The subcommittee meeting of the Senate Committee on Judiciary was called to order by Chairman Maurice E. Washington, at 8:07 a.m., on Thursday, March 25, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Maurice Washington, Chairman

Senator Mike McGinness

Senator Terry Care

STAFF MEMBERS PRESENT:

Laura Adler, Committee Secretary

OTHERS PRESENT:

Chairman Washington reviewed the various sections of the bill and the proposed changes in the Summary of Proposed Amendments (Exhibit C).

Annie Rees, Lobbyist, Nevada Bail Agents Association, said she would like to explain the entire removal of section 5. She said court services in Washoe County provided numbers regarding their ‘failures to appear’ (Exhibit D). Ms. Rees continued that it became apparent the language in section 1 through section 2, subsection 1, paragraph (b) would have no effect on anything. She iterated the problem was not the people released on their own recognizance (OR) by the court services, because their failure to appear was only 9 percent, which for the industry of court services is an excellent number; the problem was with the judge’s referral. She said that means those people who should not have an OR who are in jail until they go before the judge, and the judge ORs them against the recommendation. Ms. Rees emphasized those numbers are 26 percent; one in four of those people fail to appear. She said the language as written to give the judges discretion would have made no difference based on the percentage of no shows. She pointed out the language in section 1 says it does not apply to a judge in open court, and the 26 percent of ORs were before a judge in open court. She conveyed that she is waiting for the OR numbers from Clark County, for comparison. Ms. Rees said if someone was out on bail they would not be on OR unless the bond was exonerated, because it puts an added risk in the bill.

Chairman Washington asked Gemma Greene if she had any problem with that section remaining in place. Gemma Greene, Lobbyist, Nevada District Attorneys’ Association (NDAA), stated that NDAA was opposed to section 5, so there is no objection to removing section 5.

Chairman Washington read the new language for section 5 (Exhibit C). Ms. Greene stated NDAA is opposed to the bill in its entirety regardless of any new language.

David S. Gibson, Lobbyist, Clark County Public Defender (CCPD), stated he, too, is opposed to the bill.

Senator McGinness commented it would be helpful to the committee if those who are opposed to S.B. 273 could elaborate on the reasons for opposition.

Chairman Washington asked that those who are testifying direct their explanations to section 5, which is the present topic.

Ms. Greene iterated the NDAA is philosophically opposed to the bill because they think OR release works. She said OR is a mechanism to release individuals who have been arrested for either nonviolent offense or they do not have a long criminal history. The court services people, employed by and answerable to the court, have guidelines for OR. She said it is a mechanism to cure jail overcrowding. Ms. Greene elaborated that if everyone who was arrested had to stay in jail, the jail would not have enough beds for everybody and the cost to the counties would be tremendous. She stressed NDAA is in favor of OR, and noted that Washoe County OR figures presented by Ms. Rees bear out that court services does not have a problem. She felt the percentage figures would be similar for the other counties. She emphasized NDAA is opposed to anything that would take away the discretion of the judiciary, which this bill would do, and anything that exonerated the surety when they have contractually assumed a risk of the defendant’s appearance in court. She said court services do not oppose bail bond people finding the people who fail to appear instead of court services because that saves the state money. She noted if the person is on OR again, it may mean it was because they were a good candidate on the first charge. She said just because someone is arrested again and gets an OR, does not mean they are more of a risk to the bail bond person and their surety should be exonerated.

Mr. Gibson interjected that it is unknown as to what kind of a rippling effect this bill will have. He added the whole system is based on the fact that someone else is taking the risk, other than the court. He said the CCPD is against further restricting the judge. A lot of people do not understand that if they have a $1,000 bail, and paid the money, they would get it all back when the case is over. That money is paid, the percentage is paid and the bondsman keeps it. He said if there is further restriction on the discretion of the court having them exonerate one bond if they give another OR, it adds another change as to what the judge considers. There is already a program in place to determine whether or not someone is eligible for OR. The new language would restrict a judge’s discretion in determining when and when not to set bail. There is no way to say that one charge has anything to do with the other, because the nature of each charge is different. When there is a new charge it may be that the community is not threatened, it is a charge where the court does not think the person is at risk to flee. The person posted bond on his own in the first case, he did not leave but did something that was another status offense, and the policy at the jail is when they are charged with this type of a crime they get another OR.

Chairman Washington noted, given an understanding of the language, the entire section 5 could be deleted. Deleting section 5 still gives the judges their discretion, they could still decide what they want to do. He said his understanding with the new language is if the perpretrator is released on a surety bond, then rearrested and the judge decides to release him on an OR, the surety people are asking to be released from that bond. What is being said is if there is a lesser charge or lesser crime, the bond should still be in place, whether he is on OR or not.

Mr. Gibson stated the reality is he has clients who get arrested on one charge, and post a bond and get out. He said someone who has posted a bond is discovered to have a prior OR; for something the judge would have given an OR on originally he now has to exonerate the bond. Mr. Gibson did not think that was fair to the court, and the courts are against it.

Ms. Rees stated there are employers, mothers, grandmothers, people in the community who have put up their word, their home, their car, or pledged something for this person. Quite frequently the bondsman is approached by these people where they have bailed out this person thinking they are a reputable person, they believe it is a one-time incident that has happened, and now the person has been rearrested for another charge. It increases the risk on the bond, it increases the fact that now people with two or three charges against them may be looking at more time should they be found guilty, so it does increase the risk that they may flee. The cosigner has some rights as to what they have agreed. They agreed to watch the person and be responsible for the risk of one incident, not two incidents. She said those people do have a right by the Nevada Administrative Code (NAC) pursuant to the bail bond industry that if someone commits another crime or is arrested for another crime while out on bail, we have the right to surrender them. So bondsmen could, in fact, apprehend and surrender the perpetrator, which quite often bonds people do when the cosigner indicates they did not sign up for a rearrest, they did not know how serious it was. Ms. Rees stated other verbiage such as, if the person were arrested on another charge of an equal or greater degree of seriousness, then the bond risk or liability of the bond for the cosigner may only increase a little. However, a greater charge would increase the risk. She said her responsibility is to protect the bond and the indemnitor.

Senator Washington queried the defendant who is arrested, is placed on OR and flees, if the bail bondsman is still on the hook for the bond.

Ms. Rees affirmed that was correct. If he is fleeing he is going to be fleeing on our case too, he certainly is not going to be showing up on our case.

Mr. Gibson said the bondsman can surrender someone, they do not need other language. He said a judge would not OR on robbery, battery with a deadly weapon, or anything that is a Category B felony, a person is not going to be placed on OR on another Category A or B felony, or probably not even a Category C felony. The person may get an OR for possession of a controlled substance, which they pretty much give to everybody, but not placed on OR on another crime where violence is involved. The point is any person who puts up a bond for one individual can take that person in and exonerate the bond anytime they want to, they are not restricted from doing that. If the cosigner has any thought in mind there is a risk, they can exonerate the bond. He said this bill is not necessary.

Senator Washington observed that the only risk there seems to be is the indemnitor, and the surety bond itself. If the judge placed the individual on OR then they are the ones that are on the hook, so the bondsman has to make the decision as to whether or not to bring them back regardless of whether the language stays or goes.

Ms. Rees stated the point is it gives the defendant a better opportunity to run. This person has been arrested, jailed, placed on OR on another charge, and the bondsman knows nothing about it. Once that person is on OR it is very easy for them to leave. The bail bondsman has no knowledge, the cosigner has no knowledge, and it gives the person one up to run. She observed Mr. Gibson is right, the bondsman can find the defendant and bring him back, but the cost of finding the person falls back on the indemnitor.

Chairman Washington stated he would put a hold on section 5 for now and move on to the other sections of the bill.

Senator Care said his juxtaposing the deletions in section 10 with a fax he received from Richard Bimbo of Las Vegas Municipal Court. He wondered if Ms. Rees or anyone else would join in to see if the objection would still be valid. He said Mr. Bimbo wrote "… regarding section 10 the judge’s discretionary powers to excuse the charge of failure to appear under reasonable conditions is prohibited. For example, a defendant is represented by an attorney who misses the court date due to a conflicting schedule, and a failure to appear is automatically entered against the defendant. In such cases the attorney contacts the court and explains the situation resulting and the judge quashes the warrant. In S.B. 273, section 10 does not allow for this discretionary judgment by the court. The defendant is guilty of failure to appear due to the attorney’s action, no extension is allowed the defendant for reasonable explanation." Senator Care wondered if that explanation would be valid with this deletion.

Chairman Washington reminded the senator that the entire old language is being deleted, except for subsection 3, paragraph (a), which is where the language changes from "180 days" to "any reasonable period set by the court."

Mr. Gibson commented Senator Care raises a good issue. For instance, in the outlying areas of Clark County it is not unusual for a defendant to not be present for most of the proceedings, even guilty pleas are often entered by mail, and bond is posted. There are situations where the defendant’s presence is waived because of different issues and actions that can be taken, and the defendant’s presence is not required. He said when the defendant’s presence is required, he can call the court with explanation, the court verifies the reason as fact and the court will waive their presence. That is the purpose of the language in section 10. Mr. Gibson noted in subsection 1, section 10 "not excused" is crossed out with "direct the fact that such failure to appear be entered." He noted to require the court to do anything other than what it already does is treading on the court’s discretion and the judicial rules, and he is not sure that can be done.

Chairman Washington wondered with the new language in subsection 3, paragraph (b) "any reasonable period set by the court," if the discretion is still there.

Mr. Gibson said as he reads subsection 3, paragraph (a) it does not have anything to do with subsection 1, which talks about forfeiture. He noted that subsection 3, paragraph (a) is after someone has failed to appear, and has nothing to do with preliminary changes. He stressed there are good reasons to have the language in the Nevada Revised Statutes (NRS) 178.508, and he cannot see a good reason to remove the language.

Ms. Rees noted in subsection 1 where "and not excused" has been deleted, does not pertain to the times when a defendant does not have to be present in court, when the defendant’s attorney appears on their behalf, this frequently happens with tourists. She said it refers to when the defendant is told they must be in court at a certain time, on a certain date. She said it has been her experience that often the defendant making the excuse is not telling the truth. What is actually occurring is the defendant is on the run and is buying time. She stated that should be considered a failure to appear.

Ms. Greene said NDAA liked the way the bill read prior to all the amendments, because it gave the court a certain time frame in which things should happen. She said if we start tinkering with the language in section 10, subsection 3, paragraph (b), by substituting "any reasonable period," there could be different dates on every case. There would be no uniformity, it would turn into a bureaucratic nightmare.

Ms. Rees said she had a problem with that, and in particular with subsection 1, paragraph (b), of section 10. If a person fails to appear, a warrant should be issued. She said quite often no warrant is issued for the arrest of the defendant, and the bondsman has to have that warrant before they can take any action.

Ms. Greene stated she was asking the committee to keep NRS 178.508 intact, do not amend.

Steven W. Driscoll, Lobbyist, City of Sparks Municipal Court, said in section 10, subsection 1, paragraph (b), the problem is greater than stated. He said the fact that there is a warrant out does not mean anything unless the warrant information is distributed on the State Criminal Justice Information Database. He noted that there are numerous jurisdictions throughout the state, but the criminal justice database is not updated in a timely manner. He stated because that does not happen, if there is a warrant out of a northern jurisdiction, the south may not know it exists. The court may release a defendant without knowing there is an outstanding warrant. He emphasized that just by adding this particular piece will not satisfy Ms. Rees’ concern. Unless that warrant is broadcast so all law enforcement agencies in the state know the warrant exists, it is just another piece of paper.

Ms. Rees added that many times the warrant is not in the database, but the bondsman has a certified copy of the warrant from the judge’s bench. That certified warrant copy is what is needed to legally bring back a defendant from California, and many other states are now asking for that copy.

Chairman Washington noted in section 11, subsections 3, paragraph (b), and subsection 3, paragraph (c), subparagraph (4); section 12, subsection 1, paragraph (d); and sections 13 and 14 are being deleted and there is no replacement language.

Ms. Greene addressed section 11. She said that what was left is subsections 1, 2, and 3, including paragraph (a). She stated NDAA would object to those changes as well.

Ms. Rees noted in section 11, subsection 2, it says the bail bondsman has to be notified by certified mail if the defendant fails to appear. She said she believes what was originally wanted was to take out most of the changes except for "has been deported" (section 11, subsection 3, paragraph (c), subparagraph (6)).

Chairman Washington noted on the work document subsection 2 had to stay because that is existing language and the committee is confined to that. But the rest of the language has been deleted.

Allison Combs, Committee Policy Analyst, Legal Division, Legislative Counsel Bureau, stated the document refers to two deletions in section 11, the new language in subsection 3, paragraph (b), and subparagraph (4). She said if she understands Ms. Rees correctly, the new language other than deportation can also be deleted, except for subsection 2 which is current law.

Mr. Driscoll said the phrase starts, "… The court does not issue a warrant for the arrest of the defendant within 30 days …" that language would come out.

Mr. Gibson stated they are going back to the original language, except the only new thing that would be in section 11 is, "has been deported."

Chairman Washington stated in section 15, subsection 3, paragraph (a), the language "At the time that a judgement is entered" has been deleted, and new language "At the time that a finding of guilty or not guilty for a Category A or Category B felony is entered."

Mr. Gibson inquired if it meant at the time of entry of judgment or did it mean at the time of a finding of guilt. Senator Washington responded at the time of entry of judgment, at the end of the case.

Ms. Greene stated as she recalls it was at the time a judge or jury finding the defendant guilty, and that was not the time of the entry of judgment.

Chairman Washington said this is not talking about the entry of judgment, just about a finding of guilty or not guilty.

Ms. Greene stated it was at the conclusion of a trial or the entry of a plea of guilty, at that point the defendant is taken into custody.

Mr. Gibson stated the CCPD is opposed to the discretionary action by the court. He said, generally speaking, on a Category A or B felony the judge does actually take the defendant into custody at the time a jury gives its verdict. However, this bothers him as a public defender because if his clients are out on a Category A or B felony, generally there is a good reason for it. He said he thinks this should be contractual with the bond company and the person who is out on bond. The bond company feels the person would be a greater risk if the jury comes back with a guilty verdict, then the person who puts up something in order to get the bond should be made aware of that in the contract; that is a contractual issue. He said the discretion of the court should not enter into this. If the judge at the time the jury comes back with a guilty verdict, says he thinks this person is a flyer he will put him in jail. He said his opinion is if there is a bond for somebody, then the bond is intact until the judge decides there is a risk, and puts the person in custody and exonerated the bond, or by contract, but not by statute.

Ms. Rees commented that Category A and B felonies are serious matters, and the bond people do underwrite every bond or they would not be in the business very long by the fact their client could run at anytime. She said bondsmen automatically assume every person they bail out is going to run. She said the cosigners they deal with believe in the person, and so must the court for those times they issue a bail on a Category A or B felony. She said once that person is found guilty on a Category A or B felony offense, they are looking at some serious jail time, and at that time the defendant should go back into custody. She noted there is a provision that says they could issue written consent. She said the attorney and the cosigner would have to indicate they are willing to take the risk even though the person has been found guilty and is looking at 20-plus years. The judge has indicated a willingness to let this person out for up to 6 weeks while the presentencing investigation is going on, then she thinks the bail bond people can do it.

Ms. Greene commented she is not wedded to the language, but if something were to be changed it should be done to the Category A and B felonies. She said that Category A penalty is up to life in prison, or the death penalty. She noted that if someone were in under that kind of a charge, they probably would not be bonded in the first place. This would be a recognition that when the person is actually found guilty that they know the kind of sentence they are facing, that is when the flight risk becomes more evident. She said they do not want to step on the discretion of the court, and they recognize that very few cases are actually admitted to bond a Category A conviction. She said there is a possibility the defendant is already on bond and not in custody and has made all their court appearances. She noted that at the conclusion of a trial and the entry of a plea, the district attorney can always ask to take the defendant into custody pending presentencing investigation in sentencing, however, that is discretionary with the court, and she has no objection in leaving it as discretionary.

Mr. Gibson suggested adding language that at the time the bond companies write a bond for a Category A or B felony, that there is a waiver for the people who post the bond to sign acknowledging that it has been explained the bond is only good until the finding of guilt by a jury, rather than at entry of judgment when a case would be over. The cosigner believes they are paying for a bond that is going to be good until the case is concluded, and the case is not over until the judge says he is entering a finding of guilty. He said between the time the defendant is found guilty and the time of their sentencing all kinds of things can happen. The judge may not agree with the verdict, other information may surface that nullifies the verdict. It is not fair to the people who may have mortgaged their property to suddenly have their contractual obligation with the bond company concluded. Even if the person does not flee, there is still some money that has to be paid.

Ms. Rees commented that it is still the judge’s discretion. She said she could guarantee that once that person is found guilty on a Category A or B felony, the cosigner is right there panicking about losing their property. She stated it is still up to the judge’s discretion to not lockup the defendant during the presentencing phase of up to 6 weeks. At this point it does not hurt anything to exonerate the bond. She stated the people sign papers that say, "at any time," if it looks like this person is going to run or it looks like there will be a problem, that person could be surrendered to custody.

Mr. Gibson stated the person would be in court and can ask the judge to exonerate the bond. He said when the jury comes back with a guilty verdict, the bond company can stand up in court and say they do not want to bond the defendant anymore and the judge can take the defendant into custody. He said bond exoneration is not needed in the statute.

Ms. Greene pointed out that it is not written as discretionary at that point, it is written as "the judge shall exonerate the bond upon this condition." She added to make it truly discretionary then "shall" should be changed to "may" on page 12, line 3. Chairman Washington noted that was existing language.

Ms. Rees voiced her objection that was the problem with the law now, everything is "may." She said the word "may" makes it very difficult when trying to get something done before a judge. She said what is wanted is to have the bond exonerated.

Chairman Washington commented he did not think it was the subcommittee’s purview to change existing language. He stated that is a decision for the full committee. He stated that right now the subcommittee is just going to vote the amendments up or down. Chairman Washington noted the insertion in section 16.

Ms. Rees explained when looking for a defendant, the bondsman must have a certified copy of the undertaking. She said that can be difficult to obtain, at times. For example, in Las Vegas it can take anywhere from several days to a couple of weeks to obtain a certified copy. She noted that should a problem arise on a weekend there is no access to the court. She said this is why the "or" has been added for a certified copy "or" written authorization from the surety company as the local agent to the person who is picking up the defendant.

Ms. Greene interjected that was language provided by the district attorney’s office. Mr. Gibson added that was a good idea and had no problem with it.

Chairman Washington stated they would go back through the worksheet and vote. He said he would consider motions on the noncontroversial sections first.

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Chairman Washington stated the document will be presented to the full committee with the understanding the full committee is not obligated to all of the recommended amendments. Chairman Washington closed the hearing on S.B. 273.

There being no further business, the meeting was adjourned at 9:11 a.m.

RESPECTFULLY SUBMITTED:

Laura Adler,

Committee Secretary

APPROVED BY:

Senator Maurice E. Washington, Chairman

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