff Maple argued it did not give citizens the right to carry a concealed weapon on the streets. Carrying a concealed weapon on personal property was legal. 57 gun permits had been issued in Douglas County, a population of 30,000. He noted the Douglas County Sheriff's Department maintained a high criteria for CCW permits. In the state of Nevada it was legal for individuals to carry firearms in their vehicles for self protection.
Sheriff Maple was strongly in opposition to the idea of individuals carrying concealed weapons in casinos. There was an exemption in reference to CCW permits where alcohol was the primary business. He noted gaming was the primary business in casinos, not the sale of alcohol.
Sheriff Eric Cooper, Undersheriff, Las Vegas Metropolitan Police Department, testified in opposition to A.B. 306. He was the official responsible for reviewing every CCW permit application. He noted the number of considerations to be made when determining permits. Sheriff Cooper noted many applicants had criminal history reports of arrests for prostitution, pandering, etc. Outlawed motorcycle gang members, street gang members, organized crime associates would qualify under A.B. 306 and/or A.B. 171 for CCW permits.
Sheriff Cooper agreed A.B. 171 was flawed as presently written. He believed more restrictions had to be applied to A.B. 306 to satisfy the concerns of law enforcement officials. Law enforcement did not object to citizens having CCW permits. He did note when restrictions were placed on law enforcement, a number of unsavory individuals slipped through the loopholes. Sheriff Cooper suggested A.B. 306 be referred to a subcommittee in order for law enforcement officials to work with legislators to address the law enforcement concerns.
Ms. Paula Treat represented the Police Officers Research Association of Nevada who opposed both A.B. 171 and A.B. 306 as written. She requested organizational representation in the event either bill went to subcommittee. She alleged there were major problems contained in both bills.
Mr. Barney Dehl, Chief Deputy, Washoe County Sheriff's Office testified in opposition to A.B. 306. He concurred with recommendations a subcommittee be established to address the law enforcement aspects of the bill.
Mr. Dehl presented written comments regarding A.B. 306, Exhibit L. He warned A.B. 306 was written to provide a level of protection for individuals but might increase the risk of danger to the general public. He observed no competency requirements were contained in the bill. The bill merely stated applicants must complete safety courses. No limitations as to when the safety courses must be completed were noted in A.B. 306. Mr. Dehl suggested time limitations in which the course must be completed, such as 3 to 5 years before the time of application was made. He recommended the applicants be required to submit proof of completion of firearms courses approved by the Department of Motor Vehicles and Public Safety. The assurance of competency with the weapons should be addressed. As it currently stood, applicants were not required to qualify with the weapons. Applicants should have instructions with handgun retention.
According to Mr. Dehl, nationally, approximately 20 percent of the bullets fired by police hit their target. Eight out of ten bullets fired did not hit the intended target but hit innocent bystanders, other policemen or property. In 1991, in New York City, half of the policemen shot were shot by themselves or by fellow police officers. Mr. Dehl surmised private citizens without firearms training would not shoot any better. Nationally, 1 out of 5 police officers were shot with their own weapons.
Mr. Dehl suggested along with the competency requirement there should be courses in firearms retention. He stated the use of deadly force should be addressed in training. The courses should instruct the most appropriate weapons to carry and the best ammunition to carry. Mr. Dehl pointed out A.B. 306 did not provide adequate limitations on persons who carried concealed weapons, such as gang members who would not have an adult felony record.
Mr. Dehl said A.B. 312, submitted the previous week, limited gaming licenses to persons who did not pose a threat to the public good. A concealed weapons permit should be limited to persons who did not pose a threat to public safety. Mr. Dehl suggested discussion regarding places where guns would not be carried. According to Mr. Dehl, A.B. 306 did not take into account local governments which had passed ordinances which stated weapons could not be carried in specific locations, such as local casinos. A CCW permit would override local ordinances. He alleged as the bill currently stood, the cities and counties would not have the authority to limit any place in their jurisdiction where weapons could not be carried.
Mr. Dehl continued A.B. 306 did not provide for the collection of adequate fees. There was a nonrefundable $75 fee in the bill but the bill did not address whether it covered the costs of fingerprinting. The Federal Bureau of Investigations and Department of Motor Vehicles charged $38 for fingerprinting. Deducted from the $75, $37 would be left which would not be adequate to process a CCW permit.
Mr. Dehl stated the cost in Washoe County to process a CCW permit would be a minimum of $100. The Washoe County Sheriff's Department had no problem with the Nevada Department of Motor Vehicles conducting the concealed weapons permit applications as it passed the liability on to the NDMV. He surmised the local jurisdictions would not be inclined to share intelligence or criminal justice information with NDMV. He noted there were no provisions in A.B. 306 for the applicants to be refingerprinted on reapplying for CCW permits. He suggested refingerprinting every 3 to 6 years as applicants could be convicted of crimes elsewhere and NDMV would not be aware of the conviction.
Mr. Dehl continued to address the limitations in A.B. 306 and stated applicants were not required to requalify before new permits were issued, therefore applicants could switch to higher-powered firearms. In summation, Mr. Dehl stated private citizens with CCW permits would have greater powers than police officers in similar circumstances as a private citizens could shoot individuals for property crimes whereas police officers could not. He felt the right to carry concealed weapons was an awesome power and should be granted only to those citizens most qualified.
Chairman Sader stated A.B. 306 required additional consideration by the committee. He appointed a subcommittee with Mr. Porter as chairman, and Mr. Collins and Mr. Toomin as subcommittee members.
Mr. Haller brought to the attention of committee members an additional petition which referred to the right to keep and bear arms, submitted by Jonine Hansen, Exhibit M. He felt the petition was misleading and preyed on an emotional subject as it did not mention concealed weapons.
Chairman Sader noted because A.B. 306 had been referred to subcommittee, further testimony would be taken during a later hearing if held by the subcommittee.
Chairman Sader closed the hearings on A.B. 171 and A.B. 306.
SENATE BILL NO. 2 Provides United States Marshal and his deputies certain authority to arrest persons without warrant.
The Senate Judiciary Committee was the requestor of S.B. 2 and the United States Marshals Service was the requesting agency.
Chairman Sader noted S.B. 2 would expand an existing statute which presently allowed any agent of the Federal Bureau of Investigations to perform certain law enforcement tasks without warrants, which included the authority to arrest. S.B. 2 would expand that authority to an agent of the U.S. Marshall's Service.
Mr. John Robinson, Deputy, United States Department of Justice, United States Marshals Service, testified in support of S.B. 2. He explained the duties performed by the United States Marshals Service (USMS) of which approximately 9/10 involved protecting the courts, the judiciary and transporting prisoners. The only duties performed in the field were when attempting to arrest fugitives on fugitive warrants.
Mr. Robinson noted USMS deputies were often in a position to arrest individuals for state of local crimes. According to Mr. Robinson, in these instances, the USMS deputies did not have law enforcement power. Local law enforcement officers would have to be contacted, during which time situations often deteriorated and became dangerous. Mr. Robinson alleged if the USMS deputies had local arresting authority, they could act promptly and turn fugitives over to local law enforcement entities. He used as a scenario cases where federal park rangers might arrest fugitives on federal lands. The Federal Magistrate might release the accused individuals on bail during which time local warrants might be lodged against them. Sometimes local authorities did not arrest the offenders.
Mr. Edward L. Presley, Consultant, NOR-DAK, stated his occupation entailed consultation of individuals who had problems with officers of the federal government. He was often hired to conduct Freedom of Information Act requests and ascertain whether or not federal officers conducted the duties of their offices within the bounds of their delegated authority.
Mr. Presley stated his concern regarding S.B. 2 was the vagueness in which the bill was drafted. According to Mr. Presley, S.B. 2 might have broadening powers which might reflect a constitutional question. His main objection was in reference to state sovereignty. He alleged there might be a hidden agenda behind the bill. He suggested cleaning up the language in S.B. 2 and defining where federal officers would be allowed to make their arrests.
Mr. Presley presented handouts, Exhibit N, which consisted of a copy of S.B. 2, some Nevada Revised Statutes, and prepared notes on federal jurisdiction and cases dealing with the necessity of delegated authority. According to Mr. Presley, the report contained a synopsis of what was contained in a report that was done for President Eisenhower in 1956 and 1957. The referenced issue had already been dealt with at the federal level. Mr. Presley asked if Parts I and II of the Jurisdiction Over Federal Areas Within the States be part of the record.
Mr. Presley stated the concern over S.B. 2 was Article I, Section A, Clause 17 of the United States Constitution. In brief, he stated, the original thirteen colonies were separate nations given power under the crown. To this day, the Constitution has not changed. Article I, Section A, Clause 17 of the United States Constitution was created as the federal government was concerned about the several states and their sovereignty and not being able to function on the federal level. The provision in the United States Constitution gave the federal government exclusive powers over a specific area called the District of Columbia, and within the several states, power over forts, arsenals, magazines, dock yards and other needful buildings.
The hidden agenda Mr. Presley discussed was contained in S.B. 2, page two. According to Mr. Presley, he saw the bill in its present form, without amendments, as counter to NRS 328.075, the procedural limits of federal jurisdiction. He contended the state of Nevada had taken a strong stand on Article I, Section 8, Clause 17 of the United States Constitution over its history. If S.B. 2 would pass in its present form, Mr. Presley stated it would nullify parameters and limitations set forth in NRS 328.075.
Mr. Presley argued testimony had been presented on the Senate floor the USMS deputies did not have the powers to arrest if they were present when a crime was being committed. Mr. Presley alleged the USMS deputies did have the powers to arrest as citizens. The vagueness of S.B. 2 would be a public offense as, according to Mr. Presley, there was ambiguity in the content. He addressed the scenario in which any individual could approach a federal marshal and tell him he saw a crime committed. The federal marshal would not have to be in the presence of the crime committed. There were no parameters outlined where arrests would be conducted, which Mr. Presley felt was the public offense.
Mr. Presley addressed what he believed was the federal government desiring further powers within the state. He felt it was prima facie evidence on its own merit the federal government did not have the power to arrest within the state and was asking for that power. He contended the state had the power to grant the federal government this power with the proviso contained on the front page of Exhibit N which stated, "It is our recommendation that after 171.1245 the injection of only on land acquired pursuant to Article I, Section 8, Clause 17 of the Constitution of the United States." Mr. Presley felt the provision would clean up the language contained in S.B. 2 and make it constitutionally correct. The provision would forestall any constitutional challenges and the state would not suffer any of its sovereignty.
Mr. Presley cited court cases such as Pollard vs. Haggin which the Nevada Legislature had recognized limitations on the powers of federal officers. He referenced the Public Lands Ownership Act whereby Alabama tried to relinquish its sovereignty when it achieved statehood. He testified the Supreme Court struck this case down in 1885. Mr. Presley referenced the key cornerstone case Fort Leavenworth Railroad vs. Lowe copied on the last page of Exhibit N. He quoted from the case, page 5: "As already stated, the land constituting the Fort Leavenworth Military Reservation was not purchased but was owned by the United States by secession from France many years before Kansas became a state and whatever political sovereignty and dominion the United States had over the place comes from the secession of the states since their admission to the union."
Chairman Sader interjected at this time noting time restrictions and asked for further testimony. He informed the committee S.B. 2 would be rescheduled for another hearing to receive further testimony.
Sheriff Wade Lietske, Jr., Nye County Sheriff's Department, spoke in opposition to S.B. 2. He stated Nye County was the largest county in the state and the third largest county in the United States. He contended the problems with S.B. 2 were jurisdictional in nature. His concern was the power U. S. Marshals Service wanted when they already had that power as citizens. According to Sheriff Lietske, the government was constantly seizing cattle for grazing violations with no court order but with a permit which allowed them to do this on their own merits. He argued the ranchers in his area felt their property was removed by federal officers without due process. He voiced his concern in regard to the federal agents overriding the authority of the local elected sheriffs.
Due to time constraints, Chairman Sader closed the hearing on S.B. 2 noting testimonies would be heard at a later date.
RESPECTFULLY SUBMITTED BY,
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
March 10, 1993
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