The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:56 a.m., on Thursday, April 1, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was video conferenced to the Grant Sawyer Office Building, Room 4401, Las Vegas, 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 Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Senator Jon C. Porter Sr., Clark County Senatorial District No. 1, presented S.B. 481 on behalf of his friends, Daniel and Carol Grant, who lost their son in a tragic accident caused by an individual under the influence of a controlled substance.

Carol Grant, Concerned Citizen, testifying from Las Vegas, thanked Senator Porter for bringing S.B. 481 before the Senate Committee on Judiciary and thanked the committee for hearing the bill. She expressed concern about the driving under the influence (DUI) statute that is now in effect because the existing law provides for a district attorney’s office to plea bargain cases when controlled substances are involved. Mrs. Grant said on February 13, 1997, her son was killed by an 18-year-old boy under the influence of a controlled substance driving at 85 miles per hour. She continued the district attorney’s office informed the Grants the case would be brought before the grand jury for indictment. She furthered the boy who was responsible for her son’s death spent no time in jail, except for maybe an hour.

Mrs. Grant said the district attorney’s office took the information from the investigating officers to the grand jury in which she, her husband and her son’s family were in attendance. She stated after obtaining the grand jury indictment, the boy responsible for her son’s death still did not serve any jail time, and the district attorney’s office told her there was nothing that could be done about it and that was just the way things worked. She continued when she was informed of the first court date, the district attorney’s office informed her there was no way this case could be proved because there is no way to measure controlled substances in a person’s body. Mrs. Grant said ultimately the person responsible for her son’s death was charged with one count of DUI, which was a first-offense misdemeanor, and one count of felony reckless driving. She stated as a result of the district attorney’s office plea bargaining the offender was given 6 months of house arrest, probation, community service and a small fine.

Mrs. Grant questioned what it matters how much marijuana a person has in his system when it is an illegal drug. She said she checked with the states of California and Arizona and found that their DUI laws have absolutely no tolerance for alcohol or drugs when it comes to driving. Mrs. Grant testified to numerous deaths in Nevada caused by people driving under the influence of controlled substances, some of these victims she knew personally. She emphasized not only the feeling of loss of a loved one but the impact the loss has on the victim’s children and spouse. Mrs. Grant added that the person responsible for her son’s death had a long juvenile record of using and selling drugs and had just had his driver’s license reinstated 1 month before killing her son.

Mrs. Grant said she worked in law enforcement for almost 35 years, including patrol and detective bureau, using the laws on the books to do her job. She said unless a person is almost totally unconscious, it is difficult to detect that person is driving under the influence of a narcotic. She said she believes passing S.B. 481 to read "any detectable amount of controlled substance" will make all the difference in the world when it comes to the district attorney’s office prosecuting these types of cases. She stressed she is not seeking revenge for her son’s death, but wants the next family dealing with this type of crisis to have the tools they need to attain justice.

Senator Porter commented the Grants have been emphatic that they understand what happened with their son’s case regarding the statutes in place at that time, but they have committed a large share of their lives to try and help the next family that may face such a serious crime. He also took the opportunity to thank Ben Graham of the Clark County District Attorney’s Office in helping to provide the language in S.B. 481.

Daniel Grant, Concerned Citizen, testifying from Las Vegas, thanked Senator Porter for presenting S.B. 481 and thanked the Senate Committee on Judiciary for hearing the bill. Mr. Grant said he was told by the district attorney handling the case of the death of his son that it was standard procedure to treat the first two offenses of marijuana use in the State of Nevada as misdemeanors. Mr. Grant stated he did not think that standard should apply when a fatality is involved and said that he believed the previous driving record of an offender should be taken into consideration at the time of sentencing. He was emphatic that blood samples of all drivers involved in an accident resulting in substantial bodily injury or fatality should be taken at the scene of the accident.

Brittany Favor, Concerned Citizen, testifying from Las Vegas, said she believed S.B. 481 should be passed because even though some people are prescribed marijuana for medicinal purposes, those people might use it improperly. She stated in her opinion marijuana should be illegal even for medicinal purposes.

Illona Mager, Concerned Citizen, expressed her condolences to the families in Las Vegas testifying in support of S.B. 481 and said she lost her son on February 14, 1996, due to another person driving under the influence of marijuana. She said since the loss of her son she has done a lot of volunteer work with Mothers Against Drunk Driving (MADD) and goes through the court process in Washoe County with other families who have lost family members due to drug abuse. Mrs. Mager affirmed her experience has been the same as the Grants in that the current laws are not holding people accountable for their recreational drug use.

Gerard Mager, Concerned Citizen, said with reference to his son’s death that the district attorney’s office said they could not charge DUI because there is not a measured level for drugs. He continued, with regard to one particular family he and his wife had recently assisted through the court process, he heard the assistant district attorney "very nastily and matter-of-factly" tell a mother she was not the victim, but her son was the victim and she was representing her son. Mr. Mager submitted proposed amendments to S.B. 481 (Exhibit C) and a fact sheet on S.B. 481 (Exhibit D). He pointed out there are nine states which have passed laws similar to S.B. 481 and indicated three of the laws have been upheld constitutionally. He pointed out more people are killed by impaired drivers of vehicles than by bats, guns, knives and the like all put together, yet the judicial system currently allows these impaired people to drive their cars with virtually no penalty.

Laurel A. Stadler, Lobbyist, Mothers Against Drunk Driving, Lyon County Chapter, testified in support of S.B. 481. She stated this bill mirrors Arizona’s law on this issue and understands Arizona has not had constitutional or other prosecuting problems with this particular version of the law.

Senator Wiener asked if the Assembly bill on this matter was out of committee yet. Ms. Stadler replied A.B. 196 was currently pending in the Assembly Committee on Judiciary. Ms. Stadler said A.B. 196 is similar in nature to S.B. 481 but has stricter penalties for the first and second drug use offenses.

Senator Wiener suggested it might be helpful to see A.B. 196 when going into the work session on S.B. 481 and asked what would happen if both bills passed.

Chairman James said if both bills passed there would have to be a conflict amendment to reconcile the two bills. He added the penalties have to be consistent for the same offense, so both bills could not pass in their current forms.

Fred Messmann, Deputy Chief Game Warden, Bureau of Law Enforcement, Division of Wildlife, Department of Conservation and Natural Resources, said sections 7 and 8 of S.B. 481 would amend Nevada Revised Statutes (NRS) 488.410 and 488.420, respectively, which the Division of Wildlife has the primary responsibility of enforcing. He stated he had no opposition to S.B. 481.

Michael E. Hood, Colonel, Chief, Highway Patrol Division, Department of Motor Vehicles and Public Safety, said he supports S.B. 481.

David Schieck, Nevada Attorneys for Criminal Justice, said a distinction needs to be made between those individuals driving under the influence of controlled substances and those individuals driving impaired as a result of using controlled substances. He stated S.B. 481 makes it a criminal act for a person to drive if they have a detectable amount of controlled substance. He continued a drug metabolizes and remains in a person’s system long beyond the point in time of impairment. He suggested there be a requirement in the bill that the driver be shown to be either impaired or under the influence of the controlled substance before prosecution for the driving offense. Mr. Schieck said he believed this requirement would target those individuals who need to be targeted.

David S. Gibson, Lobbyist, Clark County Public Defender, said he uses prescribed controlled substances which he takes before retiring at night and although he is not impaired by the drug the following day, traces of the controlled substance remain in his system. He indicated S.B. 481 is written in a way that would make him guilty of driving under the influence when he is actually not impaired.

Chairman James said NRS 484.382 provides if a person has any detectable amount of a controlled substance in his system, that person gets his driver’s license revoked. Mr. Gibson said the state has to prove in a DUI violation that a person was under the influence of a controlled substance or that the person was impaired while they were driving.

Chairman James furthered NRS 484.382 is the implied consent law. Mr. Gibson said there has to be probable cause for the test to be given, such as bad driving, before the implied consent law comes into play. Chairman James added if a law enforcement official saw a controlled substance in a car that would give probable cause for a test. Chairman James stated a controlled substance was already described in the law, which does not include over-the-counter drugs or something for which a person has a valid prescription. Chairman James suggested adding marijuana to the list of illegal drugs described in the law and adding "any detectable substance."

Ben Graham, Lobbyist, Clark County District Attorney, said other states have enforced this type of bill and it has been constitutionally sound. He said he would be more than willing to work with the parties to craft the language in a fashion not to pick up innocent conduct.

Gemma Greene, Lobbyist, Washoe County District Attorney, echoed Mr. Graham’s comments and said the Washoe County District Attorney prosecutes cases every day involving controlled substances and driving under the influence. She stressed the cases heard earlier are not standard practice of the district attorney’s offices in this state.

Senator Care asked Mr. Graham and Ms. Greene how often they prosecute for driving under the influence of a controlled substance and what it takes to get a conviction. Mr. Graham replied that situations where individuals have dual substances in their system, alcohol along with one, two or three other controlled substances, are automatically approved for prosecution even if it involves an amount of blood alcohol lower than the legal limit. Mr. Graham continued if the alcohol aspect is not an issue and the driving is not egregious, even though serious injury has occurred, it is difficult to prove "under the influence of a controlled substance."

Ms. Greene replied she did not have statistics as to the cases Washoe County handles involving controlled substances. She said in the cases she has prosecuted oftentimes drug-recognition experts can narrow down the type of drug used depending on the reaction of the offender’s eyes and the manifestations of the mouth and nose. Ms. Greene said without those kinds of tests and without bad driving involved, it is almost impossible to prosecute those cases.

Mr. Graham added there should not be an assumption that if blood is drawn by a medical technician that blood is going to be tested and admitted as evidence in any criminal proceeding. He stressed that procedure is not automatic by any means. Senator Porter asked if Mr. Graham was referring to alcohol also. Mr. Graham replied yes, drawn by the medical technician for medical reasons. Mr. Graham furthered if the request is made by the police officer to withdraw blood for evidentiary value, those tests are admitted as evidence.

Senator Porter said there is a lot of emphasis on alcohol-related accidents, fatalities and surrounding circumstances, and there are certain tests required if there is a suspicion of alcohol. He asked what steps law enforcement is currently taking if there is suspicion that some type of controlled substance is involved. Mr. Graham said the law enforcement community is testing if there is suspicion of controlled substance involvement. Mr. Graham continued sometimes bad driving will occur and the test will come back alcohol-negative whereby the district attorney’s office will retest for controlled substances.

Senator Porter asked what the points are of suspicion for alcohol use. Mr. Graham said slurred speech, the smell of alcohol, bloodshot eyes, and the like. Senator Porter asked if there were any requirements to check for alcohol use other than suspicion. Mr. Graham replied no, he did not believe so. Senator Porter asked if it was easier to equate alcohol than controlled substances as to how much was in someone’s system several hours before testing. Mr. Graham said it is easier to equate alcohol because more studies have been done with regard to alcohol and law enforcement has had more experience with alcohol abusers.

Senator Porter pointed out there is more known about alcohol use because society has demanded more study in this area. He asked what could be done to insist on more studies regarding controlled substance use. Mr. Graham replied this hearing was a step in that direction. Senator Porter indicated the same arguments being made now regarding controlled substances could probably have been made when the laws were being created regarding driving under the influence of alcohol in that cough medicine contains alcohol.

Senator Wiener asked if there are some substances which cannot be detected through testing. Mr. Graham replied there are certain things that are looked for in drug testing and some things are missed. He added new tests are always being developed to pinpoint new drugs.

Senator Care queried the policy of the district attorney working with a family member of a DUI or controlled substance fatality victim before making the decision to plea a case down. Mr. Graham replied he finds this an extremely emotional area and his office has a special unit of three attorneys who do nothing but prosecute DUI charges and make every effort possible to attain a successful prosecution. Mr. Graham added it is a responsibility of the district attorney’s office to try to hone down laws to serve the needs of society and the concerns of the victims.

Ms. Greene echoed Mr. Graham’s statements and added her office does not have a specialized DUI team, but does have a specialized domestic violence team of which she is a member. She said it is standard practice, especially with a sensitive case involving a death, that whatever decisions are made regarding the prosecution, each prosecutor is responsible for contacting the family to let them know the direction the case is taking and why.

Chairman James said NRS 484.385 would probably be helpful in working out the language in S.B. 481. There being no further testimony, Chairman James closed the hearing on S.B. 481 and opened the hearing on S.B. 421.

Samuel P. McMullen, Lobbyist, Retail Association of Nevada, said the issue of smoking in grocery stores has become larger every year for the past decade. He pointed out areas relating to gaming in grocery stores needed a consistent state policy which the Retail Association of Nevada could support and added this policy has been set forth in S.B. 421. Mr. McMullen submitted pictures of current open gaming areas and proposed gaming areas in alcoves (Exhibit E). He said part of the Retail Association of Nevada’s commitment is to try and remodel the old stores to include relocating the gaming machines and/or enhance ventilation for smoke removal. Mr. McMullen stressed the Retail Association of Nevada is trying to alcove the gaming areas in existing grocery stores without severely disrupting the stores economically, but allowing the stores to accomplish this in a reasonable fashion.

Senator Care asked if there are any grocery stores in Nevada in excess of 10,000 square feet. Mr. McMullen said S.B. 421 would only affect newly constructed or remodeled stores.

Mary F. Lau, Lobbyist, Retail Association of Nevada, said Fred Meyers was the purchaser of Smith’s and is a member of the Retail Association of Nevada which is committed to S.B. 421.

Jim J. Avance, Lobbyist, Cardivan Co., said he supports S.B. 421.

Peter D. Krueger, Lobbyist, Nevada Petroleum Marketers and Convenience Store Association, stressed that customer needs are being taken care of in the older stores with regard to increased ventilation to clear the smoke from gaming areas. He said the average convenience store is about 3,500 square feet, so in that limited space areas are being defined for the seven slot machines under restricted gaming. He continued the new facilities are being designed with ventilation in mind, as well as gaming areas away from the doors.

John E. Jeffrey, Lobbyist, Brown and Williamson Tobacco Company, and Lorillard Tobacco Company, said a lot of the controversy surrounding public smoking can be taken care of with proper air conditioning and ventilation and that he supports S.B. 421.

Chairman James thanked the industry for bringing forth the bill. There being no further testimony, Chairman James closed the hearing on S.B. 421 and adjourned the meeting at 10:25 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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