MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
January 29, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 11:30 a.m., on Friday, January 29, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest E. Adler
STAFF MEMBERS PRESENT:
Maddie Fischer, Primary Secretary
Marilyn Hofmann, Committee Secretary
OTHERS PRESENT:
Robin Bates, Chief of Classification and Planning, Department of Prisons, State of Nevada
John Westerman, Coordinator of Substance Abuse Programs, Department of Prisons, State of Nevada
Carol L. Barker, Ph.D.
Robert Whittemore, Ed.D., Nevada State Psychological Association
Former Senator Helen Foley, Psychemedics Corporation
Phillip Ulibarri, Program Coordinator, Washoe County District Health Department
James J. Jackson, Nevada State Public Defender
Judy Jacoboni, Mothers Against Drunk Driving
Nancy Dallas, Mothers Against Drunk Driving
Laurel Stadler, Mothers Against Drunk Driving
John Slansky, Chief, Department of Parole and Probation, State of Nevada
SENATE BILL 15: Requires special verdict in action in which state or its political subdivision is sole named defendant.
The chairman reminded the committee of a vote on January 27, 1993, to Do Pass S.B. 15. He said he had been contacted by the attorney general's office regarding necessary changes in the language of the bill, and by the legislative counsel concerning other problems. Senator James indicated since the bill had not been sent to the floor of the Senate, he would entertain a motion to reconsider the committee action.
SENATOR McGINNESS MOVED TO RECONSIDER ACTION ON S.B. 15.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST 3-748: Provides additional remedy to enforce order of court requiring parent to obtain health insurance for his child.
SENATOR SMITH MOVED FOR COMMITTEE INTRODUCTION OF BDR 3-748.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST 14-588: Limits physical evidence that becomes public record as a result of consideration by a grand jury.
SENATOR SMITH MOVED FOR COMMITTEE INTRODUCTION OF BDR 14-588.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
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SENATE BILL 10: Revises procedures for evaluation of certain persons convicted of driving under the influence of alcohol or controlled substances to determine if such persons can be assigned to program for treatment.
ASSEMBLY BILL 305 OF
THE 66TH SESSION:Provides for treatment of certain persons convicted of driving under influence of alcohol or controlled substance.
The first to testify were Robin Bates, Chief of Classification and Planning, Department of Prisons, State of Nevada, and John Westerman, Coordinator of Substance Abuse Programs, Department of Prisons, State of Nevada. Mr. Bates explained a measure was passed during the last session of the legislature, (A.B. 305 of the 66th Session), which created a Driving Under the Influence (DUI) treatment program. He indicated that legislation served as the basis for the development of S.B. 10. He stated A.B. 305 of the 66th Session "...created a 2-pronged treatment program and an alternative form of incarceration for DUI offenders sent to prison." Mr. Bates said a portion of the criteria for participation in the program included being within 12 months of probable release, together with being eligible for assignment to an institution or facility of minimum security. He also indicated the prisoner must have a "presentence evaluation pursuant to Nevada Revised Statutes (NRS) 484.3796. Pursuant to that statute, the "offender" or "abuser" must be able to benefit from treatment.
Mr. Bates continued to explain the system within the prison, "[A prisoner] is placed in a residential treatment program for 30 days of intensive alcohol and drug abuse treatment...." He said if the prisoner successfully passes the program, he or she is eligible to serve the remainder of his or her prison sentence under residential confinement, under prison classification. Mr. Bates indicated S.B. 10 was drafted to attempt to correct what they perceive to be a problem with presentence evaluations of addictiveness. He stated there are problems when the department of prisons does not receive the presentence evaluation prior to sentencing, which happens "...about 40% of the time." He added, "The legislation assigned responsibility for it to be done, but didn't specify who would do it." Mr. Bates said the present legislation would state the requirement "...either be repealed or assigned to the department of prisons post-sentence, where we have established infrastructure."
Mr. Bates stated the committee must ask itself the question, "What is the purpose of a presentence evaluation?" He said it was not used by the judge, but rather by the department of prisons, so it should not "...assist the judge in crafting a sentence." Mr. Bates indicated the department believes all offenders who are sentenced under NRS 484.3795 or NRS 484.3792 should be eligible to participate in this program, and thus be eligible for residential confinement, and "...there should not be a distinction made between someone who is a situational DUI offender and someone who is an alcoholic DUI offender...they should both be eligible for the program."
Mr. Westerman indicated he was in agreement with Mr. Bates, and testified his department does assessments of inmates on arrival at an intake center. He said there were additional assessments once the inmate is accepted into a program. Mr. Westerman stated the assessments were done to individualize treatment and in order to prepare for adequate treatment upon discharge.
Senator Jacobsen asked to see a "classification form," to assist the committee in determining what type of an assessment is made. Mr. Bates asked Mr. Westerman to advise the committee at this time regarding presentence and postsentence evaluations.
Mr. Westerman stated the presentence evaluations assess the level of dependence upon alcohol or drugs. He said the final assessment is done to determine whether or not treatment would be helpful in dealing with the addiction. Mr. Westerman said there are additional assessments done "...when anyone comes into the department of prisons." He said one test is the Minnesota Multiphasic Personality Inventory (MMPI). Mr. Westerman said part of that test was the "McAndrews Scale," which assesses proclivity for dependence on alcohol or drugs. He said if an inmate was eligible to be institutionalized in a DUI residential center, an additional assessment which is required by the United States Bureau of Alcohol and Drug Abuse (BADA), is done. Mr. Westerman stated a series of questions are asked, and a "psychosocial" assessment is done. He said the score obtained by this testing "tells us how severe the addiction is...and we go from there." Senator Jacobsen indicated he would like to review a evaluation form, and Mr. Bates said it would be provided to him.
Senator McGinness asked Mr. Bates if a judge used an evaluation when sentencing, and Mr. Bates indicated it was not always done. He added the minutes of the judiciary committee hearing A.B. 305 of the 66th Session would reflect "...the purpose of the presentence evaluation was not for the judge, but was for the director of the department of prisons to use to determine whether or not the person should be allowed to enter the DUI treatment program, and that it serves no purpose for the judge." He continued to say the present bill, S.B. 10, would take away the mandate so a determination of whether a person could enter the residential treatment program would be made by the department of prisons. Mr. Bates said the original bill draft provided three possible scenarios: (1) to continue the practice of a presentence report, if there was a reason to do so; (2) to have the evaluation done postsentence at the department of prisons; and (3) to assume that "...anybody sentenced under the felony DUI statutes is an abuser who could benefit from treatment...and [there should] not be a requirement for an evaluation...." Mr. Bates pointed out a first-time offender, who was not an abuser, would not be eligible for the treatment program and thus not eligible for residential confinement. He said he felt the "situational offender" was less of a risk than an alcoholic.
The next to testify in favor of S.B. 10 were Carol L. Barker, Ph.D., a psychologist, and Robert Whittemore, Ed.D., representing the Nevada State Psychological Association. Dr. Whittemore provided the committee with a statement, a copy of which is attached hereto as Exhibit C. He said the suggestions contained in the statement were based upon their understanding that the legislation would amend NRS 484.3796, rather than having the statute repealed. Dr. Whittemore stated "their contention was still the same,...that psychologists should be added to the BADA's standards for qualified counselors." (See Exhibit C.) Dr. Barker read from a prepared statement, set forth as Exhibit D.
Senator James asked if psychiatrists or psychologists did more evaluations of persons with substance abuse problems. Dr. Whittemore said he had no statistics regarding that question, but he felt "...it was about the same." The chairman asked if the legal scope of their profession limited their ability to treat alcohol and drug abuse addictions. Dr. Whittemore answered "no." He indicated legislation passed in the 1991 session would allow psychologists to perform the same kind of services as psychiatrists for "...either competency or sanity purposes." Senator McGinness asked if there was a program of continuing education for psychologists, and Dr. Whittemore answered there was.
Senator Shaffer questioned whether a psychologist should be used to do evaluations, rather than a counselor, considering the cost to the state. Senator Adler pointed out problems which would exist "...if inmates were allowed to select their own individualized treatment." Dr. Whittemore indicated the bill, as written, would allow the director of the department of prisons to choose and identify the individual who would provide services. Senator James stated the issue upon which the committee should focus was "...whether other professionals should be included in the group which is allowed to make these evaluations." He asked the committee to review the language on page 2 of S.B.10, wherein existing law allows the court to choose between a counselor and a physician. The chairman continued to say the testimony of the two doctors "...appears to be a question whether there is a rational basis to include those two professions and not psychologists." Senator James indicated if there was a fiscal question as to which is the most economical way to conduct the evaluations, it would be a separate question which must be considered.
Senator James asked if there was a witness who wished to testify on behalf of a group which would advocate "not including psychologists" in this legislation. No one appeared to speak to that issue.
The next to testify was former Senator Helen Foley, representing Psychemedics Corporation. She explained the corporation did drug testing with hair samples, rather than blood or urine. She stated: "I am not here to discuss where in the criminal justice process these evaluations should be done...but when they want to evaluate an offender to determine whether he is an abuser...and whether he can be treated successfully for that condition, one of the most accurate drug abuse diagnostic tools right now is hair testing." Ms. Foley indicated this method not only can assist in diagnosis, but also in the monitoring system. She added the company tests approximately 1/2 inch of hair each month, for a 3-month period. Ms. Foley stated in that period of time, "...you can tell if someone is an habitual user." Senator Adler brought up a point regarding the "305 program," stating people in the program were tested every day. Ms. Foley indicated the testing program through Psychemedics was only for drugs, not alcohol. She stated the hair testing program "...was a way for inmates or parolees to prove they have been free of most drugs for an extended period of time." Ms. Foley pointed out the fact that cocaine leaves the system within a period of 2 to 3 days, so the presence of that drug is much harder to detect.
Senator Adler stated he believed the language of the statute involved in this legislation would allow the department of parole and probation to select any method which it deemed appropriate to supervise the "305 program." Ms. Foley agreed with Senator Adler's statement, but indicated "...the director, in the language of this bill, seems to turn over the evaluation to either the counselor, physician or psychologist. We want to make sure the director has the ability to use these diagnostic tools, rather than just evaluation."
Testifying against passage of S.B. 10 was Phillip Ulibarri, Program Coordinator, Washoe County District Health Department. Mr. Ulibarri stated he worked through a grant from the National Highway Traffic Safety Administration and was a member of the Northern Nevada DUI Task Force. He said he had concerns regarding the legislation, with regard to victims' rights. Mr. Ulibarri stated "...many victims are not given a fair shake when it comes to determining what the sentence will be for a DUI offender...frequent offenders are also my concern." He referred to Mr. Bates' earlier statement that "40% of the time the judges are not getting the reports...", and said he would like to know the basis for those statistics. He asked if the statistics came from the administrative office of the courts, or if they were produced by the department of prisons. Mr. Ulibarri stated the National Commission Against Drunk Driving recommends a presentence report, "...so the judge can make the proper sentencing in DUI cases." He said he believed there was a national trend toward use of presentence reports, "...for the benefit of the victims...and the governments that have to see these DUI cases." Mr. Ulibarri asked the committee "...to take a serious look at the verbiage of this amendment, and possibly table any motions until Senator Jacobsen's request to look at the evaluation form can be [honored], and also [investigate] why the presentence reports are not getting to the courts...."
Senator Adler stated he believed Mr. Bates had indicated it was the drug and alcohol evaluation of the offender which was not always being transmitted to the department of prisons, in other words, "...they weren't making it from the court to the department...so they could evaluate the offender." Senator Adler said he did not believe Mr. Bates had indicated the judge did not receive the report. Mr. Bates responded, "We don't know if the judge sees it either...we don't get the presentence evaluation that is required...this is a separate document which is ordered only in those cases where the person is being charged under the two felony DUI statutes...that particular presentence evaluation of addictiveness...we do not get 40% of the time...." Mr. Bates added it was his understanding that the purpose of that evaluation was to assist the director of the department of prisons in determining eligibility for participation in the "305 Program."
Mr. Ulibarri reiterated the position of the Commission Against Drunk Driving that the presentence evaluations should be seen by the judge prior to sentencing, "...as a deterrent to other people who would like to drink and drive." He added he was concerned about the cost to the state if the requirement for a presentence evaluation were removed and passed on to the department of prisons. Mr. Ulibarri stated at the present time the counties or local entities are asked to bear the cost of the evaluations, and asked if Mr. Bates had an idea of the cost which would be incurred by the state prison system, if the evaluations were done "inside the prison system."
Senator Adler said his experience showed a judge would usually ask the department of parole and probation to do an evaluation regarding a person's propensity to be an alcohol or drug abuser. He said he believed the department then prepared a presentence report, which was given to the judge. Mr. Bates indicated Senator Adler was correct. He said the presentence investigation "is comprehensive...it speaks to the offense and to the person in all aspects." However, he said, the evaluation they are talking about in S.B. 10 "...is separate and distinct." Mr. Bates said that evaluation "serves only one purpose," to determine eligibility for entrance into the "305 Program." Mr. Bates continued, "To the extent the committee decides there is a reason to have the presentence evaluation of addictiveness required under NRS 484 [Chapter 484 of NRS]...the department of prisons has no objections to having psychologists on the list of people who can do it...." Mr. Bates stated he wished to clarify one point regarding an attorney general's opinion which states "...if counties are required to do presentence evaluations of addictiveness, they can bill those charges to the state department of prisons." He said he believed "a better way" would be to let the department do the evaluations, if the committee felt there was a reason to do them at all.
Senator James asked Mr. Bates to provide him with the citation of the attorney general's opinion as soon as possible. Senator Titus asked if the presentence report "...was to determine whether a person was an alcoholic or a situational user," and also questioned:
If it is determined he is an alcoholic, he is eligible for treatment and home confinement, but if it is determined he just had too much to drink one night...he just has to go to prison, and he doesn't get any treatment?
Mr. Bates answered that was correct. Senator Titus continued: "What is the possible logical argument for that...a situational user will have to go to prison, and an alcoholic can get treatment and go home?" Mr. Bates answered: "That is my point exactly." Senator Titus pointed to the language of the amendment which utilized the word, "may," and indicated if the evaluation were optional, the department "may not do it." Mr. Bates agreed.
Senator Adler stated he could see why the department of prisons may want to repeal the statute regarding eligibility for the program, but he felt there was a valid reason for the testing program, "...so down the line the [department of parole and probation] can make a decision...." Mr. Bates said this was part of the department's reception and diagnostic process, and they "...do more than what was contemplated by A.B. 305 of the 66th Session...."
Mr. Ulibarri asked Mr. Bates if the department of prisons would be interested in striking the word "may" in the first section of the bill, changing the same to "shall." He said he felt the evaluation in order to enter the program was very important, but that a line should be drawn between a "part-time user" and an alcoholic. The chairman stated even if the word were changed, "...it still would not be a presentence occurrence. Mr. Ulibarri stressed his concern "...that some true abusers of alcohol are going to be let into this program and are going to be let out of prison at a real early date." Mr. Bates said the only person who could possibly be excluded from the program under the current state of the law, "is a person who is not an alcoholic." He said this fact did not seem to be reasonable.
Senator Jacobsen asked Mr. Westerman how long it took to administer an evaluation test. Mr. Westerman said the MMPI was "a several hundred item inventory," which takes a few hours to do on a computer. He said there is also a "5-day assessment" done on an incoming prisoner, which is a social assessment to determine his or her needs. Mr. Westerman indicated the department also administers an "addiction severity index," which takes several days.
The next to testify was James J. Jackson, Nevada State Public Defender. The chairman asked Mr. Jackson to "enlighten the committee as to what is included in a presentence report." Mr. Jackson stated his office handles several hundred cases of felony DUI each year. He said he believes the statute indicates a presentence report is "...not an optional item... it shall be done...therefore, it is done in every case my office handles." Mr. Jackson said the evaluation process takes one to four hours, which costs between $40 and $150. He said it is the attorney's responsibility to insure the evaluation is set up with a certified substance abuse counselor. He added it is the also the attorney's responsibility to see that the report is provided to the court prior to the sentencing date. Mr. Jackson stated a copy of the evaluation is forwarded upon sentencing to the department of prisons.
Senator Titus indicated if a presentence report "...was helpful to the judge in making his determination about the whole case...we could keep it for that purpose, but it shouldn't be a determinant necessarily of whether a person gets to go into the treatment program." Mr. Jackson stated he had no problem with that premise. Senator Titus asked Mr. Jackson to comment on whether a person who was not an abuser should be denied the opportunity to have treatment and home confinement. Mr. Jackson answered he believed "...anybody could benefit from education and some limited treatment, even if they are a situational abuser...to say they should be completely excluded, and treated in reality more harshly than somebody who has been a long term abuser...seems awfully unfair."
The next to testify in opposition to S.B. 10 were Judy Jacoboni, Nancy Dallas and Laurel Stadler, all members of Mothers Against Drunk Driving (MADD). Ms. Jacoboni stated it was her opinion "...that every convicted drunk driver, before being sentenced by a judge, should undergo an alcohol abuse assessment...." She said she believed the cost of such assessment should be paid by the drunk driver. Ms. Jacoboni continued:
There is no way for judges to look at the vast majority of people who are convicted of felony drunk driving, and determine the nature of their alcohol problem. Alcoholics and problem drinkers and social drinkers may all drive impaired, and all need to be handled in effective ways by the courts. One of the seven key laws to combat drunk driving recommended by the National Commission Against Drunk Driving is a mandatory alcohol abuse evaluation, so that arrested drivers with severe drinking problems can be detected and judges can order appropriate sanctions and treatment. Without alcohol abuse assessments or presentence investigations... judges cannot make intelligent sanctions when passing sentence. That lack of knowledge jeopardizes public safety, as mistakes and mishandling of drunk drivers by unknowledgeable judges can cost innocent people their lives....
Ms. Jacoboni stated she has attended several felony drunk driving sentencings in northern Nevada. She said in every case the judge has referred to the presentence, alcohol abuse evaluation. Ms. Jacoboni stressed the importance of retaining the evaluation as a "tool" for judges in the future. Senator Adler asked Ms. Jacoboni if it would be valuable to mandate that everyone who is convicted of an alcohol offense would have a presentence report, "...which incorporates an alcohol evaluation...then it would be in the one document that follows the prisoner around, so everybody had notice...the judge, the department of prisons, the department of parole and probation...." Ms. Jacoboni responded, "The agencies involved should attempt to communicate better with each other, and make sure these documents do travel around."
Ms. Stadler submitted a prepared statement, attached as Exhibit E. She referred to the 1991 Select Committee on Corrections, which heard the testimony on A.B. 305 of the 66th Session, and said the program "from that point of view" was set up specifically for alcohol and drug abusers only. She added it was set up to exclude those who were not determined by the evaluation to be alcohol and drug abusers. Ms. Stadler stated, "Right or wrong, I believe the legislative intent was to do it this way...the legislation was set up for the drug and alcohol abuser only... the evaluation was to determine whether that person would be eligible in prison for the '305 program'...." Senator James indicated he understood that was the intent, "...but what I am hearing...is that it apparently has taken on a life of its own...and it is not now just perceived as being necessary for determining entry to this program... but is useful in sentencing, and you want to preserve that." Ms. Stadler agreed. She continued to say there are many victims and families of victims who are "understandably upset" with several of the provisions of the "305" early release program. She pointed out the fact that "...felony DUI offenders that get a 20-year sentence are routinely eligible for '305' after serving only two years and four months of their sentence...." Ms. Stadler stated another concern of MADD was "...while alcohol consumption is not allowed in the program, the consumption of alcohol is not in and of itself a reason for program termination or return to institutional incarceration." Ms. Stadler asked the committee to "table" the legislation at this time, "...until some other bills come through regarding '305'...then look at all aspects of the program." Senator
James indicated he shared Ms. Stadler's concerns and said the committee would not act on the bill immediately.
Ms. Stadler reviewed Exhibit E with the committee, and the chairman indicated each member should review that statement prior to further discussion on S.B. 10, in addition to other legislation which would be going before the committee concerning A.B. 305 of the 66th Session.
Senator James indicated to Ms. Stadler that her "concerns are well directed."
Ms. Dallas stated S.B. 10 was very upsetting to her and to all members of the MADD organization. She stressed her support for the position set forth by Ms. Stadler and asked the committee to be aware of their concerns.
Senator Adler indicated they "...may have made a mistake in the drafting of [A.B. 305 of the 66th Session]...since there is a presumption that if you are an alcoholic, you are not dangerous...if you are treatable, you are not a danger to the public and you should be released." He stated the evaluation was still needed to determine whether someone is a threat to public safety, not whether or not they are treatable.
Senator Titus stated she was an advocate of victims rights, and she agreed with Senator Adler concerning the merits of an evaluation. She said the fault was in the assumption of "treatable", "not treatable" and "people who do not need treatment." Senator Titus reiterated: "We are letting people out who seem more dangerous earlier because they can be treated...when a person who may not need that kind of treatment... [is] kept in longer because of that false assumption."
Senator James stated it was not his intention to indefinitely postpone the bill, because the testimony given indicates a need to change the law, "...so the required evaluations are getting to the proper people and being utilized properly." The chairman said there was a "quirk in the law," identified by Senator Adler, and it was appropriate to table S.B. 10, until other legislation regarding A.B. 305 of the 66th Session is prepared.
SENATE BILL 11: Clarifies provision relating to continued detention of paroled prisoner under certain circumstances.
Testifying in favor of S.B. 11 was John Slansky, Chief, Department of Parole and Probation, State of Nevada. He referred to the Biennial Report of the department, which had been provided to each member of the committee. That report is not attached as an exhibit, because of its length. Mr. Slansky's testimony on the bill is attached hereto as Exhibit F.
SENATOR ADLER MOVED TO DO PASS S.B. 11.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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There being no further business to come before the committee, the meeting was adjourned at 1:10 p.m.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
January 29, 1993
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