MINUTES OF THE

      SENATE COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      June 5, 1993

 

 

 

The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 12:10 p.m., on Saturday, June 5, 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 Mike McGinness

Senator Dina Titus

Senator Raymond C. Shaffer

Senator Ernest E. Adler

 

COMMITTEE MEMBERS ABSENT:

 

Senator Lawrence E. Jacobsen (Excused)

 

STAFF MEMBERS PRESENT:

 

Bob Erickson, Research Director, Legislative Counsel Bureau

Sherry Nesbitt, Committee Secretary

 

OTHERS PRESENT:

 

Ben Graham, Lobbyist, Nevada District Attorney's Association

Jim Endres, State Manager, American Telephone & Telegraph

Gene Graczyk, American Telephone & Telegraph, Chairman,           California Task Force on Toll Fraud

Brian G. Herr, Lobbyist, Nevada Bell

Lorne Malkiewich, Legislative Counsel, Legislative Counsel

  Bureau

Helen A. Foley, Lobbyist, Sprint Cellular

 

 

Senator James opened the hearing on Senate Bill (S.B.) 508.

 

SENATE BILL 508:        Prohibits person from selling, without authority of lawful holder, code or number that can be used to obtain telephone services.  (BDR 15-1513)

 

James Endres, State Manager, American Telephone & Telegraph (AT&T), provided testimony in support of S.B. 508.  He advised S.B. 508 addresses toll fraud and the associated penalties in the state of Nevada. 

 

Gene Graczyk, AT&T, Chairman, California Task Force on Toll Fraud, provided testimony in support of S.B. 508.  Mr. Graczyk stated his task force estimates the impact of toll fraud on the citizens of Nevada to be approximately $40 million per year.  He advised that number is perhaps $4 billion nationwide.  He stated this is a serious problem, which many state legislators are addressing.  He advised the pattern in all of those legislatures is to strengthen the toll fraud bill by making it more specific, as is done in S.B. 508, closing loopholes within the law, and eliminating the source of fraud itself.  He advised S.B. 508 also lowers the penalty level to $250, which is consistent with the laws in California, Hawaii and New York.  This is designed to make it plain that toll fraud is not a small crime, and that the dollar amount is essentially irrelevant.  He advised the fraud unit has seen, in several instances, that access to a company's calling card or access codes represent the clear and present danger that some companies have been wiped out of business after a single event.  He stated the average loss, nationwide, for a business, is $100,000.  He strongly urged the committee to improve enforcement of the law and to make the enhancements requested both for the sake of business and residential customers in Nevada.

 

Mr. Endres explained each section of the bill. 

 

Senator James referred to the penalty for the new crime being 1 to 6 years and a $5,000 fine, as opposed to the previous penalty which was 1 to 10 years.  He asked why the penalty was changed.  He stated this referred to the toll fraud in subsection 1 of section 1.  He stated for the types of conduct already illegal, if the amount involved is $250 or more, the penalty is 1 to 10 years and a $10,000 fine.  He asked if these penalties should be consistent.

 

Senator Adler agreed.  He stated in many instances, section 1 violations could be more serious than section 2.  If a telephone number is distributed to a number of people who make calls, the impact on the company could be much greater than a single instance of a $500 phone call. 

 

Mr. Graczyk stated legislative counsel, rather than his company, attached the dollar penalty.  He stated he has no problem with the $5,000 being amended in for consistency.

 

Senator Adler stated he would not want to see this.  He advised there are too many people in prisons, and the fiscal impact of such bills needs to be considered.  He stated the total number of days could be balanced out if the penalty in the second section was changed to 1 to 6 years.

 

Senator James stated he would like to see both penalties be 1 to 6 years. 

 

Mr. Graczyk advised he would not have a problem with that change.

 

Senator Adler stated he is not sure the enhancement portion on the misdemeanor is a good idea.   He stated he understands AT&T's problem, but reiterated there is a problem with overcrowding in the prisons as well.

 

Mr. Graczyk stated his task force currently has representation from district attorney's offices, the Los Angeles police department, the San Francisco police department, and other law enforcement agencies.  He advised his organization is not suggesting some kind of grand sweep of the streets, nor putting large numbers of people behind bars.  He stated there needs to be flexibility in the law, however, to do two things.  First, cases need to be addressed in which potentially serious fraud is discovered early enough in the process where the fraud may only be a few hundred dollars.  The level needs to be set low enough for the task force to come in at that point, advising the person he or she has broken into an AT&T system.  The person needs to be aware that the fraud has been stopped at a point where the amount is low, but the seriousness of the crime warrants an additional penalty.  He stated there needs to be flexibility in the law which says organized hackers need a severe penalty, because those persons count on the fact that these laws go virtually unenforced at this point.  He would estimate that one or two people per year have been arrested for hacking in the past year.  He stated this law would not load up the prisons, but the perpetrators of these crimes need to have a sense of the severity of the penalty as an impediment to the activity.  He further advised that when the perpetrators are arrested there needs to be a way to enforce the law. 

 

Senator James agreed with Mr. Graczyk's statement that with regard to hacking, there is no $250 cutoff, and to do that would be a felony with a 1 to 6 year penalty.  He stated S.B. 508 contains a provision stating the penalty is a misdemeanor if the person has not been convicted of something else within 5 years, and if that person has been so convicted, the penalty raises to a felony.  He stated that would not prevent prosecution of the hackers, who present the serious offenses, under the felony statute.  He stated that would only arise if a person was incarcerated and released within the 5 years, and again committed the fraud.  In that event, the amount would be less than $250 under the other provision.  The penalty would then be enhanced to a felony.  He asked if this would create a problem. 

 

Mr. Graczyk stated his belief that this would accomplish the same objective. 

 

Senator Adler stated anytime a misdemeanor has the second offense enhanced up to a felony, constitutional guarantees arise on the first case.  He advised there would have to be a transcript from the first misdemeanor conviction, it may have to be shown that the person was represented by counsel to prove up the first conviction, and a certified copy of the first conviction must be obtained in conjunction with the second offense.  He stated he understood Mr. Graczyk's testimony in terms of California.  However, California also has a $500 misdemeanor level.  Therefore, many of these perpetrators who, in California would be in the misdemeanor range, are already in the felony range in Nevada on the first offense.  He stated his belief that any time enhancements turn multiple misdemeanors into felonies, very complicated paperwork for the district attorney's office is necessary to prove up the prior misdemeanor.  He stated this seems like a lot of bother for what is trying to be accomplished. 

 

Mr. Graczyk requested clarification.

 

Senator James advised subsection b on page 2 of the bill enhances to a felony if the person had violated any portion of section 2.  Therefore, if the person had previously committed a misdemeanor, and commits another misdemeanor, the second crime becomes a felony.  If a felony was committed the first time, and a misdemeanor the second time, the misdemeanor becomes a felony.  He stated this seems inconsistent and asked if the law works in that manner in other places.  He stated he is not sure that, policy-wise, the person who commits two misdemeanors should not be enhanced to a felony. 

 

Senator Adler advised the progression of penalties for Driving Under the Influence is misdemeanor, misdemeanor, felony.  The proposed penalties in S.B. 508 is felony, misdemeanor, felony.

 

Mr. Endres asked if the committee was suggesting that the statute be amended in section 2, page 2 to eliminate the $250 threshold.

 

Senator James stated the suggestion is to remove the amendment of section 2 proposed in S.B. 508, and change the penalty to 1 to 6 years.

 

Senator Adler stated the way he reads the bill, the term "service" is an aggregation of phone calls.  He suggested that this be made clear, and that it does not have to be one call of $250.

 

Mr. Graczyk asked if the statement should include calls made over a certain time period.

 

Senator James suggested changing the language at line 15 to "if the value involved." 

 

Senator Adler stated the language states "within 3 years."  If the card has been used multiple times within 3 years, and the charges add up to more than $250, it is a felony anyway.  Therefore, it is already enhanced under the current statute. 

 

Mr. Endres stated he understands the recommendation.  He stated he does not believe that eliminating the new language in section 2 takes away the thrust of the bill.  He stated the thrust of the bill is actually contained in the first new section, defining what is unlawful use or theft of telecommunication services and attaches immediately the penalties associated therewith. 

 

Brian G. Herr, Lobbyist, Nevada Bell, provided testimony.  Mr. Herr advised he has also been authorized to make a statement on behalf of Centel.  He advised that Nevada Bell provides toll services in northern Nevada, and Centel provides the same in southern Nevada.  He stated both companies wish to go on record as supporting S.B. 508.  He stated that after listening to the discussions, he would have no concerns regarding the proposed amendments.

 

Helen A. Foley, Lobbyist, Sprint Cellular, provided testimony.  She advised Sprint Cellular supports S.B. 508.  She advised that it is the opinion of Sprint Cellular that the language on line 8 (d), "any other code or number that can be used to obtain telephone service" would include electronic serial numbers and other obscure types of numbers used with cellular fraud.  She referred to Assembly Bill (A.B.) 462.

 

ASSEMBLY BILL 462:            Requires suppliers of mobile telephone service to provide free access to emergency telephone numbers and provides penalties for theft of mobile telephone service.  (BDR 15-101)

 

Ms. Foley stated the assembly has a concern in this bill regarding the 1 to 10 year penalty.  This penalty was modified to 1 to 6 years.  She stated with the new amendments, S.B. 508 would be consistent with A.B. 462.

 

Senator James confirmed there was no further testimony regarding S.B. 508. 

 

      SENATOR ADLER MOVED TO AMEND AND DO PASS S.B. 508.

 

      SENATOR SHAFFER SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR JACOBSEN WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

The hearing was opened on Assembly Bill (A.B.) 469.

 

ASSEMBLY BILL 469:            Ratifies technical corrections made to NRS and Statutes of Nevada 1991.  (BDR S-1279)

 

Lorne Malkiewich, Legislative Counsel, Legislative Counsel Bureau, provided testimony regarding A.B. 469.  He stated this ratification bill is, in the opinion of the Legislative Counsel Bureau (LCB), the most important bill of a legislative session from a bill drafter's perspective.  He advised that when a legislative session adjourns, a large number of bills generally pass in the last few days.  There is no time to correct what the LCB terms defective multiple amendments.  He explained this occurs when two bills amending the same section are approved, and the bills do not account for each other.  The LCB looks at the two amendments, generally combines them, prints the amended version of the section in the Nevada Revised Statutes (NRS), and then brings back a bill to ratify all the changes made.  This is the purpose of A.B. 469.  He stated if A.B. 469 is approved without amendment, it locks in NRS.  He advised NRS is not the law, but the official codified version of the law.  The official law is Statutes of Nevada.  A ratification bill must be passed, so the Statutes of Nevada will confirm that what is printed in NRS is, in fact, the official codified version of law.  He advised A.B. 469 amends Statutes of Nevada 1991 and basically does conflict amendments.  It predicts that, had the legislature stayed in session and addressed the conflicts between two bills, how would the conflict have been resolved.  He stated the notes are essential in reading the ratification bill, because since bills from the 1991 session are being amended, the language in italics and brackets are the substantive changes made to the law in the 1991 session.  The minor changes made to reconcile the conflicting provisions cannot be distinguished from the other provisions in the amendments.  Therefore, the notes are needed.  He stated for the most part, the changes made are technical.  In some cases fairly inconsistent provisions are passed, and the LCB has to take a best guess as to how these should be reconciled.  He stated there has been no amendment to the ratification bill in several years, which means the legislature in general has concurred that the manner in which the LCB resolved the conflicts in printing NRS has been accurate.  Mr. Malkiewich advised that three people testified on the assembly side with questions, the questions were resolved, and A.B. 469 came to the senate unamended. 

 

Senator James confirmed there were no questions from the committee.

 

      SENATOR SHAFFER MOVED TO DO PASS A.B. 469.

 

      SENATOR SMITH SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR JACOBSEN WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

The hearing was opened on Assembly Bill (A.B.) 627.

 

ASSEMBLY BILL 627:            Allows use of affidavit of owner, possessor or occupant of property at preliminary examination or proceedings of grand jury under certain circumstances.  (BDR 14-585)

 

Ben Graham, Lobbyist, Nevada District Attorney's Association, provided testimony in support of A.B. 627.  He advised the bill deals with preliminary hearings and grand juries.  He stated that at both a preliminary hearing and a grand jury, the state has the responsibility of establishing probable cause that a crime has been committed, and that a particular person committed that crime.  Cross-examination is allowed in a preliminary hearing, but not in a grand jury.  He advised A.B. 627 is asking authority to utilize an affidavit under very limited circumstances.  The circumstances would be if the only issue to be presented by a witness is the right of ownership, possession, or consent to possess an item.  He stated A.B. 627 would authorize, if the victim is out of state, or resides more than 100 miles away from where the preliminary hearing or grand jury is being held, an affidavit may be used to establish those items spoken of only.  If identity or any other substantive fact is an issue, the witness would be brought into the proceeding.  Mr. Graham distributed to the committee two examples of preliminary hearings.  Copies of these cases, State of Nevada vs. John F. Norwood and The State of Nevada vs. Robert Douglas Adams are attached as Exhibits C and Exhibit D, respectively.  Mr. Graham explained in State vs. Norwood, the witness was brought in from Minnesota.  The prosecution asked the owner of the vehicle in question about parking his van at a parking lot at the Frontier Hotel, if it was his van, and when he came out of the hotel what was the condition of the van.  The van's windows had been broken in and jammed, and the van was generally damaged.  The owner of the van was also asked if he gave anyone permission to do this damage to his van.  Mr. Graham advised the obvious answer is going to be that the van's owner did not give permission.  However, the defendant still had to be transported from Minnesota to determine this.  Mr. Graham referred to page 12 of the hearing transcript, which contains the cross-examination of the van's owner.  He was asked if he was aware of fingerprints being taken, and about the strike at the hotel, which had no relevancy or bearing on the case.  However, when the witness is present, the defense attorney feels compelled to ask something.  Mr. Graham stated the affidavit proposed in A.B. 627 would be similar to that on the last page of Exhibit C.  Mr. Graham referred to Exhibit D, which is very similar in nature to Exhibit C.  Mr. Graham explained the case and the nature of the questions asked the victim in that case.  Again, the victim had to be brought back from Wisconsin to ask the questions.  Mr. Graham advised that again, an affidavit of the victim could have been used. 

 

Mr. Graham advised that there is a provision in A.B. 627 that for good cause, the victim will be brought in to testify at state expense.  He stated from his experience, this is unlikely to happen.  He advised the use of the affidavit proposed in A.B. 627 would save approximately $200,000 in Clark County and $75,000 to $100,000 in Washoe County.  He stated there is case law establishing the constitutionality and legitimacy of this action. 

 

Senator James asked for and received confirmation that the savings in Clark and Washoe counties quoted would be per year.

 

Senator Titus asked if this denies the constitutional right to confront witnesses.

 

Mr. Graham advised it does not.  The preliminary hearing is a creature of statute, and therefore not a constitutional issue.  He reiterated that there is no cross-examination in a grand jury.  He advised the witnesses appear at the trial. 

 

Senator James confirmed there was no further testimony regarding A.B. 627.

 

      SENATOR SHAFFER MOVED TO DO PASS A.B. 627.

 

      SENATOR TITUS SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR JACOBSEN WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

Senator James advised the assembly has amended Senate Joint Resolution (S.J.R.) 2. 

 

SENATE JOINT RESOLUTION 2:          Proposes to amend Nevada constitution to provide expressly for rights of victims of crime.  (BDR C-207)

 

Senator James confirmed with the committee members the various parts of the amendment.  He advised he had conferred extensively with Assemblyman Sader, who had assured Senator James that much research had been done by the Assembly Committee on Judiciary regarding victim's rights legislation in other states.  Senator James asked for other committee members' opinion as to the amended version of S.J.R. 2, and whether to concur or not concur.  Senator James advised that he had been told by Assemblyman Sader that S.J.R. 2 as originally written had little chance of passage in the assembly.

 

Senator Adler stated the amended version of S.J.R. 2 was not what he had wanted, but was not too bad.

 

Senator Titus agreed, and said at least this will put something on the books.

 

Senator James agreed, and stated that if changes were desired, an initiative could be proposed.

 

      SENATOR ADLER MOVED TO CONCUR IN THE ASSEMBLY AMENDMENT TO S.J.R. 2.

 

      SENATOR TITUS SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATOR JACOBSEN WAS ABSENT FOR THE VOTE.)

 

      * * * * *

 

 

There being no further business to come before the committee, Senator James adjourned the meeting at 2:15 p.m.

 

                        RESPECTFULLY SUBMITTED:

 

 

 

                                                

                        Sherry Nesbitt,

                        Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                

Senator Mark A. James, Chairman

 

 

DATE:                           

??

 

 

 

 

 

 

 

Senate Committee on Judiciary

June 5, 1993

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