The Committee on Judiciary was called to order at 8:00 a.m., on Monday, March 29, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

GUEST LEGISLATORS PRESENT:

Assemblywoman Barbara Cegavske, District 5, Clark County

Assemblywoman Merle Berman, District 2, Clark County

Assemblywoman Dawn Gibbons, District 25, Washoe County

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson opened the hearing on A.B. 645.

Ms. Lang explained A.B. 645 was one of two bills submitted to the committee from the Legal Division of the Legislative Counsel Bureau. She distributed a written explanation of the bill (Exhibit C) which made technical changes to the Nevada Revised Statutes (NRS). The changes were technical corrections the legal division found during the interim and proposed to the legislature.

Chairman Anderson asked the committee to review the explanation of A.B. 645 and he would take a motion later in the meeting. He closed the hearing on the A.B 645.

Chairman Anderson opened the hearing on A.B. 500 and noted their was a conflict notice on the bill.

Assemblywoman Barbara Cegavske, District 5, Clark County, indicated there were two sections of the bill. She first referenced section 1, page 2, line 18, which required the court to order second driving under the influence (DUI) offenders to attend a program of treatment for the abuse of alcohol and drugs. She noted additional language in the section was housekeeping. Secondly, she referenced section 2, page 4, which deleted the statutory timeframe established for such treatment. The evaluation required in NRS 484.37943, for all second offenders must identify the appropriate length of treatment for the offender as determined by a physician or certified counselor.

Ms. Cegavske testified the bill addressed the national problem of DUI especially regarding second offenders and assured those found guilty of a DUI for a second time and within 7 years would receive the treatment they needed. She noted studies had consistently shown evaluation and treatment had a positive impact on DUI offenders. They resulted in a 7 to 9 percent reduction in DUI recidivism and crashes involving alcohol.

Ms. Cegavske pointed out A.B. 500 only targeted second offenders because those were the individuals who were shown to be the most dangerous to the motoring public. The legislation "gets tough" on repeat DUI offenders and did not place an economic burden on the court system and did not carry a fiscal impact because NRS 484.37945 already required those who underwent evaluation treatment for DUI to pay for their own treatment.

Ms. Cegavske concluded her presentation by stating A.B. 500 was a good bill and was especially needed in Nevada.

Steven Grierson, representing the Clark County Court Education Program, testified he administered the DUI school, the evaluation center, and the traffic school programs for seven justice court judges in Clark County. He informed the committee the bill focused on the repeat DUI offender and the required appropriate treatment and education. He noted when appropriate treatment was combined with administrative sanctions they became the most significant predictors of reduced recidivism. He felt punishment alone would not deter those who were unaware and did not acknowledge the inappropriateness of their behavior which lead to overcrowded prisons.

Mr. Grierson pointed out the bill removed the time restriction on treatment, which for some chemically dependent second time offenders could last as long as 1 year in order to provide the proper care required for long-term success.

Mr. Grierson stressed A.B. 500 did not affect the DUI offender who made a first mistake. Those with a moderate blood alcohol concentration generally responded to administrative penalties, education programs, and the experiences of having been in jail or the fear of going to jail. He noted those first-time offenders with extreme blood alcohol concentration were required by statute to complete a thorough evaluation and receive recommendations for appropriate levels of care for their condition. If the judge found the recommendations appropriate for the case, they may or may not order them to complete the recommendations; however, the repeat offender posed a much greater public safety risk. He indicated those offenders generally drank more frequently and in larger quantities, experienced more alcohol related problems, and had more traffic and criminal violations.

Mr. Grierson informed the committee there were two distinct categories of chronic drunk drivers, those who had problems that could lead them to drink and those that had problems with drinking. In either case a treatment intervention was warranted. The best counter measures for DUI were licensed sanctions and appropriate education and treatment. He pointed out in Nevada there were already administrative penalties, but for a second offense there were no requirements for appropriate treatment and education.

Mr. Grierson summarized two studies, the first involving California in which the program that was administered to the DUI second offender lasted 18 months. It required a minimum of 12 hours of education, 52 hours of counseling, and biweekly interviews. The second study in 1994 analyzed 400 DUI offenders and found treatment for the chemically dependent offender was ineffective and inefficient. The report suggested at least 50 hours of intensive outpatient services should be allocated for the proper treatment of chemically dependent DUI offenders, and at least 30 hours of services allocated to achieve good results for DUI offenders who were alcohol abusers.

Mr. Grierson called attention to the impact the bill would have if it was passed. He pointed out Clark County’s court education program completed 524 substance abuse evaluations in 1998, 120 of which were second offenses. Assuming the minimal rate in the reduction of recidivism was 7 percent, it would mean at least 8.5 people would not be expected to receive another DUI, which would carry a felony and a mandatory prison sentence in Nevada. He contended 8.5 people sounded like a small number, but when all the jurisdictions in Nevada were recognized, there were approximately 1000 DUI second offense convictions. At a 7 percent reduction in recidivism, there would be 70 less inmates per year in the Nevada prison system.

Mr. Grierson concluded his testimony by calling attention to a study done in 1993, which estimated there were as many as 300 to 1000 impaired driving trips taken for every arrest. If the minimum number was true, a second offender placed others at risk as many as 600 times while driving under the influence.

Chairman Anderson questioned if the bill would take the permissive attitude of the court from a may to a shall and Mr. Grierson responded affirmatively.

Laurel Stadler, representing the Lyon County chapter of Mothers Against Drunk Drivers (MADD), testified they were in support of A.B. 500 because they felt treatment was a good option for DUI offenders and statistics indicated it helped with the recidivism rate.

Chairman Anderson questioned if A.B. 500 was similar to previous legislation addressing recidivism that had not been passed and Ms. Stadler remarked it was similar and thought the original intent was to make it a mandatory provision, but the "shall’s and may’s" changed the legislative intent.

Chairman Anderson closed the hearing on A.B. 500 and brought it back to the committee. He wondered how many people who were charged with a second DUI did not receive treatment from the court, and Mr. Grierson responded he estimated with the number of offenders who came through the evaluation center, approximately 25 to 30 percent received treatment on a second offense.

Chairman Anderson announced they would not take action on the bill because Mr. Manendo and Ms. Koivisto were in Las Vegas and attended the meeting via teleconference, and they wanted time to study another bill similar to A.B. 500.

Chairman Anderson entertained a motion on A.B. 645, which was presented earlier in the meeting.

Chairman Anderson assigned the bill to himself.

Chairman Anderson opened the hearing on A.B. 56.

Assemblywoman Merle Berman, District 2, Clark County, introduced A.B. 56, which provided a program that allowed certain sexual offenders on parole to participate in a treatment with chemical compounds. She noted in 1998 there were 2000 registered sex offenders in Nevada. The 1997 session of the legislature had looked into the issue and two bills were introduced, but neither was enacted. She pointed out A.B. 56 was different because it would allow the chief of parole and probation to play an integral role in the treatment program with a chemical compound while the sex offender was on parole. Only certain offenders would be allowed to participate in the program based upon the approval of the chief. The program would include regular physiological exams to determine if the amount of testosterone in the blood of the offender was being reduced and the chief would establish a program to study the overall affects of the program.

Ms. Berman stated the bill would allow the chief to contract with private entities to carry out the provisions of the bill. He could also apply for and accept grants to finance the program and those funds would reimburse any appropriations made by the state.

Ms. Berman pointed out five states had enacted legislation for chemical treatment programs for sex offenders. She felt the procedure should not be required, therefore the bill provided that the chemical treatment for qualifying sex offenders would be optional.

Ms. Berman distributed documents regarding A.B. 56. She called attention to a newspaper article (Exhibit D) about a teenage girl who was sexually assaulted. She hoped with a pilot program based on the bill, there would be a reduction of recidivism of sexual assaults.

Chairman Anderson questioned if the chemical treatment program would have prevented the sexual assault referred to in Exhibit D, and he did not see the application of the bill in regard to the case.

Mr. Berman referred to a document from the National Institute for the Study, Prevention, and Treatment of Sexual Trauma (Exhibit E). It was from Fred S. Berlin, M.D., Ph.D., and stated he supported A.B. 56 because he found it thoughtful and balanced. Exhibit E also included an article the doctor had written about sexual disorders and the names of the two medicines which were given at the sexual disorders clinic.

Ms. Berman called attention to a letter from William O’Donohue, Ph.D., from the University of Nevada (Exhibit F) who conducted research and therapy in sexual offending and pointed out studies were being done locally within the State of Nevada.

Ms. Berman referred to an article from the New England Journal of Medicine (Exhibit G), that discussed the treatment of men with paraphilia and included a definition of the term.

Donald A. Molde, M.D., mental health director, Nevada Department of Prisons, read a prepared statement (Exhibit H) in which he believed the use of Depo-Provera and other chemical agents could be of assistance in the treatment and management of sex offenders.

In respect to A.B. 56, Dr. Molde had some comments and concerns about the bill and pointed out areas in sections 8 and 14 of the bill (Exhibit H) in which he listed those concerns.

Chairman Anderson questioned if some of the chemical compounds worked to curb the problem and Dr. Molde responded the drug may have applicability in a small percentage of the total number of offenders, but felt it would still be extremely helpful for very risky offenders. He thought it should be an available tool, but did not propose it as a "cure all" for all offenders.

Chairman Anderson referred to section 8 (Exhibit H), asking if those were included to narrow the group who would participate in the pilot program, thus making it more acceptable.

Ms. Berman responded it was an extremely hard task to treat sexual offenders because sometimes those offenders were incarcerated for alcohol abuse, drug abuse, and felonies, so it was difficult to remove a one-time sexual offender without any other offenses from the group. She thought it was a good idea for the chief of parole and probation to pick individuals on a case-by-case basis, but she agreed section 8 was in the bill to narrow the list of those who would participate.

Ms. Berman mentioned she would have to delete a section of the bill after talking with parole and probation. They did not want to give any offender special permission, so wherever the bill referred to a reduction of the maximum term because a person participated in the program would have to be deleted from the bill. She called attention to page 5, section 16, noting it would have to be deleted. She continued by pointing out, in section 18, lines 10 through 15, that new language needed to be deleted as well as lines 21 through 33.

Ms. Lang indicated sections 16 and 18 would be deleted from the bill according to what Ms. Berman had suggested.

Ms. Berman informed the committee there were five federal grants available to the Department of Parole and Probation to enable them to work with federal money to implement the program.

Ms. Buckley queried what the percentage of individuals the program would help. Ms. Berman responded it was very difficult to give a number on how many individuals would be helped, but in the testimonies she had heard and in the articles she had read, anyone on medication and psychotherapy for 18 to 24 months, and not having chemical and alcoholic tendencies, the recidivism rate was 0 percent.

Responding to the same question, Dr. Molde thought the number of inmates who would be considered for such a program would not exceed 10 percent of a 100 inmates who were considered. As an example, an offender with no prior record offended against a family member and did not have alcohol or drug problems it would not make sense to recommend him for that type of program. On the other hand somebody who had two or three prior offenses and had a compulsive or fantasy type component to the crime would be a better candidate for the program. He contended it would be a small percentage of the overall population initially. He noted the drugs were not inexpensive and had some side affects so there would need to be a cost benefit analysis done with every case. He reiterated he would like to see the program available for those who fit the profile of somebody benefiting from the treatment and those who would be a risk factor.

Ms. Buckley commented the person who was ideally suitable for that type of treatment was the repeat offender, and if that person had been convicted twice for rape or a crime of violence, he should never be released from prison.

Ms. Berman replied the studies she had seen showed first-time offenders reacted more positively to the treatment and the bill referred to first-time offenders.

Assemblyman Nolan asked if sexual offenders who entered into the prison program were required to participate in any psychotherapy program and was it still possible to "flatten their time out" and be released without receiving any treatment.

Dr. Molde responded affirmatively and pointed out some offenders who received time limited sentences could choose not to participate in any of the programs and expire their sentence and leave without every having spoken to any doctor or counselor.

Mr. Nolan queried if the treatment was a constitutional issue or did some prison systems mandate sexual offenders participate in psychotherapy or receive other treatments.

Ms. Berman responded they circumvented the constitutional question by not making the treatment mandatory, but by choice. She reiterated five states had programs and California made it part of their parole and probation.

Mr. Nolan wondered if sexual offenders, while incarcerated, were required to receive any type of treatment and Chairman Anderson replied there were at least two states had modified programs of drug treatment. He noted the psychiatric panel in Nevada still remained controversial but reiterated there were states that had required treatment programs.

Assemblywoman Koivisto commented how a sexual offender had to have power over the victim as much as sexually offending and Dr. Molde stated that was often an element in many sex offenses. He noted each case had to be evaluated on the facts of the case and how to approach treatment.

Ms. Koivisto questioned how long a person who qualified to take the drug treatment would have to remain on them. Dr. Molde replied it was a long-term treatment process and studies on recidivism showed a period of 5 years or more of treatment.

Chairman Anderson observed the treatment program would not allow an offender to become eligible for early parole or put the person in a special class to receive preferential treatment.

Ms. Koivisto wondered if a person who started on the program would have to remain on it for the rest of his life to keep from becoming a repeat sexual offender and would be financially obligated to pay for the treatment for the rest of their life.

Ms. Berman responded most studies indicated with the medicine and psychotherapy it would require a person to remain on the treatment for 5 years. She pointed out it was no different than alcohol or drug dependent individuals going to counseling for the rest of their lives. She noted they would receive medication for the first 5 years but would have counseling forever.

Ms. Koivisto repeated the question of who paid and Chairman Anderson responded according to the bill the offender paid for the treatment program or applications could be made for federal funds to be utilized by the prison system for those who were unable to afford the treatment.

Mr. Carpenter asserted a person would have to continually remain on the medication for it to be affective, according to information found in Exhibit G.

Ms. Berman pointed out that study was done out of the country and that medication was not used in the United States and had not been approved by the Federal Drug Administration (FDA). She added that information was distributed to the committee to show "chemical like" substances worked.

Dr. Molde indicated the medication part of the treatment would add a certain level of protection which would be in force while the offender was learning how not to be a repeat offender through counseling.

Chairman Anderson referred to section 13, lines 22 through 29 of the bill regarding legislative appropriations and queried if there would be a potential cost attached to the bill.

Ms. Berman responded if they could maintain the program through offenders paying for their treatment or through grants she would be amiable to changing that language in the bill.

Chairman Anderson pointed out the fiscal note for the bill was $122,580 for the current fiscal year and $163,440 for the following 2 years. Ms. Berman noted that would be if there were 20 individuals participating in the program at the same time and she did not think they could find 20 people at the current time.

Ms. Berman concluded her testimony by stressing the program was not a cure, but a step in a direction that could be helpful. The psychotherapy component of the treatment would always be used because all of the offenders needed therapy.

Carlos Concha, chief, Division of Parole and Probation, testified the division supported any legislation that facilitated the programming and potential prevention of recidivism by offenders convicted of a sexual offense. The bill proposed a complex and scientific clinical treatment program for sex offenders using chemical castration as a method of curtailing future sexual deviant behavior. The participants were parolees who had been convicted of nonviolent sexual offense and not more than two prior sexual offenses.

Mr. Concha informed the committee due to the clinical complexities required in the bill, services would need to be contracted out. He noted they would contract through the Nevada Mental Hygiene and Mental Retardation Division.

Calling attention to sections 11 and 12 of A.B. 56, Mr. Concha stated those sections mandated the chief of parole and probation would ensure a psychological profile would be developed to identify sex offenders who were most likely to benefit from treatment with a chemical compound, and he would establish a system to study the effects of the program. He disclosed due to an oversight on his part, the costs associated with developing the profile and conducting the clinical and scientific studies were not included in his fiscal note.

Mr. Concha explained in order to meet the proposed mandates of section 11 and 12, they would be required to contract through a scientific and medical resource like the University of Nevada, and he currently did not know the cost associated with it.

Mr. Concha stated section 14 required the parolee pay the costs associated with the treatment to the extent he was able. The section required the division collect fees from those that participated in the program. Currently the division was responsible for the collection of supervision fees, house arrest fees, and restitution for victims. He noted collecting fees from offenders had always been difficult and adding another collection would add another function for the officers who worked in parole and probation.

Mr. Concha referred to section 14, subsection (b) mandating the parole board to require, as a special condition, the sex offender submit to a program of intensive supervision under NRS 213.124. He pointed out if a person was placed under intensive supervision as a special condition it had to be done under house arrest. That would be an additional cost imposed on the offender if he was in the program.

Mr. Concha stated if he was required to establish a program for sex offenders, there would be cost to the state whether they received funding through grants or if they were on the program suggested in the bill. He believed any program beneficial to the problems of sex offenders would be beneficial to the state; however, without the funding available to the division it would be difficult to establish the program.

Chairman Anderson questioned how inmates were evaluated on intake and Mr. Concha responded, after the offender had been sentenced to prison, information from the presentencing investigation report was obtained from parole and probation. That report was used for classification purposes.

Dr. Molde added every inmate entering the system was seen by a mental health person to be screened for the presence or absence of mental illness or psychiatric difficulties about which the prison would need to know. He noted intake personnel informally explained to sex offenders what was required of them in terms of a psychiatric panel and seeking treatment, but it was never done in a systematic way.

Chairman Anderson queried what happened to the inmates once they were released to parole and probation. Mr. Concha replied, if they were granted parole the board would identify special conditions they wanted imposed on the offender, such as sexual counseling or abstention from alcohol. He noted they would classify the offender as to how he would be supervised, either maximum, medium, or minimum or, if the special condition of intensive supervision was imposed, he would be placed under residential confinement.

Chairman Anderson thought sex offenders were supervised by a ratio of offender to parole and probation personnel. Mr. Concha replied, the requested budget for the current session included funding for a sex offender unit which would reduce the caseload from a 75 to 1 ratio to a 45 to 1 ratio. He noted the officer chosen to supervise the 45 sex offenders would be trained in that area.

Chairman Anderson stated if the committee processed the bill, parole and probation would have to request a new fiscal note and Mr. Concha reiterated it was because of his oversight on the request for funding on the surveys and profiling.

Pat Hines, private citizen, representing the Nevada Citizens United for the Rehabilitation of Errants (CURE), reiterated the chemical treatment program was used in Missouri, Kentucky, Vermont, Minnesota, and Kansas, but she opposed the bill because treatment did not start during incarceration. She noted there were many side affects to the treatment and the testosterone level must be tested periodically, and she felt it should be proven beneficial to a particular inmate before they were released from prison. She noted of the number of sex offenders "out there," it was a small number who would be helped by the bill. She felt there needed to be a place where those offenders could go for help without having to go to prison. She related a conversation she had with an inmate who told her the only place he could go to receive help was prison and what was there was very little and not specific to his problem. The inmate had tried to receive help before he went to prison by talking to his minister, who by law, was forced to turn him in to authorities. She related another situation in which an individual went to a counseling center in Las Vegas and they were forced to turn him in to authorities also. She opined there was something wrong with society that was keeping people who knew they had a problem in that area from receiving help and having to go to prison to receive help.

Ole Thienhaus, M.D., chairman of the Department of Psychiatry, University of Nevada School of Medicine, conceded he would rather see a sex offender with violent tendencies incarcerated and never released, but as a realistic individual, he knew many people who were sex offenders were being released and thought any intervention that offered a chance of reducing the risk of recidivism should be taken. He opined A.B. 56 was a courageous bill because it allowed treatment for a small number of offenders so it could be determined if the treatment worked.

Dr. Thienhaus observed it was very unsatisfactory there was no convincing research for the treatment, and for ethical reasons it was impossible to perform that type of research under any stringent criteria because a decent control group could not be generated. On the basis of the studies found in the documents distributed to the committee, he thought there was a tremendous amount of support for the treatment under the stringent medical and psychiatric supervision provided by the Department of Parole and Probation.

Dr. Thienhaus called attention to the term psychotherapy because he felt the term was too liberal. He believed the necessary compliment to the hormone treatment needed to be a form of case management. The offenders needed to be managed and supervised until the risk of their reoffending was completely alleviated. He felt the treatment was a lifelong proposition and the 5-year limit was somewhat arbitrary because it was restricted to the medication, and he felt the medication would need to be continued throughout the remaining sexual active life of the offenders.

Mr. Nolan referred to the testimony of the previous witness regarding if a person sought treatment for committing sexual offenses the therapist would be required by law to report the individual to authorities. He wondered if Dr. Thienhaus had treated individuals with those problems, and how did he feel about the adequacies of the treatment available outside of prison for those individuals before the problems fully developed.

Dr. Thienhaus responded the State of Nevada had a fairly good psychiatric outpatient care treatment system, but it focused on psychiatric treatment and did not offer a liaison with primary care physicians who would provide the hormonal treatment. He felt there was room for improvement, but the structures were in place. He called attention to the network of rural clinics available in the state and related that was where he saw sex offenders, and all of them were post conviction and came forward voluntarily for treatment. He noted most sex offenders had other problems like alcohol abuse, but that was a ticket that got the offender into the clinic, and in the course of treatment the sexual offense problems arose.

Dr. Thienhaus referred to the issue of mandatory reporting of sexual offenders, which was a deterrent for some of them to seek help. He related, if the mandatory reporting mechanism was removed his concern was it would be too high of a price to pay because the offender would not come to the attention of the proper authorities.

Dr. Thienhaus testified it was unknown how many people would be lost who would have come forward to seek help before they committed the first crime because they were afraid that by sharing their proclivities with a therapist would result in their involvement with the criminal justice system. He proposed mandatory reporting should be maintained but work could be done on the confidentiality aspect of reporting. He thought it should not automatically be reported to the criminal justice system and have it potentially made available to the public when a crime had not yet been committed. He felt a record should be kept somewhere regarding a person’s request for treatment prior to committing a sexual offense, but he wondered if it was necessary to have the records immediately available to the world at large.

Chairman Anderson closed the hearing on A.B. 56 and indicated it was destined for the Committee on Ways and Means. He pointed out there were several proposed amendments and asked those who testified if they had any suggestions to have them to the committee by the end of the week.

Chairman Anderson opened the hearing on A.B. 542.

Tom Stephens, director, Nevada Department of Transportation, pointed out A.B. 542 was about money. It originated from the Transportation Equity Act for the 21^st Century (TEA-21) which was passed by Congress in June of 1998. He indicated TEA-21 provided the money for a 6-year period for the federal share of the highways and it included a number of sanctions and incentives for various laws they would like to see passed. As an example, if there was an open container law they wanted passed, there was a certain amount of funding related to having laws opposing open containers of alcoholic beverages in vehicles. He noted Nevada was in the fortunate position of having an open container law that already complied with what they wanted.

Mr. Stephens called attention to another sanction or penalty found in the bill which dealt with repeat offenders for driving under the influence (DUI). They believed the second time repeat offenders should have specific penalties placed upon them, and if those penalties were not carried out, they would penalize a 1.5 percent of certain categories of federal funds which were allocated to the state for the years 2000 and 2001.

Mr. Stephens referred to a document with the handwritten heading "U.S. DOT TEA-21 key information, October, 1998," (Exhibit I) which addressed penalties for repeat offenders and requirements that needed to be met to maintain federal funding. It showed a cost factor of $2.2 million in the first 2 years. He noted in the years beyond that the penalty doubled from 1.5 percent to 3 percent, which meant there would be a $4 million penalty. He conceded there was some disagreement that the penalties would be slightly less, but according to the information he obtained from his Washington D.C. consultants, the figure seemed to be over $2 million the first 2 years and over $4 million a year in the subsequent years.

Mr. Stephens pointed out the bill asked for a 1-year driver’s license suspension for repeat offenders and under Nevada law there was an exception to the 1-year suspension which allowed somebody with a hardship to have their driver’s license returned to them after 90 days. He noted there was not an exception in the federal law and since Nevada had the 90-day exception, the state did not conform with the federal law, and the state would receive a penalty.

Continuing to refer to A.B. 542, Mr. Stephens stated the bill requested vehicles be immobilized or impounded for 1 year or install an interlock device on the vehicle. Nevada already had something similar on the books, but it did not extend to what the federal law had, so they were requesting the changes.

Mr. Stephens noted Nevada already met the imprisonment requirements in the bill because the federal law was "almost laughable." Federal law required 5 days in prison for a second offense and 10 days for a third offense. Nevada required 1 year in prison for a third offense.

Calling attention to the upper left hand corner of the bill, Mr. Stephens pointed out the bill required a two-thirds majority vote for passage and he thought it was related to a $65 fee for having the vehicle inspected or having it reinstated on registration. He opined the $65 was a very small aspect of the bill compared to the millions of dollars the state would lose in highway funds. Every time the Department of Motor Vehicles (DMV) did something they needed a fee to get it done, so that was why the majority vote was on the bill.

Chairman Anderson interjected so many of the mandated programs from the federal government in which Nevada sometimes exceeded the standards, the state never seemed to receive credit, yet if the state did not comply with them, they were more than willing to remove promised monies to "get their way."

Mr. Stephens agreed with the Chair and reiterated his opinion that the federal laws regarding penalties for third time DUI offenders was "laughable," and argued with them regarding the open container law because Nevada’s law was tougher than their law. He noted the theory of not wanting repeat offenders was right, but federal law added so many details that sometimes the state did not qualify on some of the details, and he did not think it was fair, but "that’s the way it is."

Chairman Anderson opined he would hate to think the money committees, in terms of trying to meet the lesser standards of a second time offender, would roll back to meet the dollar costs from the third time repeat offender in order to make the numbers look good in a tight money situation.

Mr. Stephens responded on the other aspect of DUI, he saw the accident reports and received a daily report on how many people were killed in Nevada and a monthly synopsis of every fatal accident, so he was well aware of what was going on. He pointed out there were 500 people in prison for third time DUI and that was a huge expense for the state. He felt if something more could be done with a second time DUI, they could avoid third time DUIs and avoid some of the fatalities. He conceded he too became irritated with some of the details the Federal Government put on the state with the onerous financial sanctions.

Mr. Stephens explained there were 11 bills dealing with that section of the law on DUI. He contended they were not wedded to their bill, they just needed those provisions that would allow the state to meet the federal requirements.

Mr. Carpenter questioned if the federal requirements were in a statute passed by Congress or was it based on federal rule making.

Mr. Stephens replied they were trying to meet the requirements of a statute passed by Congress. He noted in the key information document (Exhibit I) there was an internal disagreement in their requirements and he assumed they would straighten it out. The law stated there should be an impoundment or immobilization as one element or the interlock device so the vehicle would not have to be removed. He pointed out there was a narrative in federal rules that both had to be accomplished, but the bill was not proposing to do both. He explained when they drafted A.B. 542, they tried to set the minimum of what the federal law required.

Mr. Carpenter indicated he would like to see the law passed by Congress, not the rule-making document.

Mr. Stephens distributed a copy of the law (Exhibit J) to which Mr. Carpenter referred. He stressed the requirements listed in Exhibit I were based on the statute not on the rule making. He noted the rule making was much more detailed.

Ms. Leslie observed Mr. Stephens went over the four points the bill covered, but she did not hear any reference to the third point regarding if the law should be changed in terms of the assessment for alcohol and the need for treatment. Mr. Stephens replied those provisions were mentioned in A.B. 542, but there were other bills that covered those items and if those bills met the federal requirements, they were fine with whatever method it would take.

Brian Hutchins, chief deputy attorney general, Department of Transportation, noted they tried to give the committee a synopsis without diluting the bill. He distributed a document (Exhibit K) which was a summary of Federal Statute 23 U.S.C., section 164. It contained a synopsis of the points Mr. Stephens had presented to the committee.

Mr. Hutchins distributed another document (Exhibit L) which was a synopsis of A.B. 542. He indicated they tried to track the federal legislation with the first portion of the document, numbers 1 through 4, according to what the federal law currently required. They tried to point out where in the bill those provisions were located because the bill draft did not coincide with the federal statute and they tried to put it back in order so the committee could follow how the bill tracked the federal legislation. The remainder of the document (Exhibit L) contained the additional provisions of the bill and explained what each section of the bill accomplished.

Mr. Hutchins read each of the four federal requirements (Exhibit L).

Mariah Sugden, assistant chief deputy attorney general, Nevada Department of Transportation, explained how the provisions in A.B. 542 complied with the federal requirements (Exhibit L).

Chairman Anderson commented due to the enormous distances in Nevada and the lack of public transportation in the rural areas, he questioned if a control device could be installed in the ignition system and still maintain the allowance for somebody who was a hardship case. Mr. Stephens pointed out the 1-year suspension was not an optional requirement to the interlock. Both the interlock and the 1-year suspension had to be used. The only optional requirement was to remove the registration of the vehicle or put in the interlock. Both of those did not have to be done together.

Ms. Sugden interjected under federal law the requirement imposed was a hard suspension of 1 year for repeat intoxicated drivers, and there was no option for a hardship or restricted license as it existed under current law. She noted they contacted the personnel in Washington D.C. to inquire if Nevada’s current law would meet that requirement, and it did not.

Mr. Hutchins explained the cost was assessed as to whether or not the state complied with the entire statute, not just one portion.

Chairman Anderson questioned if the state succeeded in 4 or 5 areas but did not quite meet the federal requirements, the state would lose 1.5 points and Mr. Hutchins responded that was correct.

Chairman Anderson wondered if an interlock device was put on the vehicle of a person arrested for DUI and the vehicle was owned by somebody else, what would happen in that situation. Ms. Sugden explained the bill stipulated the vehicle was owned by or registered to the offender. In the situation where it was registered to somebody else, it would not be subject to the federal law or the bill. She noted federal law allowed hardship exceptions to the registration suspension, which was found in section 7, subsection 6. Chairman Anderson asserted a person could have an interlock device installed on the vehicle he owned, so the person started driving a friend’s car. What did the bill accomplish and how could it be prevented. Ms. Sugden replied there was a 1-year mandatory driver’s license suspension, but there was always a chance a person convicted of DUI would still drive. If the person was caught driving while the license was suspended or revoked pursuant to a DUI, there would be harsher penalties. She conceded the bill was not a "cure all," and she was sure some people did drive on a revoked or suspended license, but it did limit the individuals access to a vehicle.

Mr. Carpenter questioned what problems would be incurred if the vehicle was owned by a bank, and Ms. Sugden pointed out a provision under current law that defined registered owner. NRS 482.102 included as a registered owner an individual, corporation, or association whose name appeared in the files of DMV’s registration division. NRS 482.050 defined an owner as a person who held the legal title of the vehicle whose name appeared on the certificate of ownership. She stated it was problematic, but they would have to look at the offender and assess the individual’s relationship to the vehicle before suspension could be put into place.

Mr. Carpenter related a few years ago statistics were, out of 100 people who were arrested on a first time DUI, 10 percent of those would repeat. He noted 10 percent of those 10 would repeat for a third time.

Mr. Stephens addressed the issue of statistics and noted they did not gather recent statistics in time for the meeting, but when they were available he would make sure the statistics on first, second, and third time offenders in Nevada were provided to the committee.

Mr. Hutchins explained the bill draft providing for the limited exception directed those to be made by the courts and was what the Attorney General’s Office had suggested. There was an alternative to the issue of bank ownership or another party’s ownership in which DMV could adopt regulations regarding their acceptance of limited exceptions for hardship cases that would be in compliance with federal law.

Ms. Buckley questioned if the issue of hardship could be strengthened to say "the court shall provide for limited exceptions where it finds" and then list elements like spousal hardship, registered owner, and different items like that, without jeopardizing the federal funds.

Mr. Hutchins responded affirmatively and suggested it could be administered in the form she suggested, or it could be done by regulations through DMV.

Ms. Buckley stated the limited exception provision was found in section 7, lines 19 through 23. Mr. Hutchins directed the committee’s attention to the bottom of the first page of the document (Exhibit L) regarding federal repeat offenders and pointed out that was a quote from those regulations about the state providing limited exceptions.

Mr. Brower commented it was his impression, in discussing federal statutes and regulations on DUI, they were providing guidance to the state and no substantive law on DUI had been enacted by the Federal Government as it had in other areas of criminal law, which was generally left to the states.

Mr. Hutchins responded affirmatively and pointed out the legislation was more in the nature of taking away federal highway funds in order to get the state to comply with what they thought the standards should be. Those standards were not actually criminal laws or anything of that nature. Mr. Brower replied the Federal Government, in its constant effort to encroach on the states in the area of criminal law had not yet created a federal DUI offense, except on military installations and other federal properties.

Mr. Collins referred to the second item in Exhibit L, regarding an interlock device and a breath analyzer installed in the vehicle versus immobilization, and questioned why there was not a specific length of time the penalties must remain in effect. He asked for clarification on the provision.

Mr. Hutchins responded the federal regulations and the comments indicated the terms for the impound immobilization and the installation of the ignition interlock system were not very clear whether it needed to be a specific period of time. He noted his office had been debating that issue for a few weeks as to what they needed to do to comply with the federal law and the recommendations. He read a comment from page 6 of the federal regulations (Exhibit J) regarding impound and immobilization of vehicles and agreed with Mr. Collins there was an amount of slack in the regulation.

Mr. Hutchins concluded his testimony by reading the additional provisions of the bill found in the synopsis of A.B. 542 document (Exhibit L).

Chairman Anderson questioned if a first-time DUI allowed another person to drive his or her vehicle and that person was arrested, what would happen then. Mr. Hutchins noted the bill addressed the repeat DUI offender and also, the registration would have been suspended. For clarification, Chairman Anderson asked if the person drove the vehicle with the suspended registration, was he or she also guilty of a misdemeanor and Mr. Hutchins responded the person was not guilty. He referred to section 3, lines 22 through 25 of the bill, which indicated the person who had the registration revoked on the vehicle was guilty, not the person allowed to drive the vehicle.

Ms. Sugden observed while studying the bill, there was an omission under current law which was found on page 6, line 16. It concerned a restricted license for a third DUI offense and read "a controlled substance or if he was convicted of a third violation within 7 years," and she felt additional language was needed to include "third or subsequent" violations.

Chairman Anderson noted that discussion had been held in the committee on several occasions and had attempted to clean up that language.

Ms. Lang replied she did not know why it was limited to a third violation only and something the committee could clear up it they chose.

Chairman Anderson informed the committee there might be a conflict notice with A.B. 542, and he would investigate and report back to the committee.

Ms. Stadler indicated she had some history that might be helpful to the committee. She referred to the language on page 4, lines 30 and 31, of the bill regarding mandatory hard revocation of a driver’s license. She pointed out prior to the 1997 legislative session it was a 1-year hard revocation, and the reason the exception was added was because there was a compromise made between the Office of Traffic Safety, the Clark County District Attorneys Office, and herself that ignition interlock systems should be more widely used and that resulted in the section being changed.

Ms. Stadler noted there currently was mandatory evaluation on the second offense DUI in NRS 484.37943. She addressed the recidivism issue by pointing out the recidivism rate had been 50 percent from first offense to second time offenders which was much higher than what had been testified to earlier. She noted the programs being put into place with the treatment and the mandatory evaluations were trying to bring that percentage down.

Ms. Stadler indicated other then those concerns MADD was in support of A.B. 542. She distributed a chart from DMV (Exhibit M) showing the number of violations in 1998, for driving on a revoked license for DUI.

Chairman Anderson informed the committee section 8 of the bill would need to be further amended if they moved forward with it, in order for it to conform with A.B. 23, which had already been passed and had reached the governor’s desk.

Chairman Anderson closed the hearing on A.B. 542.

Mr. Carpenter indicated he wanted to study the documents the committee had received in the hearing because he felt they had gone further than the federal statute had required.

Chairman Anderson opened the hearing on A.B. 578 and relinquished the Chair to Assemblywoman Buckley.

Assemblywoman Gibbons, District 25, Washoe County, introduced A.B. 578, by pointing out she had friends and constituents who were no longer with her because of somebody who climbed into a vehicle while they were drunk. She explained the bill addressed the need for increased penalties for people who repeatedly violated the laws prohibiting driving under the influence of alcohol or a controlled substance. Currently the law provided graduated sanctions for DUI offenders who repeatedly violated the law and referred to section 3, which contained the primary provision of the bill. She noted a first DUI offense was a misdemeanor and a second DUI offense in 7 years was also a misdemeanor. Both crimes required community service and a fine. A third or subsequent offense in 7 years was a category B felony with a minimum term of 1 year in prison and a maximum of 6 years. She called attention to NRS 484.3795, which stated a person who caused a death or substantial bodily harm while driving under the influence of alcohol or a controlled substance, was guilty of a category B felony, which carried a minimum penalty of 2 years in prison and a maximum penalty of 20 years in prison.

Ms. Gibbons testified under A.B. 578 a new offense would be established for individuals who had already been convicted three or more times for DUI or individuals who had been convicted of DUI that resulted in a death or substantial bodily harm. If the repeat offender was convicted of another DUI, the new offense would be a category B felony with a minimum term of not less than 2 years in prison and a maximum term of not more than 15 years in prison. She noted the new penalty also applied to a person convicted of any homicide resulting from a DUI or any of those offenses in another state.

Ms. Gibbons reiterated the new penalty under section 3, was the basis of the legislation. The remaining provisions made changes adapting existing law to the new penalties. She noted under section 1 of the bill, a person convicted of the new offense must have their license revoked for 3 years. Under section 2, a person convicted of the new offense could not receive a restricted license that was issued in conjunction with an order to install a device that prevented the person from starting the vehicle if he had consumed alcohol, until 180 days after the period for which the license was revoked. She called attention to section 4 of the bill, stating a person who was convicted of the new offense would not be eligible for certain treatment programs in order to reduce the sentence. She noted the remainder of the sections dealt with technical changes in the statute.

Ms. Gibbons concluded her presentation by calling attention to a study by the National Highway Traffic Safety Administration, in which it pointed out 1 out of 8 intoxicated drivers involved in fatal accidents had a prior driving while intoxicated (DWI) conviction in the past 3 years. She also quoted a spokesman for the United States Department of Transportation who stated "the relative risk of crashes leading to death both their own and other peoples was greater for drivers with prior DWI offenses." She related, under the bill people would be protected from repeat DUI offenders, who were abusers of alcohol and drugs and had not learned from their past mistakes.

Jim Holmes, vice chairman, Northern Nevada DUI Task Force, testified one of their main functions was to process the victim impact panel. He stressed they were seeing 250 DUI offenders each month at their panel and they had to divide the panel and hold 2 meetings a month in order to handle the number of offenders. They must satisfy the punishment requirements as part of the sentencing of the offenders.

Mr. Holmes stated they were in close contact with the courts in the Reno/Sparks area and noted there was a constant flow of offenders who, while they were inside the three violations in a 7-year period, had DUIs that fell outside of the 7-year period. They observed if they were convicted of a felony 3 times within the 7-year period, their next conviction would be a misdemeanor. He thought it was inconsistent and unjust that a misdemeanor would be the punishment when they had a prior felony.

Judy Jacaboni, victim advocate, Mothers Against Drunk Driving, read from a prepared statement (Exhibit N) which told the true story of a man who had been convicted of DUI offenses three times between 1989 and 1995. She told the story because she wanted the committee to know it was that type of offender the public needed protection from and current law allowed them to cycle through the courts at the misdemeanor level again and again.

Ms. Jacaboni informed the committee the woman who killed her daughter was sentenced to 20 years and after 6 years she received parole with special conditions. A few months after the special conditions elapsed, Ms. Jacaboni received a call she was drinking and driving again and she was reported to her parole officer. She failed her alcohol test and a warrant was issued for her arrest and she was currently in southern Nevada waiting for a hearing on her parole violation.

She concluded her testimony by asking the committee to consider the inequity of erasing a conviction over time for a career alcoholic that existed under the current statutes and to pass A.B. 578 which would make DUI offenders accountable for all their offenses throughout their drinking career.

Ms. Buckley closed the hearing on A.B. 578 and adjourned the meeting at 11:45 a.m.

RESPECTFULLY SUBMITTED:

Chris Casey,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: