MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 23, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:09 a.m., April 23, 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 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:
Mr. Gene T. Porter, Vice Chairman (absent/excused)
GUEST LEGISLATORS PRESENT:
Mr. David D. Nicholas, Former Assemblyman
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analysis
OTHERS PRESENT:
Mr. Timothy L. Terry, Senior Deputy Attorney General, Nevada Attorney General's Office, Medicaid Fraud Control Unit
Mr. David D. Nicholas, Executive Director, Nevada Health Care Association
Mr. James Jackson, Nevada State Public Defender
Ms. Dorothy North, Chairman, Governor's Commission on Substance Abuse
Mr. Earl Nissen, Governor's Commission on Substance Abuse
Sheriff Vince Swinney, Governor's Commission on Substance Abuse
Mr. William L. Gardner, Reno City Attorney's Office
Mr. Bernard Little, Chief Deputy City Attorney, City of Las Vegas
Ms. Roxane Clark-Murphy, Las Vegas Municipal Court
Mr. Earl R. Nissen, Director of Special Services, Churchill County School District
Mr. Bill Jost, Treasurer, Nevada Association of State Alcohol and Drug Abuse Programs
Mr. Ben Graham, Legislative Liaison, District Attorney's Association
Judge Robey Willis, President, Nevada Judges Association
Mr. Larry K. Dunn, Attorney
Mr. George McNally, President, Nevada Trial Lawyers Association
Mr. Dan Thompson, AFL-CIO
Mr. Ray Bacon, Executive Director, Nevada Manufacturer's Association
After roll call, Chairman Sader opened the hearing on committee business. He presented a bill draft request introduced by the Attorney General's Office which related to patients' rights to refuse treatment in prison infirmaries.
ASSEMBLYMAN ANDERSON MOVED FOR INTRODUCTION OF THE BILL DRAFT REQUEST.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Chairman Sader opened the hearing on A.B. 501.
ASSEMBLY BILL NO. 501 Eliminates exception to requirement that court exonerate obligor and release bail upon sentencing of defendant.
Mr. Toomin requested committee consideration to amend A.B. 501. He stated A.B. 501 was a facsimile of A.B. 486 which applied to bail bonds. A.B. 501 had been conveyed by the Ways and Means Committee and introduced before the Judiciary Committee April 22, 1993. Testimony on A.B. 501 would not be heard as it was a duplicate of A.B. 486.
Mr. Toomin addressed A.B. 501, Section 2, which amended NRS 178.502. The provisions read, "Any bond or undertaking for bail must provide that the bond or undertaking extends, for a period of [at least] one year unless bail is exonerated earlier pursuant to the provisions of subsection 4, to any action or proceeding in a justice's court, municipal court or district court:..." He referenced circumstances where bail bondsmen closed their places of business and noted there were no time frames as to when they could collect outstanding debts. Mr. Toomin advised the committee to delete the phrase "at least" and insert the time period of "one year."
Chairman Sader informed the committee the amendment to A.B. 501 would be taken to the Assembly Floor and amended as a first reprint. The petition was a request for a bill draft in the form of an amend and rerefer motion.
ASSEMBLYMAN TOOMIN MOVED AMEND AND REREFER A.B. 501.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Chairman Sader closed the hearing for further discussion on A.B. 501 and opened the hearing on A.B. 115.
ASSEMBLY BILL NO. 115 Protects certain persons and organization from liability for damages in regulating and removing hazardous materials.
Chairman Sader informed the committee A.B. 115 had been introduced in the Natural Resources Committee and had processed through the Interim Study Committee on Hazardous Materials. The bill had been substantially changed from the first reprint and had passed unanimously after amendment.
Mr. Ray Bacon, Executive Director, Nevada Manufacturer's Association, testified in favor of the passage of A.B. 115. He alleged the intent of the bill was to reduce the statewide costs for emergency services. He provided copies of "Comments to A.B. 115", Exhibit C, which had been drafted by the Nevada Manufacturers Association.
Mr. Bacon stated private companies had resources which could adequately deal with hazardous materials emergencies. He contended the public sector was not knowledgeable of the resources required in emergency situations. There were also reservations due to the insurance and liability issues.
He maintained the intent of A.B. 115 was to create limits on liability so private sector personnel and volunteers, particularly in the rural areas, would offer expertise during emergency situations. He asserted it was expensive to fully staff hazardous materials emergency teams in rural areas, particularly when resources existed within volunteer organizations.
Mr. Bacon identified three key issues contained in A.B. 115. He pointed out companies in other states had been litigated against after providing assistance to public sectors during hazardous materials disasters. To his understanding, there had not been any litigations levied against private entities in these types of circumstances in Nevada. Secondly, often private firms did not respond to hazardous waste emergencies because of the prospects of litigation. He alleged corporations with insurance policies would not respond to emergency situations unless they were under the umbrella of the National Response Center. Thirdly, manufacturing companies would be the most probable responding entities during hazardous materials disasters as they had specific knowledge of the chemicals involved.
Chairman Sader addressed several issues contained in A.B. 115. He pointed out Section 3 of the bill which dealt with the State Emergency Response Commission. He referenced A.B. 115, Sections 4 and 5, which provided immunity to certain individuals under specified conditions. According to Mr. Sader, this would also involve A.B. 115, Section 2, subsection 2, page 1, line 15 which read, "a person who provides equipment, advice or other assistance in mitigating or attempting to mitigate the effects of a discharge of hazardous material.....is immune from liability". Mr. Sader noted Section 4 of A.B. 115 addressed restrictions which limited this to a narrow group of individuals. He focused on the top portion of page 2 which did not address gross negligence, intentional reckless or wanton misconduct. The provisions did not relate to individuals whose acts, or failure to act, were the causes of the discharges. It did not pertain to individuals who received compensation unless it applied to the reimbursement of expenses. He noted firemen, policemen or responders had not been addressed in the bill unless they were categorized as a volunteers.
Mr. Sader referenced A.B. 115, Section 5, which addressed the immunity aspects of the bill. Under these circumstances, in order to receive immunity from litigation, individuals had to possess specific qualifications in the handling of hazardous materials. The provisions mandated responding individuals must have been requested to provide equipment or had been requested to act by public entities. He continued, the provision specifically addressed private industry personnel who had been trained to handle hazardous materials but would not respond to these emergency situations due to the liability factors. They might have responded if they had immunity from litigation.
Mr. Ray Blehm, Jr., Nevada State Fire Marshall, testified in support of A.B. 115. He maintained the provision directed toward immunity from litigation for the State Emergency Response Commission and the Local Emergency Planning Committee would be important to the rural counties as they were presently subject to litigation under emergency situations. Adding further insight to Mr. Blehm's statement, Chairman Sader referenced A.B. 115, Section 3, subsection l, which stated volunteers who served on boards were immune from liability.
Mr. Bob Andrews, Executive Director, State Emergency Response Commission, spoke in support of A.B. 115. He alleged private sector members who served on the commission were concerned with the minimal experience the state and private sector possessed in dealing with hazardous materials emergencies. He divulged corporate policies directed their personnel would not respond to off site emergencies as long as the liability issue prevailed.
Mr. Anderson informed the committee he served on the Interim Committee Study on Hazardous Materials which presented the recommendations. He alleged many rural fire department volunteers worked in the mines. He asked if volunteers would be lost if the liability issue were to be removed.
Mr. Blehm drew attention to the original language contained in A.B. 115, Section 4, subsection 2 (a), page 2 which clarified responsible parties were not immune to liability. The provision supporting his contention read, "Whose act or failure to act was the cause of the discharge." He maintained, under the current language, liable entities would not be protected. He did not believe A.B. 115 would have a negative impact on volunteerism.
Mr. George McNally, President, Nevada Trial Lawyers Association, testified in opposition to A.B. 115 although he supported the philosophy behind the proposed legislation. He surmised highly trained experts in hazardous materials who availed their services in rural fire departments would have immunity under these provisions.
Mr. McNally informed the committee, during the 1989 Legislative Session, one of the areas excluded from capping punitive damages was hazardous waste spills. He focused on the inconsistencies contained in A.B. 115, Section 3, subsection 2, which granted across-the-board immunity, although Section 5 applied to specific situations and certain entities. A.B. 115, Section 5 granted immunity to individuals only if they had been requested to provide advice, assistance, or equipment by the individuals originally responsible for the discharge.
Mr. McNally presented a scenario which involved an industrial firm which had contracted the services of a professional hazardous waste materials transport company. In this example, the company caused a hazardous waste catastrophe. Under the provisions in A.B. 115, the hazardous waste cleanup crew would be granted immunity. The firm which originally shipped the hazardous materials would be jointly, or severally, liable for the disaster along with the transport company. Because these two entities had a higher level of standards, they would be granted immunity.
Mr. Sader noted the provision alluded to in Mr. McNally's scenario applied only to volunteers. He contended the provisions did not consider individuals who had been paid for their services other than those persons who qualified under the reimbursement qualifications of Section 4, subsection 2.
Mr. McNally exemplified situations where companies had been asked to assist in the cleanup process of hazardous materials and submitted requests for reimbursement of expenditures. He questioned if this applied to the prevailing rate they were entitled to submit under the language "reimbursement of expenses in providing the equipment, advise, or other assistance." He noted, under the present language, if the companies had higher degrees of knowledge, or had special equipment, they would be able to charge for their services at higher rates.
Mr. Sader clarified the loophole Mr. McNally pointed out which would provide for the immunity for hazardous waste cleanup companies. He assured the committee this was not the intent of the bill. He suggested revising this provision.
Mr. McNally contended, in cases where across-the-board immunity had been granted to minimally trained volunteers involved in hazardous waste spills, the volunteers would be immune from liability, although the message should not be conveyed volunteers were allowed to go beyond their range of expertise.
Mr. Sader noted many individuals who possessed higher levels of expertise and had been trained by the companies they worked for did not volunteer to assist the public in cases of emergencies. A.B. 115 had been designed to provide the necessary liability provisions to companies who authorized the use of their trained personnel in cases of emergency situations.
Mr. Sader pointed out the conflict contained in A.B. 115, page 2, lines 5 through 7 which pertained to immunity. Chairman Sader requested the assistance of Mr. McNally to draft acceptable language.
Mr. Danny Thompson, Nevada State AFL-CIO, testified in opposition to A.B. 115. Mr. Scherer addressed Mr. Thompson and noted the provisions would protect his members from liability when they volunteered to help. Many of the members worked for the establishments who would directly benefit from the provisions. Mr. Thompson responded he did understand the concepts.
Mr. Sader noted Mr. McNally had testified during the previous hearing held on A.B. 115 and had raised liability issues. Mr. Toomin asked why the issues had not been resolved in the previous hearing. Mr. McNally replied he did not have the opportunity to participate in the subcommittee work session or compare the original bill with the first amended reprint. Mr. Sader interjected and noted there had been a dual referral so the immunity issues could be analyzed in the Judiciary Committee.
Mr. Collins noted many companies in the state provided more comprehensive training in hazardous materials responsiveness than public entities although these trained individuals were prohibited to assist in hazardous materials cleanup as long as the liability issues existed. He questioned how A.B. 115 would be amended to provide for immunity from liability.
Chairman Sader informed the committee the issues raised during the preceding testimony given on A.B. 115 necessitated additional provisional consideration. He appointed a subcommittee comprised of Mr. Anderson, Mr. Gibbons and Mr. Collins who would work in conjunction with the Trial Lawyers and AFL-CIO representatives to devise amendable language.
ASSEMBLY BILL NO. 77 Prohibits loitering and narrows definition of vagrancy.
A.B. 77 had been introduced by the District Attorney's Association. Mr. Sader advised the committee A.B. 77 had been heard during a hearing conducted in Las Vegas where it had been significantly amended. There was a first reprint.
Mr. Bernard Little, Chief Deputy City Attorney, City of Las Vegas, supported A.B. 77 with modifications. He submitted copies of the City of Las Vegas' proposed amendments, Exhibit D. He noted the request to change NRS 207.030 arose from the Nevada State Supreme Court which found the loitering language contained in the statute unconstitutionally vague and overbroad.
Mr. Little proposed amending A.B. 77, Section 1, subsection (h), to read, "Without prior invitation of the owner or occupant of the property, proceed upon the inhabited property of another, or approach and peek in a window on that property, without first making reasonable attempts to cause the occupant of the property to answer the door" as contained in Exhibit D, paragraph 1. The proposed amendment came about because current language did not address neighbors peeking into neighbors' windows. This would address circumstances where individuals were caught peeking into windows from adjacent properties. The alleged opponents to the proposed amendment contended the language did not allow for sufficient notice as to what was prohibited.
Mr. Little proposed to amend the language which referenced begging or soliciting alms contained in A.B. 77, Section 1, subsection 4, page 2, lines 41 through 43 as it would be found void due to its vagueness. He alleged the proposed language would best be approached by adopting guidelines which restricted, but did not prohibit, all begging and restricted the time, place and manner in which a person or group may beg or solicit alms.
Mr. Little suggested omitting the terms "vagrancy" and "loitering" from A.B. 77. The proposed language for NRS 244.357 (3), NRS 268.409 and NRS 269.217 was suggested to read, "ordinances regulating or prohibiting the conduct of any person who remains laying sleeping, standing or sitting in a manner or for a purpose which is unlawful or which threatens or injures the public peace, health, safety or welfare" as contained in Exhibit D, paragraph 2. He maintained this language would allow local governments to regulate this type of activity.
Mr. William L. Gardner, Reno City Attorney's Office, reviewed the correspondence, Exhibit E, submitted by Susan Quig-Terry, Attorney and Chan Kendrick, Director ACLU of Nevada, who were adamantly opposed to A.B. 77 due to its vagueness and over broad nature.
Mr. Gardner pointed out several inconsistencies contained in Ms. Quig-Terry's arguments against the provisions, particularly in reference to A.B. 77, Section 1 (h). He believed Ms. Quig-Terry was mistaken when she alleged individuals could enter neighbors' yards to introduce themselves as noted in Section 1 (h) which clarified this. He contended the bill clearly stated in cases where individuals proceeded onto private properties without invitation, they were to knock on the doors before looking into the windows. He alleged she was further mistaken when she contended individuals who entered onto private properties to introduce themselves to neighbors would be subjecting themselves to criminal liabilities.
Mr. Gardner addressed Ms. Quig-Terry's concern regarding A.B. 77, Section 1 (g) which pertained to the term "obstructing". He maintained, in the criminal statutes, this would become a question of fact for the trier, although at a certain point, it would become difficult to describe and became an issue for the trier. He alleged Section 1 (h) was necessary and constitutionally firm.
Mr. Anderson addressed his concern with the provisions included in A.B. 77, Section 1 (h). Mr. Gardner noted Section 1 (h) read, "...without first making reasonable attempts to cause the occupant of the property to answer the door..."
Mr. Haller voiced his concerns in the provisions contained in A.B. 77 which referenced the terms lying and sleeping. He contended sleeping in parks were rights of individuals.
Mr. Sader noted testimony heard during the initial hearing which stated vagrancy issues could best be dealt with on the local level. Mr. Sader questioned whether there was a need for this type of statewide legislation. In reply, Mr. Little stated municipalities required enabling legislation which would allow the municipalities to initiate ordinances. Mr. Sader asked if the state was required to enact enabling legislation which would allow municipalities to legislate in this area. Mr. Gardner did not believe enabling legislation was required although there would be uniform state law where local governments could look for consistency.
Mr. Little suggested there be a provision for cities or municipalities which would allow municipalities to draft their own ordinances.
In reply to Mr. Sader's concern, Mr. Graham suggested the committee eliminate the unconstitutional language contained in the bill even if it failed to pass. He added, indefinitely postponing the bill would not address the unconstitutional provisions.
Mr. Ben Graham, legislative liaison for the District Attorney's Association, testified in support of A.B. 77. He requested further work on the bill, particularly in reference to Section 4, page 3 which would allow the local communities to draft ordinances which had not been mandated to mirror the state statutes.
Mr. Sader noted he did not intend to vote on A.B. 77 due to the issues which surfaced. He informed the committee, if the bill did not pass favorably, they should consider alternative language which would clean up the existing provisions and delete those provisions declared unconstitutional. Mr. Graham agreed to providing his expertise in the matter.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A. B. 77. He opened the hearing on A.B. 73.
ASSEMBLY BILL NO. 73 Prohibits criminal neglect of patients in medical facilities.
Mr. Tim L. Terry, Senior Deputy Attorney General, Attorney General's Office, Medicaid Fraud Control Unit, introduced A.B. 73. This bill represented the first reprint which originated from the subcommittee chaired by Mr. Gibbons.
Mr. Gibbons maintained A.B. 73 had changed substantially from the original concept of the genesis draft. A.B. 73 would allow the Attorney General's Office a vehicle through which the agency could review and prosecute instances of patient abuse. He noted the first reprint substantially changed the direction and focus of patient abuse by examining it under the concept of criminal negligence.
Mr. Gibbons stated A.B. 73, Section 1 defined the term "professional caretaker" and described the act of criminal negligence. The language in Section 1, subsection 1 (a) set the standards for aggravated recklessness or gross acts which endangered the health and/or safety of patients. The standards and elements were described in Section 1, subsections 1 (a) through 1 (c). He informed the committee Section 1, subsection 2 addressed the penalty phases for those acts which would be classified as felonies if they resulted in death or substantial bodily harm. The sentences in these crimes would be punishable by one to six years imprisonment and not more than a $5,000 fine. He noted the provisions contained the alternative penalty of gross misdemeanor charges provided there was no substantial bodily harm. The provisions also provided exceptions to providing medical care if there were religious concerns expressed. Other provisions addressed implied objections by patients which would entail professional caretakers to provide for the care and supervision deemed reasonably necessary for the patients' life or health.
Mr. Gibbons continued, A.B. 73, Section 1, subsection 3 (b) would allow or reject, under the authorization of living wills, certain types of care. Under Section 1, subsection 4, upon conviction, it would be the obligation of the Attorney General's Office to provide notice to licensing boards which had the authority to regulate the licensees. Section 1, subsection 5 defined the term "medical facility", "patient" and "professional caretaker." He stressed this was an important aspect of the bill as it focused on professional caretakers, i.e. the individuals who had the responsibility, duty and obligation to provide care. Because the bill dealt with criminal negligence, it crafted the focus of the neglect on those individuals who would have the obligation, duty and responsibility as defined under the definition of professional caretaker.
Mr. Gibbons addressed A.B. 73, Section 2, subsection 2 which would provide professionals to serve on the investigating staff of the Attorney General's Office. He suggested those professional individuals appointed to the investigating staff have expertise in the fields of nursing, medicine and the administration of medical facilities. It was an expressed concern of the industry the possibility of criminal sanction or investigation.
Mr. Tim Terry, Senior Deputy Attorney General, Attorney General's Office, Medicaid Fraud Control Unit, informed the committee the Medicaid Fraud Control Unit was charged with the responsibility to investigate and prosecute allegations of patient abuse or neglect. His office had actively participated with the subcommittee in reviewing the original proposal and he concurred with the first reprint.
Mr. Terry addressed two concerns the agency had with A.B. 73 as presently worded. The first consideration was directed toward the definition of the term "professional caretaker" which was provided under Section 1, subsection 5 (c), page 2, lines 16 through 21. He suggested amending the definition of "professional caretaker" to read as follows, "any person, including a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality, who is an owner, operator, employee, or agent of a medial facility, or who, for compensation, provides services to a patient in such a facility", Exhibit F. The current definition did not include owners of the facilities who might be involved. He noted individuals who had licenses and registrations under Title 54 of the Nevada Revised Statutes included various professionals, physicians, nurses and nursing assistants. The provisions did not include those individuals or entities who were owners of the facilities. He concluded the proposed amendment covered all individuals involved in the facilities.
Mr. Terry relayed his second concern with A.B. 73, Section 2, subsection 2, lines 31 to 32 which had been addressed by Mr. Gibbons. He asked there be some level of expertise on the Attorney General's Office investigative staff. He noted NRS 228.410 had been the enabling legislation for the medicaid fraud unit. Both positions had been created during the 1991 Sixty-sixth Legislative Session. He suggested deleting the language contained on lines 31 to 32 which would lead to the entire deletion of Section 2 of the present draft.
Mr. Gibbons asked if the term professional caretaker would include public corporations, i.e. public hospitals, etc. Mr. Terry added public hospitals could be construed as residents of counties. Mr. Gibbons contended, under Mr. Terry's proposal, the owners of hospitals could be considered the residents in the counties. Mr. Terry added the language could be narrowed. Mr. Gibbons pointed out this was the concern exhibited during the drafting and redrafting of A.B. 73 where the owners might get involved in the issues.
Mr. Terry referenced Title 54 and Chapter 449 of NRS, which dealt with the licensing of medical and other related facilities. The concern was whether the owners of the facilities were included under the statutes; an entire segment of the issue might be exempted as they might be involved and did not want to exempt them from responsibility or liability under the law.
Mr. Gibbons provided a scenario where a controller of a nursing facility was responsible for the financial aspects of an operation. In this example the budget fell short and did not provide for the proper care of the patients. Under a criminal negligence standpoint, the controller would be liable. He asked if this had been the intent of the definition.
Responding to the scenario presented by Mr. Gibbons, Mr. Terry did not feel the controller would be guilty of criminal negligence as he had not been acting in reckless disregard of the patients' safety, life or well being. He had not been acting in an aggravated, reckless or gross manner.
Mr. Scherer agreed the language alluded to by Mr. Terry was too broad in scope. He did not see a problem with adding Chapter 449 of NRS as the three subsections l, 2 and 3 were conjunctive with the term "and". He noted it would have to be someone who had the responsibility to provide care to patients which would exempt the controller or someone else.
Mr. David D. Nicholas, Executive Director, Nevada Health Care Association, stated he spoke extensively on A.B. 73 during the initial hearing and participated in discussions on the subcommittee. He asked if county commissioners who might have control over county hospitals would be involved in the liability issues. He concurred with Mr. Scherer's and Mr. Gibbons' comments and felt the issue had been solved except for the issue raised by Mr. Terry. He suggested the committee reconvene the subcommittee and rehear the matter. He maintained county commissioners, accountants and individuals who did not have direct health care experience should not be held accountable for others who worked directly with the patients.
Chairman Sader brought attention to correspondence sent by Samuel P. McMullen, President of The McMullen Strategic Group, on behalf of the Nevada State Board of Nursing, Exhibit G. He concurred with the current language although he agreed with the position of the Attorney General's Office. He requested further input on the subcommittee.
Chairman Sader referred A.B. 73 back to subcommittee for further work.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 73. He opened the hearing on A.B. 499.
ASSEMBLY BILL NO. 499 Revises penalties for drinking under influence of intoxicating liquor or controlled substance.
Chairman Sader informed the committee members A.B. 499 had been posted as a committee introduction but had been introduced during the Sixty-sixth Legislative Session as a bill draft from the Substance Abuse Commission. The prime sponsor of A.B. 449 was Mr. Carpenter. Mr. Sader noted the bill had been vetoed by the Governor due to language which related to the authority of the treatment facility to dictate terms of incarceration. In this respect, the Governor was correct the language did have some unintentional results. He stated the Governor's veto had not been overruled, but had been sustained. The same concepts were contained in A.B. 499 and there had been extensive testimony during the Sixty-sixth Legislative Session.
Chairman Sader noted two aspects contained in A.B. 499. The first dealt with the evaluation of offenders which was the thrust of the bill. The second element related to specific treatment alternatives which applied to second offender DUIs. He noted there was a different alternative for first offender DUIs. Mr. Sader stated A.B. 499 would be placed into subcommittee for additional work.
Mr. John Carpenter, Assembly District No. 33, noted they were attempting to incorporate the concepts contained in A.B. 491 into A.B. 499. Individuals with first or second offense DUIs should be evaluated in assessment centers to ascertain whether they were abusers of alcohol or social drinkers who had been charged for the first time and would not benefit from treatment.
Mr. Carpenter believed, if repeated DUI offenders received treatment, a lot could be accomplished in the area of DUI. He believed the emphasis should be placed on the treatment of alcohol abusers rather than incarceration or punishment of the offenders. He stated A.B. 491 would require further work in subcommittee to assure the provisions did not infringe on the territory of the courts.
Mrs. Dorothy North, Chairman, Governor's Commission on Substance Abuse, Education Prevention Enforcement and Treatment, testified in support of A.B. 499. She informed the committee the Governor's Commission on Substance Abuse had been appointed in 1989. She stressed the importance of passing legislation to provide assessments and mandatory treatment for first and second DUI offenders. The provisions under A.B. 499 would not only prevent repeated DUI offenses but it would assist in the removal of drunk drivers from highways.
Ms. North noted a primary indicator of alcohol abuse was a DUI charge. A.B. 499 would provide the courts an additional tool in which to divert offenders before they recommit the offenses. The statutes would mandate treatment for alcohol abusers. Ms. North alleged the cost savings to taxpayers due to non-repeated DUI offenders and the lack of alcohol related accidents would be incalculable.
Mr. Earl Nissen, Governor's Commission on Substance Abuse, stated he was also the Director of Special Services in the Churchill County School District. He worked with the nurses, counselors and special education personnel in the district. During his presentation, he addressed teenage alcohol consumption and the related effects. He focused on the issue of juveniles excused by the courts on alcohol-related offenses. He contended the results did not address the social problems related to alcoholism. He directed concern with first time DUI offenders and noted the concept of A.B. 499 would accomplish this.
From Mr. Nissen's experience listening to former testimonies, he noted the discussions leaned toward the direction of incarceration rather than treatment of problem drinkers. The alternatives to incarceration must be considered to assist individuals, particularly teenagers. He believed if teenage drinkers could be helped it would deter adult offenders. A.B. 499 provided for progressive discipline, which was an important concept according to Mr. Nissen, particularly with third time DUI offenders, one with no plea bargaining or prospective release. He contended extended supervision and treatment were imperative to address the problem. He encouraged the passage of A.B. 499.
Sheriff Vince Swinney, Governor's Commission on Substance Abuse, testified in favor of the passage of A.B. 499. As the Sheriff of the Washoe County Sheriff's Office, he stated law enforcement personnel were charging less social offenders and more first time DUI offenders which was attributed to the change in the public's attitudes. The first time DUI offenders were more often the problem drinkers. As the administrator of one of the largest detention centers in the state, the law enforcement centers would rather find alternative solutions than incarceration due to the already burdened detention centers.
Chairman Sader noted there had been numerous bills related to the subject of DUI which had the impact of increasing the prison and jail population. A.B. 499 had the prospect of decreasing the prison population.
Chairman Sader referenced testimony which alluded to mandatory substance abuse treatment. As he understood A.B. 499 to read, the bill mandated evaluation. It was the discretion of the presiding judges to determine treatment. Ms. North added the preferred direction would be for the evaluations to be returned to the courts and for the judges to consider the recommendations of the assessment centers in cases where the recommendations were for treatment.
Mr. Sader stated A.B. 499 contained no standard which related to the judges' discretion. He reference Section 7, subsection 1 (b)(3), page 3, line 29, where it read the judge, on a second offense, "may order him to attend the program..." He noted the language was still discretionary. He presented the issue before the committee and asked if they wanted stronger language for the criteria for treatment. He noted a strict mandatory standard would be difficult to pass, but there might be middle ground where judges might consider alternatives if treatment were not considered. Mr. Sader noted this was negotiable.
Mr. Nissen agreed the language in A.B. 499 needed to be stronger and to dictate whether offenders should be mandated into treatment programs or be incarcerated. He noted if treatment was not mandated, offenders would not elect treatment on their own.
Ms. Roxanne Clark-Murphy, Southern Nevada DUI Assessment Center, presented several proposed amendments to A.B. 499. The amendments are contained in Exhibit H. She suggested amending A.B. 499, Section 2, subsection 1, line 7, by adding the language underlined in the sentence, "...problem user of alcohol or another drug in counties or municipalities with populations that exceed 200,000." The evaluations conducted by the assessment centers should be done by the court.
Ms. Clark-Murphy suggested adding amended provisions to A.B. 499, Section 4, subsection 1, line 14. She referenced the language underlined in the sentence "If a person is found guilty of a first offense with a BAC of .15 or higher or a second...". She maintained the language was inserted to alleviate the entrapment of social drinkers.
Ms. Clark-Murphy requested amending A.B. 499, Section 6, page 2, line 41, by adding the underlined language contained within the sentence, "The provisions of Section 4 and 5 of this act do not prohibit a court with a population of less than 200,000 from..."
Ms. Clark-Murphy requested amending A.B. 499, Section 10, subsection 2, page 7, by adding the underlined language contained in the subsequent sentence, "On or before July 1, 1995, each county and city with a population of more than 200,000 shall provide any personnel necessary to conduct evaluations..."
Ms. Clark-Murphy requested consideration of an additional section to A.B. 499, Section 5, which was not included in Exhibit H. Section 5 would indicate, "at the end, the treatment facility may, at the recommendation of the assessment center, or if by the court, may confine an offender in the institution for no more than 30 days". She surmised this provision would alleviate the fear that treatment centers would retain offenders for six months.
Ms. Clark-Murphy contended there would be drastic results if evaluation centers were to be operated by untrained individuals. She believed hospitals might abuse the law. If the courts made the determinations with an impartial assessor, this would not happen. As the assessment centers operated currently, they made the recommendations although it was up to the judges to mandate the treatment.
Mr. Larry K. Dunn, private defense counsel, informed the committee his office processed approximately 300 DUI cases per year and evaluated approximately 150 persons per year for alcohol treatment. They placed approximately 100 individuals per year into treatment programs. The issues he perceived with A.B. 499 were the provisions took away the discretion of the courts and facilitated a function which was already being done by the courts.
Mr. Sader reiterated Mr. Dunn's testimony which stated the evaluations should be discretionary decisions. Mr. Dunn added, it did not mean individuals had problems with alcohol consumption because they had been charged with a DUI offense. Alcohol assessments were ordered immediately in cases where individuals had indications of substance abuse problems such as elevated blood alcohol levels. Mr. Sader asked what blood alcohol concentration (BAC) levels constituted treatment. Mr. Dunn responded and stated he had conferred with the treatment centers and some informed personnel believed BAC levels were as high as .17 BAC and possibly .20 BAC. He added data was required to support the blood alcohol levels, along with additional factors.
Mr. James Jackson, Nevada State Public Defender, informed the committee members his office handled approximately 2,300 cases per year of which 45 to 48 percent of these cases were DUI offenses. He concurred he supported the goal to avoid DUI offenses by providing offenders with the opportunity for treatment. If A.B. 499 mandated provisions which would take away the discretion of the courts, it would involve social drinkers, and penalties would be increased, either constructively or actually. The bill would force first time offenders into jury trial situations which would have drastic impacts on the courts.
Mr. Jackson noted, as the public defender, the majority of his clients were indigent. His concern lay with applying an additional $100 in administrative assessments when offenders could not afford legal counsel.
Judge Robey Willis, President, Nevada Judges Association, noted the association rarely became involved with DUI legislation although the members were clearly concerned with the proposed language in A.B. 499 as it would take away the discretion of the judges and drastically impact the courts.
Judge Willis pointed out proposed legislation had been vetoed during the preceding legislative session and had been brought before the Governor because of the same issues of removing judicial discretion. The Governor had determined the preceding legislative provisions to be unconstitutional as the statute placed the authority to make decisions for treatment with the treatment facilities rather than with the courts as alluded to under A.B. 499, Section 5, subsections (a) and (b.
Judge Willis stated, under the proposed provisions, the treatment facilities would confine offenders without due process. He contended the association was concerned with the provision which mandated the courts collect $100 in assessment fees and record the transactions. Other agencies would become involved and the Nevada Department of Motor Vehicles would be required to license these centers. The financial impact would burden the courts.
Mr. Bill Jost, Nevada Association of State Alcohol and Drug Abuse programs, stated the association was in favor of A.B. 499 although the members had some technical concerns. If the bill was slated for review in subcommittee, he noted the issues could discuss these concerns at that time.
Chairman Sader appointed a subcommittee to address the concerns with A.B. 499. Mr. Sader would chair the subcommittee, along with Mr. Toomin, Mr. Carpenter, Ms. Smith and Mr. Haller. The first subcommittee meeting would be held Monday, April 26, 1993 at 3:30 p.m.
******
Mr. Gregory requested a committee introduction for a bill draft. During the hearing on the bill which related to evictions, he noted the weekly rental properties were based on the same 5 day notices. He requested committee introduction to change the provisions to a 2 day notice. He added tenants renting for 30 day periods would fall under the 5 day notice category. Renters renting for one week increments would have 2 day notices rather than five day notices.
ASSEMBLYMAN GREGORY MOVED DO PASS.
ASSEMBLY TOOMIN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
There being no further business to come before the committee, Chairman Sader adjourned the meeting at 10:05 a.m.
RESPECTFULLY SUBMITTED BY
Jessie A. Caple
Committee Secretary
??
Assembly Committee on Judiciary
April 23, 1993
Page: 1