The Committee on Judiciary was called to order at 8:10 a.m., on Thursday, March 20, 1997, Chairman Bernie Anderson presiding in Room 3142 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Ms. Barbara Buckley, Vice Chairman

Mr. Clarence (Tom) Collins

Ms. Merle Berman

Mr. John Carpenter

Mr. Don Gustavson

Mr. Dario Herrera

Mrs. Ellen Koivisto

Mr. Mark Manendo

Mr. Dennis Nolan

Ms. Genie Ohrenschall

Mr. Richard Perkins

Mr. Brian Sandoval

Mrs. Gene Segerblom

Assemblyman Jack Close, Assembly District 15

STAFF MEMBERS PRESENT:

Donald O. Williams, Chief Principal Research Analyst

Risa L. Berger, Committee Counsel

Juliann K. Jenson, Senior Research Analyst

Joi Davis, Committee Secretary

OTHERS PRESENT:

Larry Matheis, Executive Director, Nevada State Medical Association

Captain Franklin Barnes, Washoe County Sheriff's Office

Laurel Stadler, Lyon County Chapter President, Mothers

Against Drunk Driving

Dick Yeoman, Department of Motor Vehicles and Public Safety

Lt. Phil Galeoto, Reno Police Department

Pat Murphy, President, Nevada Trial Lawyers Association

Liz Breshears, Administrator, Rehabilitation Division, Department of

Employment, Training and Rehabilitation

Anne Cathcart, Senior Deputy Attorney General, Legislative Liaison,

Office of the Attorney General

Roger Whomes, Deputy District Attorney, Washoe County District

Attorney's Office, Criminal Division

Lt. James Chaney, Las Vegas Metropolitan Police Department

Maureen Brower, Government Affairs Coordinator, Westcare, Inc.

Jim Holmes, Private Citizen

Ben Graham, Legislative Representative, Nevada District Attorneys' Association

Chairman Anderson announced there were two bill draft requests for committee introduction:

· BDR 41-486 Authorizes discretionary investigations of certain persons associated with gaming licensees and expands classification of persons prohibited from being associated with gaming licensees.

Assemblywoman Barbara Buckley, District 8, Las Vegas, chief sponsor of the bill, stated A.B. 241 was contemplated after a the Nevada Supreme Court interpreted NRS 484.379 and held that an offender's prior out-of-state driving under the influence (DUI) convictions could not be included in considering that offender's subsequent DUI conviction in Nevada. Therefore, if a non-resident had four convictions from another state, under current DUI statutes, that person would be considered a first-time offender if subsequently charged in Nevada. She pointed out new language on page 2, lines 14-15 of the bill provided that a person would not be eligible for treatment or a lesser penalty if they had been convicted of a violation of a law under any other jurisdiction which prohibited the same conduct. Ms. Buckley concluded A.B. 241 would clarify legislative intent regarding applicability of DUI statutes for persons from other jurisdictions and preventing those offenders from being treated as first-time offenders if other convictions were presented.

Ms. Buckley asked Ben Graham, Nevada District Attorneys' Association, to present further testimony on the bill. Mr. Graham provided a copy of a letter he received from the Nye County District Attorney's Office dated May 31, 1996 together with a copy of the Nevada Supreme Court case State v. Fifth Judicial District Court and Schultz as real party in interest, dated May 1, 1996, Case No. 24611 attached here as Exhibit C. He also introduced Roger Whomes, Deputy District Attorney, Washoe County District Attorney's Office.

Mr. Graham explained in the Supreme Court case (Exhibit C), Mr. Schultz had four valid DUI convictions from California. Later, in Nye County, Nevada, he was charged with his fifth DUI within a 5-year period, and the Supreme Court decided NRS 484.379 was not clear and therefore Mr. Schultz was allowed diversion from sentencing, and treated as a first-time DUI offender.

Responding to Mrs. Segerblom's question, Mr. Whomes stated elective treatment programs were a minimum of 1 year and maximum of 3 years and participation in Alcoholics Anonymous was part of the treatment.

Laurel Stadler, President, Lyon County Chapter, Mothers Against Drunk Driving, expressed support for A.B. 241.

Liz Breshears, Administrator, Rehabilitation Division, Department of Employment, Training and Rehabilitation, testified in support of the bill. She stressed it was critical that prior convictions be considered when treating DUI offenders. Ms. Breshears indicated concern for section 2 of the bill regarding the applicability of persons with multiple convictions obtaining treatment. She stressed the necessity for treatment whether concurrent or in addition to sentencing. She asked for assurance that convicted offenders continued to be eligible for treatment.

Mr. Anderson asked Risa Berger, Committee Counsel, to address Ms. Breashear's concerns. Ms. Berger stated the new language proposed in the bill did not change NRS 484.3792 and the offender could still qualify for and attend a treatment program.

Ms. Buckley interjected bill drafting merely rearranged text from the statute into the bill for better reading and grammatical reasons. Mr. Carpenter stated his reading of page 2, section 2, line 5 indicated a person "may not apply to the court to undergo a program of treatment pursuant to subsection 1 if, within the immediately preceding 7 years, he has been found guilty of two or more . . ." and questioned if that was the desired intent of the bill. Additional discussion was held comparing the old version and the new version of the statute and the eligibility of treatment programs affecting offenders of two or more DUI convictions. Mr. Anderson directed Risa Berger, Committee Counsel, to clarify for the committee the type of programs available for first-time DUI offenders, second-time DUI offenders, and third-time DUI offenders.

Maureen Brower, Government Affairs Coordinator, Westcare, Inc., in support of the measure, stated Westcare was always concerned with treatment.

Assemblyman Brian Sandoval, District 25, primary sponsor, stated A.B. 243 was a DUI bill that involved enforcement, not treatment. Mr. Sandoval commented the bill addressed three areas of the DUI laws:

· Sections 1 and 2 of the bill changed the definition of where DUI laws were enforced, to include gated communities. In support of this provision, he distributed two letters (Exhibits D-1 and D-2) and read excerpts from each. Mr. Anderson intervened by providing distribution of a letter from Spanish Trails dated March 18, 1997 to be referenced with the concerns of gated communities (Exhibit D-3).

· Section 3 of the bill addressed the imposition of a blood test on a second time DUI and DUI with death or substantial bodily harm since the blood test was more reliable than a breath test.

· The remaining changes in the bill regarded the applicability of DUI laws to vessels under power or sail, not float tubes. He explained that NRS Chapter 488 governing vessels would now include the DUI laws that previously only applied to vehicles.

Mr. Manendo asked how a police officer would enter a gated community after observing a person driving a vehicle that appeared to be driving under the influence and perhaps speeding as well. He asked if the officer could write a ticket for speeding and DUI. Mr. Sandoval replied the security officer of the gated community would be required to allow the officer into the gated community and if a security officer was not present, then emergency vehicles would have access to codes allowing entrance. He added the law enforcement officer, under this bill, would not be able to write a speeding ticket.

Mr. Perkins clarified current DUI laws applied to private property where the public had access. Therefore, a gated community did not provide access to the public and that was why the inclusion was necessary.

Captain Franklin Barnes, Patrol Division Commander, Washoe County Sheriff's Office, testifying in support of the bill, stated the number of gated communities was increasing and there had been at least one incident involving a gated community or a recreational facility with restricted access. In that case, the judge could not convict the offender since the recreational area had restricted and controlled access and therefore the law could not be enforced. He urged the committee to pass A.B. 243.

Responding to Mr. Collins' inquiry, Captain Barnes confirmed law enforcement currently had access to gated communities where no security officer was present by using a code assigned to emergency vehicles; however, the bill assisted in their enforcement of the DUI laws within gated communities. Replying to Mr. Anderson's question, Captain Barnes stated the bill would greatly assist in the area of boating by applying DUI laws to recreational vehicles.

Laurel Stadler, representing MADD, expressed support for A.B. 243 and reminded that individuals who spent the day drinking and boating often got behind the wheel of a vehicle at the end of the day.

Lt. Phil Galeoto, Reno Police Department expressed support for the bill.

Anne Cathcart, Senior Deputy Attorney General, Legislative Liaison, Office of the Attorney General, read a letter of support for A.B. 243 into the record (Exhibit E).

Jim Holmes, Private Citizen, stated he was in support of A.B. 243 and enforcement of DUI laws in general since his son "DJ" was tragically killed as a result of a drunk driver. He further relayed his vast experience as a yacht owner and as a participant in many boating events. Mr. Holmes' prepared comments are attached as Exhibit F.

Lt. James Chaney, Las Vegas Metropolitan Police Department, indicated support for A.B. 243 adding that inclusion of the DUI laws in gated communities and the second-time blood test portions of the bill would greatly assist in the department's enforcement of DUI laws.

Maureen Brower, Westcare, Inc., initiated support for A.B. 243.

Chairman Anderson recessed the committee at 9:30 a.m. The committee reconvened with a quorum present at 10:00 a.m.

Chairman Anderson noted for the committee that Senator Mark James, Chairman of the Senate Judiciary Committee, wished to testify on A.B. 194 and therefore no action would be taken on the bill.

Assemblyman Jack Close, District 15, Clark County, stated A.B. 194 was a result of recommendations from the interim committee that studied medical malpractice problems in the state. He stated there was testimony during the interim hearings that medical malpractice claims were expensive and difficult to pursue. Therefore, the committee determined an expeditious and fair means to solving small claims could occur through mandatory mediation. Mr. Close stated he would provide a summary of the interim study would be available to testify when Senator James was available.

Larry Matheis, Executive Director, Nevada State Medical Association (NSMA), testified in opposition to A.B. 194. Mr. Matheis asserted medical liability was a contested issue and a review was conducted during the interim based on those concerns and after the passage of Assembly Bill 520 of the 68^th Session. He commented that a national consultant was brought in during the interim to assist in the hearings and brought forth ideas from other states. He informed the committee that arrangements were discussed and accepted with St. Paul Insurance Company which resulted in many benefits to members of the medical association, including premium reductions. Also, that agreement included the implementation of physicians' involvement in the underwriting of malpractice claims to assist in identifying the causes of patient accidents which resulted in claims against doctors.

Mr. Matheis stated he believed the NSMA could deal with medical malpractice issues without the necessity of legislation. Turning to the current measure, he stated the interim study revealed there was a large number of relatively low claims wherein the cost of dealing with the claim was less then dealing with the screening panel process. However, once A.B. 194 was drafted, flaws were noted. Specifically, before the mandatory mediation required under A.B. 194 occurred, the physician would be conceding to negligence before proven. The doctors objected to this practice and to the amount of $75,000 as the claim amount required for mandatory mediation. He concluded the approach in the bill was not desirable to the members of the NSMA. Mr. Anderson clarified the concerns from the NSMA were: 1) The threshold for mediation claims was too high; 2) The requirement of both parties to assume fault prior to mediation; and 3) Agreements between NSMA and St. Paul Insurance Company alleviated the original concerns for this legislation.

Mr. Matheis responded to Mrs. Segerblom's question, indicating there was a fee connected with the medical screening panel and with mediation.

Dick Morgan, on behalf of the Nevada Trial Lawyers Association (NTLA), deferred his testimony until after Senator James commented on the bill at a later date.

Ms. Buckley commented, as a member of the interim committee, the interim study involved the number of claims made, the cost of claims, examination into raising premiums, and reduction of premiums. She stated it was not until the last interim meeting that the concept of a mandatory mediation system to handle small claims was brought forth by a Las Vegas attorney. The only vote of the interim committee was that a bill draft would be considered in that regard; however, there was never any detailed discussion as to specific language for the bill. She asserted that concerns of NTLA and NSMA were now shared that if the bill was to proceed, it may undermine the screening panel process. It was unanimously agreed by the legislative interim committee, the parties that presented testimony, and the consultants, that the screening panel process was effectively working. Ms. Buckley concluded if A.B. 194 was to proceed, the parties may not act in good faith with the mediation proposition.

Mr. Anderson admitted for the record a letter dated February 24, 1997, from Jennifer Elliott-Tavano, President of Mediators of Southern Nevada, Inc., outlining the use of mediators in medical malpractice cases (Exhibit G).

Pat Murphy, President, Nevada Trial Lawyers Association (NTLA), presented testimony in opposition to A.B. 194. He stressed NTLA was in favor of alternative dispute resolutions (ADR) and, although they supported the concept behind the bill, they wanted an opportunity to meet with the NSMA to develop language mutually agreeable to both parties. Mr. Murphy asserted there were concerns regarding the powers placed on the mediators as to their reporting on the issue of bad faith.

There being no further testimony before the committee, the meeting was adjourned at 10:30 a.m.

Joi Davis, Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: