MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 6, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:02 a.m., April 6, 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 A. 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. Donald J. Mello, Director, Administrative Office of the Courts
Mr. Noel S. Waters, Carson City District Attorney
Ms. Mary Henderson, Senior Administrative Analyst, Washoe County
Sheriff Paul B. McGrath, Nevada Sheriffs and Chiefs Association
Mr. Larry Stout, Chief, Nevada Department of Motor Vehicles and Public Safety, Police Officers Standards and Training
Mr. David Haneline, Nevada Department of Motor Vehicles and Public Safety
Mr. Jay D. Dilworth, Reno Municipal Court
Captain Frank Barker, Legislative Liaison, Las Vegas Metropolitan Police Department
Mr. Rick Hart, Fatal Investigator, Las Vegas Metropolitan Police Department
Ms. Tracy Birch, Criminalist, Las Vegas Metropolitan Police Department
Mr. Enrico Togneri, Commander, Washoe County Sheriff's Office, Forensic Science Division
Ms. Judy Jacoboni, Mothers Against Drunk Drivers
Ms. Patricia Justice, Nevada Attorneys for Criminal Justice
Following roll call, Chairman Sader called the meeting to order.
ASSEMBLY BILL NO. 389 Makes various changes related to procedures for determining percentage of alcohol in person's blood, urine or breath.
Captain Randy Oaks, Las Vegas Metropolitan Police Department, had introduced A.B. 389. Captain Frank Barker, Legislative Liaison, Las Vegas Metropolitan Police Department, testified in favor of passage of the bill.
Ms. Tracy Birch, Criminalist, Las Vegas Metropolitan Police Department, Forensic Laboratory, disclosed she was in charge of the Breath Alcohol Program for the southern portion of the state. She spoke on behalf of the Governor's Committee on Testing for Intoxication as well as the Las Vegas Metropolitan Police Department.
Ms. Birch informed the committee members the Committee on Testing for Intoxication had been empowered by the legislature to regulate breath and blood alcohol testing for DUI conviction purposes. She had been an advisor to the committee since 1984. According to Ms. Birch, the legislature had enacted the DUI law in 1989 which defined the amount of alcohol concentration found in individuals' breath. The DUI law clarified the existing law which defined the amount of alcohol present in individuals' blood.
Ms. Birch stated, pursuant to this law, the level of alcohol concentration deemed illegal in DUI convictions was .10 breath alcohol concentration or .10 blood alcohol concentration.
She noted A.B. 389 was a housekeeping bill and would further define the language contained in the DUI statutes although the bill would not change the basic DUI regulations. Prior to the DUI law enacted in 1989, all DUI charges had been reported as blood alcohol concentration. After the DUI law had been changed, not all references to blood alcohol concentration had been corrected to the term "breath" alcohol which caused confusion as to whether the law pertained to blood alcohol concentration, breath alcohol concentration, or both. Ms. Birch alleged, with the passage of A.B. 389, the law would clarify the intent of the language.
Mr. Enrico Togneri, Commander, Washoe County Sheriff's Office, Forensic Science Division, testified in favor of A.B. 389. He stated he was a member of the Governor's Committee on Testing for Intoxication. He noted the passage of A.B. 389 would empower the Committee on Testing for Intoxication to regulate the blood testing criteria for drugs and alcohol. At the present time, he contended, the language contained in the bill was ambiguous as it was unclear as to whether the department could regulate the DUI standards and assure the same quality for drug screening in blood as was currently in place for breath testing.
Mr. Sader noted the proposed changes in A.B. 389 would insert the term "breath" where current language read "blood or breath". The term "or breath" would be added. In some sections of the bill the term "blood" would be deleted and the term "breath" inserted. Mr. Sader cautioned the proposed changes not delete the word "blood" in portions of the bill where the term should not be deleted.
Ms. Birch noted the provisions in the DUI statutes applied only to breath alcohol concentration although the law continued to read blood alcohol concentration. This language, according to Ms. Birch, was causing the confusion for attorneys and judges. Mr. Sader assured the committee the statute would specifically reference blood or breath alcohol concentration, or both.
Mr. Carpenter expressed concern as to the reliability of the DUI breath tests. Ms. Birch assured him the breath testing procedures and results in the state were reliable as there had been numerous tests conducted on breath and blood alcohol concentration and the correlation between the two. She alleged the issues were in the DUI statutes.
Mr. Carpenter questioned the accuracy of the DUI breath tests administered in the field. In reply, Mr. Togneri informed him the preliminary DUI breath testing devices were very accurate although the state of Nevada did not permit the breath tests conducted in the field to be used as sole evidence in proving inebriation. The DUI breath tests conducted in the field were used as preliminary screening devices. Mr. Togneri assured these testing methods had been certified by the National Traffic Safety Council in Washington D.C.
Mr. Carpenter asked what the procedures were after the DUI breath tests had been administered in the field. Responding to the inquiry, Mr. Togneri informed him the DUI breath tests administered in the field were conducted by PVTs. The devices were hand-held portable units which did not contain solutions to establish alcohol content. Once officers determined probable cause for the arrests through verifications made by either field sobriety tests, preliminary breath tests, or combinations of both, the offenders were transported to the law enforcement center for additional breath or blood alcohol tests. The DUI breath tests taken at the police station were conducted by machines which had been calibrated by criminalist and contained solutions of known alcohol content which verified proper functioning. The machines at the law enforcement center were more accurate than the hand-held units used in the field.
There being no further testimony to come before the committee, Chairman closed the hearing on A.B. 389. He opened the hearing on A.B. 388.
ASSEMBLY BILL NO. 388 Makes various changes to provisions governing administrative assessments for misdemeanors.
Sheriff Paul B. McGrath, Carson City Sheriff's Office, represented the Nevada Sheriffs and Chiefs Association, the requesting agency for A.B. 388. He stated the proposed amendments to the bill would change the formula for the distribution of collected fees and would allow the funds, through administrative assessments, to be used for the Police Officers Standards and Training (POST) department.
Sheriff McGrath stated the POST received a percentage of their operating expenses through administrative assessments and the balance of revenues came from the state general fund. He claimed, with the passage of A.B. 388, the POST would be entirely funded by administrative assessments which would support the Nevada Law Enforcement Academy. The bill would allow for the expansion of law enforcement programs and permit limited capital improvements.
Chairman Sader provided an overview of A.B. 388 and noted this bill was the 1993 administrative assessments bill. He stated the Nevada Legislature, in the 1980's, had established the practice of utilizing assessments against fines in misdemeanor cases. Assessments had become major funding sources for law enforcement entities, the judicial system, as well as law-enforcement-related issues. As there was a division in the funding in the statutes, biennial discussions and disputes ensued as to how the revenues were to be divided.
During previous legislative sessions, Mr. Sader continued, law enforcement representatives had requested larger portions of the administrative assessments. The additional allocation requests had been denied due to the revenue requirements of the judicial system. The administrative assessments had become a major alternative funding source to the general fund revenues. Chairman Sader advised the committee the Judiciary Committee would be required to consult with the money committees. The proposed amendments to A.B. 388 suggested the distribution formula be administered so the POST program would be funded by assessments and not through the state general fund.
Sheriff McGrath stated he, along with the state judges and District Attorney, had drafted the proposed amendments to NRS 176.059, Administrative assessment for misdemeanor: collection; distribution; limitations on use, Exhibit C
Sheriff McGrath reiterated current revenues for POST operations were allocated from the general fund. He alleged the POST could not meet the demands of the law enforcement community statewide on the limited revenues. He provided a synopsis of the funding allocations, Exhibit C. He stated during fiscal year 1991/1992, the POST was appropriated $186,847 for operating expenditures from the general fund. In FY 1992/1993, the POST had been allocated $170,923. The Governor's proposed budget recommendations for FY 1993/1994 was $84,440 and FY 1994/1995 was $39,947. Sheriff McGrath emphasized the drastic reduction in POST operating revenues. The Nevada Sheriffs and Chiefs Association requested a stable funding source for POST operations. The administrative assessments appeared to be the most logical solution to the funding crisis.
Sheriff McGrath maintained the Governor, by statute, would direct allocation of administrative assessments to fund POST. At the present time, the POST had approximately $400,000 in administrative assessments. He contended, with the reduction of revenues in the proposed 1993/1994 budget, the POST would be forced to operate with a skeleton crew and would not have sufficient operating revenues to expand proposed programs.
Sheriff McGrath focused attention on the proposed amendment to A.B. 388, Section 1, Exhibit C. The amendment would reduce the $5 minimum fine to zero and the courts would administer a minimum $10 assessment fee. This section of A.B. 388 was patterned after the South Carolina law which mandated a $27.25 minimum assessment fee to individuals utilizing the court system. Sheriff McGrath stated the $10 administrative fee would be levied in misdemeanor cases such as first time speeding violations. Prior to this, the courts merely issued warnings. He noted the offenders utilized the time of the officers as well as the courts. The Nevada Sheriffs and Chiefs Association asked for a $10 minimum administrative assessment fee.
Sheriff McGrath addressed the 40 percent change in the distribution formula under NRS 176.059 scheduled for FY 1993/1994, Exhibit C. He added the estimates had been based on past court actions and pertained to the fines levied and the assessments collected. He asked the minimum threshold be dropped to zero dollars.
Sheriff McGrath addressed the second proposed change to A.B. 388, Exhibit C, which referenced the amount of distribution of operating revenues. He stated, at present, 51 percent of the revenues were allocated to the court administrator. The Sheriffs and Chiefs Association requested the current 49 percent distribution of revenues for law enforcement activities be increased to 51 percent. This increase would help fund the Nevada Criminal History Repository, the Peace Officers Standards and Training, and the Nevada Highway Patrol Computer Switching System. Any excess funds would be transferred to the courts.
Sheriff McGrath clarified the proposed distribution formula further, Exhibit C. The distribution formula had been based on the past assessments for FY 1991/1992. He noted during FY 1991/1992, 376,134 assessments had been levied in the state. With the 40 percent projected increase the number of assessments would increase to 526,000. With the $10 minimum value assessment fee, the total revenues would increase to $1.5 million. This money would be sufficient to fund the POST and other judicial programs. The $2.50 and the $1.50 would be retained for the judicial system.
Mr. Noel Waters, Carson City District Attorney, stated the provisions in A.B. 388 would pertain to those individuals found guilty of misdemeanor offenses, not those individuals charged.
The proposed amendment would lower the minimum threshold for fines from $5 to zero. He contended individuals with inconsequential misdemeanor convictions burdened the system. It was appropriate to impose administrative assessments on those individuals charged. The interest of the courts was there not be penalties levied upon individuals acquitted of crimes.
Mr. Waters added lowering the minimal threshold would substantially increase available funds. Non of the entities involved would lose anything under the presented projections. He urged favorable consideration of A.B. 388.
Mr. Sader asked how much money POST would be allocated from the general fund for FY 1993/1994 without the passage of A.B. 388. In reply, Sheriff McGrath stated POST would receive $84,440, as per the Governor's recommended budget. Mr. Sader asked what the amount of revenues allocated to POST would be from administrative assessments. Sheriff McGrath replied $454,000. During FY 1994/1995, the POST was allocated $39,947 from the general fund and $498,496 from assessments. Mr. Sader asked if A.B. 388 was passed, how much revenue would POST receive for FY 1993/1994. McGrath replied $971,934. He added FY 1994/1995 had not been projected although it would be higher based on the current growth rate. The amount was estimated to be slightly over $1 million.
Should A.B. 388 pass, Mr. Sader calculated a 45 percent increase in POST revenues would occur. If POST was allocated $454,000 from administrative assessments, and the revenues increased to $971,000, there would be a 134 percent increase. This would not take into consideration the general fund revenues. A 90 percent increase was estimated in general fund revenues.
Sheriff McGrath asked general fund money not be used in the event A.B. 388 passed. Mr. Sader noted the savings to the general fund would be $84,400 during the first year, and $39,000 during the second year. Sheriff McGrath confirmed his observation.
Mr. Gibbons addressed A.B. 388, Section 1, Subsection 9 which stated money allocated or distributed under this agreement would not impact the general fund revenues. As he understood, the provision in the bill implied POST would receive funding without impacting the general fund revenues. Sheriff McGrath confirmed this. Mr. Gibbons reiterated Sheriff McGrath had requested general fund revenues not be allocated. Sheriff McGrath stated the revenues collected from assessments would support POST expenditures entirely. The POST operating expenses were not expected to exceed the allocated revenues, therefore, the general fund would not be impacted.
Chairman Sader noted the matter would be presented before the money committees. As Mr. Gibbons understood, in A.B. 388, Section 9, POST would receive general fund revenues not- withstanding the fact the fees were generated and provided for the POST academy. Sheriff McGrath replied the glitch could be easily changed by amending the language.
Mr. Sader clarified A.B. 388, Section 9 would require amending as the bill currently read "it did not displace the money otherwise available from a public agency." Mr. Waters contended the reason for the specific provision was not for the benefit of POST. The intent was for other law enforcement programs such as the state switch or the Criminal Justice Repository. The language could be amended to specify the intent.
Mr. Petrak addressed A.B. 388, Section 8, Subsection 4 and referenced the 35 percent distribution for the compensation of victims of crime. He queried what the amount would be and how the revenues would be allocated for the Victims of Crime program. In reply, Sheriff McGrath stated revenues collected were deposited in the general fund. The funds referenced were FY 1991/1992 during which period the Victims of Crime received $1,413,000. Based on the FY 1993/1994 calculations, the program would receive $1,417,000 for FY 1993/1994.
Responding to Mr. Schneider's concern, Sheriff McGrath clarified the use of the phrase "expanding programs." He explained during FY 1991/1992, substantial revenue appropriations had been allocated for POST operations. Over the years, budgets had been continually cut which adversely affected programs such as the DARE drug prevention program. The funding projections committed during the 1989 legislative session to expand law enforcement operations in the south had been forestalled as no funds had been appropriated to POST to complete the project. The revenues from the general fund had also been critically curtailed. This was what Sheriff McGrath alluded to by the use of the term "expanding programs."
Mr. Larry Stout, Chief, Nevada Department of Motor Vehicles and Public Safely, Division of Peace Officer Standards and Training explained the DARE program. He stated police officers required training to instruct the DARE program in the schools. In the past, federal training funds had been made available to bring instructors from the Los Angeles Police Department's DARE Division to train Nevada law enforcement officers. These federal funds were slated to be cut in one year. The POST would conduct their own DARE training and would require additional funding to continue.
In response to Mr. Anderson's question, Mr. Stout stated the training facilities for the Nevada Highway Patrol (NHP) and the POST academy were located in the Nevada Law Enforcement Academy. The two training facilities had been combined and resulted in significant savings to the state. He noted specialized NHP training continued after the cadets graduated from the law enforcement academy. Training entailed the basic 13 weeks or a 582 hour curriculum which all peace officers attended. Previous NHP training requirement had been 22 weeks. NHP officers currently received 20 weeks of training; this was 7 weeks longer than the other police officers in the state.
Mr. Anderson addressed the proposed amendments to A.B. 388, Section 10, Exhibit C, which directed all money apportioned pursuant to this section if to include interest accrued,...but must remain in the account for the use of the designated agency in any subsequent year. Mr. Anderson alleged the intent appeared to be in direct conflict with the essence of the first reprint of A.B. 55. Sheriff McGrath informed the committee the language contained in A.B. 55 would be included in the current bill.
Mr. Anderson contended Section 9 and 10 of the proposed amendments violated the whole concept of A.B. 55. Sheriff McGrath responded and stated A.B. 388, Section 9, as testified by the District Attorney, pertained to other entities within the state, other than POST.
Mr. David Haneline, Deputy Director, Nevada Department of Motor Vehicles and Public Safety (DMV), testified in support of A.B. 388. He informed the committee DMV administered the DARE program. The DMV worked closely with the Chiefs and Sheriffs Association in adopting the current statute which would assist in the funding of POST.
Judge Robey Willis, President of the Nevada Judges Association, maintained they would not take a position on the provisions to A.B. 388 at this time although Mr. Willis agreed to retain the section which alluded to A.B. 55.
Mr. Donald J. Mello, Director, Administrative Office of the Courts, alleged the proposed amendments to A.B. 388 was the third version he had viewed. He testified in opposition to the bill. There was a fiscal note to A.B. 388. Mr. Mellow directed concern toward the one percent shift in funds from the judiciary branch of state government to the executive branch. He contended this move would be disastrous as the judiciary required 51 percent of the revenues to meet operating expenditures. Because the court did not provide advisory opinions, Mr. Mello could not speak on behalf of the court. He noted the court might rule away with administrative assessments in the future.
Mr. Mellow informed the committee the one percent shift in forecasted revenues would result in $39,000 being distributed from the judicial branch to the executive branch during the first year and $41,000 in the second year. He alleged the alteration of the distribution formulas would result in a decrease in administrative assessments allocated to the Supreme Court which was funded by assessments and appropriations. He added if the assessments to the Supreme Court were decreased in favor of POST, an appropriation would be required to offset the decreased revenues. He contended law enforcement officers would become bounty hunters as each ticket issued would increase the POST's share of the revenues.
Mr. Mello brought up an additional issue as to whether the revenues received would become taxes or assessments.
Mr. Carpenter requested clarification on Mr. Mellow's statement the courts might rule assessments as unconstitutional if the courts did not receive the revenues they ascertained was their proper share of the assessments. Mr. Mellow replied, if the decision was made, the funds would become a tax, therefore, the courts would be collecting taxes. He noted the courts had expressed in their last opinion, more revenues were being allocated for executive branch functions than judicial functions.
Mr. Anderson noted the courts generated the fees and the police officers enforced the laws. Mr. Mellow stated this addressed the issue as to whether this was a court assessment or a tax. If the court generated the fees, the argument in the past had been the court should be retaining the fees.
Mr. Mellow would support the other agencies which would receive the executive branch's portion of the revenues on a percentage basis provided it would not be in conflict with the proposed budgets. This would change the amount of revenue allocations for judicial agencies such as the AOC, the Computerization Account, the Judicial Education, the Recall Judges Duty Fund and the Supreme Court.
In reply to Ms. Smith's concern, Mr. Mello stated the contention of the judiciary in the past was the majority of the funds should remain with the judiciary in order to avoid the appearance the funds were taxes. Otherwise, the revenues funded agencies which should be tax-supported, in the opinion of the judiciary.
Ms. Mary Henderson, Washoe County Senior Administrative Analyst, stated she had similar concerns with A.B. 55. She believed language could be drafted into A.B. 388 which would resolve the problems in Washoe County. She contended interest-bearing accounts were difficult for counties to track, account by account, and accrue those monies into funds. The provisions in A.B. 55 created special revenue accounts which could address the issue. To remedy the issue, Ms. Henderson suggested at the end of two years, provided the money was not expended, the revenues be adjudicated back to the county general fund. Without this provision, the money could stay in the accounts forever. Accountability was needed. There had to be a specified time period which addressed how long the monies could be retained in the accounts.
Ms. Henderson noted discrepancies with A.B. 388, Section 5, subsection C as well as Section 6, subsection C which referenced the county clerk depositing money into the State Treasury. She alleged the county clerk did not deposit money into the State Treasury but into the county treasury.
Mr. Mellow disputed the Sheriffs Association stand to lower the base level for assessments from $5 to zero. To support his argument, Mr. Mello alleged he conducted an informal survey of the courts to ascertain how many cases would account for the increase in revenues and it was found to be a negligible amount. He encouraged the committee to not base its decisions on the presented statistics as he did not believe the information was accurate.
Mr. Sader asked if the figures represented a 40 percent increase in revenues or a 40 percent increase in assessments. It was confirmed as 40 percent increase in assessments. Based on FY 1991/1992 statistics, 376,137 assessments had been made. Mr. Mellow disagreed and felt it was an overly optimistic number.
Sheriff McGrath would work with Ms. Henderson on the proposed amendments.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 388. He opened the hearing on A.B. 392.
ASSEMBLY BILL NO. 392 Creates crime of vehicular manslaughter.
A.B. 392 was introduced by the Las Vegas Metropolitan Police Department. Captain Frank Barker, Las Vegas Metropolitan Police Department, testified in support of A.B. 392.
Mr. Rick Hart, Investigator, Las Vegas Metropolitan Police Department, Fatal Detail, testified in support of A.B. 392. To support his stand on the bill, he presented a scenario where a husband had found his wife lying on their front lawn, dead. A vehicle had struck the woman and fled the scene. The suspect had been arrested for involuntary manslaughter, and felony hit and run charges. Mr. Hart continued, during the course of the investigation and trial, the involuntary manslaughter charges had been dropped as there was no law to support the case. In other words, the vehicle had done nothing wrong. The case had been dropped and the subject received a one-year sentence for felony hit and run.
Mr. Hart emphasized the involuntary manslaughter statute did not equate to vehicles. The statute was listed in the 200 section of the Nevada Revised Statutes which alluded to crimes against persons. In order to prove involuntary manslaughter in this particular case, intent would have to be proven versus negligence.
Mr. Hart stated, since 1988, 60 cases had evolved where citations had been issued to motor vehicle operators directly responsible for fatalities. Many other cases were clearly involuntary manslaughter and citations had been issued. He believed the enactment of a vehicular manslaughter law would solve the issues in these types of crimes.
Mr. Gregory surmised the drivers alluded to had not been under the influence, had not been speeding nor had they broken the law. Mr. Gregory asked, under the proposed amendment, when offenders traveled at excessive rates of speed, would they be charged with other citations or criminal activities. In reply, Mr. Hart stated drivers would be charged under the provisions of A.B. 392, Section 1, which excluded other possible charges under NRS 484.377, reckless driving, and NRS 484.3795, felony DUI.
Mr. Gregory maintained individuals were going to make mistakes and would have to live with the fact they killed someone which, in itself, was punishment enough. He asked if it was justified to incarcerate those drivers who involuntarily killed others. Mr. Hart added, under the reckless driving code, the penalties varied. The statute read "without due care for life or property." The issue was how many miles over the speed limit was considered reckless driving. There were no guidelines in the statute which discerned what constituted reckless driving and what did not.
Ms. Smith believed, unless the act was intentional, drivers who had been responsible for the deaths of family members or passengers in their vehicles did not deserve to be prosecuted. Mr. Hart responded by stating law enforcement and the judicial system would not prosecute in these instances.
Mr. Petrak used the scenario where drivers hit and killed pedestrians. He alleged the drivers, under A.B. 392, would be subject to incarceration from 1 to 6 years. Mr. Hart replied this was not the intent of the bill. The statute would provide an option.
Ms. Judy Jacoboni, President, Mothers Against Drunk Driving (M.A.D.D.), Lyon County Chapter, testified in support of A.B. 392. She stated the proponents from M.A.D.D. had been concerned with the passage of an involuntary manslaughter law as reckless driving and DUI statutes were already in place. M.A.D.D. asked the provisions in A.B. 392 never supersede or replace the current DUI statutes.
Ms. Jacoboni requested the term "involuntary manslaughter" referenced to in A.B. 392, Section 2, subsection 1 be amended to include the definition for vehicular manslaughter. The concern was involuntary manslaughter might be charged in circumstances where cases could not be prosecuted as DUI offenses. The term "involuntary manslaughter" might infer the incidents were accidents when in fact, she noted, they might not have been. M.A.D.D. did not concur with the use of the language "involuntary manslaughter" when DUI statutes could not be applied. They suggested amending the language to include "vehicular manslaughter" along with "involuntary manslaughter."
Ms. Laurel Stadler, Mothers Against Drunk Driving, Lyon County Chapter, testified in favor of the passage of A.B. 392 with amendment. She stated the proponents of M.A.D.D. would like to incorporate mandatory license revocation in the provisions as there were mandatory license revocations applied in reckless driving and DUI statutes.
Ms. Patricia Justice spoke on behalf of the Nevada Attorneys for Criminal Justice. Ms. Justice and representatives from the Las Vegas Metropolitan Police Department concurred with amending A.B. 392, line 12 by inserting $2,000 in place of $5,000 which was the same for gross misdemeanors. She suggested amending A.B. 392, lines 6 and 7 by inserting the term "criminally negligent" or "culpably negligent." She informed the committee the term "accident" had never been defined in the Nevada Revised Statutes. As the law stood, according to Ms. Justice, anyone would go to prison if they were proven negligent in a death which was not the intent of the bill. She contended if the terms "criminally negligent" or "culpably negligent" were applied, the discretion would be removed and only those individuals who should be prosecuted would be imprisoned.
Mr. Gregory asked if the term "criminally" was inserted into the bill, which cases would be charged and which would not. Ms. Justice replied any case would be charged. The term "criminally negligent" would have to be defined as it had not been addressed in the state.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 392.
Chairman Sader stated committee consideration on A.B. 389 would not be conducted at this time as witnesses of the Trial Lawyers Association wished to submit written testimony. Consideration of A.B. 389 would be taken during the work session scheduled for April 9, 1993.
Chairman Sader informed the committee the proposed amendments on A.B. 388 would be completed and would be addressed during the work session scheduled for April 9, 1993.
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Chairman Sader requested committee consideration on A.B. 392 which pertained to vehicular manslaughter.
ASSEMBLYMAN PORTER MOVED INDEFINITELY POSTPONE.
ASSEMBLYMAN COLLINS SECONDED.
THE MOTION PASSED. (ASSEMBLYMEN ANDERSON, REGAN, SMITH, GIBBONS AND TOOMIN VOTED AGAINST. ASSEMBLYMAN BONAVENTURA WAS NOT PRESENT FOR THE VOTE.)
ASSEMBLY BILL NO. 393 Permits imposition of sentence without presence of defendant under certain circumstances.
The Attorney General's Office requested A.B. 393. Mr. David Sarnowski, Chief, Attorney General's Office, Criminal Division, testified on behalf of A.B. 393. He stated the Attorney General's Office often encountered situations where defendants had been found guilty in felony criminal matters and would be out of state awaiting sentencing. During that time, defendants would become incarcerated in other states on unrelated charges. In other circumstances, offenders might be in another state and unable to appear before the sentencing judge.
Mr. Sarnowski suggested altering the language in A.B. 393 to allow sentencing for those offenders who were willing to undergo the program voluntarily. Offenders could elect to execute the necessary documents whether they were incarcerated or not. The voluntary waiver would waiver the defendant's personal rights of allocution before the sentencing judge. Another statute provided the right for defendants to address the courts and say anything they wanted by way of mitigation of the punishment or explanation of the circumstances of the offense. The offenders would have the opportunity to submit statements in writing through their attorney in district court.
Mr. Sarnowski stated the Attorney General's Office did not have a problem with the proposed language as most of the prosecutions conducted in Nevada involved inmates already present in the state. The statute would assist the counties and save money as the defendants would be forced to be brought back to Nevada through the extradition process. Those defendants facing concurrent prison terms out of state were not in that category. He believed there would be constitutional issues if the matter was forced on individuals.
Ms. Justice stated the issue she addressed was contained in A.B. 393, line 14 which stated "without limitation...voluntarily absents himself" which she alleged could include incarceration. The problem arose when defendants removed themselves from the sentencing jurisdiction. She explained, under these circumstances, often offenders went to another jurisdiction and committed crimes which they were incarcerated for. For example, Nevada might have brought charges on an individual for a one-to- six felony charge but the defendant committed a greater offense in another state and was serving a more severe sentence in that state. In this scenario, the offender would have to be extradited to Nevada and sentenced. This was an expensive process and not worth filing when the offender would be serving 20 years in another state. The other approach, she added, would be when defendants left the state out of fear of capture.
Ms. Justice asked the committee to consider waiving the rights of offenders to be sentenced in person in situations where defendants were in custody in other states. The bill would allow the offenders to be sentenced in absentia which would be more cost effective to the state.
Ms. Justice requested amendment to A.B. 393, line 14, which would delete the phrase "includes without limitation" and replace the phrase with the word "means".
Mr. Porter asked, under the scenario where offenders were incarcerated and serving time in other states for greater sentences, when the offenders were released, would they be extradited to Nevada to serve the sentence there? Ms. Justice confirmed the defendants would serve time in Nevada. She added, there were situations where individuals might be sentenced for several years and have an immigration detainer on them. In these cases, on the date of release, the offenders would be deported back to their country. The state of Nevada would pay for the prison term on these individuals. Why not deport these individuals at the time of sentencing?
Mr. Porter noted, the United States Supreme Court had maintained sentencing with rights was a critical stage of the proceedings. Ms. Justice added the defendants would agree to the imposition of the sentences without being present. Mr. Porter inquired as to what type of form was envisioned for the defendants to sign which would waive the various constitutional rights afforded during sentencing. He asked how the rights would be fully explained to the defendants. How would the courts ascertain whether the defendants freely and voluntarily gave up their rights.
Ms. Justice noted the proposed method of waiver worked in the Eighth Judicial Court as for every felony offense, individuals were signing guilty plea memorandums which provided every right and explained what the defendants would be giving up by pleading guilty. The same could be done by agreeing to sentence in absentia by stating the rights the individuals would be giving up. The Nevada Defense Attorney's and the prosecutors could devise a form where defendants would agree to waive their rights.
Ms. Justice stated the waiver of rights would be applicable for individuals who were sentenced to concurrent times and utilized mostly in plea agreements. The offenders would enter a plea of guilty and agree the sentencing would run concurrently. The sentencing time served in another state would be credited toward time served in Nevada. She agreed there were serious problems with defendants signing away their rights and then getting consecutive time. This would be utilized mostly when there were agreements that there would be "concurrent" time. Mr. Porter added whether it was concurrent time or consecutive time it was the determination of the court.
Mr. Collins asked if the term "voluntarily absents himself" meant the offender left the state. Ms. Justice replied the term "voluntarily absents himself" contained in A.B. 393,line 13 applied to incarceration of the defendant in another jurisdiction. Ms. Sader suggested the term "voluntarily absents himself" should be removed as it could apply to other circumstances.
Mr. Sader addressed A.B. 393, line 11, which referenced the phrase "but voluntarily absents himself." He suggested deleting the phrase "voluntarily absents himself" and insert the language "but is incarcerated in another jurisdiction outside the state, before sentencing, he shall be deemed to have waived his right to be present at the sentencing proceedings," and then add the language "if he voluntarily waives it."
Mr. Sarnowski stated the District Attorney's Association would not have a problem with the committee limiting the intent of the bill to incarceration situations rather than extending them to individuals who had been voluntarily absent but not incarcerated. He concurred with limiting the language as per Mr. Sader's testimony.
Mr. Sader asked if language would be required in the bill which would address waiving rights at critical stages. Ms. Justice concurred. She emphasized to include concurrent time. Mr. Sarnowski and Ms. Justice would submit a proposed amendment to A.B. 393 and present the new language during the workshop scheduled for Friday, April 9, 1993.
There being no further testimony, Chairman Sader closed the hearing on A.B. 393.
There being no further business to come before the committee, Chairman Sader adjourned the hearing at 10:55 a.m.
RESPECTFULLY SUBMITTED BY
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
April 6, 1993
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