The Committee on Judiciary was called to order at 7:30 a.m., on Thursday, April 8, 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. There was a quorum.

Don Williams, committee policy analyst, chief principle research analyst, Legislative Counsel Bureau (LCB), stated as an LCB employee he could neither support nor oppose any of the measures before the Committee on Judiciary. He referred to the word document (Exhibit C).

The work session was divided as follows:

• Continuation of bills not heard at the April 6 work session.

• Driving Under the Influence (DUI) bills.

• The final document included a variety of bills, including the smoking bills.

Mr. Williams restated A. B. 267 was considered by the committee on April 6. Mr. Perkins introduced the bill requiring a person, under certain circumstances, to report violent or sexual offenses against a child, and the committee discussed a proposed amendment. Ms. Lang prepared a proposed amendment on A.B. 267.

Risa Lang referred to a copy of the proposed amendment prepared on behalf of the committee (Exhibit D). The first six sections of the bill were removed. Those were sections in the criminal chapter dealing with certain types of reporting requirements. Sections 7 through 11 and 13 would remain. Section 12 was removed. The first sections were definitions of a law enforcement agency and of a violent or sexual offense, and were the same as in the original bill.

She referred to page 3 of the proposed amendment, section 5 would be the substance of the bill. Section 13 was substantially pared down to require reporting of a violent or sexual offense against a child who was 12 years of age or younger.

Subsection 2 contained reporting requirements, and subsection 3 addressed the concerns of the committee regarding who could be prosecuted for such a crime. Namely the person who committed the crime had to have been convicted of the underlying crime. Subsection 4 provided certain exceptions to the reporting requirement. Most of those were set out in the original. A couple of them were removed. Paragraph D was added to exclude if a person became aware of the offense through privileged communication.

Mr. Anderson asked Ms. Buckley, if she had an opportunity to review the proposed amendment.

Ms. Buckley answered she had an opportunity to review the proposed amendment and thought Ms. Lang had done a good job keeping some of the applicable provisions contained in the first bill while setting forth the committee’s proposed concept.

Mr. Carpenter had a question regarding the last page where the provisions did not apply to a person if not related by blood or marriage to the child. He was not sure why the language was there, because he felt in most situations it was a relative who knew and should do the reporting.

Mr. Anderson requested Ms. Lang again explain section 5 of the proposed amendment.

Ms. Lang reiterated the provision to which Mr. Carpenter referred was in the original bill. She had left it in for the committee to discuss. Mr. Anderson felt that was an important point, but was not sure it needed to remain.

Ms. Buckley said the language in the original bill, the concept, and policy rationale meant parents, grandparents, and family needed to do the reporting.

Mr. Collins questioned exempting those family members who wanted to remain anonymous. Would the domestic violence laws cover family members so they could be anonymous, exempt, or removed.

Ms. Lang responded she thought that was a good question. Parents were prosecuted now for not getting involved in child abuse and neglect cases.

Mr. Carpenter felt some of those more heinous crimes occurred within families and even if they were reported through secret witness or a phone call, that was reporting and they should not be prosecuted. The way he read it there would be a blanket exception not only for the victim but also the person who committed the violent offense that no one would have to report them. He felt they were leaving out a very important element.

Ms. Leslie agreed with Mr. Carpenter and felt parents were not mandatory reporters. They could be prosecuted for neglect and should be if they were involved. She felt they would be diluting the impact of the law by a large extent by not requiring the family members to report an incident.

Mr. Anderson wondered if Ms. Leslie was suggesting the removal of section 5, subsection 4 (a) so family members could be charged for not reporting the crime. Ms. Leslie said yes, otherwise, they were not doing very much with the law.

Ms. McClain agreed but drew the committee’s attention to section 5, subsection (c), where it said they were exempt if they knew or had reasonable cause to believe they were going to be in imminent danger by reporting it, so that would cover the mom or the dad in the household.

Mr. Anderson asked Ms. McClain if they should remove subsection 4 (a) because of the statement in subsection (c) that said, "any other person who is directly related to him by blood or marriage or who resides in the household with him, whether or not the other person is related to him by blood or marriage, in imminent danger of suffering substantial bodily harm".

Mr. Brower wanted to make sure the committee did not allow the bill to target minors. He did not know of any other provision in the law that would preclude a minor from being prosecuted for the new offense, but he did not think that was the intent. He felt a 12 year-old sister should not be held accountable and prosecuted for not reporting. Certainly a parent or another relative should.

Ms. Buckley said Mr. Brower had brought up a very good point. The amendment addressed Nevada Revised Statute (NRS) Chapter 202 instead of NRS chapter 62, and wondered if it needed to be spelled out more clearly.

Ms. Lang said children could not be charged with crimes, so they would have to come under NRS chapter 62, and did not think it needed to be specifically addressed.

Mr. Anderson wanted to make sure that heretofore if the committee could remove subsection 4 (a), and indicate the provisions in the section did not apply to a person if the person suffered from a mental or physical imparity or drop "1 and 2 if the child was a victim of violent sexual offense, and the person who committed the violent sexual offense against the child."

Ms. Lang questioned the removal of subsection 4 (a). Regarding juveniles, if a child committed an offense which would be a crime if it had been committed by an adult, they would fall under NRS chapter 62. She originally removed a provision which would have addressed children under the age of 18 and thought the committee might want to reconsider. The language was located in the original bill on page 9, paragraph 7(a), or a simplified version that said it did not apply to a person under the age of 18.

Mr. Anderson questioned if in the new (a) the provisions of the section did not apply to a person if the person was less than 18 years of age, unless they suffered from a mental or physical imparity. He wanted to know what happened to those children between the age of 12 to 18. Ms. Lang said it was the same. That age group would not be required to make a report. A person under the age of 18 could not be held for a misdemeanor had they seen a violent or sexual offense and did not report it.

Mr. Brower brought up another potential problem where a parent was under the age of 18. Rather than using an age qualifier, he thought they could use an age and a reference to whichever statute deemed a minor an adult if a parent. He also suggested using the term emancipated minor.

Discussion ensued regarding the proper age to allow a child to be held liable for not reporting a crime. Ms. Buckley thought 17 but was hesitant to go under 16. Chairman Anderson thought 12 might be the magic number. Ms. Leslie respectfully disagreed. She thought 13 and 14 for a lot of kids would be too young to be given that kind of responsibility. She agreed with Ms. Buckley that perhaps 16 would be the perfect age.

Ms. Buckley made one final point on the proposed policy. If a witness failed to report, she did not want them prevented from coming forward to testify against the person who did the violent crime, because they would be incriminating themselves.

Ms. Angle felt the committee was getting very far away from the original intent. The original intent was to see that people like Mr. Cash were prosecuted. She felt they had granted Mr. Cash immunity to get to the perpetrator, and the committee would not be able to influence that type of immunity. She had been involved with pedophile cases and when children were being abused by a pedophile, often times in groups, they did not see that person as an abuser. They saw that person as someone who loved them.

Mr. Anderson said there was no way they could tell the district attorney’s office not to make those type deals because he believed Mr. Graham had told the committee in the past that 90 percent of all cases were plea bargained. It was a necessary tool for the district attorney’s office. He felt the legislation was necessary, because they were broadening the scope of who was going to report, and if that meant there would be more people willing to come forward, then he thought that was exactly what the committee was seeking.

Chairman Anderson said they were trying to get more people to take responsibility of reporting those abuses. He thought it was a strong piece of legislation. It may not do all the things they wanted, but it would broaden the reporting requirements to beyond those who came into contact with children on a day-to-day basis.

Mr. Gustavson stated he agreed with Ms. Angle, there was still the problem in the bill that the majority of the persons who could be prosecuted were generally the ones that would confess. There would be no way to be able to be prosecuted unless the crime had been videotaped.

At that time more discussion ensued regarding the proper age to allow a child to be held liable for not reporting a crime. Mr. Carpenter responded maybe 12 would be too young, but at 14, kids were pretty wise to the ways of the world. He felt it would be a compromise. Mr. Anderson thought perhaps 16, there were certain magic dates everyone went by; 12, 16, 18, and 21 were the ones everyone recognized as points of passage. Drivers’ licenses were allowed at 16 as well as other potential responsibilities. Mr. Brower said he had discussed with Ms. Buckley the age at which a juvenile could be certified as an adult and felt that might be an age to examine at for the context.

Mr. Anderson invited Mr. Graham to join the discussion as to what age a juvenile could be identified to be held liable.

Ben Graham, District Attorney’s Association, said the age varied. There were certain violent crimes in which they were automatically certified. From a certification standpoint, there had to be a significant history of inappropriate action or conduct before anyone was certified. As far as the age level, 16 or 15, and from a practical standpoint he did not see a single soul ever falling under juvenile court’s jurisdiction for failure to report. He could see a parent talking with a child who knew of an event in another person’s home, possibly saying they had not only a moral duty, but a legal duty to report the incident.

Mr. Anderson asked Mr. Graham if he was saying that 18 would be an acceptable age.

Mr. Graham thought 18 was too old. Maybe 16 or 15 just from the way the juvenile system worked. Mr. Anderson agreed 16 would be a good age.

After much discussion the committee left the age issue.

Mr. Brower questioned section 5 requiring there be a conviction of the underlying perpetrator. He thought in prior discussion it had been decided to change the language to simply charging an underlying perpetrator.

Mr. Anderson confirmed that was also his understanding regarding the prosecution and conviction pursuant to the section, only the person who committed the violent or sexual offense against the child would be convicted within the state.

Mr. Anderson stated he would accept an amend and do pass motion, the amendment being accepted as drafted with the exception of section 5, subsection 4, the removal of everything under (a), but with the provision of "is less than 16 years of age" being added as the new (a). Alleviating the need to re-letter the remaining sections.

Chairman Anderson said he had received note there was a conflict with A.B. 68.

Ms. Lang said the amendment would take care of the conflict. The conflict was with the section in NRS chapter 432B and would no longer be included in the bill.

Ms. Angle believed the bill would be very ineffective, because people had to incriminate themselves before they could be prosecuted. There would be no way to prove they witnessed something, unless they came forward as a witness, and then they opened themselves up for prosecution.

Mr. Gustavson decided to support the bill, although he agreed with Ms. Angle.

Chairman Anderson said Mr. Perkins would probably want to defend the bill on the floor. Mr. Manendo was asked to provide the backup.

Don Williams stated A.B. 517 was also from April 6, and referred to the work session document (Exhibit C). The bill was requested by Assemblywoman Freeman. It was heard in committee on March 30. Mr. Williams reminded the committee of prior testimony from an attorney representing the Carson Rural Elder Law Program who stated the bill corrected problems with the existing guardianship statutes which were oriented more toward minors than senior citizens. The attorney had mentioned the bill clarified the rights of the wards and the powers of the guardians.

Mr. Williams said the Attorney General’s Office presented written testimony in support of the bill and indicated the bill would give guardians clear guidance in their responsibilities toward the wards and expanded how to treat limited guardianships. Cynthia A. Pyzel, senior deputy attorney general, Attorney General’s Office, proposed amendments to sections 2 and 20 of the bill. Betsy Kolkoski, elder rights attorney in the Aging Services Division of Nevada Department of Human Resources, also testified in support of the bill. Henry W. Cavallera, attorney in private practice in Reno, stated his support for the bill but asked that it be amended to allow a child who lived outside of Nevada to be a guardian if the parent, while competent, approved and requested his or her child serve as a guardian.

Ernest K. Nielsen, a representative of the Senior Law Program of Washoe County Senior Services, submitted a proposed amendment to prohibit a guardian from seeking to maintain a ward in a mental health facility against their will for more than 72 hours not including Saturdays, Sundays and holidays, unless certain civil protections were provided.

Mr. Williams further stated the public administrator of Washoe County testified and expressed many concerns with the bill and indicated it would have a significant fiscal impact for Washoe County. He also submitted written testimony from the public administrator in Clark County who opposed the bill and indicated it represented an unfunded mandate with a fiscal impact in excess of $800,000 a year for Clark County.

During the hearing, Mr. Carpenter questioned some of the provisions in the bill regarding the timeframe and methods for the disposal of the property of a ward and the timeframe for notifying persons when a temporary guardian was appointed. Because of the number of proposed amendments and the many concerns raised with the bill, Chairman Anderson requested that all interested parties prepare and submit a proposed amendment to the bill. Mr. Williams referred to the proposed amendment submitted by Lora E. Myles (Exhibit C). He then deferred to Mr. Anderson and Ms. Lang for discussion on the proposed amendment.

Mr. Anderson asked Ms. Myles to join the committee at the witness table recognizing they were not taking additional testimony, but would be asking for clarification relative to the document. He thanked her for the timeliness in getting the document back to the committee.

Laura Myles, an attorney for the Carson and Rural Elder Law Program, informed the committee significant changes were made to section 2. The public guardian of Washoe County and of Clark County felt section 2 was redundant, and the rights of the ward were covered by other provisions in the statute and did not need to be further delineated. She and Despina Hatton from the Senior Law Program, in Reno concluded they would fight the battle later.

Ms. Myles indicated Washoe County Public Guardian Don Cavallo was concerned about an unfunded mandate in section 3, the language was a public attorney be appointed if the ward requested an attorney to represent them. When the proposal was sent to the Legislative Counsel Bureau they put legal services or Title III or private attorney and had not indicated public attorney. At their next discussion they took out the word public and again added legal services. If the ward wished to have representation, either the Senior Law Program in Washoe County or a pro bono attorney in Clark County or the Carson and Rural Elder Law Program in the other rural counties was contacted to represent the ward. There was usually too much of a conflict of interest in appointing a public attorney to represent the ward in those instances.

Mr. Anderson was having a problem with the term "legal services" and asked Ms. Lang if that was a customary term and was it defined in statute.

Ms. Lang explained a public attorney was someone who was appointed. The statutes delineated Nevada Legal Services, as a pro bono program for low-income residents of Nevada.

Mr. Anderson asked Ms. Buckley to comment since she was very knowledgeable.

Ms. Buckley remarked legal services had been defined differently in many statutes and legal references. It could be an unorganized legal services program designed to provide free legal assistance to low-income individuals. She felt she needed to declare for the record in her private life she was an attorney with legal services but had not suggested the bill or added the language and did not think it would affect her personally.

Ms. Myles continued the next change was made in section 4. There was some discussion there were wards under the age of 60 who were physically ill in one way or another, and the provision to provide for funeral funding would be applicable to them as well as those over 60. Public guardians from both Washoe County and Clark County did not like the mandatory language of "shall," and they agreed to change to "may."

Mr. Anderson called attention to the original language, where the ward had to attain the age of 60, the guardian shall retain assets not exceeding $1,500 in section 4.

Ms. Myles responded the rephrasing of the language making $1,500 the maximum for medicaid purposes, if the guardian retained much more than $1,500, the ward may not be eligible for supplemental income under social security or medicaid services. She said they simply rephrased it, so if there was an estate or the ward had a great deal of money and wished to pay a great deal of money for a funeral, they could do so knowing they would never be entitled to medicaid or supplemental income under social security. Retaining the language of $1,500 made that $1,500 exempt from all claims from creditors and from the state.

Ms. Myles further stated the next major change was in section 9, paragraph 4. Mr. Carpenter and other members of the committee had expressed a concern about putting in the language "without undue delay," and that language was inserted.

Ms. Myles said the next change was in section 12. Language was removed in section 12, 1(c). They removed the language inserted in the original amendment and went back to the original language in the statute, taking out "if the ward is a minor", and went back to the original statute saying "the ward is a minor or a person of a limited capacity." There had been concern that they had overlooked the idea of rehabilitation not just for work but for other purposes.

Mr. Anderson asked if the affirmative votes would be retained in section 11. Would the requirement to take an oath remain.

Ms. Myles said if they stuck with their amendment, the oath would be the same as required by the courts, the same oath used by the governor and legislators and that attorneys took when admitted to the bar. The language would be changed to say the office of guardian instead of the office of assemblyman or whatever else.

Mr. Anderson asked what the letters of guardianship said.

Ms. Myles replied the letters of guardianship basically said the guardian had been appointed by the court after a hearing on a certain date. The guardian swore to uphold the Constitution of the United States and the State of Nevada, uphold all the laws and regulations of the United States and the State of Nevada, and to carry out the duties of guardianship in the manner appropriate.

Ms. Buckley thought it was just a shift from old to new legal language. In the old days affidavits and oaths were used. They would say "I affiant Barbara Buckley being first duly sworn deposes and states that everything I’m about to say except that stated on information and belief is true and correct" and then a person would say what they had to say and then say "further affiant saith not". A declaration would be made by saying, "I, Barbara Buckley, under declaration of the pains of perjury, do solemnly say, you know, that the table is black". Legally, it made no difference. Both were saying the same exact thing, and it seemed to be a way to try to modernize the language.

Ms. Myles continued in regard to section 13, the LCB had previously added the language to their original amendment and had no problems with the removal because it was covered by other sections of the statute. In section 16 they removed the amendment completely because paragraphs 1 and 2 were already in the statutes. Paragraph 3 was the amended statute.

She addressed the issues of Michael J. Capello, Washoe County Department of Social Services, on section 19. He was concerned because the language about the $5,000 was not consistent with the other sections of the bill. They had raised everything to $5,000, so it was consistent throughout the entire statute.

Section 20 was removed because there was some concern from various people that it was not well worded. They would address that in further legislative sessions.

She further stated section 21 was withdrawn because Betsy Kolkoski, Division for Aging Services, felt it was not necessary under the elder abuse statutes.

Section 22 was added because they felt it was needed.

Mr. Collins questioned when the guardian was selling property of their ward, how did the court handle it as far as letting the guardian take the money and place the person in retirement home. Or in the case of a minor, selling their property rather than letting it appreciate.

Ms. Myles responded the court had to approve any sale of property, especially any sale of real property or property of high value. Of course if a guardian sold a small item like furniture there was usually no need to have court approval.

Mr. Collins wanted to make sure it was sold at the best price or fair market value.

Ms. Myles said it would be the same as selling property in a probate situation.

Chairman Anderson would ask Ms. Freeman to handle her bill on the floor and asked Mr. Manendo to be the backup.

Don Williams explained A.B. 435 was requested by Assemblywoman Berman and held over from the April 6 work session. He referred to discussion found in the work session document on page 7 (Exhibit C). During the March 22 hearing on the bill, Ms. Berman indicated she requested it because some elderly persons had been victims of exploitation by certain persons who had abused the power of attorney to obtain property. She indicated the bill would provide some protection against abuse of the power of attorney relating to the conveyance of real property under the provisions regarding estates and property. There was no testimony in opposition to the bill.

Chairman Anderson noted his only concern was the question of age. An instrument executed pursuant to subsection 1 by a principle who was 60 years of age or older, and he thought they had discussed moving the age forward to 67.

Mr. Carpenter believed the bill just made it more difficult for people because of the requirement for finding two witnesses for every deed or document that needed to be signed. He felt that was why legal documents needed to be notarized. It would make it more difficult especially in the conveyance of real property.

Mr. Brower saw the age question as a possibility of greater protection by moving the age forward to 67. He thought the possibility of diminished capacity became a greater concern as a person grew older, although he realized people could have diminished capacity at an earlier age.

Ms. Ohrenschall agreed with Mr. Brower, when a person reached a higher age, it was more likely if there was a physical infirmity or terminal illness, they would have somebody with them who would be a witness. Regarding ordinary transactions most companies had adequate staff. Most attorneys, even if it was just a one-attorney office, had no problem getting the courtesy from a neighboring office to have somebody come in as a witness. She further agreed the age limit should be raised. Someone limited to having a home visit to sign a form might be more likely to be taken in some way than somebody in a regular commercial setting.

Ms. Ohrenschall mentioned the instrument known as a durable power where somebody signed a power of attorney that was to last beyond a potential incapacity that might surface in the future. Since those instruments were getting fairly popular, she thought some protection was needed.

Mr. Brower asked Ms. Lang to explain section 1, subsection 1, which would apply to all conveyances relating to real property. He wondered if it applied to transferring power of attorney, where such power may include the authority to convey real property.

Ms. Lang said it was specifically related to the conveyance of real property where it said power of attorney or other instrument containing the power to convey any real property or to execute as an agent for another any conveyance of real property.

Assemblywoman Koivisto interjected the intent was to prevent someone from trying to take advantage of an older person. Those nonscrupulous individuals would have no problem producing witnesses. She felt the whole thing was just an exercise in futility.

Chairman Anderson clarified Miss Koivisto and others believed the proposed legislation would make it more difficult for honest person to transfer property because of age, and therefore the legislation was not necessary.

ASSEMBLYWOMAN KOIVISTO MOVED FOR AN INDEFINITE POSTPONEMENT OF A.B. 435.

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

THE MOTION PASSED.

Mr. Williams stated the last bill from the April 6 work session was A.B. 327 and the discussion was on page 8 of the documents (Exhibit C). A.B. 327 was heard on March 23. Representatives of the property and casualty insurance industry testified they requested the proposed legislation to force uninsured motorists to obtain motor vehicle insurance coverage. They indicated such a law existed in some form in California and certain other states. A representative of the Nevada Manufacturers Association testified the bill mirrored an initiative petition passed in California and which provided that uninsured motorists involved in a motor vehicle accident could not seek noneconomic damages or sue for "pain and suffering." Testimony indicated that such persons could still seek recovery for medical expenses and other economic loss. Other representatives from the insurance industry also testified in support of the bill.

In opposition were representatives from the Nevada Trial Lawyers Association who indicated the bill would punish the poor and those who accidentally let their insurance lapse. Their testimony emphasized it would deprive uninsured motorists of full justice while increasing the profits of the insurance companies. They offered a proposed amendment only if the committee decided to process the bill to require that all premium savings resulting from the statute be passed on to those persons insured by the insurance companies that benefited from the legislation.

During the hearing on the bill a representative of the industry offered to prepare a proposed amendment to address some of the concerns raised in testimony, and the amendment was submitted by James R. Jinks of USAA. He had attached a letter dated March 24 from a Samuel Sorich representative of the National Association of Independent Insurers (Exhibit E).

ASSEMBLYWOMAN BUCKLEY MOVED TO INDEFINITELY POSTPONE A.B 327.

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

THE MOTION PASSED.

For the record Assemblyman Nolan arrived at 9:30 a.m.

Mr. Williams discussed the work session document "Driving Under The Influence" (Exhibit E). The document contained various bills relating to driving under the influence (DUI) of liquor or controlled substances. Mr. Williams referenced the matrix Ms. Van Geel had prepared for the committee members (Exhibit G).

Ms. Van Geel explained the work session document to the committee. The document included: Bills concerning DUI, current DUI statutes, offenses for DUI, various penalties based on whether it was a first offense, second offense, third, or subsequent offense. The yellow attachment was a table specifically for the penalties proposed by Mr. Gustavson. A.B. 196. The green attachment summarized some of the other bills that made small changes in the law. Finally the salmon document A.B. 542 discussed those changes and the purple document A.B. 559.

Don Williams said Mr. Hutchins prepared and submitted a table comparison of DUI bills – Transportation Equity Act for the 21^st Century (TEA-21) requirements (Exhibit F).

Don Williams said the first bill of the document was A.B. 196 which Mr. Gustavson had requested and was first heard on March 25. Mr. Gustavson testified the measure would make the presence of a controlled substance a violation of DUI laws. Additionally, the bill would remove the 7-year limitation on previous DUIs. The proposed amendment was the gray attachment to Exhibit E and the yellow attachment contained the penalties proposed by A.B. 196.

Assemblyman Gustavson explained his amendment was in reference to section 9, paragraph 2, of the original bill. They would be deleting the section "was not instructed," new language would read "the defendant used controlled substance in accordance with a lawfully issued prescription that the defendant cannot be showed to be impaired."

Mr. Anderson brought up the previous concerns of Judge Jay Dilworth regarding metabolites.

Assemblyman Nolan said he administered a drug program for the Federal Transit Authority, and they dealt with the issue on a regular basis. There were several prescription drugs which had metabolites similar to drugs like heroin, morphine, and cocaine. At the point where a person had metabolites in the urine or bloodstream which may be prescription or may not it would be up to a physician to contact and question the individual to determine whether or not the person had been taking a medication which may contain the same metabolites.

Ms. Ohrenschall was concerned if any consideration would be given to someone who was perhaps on a new prescription medication and had an allergic reaction and was found to be impaired because of the unusual allergic reaction.

Mr. Gustavson said she brought up a good question, but it would be left up to a judge to decide if there needed to be discretion in the courts.

Mr. Anderson commented the bill also addressed the 7-year window and removed the opportunity for plea-bargaining.

Mr. Gustavson made a final statement that the bill addressed illegally used not prescription drugs.

No action was taken.

Mr. Williams said A.B. 499 was requested by Assemblyman Brower and changed the law regarding offenders eligible for the residential confinement program. Persons who testified in support of the bill included representatives from the Northern Nevada DUI Task Force and a representative of Mothers Against Drunk Driving. Proposed substantive changes to Nevada law were addressed in the green attachment (Exhibit E).

Mr. Williams referenced a memorandum regarding the 305 Residential Confinement Program from Michelle L. Van Geel, research analyst. There were also attachments from Carlos C. Concha, chief of the Division of Parole and Probation, Nevada Department of Motor Vehicles and Public Safety, discussing statistics on the number of people participating in the program and the criteria necessary for offenders to qualify for participation (Exhibit G).

Mr. Carpenter needed clarification if the bill would prevent someone going into residential confinement when they had a DUI conviction that resulted in death or bodily harm.

Mr. Brower said he was correct, that was one of the provisions and was the last change at the end of the bill. He further stated the other changes would preclude residential confinement for those who had been previously sentenced to residential confinement for another offense in the past and those who were serving a conviction for domestic battery. Those persons would not be allowed to serve their sentence in the home where the battery had been committed. There were three basic changes in the criteria for eligibility.

Mr. Anderson questioned if the bill was to pass would the committee need to refer it to the Committee on Ways and Means.

Ms. Buckley asked if they had a road map of where the committee was going with all the bills. If the state budget had all the money in the world the committee could pass them all and add treatment and treatment programs for both drugs and alcohol. She thought the committee wanted to be smart but tough, and she wanted to have residential confinement when it worked and prison when it did not. The problem was the State of Nevada was having a fiscal crisis. There were proposals being considered by the governor for persons

who were already in prison to be released to referred to the drug court. It was an effective program and she would love to see the use of that and other alternatives to keep those people from drinking and driving.

Ms. Buckley thought it was strange to be talking about adding more people to the prison when discussion was underway to close the Jean Prison. At Cold Creek no funds existed for the guards or wire. She felt there seemed to be too many bills with too many priorities. While the committee might want to process them from a policy point of view it was a tough session to pass all of those bills.

Mr. Anderson said A.B. 559 would go to the Committee on Ways and Means and probably A.B. 542 as well.

Mr. Collins questioned if a wife was driving home from a party and the husband received bodily harm would she be liable under the bill. Mr. Brower was not sure and asked for Ms. Jacoboni’s opinion.

Judy M. Jacoboni, legislative liaison, Mothers Against Drunk Driving said of course that person would be prosecuted. In certain jurisdictions it would be at the district attorney’s discretion.

Ms. Lang said the bill was related only to those already in prison after sentencing.

No action was taken.

Mr. Williams said A.B. 559 was requested by Assembly Manendo. The bill was

heard in committee on March 31, and no action was taken.

During previous discussion Mr. Manendo testified the main focus of the bill was to reduce the legal limit for DUI to 0.08 blood alcohol content (BAC) from .10 BAC. He informed the committee 16 states already provided for the .08 BAC level.

Supporters of the measure included representatives of STOP DUI, National Highway Traffic Safety Administrative, Northern Nevada DUI Task Force, Nevada Parent Teachers Association, and a concerned citizen whose daughter was killed by a drunk driver.

Representatives of the Nevada Beer Wholesalers Association, Nevada Restaurant Association, and the Nevada Hotel and Motel Association were among those who testified in opposition to the bill. A table outlining the changes to Nevada law proposed by A.B. 559 were listed in the purple attachment of (Exhibit E.)

The bill was in conflict with A.B. 23 which was signed by Governor Guinn on March 29.

Mr. Manendo testified section 9, the penalty portion, would no longer be needed due to the passage of A.B. 23. He felt Ms. Buckley had made some excellent points relevant to the budget and a lot of the proposed bills had merit, but unfortunately the state did not have the money. He thought they should move to water down the bill a bit by just involving property damage and bodily harm applying to the .08 part of the bill which would also apply to watercrafts as well as vehicles.

He said they would just go with death or bodily harm and that would significantly reduce the fiscal note of the bill. Thus having a better chance of the Committee on Assembly Ways and Means reviewing the bill, depending on the revenues received and the priority of the committee and Governor Guinn. He believed that lowering the level was going to save lives, and he knew that was a priority of everyone and was why he and Mr. Gustavson had brought forth the bill.

Mr. Carpenter asked Mr. Manendo if there was a fiscal note for his proposed amendment. Mr. Manendo said no.

Mr. Nolan agreed with the intent of A.B. 559 in trying to keep people who were impaired off the highways. He felt there was not sufficient testimony that anyone driving with a .08 BAC was any more impaired than a person at the level of .10 BAC.

Mr. Manendo was told by a highway patrol officer they took truck drivers out of their vehicles at a .04 which might be a federal law. If they were taking people out of trucks at a .04 certainly at .08 in a vehicle was a very responsible law.

Mr. Gustavson agreed with Mr. Manendo that .04 for truck drivers was correct.

Mr. Carpenter said the Committee on Judiciary was supposed to be the policy committee and not the money committee, and he thought it was good public policy if there had been a death or substantial bodily harm and the person was at .08. He was in favor of removing the section regarding property damage.

Risa Lang said the actual wording of the bill was "property of another and injury of another."

Ms. McClain asked Ms. Lang when she said any injury did that mean it was no longer a substantial injury. Ms. Lang said it never was substantial bodily harm there was already a separate statute referring to substantial bodily harm and that would also be lowered to .08.

Ms. Buckley with regard to the issue of whether it was substantial bodily injury or any bodily injury, asked how was it addressed in 1997, and what was the recommendation of the committee.

Ms. Lang said the bill was a redraft but appeared different from the bill in 1997. The bill drafters took some liberties in improving the drafting language during the interim. The substance was the same.

Mr. Nolan wanted clarification if an individual had to fail a sobriety test prior to having a blood draw to determine what their blood alcohol level was.

Mr. Anderson said it would appear if the officer was ever in doubt, he would be able to ask for a blood draw. He did not feel the blood draw was automatic merely because there was an accident. If the officer had probable cause, then he could have a blood draw.

Mr. Nolan continued if an officer felt an individual was impaired, would he do a field sobriety test.

Captain Jim Nadeau, Washoe County Sheriff’s Office also representing Nevada Sheriff’s and Chief’s Association, said the officers had to have "signs and symptoms" and that was determined through the driving pattern, the investigation of the accident, or those types of things. If possible a field sobriety test would have been given, it just depended on the circumstances of the investigation.

Mr. Nolan further stated if no evidence of impairment was present, the officer could not order a field sobriety test.

Captain Nadeau said that was correct, there had to be something to lead them to believe the person was under the influence.

Mr. Collins voted against the motion.

Mr. Collins did not feel it was beneficial but did not mind referring the bill to the Committee on Ways and Means. "There used to be in the law the leeway for law enforcement between a .05 and a .10 that they could do all this stuff, but this going to .08 just jammed it up even worse than it was before."

Mr. Williams A.B. 542 was heard in committee on March 30, and no action was taken.

During discussion Nevada Department of Transportation and the Attorney General’s Office representatives explained the measure would bring Nevada into compliance with the Transportation Equity Act for the 21^st Century (TEA-21). Nevada would lose some of its highway funds if the measure was not enacted. Mothers Against Drunk Driving testified in support of the measure. The salmon attachment had a table outlining the changes to Nevada law (Exhibit E). He referenced Mr. Hutchins' handout comparison of DUI bills and TEA-21 requirements (Exhibit F) which would also provide information and a proposed amendment (Exhibit H).

Brian Hutchins, chief deputy attorney general, Transportation and Public Safety Division and Mariah L. Sugden, assistant chief deputy attorney general, chief counsel Transportation/Public Safety Division, referred to suggested revisions to A.B. 542 drafted by Ms. Sugden with consultation with Assemblyman Carpenter (Exhibit H).

Ms. Sugden said Mr. Carpenter had requested that the vehicle registration suspension period as it appeared in the current A.B. 542 requiring a 1-year suspension be amended and reduced to a 30-day suspension. Federal law required during the 1-year driver’s license suspension period, the vehicle registration be suspended as a method of accomplishing immobilization but not that it be for a solid year. They were in accord that it occurred during the drivers license suspension period. She continued to review the suggested revisions line by line (Exhibit H).

Mr. Gustavson said he could not support the bill, he agreed with the intent of the bill, but he believed it could be a hardship on a family if they were forced to have the registration of all of their vehicles suspended for a year. He felt it was just pure blackmail for the Federal Government to withhold federal dollars if Nevada did not pass the law. He could not and would not be a party to that type of action.

Mr. Carpenter said he thought they had done everything they could and could not argue against the blackmail part of it.

THE MOTION CARRIED.

Assemblywoman Angle and Assemblyman Gustavson voted against the bill.

The meeting was adjourned at 10:45 a.m.

RESPECTFULLY SUBMITTED:

Novella Watson-Lee,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: