The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Tuesday, April 6, 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 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:

Silvia Motta, Committee Secretary

OTHERS PRESENT:

Alfredo Alonso, Lobbyist, Nevada Resort Association

Pat Hines, Concerned Citizen

Ben Graham, Lobbyist, Clark County District Attorney

Chairman James opened the hearing on Senate Bill (S.B.) 512.

Robert Crowell, Lobbyist, Nevada Judges Association, clarified the bill was requested by the Nevada Judges Association and the justices of the peace. The measure will allow a justice of the peace or a marriage commissioner to be able to accept gifts or donations, and collect a $35 fee, when performing a wedding ceremony. He established that the marriage ceremony guidelines and the $35 fee are set forth in the Nevada Revised Statutes (NRS).

Robey B. Willis, Lobbyist, President, Nevada Judges Association, and Justice of the Peace, Department 1, Carson City, explained that in the 1993 Legislative Session a law was passed allowing justices to perform marriages again. Apart from commissioner townships; Lake Tahoe, Incline Village, Clark County, Laughlin and Mesquite are the only areas permitted to collect the set fees and accept gifts. He pointed out that the judges of rural areas in the state are most affected by the current law; not only are they precluded from collecting the $35, they are prohibited from performing more than 20 marriage ceremonies per year. He mentioned in some instances the wedding party insists on sending gifts, not realizing the imposition to the judge who could be brought before the Commission on Judicial Discipline if a gift is accepted.

Judge Willis expanded up until now some of the judges have had to travel on weekends or after hours to another town or city just to perform a marriage ceremony, without the ability to collect for the services rendered. He also said that presently when any gift is accepted, it is reported to the Nevada Supreme Court on a yearly basis. He clarified the state’s revenue would not be affected since the $35 fee already exists in the statutes. In addition, he noted that the two-thirds majority vote requirement might not apply in this matter since there would be no increase in the revenue.

There being no further testimony, Chairman James closed the hearing on S.B. 512 and then opened the hearing on S.B. 513.

Anne Cathcart, Special Assistant Attorney General, Office of the Attorney General (AGO), spoke about a letter addressed to the committee from the Nevada attorney general’s office, dated April 5, 1999 (Exhibit C), which explains the basis for the proposal. She said the measure (S.B. 513) originated from a Clark County ordinance (CCO). While the ordinance may only apply to Clark County, the new proposal could be implemented statewide. Senator Care asked if "under the age of 18" was reflected in the CCO. Ms. Cathcart responded to the best of her knowledge, the age of 18 is part of the guidelines under the CCO. She pointed out on page 1, section 4, of S.B. 513, the definition of some of the language, such as "arcade" as an area intended for the use of machines and small game rooms, meaning an entire separate room area. She recognized the bill might need additional modification to be consistent with the CCO. Suggestions were made on page 3, section 8, of the bill, for the word "either" to be included for the arcade operators’ option to implement the proposal outlined on paragraphs (a), (b), and (c), section 8, of S.B. 513. She stated the clear intent of the bill is to ensure some level of monitoring for children under the age of 18 in the arcade areas of a gaming establishment or business.

There was general discussion of the manner in which the bill was written on page 3, section 7, that could be misleading when read. Chairman James voiced concern about the exceptions set forth in the bill, such as the protection of children visiting from another state; furthermore, it would be impossible to identify in an arcade room, which children would be hotel guests. Senator James remarked that parents should bear the responsibility of not leaving their children in unsafe places. Referring to section 8, line 38, Senator Washington asked if the cost for training was incurred by the employee or employer. He also asked for the definition of "training in security measures." Ms. Cathcart had no knowledge of the definition, nor could she address the specific training that is required. Senator Porter concurred with Chairman James that the responsibility lies on the parent to monitor their children and on the establishment to properly display safety notices.

Amy Halley Hill, Lobbyist, Retail Association of Nevada, drew attention to some of the minor differences between the bill and the CCO; i.e., statements of arcade or game-room operators relinquished from responsibility or becoming the legal guardian of a child within the arcade area. Chairman James added the bill may give a false sense of protection for children. He had reservations about the current proposal, where no one, under special circumstances, would be held liable; whether an establishment would comply with the standards set forth, or the laws would be enforced. He estimated it would be impossible to identify in an arcade room which children are local and which are from outside the state, or the estimated time spent in the game room. Ms. Hill agreed with the problems addressed regarding S.B. 513.

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, expressed apprehension for the uncertainty and rationality of the bill. She referred to the dates implied on the proposal as based on the traditional school calendar, which is no longer in effect since many schools currently operate on a year-round school program. She pointed out the bill does not appear to apply to Nevadans who travel and may be hotel guests. She stated the measure would impact children the most, when children are not permitted in the arcade after certain hours of the day; especially those children without parental control, who may appear somewhere less favorable like the streets.

Robert R. Barengo, Lobbyist, Amusement and Vending Operators of Nevada, stated the bill is cited in chapter 207 of NRS, Miscellaneous Crimes; in fact, it would apply statewide. He related concern for the effect on the small businesses, which maintain less than 25 game machines in an enclosed area and are not casino operators. He added the bill seems to place a statewide curfew on minors, who could be apprehended by local law enforcement for not meeting the requirements outlined on S.B. 513.

Alfredo Alonso, Lobbyist, Nevada Resort Association (NRA), recognized that S.B. 513 would need clarification to concur with the Clark County ordinance. He stated the NRA would make every effort to collaborate with the Office of the Attorney General to amend the bill. There being no further testimony, Chairman James closed the hearing on S.B. 513 and opened the hearing on S.B. 515.

Kevin C. Powers, Senior Deputy Legislative Counsel, Legal Division, Legislative Counsel Bureau, offered a general overview of the bill. He spoke of the basic changes to the existing laws regarding registration and community notification of sex offenders. He indicated several state agencies have requested some adjustments for the proposal to allow procedural modifications from the original bill, Senate Bill 325 of the Sixty-ninth Session, which was enacted in 1997. He spoke of the amendment from a United States Congress appropriation’s act of 1998, which made specific changes to the "Jacob Wetterling Act," and of the United States Department of Justice adopting its final guidelines interpreting the "Jacob Wetterling Act." He stated the federal act and federal guidelines clearly have set requirements for registration and notification. Any of the new elements added to the S.B. 515 provision were drafted to meet the minimal requirements of the federal laws.

Mr. Powers outlined some of the components changed in the federal law and the requirements for sexual offenders to be registered under chapter 179 of NRS. Such offenders are nonresidents, but travel frequently to the State of Nevada to attend school or work, or may only enter residency for 48 hours or less. He stated the federal law requires other states to adopt registration programs that cover, in addition, nonresidents who come into the state on a regular basis, and clearly maintains that certain offenders cannot terminate their duty to register. He noted several changes were made to the definitions, as in "sexual offense" and "sexually violent offenders." He added, originally the "Jacob Wetterling Act" applied to any sex offender resident, which was consistent with Nevada laws before Senate Bill 325 of the Sixty-ninth Session was introduced.

Senator Wiener made reference to page 19, line 34 of the bill, "sexual penetration of a child less than 12 years of age," questioning the consenting age of 16, and the type of protection for children between the ages of 12 to 16. Mr. Powers replied that under this provision the ages 12 to 16 would not be consensual; that it would be considered statutory sexual seduction, especially if the child were 13, 14 or 15 years of age. He offered anyone who commits an act of statutory sexual seduction, statutory rape or is convicted for such an offense, may not be considered a violent sexual offender, but would be subject to lifetime registration.

Mr. Powers summarized pursuant to subsection 5, page 26, line 3 of S.B. 515, where the bill provides that "a sex offender may not file a petition to terminate his duty to register." He concurred that the offender would be subject to prenotification or lifetime registration, if declared to be a sexually violent predator, or has been convicted of one or more violent sexual offenses.

Carlos Concha, Chief, Parole and Probation, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, introduced Exhibit D, a list of highlights on S.B. 515, NRS chapter 179D and specific aspects of impact towards the parole and probation division. He stated the parole and probation division has successfully tracked and registered a number of sex offenders statewide, 1000 alone in Las Vegas, by mailing a notification and advising them to register. A request for additional staff to locate and process unregistered sex offenders has been made through the current session. He admitted many more are still to be located, especially those offenders that are reported coming from other states.

Chairman James inquired about the number of stages and levels among the 1000 sex offenders registered in Las Vegas, and how many were actually monitored by the parole and probation division. Mr. Concha responded approximately 300 to 400 sex offenders are under the direct supervision of the parole and probation division. He explained that out of those 1000, many sex offenders come into Nevada and register, but end up leaving the state within 7 to 10 days. He further explained that when the sex offender comes from another state, the parole and probation division establishes a level of cooperation with the state of origin and local law enforcement agencies, while the documents and research are being completed. Chairman James asked how many sexually violent predators were being monitored in the State of Nevada. Mr. Concha replied he was only aware of one. Chairman James noted the same record average of sex offenders has been maintained throughout the state of Nevada for the last 5 to 6 years, since the original law was enacted in 1993 and refined in 1995 (S.B. 192 of the Sixty-eighth Session). Mr. Concha concurred and added, consequently S.B. 325 of the Sixty-ninth Session was adopted.

Senator Titus asked if any of the laws, previously mentioned, had helped to reduce sex crimes other than knowing a sex offender’s whereabouts. Mr. Concha established that the sex offender registry had become an informative tool for law enforcement agencies to discover how, where and what type of sexual crime has been committed; essential information that is utilized to investigate and prosecute sex offenders.

Dennis DeBacco, Supervisor, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol Division, Department of Motor Vehicles and Public Safety, emphasized the benefits of the registration program. He gave an example of a sexual assault crime from Las Vegas, where a photo lineup of a certain criteria of known sex offenders was produced for a victim. The victim was then able to identify the individual that had assaulted her. He iterated that up until the sex offender registration program, there had been no consolidated resources of information pertaining to sex crimes to assist law enforcement or the state’s repository.

Mariah L. Sugden, Assistant Chief Deputy Attorney General, Transportation and Public Safety Division, Department of Motor Vehicles and Public Safety, recalled an incident where the district attorney (DA) of a rural county from Nevada, who had requested a formal attorney general opinion while in the process of registering a juvenile as a sex offender. She explained the individual, who is now an adult and had relocated to the State of Nevada, was previously adjudicated for an attempted child rape case in the State of Washington. Meanwhile, the DA was not able to find under chapters 179D or 62 of NRS, where the juvenile would be subject to register. She added, the juvenile did not quite meet the definition of sex offender for the purpose of adult registration or community notification, nor had the due process under NRS 62.435 for juvenile adjudicated as delinquent in the state of Nevada been completed. Ms. Sugden referenced sections 19, 30 and 31 of S.B. 515, describing that those sections redefine sex offenders under NRS 179D.400 and expand the definition of sex offense under NRS 179D.410. She drew attention to page 27, section 42, expanding the definition "sexual offense" under NRS 179D.620, for community notification purposes. She admitted having inadvertently omitted to expand the "crime against a child" definition, to include an individual who would be an adjudicated delinquent outside of the state, or the definition of kidnapping or false imprisonment of a child. Ms. Sugden offered an amendment for NRS 179D.210 and section 17 on page 9 of S.B. 515 (Exhibit E).

Pat Hines, Concerned Citizen, testified as a representative of Nevada Citizens United for Rehabilitation of Errants, a national organization. She expressed opposition to the telephone and electronic use of the website made available to the public to obtain information regarding sex offenders. She stated she was concerned for the need for psychosexual evaluation on convicted sex offenders. However, she classified the evaluation as a good tool for court judges to make adequate sentencing. She called attention to the "psych panel" evaluation prior to release, or better known as the "certification panel." The panel includes the warden from prison, the director of mental health and mental retardation, and a psychologist. She iterated the three people on the panel are not properly trained or licensed in the psychosexual field, nor is it required under the laws, nor is it a common practice in Nevada’s prisons. Ms. Hines suggested an investigation would be appropriate. In regards to the "website surveillance," Ms. Hines encouraged the committee to consider changing the language on line 33, section 9, subparagraph (4) of S.B. 515, to release the information to the general public only in person rather than through the website or telephone. Then she made reference to the bill on page 9, section 9, subsection 2, and insisted the requestor’s personal identification be verified to ensure that the person on the phone or website is whom they claim to be. She asked that sexual offenses be recognized as a behavioral problem similar to drug and alcohol abuse. She concluded that there are many sex offenders who are trying to be law-abiding and productive citizens, but may not have the opportunity to rehabilitate due to the fact that the sex offender’s information is accessible to the public.

Chairman James clarified that psychosexual evaluation would be for individuals with a certain prison term; allowing for an evaluation prior to release, where experts would find out the individual’s mental state. He reiterated the objective is to allow someone who is sentenced to prison to be evaluated while serving a sentence, especially if they are being considered for release. The judges have the authority to evaluate a person and observe if offenders have any psychological problems that would require additional treatment, and whether they should not be placed on probation or on a suspended sentence. He stated, the substance of the bill is required by federal law under the "Jacob Wetterling Act." He stressed the private citizen needs to have some type of access to the sex offender’s information, in the event that citizens would have to protect themselves from sexual predators. He also said that the notice requirements and the information released to the public with caution are according to constitutional laws.

There being no further testimony, Chairman James closed the hearing on S.B. 515, and opened the work session on S.B. 481.

Ben Graham, Lobbyist, Clark County District Attorney, said this bill raises a problem affecting people who are legitimately taking prescription drugs; who would not necessarily be considered under the influence of a control substance while driving. Unlike alcohol, where odor is easily detected and a test can be administered routinely, no analysis results can be obtained in a short period when dealing with controlled substance tests. Senator Porter emphasized strongly the need to protect those innocent parties whose lives are at risk.

William Frank Clayton, Supervisor, Lieutenant, Investigations Division, Department of Motor Vehicles and Public Safety, indicated that as a law enforcement officer and licensed pharmacist, he had concern for the individuals who are rightfully under medication. He referred to some of the medications listed under the proposed amendments for S.B. 481 (Exhibit F) as illicit drugs when in a person’s system. He explained that some medication such as "benzoylecgonine," a derivative of codeine, can be used legitimately and prescribed as a pain reliever. Senator Porter inquired if a person driving under the influence (DUI) of a medicated drug as strong as narcotics, would be released of the DUI liabilities, since the medication was prescribed by a doctor. Lieutenant Clayton emphasized all prescription drugs display warning labels of drowsiness advising caution when driving or using machinery, therefore, a person driving while on medication may be charged for a DUI offense. The recommendations on prescription labels are mandated by the pharmacy and federal laws.

Lieutenant Clayton suggested a standard provision to be set clarifying what percentage of metabolite in the body would be considered an overdose for under the influence of medical drugs. Furthermore, he cited an example that when a sleeping pill or muscle-relaxer is taken, the effect of the medication can be traced in the body even 24 hours later. He also noted that a person technically would not be under the influence, but could also be convicted of a DUI offense. The committee decided to receive further information before taking action on S.B. 481.

There being no further testimony, Chairman James closed the hearing on Senate Bill 481 and adjourned the meeting at 11:35 a.m.

RESPECTFULLY SUBMITTED:

Silvia Motta,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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