MINUTES OF THE
SENATE COMMITTEE ON TRANSPORTATION
Sixty-seventh Session
June 3, 1993
The Senate Committee on Transportation was called to order by Chairman William R. O'Donnell, at 2:00 p.m., on Thursday, June 3, 1993, in Room 226 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator William R. O'Donnell, Chairman
Senator Lawrence E. Jacobsen, Vice Chairman
Senator Mark A. James
Senator Leonard V. Nevin
Senator Thomas J. Hickey
Senator Lori L. Brown
COMMITTEE MEMBERS ABSENT:
Senator Joseph M. Neal, Jr. (Excused)
GUEST LEGISLATORS PRESENT:
Senator Dean A. Rhoads, Northern Nevada District
STAFF MEMBERS PRESENT:
Paul Mouritsen, Senior Research Analyst
Terri Jo Wittenberg, Committee Secretary
OTHERS PRESENT:
Doug Busselman, Executive Vice President, Nevada Farm Bureau
Sam Routson, Chief Administrative Officer & House Counsel, Winnemucca Farms, Inc.
William J. Guisti, Traffic Manager, Newmont Gold Company
Michael Pitlock, Pubic Service Commission of Nevada (PSC)
Ron Powell, Director of Administration, Newmont Gold Company
Deanne Yoder, Barrick Goldstrike Mines, Inc.
Samuel P. McMullen, Lobbyist, Barrick Goldstrike Mines, Inc.
Daryl E. Capurro, Lobbyist, Nevada Motor Transport Association
Jeff Frehner, President, Frehner Trucking Service, Inc.
Mike Soumbeniotis, Attorney
Robert D. Barker, Continental Lime Company
Steve Kiesel, Transportation Manager, Bonanza Materials
George Keele, Attorney Representing Herman Brothers Trucking
Pete Fundis, Fundis Company
Dan L. Halstead, Dan F. Halstead & Sons
Madison D. Locke, J & M Trucking
William Klegg, Transportation Supervisor, Nevada Cement
Ashley Hall, Lobbyist, Auto Recyclers & Dismantlers of Southern Nevada
Allan Bloomberg, Lobbyist, Auto Recyclers & Dismantlers of Southern Nevada
Donna Wadey, Assistant Chief, Registration Division, Nevada Department of Motor Vehicles and Public Safety (DMV)
Dave Hefner, Senior Investigator, Bureau of Enforcement
Sherry Blackwell, Assistant Chief, Motor Carrier Bureau, Nevada Department of Motor Vehicles and Public Safety (DMV)
Robert L. Crowell, Attorney, Farmers Insurance Company
William L. Gardner, Chief Deputy City Attorney, City of Reno
Suzanne Hanson, Criminalist, Forensic Science Division, Washoe County Sheriff's Office
Captain Randy Oaks, Las Vegas Metropolitan Police Department
James F. Nadeau, Lieutenant, Assistant Commander Incline Substation, Washoe County Sheriff's Office
Judy Jacaboni, Lyon County Chapter, Mother's Against Drunk Drivers (MADD)
Chairman O'Donnell opened the hearing on Senate Bill (S.B.) 491.
Senate Bill 491: Exempts certain motor carriers from rate regulation by public service commission of Nevada when carrying certain agricultural or mining products.
Doug Busselman, Executive Vice President, Nevada Farm Bureau, read from prepared testimony (Exhibit C) in support of S.B. 491.
Senator Hickey asked what kind of harm would be done to the industry if the statute is left as is. Senator Hickey said if he could not answer the question right now, to please provide that information as soon as possible to the committee.
Mr. Busselman replied he would provide that information to the Chairman.
Sam Routson, Chief Administrative Officer & House Counsel, Winnumucca Farms, Inc., read from prepared testimony (Exhibit D) in support of S.B. 491.
Chairman O'Donnell asked what the Public Service Commission of Nevada's (PSC) role in determining the tariffs.
Mr. Routson said the PSC establishes rates, rates which Winnemucca Farms has found vary from 20 cents to 30 cents per hundred weight higher than out-of-state transportation that would available.
Senator Brown asked if the $100,000 difference he mentioned in his testimony was based on the assumption that the rates would be lower if this bill were to pass.
Mr. Routson said he had tried to give an estimate as to what their experience has been, given the fact that they are able to use the 120 day agricultural exemption for the hauling of their potatoes, versus what it has been over past years in a regulated sense. He added, given the fact they hope to produce over 250 million pounds of potatoes as well as substantial tonnage of hay and grain, that is a very conservative estimate of what their costs would be.
Senator Hickey asked if Winnemucca Farms had ever applied for a permit to transport their own products, and if not, why.
Mr. Routson said they had not, to his knowledge, and the reason is, the equipment that they use is specialized in its configuration and the amount of the year in which it is used.
William J. Guisti, Traffic Manager, Newmont Gold Company, read from prepared testimony (Exhibit E) in support of S.B. 491.
Chairman O'Donnell asked if the current need for trucks is going to double in the near future. He also said this bill does not give them a reduction in rates, only the possibility of a reduction.
Mr. Guisti said they will have to negotiate a reduction in the rates, but they have the ability to negotiate, based on the substantial volumes, to negotiate a reduced rate.
Chairman O'Donnell said it would be up to the trucking companies to give the mining industry a break on the rates.
Mr. Guisti said they could not guarantee they would see a reduction in rates but they have seen other negotiations when they ship large quantities and they have been able to negotiate favorable rates with various companies based on the volume that they are able to order from somebody.
Chairman O'Donnell reiterated that there is no guarantee and no one can guarantee the rates will go down if this bill is passed.
Mr. Guisti agreed and said he believes they will be successful in lowering the rates which they will pay for the transportation of the materials this bill will affect.
Mr. Guisti continued with his prepared testimony.
Chairman O'Donnell asked if he had talked with some of these trucking companies in terms of putting more trucks on line.
Mr. Guisti said some companies can put more trucks on line. He added, they need a great deal of lead time due to the surges in use. He said many companies want to be guaranteed a contract. He said the big companies they deal with operate all across the United States and they have their equipment allocated.
Michael Pitlock, Pubic Service Commission of Nevada (PSC), testified in regard to S.B.491. Mr. Pitlock said most certificated carriers in Nevada do not have vehicle limitations on their certificates. He added, if they do not have that limitation they can put on as much equipment as the market demands. Mr. Pitlock continued, there are some carriers who have limitations on their certificates and they could not add additional equipment unless they came before the PSC to seek approval. Mr. Pitlock said certificated carriers also have the ability to lease additional equipment in the amount equal to the amount that they own.
Senator Hickey asked if the negotiated rates can be taken to the PSC for approval.
Mr. Guisti said they have tried to set some rates and the information that they have to obtain to set the rates is difficult to obtain.
Senator hickey asked if some of the materials listed in the bill are hazardous materials. He said he would find out if some of these material are hazardous and he said he believes some of the materials are on the interstate transportation hazardous materials list.
Ron Powell, Director of Administration, Newmont Gold Company, testified in support of S.B. 491. Mr. Powell said, in his experience of 28 years in the procurement business, if they were to be in a competitive situation with qualified carriers, the rates would go down and he said he would be willing to bet on that.
Senator Hickey asked why they do not run their own transportation operation.
Mr. Powell said they are in the gold mining business, not in the trucking business.
Senator Hickey said they are in the business of getting a larger bottom line and if that creates that larger bottom line, why are they not doing it.
Mr. Powell said they are not here to take jobs away from anyone by putting their own transportation fleets on, even though that has been considered.
Deanne Yoder, Barrick Goldstrike Mines, Inc., spoke in favor of S.B. 498. Ms. Yoder stated they are finding themselves in the same position as Newmont Gold Company is finding themselves and Barrick Gold Strike Miles is facing the same problems.
Samuel P. McMullen, Lobbyist, Barrick Goldstrike Mines, Inc., testified in support of S.B. 498. Mr. McMullen said there is a lot of demand for transportation and negotiation would not always drive prices down, but it would be a very competitive feature.
Daryl E. Capurro, Lobbyist, Nevada Motor Transport Association, testified in opposition to S.B. 491. Mr. Capurro said there is a need to refresh the memory of the legislature as to the need and necessity for regulation. He said this has brought forward time and time again over the past many years. He added, this legislature has consistently confirmed the need to regulate the trucking industry in the State of Nevada.
Mr. Capurro then referred to a handout (Exhibit F) which is a copy of the current Nevada Revised Statutes. He read through the statutes.
Chairman O'Donnell asked why this language is necessary.
Mr. Capurro replied that in a regulated atmosphere it is a two-way street and in effect, the state has expressed some interest in having some control over a business. He continued, in return for that control, which is not normal in some of the other businesses that we have, the state will have more control over that business than they would ordinarily have. He said, in return, the state has said that this is a contract and the state will provide a certain amount of protection for the business from unfair competition. Mr. Capurro said this bill would put many small trucking companies out of business.
Mr. Capurro continued, saying "Let's talk about the agriculture exemption." He said the issue concerning Winnemucca Farms (WF) came up last session and WF said they needed a lot of trucks for a short period of time and the industry cannot provide them. He continued, the industry said we agree with you and there is the potential for lack of equipment at the time they need the equipment. He said a partnership agreement was worked out and now WF is seeking to repeal that agreement.
Mr. Capurro said he receives telephone calls from carriers who have had to deal with WF and WF has a history of attempting to "convince" the carriers who have certificates to haul for a lesser rate than what is filed under their tariffs before the PSC. He said that is a violation of the law and WF has consistently gone outside of the state to acquire equipment before they have utilized the full services of carriers that are available in Nevada. Mr. Capurro said some of those carriers are willing to haul for as little as the payment on their truck. He added, the people that he represents who have gone to the trouble of becoming legal, who have spent money, who have gone before the PSC and done what was necessary to secure the proper certificate to operate will be put out of business by S.B. 491.
Mr. Capurro also asked, "Why are we only dealing with the dry bulk mining products?" He said:
Well, it's very simple. They deregulate the guy coming in. Then they give him the gold to haul out. So they have deregulated that portion of it without having to deregulate that portion.
Chairman O'Donnell stopped Mr. Capurro and said he did not think that is the case. He added, the mining companies would not let him near one of the gold bars, let alone a truck driver with no protection.
Mr. Capurro replied there are a lot of other items that are involved too and this bill deals with dry bulk products. He added, there are several other types of products that are hauled to and from the mines that are not deregulated. He continued:
If you deregulate this portion and you already have the carrier there, he usually has the back-haul portion of that haul.
Senator Brown asked if the legislature passes this bill if they would be deregulating more than just the items listed in the bill.
Mr. Capurro replied:
I'm saying that, essentially what happens is, there is a back-door approach.
Senator James said one of the objections to S.B. 491 is the notion that if the legislature deregulates this section of the transportation industry the argument is made that there would not be fair service to other areas and the less attractive routes would not occur. Senator James said he had recently read an article in Business Week which said that the deregulation of interstate trucking did not harm such service and in fact, saves shippers and consumers $38 billion per year and the cost of shipping freight by truck went down from 5.7 percent of gross national product (GNP) in 1980 to 4.9 percent in 1990. Senator James asked why the state could not expect the same results if the legislature deregulates intrastate trucking.
Mr. Capurro replied, as of now, there are in excess of 40 states which still regulate aspects of intrastate trucking.
Senator James said there was not a loss of service to the less desirable areas as a result of the deregulation of the 1980s.
Mr. Capurro said that argument has not worked in the 40-plus states that still regulate transportation. He added, there is a very larger difference between "interstate" and "intrastate" operations in the types of products that are hauled.
Senator James said some of the testimony has indicated there is not adequate trucking under the current regulated industry.
Mr. Capurro said "Believe me, if Barrick or Newmont is to double their activity, that will be viewed among the existing carriers as an opportunity to add equipment."
Senator James said the original legislation, which regulated the trucking industry, said one of the stated legislative declarations of purpose was to "discourage any practices which would tend to increase or create competition which might be detrimental to the travelling and shipping public." He said that statement seems counter to our whole economic system in the United States.
Mr. Capurro said that is an item which the PSC must take into account when they look at the addition of new carriers to the field. He added, the securement of additional or new authority has not been near the concern it was in the early 1980s.
Chairman O'Donnell said the bill only addresses two areas; raw and unprocessed agriculture products and dry bulk mining materials.
Mr. Capurro said the mining products are the second largest revenue producer in intrastate regulatory matters. Mr. Capurro added:
Without the regulatory structure, in good times, you will have people there. One of the reasons for regulation is to say that carrier is responsible to the public in the good years and the bad years. If we allow carriers from out-of-state to come in and take the money back out-of-state, we are eliminating the ability of the certificated carrier, the guy who is legal, who went to wall to secure his authority to operate, is not going to be around. And when you need him, that's when we're going to find out how de-stabilized this industry could be.
Senator James said that is the exact same argument that people get when they talk about trade barriers between countries and it is the same argument they are making in their consolidation of the economic market in Europe. He added, those arguments have just failed over time. He said the notion that people can protect something in this state or something in this country by utilizing government to step in and protect certain industries from competition has failed in this country and has failed throughout the world.
Mr. Capurro said the Nevada Dairy Commission is in existence to make sure the Nevada dairy industry does not go "belly up." He said that is one other area which is regulated that this legislature is not prepared to terminate.
Chairman O'Donnell said the small shipper would still be required to serve the outlying areas.
Mr. Capurro said he thinks "that's the camel's nose under the tent" and this sets the tone for the mining industry to come back next session and "look for the 'whole enchilada' and that is the movement of anything to do with mining operations."
Senator Dean A. Rhoads, Northern Nevada District, testified in support of S.B. 491. Senator Rhoads said most of the neighboring states already exempt the transportation of raw agricultural products. He added, during the past few years, as a result of the drought, he has had to purchase several tons of hay. He continued when he first started buying hay, he went up to Idaho and found some hay and called a few Nevada truckers to haul it for him. He said he was told the price would be so high he went to Idaho and had Idaho truckers haul the hay. He said also, because of the price of transportation he has been forced to buy hay from Utah and Idaho instead of buying it from a Nevada grower.
Jeff Frehner, President, Frehner Trucking Service, Inc., read from prepared testimony (Exhibit G) in opposition to S.B. 491.
Senator Brown asked how deregulating the trucking industry would affect the safety standards.
Mr. Frehner said he watches out-of-state truckers come into Nevada and said these trucks are "ragged out and not up to date." He continued these trucks do not have their brakes worked on on a regular basis and these trucks are not properly maintained.
Mike Soumbeniotis, Attorney, testified in opposition to S.B. 491. Mr. Soumbeniotis referred to a newspaper article (Exhibit H) which talked about the hazards of deregulating the trucking industry and the safety issues.
Senator Brown asked if the PSC is responsible for checking the safety of the trucks.
Mr. Frehner said the PSC will inspect the trucks.
Senator Brown asked if the PSC has the right to regulate interstate transportation.
Mr. Soumbeniotis replied a recent runaway bus is an example of deregulation and the problem with inspections of interstate transportation. He said the deregulation eliminated the types of inspections that would normally be performed. He added, deregulation also brings the prices down so low that the truck operators can no longer afford to maintain their equipment.
Chairman O'Donnell asked how these truckers could "not afford to maintain their trucks."
Mr. Frehner said the mining industry has indicated they are contracting with "uncertificated carriers now and the reason for that is they are able to get the rates cheaper by using truckers from Idaho and California and they are able to haul their product cheaper rather than using the certificated carrier."
Chairman O'Donnell said the trucking companies would be making sure they have enough in their profit margin to make sure they have vehicles maintained. He said this is an indictment against the trucking industry if they do not charge enough to pay for their own maintenance.
Mr. Soumbeniotis said the only reason the state regulates trucking is because "you have enough cowboys out there with $50 in their jeans and that is sufficient to make a down payment on any old wrecked truck and he's a trucker." He added, "if he's got a payment to make and there's a shipper out there, and there are 50 of these truckers out there with a payment to make that month, that shipper will drive that rate down to the lowest bidder and there will be somebody who'll be willing to take that shipment whether he makes any living at it or not."
Senator Nevin asked how much of Mr. Frehner's equipment could be used to transport mining materials.
Mr. Frehner said his company transports a lot of heavy equipment. He added, he was approached by Chemstar Lime, which supplies lime to a lot of the mines, to haul lime for them and his rate was too high so they went to a trucker in Arizona to transport the material. He said he has never been contacted in the past 3 years by a mine to haul anything for them.
Chairman O'Donnell said the fact that these out-of-state truckers are taking away business because the Nevada truckers are forced to charge a certain rate should make the Nevada truckers happy to see S.B. 491 and this bill would allow the Nevada truckers to compete with the out-of-state truckers.
Mr. Frehner said this would mean there would be more truckers in the state and would put many truckers out of business.
Mr. Soumbeniotis said if this bill passes, "you don't have to have anything and no one is going to look at them at all. You're exempting them from all regulation."
Senator Brown asked if this bill would deregulate the Nevada truckers and if so, would that not put the Nevada truckers in a better competitive situation.
Mr. Frehner said "it would probably break you before."
Mr. Soumbeniotis said there are sufficient, unlicensed, unregulated, owner-operator truckers out there to meet any shipping requirement that anybody could think of and for every shipping requirement, there will be two trucks.
Chairman O'Donnell said the bill would not exempt anyone from maintaining their equipment or from maintaining insurance.
Senator Hickey asked if lime presented any particular hazard.
Mr. Frehner replied lime does present a hazard.
Senator Hickey asked if his company is restricted to hauling lime.
Mr. Frehner said his trailers are restricted to hauling lime, cement and soda ash.
Senator Hickey asked him why lime is considered a hazardous material.
Mr. Frehner said lime would burn the skin when contact is made.
Senator Hickey asked if dry sulfur presented any problems in transportation.
Mr. Soumbeniotis said that would probably consist of an interstate haul and would not be regulated by Nevada.
Robert D. Barker, Continental Lime Company, said lime is considered a hazardous material when transported by air.
Chairman O'Donnell said this bill does not exclude hazardous materials.
Steve Kiesel, Transportation Manager, Bonanza Materials, testified in opposition to S.B. 491. Mr. Kiesel said his company holds a general commodities permit from the PSC. He added, any type of deregulation has a direct effect on public safety. He added, if S.B. 491 passes "Nevada will end up like some of the surrounding states where you have unsafe vehicles out on the highway, running over our children."
George Keele, Attorney Representing Herman Brothers Trucking, testified against S.B. 491. Mr. Keele explained an amendment (Exhibit I) to the committee. He said this amendment would be a compromise between the opponents and proponents of this bill.
Mr. Keele also said he is "shocked" at some of the testimony from the proponents of the bill who say they have been using illegal carriers.
Senator Hickey said "there are a lot of people engaged in illegal activities and hopefully we are catching them and putting them in jail and hopefully we are catching the illegal carriers and fining them and making their life miserable."
Mr. Pitlock said, in listening to the testimony, he had heard two particular problems identified. He said one has to do with the availability of equipment and the other has to with the rates that they are required to pay. He said the committee needs to ask "whether or not there are mechanisms currently in place within the existing regulatory framework to deal with the two problems that have been identified." He said he thinks that there are.
Pete Fundis, Fundis Company, testified against S.B. 491. Mr. Fundis said every carrier can file his own rate with the PSC. He added, he can guarantee that the rates will drop if S.B. 491 is passed and he can also guarantee that the loads will increase and fuel tax revenues will drop.
Dan L. Halstead, Dan F. Halstead & Sons, read from prepared testimony (Exhibit J) in opposition to S.B. 491. Mr. Halstead also referred to a letter from Winnemucca Farms (Exhibit K).
Madison D. Locke, J & M Trucking, read from prepared testimony (Exhibit L) in opposition to S.B. 491.
William Klegg, Transportation Supervisor, Nevada Cement, stated his company is in opposition to S.B. 491.
Chairman O'Donnell closed the hearing on S.B. 491 and opened the hearing on S.B. 500.
Senate Bill 500: Makes various changes relating to persons who sell, lease, dismantle or impound vehicles.
Ashley Hall, Lobbyist, Auto Recyclers & Dismantlers of Southern Nevada, testified in support of S.B. 500. Mr. Hall said the intent of the bill is to provide an enhanced administrative process which will assist the consumer with information as well as the business and provides an information center for the state of lost or stolen vehicles.
Allan Bloomberg, Lobbyist, Auto Recyclers & Dismantlers of Southern Nevada, testified in support of S.B. 500. He said this bill would clear up the problem of processing junk vehicles for dismantling. He said the other problem the bill would correct is the notification of abandoned vehicles which have been towed and impounded. Mr. Bloomberg explained they are asking that when a automobile is impounded, the NDOT check the National Crime Information System (NCIS) to determine if the vehicle is stolen and the NDOT would have to keep checking the system every day until the time has expired.
Senator Nevin asked who would establish the toll-free information line and who would pay for it.
Mr. Bloomberg said the Department of Motor Vehicles and Public Safety (DMV) would establish the line and the costs would be paid for by attaching a fee to the impounded car for setting up the system.
Senator Nevin asked why the person whose car has been towed and impounded should pay the fee.
Mr. Bloomberg said that is how it is done now.
Senator Brown asked if any other states have a similar toll-free information service available.
Mr. Bloomberg said he did not know.
Senator Brown asked why the NDOT needs a toll-free information line.
Mr. Bloomberg said the line would be necessary for the tourists who visit and may have their car towed and then give up on the car and later decide to try to find it.
Chairman O'Donnell said if he were to find his car missing, he would call "911 and not 1-800."
Mr. Bloomberg said there are many people who do not report their car stolen and never try to reclaim their car and yet he is stuck trying to identify the owner of the vehicle.
Senator Brown said it seems unreasonable to expect the impound owner to check all 50 states for the last registered owner.
Mr. Bloomberg said the law does not specify how many states the impound company has to check, only that they must notify the legal owner.
Mr. Bloomberg also offered an amendment (Exhibit M) for the committee's review. Mr. Bloomberg explained his proposed amendment.
Donna Wadey, Assistant Chief, Registration Division, Nevada Department of Motor Vehicles and Public Safety (DMV), testified in regard to S.B. 500. Ms. Wadey spoke from a prepared statement (Exhibit N).
Dave Hefner, Senior Investigator, Bureau of Enforcement, spoke with regard to S.B. 500. Mr. Hefner explained why the DMV cannot use the NCIS to local the legal owner of an impounded vehicle. He said the access to this system is restricted by law to criminal information uses only and his agency is not allowed to sell or disseminate that information.
Senator Brown asked how the auto dismantlers are supposed to find the legal owner if they cannot use the NCIS.
Mr. Hefner said the provision of the junk certificate takes into account those vehicles that are valued at $200 or less and those vehicles are issued a junk certificate on the stop. He explained, the low value vehicles already have a mechanism in place to take care of those, which is provided at no cost to the auto wreckers and dismantlers. He added, if the vehicle is valued at over $500 additional searches are required to obtain the proper information.
Ms. Wadey said the only time the 49 state check is required is if they do not know the state from which the vehicle came. She added, if they have an indication of where the vehicle came from such as a registration or license plate from another state, they are only required to check that state.
Mr. Bloomberg said that was incorrect.
Ms. Wadey replied the DMV does verify the information that is provided to them when they process a lien sale package and if they find there is a current registered and legal owner in another state who was not contacted, the DMV will give the operator the information at that time.
Sherry Blackwell, Assistant Chief, Motor Carrier Bureau, Nevada Department of Motor Vehicles and Public Safety (DMV), testified with regard to S.B. 500. Ms. Blackwell said the dismantler certificate costs $10 and everyone else has to pay $20 and the auto wreckers and dismantlers gets expedited service and the public has to wait for the same service.
Robert L. Crowell, Attorney, Farmers Insurance Company, spoke in support of S.B. 500. Mr. Crowell said Farmers Insurance Company is not in support of A.B. 510 which is similar to S.B. 500.
Chairman O'Donnell closed the hearing on S.B. 500 and opened the hearing on Assembly Bill (A.B.) 490.
Assembly Bill 490: Prohibits driving if subsequent test shows presence of alcohol.
William L. Gardner, Chief Deputy City Attorney, City of Reno, testified in support of A.B. 490. Mr. Gardner explained the current driving under the influence (DUI) laws create a number of presumptions. He said one section presumes that the blood alcohol content (BAC) in the defendant's blood stream is presumed to be no less than at the time of the violation. He said the blood tests are now given from 45 minutes to 2 hours after a traffic stop and there are areas where this time can be even longer. He said another section provides the presumption that if a defendant is at .10 percent BAC the defendant is under the influence. He said the troubling part about the presumptions in the existing Nevada law is they are troubling legally, now that the McClean case has come out and judges are misunderstanding the law, since it is not an easy law to understand.
Mr. Gardner read a paragraph out of the McClean case:
The Supreme Court has delineated three types of criminal presumptions: one, permissive; two, mandatory rebuttable, and; three, mandatory conclusive. A permissive inference or presumption allows, but does not require, the trier of fact to infer the presumed or elemental fact from proving the basic fact and does not shift the burden of production or persuasion to the defendant. Mandatory presumptions, however, pose greater potential for constitutional problems because they may effect not only the strength of the 'beyond a reasonable doubt' burden but also the placement of that burden. A mandatory rebuttable presumption tells the fact-finder that he must find the presumed element upon proof of the basic fact unless the defendant comes forward with some evidence to rebut the presumed connection between the two facts.
Mr. Gardner said that type of language and the presumption under Nevada law is troubling and they result in inconsistent interpretations of the law and inconsistent applications of the law. He added, the bill does away with all the presumptions and that is important because if the presumption is made that an individual whose BAC is under .05 percent in not under the influence, that almost flies directly in the face of federal law and federal standards applied by the Federal Aviation Administration (FAA) and applied to commercial drivers, who at .04 percent run the risk of losing their driver's license and that threshold comes from a study which shows that this is the first significant point of impairment.
Mr. Gardner said the passage of this bill will result in the removing a lot of the mystery and the inconsistencies involved in the prosecution involved in a DUI case. He added, this bill gives the court system a fair and easy set of laws to understand and an easy set of laws to apply.
Senator Jacobsen asked what happens to an individual who tests below .10 percent BAC.
Mr. Gardner said a person could still be prosecuted for a DUI even if they were under .10 percent. He added, the prosecution would have to articulate facts that would show the judge the individual was under the influence and the prosecution would not get the benefit of saying the person was DUI with a BAC of .10 percent or over.
Chairman O'Donnell asked if there would be a BAC floor if this bill was passed.
Mr. Gardner agreed and said there would be no minimum BAC.
Chairman O'Donnell said he is bothered by the fact that there would be no minimum BAC with this bill. He added, he could see the potential for abuse.
Mr. Gardner replied very few people are arrested for DUI if the BAC is under .10 percent.
Chairman O'Donnell said that is not what the law says. He said this bill will place the doubt in the police officer's mind and whether to arrest the individual or not, would now be placed under the purview of the police officer.
Mr. Gardner said this is what happens under the current law. He said this law would not have any affect on who may be arrested for DUI.
Chairman O'Donnell said the current law says between .05 percent and .10 percent BAC, not .00 percent and .10 percent.
Mr. Gardner said his office has never prosecuted a case where someone had less than .06 percent BAC.
Chairman O'Donnel asked if he would mind putting a "floor" in the bill.
Mr. Gardner replied, the problem with putting a "presumption" in there is because some people at .03 percent or .04 percent BAC are under the influence. he added, he would have no problem with a .025 percent BAC "floor" but he does not think it is necessary.
Chairman O'Donnell said he hates to pass w law which allow police officers and prosecutors to do something they really should not be doing. He added, "we're here to protect the public."
Mr. Gardner said he could not imagine a police officer arresting someone for DUI with a BAC of .06 percent or lower except in the event of terrible driving. He added, he could not see a prosecutor taking that case nor a judge convicting someone with such a low BAC.
Suzanne Hanson, Criminalist, Forensic Science Division, Washoe County Sheriff's Office, testified in support of A.B. 490. Ms. Hanson said some law enforcement agencies do not have BAC screening devices in the field and these police officers have to base their arrest on the field sobriety testing.
Captain Randy Oaks, Las Vegas Metropolitan Police Department, testified in support of A.B. 490. Captain Oaks said his agency supports this bill. He explained, Clark Country is 7,850 square miles of territory and a person can be arrested many miles away from a breath machine or a place where blood can be obtained. He added, they need to be able to use whatever reading they get, up to 2 hours after the arrest, is the presumptive limit that that person was at at the time they were driving.
James F. Nadeau, Lieutenant (Lt.), Assistant Commander Incline Substation, Washoe County Sheriff's Office, testified in support of A.B. 490. Lt. Nadeau said, at the time a police officer makes an arrest, that officer has no idea what the level of intoxication is other than the fact, given the signs and symptoms at the scene in conjunction with the preliminary breath testing machine results the officer has reason to believe the individual's BAC will be .10 percent or higher.
Captain Oaks said this is an evidentiary issue and nothing to do with the probable cause to make an arrest.
Mr. Gardner said any test done in the field is preliminary and is not admissible in court and is not evidentiary. Mr. Gardner also said he had taken the language from the Minnesota law because it has been challenged twice and had been upheld by their intermediate court of appeals.
Judy Jacaboni, Lyon County Chapter, Mother's Against Drunk Drivers (MADD), stated MADD supports A.B. 490.
Chairman O'Donnell closed the hearing on A.B. 490 and asked for a motion on the bill.
SENATOR HICKEY MOVED TO DO PASS A.B. 490.
SENATOR BROWN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL AND NEVIN WERE ABSENT FOR THE VOTE.)
* * * * *
There being no further business before the committee, Chairman O'Donnell adjourned the meeting at 6:09 p.m.
RESPECTFULLY SUBMITTED:
Terri Jo Wittenberg,
Committee Secretary
APPROVED BY:
Senator William R. O'Donnell, Chairman
DATE:
??
Senate Committee on Transportation
June 3, 1993
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