The Committee on Judiciary was called to order at 8:08 a.m., on Wednesday, March 31, 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

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson called the meeting to order and announced the hearing of bills until 9 a.m. At 9 a.m. he would begin the hearing of A.B. 559. The committee would hear 30 minutes of testimony for the bill and 30 minutes of testimony against the bill. At 10 a.m. the committee would hear testimony for the remaining bills until the Assembly floor meeting at 11 a.m.

Chairman Anderson opened the hearing on A.B. 485 sponsored by Ms. Koivisto.

Assemblywoman Koivisto, District 14, testified for A.B. 485. She had a constituent who called because the constituent had a problem with "bounty hunters" who forced their way into her home with no identification. The person they were trying to apprehend was not at her home, and the constituent had no legal recourse. The constituent was upset and felt her home had been violated by the "bounty hunters." Assemblywoman Koivisto contacted the Legislative Counsel Bureau to initiate a Bill Draft Request (BDR) to prevent the same actions from happening to anyone else.

Annie Rees, president, Nevada Bail Agents Association, testified for A.B. 485. She was on the Board of Directors for the Professional Bail Agents of the United States. She spoke with Assemblywoman Koivisto about the bill and some improvements. Ms. Rees was aware of the incident with "bounty hunters" which she preferred to call bail enforcement agents. There was a bill passed in the 1997 Legislative Session pertaining to the licensing, training, and regulation of bail enforcement agents. She brought Exhibit C which contained the proposed amendments to the bill.

Damien Scott, director-at-large, Nevada Bail Agents, testified for A.B. 485. He was a licensed private investigator, a licensed bail agent, and a licensed foster parent of four children. He worked with the 1997 legislature in drafting the legislation for the bail agent licensing law. He had been an instructor for the bail enforcement training course for Truckee Meadows Community College. He stated he met with Assemblywoman Koivisto and had worked to improve the language to help Ms. Koivisto achieve her objectives with the bill. There had been a problem with people claiming to be bail enforcement agents who were not licensed or were there to commit crimes while pretending to be bail enforcement agents.

The Nevada Division of Insurance would be given the tools and the paperwork trail to identify persons who had operated as bail enforcement agents without a license. Bail enforcement agents had the authority to arrest a person. Mr. Scott recommended a person who impersonated a bail enforcement agent be guilty of a gross misdemeanor the same way it was a gross misdemeanor to impersonate a police officer in Nevada. There had been a number of bail enforcement agents who carried identification, such as star pointed badges, which unless closely examined, looked like police identification. Mr. Scott suggested any star shaped badges or badges which had the state seal of Nevada on them would be prohibited for bail enforcement agents. Mr. Scott had been aware of a problem in Clark County of a few people who had operated as bail bondsmen without a license. Out of state bail enforcement agents who had been getting others to transport their bail jumpers to the local jail would be guilty of a gross misdemeanor in the bill. When asked to identify himself, the unprofessional bail enforcement agent would refuse to tell anyone who they were, their name, or where they lived. The bail enforcement agent would be required to produce their name, license number, telephone number, and a business card with information to contact a person at the Nevada Division of Insurance with a complaint. A bail enforcement agent who refused to give the information would be guilty of a misdemeanor. If damages were done while a bail enforcement agent made an arrest, the citizen with the damaged property would know who and where to send the bill for the damages.

In the past Mr. Scott had received phone calls asking him if he knew of a bail enforcement agent making an arrest and taking the person out-of-state and not notifying the local police or sheriff’s department. Mr. Scott went on to confirm there had been problems with this situation in the past. Section 6 subsection 1, stated "Immediately or reasonably soon after the arrest of a defendant by a bail enforcement agent or bail agent in the state of Nevada, the local law enforcement agency having primary jurisdiction at the location of the arrest shall be notified, by phone or in person, of the arrest, the identity of the defendant and the destination where the defendant is being taken for surrender to law enforcement." Section 6 subsection 2 stated "A bail enforcement agent or bail agent intentionally failing to comply with the provisions of this section shall be guilty of a misdemeanor." He stated the amendments went beyond the scope of what Assemblywoman Koivisto requested, but he thought the language accomplished the spirit of what she intended. He had the language checked by a couple of attorneys. The language of the bill was close to the language contained in other state legislation. Chairman Anderson asked if Mr. Scott was the principal author of the amendment, and did Mr. Scott have time to review the language with Assemblywoman Koivisto. Mr. Scott faxed the amendment to her and he assumed she received the fax although she had not.

Chairman Anderson asked Assemblywoman Koivisto if she was comfortable with the proposed amendments to her bill. Assemblywoman Koivisto said bail enforcement agents and bail laws were not her areas of expertise. She was only trying to right a wrong.

Chairman Anderson asked if the local law enforcement agency would be contacted before a bail enforcement agent made an arrest. Mr. Scott answered he instructed his students to always contact the local law enforcement agency. However, the difficulty arose in the practicality of locating the person who jumped bail. Law enforcement did not have any jurisdiction over bail enforcement agents. Mr. Scott thought notifying the local law enforcement agency and the Nevada Division of Insurance after the arrest was communicating in a professional manner. Mr. Scott gave an example of home invasion robbery in Arizona under the disguise of a bail jumping arrest. He wanted to cure the problem.

Chairman Anderson asked Mr. Scott why he would tell the Nevada Division of Insurance within 10 days about an arrest, but he would not be telling local authorities immediately. Mr. Scott responded circumstances did not always allow arresting bail enforcement agent to contact the local law enforcement agency. Sometimes a bail enforcement agent was at a location where there was no cellular phone coverage.

Chairman Anderson asked Mr. Scott about the penalties. The penalty for an out-of-state non-licensed bail enforcement agent was a gross misdemeanor whereas the penalty for someone in state was a misdemeanor. Mr. Scott responded there were no national standards for bail enforcement agents. The 1997 Nevada bail enforcement agent legislation had been model legislation for other states. Until every state required licensing and required background checks to screen out ex-felons, there would be problems. He said there were a number of ex-felons in the business. Mr. Anderson wanted to know if Mr. Scott wanted to keep ex-felons out of the business, why not make every offense in the bill a gross misdemeanor or a misdemeanor. Mr. Scott wanted every arrest by a bail enforcement agent to be documented so the Nevada Division of Insurance could begin to deal with the unlicensed activity.

Assemblyman Carpenter asked if the Nevada Division of Insurance was set up to handle all the reported bail enforcement arrests. He asked if the bail enforcement agents carried insurance to repair possible damages when the arrest was made. Mr. Scott stated the bail agency carried insurance, but at that time there was not one insurance company who carried property insurance for the bail enforcement agent. Assemblyman Carpenter wanted to know who would be responsible for the damages. Mr. Scott responded each bail enforcement agent should be liable for any damages of civil violations he committed. The bail agency would be responsible for the bail enforcement agents he employed. Mr. Scott mentioned there were two insurance companies "testing the waters" for insurance for bail enforcement agents.

Assemblyman Nolan stated his question was answered earlier concerning prior notification of the local law enforcement agency. He asked if it would be possible to notify local authorities when the bail enforcement agent was going to a private residence to make an arrest. Mr. Scott answered that in Assemblywoman Koivisto’s constituent’s situation she did not know if the persons were licensed bail enforcement agents. He stated sometimes there would be no opportunity for notifying the local law enforcement agency. Mr. Scott said he had never entered a person’s house without being accompanied by local police. Under Title 42 of the United States Code (42 USC), the Federal Civil Rights Act, the local police were with Mr. Scott as a civil standby to assure the arrested person’s civil rights were not violated.

Assemblyman Nolan asked if the police accompanied Mr. Scott on an arrest was there an obligation to arrest the bail jumper. Mr. Scott responded a local law enforcement officer’s presence in the home would not be legal because of the search warrant law. After Mr. Scott made the arrest and had the bail jumper outside, he would ask the police if they had any outstanding warrants on the bail jumper. Mr. Scott stated he would rather have the local authorities transport the arrested person plus the police officer would receive credit for the arrest which would make the police officer’s arrest record look better.

Chairman Anderson mentioned the badges, handcuffs, tie tacks, and police jewelry and asked if bail enforcement agents wore police jewelry when making an arrest. Mr. Scott stated he did not wear police jewelry when he was on professional business. Chairman Anderson asked about section 6, when notifying the local law enforcement agency some of the specifics were left out, the name of the bail enforcement agent, the agent’s license number, the reason for the arrest, and a descriptive report of the arrest. Mr. Scott apologized for leaving the information out of section 6. He stated when contacting the local law agency, it was important to keep the message brief.

Chairman Anderson felt most concerned citizens would probably phone the local law enforcement agency for information rather than phoning the Nevada Division of Insurance. Mr. Scott said once a local law enforcement agency received a phone call, it was important for them to know to call the Nevada Division of Insurance as a clearing house for information concerning bail enforcement agents arrests.

Ben Graham, attorney, Nevada District Attorney’s Association, stated he had not seen the proposed amendments. He offered his services to work with Ms. Koivisto to accomplish her goals with the legislation. Mr. Graham mentioned an 1890 case that gave bail enforcement agents authority to make arrests. He was concerned about reciprocity issues with the amendments.

Stan Olson, lieutenant, Las Vegas Metropolitan Police Department representing the Nevada Sheriffs & Chiefs Association, echoed Mr. Graham’s words. Chairman Anderson asked about Mr. Olson’s experience with the notification of a bail enforcement agent’s arrest of a bail jumper. Lieutenant Olson responded there were some incidents where the department received the 911 calls and the department responded with units to a kidnapping in progress. In the metropolitan area there was no excuse for not notifying the Las Vegas Metropolitan Police.

Assemblyman Carpenter asked was the repository notified if a bail agent made an arrest. Lieutenant Olson answered once a person was arrested the repository would receive the report of the arrest. Assemblyman Carpenter asked what happened if a person was arrested, booked, posted bail, jumped bail and was arrested for jumping bail. Mr. Graham responded in Nevada when a person on bail failed to appear, an arrest warrant would be issued for failure to appear and the bail people would go out to bring the bail jumper back into custody. When the bail jumper was brought into custody the notification would be made almost immediately to the repository.

Chairman Anderson took Mr. Graham up on his offer to work with Mr. Scott and Assemblywoman Koivisto on the language of the bill. He would like to have the new language by April 5, 1999, to place the bill on the work session for April 6, 1999.

Ben Gillard, chief investigator, Division of Insurance, Department of Business and Insurance, testified for A.B. 485. His main concern was that after a person was arrested for jumping bail the arrested person was never booked. The arrested person was taken to the office of the bail agent where an agreement was reached and the arrested person was released without being booked into jail. He said that had happened frequently with a bail jumper being arrested, but never taken to jail to be booked. He questioned if the arrested person was being extorted.

Chairman Anderson thanked Mr. Gillard for his information and suggested section 6 in the bill would solve the problem of a person being arrested and never booked. Chairman Anderson asked if section 6 would have any additional cost to the Division of Insurance. Mr. Gillard responded the commissioner did not have an opportunity to review the bill. Once the commissioner had reviewed the bill, the commissioner would submit a fiscal note to the Committee on Judiciary.

Chairman Anderson closed the hearing on A.B. 485 and opened the hearing on A.B. 559.

Assemblyman Manendo representing District 18, testified for A.B. 559. He said Assemblyman Gustavson had a similar bill in the 1997 legislative session. A.B. 559 was in memory of Deena Rizzo and all victims of drunk drivers. This bill was about saving lives. Many people, including Chairman Anderson, Assemblyman Carpenter, and Assemblyman Perkins, had worked long hours in the 1997 session to help develop the bill. The bill lowered the Blood Alcohol Content (BAC) from .10 to .08 for accidents involving death, bodily injury, or property damage with a motor vehicle or a vessel. He had no problem amending the bill to drop the property damage part of the bill. He referred to Boston University’s Dr. Ralph Henson’s study of five states with .08 BAC and five states with a BAC higher than .08. The results of his study were the .08 BAC laws targeted the heavy drinkers not the social drinker. A male who was a heavy drinker had four drinks in an hour while the heavy female drinker had three. He submitted Exhibit D from the Nevada Federation of Business and Professional Women’s Clubs who supported the bill. Assemblyman Manendo said A.B. 559 had the support of the Nevada Parents Teachers Association.

Sandy Heverly, executive director and co-founder, STOP Driving Under the Influence (DUI), presented a copy of her testimony (Exhibit E) in support of A.B. 559. She began her testimony by thanking Chairman Anderson and Vice-Chairman Manendo for introducing A.B. 559, the "Deena Rizzo Bill." Although the bill was a compromise, it still addressed the major DUI concerns. Those who caused death, injury, and destruction at the .08 level would be more likely to be held accountable to the harshest DUI penalties. The standard for misdemeanor DUI would remain .10 and given the State of Nevada’s budgetary considerations, STOP DUI believed the amended bill was a reasonable compromise. For new members on the committee, it was important to note the amended language in the bill was crafted and passed in 1997 by the committee.

Ms. Heverly said the proposal to lower Nevada’s level to .08 was based on scientific research and hundreds of world studies. Research technology and sophistication had matured sufficiently to prove that dangerous impairment of important driving skills occurred at much lower levels, beginning with the first drink. Page 8 of Exhibit G described how important driving skills became degraded at various BAC levels. Myths about .08 could be found on pages 12 and 13. The economic impact the crime had was presented on page 19. The bill was not a magical cure to resolving the DUI problem. It was a significant measure, part of a comprehensive plan to have a positive impact on reducing death and injury caused by that crime.

In continuing, Ms. Heverly explained that in 1957 Nevada set the BAC for presumed intoxication at .15. In 1971 the level was lowered to the current standard of .10. During those 14 years, between 1957 to 1971, there was no evidence of a negative impact on tourism due to the lower BAC level. There was no evidence to show casinos, restaurants, and taverns went out of business because of the new standard. There were facts to prove a .08 limit helped to save lives.

Ms. Heverly urged the legislature to acknowledge the fact that virtually everyone was dangerously impaired at .08 and to lower the BAC standard accordingly. A.B. 559 was not an attempt at prohibition. A social drinker was not .08. Currently, 16 states had adopted the .08 standard. She asked the committee to consider the motivation of those opposed to .08, when contemplating how to vote. When those opposed to the bill testified, the committee needed to make sure those testifying gave scientific and factual support for their testimony. It was clear the major opposition to the measure was profit motivated. Some people thought they should be able to combine their right to drink with their privilege to drive. She had personally experienced the devastation caused by drinking drivers through numerous serious injuries to herself, her husband, her four children, her sister, and the death of her mother. After 16 years of experience in the DUI field, she believed she had the objectivity to decipher good DUI legislation. The "Deena Rizzo Bill" was good legislation, not perfect, but good. A.B. 559 was good for Nevada. On behalf of STOP DUI she was requesting a do pass on the measure. Given the time restraints, she had asked the vote on the bill be taken as soon as possible. She volunteered to answer any questions.

Assemblyman Carpenter mentioned an identical bill was passed in the Committee on Judiciary in 1997. Unfortunately the bill did not make it through the Committee on Ways and Means. He was the primary author of the bill in 1997. He asked if Ms. Heverly had a problem with a change on page 7, section 10, line 35 from .12 to .10. Ms. Heverly had no problem with the proposed amendment. She thanked Mr. Carpenter for his help in the past.

Paul Snodgrass, Regional Program Manager, National Highway Traffic Safety Administration Region IX testified for A.B. 559. He presented Exhibit F. He had worked for the National Highway Traffic Safety Administration (NHTSA) for 21 years and had been the alcohol coordinator since 1985. The goal at NHTSA was to reduce the annual toll of 41,000 deaths, 3 million injuries, and $150 billion in societal costs due to motor vehicle crashes. Impaired driving played a substantial role in those crashes. NHTSA conducted research and evaluated programs to discover what was working, and the regional office oversaw the State and Community Traffic Safety Grant Program in Arizona, California, Hawaii, Nevada, Guam, Samoa, and the Marianas. About 40 percent of those grant funds were expended on state and local projects to combat alcohol and drug impaired driving. Certain measures had reduced impaired driving, including specific legislation, highly publicized and visible law enforcement, and public information and education. There was specific legislation proven effective in the impaired driving area.

Continuing Mr. Snodgrass said the regional office believed lowering the BAC limit to .08 in Nevada not only would prevent crashes, deaths, and injuries in Nevada, but would save substantial amounts of money in emergency response, health care, court, coroner, insurance, and other costs. A NHTSA study found the typical fatal traffic crash in the United States costs society over $800,000. At the request of the United States Congress NHTSA produced two major reports in 1991 and 1992 on BAC limits for drivers. In both of those reports, the study concluded .08 BAC should be the illegal limit for drivers aged 21 and older. The main reasons for this conclusion are as follows:

• Virtually all drivers were substantially impaired at .08 BAC.

• The risk of being involved in a crash increased substantially at .08 BAC.

• Lowering the limit was a proven effective public policy that would reduce alcohol-related traffic fatalities.

• The .08 BAC was a reasonable level to set the limit.

• The public supported a level below .10 BAC.

• Most other industrialized nations had set BAC limits at .08 or lower and had those laws in place for many years.

Mr. Snodgrass noted that Nevada was almost surrounded by states with .08 limit, Washington, Oregon, California, Utah, and New Mexico. It was important for Nevada to adopt the law. Critical driving tasks were impaired at .08 BAC. It was a level upon which most of the public agreed and which most industrialized nations had adopted. It was proven to save lives and reduce injuries. The bill was not about a couple of beers after work. The last highway authorization bill, T21, authorized $500 million over the next 6 years for the reduction of the BAC to .08. States would receive more grant money for traffic safety if the state lowered the BAC level to .08. He thanked the committee for listening to him. Chairman Anderson asked him if Arizona had lowered its BAC to .08. Mr. Snodgrass responded Arizona was considering lowering it to .08.

Gary R. Booker, chief deputy, District Attorney’s Office Clark County, testified for A.B. 559. He was in charge of the DUI Unit for Clark County which consisted of four attorneys, two investigators, and two secretaries. The DUI Unit was the sole prosecutor for DUI offenders for Clark County. He knew .08 saved lives. His unit was interested in saving lives. His unit and the National District Attorneys Association passed a resolution in favor of .08 in 1997. The gaming and the resort industries were not negatively affected by DUI. Of the 700 felony DUI cases he had handled, none of the cases were from downtown casinos, or the strip hotel/casinos, with only a couple of cases from a pub or tavern. Security from hotel/casinos had put in place a program in which patrons who should not drive because they were alcohol impaired were identified. There were cases when casino security took a patron’s keys and called Las Vegas Metropolitan Police to make sure the patron did not get behind the wheel of their vehicle and drive.

Mr. Booker said the bill was a compromise measure. If he had his way, he would have .08 for every situation, not just death, bodily injury, or property damage. A.B. 559 was a well-written bill. He would be working harder because of the bill, but said he was happy to be working harder. Assemblyman Manendo asked Mr. Booker if he anticipated more cases because of the lowering of the BAC to .08. Mr. Booker responded he did not anticipate a large impact, probably little impact.

Cecile Rizzo, mother of Deena Rizzo, STOP DUI, testified for A.B. 559. It was the fourth legislative session she had attended. Her daughter was killed in 1993. She stated she wished there was an injection for the person who was drunk and killed her daughter so the person would experience the same pain Cecile had experienced. Cecile liked the bill and was hopeful it would pass. In the past three sessions she could never understand how a legislator could vote not to save lives in Nevada. She did not know of any person who said, "I’m going out to drive and kill someone." Lowering the BAC level would cause people to be more responsible and not drive when in doubt. She thanked the committee for their support.

Nick Rizzo, father of Deena Rizzo, STOP DUI, testified for A.B. 559 saying one word came to his mind--responsible. He said a lot of people felt they were responsible but did not behave in a responsible manner. He felt the state legislature and people from STOP DUI and MADD had a duty to instill the word responsibility into the general public. The higher the BAC, the less responsibility each person had to take upon themselves. By bringing the BAC level down to .08 each person would be more responsible. He thanked the committee for its efforts and perseverance with the bill.

Harvey Whittemore, attorney, representing Nevada Beer Wholesalers Association, testified against A.B. 559. He stated words could never express the loss parents felt with the death of a child. Witnesses and the committee had to deal with the legislation before the committee. The .08 law had been the subject of numerous studies. Most of the studies had not shown the correlation between having adopted a .08 bill, and a decrease in alcohol related fatalities. One study completed recently of a .08 law was separated from an Administration License Revocation (ALR) Law adopted at the same time as the .08 law. The study showed the .08 law did not significantly decrease the number of alcohol related accidents. The study, authorized by the State of North Carolina, was conducted by Robert D. Foss, Ph.D.; J. Richard Stewart, Ph.D.; and Donald W. Reinfurt, Ph.D. (See Exhibit G).

A California study, Mr. Whittemore revealed, had combined the .08 law with an ALR law. In the California study the results were mixed. It was impossible to determine if the lower alcohol fatalities were the result of the .08 law or the ALR Law. The Beer Wholesalers Association had supported programs in the past. The Beer Wholesalers believed the problem was with underage drinking and the problem drinker or alcoholic needed to be prevented from getting behind the wheel. The .08 program had taken resources away from stopping those who killed. What worked was stopping underage drinking. He strongly suggested the committee go after the problem drinkers with stiffer penalties and fines. Mr. Whittemore mentioned the strong program in the resort industry where the security employees were trained to recognize impaired patrons was a viable program having achieved positive results. Education programs have been reducing the alcohol-related deaths. There were 7,000 fewer drinking fatalities in 1997 compared to 1982. There were 2,200 fewer teen-drinking fatalities in 1997 compared to 1982.

John Kukulica, Director of Food and Beverage, Airport Plaza Hotel, representing the Nevada Hotel and Motel Association and Nevada Restaurant Association, testified against A.B. 559. He submitted a letter from Van Heffner, the president of Nevada Hotel and Motel Association (Exhibit H). The associations strongly opposed drunken driving and its many associated societal costs. Their objection to lowering the state’s BAC level to .08 rested on numerous factors. Members of the Nevada Hotel and Motel Association and the Nevada Restaurant Association believed Nevada had one of the strictest drunken driving laws in the nation. Those strict measures had led to a significant decline in the number of drunken driving deaths in Nevada in recent years. Moreover, mandating a .08 or lower BAC level would simply divert attention from the real problem of drunken driving, alcohol abuse and repeat offenders and would not lessen the tragedy of drunken driving. Current research indicated lowering a state’s BAC to .08 or lower did not translate into fewer alcohol-related fatalities on the roadways. The expert training of Nevada’s hospitality industry employees had been and would continue to be instrumental in keeping impaired drivers off our state roads.

Continuing, Mr. Kukulica said with alcohol-related deaths at an all-time low in 1997, drunken driving deaths had declined by nearly 20 percent over the past 20 years. Between 1996 and 1997, the number of alcohol-related auto fatalities in the Silver State declined by 8 percent, placing Nevada among the top half of states for its drop in alcohol-related fatalities for the same 1-year period. People who drank responsibly understood the need to keep drunk drivers off the road, repeat offenders and alcohol abusers continued to drive under the influence. Alcohol abusers were by far the people who caused the vast majority of deaths on our state’s and our country’s roads. According to data from the NHTSA, two-thirds of all alcohol-related fatalities occurred at BAC levels of .14 or above. Many of those tragedies involved repeat offenders as well. In Nevada, 59 percent of drunken driving deaths involved drivers with BAC levels of .12 and higher. Only 5 percent of the state’s alcohol-related fatalities occurred in a BAC range of .08-.09. There was no scientific evidence to indicate there would be fewer fatalities with a .08 BAC level.

Mr. Kukulica said New Hampshire, for example, had witnessed a 28 percent increase in its drunken driving deaths since adopting a .08 BAC level in 1994. Other .08 states experienced increases in the number of alcohol-related deaths; Virginia, Oregon, Idaho, Maine, Massachusetts, and North Carolina. Seven of the top ten states with the greatest reduction in alcohol-related fatalities in 1997 were .10 BAC states, Texas, New York, Washington, Wyoming, and South Carolina. Clearly, targeting the high BAC drivers and repeat drunken driving offenders had gone much further in addressing the problem of drunk driving than the .08 BAC level.

According to Mr. Kukulica an important factor contributing to Nevada’s decline in alcohol-related auto fatalities was the quality training its hospitality employees received on alcohol and intoxication. Employees who served or worked in establishments providing alcohol had learned the facts regarding alcohol and behavioral signs to help recognize guests who may be intoxicated. In addition they had been made aware of the legal definition of intoxication and that liability laws apply to servers of alcoholic beverages. Nevada’s hospitality employees acquired the necessary skills to help prevent intoxication and to help deal with an intoxicated patron. Understanding responsibilities, monitoring alcohol consumption, and intervening in the case of an intoxicated guest had made restaurant, hotel, and motel employees a significant impediment to drunken driving in Nevada and a case against a .08 BAC level. The Nevada Hotel and Motel Association and the Nevada Restaurant Association recognized and had been saddened by the costly toll drunken driving had on Nevada’s roadways. However, lowering Nevada’s BAC level to .08 or lower would not have the desired effect of decreasing the number of fatal alcohol-related auto crashes in the Silver State. Instead, the responsible social drinker would be penalized while the alcohol abuser and repeat-offender would continue to take to the roads and ignore the consequences of drunken driving.

Mr. Kukulica stated the .08 standard simply failed to address the fact most fatal alcohol-related accidents occurred at much higher BAC levels. With the current .10 BAC level, the state’s rate of drunken driving deaths would continue to fall. Moreover, hospitality industry professionals were more than adequately trained to help keep drunken drivers off our roads.

Assemblyman Manendo stated the reason for the increase in alcohol related accidents was because of population shifts. When the State of Maine voted in .08 BAC, its restaurant sales had an 11 percent increase over the previous year. Assemblyman Manendo asked Mr. Kukulica if he knew what happened to restaurant sales when Nevada went from .15 to .10 BAC in 1971. Mr. Kukulica responded he did not have the information, but the city of San Francisco had a 27 percent decrease in restaurant sales when they went from .10 to .08 BAC.

Assemblyman Manendo asked Mr. Kukulica if a person who had four drinks in an hour on an empty stomach was a social drinker. Mr. Kukulica responded no, but the bill lowered the legal limit from .10 to .08 if they got into an accident, killed a person or injured a person. Assemblyman Manendo stated a person in a restaurant would not be having four drinks in an hour on an empty stomach, the patron would be having a meal taking up an hour or two of time to eat reducing a person’s BAC. Only a person in a bar or tavern would be having four drinks in an hour on an empty stomach.

Chairman Anderson mentioned since there were no further witnesses against A.B. 559 there were 12 minutes left to call up witnesses for A.B. 559.

Cheryl Pushea, president, STOP DUI, testified in favor of A.B. 559. Her organization was educating people to know when they began to become impaired as a driver. She had talked with tourists who took cabs and shuttles when they had been drinking. She had also talked with cocktail servers who watched their patrons and attempted to cut off a person who became impaired. Cocktail servers had told her the problem was with the local patrons who refused to be stopped and to take responsibility for their behavior.

Virginia Hastings, victim advocate, STOP DUI, testified for A.B. 559. She mentioned the death of a family member affected each member of the family. Many of those who testified before her spoke of cold statistics. Her husband was in the hospital for 20 minutes before he was pronounced dead and the hospital bill was $20,000. She stated a drunken person murdered her husband. If a person took a gun and waved the gun around, most people would be upset. A drunk who drove a vehicle had done more damage than a gun could possibly do. A person’s life could never be replaced. One person was worth more than all the statistics mentioned. She thanked the committee and asked them to pass the bill.

Hester Addison, victim advocate, STOP DUI, testified for A.B. 559. She lost her husband and son on December 26, 1996, because of a drunk driver who was a resident of Nevada. The person who killed her husband and son was at a wedding. Everyone needed to have a designated driver if they were going to drink. Ms. Addison expressed the hurt she felt when the case against the person who killed her husband and son was negotiated to one count of felony DUI. She wanted to see everyone held responsible for their own behavior.

Jimmy Holmes, representing Northern Nevada DUI Task Force, testified for A.B. 559. He testified impairment began at .04 BAC. Several of the victims in the room lost family members by drivers who were under .08 BAC. It took one drink to increase a BAC from .08 to .10. When the BAC increased from .08 to .10 BAC, the probability of a person having an accident increased 300 percent. He said .08 BAC was not a social drinker. He had the support of the 32,000 members of the Nevada Parent Teacher Association (PTA). The BAC was lowered 28 years ago from .15 to .10 BAC, and there had been a number of casinos opened during those 28 years. The argument for sales going down when the BAC was lowered was felonious.

Chairman Anderson closed the hearing on A.B. 559 and opened the hearing on A.B. 620.

Joanne M. Keller, Highway Safety Coordinator, Department of Motor Vehicles and Public Safety Office of Traffic Safety, testified for A.B. 620. Nevada Revised Statutes (NRS 484.3882) created the Committee for Testing on Intoxication. The committee was responsible for certifying devices that were accurate and reliable for testing a person’s breath to determine the percent of alcohol in their blood. The committee’s other responsibility was to maintain a list of approved devices. A.B. 620 did not change the process in which a device became approved. The devices must meet the requirements of the NHTSA or meet the criteria established by the director or his agents. Crime labs in Washoe and Clark Counties were responsible for the evaluation of the devices to insure their performance in Nevada’s conditions of extreme cold and heat. The list contained evidentiary breath test devices, preliminary breath test devices, and ignition interlock devices. The Committee for Testing on Intoxication held public meetings requiring public notification, and transcribing of minutes of each meeting. The bill removed the second public meeting and allowed the committee to maintain the list as opposed to the regulations. Some devices were delayed a year or more from being approved because of the second layer of public meetings. Chairman Anderson asked if the list would be published. Ms. Keller responded the list of approved devices would be maintained on a web site and not in the regulations.

Chairman Anderson closed the hearing on A.B. 620.

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS A.B. 620.

ASSEMBLYMAN COLLINS SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

ASSEMBLYWOMAN BUCKLEY MOVED TO PLACE A.B. 620 ON THE CONSENT CALENDAR.

ASSEMBLYMAN COLLINS SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Chairman Anderson opened the hearing on A.B. 579.

Assemblyman Brower, District 37, testified for A.B. 579. The bill removed the 7-year "look back" provision from the statutes for the second, third, and other DUI offenses. The second and third DUI offenses carried enhanced penalties, but only if the offenses were committed within the 7 years. Assemblyman Brower wanted enhanced penalties regardless of the time since the last offense.

Chairman Anderson asked about Ms. Stadler’s letter (Exhibit I). Ms. Stadler responded the letter was about Michael Paul Warren, who had three felony DUIs and served about 5 years in prison. Mr. Warren would only have to wait 2 more years, and would start with a "clean slate" concerning his DUI convictions.

Judy Jacoboni, victim advocate, Mothers Against Drunk Driving (MADD) Lyon County Chapter, testified for A.B. 579. After the March 25, 1999, marathon meeting, Ms. Jacoboni made an appointment with Raymond Sparks, Public Safety Deputy Director, Department of Motor Vehicles and Public Safety (DMV&PS). Mr. Sparks informed her the DMV&PS did not oppose A.B. 579. There was a difference between a commercial driver’s license and a non-commercial driver’s license. When a person with a commercial driver’s license transferred their commercial driver’s license to Nevada, the driver’s entire driving record would come to Nevada. When a person with a noncommercial driver’s license transferred their driver’s license to Nevada, the noncommercial driver started with a "clean slate" concerning their previous driving record. The bill would simplify differences between the two driver’s licenses and increase penalties with repeat offenders.

Laurel Stadler, legislative liaison, MADD Lyon County Chapter, testified for A.B. 579. She provided the committee with a chart, (Exhibit I,) which compared the "look back" for the 50 states.

Assemblyman Brower stated if a person had a DUI 10 years ago and received another DUI after the bill became law, even though the bill had a lifetime "look back", the person would only have the most current DUI. Assemblyman Brower offered to work with any language changes to clarify the matter.

Chairman Anderson asked about the ex post facto concept for convicts in prison. When a prisoner got out of prison, would he begin a clean slate as far as A.B. 579 was concerned. Assemblyman Brower stated the impact of the bill would not start until sometime down the road, but the law had to start at some point in time.

Assemblyman Collins wanted to know why the criminal in the letter Exhibit I was not charged as a habitual criminal. The criminal was convicted of a number of crimes, two DUIs and one stalking conviction. He wanted to know about not counting the time a criminal served in jail as part of the 7-year "look back" to stretch the issue. Ms. Stadler responded the stopping of the 7-year "look back" would be an accounting nightmare for the prison system to track. She deferred the first question to Mr. Graham. Mr. Graham was not in the room to respond.

Assemblywoman Buckley referred to section 5 of A.B. 579. She asked why there was not a statement in section 5 where a repeat DUI offender would receive treatment for their alcohol abuse. Ms. Lang referred to subsection 2, "A person may not apply to the court to undergo a program of treatment pursuant to subsection 1 if previously he has been found guilty of a violation of Nevada Revised Statute (NRS) 484.3795, a homicide resulting from driving a vehicle while under the influence of intoxicating liquor or a controlled substance or a violation of the law of any other jurisdiction which prohibits the same or similar conduct as set forth in paragraph (a) or (b)."

Chairman Anderson stated he might be misreading the bill about the criminal not being able to receive treatment after the first offense. Ms. Lang stated if a criminal committed a homicide or serious bodily harm, the criminal would not be eligible for treatment. Chairman Anderson asked if there was a homicide or substantial bodily harm for the first offense, the offender would not be allowed to volunteer for a treatment program with the second offense. Ms. Stadler responded the other portion of the law addressed the mandatory evaluation and mandatory treatment, the voluntary notice of election was another piece of the DUI statute.

Chairman Anderson asked if the committee passed the bill, once a person committed their first DUI, the second, third and fourth DUIs within the 7 years would stack up with all the DUIs counting against the offender. If a DUI offender spend 7 years in prison under the 7-year "look back," the offender would have a clean record with the next DUI counting as the first offense. Assemblyman Brower stated, basically, the DUI offender did not get a break if there were more than 7 years between offenses. Chairman Anderson observed there were seven states with a lifetime "look back."

Jimmy Holmes, representing Northern Nevada DUI Task Force went on the record in favor of A.B. 579.

Benjamin Blinn, private citizen, testified for A.B. 579. He stated a number of cases had been plea-bargained in the past. He wanted to know when the lifetime "look back" began. Chairman Anderson stated the lifetime look back would begin October 1, 1999. Ms. Lang responded the intent of the bill needed to be placed in the language of the bill.

Sandy Heverly, executive director and co-founder, STOP Driving Under the Influence (DUI), went on the record lending her organization’s support for A.B. 579.

Chairman Anderson closed the hearing on A.B. 579.

Assemblyman Collins asked how the bill handled a DUI offender who had a conviction sealed. Assemblyman Brower said he did not think a person could get a DUI conviction sealed. Chairman Anderson mentioned if a person successfully completed a drug treatment program the DUI would be removed from the record. Assemblyman Brower said if the sealing option was in current law, he had no problem with it. No action was taken on the bill.

Chairman Anderson opened the hearing on A.B. 499.

Assemblyman Brower testified for A.B. 499. The bill changed the criteria for residential confinement. On page 2, line 16 through 22, stated the offender had not been previously assigned to residential confinement. On page 3, lines 19 and 20, did not allow a person convicted of domestic violence and lines 24 through 27 did not allow a person convicted of Driving Under the Influence of alcohol or drugs to be part of the residential confinement program. The reasoning behind DUI offenders not being eligible for residential confinement was to provide a wake up call for repeat DUI offenders.

Jimmy Holmes, representing Northern Nevada DUI Task Force, testified for A.B. 499. Mr. Holmes’ son died as the results of a DUI driver. His son was sentenced to no life while the person guilty of killing his son was sentenced to 48 months and was eligible for parole in 16 months. The offender began serving his sentence on August 27, 1997. Before September 30, 1997, Mr. Holmes was notified the offender had applied for the residential confinement program which meant the offender served only 1 month in prison. Mr. Holmes wanted DUI offenders who killed a person or caused substantial bodily harm to serve their sentence in prison.

Judy Jacoboni, Victim Advocate, Mothers Against Drunk Driving (MADD) Lyon County Chapter, testified for A.B. 499. She submitted a copy of her testimony, (Exhibit J). The purpose of the bill was to add some further provision to the laws which created and defined the "305" Residential Confinement Program for felony DUI offenders. A DUI offender’s third felony offense without injury or death could have received the minimum term of 1 year. He could be classified by Department of Prisons, complete Phase I of the "305" program, and be released to serve the balance of his prison sentence in his own home on the 61^st day of his sentence. For those offenders, she considered the prison system had a "revolving door" policy. However, she believed in the program and wanted it to continue.

Continuing, Ms. Jacobson said the other type of felony DUI offender was one who was serving a sentence for NRS 484.3795, substantial bodily harm or death. Those offenders could become eligible for release to residential confinement before their mandatory minimum sentence had ended. The three provisions of A.B. 499 proposed to more clearly define eligibility and added further limitations to eligibility. MADD felt the "305" program had been successful; however, members became concerned last year when several offenders who MADD felt did not meet the statutory qualifications, became eligible and were allowed to participate in the program. After meetings with Carlos Concha, chief of Division of Parole and Probation, Bob Bayer, Director of Prisons, and Glen Whorton of the Department of Prisons, MADD members decided some further clarifications and limitations would help to keep the program successful. A primary concern of MADD was the screening process, whereby the director could select offenders to assign to the program. Members of MADD became concerned when a high-profile offender was released to residential confinement before he completed Phase I. The person did not meet the basic eligibility requirements as he had two or more prior violent offenses. He did not meet the employment criteria and had not completed Phase I, but was being released to residential confinement to await a liver transplant. At the same time there were two other offenders going into the program with prior violent convictions.

Ms. Jacoboni said she had met with Mr. Concha to go over eligibility requirements and then decided there needed to be some provisions added in statute to ensure thorough up-front screening of candidates so the program continued to be successful as it had been in the past. The provisions of section 1, subsection (d) (1) on page 2, lines 15 through 18, addressed the concern about pre-qualification, bringing into that section the same criteria currently existing in the 317 Residential Confinement Program. For example, persons with two or more prior felonies would become ineligible to participate in the 305 Residential Confinement Program if A.B. 499 was adopted. The provision of section 1 subsection d (2), lines 19 through 22, would prohibit an offender from participating in the 305 Residential Confinement Program a second time, as MADD feels, "one bite of the apple" is enough. Persons who had previously completed the program and offended a second time could be re-released to Residential Confinement having served only a fraction of their sentence behind bars again a second time.

The new provisions, Ms Jacoboni said, would close the "revolving door" the second time. Section 1, subsection 6 on page 3, lines 16 through 18, was not new language, it was the same words moved upward in the paragraph from below lines 20 through 23. The third provision, section 1, subsection 6 (b) on page 3, lines 24 to 27 would limit participation for offenders who caused substantial bodily harm or death until after their mandatory minimum sentence had been served. That provision would keep the "truth" in the "truth in sentencing" concept by requiring those offenders to stay in prison for their minimum term and afterwards be released to residential confinement for the balance of their term. Ms. Jacoboni summarized the reasons to support A.B. 499 as follows:

• First, the public viewed the residential confinement as release from prison. Although that type of confinement was under the direct supervision and control of the Division of Parole and Probation, the public perceived it in the same way as parole, because it was an early release. Since the "Truth in Sentencing" laws went into effect, she saw lowered sentencing recommendations from the division in response to concerns about prison beds. The lowered sentence recommendations sometimes resulted in lower minimum terms being imposed on offenders. MADD felt all offenders should serve at least their minimum term behind bars for "Truth in Sentencing" to occur. So we ask in A.B. 499 for the DUI group who had caused substantial bodily harm or death to serve at least their minimum term in a prison setting, behind bars or in an honor camp.

• Second was the way the Division of Prisons calculated the program’s success rate. MADD became concerned in 1998 about some persons not qualified for the program. We were assured even with those changes the program’s success rate had not been lowered. The success rate was based on the successful completion of the program, not the offender’s future success. So there could be many like the woman who killed my daughter, who had successfully completed the program and then failed, but it was still counted as a successful completion. The only unsuccessful candidates were those who fell off before they had completed the program, like the young man who got drunk in the early days of "305" and stole an airplane and flew around the area until he ran out of gas, crashed the plane and died. Shane Beals seriously injured Sharon Zadra for life, within weeks of being released to the Residential Confinement Program and was back in prison on drug charges. Those persons were not counted as having a successful completion.

Ms. Jacoboni expressed the opinion that the public wants protection from DUI crime. The "305" program did work. Despite the fact Nevada imposed more severe penalties on felony DUI offenders than most states, the "305" program helped to keep the costs of incarceration under control by providing offender-paid options. MADD’s concerns as stated through the bill would help assure the success rate of the program through further defined pre-qualification and would help prevent the undermining of the "Truth in Sentencing" concept by precluding premature release to Residential Confinement of those who injured or killed others.

Chairman Anderson closed the hearing on A.B. 499.

Assemblyman Carpenter requested that when Mr. Concha appeared before the committee he bring the statistics on how the "305" program performed. Chairman Anderson requested Mr. Concha bring the criteria for selecting candidates for the "305" program, the number of participants in the program over the past 4 years, and had there been selection modifications over the past two years in order to meet the capacity questions of the prison.

Chairman Anderson adjourned the committee meeting at 10:52 a.m.

Signature page to follow.

RESPECTFULLY SUBMITTED:

Ken Beaton,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: